Crime and Courts Bill [HL]

Debate between Lord Woolf and Baroness Jay of Paddington

Wednesday 27th June 2012 Lords Chamber

[Lord Woolf]

My Lords, I agree entirely with what has been said so far about the inappropriateness of altering the Lord Chancellor’s position from that contained in the 2005 Act. I do not propose to repeat the reasons for that, since they have already been given. I will try to identify, however, one or two further reasons why the same conclusion should be reached.

The relationship between Parliament and the judiciary is central to the operation of our constitution and the Lord Chancellor’s ability in the future. I endorse what has been said about the present Lord Chancellor and I recognise his good motives, but the constitution as devised by the noble and learned Lord, Lord Falconer, and myself, first in the concordat and then in the Constitutional Reform Act 2005, referred specifically to the role of the Lord Chancellor being limited to giving either an affirmative response or applying a veto. That was done because it needed to be clear beyond peradventure that he had the responsibility of saying no to a recommendation of the Judicial Appointments Commission, if anyone was to do so. Because of that, if he did not exercise that power, the situation would be one where it could not be said afterwards that the Government of the day had not given consent to an appointment which was in fact made.

Secondly, there is a provision in the Constitutional Reform Act 2005 which provides that if the Lord Chancellor decides to exercise his veto, he has to do so openly and give reasons for it. If he is a member of the commission responsible for the appointment, the part that the Lord Chancellor plays will not be known. The experience in other jurisdictions is clear. One of the problems of having an independent appointments commission is that deals will be done. For example, if the Lord Chief Justice and the president are both up for appointment at the same time, it is only human nature for the commission to come to a decision. If the members of the commission do not all agree, they will give the Lord Chancellor either the Lord Chief Justice or the president, as long as they have the other appointment. That would be highly undesirable.

For example, it can be seen clearly in other jurisdictions that the Executive can control what the judiciary does if it can only achieve a senior judge who is sympathetic to its cause. I will cite but one example. One could assign a judge who is regarded as giving unhelpful decisions to parts of the jurisdiction that are unattractive in which to operate. So far, that has not happened here. We do not want to make it easier for it to happen than is the position at the present time.

My final point is this. The amendment must be looked at in conjunction with the amendment we considered on Monday whereby the Lord Chancellor would give up any responsibility for the appointment of the great majority of judges. We are going to have a situation where he does not exercise any powers in regard to a large number of judges and, in addition, he does not openly take an active part in the appointment of very senior judges. I suggest that such a position would be a retrograde one, and therefore the amendment is one that the Committee should look upon favourably.

[Baroness Jay of Paddington]

My Lords, I am pleased to follow the noble and learned Lord in the constitutional points that he and others have made in supporting this amendment. The noble and learned Lord, Lord Woolf, summed it up very well in his Second Reading speech when he said that if this provision in the Government’s Bill went through, the Lord Chancellor would be in a position of giving advice to himself, which in itself is anomalous, if nothing more.

As other noble Lords have made the constitutional points most effectively, I wonder whether I could raise just an administrative question with the Minister. It seems to me surprising that the Government should propose such a potentially flexibly arrangement for the Lord Chancellor in relation to these very senior appointments as it seems to be the Lord Chancellor’s personal choice whether he takes part in a selection panel or not. As far as I can make out from reading the Bill, this may mean that he decides to sit on appointment body “A” but not on appointment body “B”. A question arises about the consistency of the appointing panel’s approach. There is also the rather bizarre question about what happens if the Lord Chancellor decides that he will not be a member of that panel and the panel has been constituted, as we understand it, in the legislation. Who replaces him, how is that replacement chosen, and to whom is he responsible? For all the reasons that noble Lords have given, I suggest that this is both constitutionally and administratively inappropriate. That is why I would be very happy to support the amendment of the noble Lord, Lord Pannick, should he ask the Committee to give an opinion on it today.

I make one further point to reinforce the point which the noble Lord, Lord Goodhart, was making about the change in the Lord Chancellor’s position. This was confirmed in the hearings that the Constitution Committee held on this matter by the present office-holder himself, the right honourable Kenneth Clarke, when he said:

“I think that we will have a Lord Chancellor who is not a lawyer. The lawyers that we have, including me, will not be as senior and distinguished as they used to be ... A better understanding of my role would be to describe me as Secretary of State for Justice”.

That seems to underline the points about potential politicisation, which other noble Lords have made.