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Lord Lloyd of Berwick moved Amendment No. 148:
"( ) The function of making the selection of a puisne judge of the High Court under this Part of this Act may be delegated only to a committee of at least five members whose members include two of the Commissioners qualified for appointment by sub-paragraphs (a), (b) and (c) of paragraph 2(3)."
The noble and learned Lord said: My Lords, I will be brief. This amendment was to have been moved by the noble Lord, Lord Goodhart. I hope that it is in order for me to say how concerned I was to hear that he had been taken ill.
The purpose of the amendment is to provide a panel for selecting puisne judges. I am glad to see that puisne judges have been removed from Schedule 11, where they have been tucked away for too long. The noble Lord, Lord Goodhart, was sympathetic to the amendment that I moved on Report, but he thought that I had gone about it in the wrong way. Afterwards, he volunteered to draft an amendment that would produce the result that I was seeking to achieve; he has done that. The effect is that there would be a panel of the Judicial Appointments Commission consisting of five members, two of whom would be senior judges, one puisne judge, and one a member of the Court of Appeal. I am entirely happy with that approach to that problem, which does exist.
I have reason to suppose that a panel of five composed in that way would be acceptable to the Lord Chief Justice. I hope that in this season of goodwill it will be acceptable to the noble and learned Lord the Lord Chancellor. I can see no reason why that sensibly made-up panel should not be acceptable to the House. I beg to move.
Lord Maclennan of Rogart: My Lords, as a preamble, it gives me enormous pleasure to find myself at this stage in the proceedings of the Bill in entire agreement with the remarks of the noble and learned Lord, Lord Lloyd of Berwick. Although it may be surprising, it is enormously satisfying to see our names jointly on an amendment. I hope that that concatenation may fortify the case that has been made by the noble and learned Lord. He has been right all
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along to identify the appointment of High Court judges as being among the most important functions of the Judicial Appointments Commission.
He has deployed entirely the arguments that I would have done, and I see no reason at this hour to hold up the House by any repetition. If the Government accept the amendment, they will meet the concerns that were expressed by the noble and learned Lord, Lord Lloyd, and my noble friend Lord Goodhart, which were slightly different when deployed on Report. This panel arrangement, constructed as proposed, would meet the concerns of both.
Lord Kingsland: My Lords, I spoke on Report to support the noble and learned Lord, Lord Lloyd, in his amendment. I elide into the concatenation to which the noble Lord, Lord Maclennan, referred, and I support the amendment.
Lord Falconer of Thoroton: My Lords, I am thrilled by the uncharacteristic relationships that have emerged from all of this. I have some sympathy with what the noble and learned Lord, Lord Lloyd, has said, but it would be inappropriate to put it in the Bill. The right moment at which to consider this is the time at which guidance is produced by the Lord Chancellor, who would have had the opportunity to discuss the right course with the appointments commission.
It would be wrong to place in the Bill provisions relating to appointments as important as the High Court that in effect tie the commission's hands for ever. The guidance that the Lord Chancellor produces is subject to the affirmative resolution of both Houses, so there will be an opportunity to debate it then. So, I have sympathy, but this should not be in the Bill.
Lord Lloyd of Berwick: My Lords, I cannot help being disappointed with that. The noble and learned Lord the Lord Chancellor says that with an appointment so important as a High Court judge it is not necessary to put it in the Bill. Precisely the contrary; it is because it is such an important appointment that it should be in the Bill, just as is the appointment panel for Lord Justices, and so on. I cannot help but be disappointed by that; and I hope that he will think again, if necessary in collaboration with the Lord Chief Justice, and put it in the Bill where it belongs. Subject to that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 149 not moved.]
Schedule 11 [The Judicial Appointments Commission: Relevant Offices and Enactments]:
Lord Falconer of Thoroton moved Amendments Nos. 150 and 151:
On Question, amendments agreed to.
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[Amendment No. 152 not moved.]
Schedule 12 [Judicial Committee of the Privy Council]:
[Amendments Nos. 153 and 154 not moved.]
Schedule 13 [Minor and Consequential Amendments]:
[Amendment No. 155 not moved.]
Schedule 14 [Repeals and Revocations]:
Lord Falconer of Thoroton moved Amendments Nos. 156 and 157:
| "County Courts Act 1984(c. 28) | Section 74A." |
On Question, amendments agreed to.
Baroness Ashton of Upholland moved Amendment No. 158:
| "Access to Justice Act 1999(c. 22) | In Schedule 2, paragraph2(1)(b)." |
The noble Baroness said: My Lords, the amendments make provision that is purely consequential on the transfer to the Supreme Court of the devolution jurisdiction of the Judicial Committee of the Privy Council. Each of them adds an entry to Schedule 15 to repeal a reference to the devolution jurisdiction of the Judicial Committee, which will become otiose as a result of the transfer of that jurisdiction. I beg to move.
On Question, amendment agreed to.
Lord Falconer of Thoroton moved Amendment No. 159:
| "Access to Justice (NorthernIreland) Order 2003(S.I. 2003/435 (N.I. 10)) | In Schedule 2, paragraph2(a)(ii)." |
On Question, amendment agreed to.
[Amendment No. 160 not moved.]
An amendment (privilege) made.
Lord Falconer of Thoroton: My Lords, I beg to move that this Bill do now pass.
Moved, That the Bill do now pass.—(Lord Falconer of Thoroton.)
On Question, Bill passed, and sent to the Commons.
Religious Attitudes
The Lord Bishop of Rochester rose to ask Her Majesty's Government, in the light of the international situation, what steps they are taking to support enlightened religious attitudes in the United Kingdom and overseas.
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The right reverend Prelate said: My Lords, for some time, President Musharraf of Pakistan has been calling for policies of enlightened moderation, both within the Muslim world and in the response of the rest of the world to Islam. There is thus an element of reciprocity in his call. An example of that is the recent exchange between the European Union and Turkey. The EU and others have long been encouraging Turkey towards a greater respect for fundamental human freedoms, including religious freedom. Turkey's positive moves in that direction have enabled the beginning of talks on accession.
Reciprocity is not tit for tat. It is about the identification of common values, even if they have origins in different belief and cultural systems, for the sake of the peace and good will that is a seasonal theme at this time. For people of faith, it means a commitment to fundamental freedoms in every part of the world. It is because I have experience of difficulties in building churches in parts of the Muslim world that I support the rights of Muslims and others to places of worship in this country.
Enlightened religious attitudes raise the question of the relation of religion to the state. Religious ideas have often under-girded theories of state and of polity. Today, some still hold that a religion should have coercive power in the governance and law-making of a state. The polity, if not always the practice, of post-revolution Iran is based on that assumption, and is at the root of the inability of that country to move towards reform. Some years ago, I engaged in fruitful dialogue with the former Chief Justice of the Supreme Court in Pakistan, Dr Nasim Hasan Shah. Dr Shah was quite clear that the role of an Islamic state was not coercive but persuasive. It should enable Muslims to be good Muslims, but no one should be compelled to act against their conscience.
Islam is not necessarily theocratic. In fact, those who have championed theocracy, like the Kharijites, have often found themselves on the margins. There have been important intermediate institutions in Islamic polity, such as the Caliphate itself, jurists, the courts of rulers and the Sufi orders. In addition, there are strong traditions of government by consent, both Islamic and customary. If President Musharraf's programme is to succeed, it is vital that civil society is strengthened and the voluntary sector is encouraged to contribute to policy-making, especially in the areas of welfare, human rights and legal reform.
That brings me to religion and law. This relationship, as the one between morals and law, is not a simple one. Religious ideas about the nature of the world, the dignity, freedom and stewardship of human beings, as well as the common good, often underlie moral attitudes and those, in turn, have influenced the development of law, even secular law. Three points need to be made. First, moral awareness is not limited to religious people. People of no faith may be morally more aware than those who belong to a faith but, secondly, religions have often articulated and formalised moral codes—such as the Ten Commandments—by which generations have ordered
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their lives. Thirdly, if law is to be effective, it must have moral and not merely coercive force, and must be able to appeal to moral tradition.
In the context of Islam, that means that the interpretations, codifications and implementation of the Sharia by the classical schools of law—the madha'ib—will have to be revisited. Muslims regard the Sharia as the way of God for them. Christians also see themselves as followers of the way. The question is whether their devotion to the way can be expressed in terms of law which takes account of particular circumstances and changes in human understanding about, for example, penal law. There is a long tradition in Islamic law of ijtihad—of jurists going to the sources of law and relating them to the present situation—and of Maslaha, which is the necessity of taking account of the common good. If enlightened moderation is to make its mark, Islamic jurists will need to apply those principles to urgent issues such as apostasy and blasphemy, the legal and social position of women and the status of religious minorities. I am glad that some of those are being addressed in Pakistan and look forward to further developments.
Both Christianity and Islam have traditions about the justifiability or not of armed conflict. As Christians consider afresh how "just war" theory may work in a world where there is terrorism and a host of unconventional wars, it is particularly important that the Islamic tradition of jihad is not hijacked by extremists. Jihad can certainly be understood spiritually or as a struggle against social injustice but, where it relates to armed conflict, it can be thought of as either an aggressive war against the infidel or a defensive war when Islam is seen to be in danger. In the past 200 years, most mainstream Islamic thought has understood it in the latter sense. Some urgent dialogue needs to take place between Muslims and Christians on when armed conflict might be justifiable. Any convergence on the issue would be a huge resource for the international community.
The ideologues of terrorism are not from the poor. They are from the technocrats and the new business "elite" but, of course, they use the poor. That is seen starkly in the madrassas strung along the Pakistan-Afghanistan border, where children, sent by parents who could not afford any other kind of education, were radicalised and made fodder for the Taliban. The people of Afghanistan and Pakistan and the international community must not allow that to happen again. Widening the curriculum in the madrassas, diversifying educational opportunities for the poor and creating employment through micro-enterprise, as well as fiscal and governance reform which allows such issues to be addressed, are not only national but global responsibilities.
Finally, it is very important to keep the world in motion. We should not lightly accept a world where travel is a doddle for some and well nigh impossible for others. There is no surer way of kindling resentment against those seen as privileged. That has implications for policy on tourism, work permits and family visits, but I wish to focus on programmes of exchange. I am
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glad that in this country they are now being widened to include culture, history and religion. We cannot put all our eggs into the science and technology basket, especially as that has been shown to be morally neutral at best. Let us encourage exchange in all directions, so that people come to encounter the beliefs, values and customs of others. Those are what really matter and it is better appreciation of them which will move us closer to the enduring peace which we all desire, especially at this time of Christmas.
Seeing that I have a minute or two left, I want to urge the Government to consider allotting a longer time for a debate of this kind so that the views of the House and the expertise available in the House can truly be taken into account.
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