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12 Jun 2008 : Column 744

I am grateful to the noble Lord, Lord Roberts, for giving me some advance warning that he would be raising the issue of identity and passport services. I understand his point about remote communities and video-linked offices and the question that arises about taking fingerprints. I have not been able to get all the information that the noble Lord would require, so I wonder if I could write to him.

On the national staff dismissal register, the point is that the Home Office did provide funding to the organisation, but that was related to setting up crime/business partnerships. However, the department was not consulted about setting up the staff dismissal register and will not be involved in any way in its operation. It is very much for the Action Against Business Group to ensure that its register complies with all relevant legislation. Further, I shall draw the question of the logo to the attention of the Home Office and get back to the noble Lord when I have a response.

I turn to the question of the illegal trade in people’s bank account details. Of course we are concerned about this issue and that is why we brought forward amendments to the Criminal Justice and Immigration Act. We remain keen to ensure everything is done to inhibit the practice.

Noble Lords have paid tribute to the Information Commissioner because the regulatory system we have in place is highly dependent on the commissioner, to whom I pay tribute for his work. He also takes a proportionate approach to regulation, but I understand that in 2007-08 the number of cases received by the commissioner’s office was 25,670. Sixty per cent of those cases were resolved within 30 calendar days and 85 per cent in 90 days. On resources, we are considering the matter and a review is being conducted by the commissioner which I will come on to in a moment. It reflects the further question put to me about extending the commissioner’s powers.

The noble Lord, Lord Kingsland, was right to draw attention to lapses, but those lapses have not occurred because the culture of the Government puts a low premium on the protection of the individual; it is not that we are using data as a throwback to our belief in the benefits of democratic centralism, if I may use that term. We have been very concerned about the lapses, and that is why the reviews have been set up. On the relationship between my department and other departments, it is right that the responsibility should lie with individual departments, but with the Ministry of Justice in a role as a kind of overseer and co-ordinator. I am not sure how far he was going with his argument, but the potential for a Minister in one department almost taking responsibility for the actions of another is something we would seek to avoid. We are not seeking to avoid responsibility, but it is important that individual government departments should take their responsibilities seriously. On the question of the shape of legislation, even if we were to pursue the course suggested by the noble Lord in relation to specific and separate pieces of legislation, it would still come down to the effectiveness of the machine itself to ensure that whatever was in the legislation was policed effectively.

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Lord Kingsland: My Lords, I am grateful to the Minister for giving way. These are not just my own views, but also those of the committee. The particular value of setting out in detail in primary legislation the proper balance between the general principle of privacy and those public interest factors which might in one way or another dilute it is that the individuals in each department would be subject to those detailed rules in a way that they are not at the moment. That would solve in part the problem to which the Minister rightly refers: you cannot have the Minister of Justice interfering every five minutes into the affairs of another fiefdom. But if the officials in each department are properly informed by the legislation under which they are operating, you would not need to have interference of that sort by the Ministry of Justice.

Lord Hunt of Kings Heath: My Lords, I am grateful to the noble Lord, Lord Kingsland, who spoke eloquently about the committee’s report. The Government have responded. I do not know whether the noble Lord has seen our response but I am happy to send it to noble Lords who have spoken. I follow what he says and that approach could be taken. We will have to see in the light of all the reviews currently under way whether there are any more lessons to be learnt about the legislative approach. Whatever approach we take we still come back to individual responsibility, accountability and proper systems in ensuring that those systems are used to full effect.

We clearly do have a number of reviews being undertaken. The Cabinet Secretary has established a review into data handling procedures in government. That is due shortly. We have the HMRC review—the Poynter review—and the Ministry of Defence review by Sir Edmund Burton, which is looking into specific circumstances that have led to data losses. All those reviews are due for publication shortly.

Lord Roberts of Llandudno: My Lords, I am sorry to intervene. We are having these reviews and the Minister will be writing to us about the national staff dismissal register. Can he assure us in any letter that it is being kept under surveillance?

Lord Hunt of Kings Heath: My Lords, that is not a government register. It is a private concern subject to the legislative provisions that are in force. I will check the use of the Home Office logo, and I will respond to the noble Lord. We have not yet received the reviews. I hope that we will receive them shortly. Alongside that, the Information Commissioner is undertaking spot checks on or audits of central government departments. My department is working with the Information Commissioner at the moment on how that is going to be undertaken. Those of us who in other walks of life have been subject to spot audits will know that they are useful mechanisms, first, for discovering whether there are any problems and also for keeping individual departments up to the mark.

Baroness Walmsley: My Lords, will the Information Commissioner also have the resources to carry out spot checks on private companies that handle large amounts of data as well as government departments?

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Lord Hunt of Kings Heath: My Lords, I have already said that we are looking at the Select Committee’s recommendation in relation to the Information Commissioner’s resources. The one review that I have not yet mentioned is that by the Information Commissioner himself with Dr Walport. That will be looking at the framework for the use of information in both the private and public sector. It will look at issues around the Data Protection Act. One would then have to come back to say whether the Information Commissioner has the right powers and resources.

As the clock strikes 20 minutes, I want to say that this has been an extremely useful debate. It will inform the Government as they consider the reviews that they are shortly to receive. Noble Lords should be under no doubt whatever that we regard personal data privacy as of critical importance. We ensure that we have the utmost security in the use of those data but equally there are considerable uses to which such data can be put for the public good. It is essential that we keep the balance right.

4.30 pm

Baroness Miller of Chilthorne Domer: My Lords, I thank warmly all noble Lords who have spoken. I have certainly learnt a lot today. I pay tribute to the expertise of the noble Earl, Lord Erroll, who knows a great deal about this subject. Everyone else I know with such expertise is under 25. In my family, only my stepson knows a great deal. The remarks in my speech about the younger generation were made seriously—we are poorly equipped for this debate.

I am grateful to my noble friend Lord Roberts. I can assure him that we will certainly keep the national staff dismissal register under surveillance. I am grateful also for the continuing work of my noble friend Lady Walmsley and for everything that she has done on children’s DNA databases. The noble Lord, Lord Kingsland, as ever, was very forensic—a word used accurately by the Minister—about what is needed. I am glad that he dwelt on the recommendations of the report because they are so important. I am grateful to the Minister for his full reply. I concur with what he said about the Health and Safety Executive, which is often much maligned. It is a crucial part of what needs to happen and we can learn lessons in proportionality from it.

I am grateful for the opportunity to hold this useful debate and I look forward to seeing the reports and the next legislation when they arrive. I beg leave to withdraw the Motion for Papers.

Motion for Papers, by leave, withdrawn.

Maximum Number of Judges Order 2008

4.31 pm

Lord Tunnicliffe rose to move, That the draft Maximum Number of Judges Order 2008 laid before the House on 13 May be approved.

The noble Lord said: My Lords, this order will increase the statutory maximum number of judges of the Court of Appeal from 37 to 38 so as to enable a

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Court of Appeal judge to be appointed chairman of the Law Commission without reducing the judicial capacity of the Court of Appeal. Without that provision, the working capacity of the Court of Appeal would be reduced for the period of the appointment of any existing Lord Justice of Appeal to the chair of the commission as that post is a full-time appointment.

On first reading, the order appears to be relatively simple and straightforward, but it is important that I explain in more detail the background as to how this order came to be necessary, and something about the processes for appointing the chairman of the Law Commission and for the appointment of judges of the Court of Appeal of England and Wales.

Before I do that, I need to bring to your Lordships’ attention a small technical detail. There has been an inadvertent error in the Explanatory Memorandum to the order which means that it does not accurately describe the full policy intention. Although this has no effect on the drafting of the order, I apologise for this oversight. A replacement memorandum has been laid before Parliament and copies are available in the Printed Paper Office. Paragraph 7.5 of the original memorandum set out that, subject to selection by the panel constituted under the Constitutional Reform Act, the chairman of the Law Commission should be made a judge of the Court of Appeal on leaving the Law Commission. In fact, the intention is that it should be possible for the chair also to be a judge of the Court of Appeal at the same time as taking up the Law Commission post, whether by simultaneous appointment or by an existing Appeal Court judge taking the post. Your Lordships will also notice that slight clarification has been made to paragraphs 7.1 and 7.4.

As your Lordships will know, the Law Commission is the statutory independent body created by the Law Commissions Act 1965 to keep the law under review and recommend reform when needed. It fulfils many functions with the key aims of ensuring that the law is as fair, modern, simple and cost effective as possible. The Law Commission also carries out research and consultation, making systematic recommendations for consideration by Parliament, including codifying the law, eliminating anomalies, repealing obsolete and unnecessary enactments and reducing the number of separate statutes. The commission’s recommendations for law reform can shape the legal rights, duties and liabilities of large numbers of people, and large areas of the law have been renewed as a result of its continuing work.

The Law Commission has been recognised by successive Governments as making a valuable contribution within our legal system, and it plays a fundamental part in our constitutional arrangements. There are five commissioners, all of whom work full time at the commission. The chairman is a senior judge appointed to the commission for up to three years. The other four commissioners are experienced judges, barristers, solicitors or teachers of law. The Lord Chancellor appoints them for up to five years, although their appointments may be extended.

Ever since the creation of the Law Commission, because of the demands of the job, its chairman has always been appointed from the ranks of the senior

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judiciary. Indeed, Section 1 of the Act provides that the chair must be a judge of the High Court or of the Court of Appeal of England and Wales. Having a senior member of the judiciary as the head of the commission acts as both a guarantee of its independence and a pledge of the Government’s continued desire for it to carry out its statutory duty. It is a guarantee, because the chairman is a member of the judiciary who cannot be said to be beholden to the Government in any way and who can deal with members of the Government without concern.

As your Lordships will see, the chairmanship is an extremely important and demanding role. As the commission’s principal public face, the chairman promotes its role and its work, leading the commissioners and representing their views to Ministers and others with a key interest in the law and law reform. The chairman also leads on law reform projects and has special responsibility for overseeing the commission’s work on consolidation and statute law revision.

During the passage of the 1965 Act, the Lord Chancellor, Lord Gardiner, said that in his opinion the chairman should be,

I am sure your Lordships will agree that the chair of the commission needs to be seen to be someone who has the status and authority to command the respect and confidence of the Government and the judiciary. The commission’s work needs to carry the confidence of Parliament if the Bills that it drafts are to pass into law.

Having a Court of Appeal judge—a judge of the highest calibre—as the chair of the commission will help to ensure that that confidence is maintained. Indeed, it is in the public interest that the most able senior judges fill such posts. That is truer now than ever before, in view of the recently proposed significant structural reforms to improve the effectiveness of the commission and its relations with Parliament and the Executive.

I turn now to the issue of appointing Court of Appeal judges. It is precisely this issue that makes the order such a necessary and sensible, although precautionary, measure. Before the Constitutional Reform Act 2005 came into force in April 2006, Lords Justices of Appeal—to give them their proper title—were appointed by Her Majesty the Queen on the recommendation of the Prime Minister, who received advice from the Lord Chancellor. Before submitting his advice, the Lord Chancellor consulted the Lord Chief Justice of England and Wales and the other most senior judges. That made it possible for a High Court judge, serving as chairman of the Law Commission, to be appointed to the Court of Appeal on completion of their term of office at the commission.

Following the implementation of the Constitutional Reform Act, the Queen still appoints Court of Appeal judges on the recommendation of the Prime Minister following advice from the Lord Chancellor. But the selection process is now the responsibility of the independent Judicial Appointments Commission. As a consequence of the newer, clearer and more accountable

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appointments process, there can be no absolute guarantee of simultaneous appointment. However, the order is an essential step in ensuring that the most experienced and suitable judges can continue to be appointed as chairman of the Law Commission, without adversely affecting the working capacity of the Court of Appeal.

It is in the interests of the proper and efficient functioning of the judiciary that the most able senior judges are interested in taking the chair of the Law Commission. Such a position provides a unique opportunity for the senior judiciary to acquire administrative and management experience, and familiarity with the workings of Parliament and the Executive. It is even more important that the most able judges should acquire those things, as the 2005 constitutional reforms transferred responsibility for management of the judiciary to the most senior judges. In future, having prior management experience will be even more important for them.

The chairmanship of the Law Commission enables senior judges to gain a broader range of legal knowledge than they might otherwise achieve across a diverse range of subject areas, informed by comparative law, empirical research and impact assessments. For that reason and those that I have already mentioned, I commend this order to your Lordships. I beg to move.

Moved, That the draft Maximum Number of Judges Order 2008 laid before the House on 13 May be approved. 20th Report from the Joint Committee on Statutory Instruments.—(Lord Tunnicliffe.)

Lord Henley: My Lords, I thank the noble Lord, Lord Tunnicliffe, for introducing the order. I welcome him to Ministry of Justice debates. I think that it is his first outing in this field. He has come in very honourably after his noble friend—his noble boss, if I may put it that way—Lord Hunt of Kings Heath responded today both to Questions and to two debates. The noble Lord, Lord Hunt, deserves some time off. We wish him well wherever he has gone. I think he said that he was going to Birmingham—perhaps he is going to Henley to help canvass for the Labour Party in the by-election there. I do not know, but we will see in due course.

The Minister introduced the order and made quite clear its purpose, which is to increase the number of Court of Appeal judges by one and, as I understand it, because the cost implications are relatively small, to reduce the number of High Court judges by one. Will he confirm that that is correct? If that is the case, the cost implications are marginal because it is a question just of the difference in salary between the two.

Will he then offer us an assurance that the Lord Chief Justice, or whoever the relevant person is, is perfectly content that there should be one less High Court judge, that the High Court will be able to cope and that there will not be further delays in whichever division of the High Court those judges are removed from?

Will he comment also on why all this is necessary? I suspect that the reason is the changes that the Government introduced as a result of the Constitutional Reform Act 2005 and the establishment of the Judicial Appointments Commission. Before that, as is made

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clear in the Explanatory Memorandum, there was the unwritten convention that whoever was chairing the commission was appointed to the Court of Appeal and others were High Court or equivalent. As judges are now appointed by one method and those chairing the commission by another, the unwritten convention no longer works as it should. It seems, therefore, that the unwritten convention has almost to be codified in a way that strikes one as not particularly necessary.

Will the Minister comment also on what is happening in regard to the appointment of judges? We heard rumours outside that there are considerable delays in appointments, that not enough of those who are suitably qualified are coming forward, that the whole process is much slower and a backlog is building up, and that there may therefore be a shortage of judges. I have no doubt that the Chief Secretary to the Treasury is pleased about that and that savings are being made by the Government, but it does not help in the administration of justice.

I thank the Minister for his courtesy in ringing me up to tell me that there had been a mistake in the Explanatory Memorandum. I assured him that it was not necessary for him to have a copy sent up to my office and said that I would pick one up from the Printed Paper Office. As always, my incompetence is such that I picked up the Explanatory Memorandum for the Armed Forces (Alignment of Service Discipline Acts) Order. That will no doubt not matter, because the Minister has explained in detail the changes that should be made to paragraph 7.5, for which I am very grateful.

4.45 pm

Lord Goodhart: My Lords, I have been a great admirer of the Law Commission and its work ever since it was created in 1965 by that great lawyer, Lord Gardiner, when he was the Lord Chancellor in Harold Wilson’s first Government. Over the 43 years since then, the Law Commission has done a great deal of extremely useful work and has entirely justified its creation. Of course, during that time it has had long-running difficulties over obtaining implementation of its recommendations, even after they have been accepted in principle by the Government, because of the difficulty of getting parliamentary time.

I say in passing, although this is not directly relevant to the order, that I have very greatly appreciated the enormous effort that the noble Baroness the Lord President has put into designing a fast-track procedure that, it is hoped, will enable more uncontroversial Law Commission Bills to pass through your Lordships’ House and through the other place as well. So far as concerns your Lordships’ House, we approved the proposals of the noble Baroness two months ago in April, when we approved the recommendation from the Procedure Committee on trialling the new procedure.

I am also glad to see what appears to be an increased degree of interest from the Ministry of Justice in the work of the Law Commission. We will have to wait and see whether that materialises, but I understand that a good deal of interest is being shown.

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