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Lord Carlisle of Bucklow: My Lords, understandably, one often hears the argument that there are fewer female justices than there are male justices in the High Court, the Court of Appeal and, indeed, in the House of Lords. But surely the noble Lord must remember that when he started in practice, and when I came to the Bar, there were no women coming into either profession. While his argument would stand good if in 10 or 20 years' time there were not proper representation, I do not believe that there is a smaller proportion of women on the High Court Bench compared to men if one considers the pool from which they can be drawn.
Lord Clinton-Davis: My Lords, I have heard that argument often before and I believe it to be somewhat misplaced. There are a number of women judges who could be promoted. It is also appalling, as I have said, that no members of the ethnic community are represented in the highest court of the land. That ought to be put right.
I was about to refer to the intervention of the noble and learned Lord, Lord Woolf, the Lord Chief Justice. Perhaps unintentionally, he somewhat clouded the issue. He argued that it was necessarymore or less conditions precedentto find a location for the Supreme Court and to determine whether or not this place is to be wholly elected. Both those observations are, in my submission, crimson and ermine red herrings. If a new building is to be foundand I remain to be convinced on that scoreit is possible that the Law Lords could occupy it. Perhaps a search should be made immediately. In any event, it is perfectly possible for the Law Lords to carry on their functions here for the time being.
The Lord Chief Justice also asserted that the Supreme Court would be less supreme than in other countriesthat it would be bound to be inferior. Is that not an assertion without evidence? Why is that allegation made? It seems to me that the Supreme Court would enjoy precisely the same jurisdiction as the Law Lords in the House of Lords, but that there would be a separation from those who apply the law and those who make it. My own view is that the noble and learned Lord, Lord Woolf, should have addressed some of the more obvious anomalies of the present court. They are all issues that ought to be confronted now, in this Bill. We need a more equitable system than we now have.
It is also desirable that the Law Lords, or members of the Supreme Court, should be consulted in some way about any proposed change of the law with which they had a direct concern. That, in my opinion, could best be done by the Lord Chief Justice, or another judge of the Supreme Court appointed by the Lord Chief Justice, consulting the judges collectively and reporting their views to the Government. They do not have to be members of the legislature to do that, despite the blandishments of the noble and learned Lord, Lord McCluskey.
Lord Alexander of Weedon: My Lords, I am very glad to follow the noble Lord, Lord Clinton-Davis, whose contributions to our work I always greatly admire. He seems to me to exemplify what the playwright, Robert Bolt, once said, that it is very important to be passionate in defence of moderation.
I strongly support the concept of an independent judicial appointments commission, as does Justice, the all-party law reform and human rights group that I chair. But, since the noble and learned Lord the Lord Chancellor mentioned this in his opening, I shall point out that both our reports suggested that the appointments commission should advise a Lord Chancellor who would make the ultimate appointments. That was an important consideration.
I support the concept of a Supreme Court. I also believe that the functions of the Lord Chancellor cannot long continue in their present form, particularly if the incumbent is to play as powerful a role in politics as did the noble and learned Lord, Lord Irvine. But I saw, and still see, considerable scope for reshaping the office rather than abolishing it, as does the noble and learned Lord, Lord Lloyd. I am also strongly convinced that the most fundamental changes to our legal system for centuries should not be rushed through without full and mature consideration. I would like to spend my few minutes explaining why.
With others, I deplore the way, and the atmosphere, in which these changes have been proposed. In our society there will always be tensions between governments and the judiciary. After all, the essential underpinning of our democracy is the existence of the rule of law, which is there to keep the ambitions of ever-more intrusive government within legal bounds. Unfortunately the present Government respect the role of the judges less than any other in my lifetime. The Home Secretary has criticised the decisions of individual judges and has actually suggested that judges should be there to "help us". He does not apparently share the view of the great Lord Atkin that administrative convenience and justice are often not on speaking terms. We have a Prime Minister and a Home Secretary who are prepared to suggest the heresy that the more serious the charge, the less strong should be the burden of proof. We have an asylum Bill that seeks to oust the jurisdiction of the courts, which are there to supervise the legality of the actions of tribunals.
This proposal seems to be reminiscent of the longand long abhorred17th-century dispensing power. It is hardly surprising that the scepticism that should greet the proposals of any government to change the legal system radically have hardened, in the case of this Government, to deep cynicism.
Since June last year, it is undoubtedly true that the Government have consulted on the detailed way in which to implement the wholesale changes that they propose. But, as the noble and learned Lord the Lord Chancellor said so clearly in debate last month, they regard the fundamental changes as issues of policy that are above the need for consultation. Many of us protest passionately at this approach. We believe that there should have been proper, widespread consultation before decisions on policies of such crucial constitutional significance.
It is not clear when the Government actually adopted this policy. There was no hint of it in the last election manifesto. There was no prior discussion with the judges, with the Attorney-General, with the Leader of our House, with any of those who use legal services or with human rights groups. Nor, as I understand it, did any Cabinet committee or the Cabinet itself discuss the issue before the Prime Minister, as part of a ministerial reshuffle, announced these changes. So ill considered was the new policy that the Government mistakenly thought that they had abolished the office of Lord Chancellor by a combination of prime ministerial fiat and press release. Henry VIII, at his most absolutist, might have given Mr Blair an approving pat on the back. Thomas Cromwell, his henchman, might well have understood the unenviable role into which the noble and learned Lord, Lord Falconer, was thrust.
Since then, the Government have continued to be wholly impervious to the regularly repeated suggestion that the Bill should belatedly receive pre-legislative scrutiny. The only reason seems to be that they think that they have a window of opportunity to get the Bill through and that this somehow overrides the importance of taking into account anyone else's views of the wisdom of change.
There are many like me who are totally unsympathetic to the principle of a Supreme Court. But do not the views of the noble and learned Lords, Lord Nicholls, Lord Hoffmann and Lord Lloyd, deserve a hearing on that issue? With such a divide, I think there should be a proper debate. There is time for a Select Committee to do its work and for the Bill to carry over to the next Session and to be completed then. The Lord Chancellor, when asked the question at the beginning of this debate ducked it completely. Although I share so many of his views, I do not share the view of the noble Lord, Lord Lester, that we should take account of the fact that the Government may want to go to the country next spring. So what? Is it not more important to get our constitution right?
My fundamental concerns are how we will make certain that the abolition of the office of Lord Chancellor will not deprive the legal system of its important underpinnings. It is idle simply to pretend that this can be replicated by passing the responsibility to a Minister in the other place who will often not be a lawyer, lacking clout, and may have political ambitions which will not be furthered by standing up to his own senior Ministers. The Lord Chancellor has been described as a "hinge" between the judiciary and the executive. Lord Hailsham described himself as the
There are an immense number of issues where the Lord Chancellor has traditionally sought to be a bulwark for the legal system. Who, if he goes, will seek to ensure that there is sufficient public funding for litigants to secure access to justice? Who will seek to argue for the appropriate increase in the number of judges? Who can warn the Government about the likely concerns for the legal profession or potentially difficult ramifications of proposals put forward by individual Ministers? Who can seek to act as mediator if there is potential friction between the Government and the judiciary or the professions?
I believe that this needs to be thought through. The Bill does not go far enough to entrench and protect the judicial system and its independence. Those who ought to have been consulted before the so-called policy was announced should have the chance to express their views. It cannot be right for the Government to take the view that they are so confident in their own proposals that they are wholly uninterested in hearing the detailed views of others. These reforms are controversial, far reaching and unprecedented.
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