Select Committee on Constitutional Affairs Minutes of Evidence

Examination of Witnesses (Questions 240 - 259)



  Q240 Ross Cranston: I hope none of that was directed at me.

  Lord Lester of Herne Hill: Not at all.

  Q241 Ross Cranston: I am simply trying to spell out some of the consequences of some of the changes.

  Lord Lester of Herne Hill: Of course, it was not at all directed at you. I thought it important, though, that you know what you are getting before you ask me a question and I just tried to explain that. I think the answer to Mr Cranston's question is that I do not see the slightest reason why having a properly resourced, strong, independent Supreme Court of the United Kingdom in a proper building, with proper systems, with proper facilities for the public, but with all its existing constitutional roles, should expose it to more virulent press attacks or attacks from populist ministers. It does not seem to me that it makes the slightest difference. The judiciary are always going to have to resist those kinds of attacks. They will have a Chief Justice or a President of the Supreme Court of the United Kingdom, who will have enormous authority and it is that person to whom I would look rather than any minister to defend the judiciary from that kind of attack—although of course ministers must also have that important role.

  Q242 Mr Soley: Could I turn to this question of the functions of the Supreme Court, because I think, Sir Tom, you made it clear that they should stay as they are. One of my interests in this Inquiry is increasingly the direction of change. Because so much is changing in our constitution and in other respects, it is hard to see the ultimate picture and I agree that change has to happen, and quite dramatic change. But what I cannot quite work out in my head, with the growth of European law and also with the Human Rights legislation, is how much this new Supreme Court would be called on to make increasingly political decisions. If I could perhaps give an example which has been in my mind for a couple of weeks now. If, for example, someone challenged in a lower court the failure of the Government to hold a referendum on the proposed EU constitution and if that was thrown out, could that then be decided by the Supreme Court?

  Lord Lester of Herne Hill: Could I have the first stab at answering the question? I think there is a mistaken view that because judges decide difficult questions involving legal public policy and have to make constitutional choices in human rights or European areas, often with social and political consequences, that those are political decisions. I do not think they are political decisions. They are constitutional judges performing a judicial role. In the lecture the other night, which Mr Cranston was kind enough to refer to, I was trying to explain how, for example, with the Human Rights Act, even though Parliament had paid the judiciary an enormous compliment in making them the first guardians of the rights and freedoms, the judges have been extremely careful not to usurp the legislative or executive roles, in my judgment, and they are well aware of the need to avoid judges being politicians. I cannot think of any case—I really cannot—in the last three years since the Human Rights Act came into force, in which one could say that the judges forgot that they were judges, unelected, and had become politicians. I know that the tabloids and some grumpy ministers often attack them in that way but I do not think it is justified.

  Q243 Mr Soley: I understand, if you like, your desire to focus on the issue of you not being political—I understand and accept that—but I am still unsure as to where this process takes us, because it does seem to me that someone could challenge the failure of the Government to hold a referendum and then you would have to decide it in the Supreme Court. Is that just wrong?

  Lord Lester of Herne Hill: I had not realised that you were focusing on that particular example.

  Q244 Mr Soley: I use it as an example.

  Lord Lester of Herne Hill: To take that example, it would be hard to imagine how anyone could formulate that as a proper legal issue, the failure to hold a referendum, because it would be hard to imagine exactly where any legal principle was that would require that to happen. But, for example, when a challenge was made to the failure by the Foreign and Commonwealth Office to protest vigorously enough about the British detainees in Camp X-Ray, Guantanamo Bay, the court decided that that was a political question and not a legal a question. So they do recognise quite properly and rather conservatively that there are issues which are not fit for judges to decide at all. I would have thought the issue as to whether there should be a referendum is a classic example not of a legal question but of a political question.

  Q245 Mr Soley: Do you agree with that?

  Sir Thomas Legg: I do. I think the thing one needs to hang onto in this, as the former witnesses were saying—and I think I saw that you had a similar conversation with Lady Hale the other day—is that the courts, including the Supreme Court, can only exercise any jurisdiction which Parliament gives them. There is no suggestion of which I am aware that we should depart from that fundamental principle. Parliament has of course in recent years, as other witnesses have mentioned, made portentous grants of further jurisdiction to the courts which have brought in a range of issues, which, as certainly Lord Lester has said, involve issues which hitherto we would have regarded as fairly political for the courts to deal with but they remain a jurisdiction of law which Parliament has granted. I personally, like your other witnesses, am not aware of any ground on which the sort of challenge you are making could be made and it would only be if Parliament decides that they should have that jurisdiction that they would be able to exercise it.

  Dr Whitehead: Perhaps we might turn to the question of the administrations of the court.

  Q246 Ross Cranston: I want to ask Professor Scott about his argument for a separate corporate entity, as it were, to run the Supreme Court. We had this debate many years ago. If you could talk us through it and, in particular, tell us whether it is an argument based on constitutional principle in a very broad sense or just a pragmatic argument that this is going to get more resources into the courts?

  Professor Scott: As you say, you and I had these discussions interminably many, many years ago. The point is that if you look at the proposal in the consultation paper about the administration of the new court, it does not seem to me to be satisfactory because if you are going to be serious about having a Supreme Court which is independent, it pays to do everything you can, consistent with good government to make it safe. My argument simply is that one way of making it so would be to make it responsible for its own administration. As I say in my paper—and I suspect you may have read it, because you are a reader—this is not accomplished entirely in one bound by arguments based on constitutional principle. You can argue forever on the basis of the concepts of separation of powers, rule of law and judicial independence and still not come to any conclusion as to how the court should be funded or administered. It is really a matter of good government, and good government is a matter of sustaining, sometimes just by image as much as by rules, the independence of the court. I think that is where the argument has moved on from the years when you and I first encountered it. In those days it was assumed that there was a solution to this problem which could somehow necessarily come out of clear analysis of such concepts of rule of law, judicial independence and separation of powers. We have now moved on to say, "That does not get you there; what does get you there is thinking through those concepts and saying at the end of the day, `What will work best?'" I am now quite convinced that what will work best would be allowing the Supreme Court to administer its own affairs along the lines that the Supreme Court in Canada is permitted, the Supreme Court of the United States, and the High Court of Australia—and, perhaps better, the Australian federal model, the Federal Court and the Family Court in Australia, which is the one that I know best, for reasons which I think you all know.

  Q247 Ross Cranston: Could I ask the follow-up question: If the Supreme Court, why not the other courts?

  Professor Scott: I would say, "Why not all courts?"—but then I have had a long history of disagreeing with people like Sir Tom Legg on this matter. My feeling is that if there is one court in the land which needs this kind of independence or needs us to go with this independence, it would be the highest court in the system. The trouble with this country is that we have a monolithic attitude towards models of court administration based on the Beeching model developed in the 1960s. There are two things to say about that. First of all, it was a model designed to administer trial courts dealing with high volume cases, not the small, ultimate Court of Appeal. Secondly, it was designed pretty much by the best-known businessman of the day, Lord Beeching. Today, if you focused the equivalent of Lord Beeching on court administration, he would not come up with the solutions which Lord Beeching came up with in the 1960s. Organisation and management thinking has moved on too.

  Lord Lester of Herne Hill: I have not read Professor Scott's paper, but I would just like to say that not only do I agree with what he is saying but I thought Lord Browne-Wilkinson put it very well years ago in his famous and very controversial lecture on the independence of the judiciary, when he made points about the problems of encroachment by Sir Thomas Legg's officials into the administration of justice. Having been attached to the third circuit court of appeals in the United States and gone to their annual judicial conference and seen how they managed themselves, I am bound to say that not only the Supreme Court but the other federal courts manage very well indeed budgets that have been allocated to them with their own staff. As a serving judge, sitting both as a deputy High Court judge and as a recorder for 10 years, I found, for reasons we do not have time to go into, that it would have been much more satisfactory if court resources and staff had been under the supervision of a judicial chief executive who could have allocated them properly . . . perhaps "properly" is the wrong way of putting it. Differently.

  Q248 Ross Cranston: I think Sir Thomas Legg should have a right of reply at some point.

  Lord Lester of Herne Hill: Yes.

  Q249 Mr Clappison: On Lord Beeching, I have to say that as a railway user I do not regard him with the same amount of affection which you apparently do, even though he was appointed by a previous Conservative government. I do not think his reforms were that longsighted either. Could I ask you, in the light of what we have heard about the expense of setting up this Supreme Court, given that there does not seem to be a great public clamour for it, nor, indeed, a clamour amongst the Law Lords themselves—most of them seem to be opposed to it, as we have been told—how do you justify the expense of setting up this Supreme Court to achieve the improvement in the image and independence which you have talked about?

  Professor Scott: I cannot answer the question. My starting point is that if you want to have an independent supreme court this is the way to administer it. I have no concluded view at all on whether you should have an independent supreme court or not. I presume that at the moment there is not the wherewithal for providing the resource and the House of Lords in its judicial capacity is costing money, and presumably having an independent supreme court is going to cost more. You are asking me an impossible question. Either you want to have an independent supreme court or you do not. If you are going to have an independent supreme court it is going to cost money. All change costs.

  Lord Lester of Herne Hill: Could I advise Mr Clappison? First of all, I do not think there is much value in counting Law Lords' heads to see how many are in favour and how many are against at the moment. I can tell you on the basis of conversations with the two who are counted as being in the so-called majority that one of them told me he was not in the majority at all and the other told me that if the policy is that there should be a supreme court then there are very sensible reasons for it. Also, of course, the composition of the Law Lords is changing right now and if you counted heads in January you would probably come to a different outcome. The real point is that there are very pressing practical reasons for having an independent supreme court. Many of them are to do with resources. If you go in the judges' corridor or you go and watch what happens in the Appellate Committee, or you go and argue, as I do, in front of them, you will see that the whole system is ludicrous. The public do not have facilities, the back-up for the Law Lords is very weak, the judicial assistants do not have proper rooms and so on. The other thing is that if you open the windows and look at the rest of the world they would be quite astonished by the idea that you have a supreme court trapped in a bit of the legislative building without adequate facilities and mixed up with the legislative process. My colleague, Professor Jeffrey Jowell, who sits on the Venice Commission for Democracy, tells me of the astonishment in the new democracies of Europe when he tries to justify the present system. One of the arguments that has been put forward by some Law Lords for their continuing in the present circumstances is so that one of them can chair Sub-Committee E of the Select Committee of the European Union on which I have served for the last eight years under four successive Law Lords. They have done a marvellous job, but so could Lord Alexander or Lord Grabiner or Lord Brennan or Lord Goodhart or a lot of other distinguished and senior lawyers. The argument that they need to be there in order to service a sub-committee of the European Union Committee again seems to me to be entirely unconvincing. Let judges be judges and nothing else. Politicians should be politicians and not judges and judges should not sit in the legislature.

  Q250 Mr Clappison: But they are not doing any harm, are they?

  Lord Lester of Herne Hill: They are doing harm; of course they are doing harm. First of all, they are harming themselves. There have been cases that probably one does not want to go into where particular Law Lords have behaved unfortunately in a rather incautious way in their participation in the legislative process. The public reputation of the country outside for separation of powers is damaged and their ability to function efficiently as a supreme court is impaired by the lack of proper resources such as one finds in the High Court of Australia, the Court of Appeal in New Zealand, a little country with much better resources for their Court of Appeal in my judgment, or in Canada or in the United States or in the Netherlands or in any other workable democracy. Our supreme court facilities are very poor indeed and they are not compensated for by being members of the wonderful club called the House of Lords.

  Dr Whitehead: Sir Thomas, it has been suggested that you might like to exercise a right of reply before we move on. Do you want to add anything on that?

  Sir Tom Legg: Very briefly on that, Chairman, because there are so many other issues in play. There is a long-standing issue about how far the judges should be allowed to be in charge of the resources which are voted for the courts. Obviously, it is one which I have had to argue and think about over many years. My concern, like those of the other participants in this discussion, is for the independence of the judiciary. You have to balance at least two things here. One is, yes, the judges should certainly have a large say in how the courts are administered and how the resources are used. For my part, now that we are going to have a supreme court of the United Kingdom, hopefully quite separate from the legislature, the nearer we can go towards giving them something like a one-line budget the better. I am not against that at all. The balancing factor, which I think one always has to bear in mind, or at least which I see as something which has to be borne in mind, is that resources come from the House of Commons. It is they—you—who vote them to the judicial branch of government just as you do to every other branch of government. Historically, for good reasons, I think, the House of Commons has never been willing to vote significant resources to the stewardship of people that it cannot in the last resort dismiss. Judges cannot be dismissible by the legislature except for good grounds, which one hopes will have nothing to do with disagreements about the way resources are used. Therefore, for the protection of the judges and not for any other reason I have always thought that we ought to be very cautious about entrusting significant resources to the judges alone. I think they should be in the hands of a minister accountable to Parliament. That is what I see as the issue here.

  Professor Scott: I will just add a little bit on that because Sir Thomas has touched on a point raised in my paper. Various jurisdictions around the world which have allowed their ultimate courts of appeal to have a more judiciary based administration system than an executive based administration system have all dealt with the issue that Sir Thomas has just raised. They deal with it in a myriad of different ways. I have brought with me, but I am sure you would not want me to explain to you, the budget cycle mechanism for the Family Court of Australia, all of its reporting and the budgets prepared by the court with the assistance of the Department of Finance. There is no mediating minister. It goes straight to the Treasury. There are public hearings. The Chief Justice himself reports. They are responsible for the money. All kinds of little mechanisms are put in place to try and get the legislature to live with the anxiety that Sir Thomas has highlighted. It works and it means that the staff do not have the divided loyalties that they have under our system. They work through the court by being at budget hearings where the Chief Justice and his Chief Budget Officer, who works with the Chief, sit shoulder to shoulder discussing things with chairmen of select committees and senate committees responsible for appropriations. It is all very public. If the court does not get the money that it wants the legislature gives a reasoned response and the public will know whether or not the legislature and the executive are discharging their duty to support the independent court. That is the way that in all these little ways the accountability concerns can be assuaged. It is quite sophisticated, it works, it gives the courts the independence they need and the independence that the legislature wants the courts to have because the legislature is forever enacting legislation for the courts to implement. An independent court enhances the legitimacy both of Parliament and of the executive.[1]

  Lord Lester of Herne Hill: I find it very hard as a parliamentarian under our opaque system to discover exactly what is happening in terms of funding of the court service. The so-called Modernisation of Courts Programme has had its budget slashed recently and I have put down question after question asking what are the negative effects of the cuts in the crucial expenditure needed to modernise the lower courts and I have not been able to receive any satisfactory answer at all. All that I get is the positive side of the modernisation programme. It does not seem to me desirable that one should have such an opaque system and I for my part would prefer something like the system that Professor Scott has been referring to. The other thing I would say, as someone who has sat as a judge, is that it is very difficult when you are sitting as a criminal judge or a recorder and you no longer have anyone, as you used to have, say, 15 or 20 years ago, in each criminal court to tell judges like me that we are about to make crass mistakes. When you find that the court staff are withdrawn for cost-cutting reasons the judges have no real say or control to try to redress that and that is one of the reasons why Lord Browne-Wilkinson in that marvellous lecture published in Public Law sounded a warning note that we could not go on with the tension that was developing, I suppose, 15-20 years ago and has got much worse since.

  Professor Scott: Lord Browne-Wilkinson will not mind me saying that vast tracts of that lecture were written by me.

  Lord Lester of Herne Hill: I did not know that.

  Q251 Mrs Cryer: I wonder if you would all give us your views on methods of appointment to the judiciary, especially to the supreme court? Can I also ask Sir Thomas Legg why should the Secretary of State be free to reject a list of more than one candidate? Is the existence of more than one candidate for a post not sufficient safeguard of quality?

  Sir Tom Legg: To answer that I have to go back a stage or two to explain that, at least in my own view, the appointment of judges, and particularly of senior judges, is a political act in the broadest sense of the term, and I think myself that at least one other branch of the three branches of government should be involved. I do not think it is an accident that nearly every other English-speaking country locates the power of judicial appointment primarily in the executive. I believe that the judges should play an important part in the appointment of judges but it should not be a predominant part because if it were that would mean that the judges became a self-selecting corporation and none of the branches of government should be that. I personally believe that the power of appointment should be primarily located in an accountable minister. Of course, how that minister is advised is a different question. I personally accept that the time has come almost certainly to create a Judicial Appointments Commission. Indeed, if the office of Lord Chancellor is to be abolished, I am sure there should be a Judicial Appointments Commission. It is very important what the rules of engagement are between the commission and the minister, but I believe that judges should be recommended to the Queen for appointment by an accountable minister who exercises a real choice and therefore has real accountability. I do not myself see how putting a single candidate to the minister gives him or her a sufficient choice. I know you have a choice, yes or no, will you accept that one candidate, and it is a matter of judgment but in mine I think that the minister ought to have a choice between at least two candidates. That is how I would arrive at that point.

  Q252 Mrs Cryer: Can I ask you all two questions? In what circumstances should a minister be able to exercise a power of veto and would he always be expected to give reasons for rejecting a candidate? Also, if a minister were able to veto either a list or a candidate, would he not be open to charges of political motivation?

  Lord Lester of Herne Hill: I wonder if I could add to what Sir Thomas said. What we are trying to do when we ask and answer these questions is to find ways of strengthening the independence of the judges, making sure that the quality of the judiciary is, if anything, improved but certainly not diminished, making the appointment legitimate in a broad political sense so that the public have confidence in it, and keeping political interference in a bad sense to the minimum. It seems to me that in doing that it is very important that the appointing commissions should be broad based because one way of making wise decisions is to have not only judges but other wise people, like the first Civil Service Commissioner, Baroness Prashar, to take my classic example, with them. Experience of mixed commissions in other countries, like the Netherlands, or in Scotland, is that judges get on perfectly well with senior lay people and they work well together and they produce, I think, wise decisions. By having a strong lay element you avoid the problem of Parliament or the House of Commons having oppressive approval hearings of the United States Senate kind. One of the reasons why that is very important is that you want good people to apply to be judges and if they are going to be threatened with coercive questioning by parliamentarians, for example, they are not going to be very keen to apply. I very much support the idea of the judges not having a monopoly of appointment and certainly I do not like the idea of the Bar and the Law Society having nominees rather than Nolan appointees. I think everyone on these commissions should be selected on their individual merits and not otherwise. I also think that when one comes to the question that Sir Thomas was dealing with, how much discretion for the minister, providing you have got a broad-based commission the discretion should be kept to the bare minimum, but I do not agree with the extreme views of some who say that the minister should not come into it at all but that the commission should simply nominate and it goes straight to the sovereign and that is that. That does not seem to me to give legitimacy in a political sense. You need at least a symbolic role for the Prime Minister or whoever else. In terms of the choice I think it should be very narrow. The commission should recommend one candidate. If the minister does not like that candidate then he or she should give their private reasons for rejection and ask the commission to think again with another name. That should be the maximum discretion. The moment you put forward three names or two names you then get the danger of political interference which one wants to avoid.

  Q253 Mrs Cryer: I wonder if all of you (if you want to) could comment on the role of Parliament. Do you see any role for Parliament in the process of appointing judges to the supreme court and would any political involvement in the selection of judges be in conflict with the need for judicial independence?

  Lord Lester of Herne Hill: I think this Committee should be able to interrogate each of the Judicial Appointments Commissions subject to the devolution issues. I think that there should be an annual reporting mechanism to Parliament so that you as parliamentarians have oversight of the system as a whole and I think that there should be a minister who is himself responsible for not only promoting independence, as they all should be, but also justifying the system that has been set up and the way that it is operated, and I think that the chairs of those commissions should come to this committee to account in general terms for the way they carry out their work, including the criteria under which they operate and exactly how they go about their work. I do not think any individual appointment should be the subject of parliamentary scrutiny.

  Sir Tom Legg: This is a point on which perhaps I am a bit more radical than Lord Lester. I agree with what he says about the accountability of the commission's department. I think that is right. Over the years, as Parliament has successively extended the jurisdiction of the courts into these very sensitive and important areas which you have been talking about before, I have come to believe that, at least at the highest level (and I am talking here about the new supreme court) Parliament should play a role in the confirmation of individual appointments. I am trying to choose my words carefully about that. I recognise of course that comparisons, for example, with the United States, must be handled very carefully. We are dealing with a very different constitutional and judicial culture. I have been very interested over the years to talk to US Supreme Court judges of very different backgrounds, but they have all had a similar view of this, at least the ones I have talked to, and that is that they did not like the confirmation process and did not particularly enjoy appearing before the Senate Judiciary Committee but, having done so and having been confirmed, they feel enormously strengthened in their office as justices of the US Supreme Court because they have been not just appointed by the President, the head of the executive, but also confirmed by the legislature. I think there is a real need here to reinforce the legitimacy of the judiciary. On balance, although of course there are drawbacks and disadvantages and risks, I think the risks are somewhat overstated. I think people have tended to concentrate, if you look at the US, on a couple of very notorious hearings over the last 25 years where things did not go well, and they tend to ignore the hundreds of hearings where things have gone right. I accept that there are problems in this but on balance, towards the really fundamental aim of building up the political and constitutional legitimacy of our highest courts, I would like to see Parliament involved, as I say, in confirming individual appointments.

  Lord Lester of Herne Hill: I would argue for the contrary, that the reason why the Supreme Court of the United States is now so illegitimate in the eyes of so many citizens of the United States is precisely because of the highly politicised nature of appointments and the oppressive senatorial scrutiny which I think in many cases over the last ten or 15 years has worked extremely divisively and deterred good people from either applying for or being approved as senior judges. I think that to invite parliamentarians to quiz candidates essentially about their record and their political views—may I give one good example of the problem, and I am sure I am not going to cause embarrassment by mentioning this? Sir Nicholas Bratza is the British Judge on the European Court of Human Rights. There is no finer judge there. He was my opponent for many years. He represented the Conservative Government. I used to represent the individual. He was nominated under a transparent system here to be that British judge. Lord Irvine of Lairg behaved impeccably. When it got to the Parliamentary Assembly the British politicians, I am sorry to say, said that Bratza represented Thatcher; therefore they were not going to support him as the British judge, and he was only saved from not being elected by the members of the Parliamentary Assembly from other countries. That is a classic example, a very extreme one, of what can happen when you get political considerations coming into a judicial appointment. I very much hope that we do not go down that road at all.

  Sir Tom Legg: If you will allow me a postscript on that, of course, this is a matter of judgment and different people can take different views. I was inevitably heavily involved in the appointment of Sir Nicholas Bratza. I was on the panel which recommended him to the ministers concerned for appointment, and I remember well the incidents to which Lord Lester referred and they were indeed lamentable. The parliamentarians behaved in my opinion very badly. On the other hand, if Sir Nicholas Bratza had had the opportunity to appear before them and explain the background I suspect that it might have all gone away very quickly.

  Lord Lester of Herne Hill: He did have the opportunity. He came before a committee which gave him a 15-minute interview and that was it.

  Dr Whitehead: I think we have a clear delineation of views here.

  Q254 Mr Clappison: As somebody who shares the concerns of Lord Lester can I put to Sir Tom two concerns that I have about what he has proposed by way of confirmation hearings? First, is it unrealistic to expect parliamentarians to do other than have their own political axes to grind when it comes to those confirmation hearings and, secondly, is it not going to be damaging to the apparent independence and legitimacy of the candidate concerned if political issues become unravelled in the course of those hearings?

  Sir Tom Legg: To take the two issues in reverse order, what I think we are talking about here is a balance of risk and advantage. Yes, there is some risk of those things happening, of Members of Parliament grinding political axes, and of the process being seen to become somewhat politicised. On the other hand, you are now dealing with a court at the highest level, whether it remains the House of Lords or whether it becomes a supreme court, which is dealing with jurisdictions which are of enormous political importance. We have travelled down the road over the last generation away from a world in which what courts did, though important to individual citizens, was typically of very little importance to the public interest in a wider sense. We have travelled at least some of the way down the road towards the American situation. We have not reached that point and we probably never will, but what the supreme court does is often now of very great public and political importance. It is a matter of judgment but my own judgment is that we have reached the point where the views and attitudes—and, I must add, the balance of composition—of our highest court have become a matter of wider public and political concern. Mostly, in the appointment of judges, you are really appointing professionals to do a professional job, and the analogy was made earlier with senior surgeons and that sort of thing, but at the highest levels it is not really quite like that any more and I think this needs to be recognised.

  Q255 Mrs Cryer: I just wanted to mention, further to your comments on the unsatisfactory nature of the voting for judges to go on to the European Court of Human Rights, that I was a member of the Council of Europe for six years and I participated in one of these votes. I do agree, it is a bit chaotic, because now there are, I think, 52 countries and I believe each of the 52 has three judges and the Members of Parliament who are voting know very little about the calibre of those judges.

  Lord Lester of Herne Hill: There is a very good report by INTERIGHTS looking at this issue and there is a meeting in Brussels on 10 December about the other European courts where the judges on those two courts are desperately worried about what is now happening in terms of political interference. I simply mention that as a cautionary point. Poor old Lady Hale has been on the receiving end of so much vituperative and unfair prejudiced tabloid attention and personal attack. If she came before a committee like yours, even if you were all, as you would be, wise and impeccable and non-political in questioning her, can you imagine what the tabloids would do in advance in order to try to persuade you not to recommend that her name go forward? It is a horrific prospect. There are already a lot of very able barristers, for example, who have not accepted appointments to the High Court Bench, for all kinds of reasons, nothing to do with pay, I hasten to add, or not mainly to do with pay, and I am very worried that there will be a real problem of getting able practitioners, barristers, solicitors or whoever, applying for these jobs if they think they are going to be oppressed in the process. You have to have a private, rational, fair system which encourages them to apply and to give up their freedom as practitioners for the considerable restraints of having to be a judge for the rest of their lives.

  Dr Whitehead: Can we now move on to the question of diversity and consultation?

  Q256 Keith Vaz: Lord Lester, one of the reasons the Lord Chancellor suggested that the system should change was that he wanted a more diverse judiciary. Is this going to happen under the new system?

  Lord Lester of Herne Hill: I think so. I have read the evidence given by my colleagues from the Bar Council, Matthias Kelly and Elizabeth Gloster QC. I am bound to say that I found their evidence, with great affection and respect, complacent.

  Q257 Keith Vaz: You are not the only one.

  Lord Lester of Herne Hill: I think there are still serious problems for women and ethnic minorities in particular in having access to really good chambers and law firms.

  Q258 Keith Vaz: Tell us about your chambers. You head the chambers, do you not?

  Lord Lester of Herne Hill: I do not head them. We have Presiley Baxendale and Charles Flint who co-head the chambers.

  Q259 Keith Vaz: How many black and Asian people do you have in your chambers?

  Lord Lester of Herne Hill: We have one Muslim, Shaheed Fatima, and we have one Sikh, Pushpinder Saini, out of 65.

1   Note by witness: The thrust of my answer was that it is possible to devise a budget cycle system where the court budget is drawn up by the court and submitted to the Treasury without any mediating ministry being able to fiddle with it, and that the exchanges between the court and the executive about the budget (which may involve the Chief Justice playing a leading role at particular parts of the process) are made public so that everyone knows (1) what the court is asking for, (2) why it is asking for what, (3) what the government says the court can have and (4) why the government says that the court cannot have all that it is asking for. Back

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