Crime and Courts Bill [HL]

Debate between Baroness Kennedy of Shaws and Baroness Falkner of Margravine

Wednesday 27th June 2012 Lords Chamber

[Baroness Kennedy of The Shaws]

My Lords, I too wish to support the amendment of the noble Lord, Lord Pannick. I see this part of the Bill as being one of those ideas which starts with good intent but has risks attached to it: it is the law of unintended consequences. I can understand that those who have looked at the appointment of senior judiciary and have seen the absence of women, for example, have thought that perhaps if somebody—the Lord Chancellor—were sitting on that panel, he would be able to represent more vociferously public concerns about the way in which appointments are recreating the same people. I can see that that was the intention of giving a role to the Lord Chancellor in the current appointment procedures.

However, we must be very conscious of the risks. We should be concerned about the way in which this could be detrimental to our constitutional arrangements and could be the beginning of a much more politicised role for the Secretary of State as Lord Chancellor sitting on such committees. I say this because, regarding the slide to such things, we always say, “Oh, it could not happen here”. I have just heard the decision made in Europe today that the new judge to be appointed to the European Court of Human Rights will not be the preferred candidate coming forward from Britain. The person appointed was pushed by the Conservatives in Europe and supported by Russia and Serbia. The best candidate, Ben Emmerson, one of our most distinguished human rights lawyers, did not get that role because of politicking of the ugliest kind. He was considered to be too protective of human rights.

We should be ashamed of what has happened in that appointment process and we should be aware of what happens when politics enters the fray in judicial appointments and how it can often lead to unsatisfactory outcomes. I raise this as a warning because it happens all too easily. The best candidate has been lost to the European Court of Human Rights and it has happened because of an ugly form of politicking.

[Baroness Falkner of Margravine]

My Lords, I fear that I will be in a minority of one, which is always a rather brave position, but it is important to put another perspective. That is what the House of Lords is very good at, so I rise to put that other perspective.

The Government’s position is essentially about whether the so-called nuclear option is the way forward or, as I would put it, whether the power to reject after the process, or influence, is the right way forward. I should have declared at the outset that I, too, am a member of the Constitution Committee, but I was not a member when its most excellent report on judicial appointments came out earlier this year.

I note the Constitution Committee’s recommendations in this regard. It states that the Lord Chancellor’s inclusion on a selection commission risks politicising the process, an argument which we have heard today. I draw noble Lords’ attention to the text of that report, which shows that the committee’s witnesses were in two camps; it was not a straightforward matter even at the time. There were those who thought that the current system was the only way to preserve the independence of the judiciary and there were those who believed that the political angle was invariably part of the greater balance of considerations. Among those who felt that the Lord Chancellor should have an increased role were Lord Justice Goldring, Jack Straw MP, a former Lord Chancellor, and the noble and learned Baroness, Lady Hale.

Even when resisting greater involvement, the Constitution Committee states at paragraph 25 of its report that it is important to maintain the connection between Parliament, the Executive and the judiciary partly so that,

“the government cannot entirely wash their hands of what is happening”—

I believe that those were the words of the noble and learned Lord, Lord Woolf—

“and partly to enable the Lord Chancellor better to defend the judges from attack by taking responsibility for the system which appointed them”,

which I believe were the words of the noble and learned Lord, Lord Falconer. The issue then is the extent to which the independence of the senior judiciary will be compromised if the Lord Chancellor sits as a non-chairing, non-voting member of the selection commission. We are talking of two instances only. We are talking of the positions of the President of the Supreme Court and the Lord Chief Justice.

Six years to evaluate the current system is a very short time—I am talking about the six years since the Constitutional Reform Act—but, in the longer term, a given Lord Chancellor may wish to exercise the right to reject or ask for reconsideration of a nomination. We also need to remember, in that context, that this Lord Chancellor, whoever he or she may be, will get only one name coming forward. He will not have a choice of three candidates, hierarchically or non-hierarchically ordered, and make a judgment as to which of those two or three might be the best candidate. He will have the very stark choice indeed of exercising the nuclear option—rejection—and I suggest that, as things stand under the Constitutional Reform Act, it would be virtually impossible to exercise that nuclear option. The noble and learned Lord, Lord Woolf, himself explained to the House that you have to give your reasons in writing for doing so.