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Lord Brightman: My Lords, before the noble and learned Lord sits down, I may have misunderstood what he was saying. The Question, as tabled, relates to two proposals—in the plural—to create a supreme court of the United Kingdom and a judicial appointments commission. Therefore, if there was any thought among your Lordships that I was speaking out of turn when I referred to the dismissal of the Law Lords from the House of Lords, I respectfully suggest to your Lordships that I was absolutely within the terms of the Question.

9.53 p.m.

Lord Brennan: My Lords, in 1867 Bagehot declared that the supreme court of English people ought to be a great conspicuous tribunal, it ought to bring our law into unity and it ought not to be hidden beneath the robes of a legislative assembly. I agree with those words. The time has come at the beginning of this century for a supreme court in this country. I believe

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we shall debate the reasons for that at length when the necessary legislation comes before us, but I highlight two factors.

The growth of public law, European law and human rights law creates a role for a supreme court much more in the public eye and much more sensitive than it has been in times past. A court of that kind should be seen to be independent.

Secondly, the fact is—I regret to have to say this; it is a personal view—in times of a strong government and a weak Parliament that has not effective committee control of the executive, a supreme court has a special symbolic role in the community as the defender of citizens.

To preserve that role, Bagehot's words embrace three concepts. The first is independence. I agree entirely with the words of the noble Lord, Lord Alexander. There should be a Minister with the specific responsibility to preserve the independence of the judiciary, perhaps even written into the statute that creates the supreme court. With that responsibility, it is difficult to see how even the most base of politicians could determine to appoint people who lacked merit. The statutory responsibility should prevent it.

So, first, there must be independence and a Minister to protect the judiciary from attack where necessary. Secondly, the court must have stature. What I am about to say may be controversial. It should consist of 12, 15 or whatever number best represents England, Wales, Scotland and Northern Ireland as constituent parts of the nation. It should be divided into panels; I am not suggesting 12 to 15 as the sitting panel.

The age should be kept to the present limit. If my noble friends on this side of the House and noble Lords on the Cross Benches will forgive me, I am entirely against the supreme court of our nation being staffed by retired judges—not because I do not respect their abilities, but I think that it is a simple technique of saving money by the Treasury. I cannot imagine any other reason for suggesting age 80 as the age to sit.

Thirdly, the composition must be correct—not prescribed but at least sought. Is there a public lawyer by experience on the present panel? Is there an expert in European law? Is there anybody with profound understanding of the criminal law? The composition of the court should reflect those specialities.

Lastly, the judges should not be used to conduct major public inquiries. They are servants of the nation in the supreme court. There must be separation of powers. Judges are not legislators. That simple constitutional proposition cannot be gainsaid. We can have the advantage of the Lord Chief Justice and others making public speeches as required. Supreme court judges should be given peerages and attend this House after their retirement to contribute to it. But, for the community in which we live, the time has come for a supreme court to be seen to represent the legal interests of the people in the nation, to provide the protective balance between them and Parliament, where necessary, and certainly between them and the executive.

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9.58 p.m.

Lord Taylor of Warwick: My Lords, in 1972 the popular Jamaican singer Johnny Nash had a hit record with a song called, "There Are More Questions Than Answers". I am not aware that, when he wrote the song, he had in mind the creation of a supreme court and a judicial appointments commission. But the song's title fairly sums up how I feel about the Government's consultation papers, which contain no fewer than 72 questions.

Noble Lords have mentioned some very pertinent questions, which I shall not repeat now. Because of time limits, I will focus on a particular aspect of the proposals: the desire to make the judiciary more diverse. But the question is how diversity will be achieved. I fully support the comments made by the noble Lords, Lord Lester of Herne Hill and Lord Borrie.

Sadly, a woman has never been appointed to our final Court of Appeal. There has never been a black or ethnic minority judge appointed to the High Court in England and Wales. We are familiar with the expression "glass ceiling" when describing the obstacles often faced by professional women. The phrase "concrete ceiling" is one that is commonly used by the black community to describe its barriers to progress. Clearly, the judiciary must become more diverse in order to carry the confidence of the wider community.

The business sector in Britain has been enriched by diversity, so it is not inevitable that a more diverse judiciary would result in lower standards. It will, however, if tokenism is used to enforce diversity. The answer is to create more equality of opportunity. The legal profession itself must, for example, look at whether the terms and conditions of judicial office are "family friendly" and whether it allows sufficiently for the needs of lawyers who need a career break after having children. Black and minority ethnic law students with the same qualifications as their white counterparts still find it more difficult to obtain pupilages and articles.

I support the rationale behind these proposals, but the devil is in the detail. There are more questions than answers. Johnny Nash ends his hit song with the line, "The more I find out, the less I know". I hope that is not an omen for these reforms.

The public needs a modern legal system that builds on its current independence and quality. These proposals bring many questions. I just hope they provide the right answers.

10.1 p.m.

Lord Hobhouse of Woodborough: My Lords, I am most grateful for the opportunity and justification to make some very brief observations upon the important topic of independence. At the outset, I would like to say that I do not wish to detract from anything that the noble Lord, Lord Brennan, has just said, with most of which I agreed. The views that I will express are my own. I do not speak on behalf of my colleagues.

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The remarkable feature of both these papers and the ministerial statements which accompanied them is that they unstintingly acknowledge the merits and success of the current systems, the role of the Lord Chancellor and the dedicated staff of the Lord Chancellor's Department. The proposals for change are sought to be justified on doctrinal grounds, which I suggest are fundamentally flawed.

For the supreme court, the Minister tells us that:

    "The time has come to take the final court of appeal out of the Legislature",

and that,

    "the time has come to establish a new court as a body separate from Parliament."

As regards judicial appointments, we are told that it is no longer acceptable that they be solely in the hands of "a Government Minister"—an expression repetitively used whenever it is wished to refer to the office of Lord Chancellor—and the paper calls for a judiciary which is more "reflective" or "representative" of society. This is an aspiration which would run directly counter to the current admirable and non-discriminatory, merit-based criteria set out at Paragraphs 7 to 9 of the paper.

Neither the separation of powers, as opposed to the principle of judicial independence, nor the concept of a "representative" judiciary, are part of our constitution nor have they ever been. Nor is it right to describe the office of Lord Chancellor merely as that of a "Government Minister". The theory of the separation of powers was a primarily French invention. It has never been part of the British constitution or the "Westminster model". If it were, the executive, including the Prime Minister, would have to be removed from the House of Commons. In contrast, the principle of judicial independence from the executive stems from the Glorious Revolution. The theory of the separation of powers should, at most, be seen as one possible means to that end.

The independence from the executive of the Appellate Committee is, in fact, enhanced by its being sheltered under the wing of your Lordships' House. Neither the serving Law Lords nor, I suspect, your Lordships feel threatened in any way by their presence within these walls. There are strong practical arguments in favour of our moving out and having our own home, but the paper does not face up to the implications of providing complete and real independence for the new court. There will be considerable additional costs initially and year-on-year. Your Lordships should be vigilant to see that, when the actual proposals are published, they do not put the truly independent operation of the new court in jeopardy or undermine its standing.

Finally and briefly, I turn to the appointment of judges. In the long run, the risks here are potentially more serious. I will simplify. The key to success at present has been the office of Lord Chancellor and the independence and expertise of the Lord Chancellor's Department, separate from the rest of Whitehall. The Lord Chancellor is not just a Minister; he sits in the House of Lords. He has nowadays no further political

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ambitions. He has taken the judicial oath and accepted the role as head of an independent judiciary. It is not necessary or appropriate that he ever sit as a judge, but he understands well that judicial appointments are part of his judicial functions. The criteria that he has published are wholly admirable. Who better to be the defender of judicial independence than the Lord Chancellor? The present proposals include abolishing the independent post and department, introducing contradictory criteria of social engineering and even suggest that some Minister should be accountable to the House of Commons for individual appointments.

I conclude by saying that I have no personal interest in the subject matter of the debate, as I am not looking for further judicial preferment and expect to retire long before any supreme court comes into existence.

10.7 p.m.

Lord Cooke of Thorndon: My Lords, I quote:

    "Our judiciary enjoy the highest international standing. The Government wants to ensure that the way in which they are selected is as well regarded".

So runs the consultation paper. There is an implicit dichotomy in that. The suggestion appears to be that the rest of the world admires the quality, integrity and independence of the judges of England and Wales, but questions the administrative arrangements that produced such a judiciary. I do not believe that the world as a whole draws any such distinction. It is the product, not the process, that matters in the world's eyes.

That the judiciary here is, at the present day, independent of political influence is axiomatic. In the interests of time, I will not labour the point, beyond mentioning one current example. When the government of the day recognised that a truly impartial inquiry was required into a tragedy of intense public concern, to whom did they naturally turn? A Law Lord.

A change to a judicial appointments commission will add nothing to the practical independence of the judiciary. On the contrary, it may result in quotas, trade-offs and uninspired appointments. It is linked with an unconsulted proposal to destroy the office of Lord Chancellor; yet I believe that the rest of the world sees a non-Gilbertian truth in Gilbert's line:

    "And I, my Lords, embody the Law".

Certainly, in my years as a barrister and judge in New Zealand, we deeply appreciated the visits of such Lord Chancellors as Jowitt, Kilmuir, Gardiner, Hailsham, Mackay. We envied, and realised how significant for the rule of law it was that they had the ability to speak for the judiciary in Cabinet. Diversity in judicial appointments is good, but it increases naturally. It will not best come as part of a tearing up of a unique history.

A convention had been developing that the Lord Chancellor would no longer sit as a judge. Nothing more was required to modernise the United Kingdom system without sacrificing its distinctive merits. To remove the Law Lords from the House would add not a whit to their independence, while somewhat downgrading them and sacrificing the reciprocal

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advantages of their ability to take an appropriate part in the work of this place. Thus, two current and three former Lords of Appeal have contributed to the debate. Their right to contribute should not be thrown away.

10.11 p.m.

Lord Goodhart: My Lords, I am grateful to my noble friend Lord Lester of Herne Hill for introducing the debate. Although the time for individual speeches has been short, the quality of the speeches has made this something of an advertisement for short time limits. We are discussing two changes of immense constitutional importance proposed by the Government, which have been advocated by these Benches for years. Naturally, we support them in principle. The first change is the creation of a new supreme court and the transfer to it of the present jurisdiction and membership of the Appellate Committee of your Lordships' House.

Outside your Lordships' House I believe that this change will be relatively non-controversial. It will not alter the nature of the work done by the highest court in the United Kingdom, nor will it alter the identity of the people who do it. It is nearly 200 years since it was finally accepted that Members of your Lordships' House could not exercise judicial functions unless they were also, or had been, holders of high judicial office. We are now moving towards a convention that serving Lords of Appeal in Ordinary do not speak in debates in your Lordships' House, with limited exceptions: for example, the role of the Law Lord—in this case, the noble and learned Lord, Lord Scott of Foscote—who chairs Sub-Committee E of the European Union Committee, in introducing debates on reports of that sub-committee.

The creation of a new supreme court separate from your Lordships' House would therefore do no more than put an end to what is now an historic anomaly. In addition, it would give the Supreme Court the opportunity for the proper housing and facilities which it has obviously required for many years. I accept that there is a strong case for having as a Member of your Lordships' House someone who can speak for the judiciary. The noble and learned Lord, Lord Woolf, has done that powerfully on two recent occasions, but it does not mean that serving members of the Supreme Court should also be simultaneously Members of your Lordships' House. That role is better played by the Lord Chief Justice and the holders of the corresponding offices in Scotland and Northern Ireland.

The more controversial issue has been the transfer of power to recommend judges for appointment from the Lord Chancellor to the proposed judicial appointments commission. We are, of course, fortunate in our present judiciary. Appointments made by recent Lord Chancellors have been of very high quality. As the noble Lord, Lord Borrie, pointed out, in the past political support for the government of the day has been a good way of getting on the Bench. Indeed, Lord Halsbury was explicit about it. If the office is retained, we cannot guarantee that future Lord Chancellors would always be as impartial as recent ones have been. This is particularly

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so given the increasing constitutional role of the judiciary through the development of judicial review and through the Human Rights Act. The temptation to appoint judges who are not potential troublemakers might become irresistible to some future Lord Chancellor.

There are criticisms of the way in which the process operates now. While undoubtedly it selects judges of real merit, it may also overlook other people of at least equal merit. So we welcome the transfer of the power to make those appointments to the judicial appointments commission. If the Government, through the Prime Minister or the Secretary of State for Constitutional Affairs, retains any role in the appointment of the higher judiciary—we think there are strong arguments for why they should not do so—that role should be limited to approving or rejecting a single name proposed by the judicial appointments commission and, indeed, giving reasons to the commission in case of rejection of that name.

When legislation is introduced to give effect to the Government's proposals, as we assume will happen in the next Session of Parliament, it will need to be watched very carefully to ensure that the independence of the judiciary is not only preserved but strengthened. That will mean that the high reputation of British justice will be maintained for the future.

10.16 p.m.

Lord Kingsland: My Lords, I should like to speculate briefly on the motives of the Government in introducing these proposals.

Their introduction has been rather sudden. Indeed, throughout his time as Lord Chancellor, the noble and learned Lord, Lord Irvine of Lairg, repeatedly opposed either the creation of an independent supreme court or the establishment of a judicial appointments commission.

Can it be that overnight there is evidence that judges have become corrupt, or susceptible to political interference, or have in some way fallen below the intellectual standard that we rightly expect of them? It seems not, because in his speech to your Lordships' House on 14th July, the noble and learned Lord the Lord Chancellor said that:

    "We currently have judges of complete independence, probity, and very high ability. They are admired the world over".—[Official Report, 14/7/03; col. 630.]

Could it be that the inspired and sustained campaign fought over many years by the noble Lord, Lord Lester, has led to the Damascene conversion of the Government to these two new policy proposals, some 50 years after the Government ratified the European Convention on Human Rights? I have the highest admiration for the quality of the advocacy of the noble Lord, Lord Lester, but I have to say that I think not.

I want to suggest that the real reason why the Government want to make these changes is because the decisions made by the judiciary in the realm of public law are increasingly inconvenient to them. The judges are becoming a nuisance, and especially an impediment to the populist programme of the Home

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Office. Yet all the judges are doing is implementing a law which the Government introduced in 1998; that is, the Human Rights Act.

As—dare I say—many of us pointed out during the passage of that Bill, there was a real danger that the consequences of it would be the political over-exposure of the judges. So I suggest that the motive that lies behind these changes is to weaken the judges' role in our constitutional arrangements in other respects: by removing the Lord Chancellor from the Cabinet and the Lords of Appeal in Ordinary from the legislature.

Your Lordships' House suffers in a further way because, by removing the Lord Chancellor from the Cabinet, your Lordships' representation in the Cabinet is reduced from two to one.

Moreover, the Minister who will succeed the noble and learned Lord the Lord Chancellor in his judicial responsibilities will be a Secretary of State sitting in another place who, more likely than not, will not be a lawyer. So what price the separation of powers if that Minister has the final word over judicial appointments?

We are told by the Government that they seek a more representative judiciary. I do hope that what the more representative judiciary will represent will not be the political mood of the day.

10.20 p.m.

The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin): My Lords, I thank the noble Lord, Lord Lester, for introducing the debate. This is an issue of great importance to our constitution and to the House and it is good that we should have an early opportunity to debate it even before consultations are completed and before any draft legislation is brought before the House. I also thank all noble and noble and learned Lords who have spoken on these issues of considerable importance.

At the risk of slightly over-emphasising a dichotomy, it seems to me that the debate was split between those who believe that changes are necessary in terms of both the supreme court and the judicial appointments commission but that the proposals are not yet quite perfect, and those who argued for the status quo. I shall not put everyone into exact categories.

The noble Lord, Lord Lester, started by signalling that he supported the main element of the proposals. He spoke also, as did many others, about the importance of diversity as an element of these proposals. I thank him for that.

He started an argumentation, which was picked up by a number of other speakers, that there is a worry that the fact that the Lord Chancellor will be replaced by a Secretary of State in itself risked weakening judicial independence in some way. It is an important issue to ventilate and the debate has started that process. My initial response is that we will undoubtedly come back to these matters.

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Along with the noble Baroness, Lady Kennedy, and my noble friend Lord Brennan, the noble Lord, Lord Borrie, essentially affirmed the case for change on both counts. While there has been a wonderful historical evolution of our constitution, no one would dream of designing a supreme court as part of the legislature. Why should we therefore continue with such a system when it is quite clear that it involves some risks in terms of JR and ECHR?

More importantly, it does not help to establish the importance and independence of the judiciary. If one were to ask average members of the public what is the supreme court in the land, they would say it was the House of Lords. If you asked them to describe how it operated, they would probably say that most of us were involved in the process in some way. They see us as politicians and they do not hold us in very great respect.

You may say that members of the public are foolish and ignorant to be confused in that way. On the other hand, if we had a supreme court that was quite clearly independent of the legislature, the authority of that court would be enhanced. Its visibility would be apparent and clear and the public would increasingly see it as a bulwark of their freedoms, their rights and their independence. That, of course, is how it has operated, but that clarity, that separation and that independence would be to the public good. I believe that it would be celebrated by the public, who would understand it more clearly.

We will of course lose the experience and contributions of our Law Lord colleagues. I feel that with some sadness. For example, one has seen how powerfully the noble and learned Lord, Lord Scott of Foscote, has led the European scrutiny process. It is a sadness, but it is not a point of principle that would justify its continuation in the future.

Under the current proposals set out in the White Paper, we will rejoice to receive the contribution of the existing members of the supreme court when they have completed their term of office and come back into our Chamber. It may well be that future members of the supreme court who are not appointed as Lords will nevertheless find that they are invited to become independent members of the House. I cannot forecast or foresay that. I do not believe that we will lose the great contributions that former members of the Appellate Committee or the Supreme Court can make, but we will get their contributions only when they are no longer acting as judges and are free to join us as legislators. That must be right in principle even though we will be sorry to see them go.

I thank the noble Lord, Lord Alexander of Weedon, for rejoicing at an independent appointments commission. However, he made very clear his concern that if the Lord Chancellor went, we would be weakened, as he is the voice in government for the independence of the judiciary. That is an important issue, which has been raised by many speakers today.

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My noble and learned friend Lord Falconer is the Lord Chancellor at present; I believe he will be a distinguished Lord Chancellor and a distinguished Secretary of State when he is no longer Lord Chancellor. Merely giving a politician—because all Lord Chancellors are political appointments—the title of Lord Chancellor does not, I am afraid, defend the independence of the judiciary. That is self-evidently not automatically the case. Rather, I suggest that what we propose goes considerably further than anything proposed by any government before to preserve the independence of the judiciary. Let me enumerate that briefly.

We propose that the ministerial role in the appointment of judges will be brought to an absolute minimum. We have put three options up for consultation. One, in response to the noble Lord, Lord Norton, and others, is that Ministers should have no involvement whatever. That would require a change to our constitutional conventions, as the Queen normally acts only on receipt of advice from her Ministers. However, it is in the consultation paper as an option, and if people think that is the right way forward, they should signal it clearly in their responses to us. It is an option; it is a perfectly possible and legitimate option, and we would pleased to hear from people who support it.

It is not the option we recommend because we think that the Queen being advised by Ministers, who are thereby accountable to Parliament, can be preserved. The noble Earl, Lord Russell, is absolutely right that accountability to Parliament is one of the elements in defending the independence of the judiciary. Such a mechanism preserves the accountability to Parliament and we therefore think that that option has considerable merit.

If that is the option being considered—and our minds are open to views and opinions—what should be the extent, if any, of ministerial discretion in the circumstances when the commission is making recommendations? Those are very important points of detail and principle, and we think it important to listen carefully to views and opinions on them.

We have given a number of ideas in the paper so far; we very much hope that Members of this House and those outside will give further thoughts on the specifics as well. The devil is in the detail, and getting the detail right could lead to a model that contained accountability to Parliament as well as enshrining strong independence.

Let me go further in terms of the Secretary of State for Constitutional Affairs. There is a very strong argument for giving a statutory responsibility and putting it beyond doubt that the Secretary of State has a responsibility—nay, a duty—to preserve the independence of the judiciary. Nothing would be lost by having such a responsibility and, in fact, the gain would be considerable. They would always have to have that in the forefront of their mind when they were acting. That, in a sense, has been the central thrust of

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the argumentation. The Lord Chancellor, in the historical embodiment, has had that role. How do we preserve that in the future? Some have said we should keep the Lord Chancellor. I must admit that I am not persuaded by the argument that we need to keep that particular historical figure or role, but I am interested in the argument that we need to entrench the responsibility within government for supporting and upholding the independence of the judiciary, because that is an important part of our constitution.

Let me also signal why I think some of the concerns expressed are misplaced. The Secretary of State for Constitutional Affairs has a responsibility within government for looking across the constitution. He will shortly set out some of his thinking in this respect, and I hope it commands some public interest. He also has the leadership role on human rights, freedom of information and data protection. Much of the legislation emanating from the department is about the rights of minorities in our society. So there is a very strong coalition of interests and responsibilities in the current role of Lord Chancellor—the Secretary of State for Constitutional Affairs in the future—regarding the defence of rights of the independence of the judiciary and of our judicial system. That does not mean to say that our judicial system is perfect and should be preserved in aspic, as it currently is.

A number of noble Lords touched on the importance of recognising that diversity, and the confidence that the public hold in the judiciary, need to be considered as part of the reforms. The noble Lord, Lord Taylor, made that point most strongly, but the noble Earl, Lord Russell, also made mention of those issues. They matter on three grounds. First, if one does not manage to attract more people as candidates to be selected only on merit, one is at risk of wasting talent. That is the classic business case for treating diversity seriously—otherwise, one misses out on talent.

Secondly, there is straightforward human fairness. If one does not treat seriously people who have ability and talent, they are deprived of opportunity.

Thirdly, confidence is a factor. Most of us will remember a time when newscasters on the BBC were only ever white males. That said something about our society. We have moved on from that time; for example, 15 per cent of medical consultants in Britain are from black and ethnic minority backgrounds; 1.2 per cent of judges are.

In the legal profession, there have been a good proportion of women have come in as solicitors and barristers—about a third of each profession. I shall not give the figures for the higher levels of the judiciary. No one is saying is saying that we should move to any form of mad world of political correctness, but it is right that the system is asked to inspect itself and to consider why we have not succeeded in bringing forward into our system the talent that must exist in women or black and ethnic minority lawyers. That is one of the proposals before us as part of the consultation process.

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I am out of time, so I shall end by thanking again all who have contributed to the debate. Some very important issues have been raised about how we entrench in the constitution the duty to uphold the independence of the judiciary. However, I have not been changed in my view that there is a need for change, nor do I believe that many Members have

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argued against the need for change. The issue is how to get that detail right: to uphold the independence of the judiciary while making the judiciary one that the public increasingly respect and see as their defenders, because that respect is not at the level that we would wish at present.

        House adjourned at twenty-six minutes before eleven o'clock.

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