Parliamentary Constituencies Bill

Lord Thomas of Cwmgiedd Excerpts

Report stage & Report stage (Hansard) & Report stage (Hansard): House of Lords
Thursday 8th October 2020 Lords Chamber

Moved by

[Lord Thomas of Cwmgiedd]

11: After Clause 4, insert the following new Clause—
“The Boundary Commissions: constitution
(1) Schedule 1 to the 1986 Act (the Boundary Commissions) is amended as follows.(2) At the end of paragraph 2 insert “in accordance with paragraph 3A below”.(3) In paragraph 3(a), for “Lord Chancellor” substitute “Lord Chief Justice of England and Wales”.(4) In paragraph 3(c), for “Lord Chancellor” substitute “Lord Chief Justice of England and Wales”.(5) After paragraph 3 insert—“3A The two members of each Commission appointed by the Secretary of State shall each be appointed in accordance with the following process— (a) a selection panel shall be convened by the Secretary of State to select the members of the Commission, which shall comprise—(i) the deputy chairman of the Commission, and(ii) two persons appointed by the Speaker of the House of Commons;(b) the selection panel shall determine the selection process to be applied and apply that process;(c) the selection panel shall select only one person for recommendation for each appointment as a member of the Commission;(d) the selection panel shall submit to the Secretary of State a report stating who has been selected and any other information required by the Secretary of State;(e) the Secretary of State shall on receipt of the report do one of the following—(i) accept the selection,(ii) reject the selection, or(iii) require the panel to reconsider the selection;(f) the power of the Secretary of State to require the selection panel to reconsider a selection is exercisable only on the ground that, in the Secretary of State’s opinion, there is not enough evidence that the person selected is suitable for appointment as a member of the Commission;(g) the power of the Secretary of State to reject a selection is exercisable only on the ground that, in the Secretary of State’s opinion, the person selected is not suitable for appointment as a member of the Commission;(h) the Secretary of State shall give the selection panel reasons in writing for requiring the reconsideration of, or rejecting, any selection.”(6) In paragraph 4, at end insert “, but the term for which each member (other than the chairman) is appointed shall be a non-renewable term.””Member’s explanatory statement
This amendment would ensure that the appointment of members of the Boundary Commissions is made and is seen to be made independently and without the influence or appearance of influence of the Executive, to remove the possibility of political interference in the process of setting the boundaries of Parliamentary constituencies.

[Lord Thomas of Cwmgiedd (CB) [V]]

My Lords, Amendment 11 seeks to put in place matters essential to dealing with the important consequences of automaticity. As the decision of the Boundary Commission will become final, and there will be no parliamentary veto, it is essential that the commission is, and is seen to be, entirely independent and so is its appointment processes. Although I have taken up the kind invitation of the Minister to discuss this issue with him, and have done so very cordially on two occasions, the Government have made it clear that they consider that no change is necessary to the current position. I do not believe that this accords with constitutional principle, hence I will seek to take the opinion of the House on the amendment.

In many senses, the new role of the Boundary Commission will become very much nearer to that of a judicial tribunal: sitting in a panel of three, gathering and hearing the evidence and coming to a decision. There will be no appeal from that decision and the other two branches of the state must accept it, just as they accept decisions and judgments of judges. The amendment therefore seeks to ensure that, in a manner akin to the appointment of judges, the appointment of the boundary commissioners is wholly independent and that that independence is guaranteed during their period of office. It seeks to do so in three ways, and I will deal with each in turn.

The first of these is the appointment of the deputy chairman. Under the 1986 Act, the deputy chairman must be a High Court judge. In Scotland and in Northern Ireland, that judge is appointed by the head of the judiciary in those jurisdictions—the Lord President and the Lord Chief Justice of Northern Ireland. In England and Wales, for historic reasons, the appointment is made by the Lord Chancellor. That was all very well with the old-style Lord Chancellor in 1986 when the Act was passed. At that time, he was head of the judiciary of England and Wales. There was, therefore, nothing anomalous in him making that appointment, like he appointed all judges. However, that all changed in 2005 with the reform of the office of Lord Chancellor. The Lord Chancellor ceased to be a judge and head of the judiciary. He became, in essence, a political Minister. All allocation of judicial responsibilities passed to the Lord Chief Justice and appointments were made independently by the Judicial Appointments Commission. For some reason—no doubt oversight—the position was not changed. Although the Lord Chancellor consults the Lord Chief Justice, the time has come when it should now be made clear that the decision is that of the Lord Chief Justice. We should bring this provision into line with constitutional principle. The appointment of a judge who chairs a tribunal which makes the final determination of a series of sensitive issues should be in the hands of the Lord Chief Justice, just as in Scotland and Northern Ireland. There is no reason for England and Wales to be treated differently.

As I understand it, the objection is not grounded in constitutional principle but on the view that, as all judges of the High Court go through a rigorous selection process, they must all be qualified and therefore appointable. It is, therefore, open to a political Minister to select one of them. It could not possibly be disputed that it would be the antithesis of justice if a political Minister could select a judge to try a case, let alone one where there was a party-political consideration. In principle, the position of the Boundary Commission is no different, but there is one further consideration. There is a danger to the independence of the judiciary. A decision of the Boundary Commission is always open to attack on grounds that the chair, although a judge, had been selected by a political Minister because he had shown himself sympathetic to the Government, or had some distant connection with them. We all know how the media can find those connections. We should do all we can to avoid the risk of such an attack, because attacks are so damaging to the rule of law.

I turn to the second part of the amendment on the appointment of the other two commissioners. The Act specifies that the other two members of the Boundary Commission are to be appointed by the Secretary of State, but says nothing about the manner of appointment. As I understand it—I pay tribute to Minister’s officials for their helpful assistance on this—the other two members are appointed under a process set out in the Government’s Code on Public Appointments, promulgated under the Public Appointments Order in Council 2019.

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[Lord True (Con)]

My Lords, the matter before the House is whether the system for England and Wales is sufficient and effective. The contention I put to your Lordships’ House is that it is sufficient and effective. My noble friend will know in any case that the particular circumstances of Northern Ireland have long demanded different approaches.

[Lord Thomas of Cwmgiedd (CB) [V]]

I thank all noble Lords for their contributions to this interesting debate and, in particular, I again thank the Minister for the courtesy he has shown me and for the time that his officials have given to looking at this matter. It seems to me, however, that four points emerge.

First, as the noble Lord, Lord Janvrin, put is so powerfully, we are concerned to ensure that not only is the commission impartial but that it is perceived and seen to be impartial. With the change brought about by automaticity, its role has changed so fundamentally that fundamental changes are needed to ensure that there is perceived impartiality.

Secondly, as to the position of the Lord Chief Justice, it is very difficult to see any argument in principle—the Minister has advanced none—for why it is not brought into line with Scotland and Northern Ireland or, as the noble Lord, Lord Hayward, put it, the position is restored to the appointment of the person by the head of the judiciary. It is important to appreciate the kind of world in which we now live. Certainly, my own experience is that people will dig to find connections, however spurious they may be. Some may remember the connections that were dug up in relation to a decision on which I sat in 2017. No judge should be put in a position where his or her appointment is called into question on the basis that they may have some connection that has made them favourable to the political Minister, particularly a Minister whose own constituency might well be affected by the Boundary Commission review.

Thirdly, it seems to me that this must be put in statutory form. I have made no criticism of the current appointment process in relation to how the commission currently works, but it has fundamentally changed. No assurances—as the noble Lord, Lord Beith, pointed out—can work because assurances do not bind future Governments and this is in a code not made under statute, merely by an Order in Council.

Fourthly, as to the term, there simply is no reason why the tenure cannot move to being akin to other important constitutional watchdog posts. Both the noble and learned Lord, Lord Morris of Aberavon, and the noble Lord, Lord Hayward, raised the interesting issue of bringing together the Local Government Boundary Commission in England and Wales and the parliamentary Boundary Commission. When looking at this matter, there is much that can be said in favour of such a move. However, that should in no way affect the basic constitutional principle that the appointment should be for a fixed, non-renewable term so that, in a case, the decisions that they make are not subject to a review by Parliament, or by anyone else, and must be accepted.

In the light of the Government’s position, I therefore wish to test the opinion of the House.