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Lord Mackay of Clashfern moved Amendment No. 23:


"Committee on Administration of Justice and the Legal Professions
(1) There is to be a committee of members of both Houses of Parliament, to be known as the Committee on Administration of Justice and the Legal Professions ("the Committee"), to examine, review and report to Parliament upon—
(a) the discharge of the duties imposed by section 1;
(b) the exercise of the functions of Ministers of the Crown under any enactment so far as those functions concern the legal professions or the administration of justice (but not in relation to any particular set of legal, disciplinary or other proceedings);
(c) the exercise by the Judicial Appointments Commission, and any commission convened under section 20, of their functions under this Act (but not the merits of any particular decision about the selection of a person for office);
(d) consistently with the duty imposed by section 1(1), any other matter relating to the legal professions or the administration of justice which either House resolves to refer to the Committee or which the Committee thinks appropriate.
(2) The Committee is also to facilitate the exercise by the President of the Courts of England and Wales of his functions under section 2(2)(a) in relation to Parliament.
 
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(3) The Committee is to consist of—
(a) five members of the House of Lords, nominated by the Speaker of that House; and
(b) five members of the House of Commons, nominated by the Speaker of that House,
but is not to include a Minister of the Crown.
(4) The members of the Committee are to be appointed—
(a) on the coming into force of this section to serve for the duration of the present Parliament; and
(b) subsequently at the commencement of each Parliament to serve for the duration of that Parliament.
(5) A casual vacancy resulting from the death, resignation or incapacity of a member of the Committee is to be filled by nomination of a member by the Speaker of the relevant House.
(6) The Committee may—
(a) exercise its functions by any six of its members; and
(b) sit and transact business whether Parliament is sitting or not, and despite any casual vacancy in the membership of the Committee,
but otherwise may regulate its own procedure."

The noble and learned Lord said: My Lords, the amendment is intended to deal with a particular situation. If the Bill is enacted, Lords of Appeal in Ordinary and senior judges, who, hitherto, have held Life Peerages in this House, will no longer have the opportunity to bring to the House concerns that they have about the administration of justice and matters affecting the appointment of judges or the legal profession. As has been pointed out, they often did that in the past with great effect and sometimes with considerable emphasis.

The Bar Council of England and Wales, on considering this change, and on the footing that it was going to become the law, felt that the concerns of the profession were capable of being attended to by a committee on the administration of justice and the legal professions, as set out in the detail of the amendment. The draft of the amendment was kindly provided to me by the Bar Council.

It seems to me that something along these lines is certainly appropriate. I should be very glad to know that at least the spirit of the amendment would be acceptable to the noble and learned Lord the Lord Chancellor. I beg to move.

Lord Maclennan of Rogart: My Lords, I support the amendment moved by the noble and learned Lord, Lord Mackay of Clashfern, at least in principle. It is a constitutional innovation to set in statute a provision to establish a Joint Committee of our two Houses. That may not be considered to be appropriate, but it is certainly appropriate to recognise that there should be as much transparency as possible in representations made to Parliament about the administration of justice and the legal professions. It is one of the underlying objectives of this legislation, through the separation of the legislative arm from the judicial arm, to ensure that there is complete openness about the concerns of the judiciary and those who are essential to the discharge of the legal system.

The drafting seems to me to be pretty good, as is perhaps not surprising when one acknowledges its provenance. However, being a constitutional
 
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innovation, it ought also to be considered in that context. There are a number of proposals of constitutional importance, such as that we should have such a committee to review treaties before they are ratified, which is a matter of high importance. We should not have to wait on the enactment of legislation to provide for such committees. However, in general, I indicate our support.

Lord Henley: My Lords, I offer the support of these Benches to my noble and learned friend Lord Mackay of Clashfern. Like the noble Lord, Lord Maclennan, I accept that it would be a constitutional innovation to put the matter in statute, in a Bill. I certainly agree strongly with him that there ought to be a committee. Whether the committee should be exactly as suggested by my noble and learned friend, with five Members from this House nominated by the Speaker and five Members from another place nominated by the Speaker, and whether their tenure should be exactly as he suggests—for the length of one Parliament—or something else, is another matter, and one that it might be possible to consider later. For the moment, having offered our support, we would like to hear what the Government have to say about the matter and whether they can at least show some sympathy to the principle behind what my noble and learned friend has proposed, even if they cannot accept the full detail of the amendment and the prescriptive nature of setting up a committee of both Houses.

Lord Falconer of Thoroton: My Lords, I think that all of us would agree that proper communication and representation of views between the legislature and the judiciary is clearly very important. The Bill will greatly assist such communication by providing far greater clarity about the respective responsibilities of the Executive and the judiciary, which will facilitate relationships between the judiciary and the legislature.

The new committee that the noble and learned Lord, Lord Mackay of Clashfern, proposes would overlap greatly with existing committees. I do not dispute for one moment the great importance of there being a channel of communication between the judges and Select Committees of this House or another place, or a Joint Committee of both Houses. However, we all know that other committees already have responsibility for many of the functions that the amendment proposes for a new committee.

To give but one example, the responsibilities of the Minister as the head of the Department for Constitutional Affairs—including, of course, functions relating to the legal professions and the administration of justice—are already scrutinised by the Select Committee on Constitutional Affairs. That committee has several times invited senior members of the judiciary to appear before it. There has been no difficulty in senior members appearing before the committee, with both sides clearly respecting what is a sensible area of inquiry and what is not.

My main concern with the amendment of the noble and learned Lord, Lord Mackay of Clashfern, is, therefore, not the principle of representation behind
 
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it—namely, that there should be a committee that connects with the judiciary—but the particular mechanism that the amendment adopts to provide for that. As the noble Lord, Lord Henley, said, a statutory committee would be a constitutional innovation. It would not allow us to build on existing arrangements. Flexibility for the arrangements to evolve over time would be lost. A statutory committee ties us to one very specific way of working. The Select Committee on the Bill recognised that when it stated that,

It is very important for effective mechanisms for representation to be found, but it is equally important for the mechanism to be flexible enough for us to develop communication with the judiciary as we learn from our experiences. It is for Parliament to regulate its own proceedings, but not to bind future Parliaments through a statutory provision such as this. It is right that it is Parliament that determines with the judiciary how they can best represent their views. As I said, this is not an issue about the detail; it is an issue about the principle—we should have committees. Whether they should be the existing ones or new ones, Parliament should decide and amend as time goes on. It would not be right for the representation that we all want to occur under an amendment of that sort. I therefore invite the noble and learned Lord, Lord Mackay of Clashfern, to withdraw the amendment.

While I am on my feet, it is worth saying that the noble and learned Lord, Lord Woolf, the Lord Chief Justice, has tabled a later amendment, Amendment No. 24, which proposes that the judges have the right to lay documents before Parliament. I will say a little about that when we reach it. That seems to me to be an innovation that we should consider. I do not say what is my view about it, but that might contribute to how the Lord Chief Justice represents his views to Parliament.


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