Crime and Courts Bill [HL]

Baroness Falkner of Margravine Excerpts

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.

[Baroness Prashar]

To describe the question of rejection or reconsideration as “the nuclear option” is not really appropriate because it is part of the process. I would use the word influence. In fact, the Lord Chancellor has the opportunity to discuss the process, is consulted at appropriate times during the process and is able to give a view of the kind of person he or she would like. So it is not right to call it a nuclear option. He has the opportunity to be involved and have a say in the process.

[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.

[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.

--- Later in debate ---

The noble Baroness, Lady Falkner of Margravine, says: “Oh well, let’s make it all more transparent”. She was not listening to the detailed evidence given to the Constitution Committee—actually, she may not have been on the committee, so I withdraw my suggestion that she was not listening—about the occasion when my successor specifically objected to the appointment of a particular head of division where he had a veto. I am not going to go into the detail of the case but it was transparent, and the views of the appointment panel eventually prevailed. What was absolutely clear was that there was an independent process judging who was the best among the candidates, with absolutely no political interference of any sort. The Lord Chancellor expressed a view, there was then a discussion that was recorded in correspondence and the original view prevailed—absolute transparency. The noble Baroness suggests, “Oh, let leaks and newspapers provide the transparency”. Sorry, she disagrees; what was being suggested?

[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.