I like the Earl of Onslow. Pity Lord Woolf was stopped by the clock.
High Court: Appointment
Question
2.59 pm
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Baroness Deech: My Lords, I shall not thank the Minister for that Answer. However, what will he do to dispel the perception that senior judicial appointments are taking longer than ever to make and are more politicised than ever, even though the Supreme Court has been established and the Judicial Appointments Commission has been set up to promote the separation of powers?
Lord Tunnicliffe: My Lords, it may be true that senior appointments are taking longer to make than they did when they were within the sole discretion of the Lord Chancellor. Indeed, in his evidence to the Select Committee on the Constitution, the Lord Chancellor admitted that the new process is somewhat clunky. The process was decided by this House and the Lord Chancellor has an appropriate role in it. In the evidence to the same committee, it is interesting to note the extent to which the Lord Chancellor set out his two roles: the typical role of a Secretary of State and a special role as Lord Chancellor, principally related to the judiciary and the maintenance of its independence. In that special role, for which he takes a particular oath under the Constitutional Reform Act, he is involved, as Parliament expected, in the process of senior appointments.
Lord Henley: My Lords, this matter has been sitting on the Lord Chancellor's desk-somewhat clunkily, as the noble Lord puts it-for some three months. Does he think that a three-month delay, with its attendant uncertainty, is good for the Family Division?
Lord Tunnicliffe: My Lords, the Lord Chancellor's policy is to maintain strict confidentiality in relation to individual appointments. The appointment will be announced after the Queen has approved it. That policy has been adopted and adhered to by successive Lord Chancellors. Therefore, I shall not comment on how long it has been on anyone's desk. As far as we are concerned, the beginning of the process is in the public domain and it will end when the appointment is made. Other recent senior appointments, such as the President of the Supreme Court, Lord Chief Justice, President of the Queen's Bench and others, have taken between three and eight months. Today we announced the appointment of Lord Justice Dyson, as a justice of the Supreme Court and that process took seven and a half months.
Lord Thomas of Gresford: My Lords, the Lord Chancellor rejected the recommendation of the Judicial Appointments Commission in the appointment of Sir Nicholas Wall to the post of president. He is regarded as a most thorough and compassionate judge in the legal profession. Was that because, last November, he told the Association of Lawyers for Children that it was the duty of judges to come off the Bench and speak out about government changes to the law that were damaging the service to children and families, or because he warned that, without proper legal aid funding, the justice system would implode and that children would suffer the most? Was not the Lord Chancellor's decision entirely political?
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Lord Tunnicliffe: My Lords, I have said that it is this Lord Chancellor's policy, as it has been the policy of Lord Chancellors since time recorded, not to comment on individual appointments, and I certainly do not now.
Baroness Butler-Sloss: My Lords, I declare an interest as a former President of the Family Division. Does the Minister appreciate the importance of the outgoing president properly helping the incoming president to understand what is going on? That is absolutely crucial. I spent three months in effect training my successor. The president will be leaving on 31 March and will have no one to hand over to. Does the Minister also recognise the dismay of the family judges and the family Bar and solicitors at the situation?
Lord Tunnicliffe: My Lords, I am sure that the new president, when he is appointed, will be at pains to learn all he can from his predecessor. I can add nothing to that except to say that the process was started at a time when we hoped it would be complete. It is not complete and I will not be making further comments on the process.
The Earl of Onslow: My Lords, does the Minister's reply not show that the Constitutional Reform Act has made the administration of justice slower and much more expensive? For some reason, the Minister cannot explain what is going on without looking at his papers and mumbling. This whole procedure is a disgrace.
Lord Tunnicliffe: My Lords, the noble Earl can have his view of mumbling. I am making it very clear how we appoint people to virtually every job in the public or private sector, and I am insisting on that definition. As for the speed with which these appointments are made, I will again quote the Lord Chancellor, using reported speech as it will be quicker. In the processes below these senior judges, the new system is working efficiently and in a way that a Lord Chancellor could not do without considerable sub-processes. In the processes for the most senior appointments, I think he has said in passing that, looking at the Act, perhaps this part is "clunky".
Baroness Howarth of Breckland: My Lords, I declare an interest as the chair of the Children and Family Court Advisory and Support Service. I have a very simple question. What will happen in terms of the continuity of the programmes that the present president has in place, and can we commend the work of Mark Potter for ensuring that the work of guardians and family court judges has continued at a time of unprecedented pressure?
Lord Pannick: Does the Minister accept that the high quality of the judiciary in this country is in part due to the willingness of the Lord Chancellor's predecessors, the noble and learned Lords, Lord Mackay
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Lord Tunnicliffe: My Lords, the present Lord Chancellor's praise of previous Lord Chancellors, and the way they executed their duty, is unreserved. He says in his evidence that he thinks they all did a good job under the old system. I am sure that he is committed to ensuring that the present process does an equally good job.
A good post raising a matter of serious concern.
ReplyDeleteThe impression created is that Wall LJ is not flavour of the month with Straw because Wall has been critical (I think rightly) of many of Straw's policies. Wall is a robust, no nonsense and very able judge who would appear to be ideal for this extremely difficult role in the Family Division. If he is not to Straw’s liking then that could be seen as a recommendation in itself.
What this should call into question is the entire recently-reformed role of the "Lord Chancellor". The Constitutional Reform Act 2007 altered the role but, more is the pity, did not abolish it. Just what is the case for retaining the "rump" of this once great Office of State? Straw’s ego apart, I have never seen a case. It should have gone along with the other reforms (Supreme Court; Judicial Appointments Commission etc).
One key element of the 2007 reforms was to transfer the role of Head of the Judiciary to the Lord Chief Justice. Nevertheless, Ministers retained a role in the most senior judicial appointments making it inevitable that politics would play a part. The whole matter of senior judicial appointments should be transferred to either the Lord Chief Justice or to a "Lord Chancellor" who does not hold any other government role. Of course, the latter would be to take a step back to where we used to be. However one looks at it, the combination of the roles of Secretary of State for Justice and Lord Chancellor is seriously flawed.
The Earl of Onslow is one of the remaining hereditary peers – (the Earldom has existed since 1801) – and his family have a long and distinguished history of service to British politics. Of course, such individuals will be ejected from Parliament if another of the present government’s plans comes to fruition – namely, reform of the second chamber. The House may lose some excellent and independent minds. Maybe it is right that the second chamber becomes wholly elected though there is talk of 80% elected: 20% appointed. Needless to say, Straw is driving the reform plans.
As control over everything remotely "legal" accrues to Jack Straw, one gets the distinct impression that we should fear for the future of a truly independent legal profession and judiciary. Those are things which the present government dislike for all their talk to the contrary.