Social Welfare Law

Lord Thomas of Gresford Excerpts

Tuesday 25th February 2014 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, I, too, congratulate the noble Lord, Lord Low, both on securing this debate but, more importantly, on the outstanding report that he and his commissioners have produced.

Many of us in this House, not least the noble Lord, Lord Bach, who has been at the forefront of the argument, warned the Government about the deficit that would arise through the cuts arising out of LASPO. In the debate instituted by the noble Lord, Lord Boateng, in December 2011, I asked,

“where is the funding for the specialist advisers of the CAB”,

and advice centres,

“going to come from when those legal aid contracts disappear?”.—[Official Report, 8/12/11; col. 909.]

The noble Lord, Lord Low, and his commissioners have been ingenious in their recommendations in seeking out funding streams from a number of sources. I fully support the concept outlined in the report that there should be a national strategy for advice and legal support in England, and hope that the current Welsh Labour Government will develop a similar strategy in Wales, although their general lack of vision does not make me too optimistic.

Noble Lords will also recall that we on these Benches warned the Government that their cutbacks in the LASPO Bill would result in advice deserts. My noble friend Lord Marks of Henley-on-Thames, who spoke in the debate of the noble Baroness, Lady Deech, warned that,

“the present proposals risk creating advice and representation deserts where no appropriate legal advice or representation is available. This the Government have recognised, but the proposals also risk creating specialism deserts. The danger of advice deserts could be addressed by increasing the number of providers in more sparsely populated areas. The specialism issue is more difficult”.—[Official Report, 11/7/13; col. 453.]

In that context I will draw your Lordships’ attention to Wales. I am impressed that a member of the commission was Mr Bob Chapman, a member of the committee of the Administrative Justice and Tribunals Council in Wales and chair of the trustee board of the Swansea Neath Port Talbot Citizens Advice Bureau. It is clear from reading the report that Welsh issues have not been overlooked.

The report points out that the Independent Advice Providers Forum has collected evidence that £4.1 million-worth of cuts in Wales kicked in from April 2013, £2.4 million of which were from the loss of legal aid contracts, and the rest from reductions in Welsh government, local authority, European and other funding from corporate and charitable sources. In its place the Advice Services Transition Fund intends to put just over £1 million back into advice services in Wales. I fear that even that dire conclusion may be too optimistic.

On this very day, Powys County Council is meeting to consider its budget. It will be considering the recommendation of its cabinet to cut funding to citizens advice bureaux throughout the county. At first the cabinet said that it would be cut entirely, but last week it compromised. The proposal that is being debated today is to cut funding for the CAB by half in the current year and reduce it to zero in the following year. The chairman of the trustees of the Powys CAB, Chris Mann, says of this:

“Without core funding from the County Council, Powys CAB will lose all other sources of grants. These pay specialist and professional advisers on debt, welfare benefits, employment and housing and allow our volunteers to assist clients on a range of pressing social issues”.

The other sources of grants to which Mr Mann refers are contracts worth some £336,000 for the provision of essential services to the residents of Powys. Without core funding from the council, the highly skilled paid staff will lose their jobs, and the volunteers, who are so vital to the CAB, will be unable to continue.

The recent history is that in 2013 Powys CAB dealt with 21,000 advice issues, assisted more than 6,000 clients and secured £2.2 million in welfare benefit income for its clients. As Mr Mann points out, this money does not disappear into the air but is spent locally and supports the local community. It is true that the council has a small welfare rights unit but it cannot possibly cope with the work level if the CAB has to close. This is a large area of Wales, where poverty and rural deprivation are endemic. It is precisely the sort of area of desert that we foresaw when we were discussing the LASPO Bill. That is only one example, but it is significant in this context that, according to the CAB, £71 million—43.8% of its funding as a whole in 2012-13—came from local government. In the current year, it expects the percentage to increase to 46.2% from local government, as funding from legal aid drops from £21 million to just £6.5 million. This is a tragedy that is going to happen in vast areas of the country.

Perhaps the most impressive aspect of the commission’s report is that it does not seek to wind the clock back to the pre-LASPO position but recognises realities. Suggested funders include the Money Advice Service, the Department for Work and Pensions, the NHS, local government, trusts and foundations, as well as the legal profession through pro bono and dormant funds. I agree with the noble Lord, Lord Bach, that all political parties, in fashioning their manifestos for a future Parliament, should take all the commission’s recommendations on board.

Finally, I very much look forward to the contribution of the right reverend Prelate the Bishop of Peterborough. He spent eight years as Archdeacon of Chester, so I can greet him almost as a neighbour, even though he was on the wrong side of the border. I also welcome him as a graduate of Peterhouse in Cambridge to join our hardcore Petrean group in the House of Lords, with the noble and learned Lord, Lord Lloyd of Berwick, and others. I am sure that he will add lustre to our deliberations.

Legal Aid

Lord Thomas of Gresford Excerpts

Tuesday 11th February 2014 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, before the Bill was introduced, the Government said that they were expecting 5,000 to 7,000 applications a year. In fact, in the first year there were 893, of which only 23 were granted, which represents 1%. Is it not nonsense to suggest that this provision is a safety net for those who seek justice?

[Lord Faulks]

I can update the noble Lord by saying that in fact the total number of applications received is now 1,030, and the number granted is 31. I agree that it is a small percentage. It was difficult for the Government to predict exactly how many applications would be received. In fact, in some areas, including the area in which I practised, that of clinical negligence, there have been virtually none when it was expected that there would be very many. Trying to anticipate what might or might not be considered to be a violation of Article 6 has confounded many courts, not only in this country but also in Strasbourg.

Criminal Defence Service (Very High Cost Cases) (Funding) Order 2013

Lord Thomas of Gresford Excerpts

Wednesday 11th December 2013 Lords Chamber

[Lord Alton of Liverpool (CB)]

My Lords, perhaps a non-lawyer might be permitted to detain your Lordships’ House for just a few moments. Although I am not a lawyer, I have a daughter who has this year qualified as a barrister and should declare that. I was particularly struck by what my noble friend Lady Deech said in her remarks earlier on, when she reminded us of the deleterious effect that the Government’s policies may well have on this rising generation of young lawyers. Taken together with what the noble and learned Lord, Lord Woolf, said in his remarks about the high ideals that so many lawyers have when entering the legal profession, in pursuing this vocation, I think that the Government need to listen extremely carefully to the very distinguished contributions that have been made this evening and with such force.

I support the noble Lord, Lord Carlile, for two principal reasons. The first is that I think that the Government’s policies will significantly impede the possibility of younger people from more disadvantaged backgrounds from entering the law—the point that the noble and learned Baroness, Lady Scotland, has just made. Secondly, having represented and been associated with inner-city areas of Liverpool since I was first elected to the city council there as a student some 40 years ago—at about the time when the noble Lord, Lord Carlile, began to practice at the Bar—I am acutely aware that social justice does not just require access to health, welfare and decent housing: it also requires access to law. That was a point that I made several times during the course of the LASPO legislation and return to again tonight.

Over the past few decades, much has been done to improve the diversity of those working at the criminal Bar. However, the further reduction of barristers’ remuneration proposed by the Government has alarming social mobility implications. Criminal banisters have already sustained a disproportionate reduction in remuneration over the last decade. The noble and leaned Lord, Lord Mayhew, and others have rightly emphasised the dramatic effect that a devastating 30% reduction will have on those who are now working in the profession. In return, they are expected to work long, unsociable hours and tackle difficult and, as we have heard, complicated issues of public importance.

These further swingeing cuts are simply unsustainable and the reality is that they will deter talented individuals from middle and low income backgrounds from entering or staying within the profession. Instead, the criminal Bar will once again become the preserve of the independently wealthy. Those without independent wealth to sustain them will turn to more financially rewarding areas of practice or to another profession altogether; we heard about the alluring effect of commercial law. They will do so not out of greed but simply out of a desire to receive an income comparable to the earnings of other equivalent professionals.

Yet instead of treating criminal barristers like other professionals, the Government have asked them to bear wholly disproportionate cuts to their incomes. As the Criminal Bar Association has pointed out in its correspondence with Members of your Lordships’ House, no other public service professionals have been asked to shoulder cuts on the scale proposed by the Ministry of Justice. I think that the noble Lord, Lord Carlile, was quite right to say to us at the very outset that this is simply crude.

As a consequence of these measures, the criminal Bar will see an exodus of talent. The results will be far reaching and the consequences borne by society as a whole. That is my second point. People accused of serious crimes face the prospect of not having anyone of sufficient quality to represent them; and there will also be a lack of experience to prosecute the more serious cases in due course. As we have heard, it will also influence the make-up of the Bench as well as the years pass.

It is all too easy to forget the important part that criminal legal aid has played in ensuring a fair and just society because the criminal law is not something that impinges on the everyday life of most of us. Yet when liberty and the protection of the public are at stake, it is paramount that both the defendant and the state have quality of representation. If we accept the fundamental principle that all defendants are innocent until proven guilty, and may not have actually done what they are accused of, we should ask ourselves this simple question: “If I found myself in court accused of a serious crime and was trying to defend my innocence, who would I want defending me?”. If the answer is a highly qualified, independent and dedicated advocate, it has to be understood by us all that the price of these measures is that we will forfeit that, and justice will be the loser. It is for those reasons that the arguments of the noble Lord, Lord Carlile, deserve our support tonight.

[Lord Thomas of Gresford (LD)]

My Lords, it is a privilege to follow the noble Lord and the comments that were made in particular by the noble and learned Baroness, Lady Scotland. Referring back to my own beginnings, I was one of those who, having left university, was not in a position to go to the Bar as I had wished. I became a solicitor, and as a young articled clerk I instructed Lord Elwyn-Jones, leading Emlyn Hooson, in a number of cases. I was attracted by the lustre that surrounded the Bar at that time. Elwyn-Jones was a Nuremberg prosecutor, as was David Maxwell Fyfe, which my noble friend has recently had brought to his attention. Maxwell Fyfe really wrote the European Convention on Human Rights. It was the attraction of this profession that drew me, after serving as a solicitor for five years, to pay my 100 guineas to my pupil master and to enter on a different track as a barrister.

I played my part thereafter in civil cases, but more often in criminal cases, prosecuting, defending and later sitting on the Bench as a recorder. I was proud of the system in which I played such different roles. I was proud of the way in which justice could be achieved under the system that we had inherited over so many centuries. I am really sad today—a word that has been used by a number of people—that we seem to be coming to the end of that great tradition at the Bar. I know that my noble friend says no, but that is not how I see it. I agree with the noble Baroness, Lady Deech, who talked about the suffocation of the criminal Bar by these proposals. That is what I think it is.

I do not wish to repeat everything that has been said so well and ably, and with his usual eloquence, by my noble friend Lord Carlile. He has been an opponent on many occasions but I have also worked with him on a number of cases. We have worked together on some serious matters. I want to focus on the way in which entry to the Bar will be so curtailed by these provisions. When I go to see young people being called to the Bar at the various Inns of Court, particularly Gray’s Inn, it saddens me to look at them and their parents, who are so proud of them for what they have achieved and how they have worked to get their degrees to become qualified. Finally, there they are in their fresh wigs and gowns, all ready to start on a career which has been so fulfilling in my own life—they are ready for it but there are no openings.

Today, if you wish to get a pupillage, you will struggle. Very properly, you receive a minimum level of payment, £12,000 a year, as a pupil in the common law field and criminal field. Last year, a commercial set advertised that it was prepared to pay £65,000 per year to a pupil. That, I think, illustrates the huge gap between the commercial Bar and the Bar with which I am familiar. I accept so much of what the noble and learned Lord, Lord Brown, said—that we deal with people’s lives, and not just with money and contractual obligations and so on, as the commercial Bar does. We make a difference to people’s lives in the profession that we follow. These young people who have come so far will not get the pupilages—and if they do, will they ever get the tenancies?

Ian Brady

Lord Thomas of Gresford Excerpts

Thursday 31st October 2013 Lords Chamber

[Lord McNally]

In this particular case, the entire process took almost three years and culminated in an eight-day tribunal hearing. This is a legal process and the trust had no option other than to comply; neither did the Legal Aid Agency.

[Lord Thomas of Gresford (LD)]

My Lords, I was present at the trial of Brady at Chester Assizes in 1966, where he was represented by my noble friend the late Lord Hooson. He did not plead insanity at his trial. Indeed, he served some 19 years in an ordinary prison. It was a decision of the prison authorities to send him to Ashworth hospital, where he tried to commit suicide by starving himself to death. He was force-fed, and the purpose of his application to be transferred back to an ordinary prison was so that he could starve himself to death without being force-fed. Since the cost in Ashworth was well over £250,000 a year, was not the money well spent even if the decision went the other way?

[Lord McNally]

My Lords, it is very difficult to find much sympathy for Mr Brady, although it has to be said that he has been judged to be medically ill. Our law says that in those cases the mental health review tribunal is part of the process of our legal system and that a patient is entitled to a tribunal hearing, as set out in Part V of the Mental Health Act 1983. We cannot have one law for those we find worthy and another law for those we do not like. In some ways, it is the fact that Mr Brady has the protection of the law that should give reassurance to the rest of us.

Whole-life Sentences

Lord Thomas of Gresford Excerpts

Wednesday 17th July 2013 Lords Chamber

[Lord McNally]

My Lords, first, I am grateful to the noble and learned Lord for setting out the chronology very accurately. The right to review was there until 2003. Whether its removal was by an oversight, I do not know, but removed it was. All that I can say about the court’s judgment I said in my Answer—we are analysing it and will provide a considered response in due course.

[Lord Thomas of Gresford]

Are the Government aware that the suggestion made by the noble and learned Lord, Lord Lloyd, was part of the judgment of the British member of the court, Judge Mahoney, who unreservedly subscribed to the conclusions and reasoning of that judgment? Ought not the Government give extra weight to the views of the British judge in that regard?

[Lord McNally]

My Lords, I am not sure whether in an international court one would take cognisance of one judge over another—I am not sure of the protocol of such courts. I do know that it was a considered judgment that merits careful study by the Government, which is exactly what we are doing.

Prisoners: Indeterminate Sentences

Lord Thomas of Gresford Excerpts

Tuesday 23rd April 2013 Lords Chamber

[Lord McNally]

My Lords, the noble and learned Lord’s figure on the release of IPP prisoners is roughly correct; I do not think it is until Thursday that we release the full figures, but his estimate is not far out. That compares with 300 releases in 2011, 97 in 2010 and 53 in 2009. I hope he will acknowledge that the abolition of IPPs in LASPO and the greater flexibility that we are now employing in trying to manage the IPP sentences are going in the right direction. I acknowledge that it is a slow process. I will take back to my right honourable friend the Lord Chancellor the noble and learned Lord’s point about the power that was given in the LASPO Act, but even if that power were exercised the Parole Board would have to take public safety into account in making its decisions.

[Lord Thomas of Gresford]

My Lords, at its conference in 2012 the Prison Governors Association passed a motion overwhelmingly welcoming the ending of what it described as the “iniquitous” IPP system. It also said that unless some action is taken either to resource appropriate interventions to reduce perceived risk or to review the Parole Board criteria on what constitutes risk to the public, existing prisoners will face disproportionately long sentences. What action have the Government taken?

[Lord McNally]

My Lords, I think the key word is “risk”. The fact that these prisoners were given IPP sentences indicates that it must have been in the mind of the judge imposing the sentence that they posed a significant risk to society that had to be dealt with before they could be considered for release. That was the intention behind IPPs and that must remain uppermost in our minds when deciding the future of these prisoners. However, we are bringing in accredited courses, which may help to make the point that they are available for these prisoners. Other interventions such as work, education and employment may also provide evidence of reduced risk. NOMS is investing in interventions that have the most beneficial impact in reducing risk, and priority for those programmes is given to IPP prisoners.

Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2012

Lord Thomas of Gresford Excerpts

Wednesday 18th July 2012 Grand Committee

I hope all noble Lords agree that the exceptions order is an important means of protecting the public. The instrument presented today ensures that the legislation is up to date and effective in its aim, while maintaining the vital balance towards the resettlement of offenders that the Rehabilitation of Offenders Act seeks to achieve. I beg to move.

[Lord Thomas of Gresford]

My Lords, I only wish to raise one point, on guidance notes for police commissioner candidates. I want an assurance from the Minister that those guidance notes will be translated properly into Welsh. He may, or may not, know that there was considerable embarrassment following the elections to the Welsh Assembly last May when there was no proper translation into Welsh. As a result of that, one candidate did not divulge that he held a post that, between the previous election and that election, had disqualified a candidate from standing in those elections. He, being Welsh speaking, had only read the Welsh-language version and, accordingly, there was no problem. But another candidate, who did not speak Welsh, could only have read the English guidance notes, and he was disqualified by the Welsh Assembly although he was successful in the election.

[Lord McNally]

My Lords, I am assured that the Electoral Commission is responsible for publishing guidance, but I say to my noble friend that I will check with the commission on whether it plans such a Welsh-language edition. I cannot believe that it will not, given the normal practice in such elections, but I will make inquiries and write to my noble friend with, I hope, suitable assurances.

Crime and Courts Bill [HL]

Lord Thomas of Gresford Excerpts

Monday 2nd July 2012 Lords Chamber

[Lord McNally]

Yes, my Lords, it is part of the general process of reform at both the tribunal level and in other parts of the judiciary. So there will be employment judges from now on.

[Lord Thomas of Gresford]

Perhaps I may help my noble friend by illustrating the kind of particular business there could be. In the old days it was not so much a tap on the shoulder as a ring-round by the Lord Chancellor’s Department to find someone who could go and do particular cases on very short notice. I recall being asked to go to Leeds with the inducement that I could stay in the judges’ lodgings—not much of an inducement, I may say—to try three large medical negligence cases. They said, “Don’t worry, they’ll all settle”. In fact, they all stood up. That is the sort of instance when counsel on both sides are all ready to go ahead on a fixed date but there is no High Court judge to take it. Everybody assumes that the cases will settle but they do not.

[Lord McNally]

Not for the first time when I find myself out on the thin ice, my noble friend supplies a plank for me to walk back to dry land. I thank him for that intervention.

Crime and Courts Bill [HL]

Lord Thomas of Gresford Excerpts

Wednesday 27th June 2012 Lords Chamber

[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.

[Lord Thomas of Gresford]

My Lords, going back some 25 years, I remember being warned in 1987: “You realise, don’t you, that Mrs Thatcher has never appointed anybody as a High Court judge who has been overtly political?”. I was about to stand for the 1987 election. I stood; I lost for the eighth time; but that did not dissuade me. My point is that then, how the system worked was completely opaque. You did not know what recommendations were being made. You did not know when you had scored a black mark. I recall a close colleague once seeing his file in the Lord Chancellor’s Department, which said in terms that he had fought and lost eight elections as a Liberal candidate—he was so close a colleague that he had been mixed up with me. I am sure that that held him back for a long time from obtaining the appointment that he ultimately did.

I was slightly shocked to hear that we still have a non-transparent system whereby the Lord Chancellor is consulted and becomes involved in the appointment of judges, although there is nothing formal about it. I did not know that. It is opaque. The Bill makes it absolutely transparent that the Lord Chancellor will play a part, and I think it is very good that he should. He should listen to other people who are high in the profession and to what a lay person thinks of a particular appointment. His view may change. I do not think that the Lord Chancellor would necessarily dominate such a selection committee, certainly not if he has a political angle. There may be a toing and froing of views within that committee but we will know that it is happening because he is on it. Consequently it will be a far more satisfactory system than what we have heard is happening now: the Lord Chancellor, without it being in any statute, is involved in some way. That is wrong and I think that the Bill is preferable.

[Lord Falconer of Thoroton]

I was rather appalled by the mischaracterisation by the noble Lord, Lord Thomas of Gresford, of what the noble and learned Baroness, Lady Butler-Sloss, said. My experience as Lord Chancellor, when not making the appointments, was that I remained regularly in touch with the judiciary. If I had not remained regularly in touch with the judiciary on issues such as the funding of courts and the difficulties that the judges were facing, I would have regarded myself as not performing my job as Lord Chancellor correctly. If you are a Lord Chancellor—or now, Secretary of State for Justice—who does not know the leadership of the judiciary, that would be a very bad thing. Indeed this idea expressed by the noble Lord, Lord Thomas of Gresford—that it is in some way a sort of secret-sounding basis—is wrong. I am sure that his misunderstanding was not deliberate. He was looking back to a time 20 years ago when he was looking for a position.

This side of the Committee supports the amendment tabled by the noble Lord, Lord Pannick. We earnestly ask the Government to think again about this provision. Perhaps I may explain why we take that view. The basis of the settlement reached and approved in the Constitutional Reform Act 2005 was that the time had come for the appointment of judges to be clearly depoliticised. The justification for the process that then existed was that although the Lord Chancellor was Labour or Tory and appointed by the Prime Minister, he nevertheless had especial independent roles that made it possible for a political appointment to appoint the judiciary.

We in the then Government took the view, supported by the Liberal Democrats and endorsed by both Houses of Parliament, that in a period of time and a generation where people had to have complete confidence that the judiciary was not being appointed on a political basis, there needed to be a structure in which people would have confidence that you were appointed on your merits as a respected judge. That was the basis of the constitutional settlement reached. Those who considered it in detail were of the view—and I agreed with this view—that the state, the Executive, had to have a stake in the appointment of judges so that there was part of the Executive in Parliament that would defend the system and defend the appointments. That is why the Lord Chancellor has the power to veto some appointments and to reject others.

It is incredibly important for the standing of the judiciary and the separation of powers that that essential separation—that essential constitutional settlement—not be affected. The proposal made by the coalition goes right to the heart of that constitutional settlement. Bringing the Secretary of State into the process would not even have the redeeming feature of the old-style Lord Chancellors, which is that they had an independent role as a judge as well as being a politically appointed Minister. What Ken Clarke said about his role—my noble friend Lady Jay has quoted it—exactly reflects what the constitutional settlement envisaged; namely that he should be a member of the Cabinet with a particular statutory duty as imposed in Section 1, but essentially a political Minister without anything else to distinguish him from other Ministers in the Government. The two roles that we are talking about here are the president of the Supreme Court and the Lord Chief Justice. The president of the Supreme Court is probably the most important judge for the whole of the United Kingdom. The Lord Chief Justice is undoubtedly the most important judge for England and Wales.

The proposal envisages that the commission appointing the president of the Supreme Court should consist of one person who is not legally qualified, one judge of the court, one member of the Judicial Appointments Commission for England and Wales, one for Scotland and one from Northern Ireland, and, if he chooses, the Lord Chancellor. I know Ken Clarke well and admire him greatly. I have absolutely no doubt that, in a group such as that, he would have no difficulty in ensuring that his choice was obtained. The noble Lord, Lord McNally, is shaking his head, but I tell noble Lords that Ken Clarke’s choice would prevail. It would not just be a matter of appearance; it would be a matter of actuality. Go forward in time and imagine someone not of the ethical quality and standard of Ken Clarke as Lord Chancellor. For example, there is the example given by the noble Baroness, Lady Kennedy of The Shaws: “I don’t want the best lawyer; I want the person who is most against the Human Rights Act”. That is a perfectly conceivable position for a Lord Chancellor to take.

--- Later in debate ---

[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.

[Lord Thomas of Gresford]

Would the noble and learned Lord not agree that it was not the best moment in the appointment of the judiciary, and that it does appear that political influences were coming into the question of who was to be appointed? Would it not have been better for the difficulties and the problems between the Lord Chancellor and the appointments commission to have been sorted out in a committee, such as that proposed in this Bill?

[Lord Falconer of Thoroton]

Game, set and match to this side. As I understand it, the noble Lord is asking whether it is so wrong that people might think that political influences have been brought to bear on the appointment, because the Lord Chancellor, performing a constitutional role, says explicitly “I don’t want”, or “I am thinking of vetoing”, the choice that has been made on legal merits. As I understand it, the noble Lord, Lord Thomas of Gresford, and the noble Baroness, Lady Falkner of Margravine, are saying, “Let’s keep all the political influences secret”. The noble Lord is shaking his head; I am not sure what he has in mind.

[Lord Thomas of Gresford]

I am not saying that. I am saying that had the Lord Chancellor been able to discuss in a committee—such as that is proposed—the merits of the particular candidate, we would not have had something which did not do the judiciary any good.

[Lord Falconer of Thoroton]

If the Lord Chancellor said “I want this candidate” and persuaded everybody, none of that would have been apparent. People would doubt the independence of the appointment from the political situation, or the political influences on the position. Do not be under any illusion; if the Lord Chancellor proceeds with this proposal, those people who have had dealings with the constitutional settlement will think that he is, without properly understanding it, going against the basis of the constitutional settlement which the noble Lord, Lord McNally, worked so hard to get through. As he said on Monday, the noble Lord, Lord Goodhart, was one of the main Liberal Democrat architects of the constitutional settlement, as was, as he also acknowledged on Monday, the noble and learned Lord, Lord Woolf. What on earth is the reason for so undermining the political independence of the judiciary?

For these reasons we support the amendments that are being made. If, as I think is unlikely, they are put to the vote today, we will support them. I earnestly ask that the Minister reconsiders the Government’s position on this, and the Lord Chief Justice’s position. It would be a really bad idea if people thought that a Conservative or Labour Secretary of State for Justice, not the Lord Chancellor, had appointed the Lord Chief Justice and the president of the Supreme Court.

--- Later in debate ---

[Lord McNally]

Try me. I think that the issues that have been raised are such that it would be better to have another run at them on Report.

[Lord Thomas of Gresford]

My Lords, before the Committee sat I informed the noble Lord, Lord Pannick, that I was fairly relaxed and neutral about his amendment. However, the more I have listened to the argument, the more I have come down on the Government’s side. I recall the very unseemly row when the former Lord Chancellor’s veto was exercised in relation to an appointment, and I believe that I put down a Parliamentary Question. I think that he reversed his decision before I got the Answer, but I certainly tabled a Question about it. There was a furore at the Bar and I was approached by many people to do what I could to defend the reputation of a person who was considered to be the best judge in a particular division. It was extremely unseemly and the Lord Chancellor backed down. What did that say? He had given his veto and then he withdrew it and the appointment went ahead. All these matters should have been sorted out but not in such a public way as to damage the reputation of the person concerned and damage the reputation of the Lord Chancellor, if it needed to be damaged any further. It did not resolve the situation.

I have heard the debate and, as I understand it, the Lord Chancellor does have discussions behind the scenes with the Appointments Commission. That is what was said in terms by the noble Baroness, Lady Prashar. I do not think that that is right. I think we should have an open system. She said that it was open and transparent. It was not—I did not know about it, although I was sufficiently involved to put down a Parliamentary Question about the matter in issue.

[Lord Falconer of Thoroton]

How would the discussions between the Lord Chancellor and the other members of the committee that the noble Lord envisages be transparent?

[Lord Thomas of Gresford]

The fact that it is happening is transparent. That is where the argument can be held and not in public, which damages people’s reputations. The noble Lord said that the Lord Chancellor will always have his way. What sort of a pushover does he think these people in the commission are that they will simply bow down to a political figure? I do not believe that the chairs of the Judicial Appointments Commission in Northern Ireland, Scotland, England and Wales are going to follow a political lead because the Lord Chancellor does not like someone on political grounds. He may have some knowledge that does not involve the politics of the matter and that would persuade the other members of the commission, but I do not think that he would persuade them on political grounds, which is what the noble and learned Lord, Lord Falconer, said. He nods. Perhaps he was a very persuasive Lord Chancellor in private.

[Lord Falconer of Thoroton]

Under the new system, I would have the power. That is the point.

[Lord Thomas of Gresford]

He had the veto, although I do not think that he ever exercised it.

[Lord Falconer of Thoroton]

I never exercised the veto, although my successor considered it and everything was open.

[Lord Thomas of Gresford]

Why did he exercise it? We do not know. Did he say so at the time? He did not say, “For political reasons I do not want that person as the head of the division”. He did not give us his reasons. It was not discussed with anybody. He just vetoed that appointment and it was unfairly damaging to the person concerned.

[Lord Pannick]

I am grateful to the Minister, who says that he has been listening. I am sure that he has been, and I have listened to what he has said. I will certainly want to reflect, as I am sure the House will, on what the Minister described as a very important debate—and he is right. This goes to the heart of the relationship between the Executive and the judiciary. The Minister said that it is important to keep the Lord Chancellor in the process because the Lord Chancellor is responsible to Parliament and these are appointments at the very apex of the system. The Minister is right and no one disputes that the Lord Chancellor must have a role. The question is whether that role is best fulfilled as a member of the appointments commission.

The Minister and the noble Baroness, Lady Falkner of Margravine, emphasised that the veto is a nuclear option. There are two points to make about the Lord Chancellor’s existing powers. First, the fact that the veto is so difficult to exercise in political terms is highly material to the influence that the Lord Chancellor currently has. We need to be very careful about expanding the political role of the Lord Chancellor, or at least the political potential for involvement, through an appointments commission process. The second point, which has been made very forcefully by noble Lords who know how the system works, is that the Lord Chancellor at present does not just have a veto which is difficult to exercise. He can and does make his views known to the appointments commission during the process of consideration for appointment to these posts. There is nothing improper or secret about that. It is not a question of nudges and winks. It is called consultation. Plainly, the Lord Chancellor is entitled to be consulted by the special appointments commission that is going to appoint to these highly important posts. If the current system has defects, the alternative proposed by the Government is far worse, for all the reasons that have been pointed out, and no more transparent.

I will certainly reflect on this debate and I am sure the whole House will want to reflect on the matter and return to it on Report. I hope that the Government will reconsider this question over the summer and I am sure that if, as we have been told today for the first time, it is the Government’s intention that the Lord Chancellor will sit on the appointments commission, it is highly desirable that the Bill expressly makes that clear so that we all know what the Government intend on this matter of fundamental constitutional concern. For the moment, I beg leave to withdraw this amendment.

--- Later in debate ---

[Baroness Bottomley of Nettlestone]

This has been a most exhilarating debate. I hope that the Minister will be able to use this experience to talk to other colleagues in government about why, for example, a non-executive director on a board has to have annual re-election once over 70. Recently, an Oxbridge college appointed a principal who is 72 and the articles of association had to be changed. I declare an interest because the late Lord Bingham’s son is the best person who works for me in my professional activity so I am, of course, brainwashed in this regard. I never thought of the Lords as pioneers of radical equality measures but I feel that this debate has great potential for professional groups across the economy and society, and certainly across government.

[Lord Thomas of Gresford]

My Lords, I support the amendment for all the reasons that the noble Lord, Lord Pannick, gave. However, I would suggest an alternative. If we are not going to go to 75, the alternative is to appoint judges to the Supreme Court who have not gone through the processes of the High Court, the Court of Appeal and so on. We have the power now, apparently, to appoint people to the Supreme Court who have not been in the Court of Appeal. It was interesting that, on Monday, the noble and learned Lord, Lord Lloyd of Berwick, said, “Of course, members of the Supreme Court will have come from the Court of Appeal”. I do not think that that is necessary. I think that the pool should be broadened. There are people in academic life and lawyers at the Bar who would be appropriate as members of the Supreme Court. The age of 70 is ridiculously low. If it is to stay at that, people should be appointed in their 50s—early 50s perhaps—to the Supreme Court without having to go through the cursus honorum required at present.

[Lord Falconer of Thoroton]

My Lords, I strongly support the amendment for the reasons given by the noble Lord, Lord Pannick, the noble and learned Baroness, Lady Butler-Sloss, the noble Baroness, Lady Jay, and the noble Lord, Lord Thomas of Gresford. It is an important amendment on a matter that is already causing difficulty. The loss of the noble and learned Lord, Lord Collins, from the Supreme Court was a direct result of the reduction in the retiring age. The Government now have an opportunity to do something about that, because this is a legislative opportunity.

Crime and Courts Bill [HL]

Lord Thomas of Gresford Excerpts

Monday 25th June 2012 Lords Chamber

[Lord Thomas of Gresford]

Perhaps I may be permitted to intervene on this matter. The lifestyle of a High Court judge is of course very different from that of a circuit judge. High Court judges sit half the time in London and half the time on circuit. Circuit judges do what they are entitled to do; they sit on circuit. Looking after a family is far easier if you are a circuit judge than if you are a High Court judge.

[Lord Falconer of Thoroton]

I will not intervene on his intervention, but the noble Lord is wrong.