Crime and Courts Bill [HL]

Debate between Baroness Falkner of Margravine and Lord Falconer of Thoroton

Wednesday 27th June 2012 Lords Chamber

[Baroness Falkner of Margravine]

That is absolutely not what I said; that is a mischaracterisation entirely. I said that if a Lord Chancellor exercised a veto and rejected a candidate and, as he would have to, gave his reasons for doing so in writing, given that it is such a small and intimate community, not only would everyone else know that this had happened but inevitably it would leak into the legal papers. That is what I was saying. I was not saying that the transparency would come from the leak but that huge damage would be done by that happening.

[Lord Falconer of Thoroton]

As I understand it, the noble Baroness, Lady Falkner, is saying that gossip would be the way that transparency would come. No? Explain again.

[Baroness Falkner of Margravine]

Forgive me. I am describing what could potentially happen; I am not saying that that would be transparent. All I am trying to say is that very few vetoes are exercised. There are vetoes in other positions as well—the Prime Minister has the power of veto over several other appointments, for example—but apparently they are seldom used; I could find the figures for the noble and learned Lord. I think that one of the reasons why they are so infrequently used is the damage that it might do if it got out that they had been used.

[Lord Falconer of Thoroton]

I think that there is a misunderstanding here. As I understand it, the noble Baroness is saying that when the veto is used it is kept secret. It is not, so there is no question of gossip. The Lord Chancellor is willing to use that veto where appropriate. I have no problem with that and it does not cause difficulty. In the proposed system, there would be no transparency about the role that the political Minister had played; indeed, it would be assumed that he or she was the person who had dominated the process. It would profoundly undermine the settlement. At the moment, I can see no benefit from it. I have not had the pleasure and privilege of reading the letter that was sent to the noble Baroness, Lady Prashar. I have heard the speech of the noble Baroness, Lady Falkner, which was very persuasive in many respects. However, I am unable at the moment to see the basis for departing from a constitutional settlement that is intended to ensure the sanctity of the process. It is an independent process in which one is judged on one’s merits, and it keeps politics out of it except for the exercise of a transparent veto.

Crime and Courts Bill [HL]

Debate between Baroness Falkner of Margravine and Lord Falconer of Thoroton

Monday 25th June 2012 Lords Chamber

[Baroness Falkner of Margravine]

I have agreed with almost every word that the noble and learned Lord, Lord Falconer of Thoroton, has said this afternoon but I am now surprised at his explanation for why he wishes to move these amendments with respect to what I think he implied was an abrogation of responsibility by the Lord Chancellor for the judiciary. I wonder whether he is familiar with those parts of the Constitution Committee’s report.

For other noble Lords who might not be, I will take just a minute or two to point those parts out. Looking at this part and pages 14 and 15, the Constitution Committee in taking its evidence found:

“This argument was supported by the previous Lord Chancellor, Jack Straw MP, who described his role in relation to the lower tiers of the judiciary as ‘ridiculous’. The Lord Chief Justice, Lord Judge, also stressed that the Lord Chancellor ‘has no input at all to make other than to be there to look as if he is making an input ... It simply suggests there is political involvement when we have tried to get rid of it’”.

The committee goes on to make the point at paragraph 32 that,

“The Lord Chief Justice has day to day responsibility for the judiciary of England and Wales: he knows what is required of judicial office at all levels. He is therefore better placed than the Lord Chancellor to make an informed assessment of whether a nominee put forward by the JAC should be appointed. Transferring the Lord Chancellor’s power to request reconsideration or reject nominations to the Lord Chief Justice would strengthen the appointments system”.

In conclusion, the committee finds that,

“there is indeed a need for the legal framework for appointments to reflect both the extent to which the Executive should be involved in individual appointments and the reality of that involvement”.

The committee makes one point which the noble and learned Lord, Lord Falconer, made, that,

“The Government should consider whether the Lord Chief Justice will need additional support in order to take on this role”.

I think that point is well made.

[Lord Falconer of Thoroton]

The noble Baroness asked me whether I was aware of that. I most certainly was. With the greatest respect to the chair of the committee, my noble friend Lady Jay of Paddington, it was wrong. It is such a misunderstanding of the importance of the role of the Executive. I admire the judges more than anyone but I do not want the judges to be completely in control of the process of appointment. It is a siren song to say “let the Lord Chief Justice do it”. He is a splendid person but what a mistake it would be to remove the Executive and say “hold on a minute, I am not sure that is right”. Yes, I was aware and, my goodness me, she was led astray in what she said.