Public Bodies Bill [HL]

Lord Pannick Excerpts

Tuesday 14th December 2010 Lords Chamber

[Viscount Eccles]

My Lords, I fully agree that the separation of the powers of the Executive from those of the legal profession and our courts is absolutely central to our constitution. Unfortunately, this Bill does not affect that separation because the chief coroner does not have that independence. If one reads the terms under which he is employed and what he has to do to satisfy the Lord Chancellor, the real power has been left with the Lord Chancellor.

[Lord Pannick]

My Lords, I am puzzled by the speech of the noble Viscount, Lord Eccles. As I understand the Act, the chief coroner will enjoy considerable independence. He or she will be appointed by the Lord Chief Justice and will report to the Lord Chancellor. If the Lord Chancellor were to tell the chief coroner how to perform the substance of the duties, I have no doubt whatever that the courts would uphold the independence of the chief coroner under the Act.

The other point made by the noble Lord—

[Viscount Eccles]

On that point, the noble Lord, Lord Pannick, is correct. But the appointment can be made by the Lord Chief Justice only with the approval of the Lord Chancellor. All my experience of public appointments has shown that the power of appointment rests with the Lord Chancellor.

[Lord Pannick]

I remind the noble Viscount that the same is true of judges of the Supreme Court. There is no suggestion that people cannot be independent in their judicial role because the Government have a responsibility for their appointment or for the appointment of their staff. The performance of the function is what matters. The noble Viscount said that we elect Governments so that they can deliver. I suggest to noble Lords that there are some functions that can be delivered to the satisfaction of the public only if they are delivered by an independent body. The reason for that is that the decisions they are making are either judicial decisions or quasi-judicial decisions which often concern the relationship between the individual and the state.

These points were made with great power by the noble Baroness, Lady Finlay, in opening this debate. She referred to the support given by Dame Janet Smith in the Shipman report to the creation of the office of chief coroner. Dame Janet put her finger on the fundamental point which has provided the recurrent theme in the debates in this Committee so far and will continue to be the recurrent theme of the debates in this Committee unless and until the Government change their general approach. The point was made by Dame Janet at paragraph 19.22 of her third report on the Shipman inquiry. She said that,

“if coroners and the Coroner Service are to command the confidence of the public, they must be and must be seen to be independent of Government”.

That applies also, as the noble Viscount, Lord Slim, said, to the views of the bereaved. They must have confidence in the coronial service if it is to perform its function. Dame Janet added:

“Although coroners investigate on behalf of the state, they might well reach verdicts and make recommendations unwelcome to Government”.

That point was made by the noble Baroness, Lady Miller. Dame Janet went on to say that,

“it would no longer be satisfactory for the coroner service to be administered from within a Government Department”.

But that is precisely what the Government are now proposing.

There are many functions under this Bill which the Government are seeking to bring within the Ministry of Justice, of which the role of the chief coroner is just the latest. These roles can effectively be performed only by bodies that are independent and are seen to be independent. The man or woman from the ministry simply does not know best and cannot be seen to know best. This core principle is being trampled on by the Bill. I have great sympathy for the Minister, the noble Lord, Lord Taylor of Holbeach, because the Government’s position in relation to the chief coroner is quite indefensible.

[Lord Newton of Braintree]

My Lords, I rise to speak briefly. Having supported my noble friend Lord McNally as loyally as I could last night, I find myself in a slightly more difficult position today. I really do think that we need some sensitive answers to the questions that have been raised in this debate. I have a peripheral historic interest in that when I was chair of the Council on Tribunals, late of the Administrative Justice and Tribunals Council, I was consulted in the course of the review which started off the whole process of reforming coroners. There may have been some thought at that time of making the coroners’ court arrangements a tribunal. We have not gone down that path, but it leads me to what I want to say.

Whether it is a tribunal, a court or sui generis, it is essentially part of the judicial process. That is why I think that the key issues in the debate are those that were raised by the noble and learned Baroness, Lady Butler-Sloss, and a number of others, including the noble Lord, Lord Pannick, about the need for independence. We are just seeing the full establishment of a Tribunals Service, part of whose merit was that it was led, for the first time, by a senior judge. We had the Lord Chief Justice as President of Tribunals, to whom the noble and learned Baroness, Lady Butler-Sloss, referred, and judicial leaders in different ways from all parts of the judicial system. Why is this being taken out and left to civil servants in the Ministry of Justice? I cannot see any answer to that question and, unlike the noble Lord, Lord Harris, with most of whose remarks I agree, I do not believe the Ministry of Justice could do it however much money and officials it has. It is an issue of principle.

I will not go quite as far as my noble friend Lord Lester and say that if the Government will not accept the amendment, I shall vote against them. However, if we are just given an intransigent response that says that we will not even take this away and look at it, I shall be in great difficulty.

--- Later in debate ---

[Lord Pannick]

The Minister mentioned a figure of £10 million that would be required to set up the office of the chief coroner. Has the Ministry of Justice consulted with the judge who was to be appointed as chief coroner about whether he thinks that he could perform a useful role with the amount of money that is available? I say “is available” because many of these functions are to be performed, so we are to be told, from within the Ministry of Justice, which obviously will cost additional funds.

[Lord Taylor of Holbeach]

I cannot reassure the noble Lord on precisely that point because I do not know whether the question of the budget has been discussed in detail. I can say that the whole question of the continuation of the responsibilities vested in the chief coroner have been discussed with the distinguished judge appointed to the post.

I was about to say to the noble Baroness, Lady Finlay—if I may, I shall say it now—that I hope she will consider withdrawing her amendment so that we can indeed return to this issue on Report, having had the opportunity to continue these discussions.