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The Lord Chancellor: My Lords, it would not be an accurate account of my first Answer. The right balance to strike is proper confidentiality, but making sure that there is proper monitoring of the processes. That is what the arrangements allow for.

Lord Peyton of Yeovil: My Lords, not having any prospect myself of ever becoming a Minister again, perhaps I may ask the noble and learned Lord if he would not deplore the tendency to sew suspicion and

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to make it obvious that Ministers are mistrusted? One of the problems in our country is that we have destroyed, or are on the way to destroying, trust.

The Lord Chancellor: My Lords, I join with the House in expressing our deep great regret that the noble Lord, Lord Peyton, will never be a Minister again, which is a great loss to the nation. As far as the second matter is concerned, the greater the trust in Ministers and other politicians the better for the nation.

Female Genital Mutilation Bill

Brought from the Commons; read a first time, and ordered to be printed.

Household Waste Recycling Bill

Brought from the Commons; read a first time, and ordered to be printed.

Ragwort Control Bill

Brought from the Commons; read a first time, and ordered to be printed.

Constitutional Reform

3.12 p.m.

The Lord Chancellor: My Lords, with the leave of the House, I should like to make a Statement on constitutional reform. We all recognise the importance of our judiciary and our legal system to the security and confidence of our communities. They deal with crime, anti-social behaviour, family and civil disputes and through the tribunal system a whole range of subjects that affect daily lives.

We currently have judges of complete independence, probity, and very high ability. They are admired the world over. We need to build on that to ensure that our judges and our legal system are able to meet the challenges of the 21st century.

They must continue to be independent—of the executive, and the legislature. They must be able to connect with, and reflect our society, and they must be of the highest quality. We must recognise that improvements should occur when confidence is high.

Currently we have a system where all the judiciary—and I include in that magistrates, and tribunal members—are appointed mainly by, or on the recommendation of, one Cabinet Minister, where until the 12th June that Cabinet Minister also sat as a judge in the highest court in the land, and where before someone becomes a judge in our highest court of appeal, he is first made a member of the legislature; namely, this House. The efforts of my predecessors, particularly my noble and learned friend Lord Irvine of Lairg, have ensured that quality and probity have been maintained. But now we need arrangements which embed existing independence in a way which

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does not depend on one Minister, and which ensures that we have not just a quality judiciary, not just an independent judiciary, but also a diverse one that reflects our community. There has never been a woman appointed to sit in our final court of appeal; there has never been a black or minority ethnic judge appointed to the High Court in England and Wales.

We must implement change in a way that carries the confidence of the community, including the legal and judicial community. That means we must consult widely and fully before deciding the detail of our changes.

Today, I am publishing three consultation papers, the first on a supreme court for the United Kingdom, the second on an independent judicial appointments commission for England and Wales, and the third on the future of QCs.

I will deal first with the proposals on a new supreme court. We propose that the Appellate Committee of the House of Lords will cease to exist as the United Kingdom's highest court of appeal, and that the present Lords of Appeal in Ordinary instead form a new separate supreme court. While they are members of that court, they will not sit and vote in the House. The Government propose to transfer the whole of the present jurisdiction of the Appellate Committee to the new supreme court.

The time has come to take the final court of appeal out of the legislature.

The Government also propose, subject to consultation, to transfer from the Judicial Committee of the Privy Council to the new court their present jurisdiction over devolution issues. This will enable us to restore a single apex to the United Kingdom's judicial systems. The Judicial Committee of the Privy Council will, however, remain in being to continue its work as the final court of appeal for a number of Commonwealth and Crown Dependency jurisdictions.

This will be a new United Kingdom court. It will stand in exactly the same relationship to the courts in Scotland, Northern Ireland and England and Wales as the Appellate Committee of this House does now. The independence of the three judicial jurisdictions will be totally respected. Arrangements will be made, as now, to secure appropriate representation for Scottish and Northern Irish judges.

The Government also propose to establish an independent judicial appointments commission for England and Wales to recommend candidates for appointment as judges. At present, judges are effectively selected by the Lord Chancellor. It is unsustainable for a Minister to continue to select judges in this way. The process of selection of judges for appointment in England and Wales must be demonstrably impartial and independent, as it now is in Scotland and will be in Northern Ireland.

Appointments will continue to be made solely on merit. But in addition, a judicial appointments commission will insulate more the appointment of judges from politicians and will assist in opening up appointments to some of the groups of lawyers which

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are under-represented in the judiciary at the moment, including women, ethnic minorities and, at the higher levels, non-barristers.

The Government propose, subject to consultation, that the new independent judicial appointments commission would make recommendations to the Secretary of State. This model would significantly curtail ministerial involvement by placing the process of selecting candidates in the hands of the commission. However, the Secretary of State would still remain ultimately accountable to Parliament for the actual appointment. This model would therefore preserve the constitutional convention that Her Majesty the Queen acts on the advice of her Ministers.

The Government propose that the commission has a balance of judicial representatives, legally qualified members and lay members. We will seek views on who should chair the commission.

It is proposed that these members are appointed by a separate appointing body. That body would not include Ministers, but would be chaired by a senior civil servant, supported by a senior judge and a senior public figure entirely independent of the judiciary or the executive. Appointments to the commission would be made under "Nolan" principles, further ensuring the commission's independence from Ministers.

The Secretary of State for Constitutional Affairs will remain, after abolition of the post of Lord Chancellor, responsible for ensuring the independence of the judiciary in England and Wales within Cabinet, and consideration should be given to whether that responsibility should be embedded in legislation.

The third of the papers published today is the Government's consultation on the future of the rank of Queen's Counsel, which designates members of the Bar and a small number of solicitors as "senior advocates". The critical issue on QCs is whether the public is best served by the continuation of that rank. If it is, then how should the system be changed?

Last year the Government's wider consultation about the market for legal services aimed to find out how Silk was actually used, and whether users were concerned about market distortions. The results, published in May, show that there is indeed some general support for Silk, but many concerns about how effective a guide it is to quality in advocacy. That is why the Government are now publishing a wide-ranging paper that canvasses all the options from improving the current Silk system to abolishing it completely and leaving it to the legal profession how customers are best informed about the quality of services.

Judicial appointments in England and Wales; a Supreme Court; and the future of QCs are three vital issues which require detailed consideration and consultation. In reaching our conclusions we are determined to ensure that we enhance the transparency of our legal system, increase public confidence and bolster the independence of the judiciary from both the executive and the legislature. In this way we create a modern legal system which

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builds on its current independence and quality, ensuring a better justice system serving the public. I commend the papers to the House.

3.19 p.m.

Lord Strathclyde: My Lords, I am sure I speak for the whole House when I say how grateful we are to the noble and learned Lord the Lord Chancellor for making this Statement this afternoon. The fact that it comes more than a month after the Prime Minister announced the abolition of the office of Lord Chancellor and that it is being made by the noble and learned Lord as Lord Chancellor tells us all we need to know about how carefully it was all thought through.

In replying to the Liaison Committee in another place, the Prime Minister was unable to point to any consultation at all with Cabinet colleagues, the senior judiciary or the legal profession. It is not a pretty way to do government, and now we are faced with the prospect of trying to put the pieces back together again. These consultation papers will no doubt help, but does the noble and learned Lord see that they should have preceded, not run after, announcements of policy? The noble and learned Lord has suggested in his many press interviews today that there may be urgent legislation. Can he now say how he will advance to that point, for these papers are riddled with unanswered questions? I counted 72 in all. The consultation only closes in November. Will there then be a White Paper, bringing together the separate strands? Can there really be properly thought-out legislation in time for the next Session?

The Government like to say that current arrangements are outdated. I am frankly more interested in whether they work, and whether what we put in their place will be better. Modernisation has become a great mantra for this Government, but I wonder whether it is enough any more to say that something is old to prove the case that it is bad. Our constitution is not bad because it is old; it has become old because it is good and has stood the test of time.

We on this side of the House do not oppose thought of reform. But the onus is on the noble and learned Lord to say why present arrangements must so urgently be changed. Can he tell us the problem that he is trying to solve? If it is a question of the independence of the present Law Lords, can he say in what respects they are not now independent? Is there some instance of political interference or connivance with the Lords of Appeal that he knows about and the rest of us do not? If so, he has a duty to lay that evidence before Parliament. If the issue is the fact that the noble and learned Lord the Lord Chancellor is entitled to sit as Lord of Appeal, could not that be dealt with, as the noble and learned Lord, Lord Lloyd of Berwick, said on 18th June, by saying that in future he should not sit? Would that not enable things to continue without the immense upheaval now proposed by the Government?

Today there are two key constitutional issues: first, the establishment of a supreme court outside Parliament and, secondly, the creation of a new

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appointments commission to appoint judges. On a supreme court, what is the rationale for stopping the Privy Council arbitrating on disputes on the devolution settlement when the Judicial Committee of the Privy Council is, in any case, to continue? Will the noble and learned Lord confirm that if the change were not made, the role of the new court would be exactly the same as that of the present one?

Will the noble and learned Lord also clarify the position on the place of Law Lords in this House? This House, I believe, much values the presence of noble and learned Lords. If Lords of Appeal are removed, will they still come here on retirement? Does he have a view on that and, if they do not come here then, as of right, who will determine who has merited a peerage in the conduct of their judicial office? Will that be under the authority of the Prime Minister and, if so, what would that do for judicial independence? If there is no Lord Chancellor, can the noble and learned Lord say who will speak with authority in defence of the judiciary and protect its impartiality in this place and in the Cabinet?

The noble and learned Lord says that one reason for change is that he wants to have a more campaigning role on legal issues than the Lord Chancellor can. How does that square with policing the frontiers between politics and judicial impartiality?

One argument for change in the paper is that the Law Lords need new offices. They could be better housed, but that is not a conclusive argument for constitutional change. After all, who will supervise the building or adapting of new premises? Would it be the noble and learned Lord himself? One would not want another Holyrood—or even another Millennium Dome.

On a judicial appointments commission, will the noble and learned Lord say where the present system has so critically failed as to justify change? Has there been a serious problem with the appointments made under the authority of the noble and learned Lord, Lord Mackay of Clashfern, or the noble and learned Lord, Lord Irvine of Lairg? For the record, we see none. Could not any problems over the present system have been addressed with a little more openness?

The Statement and the consultation paper return time and again to the theme of diversity. It is a well trodden and worthy path, but there is no substitute for merit in appointment. The noble and learned Lord cannot pin his standard to that mast and then argue for alternatives to it. It is not a circle you can square. Surely no one would want to replace the phantom of political interference with preferment by political correctness. Will a lay chairman of a judicial appointments commission increase or reduce fears of appointment on grounds other than merit? And who will write the criteria for appointment?

The noble and learned Lord says the commission will have its independence assured by being appointed by a senior civil servant—in whose department, we do not know—a senior judge—not even a High Court judge—and a senior public figure, whatever that means. What have the senior Law Lords, the Lord

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Chief Justice, the Master of the Rolls and the President of the Family Division done so wrong that they must be replaced by these people? If the case for change is to take things away from the Lord Chancellor to stop political interference, what is the case for putting the process under the veto power of a far more political Minister than a Lord Chancellor could ever be? It looks a little illogical—indeed, a little odd—and very much made up on the hoof.

The noble and learned Lord has announced a huge package of change, rushed out in a hurry and still only half thought through. It still raises far more questions than it answers. What we have now works well—nothing in these papers suggests it does not. We have a judiciary of high reputation that bears no taint of political interference. Debate on change may be necessary, but this is not exactly an issue where the public have risen up in anger, as they have about tuition fees, foundation hospitals or rising crime. Having started so badly, we should surely take what time is needed to get the answers right.

If the result of the most botched reshuffle in living memory were to be botched and hasty legal reform, we shall all regret it for very many years indeed.

3.27 p.m.

Lord Goodhart: My Lords, we on these Benches welcome these reforms in principle. That is hardly surprising, since they are reforms that we have advocated for many years. However clumsy and cackhanded the method by which they were introduced a few weeks ago, we must take the view that we support them.

We therefore welcome the proposal that a separate supreme court should be set up. It is a well known saying that justice must not only be done, it must be seen to be done. It seems equally true that Law Lords should not just be distinct in practice from the legislature but should be seen to be distinct. No other country in the world has this quite extraordinary historic muddle of a House of the legislature also nominally sitting as the supreme court of the land.

We welcome the proposal that the supreme court should have jurisdiction to decide devolution issues. That means that there will be a logical solution in which there will be a single court with final jurisdiction in the United Kingdom and a separate court— the Judicial Committee of the Privy Council—with jurisdiction on matters from some of the Commonwealth countries and the Crown dependencies.

We therefore agree that the members of the supreme court should not be active Members of your Lordships' House at the same time. So long as the present system of appointment of Members of your Lordships' House continues, we take the view that retired Justices of the Supreme Court should be eligible for, though not necessarily entitled to, appointment to your Lordships' House.

So far as the appointment of Members of the supreme court is concerned, we believe that the existence of a commission is essential. It will of course

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have to be separate from that which was responsible for judicial appointments to the courts of England and Wales.

It is absurd to have a judicial appointments commission responsible for the appointment of judges to the lower courts, but not for appointments to the highest court of all, where crucial—and the most politically sensitive—decisions are taken. If Ministers are involved, it is impossible to exclude politicisation. It is widely believed that the government of Prime Minister Harold Wilson refused to recommend the noble and learned Lord, Lord Donaldson of Lymington, for appointment to the Court of Appeal because of trade union pressure as a result of his role in the national industrial relations court. That kind of problem could happen again.

The setting up of a separate supreme court will involve costs. There will be future running costs, which, if the judges of that court are given the facilities that they lack in your Lordships' House, may be high. Will the Government undertake to fund the transitional costs and the additional running costs, and not take them out of what is already a grossly over-stretched budget for the Court Service? Will the Government agree that, as a United Kingdom court, the supreme court should have a budget entirely separate from that of the lower courts in England and Wales?

We welcome the judicial appointments commission. We believe unquestionably that appointment on merit must remain paramount and that the present method of selection does not necessarily achieve that. It brings judges of high intelligence and integrity, but it is skewed towards successful advocates. The qualities of a good advocate are not necessarily the same as the qualities of a good judge. Therefore, the system is biased against solicitors, academic lawyers and women, because of the effect on women of their career breaks. We believe that the role of Ministers in appointments should be minimised, and that some of the Government's intended alternative proposals give Ministers too much discretion.

For example, a system by which the JAC gave a Minister a list of candidates regarded as acceptable, and let the Minister choose any name from that list, would be wholly unacceptable, because there could be so many names to consider. A more limited version would be to give Ministers two or three names to choose from, as now happens with bishops. But even that is dubious. How can a Minister be in a position to second guess the JAC? If a Minister is to play any real role, it should be on the basis that they are given only one name to appoint or refuse.

We welcome the proposal that appointments to tribunals should be unified and brought under the JAC. We look forward with interest to the proposals for an alternative career path for some members of the judiciary to enable them to start taking limited—junior—appointments at a relatively young age, and proceed from that up the judicial ladder. We are not committed to that, but it is worth considering.

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Regarding the factors which deter people from applying for or accepting appointments, we should also consider the abolition of the circuit system for High Court judges. That requires all High Court Judges to be based in London, but spend several months on circuit—that is very "family unfriendly". In my view that should be replaced by permanent branches of the High Court in major cities.

The balance of five judges, five lawyers and five lay members for the JAC is acceptable. I do not think that a lay majority is desirable, but there should be a larger lay involvement, or even equal numbers, as with the Scottish commission, provided that we have a judicial chairman. We welcome the proposal for the appointment of members of the JAC by an independent nominating body, and the use of Nolan principles for those appointments.

The last of the three papers concerns the future of Queen's Counsel. That is of the least constitutional importance, but it is clear that a government department should have no role in conferring that rank on members of an independent profession. We look forward to taking part in debates on the statutes that will give effect to these proposals. We should end up with a judiciary and a court system that are even better than those which we already have.

3.35 p.m.

The Lord Chancellor: My Lords, I thank the noble Lord, Lord Goodhart, for his support for these papers. I take it from the remarks of the noble Lord, Lord Strathclyde, although he was not clear whether he opposed the proposals—because he only talked about process—that he probably opposed them. I agree with him, first, about the quality of the current judiciary—there is no attack on that whatever—and, secondly, on the quality of appointments made by my noble and learned friend Lord Irvine and his immediate predecessors.

The noble Lord, Lord Strathclyde, asked why we have done this. First, in relation to the supreme court, it is because judges who are appointed to the final court of appeal should be judges, not legislators. They are people who decide what the law is, not who participate in the making of the law. If we are serious about the separation of powers, then we should have a system that reflects that. I am glad that I am in the company of my noble and learned friend Lord Bingham, who strongly supports such a view. I shall wait for the comments of noble Lords opposite regarding the detail of that proposal. I gather that the noble Lord, Lord Strathclyde, is against that.


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