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Baroness Kennedy of The Shaws: My Lords, perhaps I may—
3.48 p.m.
Lord Ackner: My Lords, the list of speakers is not on alphabetical merit: it is as it stands on the page.
On Monday of this week when debating a Statement by the noble and learned Lord the Lord Chancellor, the noble Lord, Lord Kingsland, said he considered that,
- "the real motive behind the Government's proposed Bill . . . is to weaken the judicial arm of the constitution".—[Official Report, 9/2/04; col. 929.]
One of the favourite phrases used by the Prime Minister during the past month is that, "We must draw a line under this problem and move on". That is all well
and good if, before the line is drawn, a satisfactory explanation has been given of the problem, questions which properly demanded an answer have been adequately addressed, and adequate assurances have been given to ensure that similar problems will not arise in the future.If one goes back and asks, "What is the genesis out of which these proposals have arisen?" we do not have the clearest evidence but we can probably start with the unconstitutional and inexcusable behaviour of the Home Secretary in attacking the decision of the Appellate Committee of this House for holding that under the human rights legislation—the Government had embraced it enthusiastically as part of the law—a politician was not entitled to play any part in the decision of how long a person convicted of murder should stay in prison. That gave rise to a strong attack by the Home Secretary on the judiciary. It was followed by an even more direct attack on a High Court judge's decision of the legality of the Home Secretary's action under the then current immigration legislation.
I have no doubt that the then Lord Chancellor acted with enormous energy behind the scenes to try to sort this out. He was unsuccessful. He appeared before a Select Committee and, in the course of giving his evidence, said in substance that it is wrong for the Government to cheer when they get a decision in their favour but when the decision is adverse then to attack the judiciary. That was said in public and no one had any doubt that he was directing his criticism towards the Home Secretary.
There then followed a pause and to most of us it was apparent that it would be very difficult to see both remaining in office—the Lord Chancellor and the Home Secretary. To those who knew the personalities, and those who supported them, the bets were that the Home Secretary would survive; and survive he did.
What was difficult to follow was how it could have been thought by the Prime Minister, the Secretary of State for the new department, my noble and learned friend Lord Falconer, perhaps the Home Secretary also, and even an odd crony or two, that an office which had survived centuries could be abolished on the Prime Minister's say-so. Of course the Prime Minister can sack the current Lord Chancellor. One has only got to think back to the night of the long knives and what happened with Macmillan.
However, with all the advice that the mandarins of Whitehall were capable of giving—with the then Lord Chancellor's Permanent Secretary specially chosen by him for his wisdom and understanding rather than acquiring the next senior person from the Lord Chancellor's Office—it is difficult to see where all this ignorance came from. But came it did.
Those of your Lordships who were in the House on Friday 13 June would have seen the less than suave noble and learned Lord, Lord Falconer, bundling into the Chamber with a full-bottomed wig, clearly borrowed from someone, aware for the first time that he could not leave Parliament to go to his new office without first asking the consent of the House, which he did. So the ignorance was there.
In due course we had a sort of debate on a new Speaker. The much missed Leader of the House Lord Gareth Williams of Mostyn rather reluctantly, but quite unequivocally, apologised to the House for the grave discourtesy which he accepted had occurred in his not seeing the House was apprised of the new situation, but had to learn about it through some handout from the press secretary or right-hand man of the Lord Chancellor.
It is virtually common ground that there has been a complete breakdown of trust between the Government and the potential electorate. Politicians are no longer trusted. Last September the Home Secretary in a breakfast conversation with Mr Frost, in one of his near evangelical utterances, told the world that to regain the lost trust politicians must be, "patently honest". In this context your Lordships will perhaps remember that in 2002—the previous year—the Home Secretary accepted the sentencing guidelines in murder cases which the Lord Chief Justice had agreed with the Statutory Sentencing Panel.
The following year, when this patently trustworthy philosophy was being worked out, the Home Secretary introduced in the legislation a schedule—now Schedule 19—which pre-empted what the new Sentencing Guidelines Council should be doing once the Bill was passed, by providing that in future sentences for murder should, roughly speaking, be increased by 50 to 100 per cent. It overlooked entirely that if one increases one very serious offence, then in order to maintain consistency with one's guidelines, one has to increase all the other ones, thereby, of course, making quite impossible the problem of containing these people in prison.
The Home Secretary had thought that what he had done would not take effect for another 10 years or so—by which time perhaps he thought he might be somewhere else. Anyhow, that was an indication of "patently honest". Further examples are occurring. The ouster clause in Clause 11 of the immigration Bill has been referred to. An ouster clause says not only that no application will be permitted to the courts but even specifies that there is nothing one can do if a court exceeds its jurisdiction, except to go back to the original court and ask it to think again; and when the court has thought again and remained consistent with its decision, that is the end of it. So I believe that there is some substance to support the noble Lord, Lord Kingsland.
I want to comment on the shortage of accommodation. Such is the shortage of accommodation within the Palace of Westminster that Lords of Appeal cannot be provided with accommodation and back-up facilities enjoyed by their colleagues in the major Commonwealth countries. However, the situation has materially improved.
When I came to the Lords in 1986 there were nine Law Lords. The figure of nine was due entirely to the fact that the Treasury—I think that it was the only organisation involved—considered that one could
take nine and divide it by two and provide two committees, each of five members. It achieved that by inviting, usually, a Law Lord from Scotland to come down. It took a long time for it to be pointed out and accepted that this was more expensive than having a new Law Lord because you had to pay his overnight expenses and his railway fare.Also when I arrived there were no textbooks and no libraries in our rooms. Textbooks and libraries we had had in abundance since the days when we became High Court judges. I know because I negotiated it, and, of course, a fortiori, in the Court of Appeal.
In the Court of Appeal we each had a secretary. When one got to the House of Lords one shared a secretary with five colleagues. That has now improved; it is one secretary for two Law Lords. There are attempts to get assistance for some Law Lords—the senior ones. A library has been provided and the Law Lords can have the text books which they want and a full set of law reports in their room.
So there is nothing impossible about carrying out one's job in the Law Lords. It is a little uncomfortable, but it does not justify the vast expense—not even costed—which would occur from what is proposed. These are matters to which I shall no doubt have an opportunity to return on Second Reading when the Bill is introduced next term.
3.59 p.m.
Baroness Kennedy of The Shaws: My Lords, it is interesting to hear noble Lords puzzle over the events of 13 June. There we were, expecting simply a reshuffle, and yet we were plunged into this extraordinary constitutional drama. It was described by the noble and learned Lord, Lord Hoffmann, as an issue of personalities in the Cabinet. Was it simply a drama of loyalty? I am sure, as the noble and learned Lord, Lord Hoffmann, suggested, that the removal of the Lord Chancellor in that reshuffle must have caused considerable anguish. It must have been a source of great distress to a Prime Minister who had known that Lord Chancellor so intimately and who had him as a mentor and pupil master. It must have felt like an act of patricide. It may be that, like many an employer, one would want to say that the person was now redundant because their post was abolished, rather than that one was sacking them.
We were seeing more than a drama of loyalty. It was a drama of loyalty not such as is simply part and parcel of the soap opera of politics, but a drama of loyalty of much greater proportion. At the heart of this is the issue of loyalty—to whom does the Lord Chancellor owe his loyalty? When someone becomes a Lord Chancellor, no doubt because of political connections, first and foremost they may feel themselves to be there for political reasons. I am sure that our last Lord Chancellor felt that his long connection with the Prime Minister created loyalty. I am sure that his long-established membership of the Labour Party since he was a teenager created loyalty.
Of course, what a Lord Chancellor learns in our constitution is a greater loyalty—a loyalty to the constitution. The weight of that loyalty is probably not
there in the beginning. It comes as you feel the weight of the role; you are more than a member of the Cabinet, you are the guardian of the Great Seal, the protector of the judiciary, the protector of an independent legal profession, careful of access to justice and mindful of the special role that you play. Because of your life in the law, you know about those checks and balances. Because of your life in the law, you know why law matters. Because of your life in the law, you have come to understand that you cannot only consider the short term in policy-making when it comes to law.The role of the Lord Chancellor creates for that person a great conflict of loyalty. That was the drama that unfolded in the prologue to 13 June. The prologue, as has been described, involved a conflict of loyalty. What we saw unfolding was the drama that is crucial in any Cabinet, where on the one hand there is a Home Secretary who argues about law and order, and on the other there is a Lord Chancellor who is to be the voice of justice and who speaks about what is right and just. We saw that conflict of loyalty played out. The noble and learned Lord, Lord Ackner, described very powerfully the subject matter over which those battles ensued, where it became necessary for the Lord Chancellor to say to the Home Secretary, "Take your tanks off the Middle Temple's lawns. Take your tanks away from the front of the Royal Courts of Justice". The Home Secretary did not receive that message too kindly.
The Prime Minister had to decide where his loyalty lay—did it lie with authoritarianism or liberalism? Did it lie with the protection of justice or with the short-term politics of satisfying the hunger of a media that are often not too concerned about justice? That drama of the constitution was played out, and inevitably, I am afraid, a decision was made that meant that not just the Lord Chancellor himself was removed, but his role was abolished. It may well be that as the noble and learned Lord, Lord Hoffmann, described it, we saw that event dressed in the robes of high constitutional principle.
That saddens me, because I am a constitutional reformer. I chaired Charter 88 for five years prior to the 1997 election. I strongly believe that an evolving process of reform should take place. The role of the Lord Chancellor, in the form that existed, was becoming untenable. In the new world that we live in it was, and is, unacceptable for a Lord Chancellor to sit in the Cabinet and also to sit as a judge. Politics has changed, and the interface of law and politics is much more complex than ever before.
Therefore, this suggestion that the Lord Chancellor's role had to be reformed did not come out of the side-field. It had been discussed and debated since 1988, when the constitutional reform organisation, Charter 88, was established, and debates had taken place about our constitution. The Lord Chancellor should no longer be sitting and making appointments in the way in which he has done. We know from the report of the judicial ombudsman, Sir Colin Campbell, and his associates who have looked at the processes, that they do contain unfairnesses. They
are not open, and the processes are not acceptable in the modern world. Soundings and secrecy are not a way in which we can conduct ourselves in these times.As I travel the world as the chair of the British Council, I see the great work that is done in helping other parts of the world—emerging democracies—reform their legal system, all of which look particularly to Britain for guidance on how to conduct their legal affairs. There is great admiration for the British judiciary, but there is a puzzlement over the way in which our Lord Chancellor fulfils a strange tripartite set of roles. It was time for us to unpick some of those functions, and it was a great sadness to me that the Lord Chancellor, the noble and learned Lord, Lord Irvine of Lairg, did not reform himself. It need not have meant the undoing of that great institution of state, the Lord Chancellorship. There was no reason to abolish it, given the weight of history and tradition, which is so important when the issue is played out in the Cabinet.
What concerns me now is that we have reduced that role to just another Secretary of State, who may still have political ambitions and may still want to become Foreign Secretary, Chancellor of the Exchequer or Prime Minister. He may have constituents who demand of him that he is tough on asylum seekers, sends more people to prison and so on. The imperatives of justice may not be the highest in the mind of such a Cabinet Minister because the weight of that great role of state is not on his shoulders. That is a source of sadness to me because I think that that makes the difference. However much we try to entrench it in statute that the role of the new Secretary of State should be to protect the judiciary, I have concerns about whether that will be done with the urgency and passion with which Lord Chancellors have fulfilled that role for a long period of our history. That is where my regrets lie.
Generally, I welcome the thrust of this set of constitutional changes. I want to see an independent Judicial Appointments Commission, on which we may find it enriching to have others sit and consider those applying to become judges. We do not want cloning. For too long, we saw men appointing men like themselves to the higher courts, which is why it took so long for us to see a woman there. We need an enrichment of those who sit, which is not to cast aspersions on those who sit now or on the great intellect of our judges. They are admired throughout the world, and I see no reason why that should not continue.
Just as it has become inappropriate for the Lord Chancellor alone to make appointments on soundings that are so secret and on questionable criteria, the judges must for a moment consider their position too. It is not acceptable to have in our legislature those who sit as judges in our highest courts, particularly now that our political world has become so much more complex. We could all say, "Why should we concern ourselves? If our practices suit us, why should we concern ourselves with perceptions around the world?". It matters because people look to us when they are reforming systems that have been under the
heavy hand of the state and in which party members have become judges. Creating distinctions matters, and we should make it clear what those distinctions are and where they lie in our system.We are seeing something of which the Hutton inquiry gave us a scent. There is a blurring of boundaries between intelligence and the politicians and between the Civil Service and politicians. We see the embracing by the politicians of aspects of government that should be distinct and where boundaries should be clear. I am afraid that we are, at times, seeing our judiciary co-opted. I was unhappy about the way in which Lord Justice Auld was given the role of considering reform of the criminal justice system. If his remit had been merely procedural, that would have been fine, but he did not confine himself to the procedural. He found himself moving into the constitutional sphere and advising about the removal of juries and so on. What happens then is that the politicians can say, "But our judicial brothers have suggested that this should be done". Such co-option of the judicial arm should be guarded against.
To noble and learned Lords from the judicial arm, I say that those are the concerns that should be in the mind of a judge, when invited to chair inquiries or head commissions. Judges should look carefully at the ways in which co-option should take place. Given the world that we live in and the way in which things have become more complex, it is in the judge's interest that the distances are clearly marked.
It is important to embrace constitutional change, but that should be done properly. We must understand what the foundations are. What is the baseline? What are the non-negotiables? Where are the cornerstones that we must not undermine? When we know those, we can embark on the process of change.
4.14 p.m.
Baroness Howe of Idlicote: My Lords, it has been fascinating to listen to the learned speeches that have been made in this debate and, if I may say so, a particular pleasure to follow the outstanding contribution of the noble Baroness, Lady Kennedy of The Shaws.
I am afraid my only excuse for joining such erudite speakers is by way of a celebration for, as has been said, it is now 12 full years since I had the pleasure of serving on a committee of Justice under the distinguished chairmanship of the sometime Master of Pembroke College, Oxford, Professor Robert Stevens. That committee recommended the establishment of the Judicial Appointments Commission, consisting of both lay and judicial members, and made many other recommendations which appear in the Government's proposals.
There is nothing quite so satisfying as living long enough to witness the adoption of a proposal that, in one's relative youth, seemed self-evident. Even then, though, the Stevens proposals were by no means original. Ten years before that, a previous committee of Justice, under the equally distinguished
chairmanship of Mr Justice Webster, had come to the same conclusion. But on that earlier occasion, as the noble Lord, Lord Alexander of Weedon, said, the very mention of the idea caused such uproar within Justice itself that I believe the pamphlet had to be independently published. Clearly, the process of change takes time.So I warmly congratulate the Government on their plans to establish a Judicial Appointments Commission, which will, in addition to members of the judiciary, have a lay chairman and a majority of lay members. Especially important to me, as it has clearly been to other noble Lords, was to hear the noble and learned Lord the Lord Chief Justice state in your Lordships' House on 26 January that, with certain important safeguards, the proposal had the backing of Her Majesty's judges.
I want to confine what I say to that important feature. Some of the Government's other proposals—particularly the proposal to abolish the office of Lord Chancellor and to remove the Law Lords from your Lordships' House—cannot command even my most grudging support. When our Stevens committee first met, the case for reinforcing public confidence in the judicial process was already on the agenda, and for doing so by establishing a manifestly transparent, accountable and up-to-date process for the selection of judges. So, too, was the case for a system which would set beyond doubt the independence of the judiciary from both Parliament and the executive. Now, that case has become overwhelming. As the noble Baroness has just said, one has only to reflect on the real concern expressed during last week's debate in your Lordships' House on the Hutton report to recognise how important for the maintenance of our democratic processes those issues have become.
It is equally clear that the Commission for Judicial Appointments, set up three years ago by the then Lord Chancellor, a first big step in the right direction, has been an important influence—a catalytic one, indeed—behind many of the changes now proposed. For that the noble and learned Lord, Lord Irvine, and the commission deserve our gratitude. Although not given any actual responsibility for appointing judges, the commission has reached into what actually happens and has been able to point to worrying deficiencies in the current process. It is about some of those issues that I want to comment and ask the noble and learned Lord the Lord Chancellor some questions. It would also be interesting to know what the future holds for that particular commission. Will it, for example, be able to hear any complaints about the decisions of the Judicial Appointments Commission?
First, the proposed method by which the appointing commission will be selected is reassuring. We should all be delighted that Dame Rennie Fritchie, Commissioner for Public Appointments, is to play an important part in overseeing the process, as she is also to do, incidentally, with the chairmanship of the BBC. Until now, the role devised for her has been far too limited. Her involvement here could be crucial in ensuring transparency.
Apart from the range of judicial and legal expertise that will be represented on the Judicial Appointments Commission, the range of experience of its lay members will be important and should, in my view, include those with expertise in up-to-date recruitment procedures. Also important will be the need to secure proper representation of women and ethnic minorities.
My second point concerns the diversity of those appointed to the Bench. As the Commission for Judicial Appointments says in its evidence, today's judiciary is unarguably overwhelmingly male, white and drawn from a narrow socio-economic background, thus leading to a perception that it has a tendency to clone itself. Even if that perception is to some extent unfair, the opaqueness of the current system makes it impossible to prove otherwise.
The commission also says—and this is consistent with experience in other equal opportunity areas—that this leads potentially well qualified candidates to exclude themselves, in the belief that the system will be biased against them. Hence the important need to secure a much larger representation of women and ethnic minorities.
It remains vital, of course, to maintain the high standard of those appointed to the Bench. As the noble and learned Lord the Lord Chancellor has made clear, appointments must continue to be made on merit. However, the argument is not that those appointed are not of high quality, but that there is a real risk that other potentially suitable candidates are being excluded. By now, I should emphasise, there is a substantial supply of well qualified candidates available from both women and ethnic minority groups.
Of course, it has taken time since the Sex Discrimination Act 1975 was passed for women to rise to leading roles. However, nearly 30 years on, it is no longer credible to claim that there is a lack of the necessary talent and experience. The appointment of Elizabeth Lane, as the first woman High Court Judge, took place as long ago as 1965. Another 23 years had to elapse before Elizabeth Butler-Sloss was appointed to the Court of Appeal, and a further 11 years before she was appointed head of a division. Admittedly, 2004 has got off to a good start with the appointment of the first female judicial member of your Lordships' House. Not only was the noble and learned Baroness, Lady Hale, an outstandingly able candidate, she also comes from outside the traditional career path of practising barrister.
The Supreme Court of the United States welcomed its first woman member, Sandra Day O'Connor, almost a quarter of a century ago. Admittedly, the US has not moved very far either because there are still only two, but we also have a long way to go before we can be confident that our judiciary is not only appointed on merit but is also truly reflective of today's society.
I want to mention two areas that the Stevens committee felt were important. First—and some progress has been made under this Government on this issue—appointments to the judiciary should be open
not just to barristers but to suitably qualified solicitors and legal academics—the noble Baroness, Lady Hale, is an ideal role model in this respect. Secondly, there should be a career path within the judicial hierarchy for those with the ability to rise from more junior appointments. That should open up more opportunities for women and others with family responsibilities.Certainly, as the department's summary of responses reports, there is a clear need to rethink promotion policies for those already in the untapped pool of talent that undoubtedly exists within, for example, the District Bench and the tribunal judiciary. I hope that the Lord Chancellor will be able to reassure us that the Judicial Appointments Commission will have these responsibilities and will be encouraged to give them a high priority.
I end by saying, as a magistrate myself for many years, how pleased I was, like the noble and learned Lord, Lord Morris of Aberavon, to read that even when the Judicial Appointments Commission takes on the added responsibility for overseeing the appointment of local magistrates, it will still derive huge benefits from the continuing role of local committees, which will, as now, draw up the initial list of recommendations. That should do much to dispel the disquiet felt by many that this Government have been and remain less supportive than previous administrations of the immensely valuable democratic role played by lay magistrates in our society. I cannot emphasise too strongly that, like the lay magistrates' system itself, the input of those local advisory committees is a crucial feature of the grass roots of justice in our civic society.
4.24 p.m.
Lord Mayhew of Twysden: My Lords, it is a pleasure to follow the noble Baroness, in particular in her reference to the Commission for Judicial Appointments.
The noble and learned Lord the Lord Chancellor has, as we all know, many enviable qualities. However, I have often thought that they engagingly include the quality of a modern motor tyre which, no matter how grievously punctured, nevertheless of its own resources manages to reseal itself and roll on undeflated. He can never have had greater need of that quality than surely he will when he replies to this debate with all its manifold and compelling adverse speeches.
I hope tonight to side with those who call for a draft Bill. We do so from common ground with the Government because we all agree that this legislation will be of monumental constitutional importance. I noted that the Lord Chancellor himself today said that the constitutional principle at stake is one of the most vitally important in any democracy. I consider that only with a draft Bill can this constitutionally momentous Bill receive proper parliamentary consideration.
Constitution making, like marriage, as the Bishops' Bench will confirm, is not to be undertaken unadvisedly. In this country we should know that. I do
not know how many constitutions we have constructed for other people in the past half century as we shed our Empire. All were designed to secure freedom under the rule of law, an independent judiciary and so forth. All were designed to a greater or lesser degree in haste. How many of those have succeeded? Unhappily, the answer has to be, not a very high proportion. Generally the reason for that is that we legislated too quickly with too little time to prepare the people, the politicians and the detailed legislation that their complex needs required. We had to do that because the wind of change was blowing. We were not willing to leave a gaping void, as the Belgians did in their part of the Congo.However, the Government today have no such excuse. There is no imperative driving them down this hurry, hurry, go faster road. There is no gaping void that has to be filled so urgently; far from it. Ministers vie with one another to find the words on the "Today" programme and even in Parliament that can express the depth of their admiration for every Lord Chancellor in living memory and for the almost priestly manner in which they have discharged their duties. As for the judges who have been appointed by that route, including, of course, the Law Lords, to call them the finest in the world is the very least that Ministers seem to think can do justice to them.
Is the system somehow nevertheless broke for some other reason than those? The Lord Chancellor himself hotly denies it—goodness me, no. It apparently is the case simply that because the system fails to pass the test of the abstract theory of separation of powers it must not be allowed to go on working. That proposition is so strange that it surely demands the closest parliamentary examination, and the legislation which is intended to replace it surely demands the close and not truncated parliamentary scrutiny that only a draft Bill can achieve. That would certainly be the view of a great many people in those former possessions of ours who live with the disappointing outcome of our parting constitutional gifts. I think it was the noble and learned Lord, Lord Hoffman, who referred to a Caribbean judge who said words to the effect that the British do not recognise what they are giving up. I and many others recognise what it is proposed we should give up and we oppose it.
It is important to be fair. I can see that if one believes that a constitutional theory—one's own—ought to outweigh constitutional experience—everyone else's—one may feel that one is directed inexorably down the road the Government are taking. Even if, in their modesty, the Government hold to their belief, it still cannot warrant the impetuosity of their decision, nor the pace they hope to set.
Issues of deep complexity are engaged. They have not been thought through, which is hardly surprising. No one before that fateful day, which I may venture to call 12/6—or possibly 13/6—had an inkling that the Lord Chancellor's post was summarily to be abolished. Not Ministers—including probably the Lord Chancellor himself, although he may have been
accorded a couple of days to prepare for his execution—and certainly not officials, even, apparently, in the Lord Chancellor's Department.Small wonder, then, that the issues have not been thought through. One example is the question of what instructions will be given to the parliamentary draftsman in order to secure judicial appointment by merit alone. Nothing could be of more importance. The Government say that promotion and appointment by merit alone must continue. The Lord Chancellor said today, in terms, only by merit. The Government also say that current mismatches between the composition of the judiciary and the community at large should be corrected. They do not say how. Yet here is what is said in their report for 2003 by, and I follow the noble Baroness who last spoke, the Commission for Judicial Appointments at page 35:
- "In our view the principle of selection on merit in relation to judicial appointments involves the follow requirements."
- "Selection should be made according to criteria which relate solely to applicants' potential ability and suitability to perform to the required standard in the position concerned. Factors which are irrelevant to the role in question, e.g., age, sex, ethnicity or social or educational background should be excluded from consideration, irrespective of whether they would advantage or disadvantage a particular applicant."
That is the limit of the quotation. I ask the noble and learned Lord the Lord Chancellor whether directions to the draftsmen will require that formulation to find statutory expression. If not, in what respects will they depart from it? I do not think the noble and learned Lord will be able to answer because, as was said in the notable maiden speech by the noble and learned Lord, Lord Cullen, it is very difficult to achieve in legislation what has hitherto been achieved by convention.
The recent report of the House of Commons all-party committee has been referred to and I will not cite it again. The core of it is its finding that this haste has been dictated—that is their word—by politics and that this topic requires a draft Bill.
The Government have been rash to be impetuous in their decision. Not to produce a Bill in draft form would be feckless and very wrong.
4.34 p.m.
The Lord Bishop of Portsmouth: My Lords, one of the delights of this debate is that at last we have had the chance to look together in detail at the issues surrounding the setting up of a Supreme Court, an independent Judicial Appointments Commission and the abolition of the post of Lord Chancellor.
An added delight for me has been the chance to listen to the maiden speech of the noble and learned Lord, Lord Cullen, who has had the good sense to take the name of Whitekirk, a village near which I spent most of my childhood. Perhaps the clear air of east Lothian coming across the mouth of the Firth of Forth from the North Sea was behind the wisdom of his speech to us today.
I should like to pay tribute, too, to the evidence that the noble and learned Lord gave to the Constitutional Affairs Committee of the other place. He brings, like
others, a measure of Scottish detachment. The changes proposed, he maintains, are not worth the effort. They will be expensive—always an important consideration for Scottish people, but not just them—and he has questions about exactly what kind of Supreme Court we are supposed to be aiming at. I applaud what he said this morning when he contrasted what he called the complexity of the new concordat with the simplicity of the past and the need for the views of the judiciary to be communicated directly to the legislature in person here; leaving aside, of course, as he generously did, the question of voting.Those views echo my own instincts the longer I ponder not the long-term principles but what is actually before us today. I am not by nature averse to change—nor do I believe that radical change always means what some would fearfully describe as "the end of civilisation as we know it". But my reservations are rooted in two areas: a flawed process, and that is always very important when you want to bring the non-professionals along with you; and the set of principles that I regard as too radically at variance from our constitution for them to be, in the short term at least, viable.
I hesitate to refer to events in my own specific area of work. However, yesterday, at General Synod, as has been communicated—not very accurately, of course—in the press, we had an example of a flawed process and a flawed principle comparable to what we are experiencing now. I refer to the spending review of the Church Commissioners' funds where in effect the policy and the implications seemed to be worked out in advance, the consultation process inadequate and the outcome envisaged widely taken in debate to be unworkable. It is often said by all kinds of review bodies that they want clarity, so let us spell everything out in advance, and the fear of press leaks—which of course must determine everything that we are and that we do—means that the details must be in the public domain as soon as possible. That may be well and good if we were confident enough that attention had indeed been paid to the full implications.
The right reverend Prelate the Bishop of Chelmsford has already spoken about the history of our constitution. I would like to press that particular case just a little further and suggest that one of the effects of the removal of the judiciary at the moment, at this particular stage in our country's life, would be to set the executive and the legislature into an even greater tension than they are already, and here I refer back in some ways to the remarks on the American experience made earlier by the noble Lord, Lord Rees-Mogg. Moreover, things are not uniformly different from us elsewhere. I am told—but I may be inaccurately informed—that in the European Court the Parliamentary Assembly of the Council of Europe votes on the three names from each country submitted to it. That seems to be some kind of separation of powers.
I am simply not persuaded that the proposals are worth the effort, the money and the negative consequences. Those include symbolism, by which I do not mean dressing up and antique language. By
"symbolism" I mean the effective lasting communication to the wider world of the value and the depth of our constitution in its legislative aspects.I can see some merit in what is being hammered out in relation to judicial appointments. I am very grateful for recent speeches about that; they have clarified my somewhat muddled mind. However, I doubt whether the Supreme Court is at present worth the candle. I believe, too, that the effect, on the actual running of government, of the abolition of the Lord Chancellorship, in watching that the Government govern lawfully, would be to create a vacuum which would have to be filled by the Attorney-General.
I was much impressed and moved by what the noble Baroness, Lady Kennedy of The Shaws, had to say about personality and role. However, I wonder whether we will start agonising about conflicts of role and interest in relation to the Attorney-General in a few years time. That makes me question what the cash value of this word independence really is and to make the wry comment that we do seem to mistrust unduly that rich, symbolic and functional term, symbiosis.
Many of us in your Lordships' House come here from many walks of life. We experience time and again the benefits of what others bring here. That includes what the Law Lords themselves bring. It is what the noble and learned Lord, Lord Nicholls of Birkenhead, described earlier as what is not judge-centred and for me what is not bishop-centred, which is almost invariably very welcome wherever I go.
However, we also bring here many conversations that we have with folk out there. Many people talk to bishops and we are frequently button-holed; and not just by those—I speak in a somewhat facetious caricature—who favour the exclusive use of the Book of Common Prayer and the reintroduction of flogging. In the recent round of legal services in our cathedrals and elsewhere and in the more convivial contact we have with many members of the legal profession, we bishops can report a considerable degree of what might be called static electricity from younger members of the legal profession as well as, shall we say, the well experienced. This is not, I know, an argument against change but it is an indicator of a level of concern about both process and principle which in many ways replicates much of the evidence placed before the Constitutional Affairs Committee of another place and the conclusions of its report, and which we simply cannot afford to ignore whatever may be outcome of this eminently relishable debate.
4.42 p.m.
Lord Woolf: My Lords, I am grateful for this opportunity to listen to the majority of today's debate. I am also grateful that I am still able to take part in the debate and address your Lordships.
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