Crime and Courts Bill [HL]

Debate between Baroness Falkner of Margravine and Baroness Butler-Sloss

Wednesday 27th June 2012 Lords Chamber

[Baroness Falkner of Margravine]

I am afraid that, unusually, I have to disagree with the noble Baroness, Lady Prashar. It is widely referred to as a nuclear option—we could call it the veto, perhaps, but it is very well known that it is a veto and a very final kind of veto, in that not only does one exercise the veto—if one chooses to do so—but one has to give reasons in writing for arriving at that decision. It is a very tough position to take. The pool from which the candidate would be drawn is so small and so intimately known to one another—the judges of the Supreme Court, for example—that a rejection would be known and would, indeed, indicate a significant level of political interference. It would inevitably get out that a veto had been exercised and people would draw their own inferences as to what had happened. I suggest that that would indicate a huge level of political interference. It would probably leak to the media; there would be wide speculation in and around the legal profession. It would truly be seen, I am afraid, as a nuclear option.

The reality of this provision is that it gives power to several other entities, but not to the individual who is, in the words of the Constitution Committee report, at paragraph 26, responsible and,

“accountable to Parliament for the overall appointments process”.

[Baroness Butler-Sloss]

Taking up what the noble Baroness, Lady Prashar, said, as I understand it this is not just a question of a name going to a Lord Chancellor who has no idea what has gone on before. If there was to be the slightest doubt that this candidate was not suitable, there would have been enormous discussions at a much earlier stage. It is almost inconceivable that somebody would go forward who was known to have reasons for not being acceptable and unless those reasons are such that the Lord Chancellor felt that he could say that, they ought to have been known already.

This does not work in isolation; the judges and the Lord Chancellor discuss a large number of matters extremely carefully over quite a long time. There is no isolation of the Lord Chancellor and his team from the senior judiciary and the appointments commission which is discussing this. I think that the noble Baroness is assuming that the Lord Chancellor is in an ivory tower, not knowing anything until the name comes to him. That is not the position.

[Baroness Falkner of Margravine]

I say to the noble and learned Baroness that if that non-transparent process that she describes, which sounds like the old game of clubbing together to fix it all up, is indeed accurate, there should be no reason for the amendment. In that case, if it is all so chummy, why not have the Lord Chancellor sit on the panel?

The power to veto seems to contradict Section 3(6)(a) of the Constitutional Reform Act 2005, which places a statutory duty on the Lord Chancellor to defend the independence of the judiciary. Not for the first time, one part of an Act—the duty to defend the independence of the judiciary—sits uneasily with the process as defined. Moreover, the process requires the Lord Chancellor to put his reasons in writing. I have already commented on that. It would be far better in increasing transparency and enhancing accountability for the Lord Chancellor to be a member of the selection commission —listening, participating and evaluating the candidate being questioned, without a veto over the appointment—than, after the fact, disagreeing with the selection commission.

In conclusion, I touch on the point made that either a very powerful Lord Chancellor would sit on the commission panel and influence it to go in the direction that he wanted; or, if the Government got their way, that the Lord Chancellor, having sat on the selection panel, could not persuade the panel of his views on an individual candidate and would be deeply dissatisfied because he did not carry the selection panel with him.

I argue that his potential for dissatisfaction would be greater if he had not exercised the veto and was therefore stuck with someone he found it difficult to work with. In fact, it could be said that he would take greater responsibility for working with a candidate with whom he did not entirely agree if he were on the selection panel and had been overruled. He would have been part of the decision-making, he would have been there and heard the argument why the majority of the commission wanted to go in a certain direction and would therefore have to suck it and see. On that basis, I have a lot of sympathy with the Government on the amendment.