|Previous Section||Back to Table of Contents||Lords Hansard Home Page|
Lord Lester of Herne Hill: My Lords, I am grateful to the noble Lord for giving way. Can he think of any good reason why the candidate who was first on the list, and who was by far the best qualified for the reasons I have given, should have been replaced by the third candidate with no reasons given? No information was given to the assembly as to why the sub-committee behaved in that way.
Lord Ponsonby of Shulbrede: My Lords, I cannot give an answer; I do not know the reason for the sub-committee's decision. I had intended to put the point to my noble friend Lord Kirkhill and ask whether he thought there were any improvements that could be introduced into the procedure in future as regards the sub-committee giving reasons for its decision. I accept the noble Lord's point.
In conclusion, I wish to raise a wider issue; namely, the moral authority of the assembly itself. The noble Lord, Lord Lester, referred to the European Convention on Human Rights as the "jewel in the crown" of the Council of Europe. The noble Lord is right. The Council of Europe has, however, grown in stature over the past few years. That is likely to continue in relation to an attempt to raise standards in the area of human rights and the acceptance of human rights within the 40 member states of the Council of Europe. There is an argument for seeking to build on the stature of the Council of Europe rather than undermining it in any way. I hope that in that spirit the noble Lord will agree that there should be an involvement and a vote by the assembly so that it can choose the judges of the Court of Human Rights.
Lord Cocks of Hartcliffe: My Lords, I put my name on the list of speakers as a precaution. In January last year I tabled a Question about judicial appointments to the European Court of Human Rights--not in anger, I would say to the noble Lord, Lord Lester. Having listened to the debate, I do not feel that I have any fresh points to add. However, perhaps I may make a general point. Given the Nolan recommendations on
Lord Kirkhill: My Lords, if the House will permit me, I should like to say a few words in the gap. I apologise to the noble Lord, Lord Lester, and to other noble Lords who have taken part in the discussion for my non-attendance in the course of their remarks. I had inescapable commitments in Scotland and I am afraid that travel into London is fraught with difficulties. I was inescapably held up. I am at a disadvantage now as I do not know what the noble Lord, Lord Lester, said. Of course, I shall read it tomorrow in the Official Report, but it might be useful if I highlighted for noble Lords the background to the proceedings that have been taking place in the Council of Europe.
When the part-time court and part-time commission were in operation, the Parliamentary Assembly, men and women, recorded their vote as to the judge aspirant or commission member aspirant, without knowing anything at all about the candidate. They merely knew that there were candidates one, two and three. There may have been exceptions, but in the main the assembly voted for candidate one.
The consequence of the implementation of the eleventh protocol is that the full-time court now comes into operation. Members of the assembly felt that as they have to vote and have the right of appointment they should know something about the candidates. So they agreed that a sub-committee of the Committee on Legal Affairs and Human Rights, with myself as chairman, be set up to interview, on the basis of a model curriculum vitae, each of the candidates elect.
I agree that 15 minutes per candidate is not entirely adequate, although, surprisingly enough, some candidates had difficulty in filling their 15 minutes. But that is another story. I accept that generally 15 minutes is not enough, but it was against a curriculum vitae. We carried it out fairly and honourably in a non-partisan and non-political way. As the noble Lord, Lord Hardy, said a few minutes ago, the committee was distinguished in terms of its juridical input.
At least we saw the candidates. That is the first point. We then made our recommendations. To date, we have seen 117 and we have still to see the three Russian candidates. So far, it has taken myself and the other members of the committee seven full days, often working until 7.30 p.m. I honestly think that that is as much as can be expected of us, given that we are giving up our own time and there is no recompense or reward.
What the noble Lord, Lord Lester, must take into account--and he has not done so judging by the tenor of his Unstarred Question--is the following. The Council of Europe is now 40 nations strong. The majority of the nations in membership elect their judges in a quite straightforward political fashion. That may be
I wish to make one other point. We have seen candidates from 39 countries; 37 of our recommendations have been accepted by Germany, France, Sweden and Italy. Malta did not accept them and the United Kingdom did not accept them. That says something. It is for Members of your Lordships' House to decide what it says, not for me. I can only reiterate that it is an improvement on the existing system, although I do not necessarily think that it is perfect. I am certainly not prepared to say why the committee reached the recommendation that it did on the candidate for the United Kingdom. We agreed as a committee that we would discuss matters fairly, reach our majority decision and attempt then to make it a unanimous decision when we could. I may say that we did so in all cases.
The reason that initially Mr. Bratza was not our recommendation is not something I wish to make public because I have not made public anywhere the reasons for the decisions of the committee. I say to the noble Lord, Lord Lester, that I am not giving way at the moment because I wish to finish my statement. We have not made public our decision on any recommendation relative to any country.
Lord Lester of Herne Hill: My Lords, I am delighted that the noble Lord has explained matters. I wonder whether he could explain to the House what conceivable good reason there could have been for not accepting Mr. Bratza and how on earth the assembly was expected to exercise its powers if its committee did not give reasons so that it could know the full picture.
Lord Kirkhill: My Lords, I could answer in a different way. Let us take the position of the Swiss Government. The chairman of the commission was not recommended by the committee. The existing part-time Swiss judge was not recommended by the committee. We said: "We make no recommendation". One might argue that the Swiss Government would be upset by that and one might ask why we did not reach a recommendation. I am not prepared to tell noble Lords, nor am I prepared to say why we reached the decision we did regarding the United Kingdom candidate. However, in case anyone thinks that it is because I am a Scotsman and the successful recommendation was a Scots lawyer, I should point out that I was not present
Lord Lester of Herne Hill: My Lords, I am grateful to the noble Lord for allowing me to intervene. It may be completely untrue but what was being said afterwards around the cocktail parties of Strasbourg was that the reason Mr. Bratza was not acceptable was party political. He was regarded as the establishment candidate, having acted on behalf of Mrs. Thatcher's government and Mr. Major's. If that is not the case, then fine.
Baroness Ramsay of Cartvale: My Lords, I am sorry but I must draw to your Lordships' attention that this is a tightly time-limited debate. It is slightly unusual in that the speaker in the gap has had longer, I believe with the grace and indulgence of the House, because of the exceptional circumstances. There is to be another speaker in the gap and we cannot allow speeches to be prolonged like this.
The noble Lord, Lord Lester of Herne Hill, has raised a matter of general importance to which serious attention has been given by your Lordships. The independence and integrity of the judges appointed to the European Court of Human Rights, as to the European Court of Justice, need to be assured and protected. The method of selection of the judges is a very important factor in achieving their independence. If it were seen, in particular by those who seek to assert human fundamental rights before the Court of Human Rights, that these appointments became a political football, it would detract from the value of the work of the court. It would detract from the respect in which the court is held by people who go there. It would detract from the respect in which the court is held by the judges of the national courts from whom cases will go on appeal and who will have to follow the decisions of the court.
We should perhaps learn something from the experience of the European Court of Justice, of which I was a member. People there frequently expressed great admiration of the fact that the British members who had been appointed there were appointed without political affiliation and without any political influence. The fact that I could go there, having been appointed as Treasury Counsel and as a judge by a Labour administration and as the British representative in Luxembourg and Lord of Appeal in Ordinary by a Conservative administration was regarded as a sign that the system here was applied independently.
In another country, a judge of great experience and ability was replaced simply because it was the turn of another political party to nominate. No doubt all the people involved were excellent and well qualified to do the job and I do not suggest that they allowed their political appointers to influence them. However, the impression was unfortunate and caused considerable concern. In my view, it fully justified the decision which was taken to reject the idea put forward by those who prepared the earlier Treaty of Union that judges of the European Court of Justice should be appointed on a vote in effect on party lines by members of the European Parliament. It was felt to be safer and more efficient to have national nominations, which would be better informed than would decisions by representatives of states who had no direct knowledge of the candidates. A superficial knowledge of someone coming from 39 of the other 40 states may not be a reliable base from which to proceed.
In my view, the procedure adopted by the noble and learned Lord the Lord Chancellor satisfied the necessary tests in this case. It was open, transparent, independent and efficient. It was efficient because, among other things, it came up with the right answer. I have no doubt that the other two candidates were of high calibre but Mr. Bratza, in whom I should declare an interest since he was my pupil and my devil at the Bar, had outstanding experience and has an outstanding ability and an outstanding reputation among those who practise in this area of the law.
I hope that the system and procedure adopted by the Lord Chancellor will be followed in future and that more confidence is shown in the result which it achieves than appears to have been the case in some quarters on this occasion.
Baroness Williams of Crosby: My Lords, it might be said that only fools rush in where angels fear to tread, and to intervene in a discussion between lawyers and politicians might be thought to be extremely foolish. So on this occasion I speak neither as a lawyer nor, in this particular discussion, as a politician since I have absolutely no axes to grind on this issue.
The reason that I asked if I might speak in this debate perhaps relates most closely to what has just been said by the noble and learned Lord, Lord Slynn of Hadley. I should like to explain briefly why I am concerned. I am concerned because it seems to me that the Council of Europe is critical to the establishment of a culture of human rights within the extended Europe in which we now live.
I believe that the establishment of that culture of human rights, and along with it a powerful series of case verdicts to uphold it, may be one of the determining factors in whether democracy is truly established in central and eastern Europe and even beyond it in countries such as Russia and Moldavia who are now
Only this afternoon I was speaking to the distinguished leader of one of Russia's recognisably democratic parties, the Yabloko group led by Mr. Grigor Yavlinsky. I asked him whether he thought there were any judges in Russia today who had not come out of the tradition of judges as instruments of the state. He said that it would be quite difficult to find them. I say that as no criticism of some of the new members of the Council of Europe but as recognition that traditions of judicial independence are wholly different from those that we are used to in this country.
That brings me to the debate and I should like to refer to some of the contributions made here. I begin by saying that I shall not speak about the British proposals and nominees. I have absolutely nothing to say on that matter having no view of the merits of the three persons concerned. I am much more concerned with the arguments advanced by the noble Lords, Lord Grenfell, Lord Ponsonby of Shulbrede and Lord Hardy of Wath. I am concerned about those arguments because I think they are absolutely right in saying that it would be inappropriate for member states to intervene subsequent to the sub-committee having reported to the assembly. However, I am much more troubled by what seems to me to be still, although greatly improved, an inadequate system of determining the qualifications of those who are advanced as judges.
Let me say one word about that. The noble Lord, Lord Hardy, pointed out, forcefully and eloquently, the non-existence of any adequate system of considering the qualifications of judges in the previous arrangements before Protocol 11. I accept his word for that. That seems to me to be quite astonishing. If we now look at the new structure about which the noble Lord, Lord Kirkhill, and others have spoken, that still seems to me a long way towards inadequate. It is a long way towards inadequate, firstly, because, as I understand it, no reasons are given as to why one particular nominee is favoured over another. That seems to be contrary to a proper democratic process. As I understand it, information, including blind references about each of the persons proposed, is not available for all members of the assembly, not simply the bureaux and the political groups. I, as an academic, would not dream of appointing a single assistant professor without access to a full range of references made freely available before I made that decision.
I agree that the new system appears to be much better than the old system but I am somewhat surprised that there does not seem to be any way in which the issue can be raised of whether somebody might be believed to be unsuitable by members not only of the bureau, the sub-committee itself, but by members of the assembly. I am concerned about this for two reasons. The first is
I should like to conclude by saying that while I fully recognise that the new procedure is better than the old, it still seems to me to be wholly inadequate for the challenges now facing the Council of Europe; wholly inadequate to meet the central responsibility of that assembly, which is to ensure that human rights are upheld and that the judges are the best to be found from every country that is a member. I still feel, having listened to the debate, that we have not come very far towards an adequate answer to what system should now be found given the changing nature of the Council of Europe and the heavy responsibilities that rest upon it.
Baroness Anelay of St. Johns: My Lords, I too thank the noble Lord, Lord Lester of Herne Hill, for giving us the opportunity to debate this matter. However, I have to say on a personal note that, having listened to all the contributions tonight from noble Lords who, as the noble Baroness, Lady Williams, has said, have an approach from either a professional legal background or a more professional political background than I have, I have concerns that one of the unavoidable consequences of this debate may well be to cause some embarrassment to Nicholas Bratza, QC, who was the successful candidate for appointment as the British judge on the ECHR. I hope that proves not to be the case.
At the outset of my remarks I wish to make it clear that I know none of the three candidates nominated by the United Kingdom for the position of British judge. I am also perfectly satisfied that Mr. Bratza is well qualified to serve as the British judge and that he will do so with distinction. Mr. Bratza, as we have heard tonight, was selected by the interviewing panel set up by the British Government to be the first preference of the three nominations that were put forward to the Council of Europe. As a lay person in these matters, I find it remarkable that the circumstances in which he was appointed by the Council of Europe's Parliamentary Assembly have become surrounded by such controversy. Let me stress that I have absolutely no reason to suppose or believe that Mr. Bratza has in any way played a part of that controversy.
As the noble Lord, Lord Lester of Herne Hill, explained, the procedure to be followed for the appointment of judges to the ECHR was agreed by the British Government and is set out in Protocol 11, of which we have heard much. It requires him to be elected by the Parliamentary Assembly by a majority of votes cast from the list of three candidates nominated by each member state of the Council of Europe. To assist in that process the assembly adopted a model curriculum vitae, which candidates seeking election to the court were invited to complete. The assembly also arranged for all
Such procedures appear to me to be transparent, thorough and fair, particularly when one bears in mind that they were to be followed in respect of candidates that the individual member states had already assessed as being suitably qualified and experienced to sit as judges in the court.
As other noble Lords explained, it was when the sub-committee on Legal Affairs and Human Rights expressed a preference for Mr. Reed as opposed to Mr. Bratza and the other British nominee who has had little mention tonight that events seem to have taken what might be called an unfortunate turn. I have heard comments tonight and read comments in Hansard of another place which lead one to believe that some of those who are supporters of the view that Mr. Bratza should be appointed mounted a lobbying campaign on his behalf. Whether or not that took place, I have no idea, but I question whether any lobbying campaign on behalf of any candidate could be consistent with a process of appointment which citizens in the European Union have a right to expect to be transparent, thorough and fair.
I read the Written Answer in Hansard of another place published on 5th May, to which allusion has been made tonight, in which the Government make clear that United Kingdom officials did not lobby voting members of the assembly about the election. That same Answer also makes it clear that there were extensive contacts between officials of this country and the other European states during which the candidacy of Mr. Bratza was supported, but within the context, as the Written Answer said,
I was grateful for that clarification. In the event, as we heard, the Parliamentary Assembly voted by a narrow majority of 89 to 79 to appoint Mr. Bratza. Reference has already been made by the noble Lord, Lord Lester of Herne Hill, to the article written subsequently in The Times of 19th May by Mr. David Pannick, QC. I managed to obtain the article from the House of Lords research department at short notice when I learnt that I was to have the pleasure of speaking in this debate. I read the article over the weekend and note that it expresses criticism of the sub-committee on the basis that it did not give reasons for its recommendation of Mr. Reed. However, reasons are not given in this country as a matter of routine as to why individual judges are appointed or, indeed, not appointed. Perhaps the noble and learned Lord the Lord Chancellor can tell the House whether the Government are considering giving reasons for appointment and refusal of appointment as a matter of routine in the future and whether they would expect that to be part of the appointment procedure for those seeking judicial office in the EU.
When the sub-committee was considering its recommendation, it had regard to agreed criteria, including the need to have a mix between those who had served already as members of the commission or the court and "new blood", the desirability of having a range of ages among the judges, and the need to have judges of both sexes.
I recognise, of course, that the last point could not arise in relation to the appointment of Mr. Bratza in preference to Mr. Reed. But I was intrigued to note the approach to positive discrimination adopted in the criteria governing the selection process,
I would be grateful if the noble and learned Lord the Lord Chancellor can give his view on that approach and tell the House whether he sees a future for its adoption in appointments to the judiciary in this country.
Returning to the work of the sub-committee, it is important to bear in mind that, whatever its reasons may have been, all three candidates had been put forward by the United Kingdom as well qualified for the appointment. Those who speculate that the sub-committee may have preferred Mr. Reed for bad or invalid reasons should perhaps consider the implications of making such suggestions.
Earlier in this debate, the noble and learned Lord, Lord Ackner, referred to the noble and learned Lord the Lord Chancellor sometimes suppressing his good nature--but perhaps only when he is in this Chamber. I hope that tonight will not be one of those occasions and that when he replies he will agree with me that, first, the duty of government officials remains as it has always been; namely, not to promote the candidature of one candidate over another and not to be perceived as doing so; secondly, that any lobbying campaign mounted on behalf of any candidate would be unfortunate in the process of such procedures of appointment to the European Court; and, finally, that the sub-committee, carrying out its work under the rules as they currently pertain, carried out that work with due and proper diligence.
The Lord Chancellor: My Lords, this debate, in many ways, has been remarkable. But no feature has been more remarkable than the acknowledgement by the noble and learned Lord, Lord Ackner, that this Government are a listening government, certainly on the critical subject of judicial pensions.
I agree with the noble Lord, Lord Lester, that the European Convention is the jewel in the crown of the Council of Europe. For nearly 50 years, the convention has been the bedrock of European human rights law. For 50 years the convention has stood as the objective framework of values against which governments measured their commitment to democracy and freedom. Britain has worked throughout those 50 years to uphold the values in the convention. We were there at the beginning in the drafting of the convention, and we were the first to ratify in 1951.
That commitment to the convention continues today. This Government, 50 years after the convention was drafted, introduced legislation to incorporate the convention into law and so to make its provisions accessible to all in our domestic courts. The Human Rights Bill, now nearing the end of its progress in another place, reminds us that the convention remains a powerful instrument, as relevant today as it was 50 years ago. This Bill is a major pillar of the Government's programme of constitutional change. But while the rights and freedoms guaranteed by the convention remain broadly the same as those drafted 50 years ago, their relevance in post-war history has a new dimension.
While the task 50 years ago was to construct a framework for the promotion of individual rights and freedoms in a divided Europe in the aftermath of war, the task now is to establish access to those rights and freedoms across the European continent. With the enlargement of the Council of Europe, we have the opportunity for the first time to develop a continent-wide community of European values based on the respect for human rights and fundamental freedoms. The convention remains central to that aim.
A strong convention is not enough on its own. Strong laws are helpless without effective courts. This Government therefore take the view that a strong European Court of Human Rights is essential to the effective functioning of the convention. The Court and Commission of Human Rights established under the convention have done a fine job in entrenching the convention as a living and effective instrument. I pay tribute to their work. But times have changed, and with them the scale of the challenge facing the court. The court has needed to adapt to retain its capacity to meet the challenges of an enlarged Europe and to deliver proper service to the swelling numbers of those who have access to the protection afforded by the convention. That is why we continue to support the comprehensive reform process under way in Strasbourg which will bring the new Protocol 11 Court of Human Rights into operation on 1st November this year. But a court is as strong as its judges. The noble Lord, Lord Lester, drew attention to that, and he is right. We recognise the hugely important role that this new court will have to play in the newly enlarged Council of Europe. The people of Russia and the Ukraine now have access to the rights and freedoms contained in the convention. This means that the judgments of the court will help shape human rights across the European continent. This is why the Government made the election to the court of high quality judges a matter of major importance.
I listened carefully to the arguments put forward by the noble Lord, Lord Lester. I recognise their strength. I recognise too that there are few better qualified than the noble Lord to put them forward. As noble Lords will know, the noble Lord, Lord Lester, has a distinguished record of promoting tirelessly the cause of human rights in general and the European Convention in particular. This is a record acknowledged and appreciated by academics and judges at home and abroad and by practitioners and members of this Government alike.
We attach the highest importance to the effectiveness and integrity of the election process. That is why we helped to put in place a system for the early informal exchange of information about national candidates in the Committee of Ministers' Deputies. That is why we have put forward proposals in the Human Rights Bill to allow sitting High Court judges to serve on the Strasbourg court. And that is why we have set up a fair, objective and comprehensive national selection process that attracted praise as a model of its kind.
I take the opportunity at this point to thank the noble Lord for his tribute to the selection procedure adopted and followed in this country. It included advertisements in the national and legal press and interviews by a strong and independent selection panel. It was drawn to the attention of the member states of the Council of Europe by the Secretary-General as a model of its kind. It was a model, and the proof is that it produced three candidates of the very highest quality. I recognised that when the selection panel made its recommendation to me. I was faced with an embarrassment of riches. Each of the three candidates was outstanding in his field. Any would have made a fine judge at the European Court of Human Rights. Mr. Justice Carnwath is a distinguished judge of the Chancery Division; Robert Reed, QC, is an outstanding Scottish lawyer and a particularly fine constitutional lawyer; and Nicolas Bratza is a first-class member of the European Commission of Human Rights with unparalleled experience before the court and commission. So I agree with my noble friend Lord Grenfell that the assembly could safely have elected any of the three.
The noble Lord, Lord Lester, proposes that the assembly interview procedures be replaced by a system of interviews by independent experts. But Protocol 11 makes clear, as did the convention provisions it replaces, that election to the court is by the Parliamentary Assembly. The Government respect this right absolutely. There are two means by which change might be proposed. The first would be for a government to propose the renegotiation of Protocol 11. We would not entertain such an option at present or in the foreseeable future. That is because this Government support Protocol 11 as drafted, and because such a proposal, four months before the entry into force of the new Protocol 11 court, would be counter-productive to the good functioning of the new court and therefore would be comprehensively rejected by our partner states in the Council of Europe.
The second means would be for the Government to bring pressure to bear on the Parliamentary Assembly to change its own procedures for the election of judges. As I have said before, the election of judges is a matter for the assembly. This Government respect absolutely the right of the assembly to elect judges to the court. The Government believe therefore that it is for the assembly
The noble Lord, Lord Lester, mentioned the role of the assembly sub-committee, chaired by the noble Lord, Lord Kirkhill, which was charged with interviewing and recommending candidates for election. Let us be quite clear about who is responsible for what in this election process. The noble Lord, Lord Kirkhill, clarified it to a considerable extent. It is the task of the sub-committee to make its own recommendations to the Parliamentary Assembly of the Council of Europe according to its assessment of the candidates that appear before it. It is fully entitled to do so. It will nevertheless give weight to the views of governments in considering the merits of individual candidates, just as I and my colleagues in government give weight to the recommendations of our own selection panel when we consider our shortlist of candidates for Strasbourg. It remains the right of the Parliamentary Assembly to consider the recommendations of the sub-committee when it decides how it will vote. It will not necessarily follow these recommendations. The fact that the assembly chose in the case of the United Kingdom to follow the recommendation of the Government rather than that of the sub-committee demonstrates the practical functioning of a mature process of checks and balances.
That said, this first round of elections under the Protocol 11 system was a new experience for governments, parliamentarians and candidates alike. I think we have all learnt something. The Government would agree with the noble Lord, Lord Lester, that it is important for the Parliamentary Assembly to be reliably advised of the respective qualities of the various candidates nominated by governments. I go further. In the normal course of events, governments would reasonably expect that recommendations by the sub-committee be accompanied by reasons, especially where those differ from those made by governments.
Back to Table of Contents
Lords Hansard Home Page