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Baroness Farrington of Ribbleton: My Lords, I remind the noble Lord, with respect, that he is now two minutes over time.

Lord Thomas of Gresford: I am obliged. Finally, I should like to refer to the proposed role of the Judicial Committee of the Privy Council in interpreting the constitutions of the Scottish Parliament and the Welsh Assembly. I do not see political considerations coming into the matter; it is well within the compass of that judicial committee.

8.21 p.m.

Lord Kingsland: My Lords, with the noble Baroness in mind and being aware that I made a speech on a similar topic 10 days ago, I shall be very brief.

I congratulate the noble Lord, Lord Patten, on introducing this debate. I do not think that he intended in any way to criticise the noble and learned Lord the Lord Chancellor; I think rather that he was probing and asking the noble and learned Lord for his reaction to the quite dramatic constitutional changes that the Government have introduced over the past 18 months and whether he felt some changes were necessary to maintain the legitimacy and reputation of the judiciary.

I listened with great care to the excellent speech of the noble and learned Lord, Lord Neill, and I entirely agree with what he said about the decisions made by our judges down the centuries. Even in recent years, with the increase in the number of judicial review decisions, our judges have still retained their legitimacy by making sure that those decisions are couched in the language of interpreting the will of Parliament.

Now, things may change--because of two measures that the Government have introduced. The first is the incorporation of the European Convention on Human Rights and the second is the devolution of power to the Scottish Parliament. In the case of the European convention, the balance of power between the judiciary and the legislature has changed dramatically. The judges can now range over all our statute law, analyse it in the

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light of the convention and, if they find an incompatibility, declare it. Once that incompatibility is declared, Parliament is obliged to legislate. Hence the change in balance of power between these two crucial arms of our constitution. Judges can no longer disguise what they say in the language of the intention of Parliament; it will now be their decision.

Is there not at least a danger that the judges might be seen by the public as overturning the decisions of elected politicians and therefore be perceived in the same way as elected politicians? I hope that that will not happen and that the noble and learned Lord the Lord Chancellor is right in what he said 10 days ago. He felt that no change whatsoever was necessary in his approach to the appointment of the judiciary. So be it. I hope that he is right. I do not share his confidence. I trust that he will at least reflect on the implications of the incorporation of the convention in the way that I have explained.

In the same way, the judicial branch, through the Judicial Committee of the Privy Council, will have to make decisions about the validity of Acts of Parliament passed by the Scottish legislature. What will be the political implications of those Acts being struck down? Perhaps it will be treated by the electorate of Scotland in exactly the same way as our own electorate reacts to a judicial review decision of a United Kingdom court; but, then again, perhaps not.

Having regard to the dramatic constitutional changes that the Government have introduced over the last 18 months, ought we not at least to reflect on the implications for the judges who now bear such a heavy constitutional burden for our country, a burden they have never been asked to bear before?

I do not entirely agree with every suggestion made by my noble friend Lord Patten. For example, I take the view that the selection of judges should remain in the hands of the noble and learned Lord the Lord Chancellor. In response to what the noble Lord, Lord Desai, said 10 days ago, I suggested that some public hearing might form part of the selection of the members of the highest court in our land--not that I think Parliament ought to be able to decide the judges' appointment, but there should be some public airing. After all, the noble and learned Lords who sit on the Judicial Committee of your Lordships' House are allowed to speak in it freely; so why should there be such a strong objection to their answering questions posed by your Lordships' House in the course of the appointment procedure? However, I have noted that many noble Lords have been sceptical about that matter and I readily accept that there may be some other method which would be preferable.

The essential question for the noble and learned Lord to consider is whether or not the dramatic change in the powers of the judiciary ought to make him ask pertinent questions about whether the present system is sufficient to ensure their legitimacy into the future.

8.26 p.m.

The Lord Chancellor (Lord Irvine of Lairg): My Lords, I too am grateful to the noble Lord, Lord Patten,

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for initiating this evening's debate, but I did note the point, well made by the noble Lord, Lord Borrie, as to whether this new policy was being made on the hoof. There is a close link between the operation--and the integrity--of the judicial appointments system and the independence of the judiciary. The noble and learned Lord, Lord Bingham, in his 1996 inaugural Judicial Studies Board lecture on the independence of the judiciary, said:

    "The key to the successful making of appointments must, I would suggest, lie in an assumption shared by appointer, appointee and the public at large that those appointed should be capable of discharging their judicial duties, so far as humanly possible, with impartiality. Impartiality and independence may not, even in this context, be synonyms, but there is a very close blood-tie between them".

I agree that judicial impartiality is linked to, though slightly different from, the concept of judicial independence. One of the major duties of my office is to ensure the maintenance of judicial independence. The two pillars of our system are judicial independence from any executive or other interference and the assurance that the judges are impartial in their own independent sphere.

Judicial impartiality requires the judges themselves to put their obligation of fidelity to law and compliance with their judicial oath above personal preference. Some claimed in the late 1970s that the Court of Appeal had been partial in a long line of trade union cases. The most authoritative insistence on judicial impartiality came from Lord Diplock in Duport v. Sirs in 1980. He insisted that it was the judges' duty to apply the statutes, however unpalatable and whatever their own perception of where the public interest lay. Just as they are entitled to independence in their own sphere, so the public must be able to take their impartiality for granted. I believe the standing of the judiciary today is such that the public does have complete confidence in its impartiality.

In this debate it is important to distinguish between two quite different propositions. The first, which has not been articulated during the debate, is that we should never have had a Human Rights Act because it will politicise our judiciary. The second is that now that we have a Human Rights Act we must have a different method of appointing the judiciary. The first proposition is, I believe, the position of the noble Lord, Lord Waddington--he is not in his place this evening--who has tabled a starred Question for Wednesday on the subject. The second, I rather think, is the position of the noble Lord, Lord Patten. I am persuaded by neither.

The first proposition is simply an attempt to renew a battle that is over. Parliament has legislated for the Human Rights Act. Nor is the second proposition sound. I see no reason why adjudicating on legislation that might be called "constitutional"--I have to say that I find the expression very imprecise--should require any change to the way that judges are appointed. The decisions that judges have made in their own independent sphere across the century have frequently been the judicial component in much wider political controversies. I do not see the development of judicial review, of the Human Rights Act or of the devolution settlement as marking any sea change in the nature of judicial decision-making.

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Under the Human Rights Act, the principle of parliamentary sovereignty is emphatically retained. The courts cannot strike down an Act of Parliament as incompatible with the convention. There will be very rare cases where they will declare an Act to be incompatible, but then it is for Parliament to determine what change to the statute is to be made. Under the devolution legislation the Judicial Committee of the Privy Council--not your Lordships' House in its judicial capacity--will have to determine vires issues affecting, for example, the Scottish Parliament, but that is nothing new in principle. The Judicial Committee has a long history as a constitutional Court of Appeal from the Commonwealth, to which the noble and learned Lord, Lord Neill of Bladen, referred, and vires issues of this kind are food and drink to the committee. So it is important not to get all of this out of proportion.

I repeat what I said in your Lordships' House on 17th February in the debate on the separation of powers, mentioned by the noble Lord, Lord Kingsland, and initiated by the noble Lord, Lord Lester of Herne Hill:

    "Some who are critics of the Human Rights Act argue that it will have a tendency to politicise our higher judiciary. It is true that the Human Rights Act, when implemented, will throw up cases which could be described as politically controversial. But the law is no stranger to that over the centuries. Think of the landmark cases in civil liberties",

to which the noble and learned Lord, Lord Neill of Bladen, referred. I continued:

    "Think of the development of the law in relation to trade unions and the development by Parliament of immunities for industrial action which were then interpreted by the judges in controversial ways. Think of Liversidge and Anderson in 1942, the Regulation 18B case, and Lord Atkin's historic dissent."--

indeed, there was an unholy row about that at the time. I went on to say:

    "Think of the development of judicial review and of natural justice. Think of Brind, which excluded certain politicians from media appearances but allowed actors to stand in. Think of the cases about homosexuality in the Armed Forces. Think about whether the life support machine should be turned off. Think of every controversial decision in the criminal law".--[Official Report, 17/2/99; col. 735.]

The courts have never been far away from controversy. I firmly believe that the Human Rights Act may see a change in degree, but not in kind.

I turn now to judicial appointments. I appoint to judicial office--or, in the case of more senior appointments, recommend for appointment--only those who meet the statutory qualifications for the office concerned. Subject to those statutory requirements, I make appointments strictly on merit, as did my predecessors. My policy is to appoint, or recommend for appointment, those candidates who satisfy the statutory qualifications and who, in my opinion, best meet the criteria for appointment. This is without regard to factors such as gender, ethnic origin, marital status or disability. The politics of any individual is absolutely irrelevant. I do not know, and would not contemplate inquiring, about the politics of any applicant for judicial office. I am sure that my noble and learned predecessors would say the same.

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I believe strongly in equal opportunities. Everyone should be given an equal opportunity to fulfil his or her personal potential. Negative discrimination on the grounds of gender, race, religion, sexual orientation, class or any other discriminatory factor should never be tolerated. But, as I have said before, I am resolutely opposed to any proposition--and we have heard it tonight--that our senior judiciary, prior to appointment, should be subject to public hearings, to subject their judicial track records or attitudes to appraisal in terms of changing fashions for political correctness. I do not think that our higher courts should be sculpted to conform to some notion of social, political, gender, or any other balance. So I fundamentally disagree with the noble Lord, Lord Patten, that there should be public hearings before a Select Committee of both Houses of Parliament to approve the appointment or to investigate the attitudes of independent and impartial lawyers who might be appointed Law Lords. I entirely agree with the noble and learned Lord, Lord Neill of Bladen, on that issue.

Next, I normally appoint candidates to full-time office only after they have served part time for long enough to prove their competence and suitability. When considering the merits of candidates for appointment, I consider the independent assessments of as many members of the serving judiciary and the legal profession as possible. The consultation community is very wide. This is one of the areas of my department's work which is most thoroughly researched. I welcome the remarks of the noble and learned Lord, Lord Mackay of Drumadoon, in that respect. It would be difficult to conceive of a fuller system of peer appraisal. At present, I am considering this year's Silk applications. I have no less than 4,600 comments on the merits of individual applicants to consider. Last year 511 applied and 60 succeeded. This year 553 have applied. It is a highly competitive process in a merit-based system.

I cannot change the world overnight, but there are encouraging signs that women and ethnic minority practitioners are now coming forward in greater numbers. Without prejudice to the overriding principle of appointment strictly on merit, I hope to be able to appoint many more women and ethnic minority practitioners to judicial office in the coming years. Last year I was able to recommend for Silk 10 women and four applicants from an ethnic minority background. These figures of successful applicants represent over 20 per cent. of the applicants in each category. In December 1994, 7.6 per cent. of the main tiers of the judiciary were women. The figure is now over 9 per cent; and the picture is changing.

We have had a short but good debate on the initiative of the noble Lord, Lord Patten, on a subject which has become somewhat topical. I am sure that the debate will prove to be a source for opinion which we will consult in the future because of the quality of your Lordships' contributions this evening.

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