Public Bodies Bill [HL]

Lord Woolf Excerpts

Tuesday 9th November 2010 Lords Chamber

[Lord Woolf]

My Lords, I regard this Bill as a matter of grave concern to the judiciary. Before the Constitutional Reform Act, the Chief Justice of the day would have been able to come to this House and to address it wearing his heavy responsibilities now as the head of the judiciary in England and Wales. He can no longer do so. He can however write to both Houses, and he may or may not choose to do so. He can also speak before Select Committees of the House, and I know that he proposes to do so. However, this Second Reading has come before this House before he has had an opportunity to do so. What I am going to say is not what he would say but what I would have said if I was still Lord Chief Justice and had the task of placing before the House what I regard as real concerns.

The real concerns arise because the bodies in Schedule 7 include bodies that are intimately and directly concerned with the administration of justice in this country—the administration of civil justice and the administration of criminal justice. The whole purpose of the great efforts that went into making the Constitutional Reform Act the great Act that it is was to achieve the division between the judiciary and the legislature, which was the prior purpose, and still is the purpose, of the concordat.

I hope your Lordships will forgive me if I ask you to look at Schedule 7 very quickly with me, and I can refer to the sort of bodies that I have in mind. The Civil Justice Council plays a huge role in recommending the improvement of our civil justice. I have to confess an interest in that because it was a report of my own that led to the establishment of the Civil Justice Council. Then we have the Civil Procedure Rule Committee, which is traditionally presided over by the head of civil justice, the Master of the Rolls. Next I refer to the Criminal Cases Review Commission, the body which has the very delicate task of referring back to the Court of Appeal Criminal Division cases of possible serious injustice. It performs that task with great care and achieves satisfactory results. Then comes the Criminal Procedure Rule Committee, which is presided over by the Lord Chief Justice of the day and determines how trials up and down this country take place. It is a body that is carefully framed to be able to perform that role.

I pass over quickly—although they are also involved in the justice system—the Chief Inspector of Prisons and Her Majesty's Inspectorate of Probation, and I go down to the Judicial Appointments Commission. If I were to pick one body in Schedule 7 that certainly should not be put in Schedule 7, it is the Judicial Appointments Commission. It is responsible for almost every judicial appointment that takes place in this country. It was the subject of very deep consultation between myself and the then Lord Chancellor, the noble and learned Lord, Lord Falconer. The provisions contained in the Constitutional Reform Act reflect the solution with which the judiciary was content because judicial appointments were no longer to be made directly, as in the past, by the Lord Chancellor and because it was agreed that the role of Parliament as well as the role of the Government of the day in respect of appointments should be substantially reduced and take on a different framework from that which had existed in the past. I do not say that it is not possible to improve the statutory framework of the Judicial Appointments Commission, but surely something so important as that to our constitution should not be the subject of a truncated procedure that would be possible under this legislation.

I go on to refer to the Legal Services Board and the Legal Services Commission and finally refer to the Sentencing Council for England and Wales. The Sentencing Council for England and Wales has recently been the subject of legislation that was considered in great detail in this House because it was appreciated how that body again goes to the heart of our criminal justice system. The membership of the body is important and the way it operates is important. I cannot say that it may not be necessary in future to amend the legislation that deals with it, but surely something of that importance needs proper consideration and not the truncated treatment that it gets under the Bill.

I do not believe—I hope I am right in saying this—that these bodies under Schedule 7 will ever be subject to the powers contained in Clause 11 because Ministers will be aware of their important responsibilities under the Constitutional Reform Act to uphold the independence of the judiciary. I have to say to the Minister that I do not believe that this Bill, in so far as it refers to the bodies that I have indicated, is consistent with the Constitutional Reform Act. I do not believe that there was any proper consultation before these bodies were included. They were included because they properly can be described as quangos, but it is not because they are quangos that they should be subject to the truncated procedure.

As is indicated here, we are not concerned with purpose; we are concerned with means, and I urge the House to say that the means that has been adopted is constitutionally wrong so far as the partnership between the legislature and the judiciary that we value so much in this country. It is wrong as to the partnership between the Executive and the judiciary, and I ask the Minister, who so wisely said that he will consider representations, to bear in mind the concerns that I have expressed, which are based on my experience of being a member of many of the bodies to which I have referred and, for example, of being chairman of the Sentencing Guidelines Council. These bodies have a difficult enough job without having the sword of Damocles, which the Constitutional Reform Committee referred to, hanging over their head. However, if I have not succeeded in persuading the House of the importance of this issue, I would strongly endorse the suggestion that this is a matter to be given special treatment, as has been proposed by the noble Lord, Lord Maclennan.