WEDNESDAY 2 APRIL 2003

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Members present:

Mr A J Beith, in the Chair
Peter Bottomley
Ross Cranston
Mr Jim Cunningham
Mr Hilton Dawson
Mr Mark Field
Mr Clive Soley
Keith Vaz

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Examination of Witnesses

RT HON LORD IRVINE OF LAIRG QC, a Member of the House of Lords, Lord Chancellor, and SIR HAYDEN PHILLIPS GCB, Permanent Secretary, Lord Chancellor= s Department, examined.

Chairman

Good morning, Lord Chancellor and Sir Hayden. This is the first time you have appeared in public session of the Committee, but of course we have seen you before in private session of the Committee at an early stage. Before we start, I should simply record that interests have been declared by members. Mr Vaz has declared his wife as a solicitor who holds a judicial appointment, Mr Cranston is a recorder and barrister, Mr Field is a non-practising barrister and my wife is a Member of the House of Lords. Having got that out of the way, we look forward to spending a bit of time on what I would call some bread-and-butter issues, but rather significant bread-and-butter issues in the Department and then moving on to the wider issues about the constitutional role and the general position of the Lord Chancellor and the Lord Chancellor= s Department. The supplementary estimates of the Department are a bit worrying. The Department found early in the financial year which has just ended that it needed an extra , 281 million and that in turn did not prove to be enough and another , 131 million was granted, making a total of , 412 million. Is it not a bit embarrassing to find the Department running out of cash by as much as 14 per cent in the course of a year?

(Sir Hayden Phillips) Perhaps I could try and help the Committee.

I do not think you can answer the question as to whether the Lord Chancellor is embarrassed or not, but you can give us some facts.

(Sir Hayden Phillips) No, I will not pick up the embarrassment. I think the reality here is really essential, as we tried to explain, that there are two major elements of expenditure. The first is asylum where the workload going through the appellate authorities moved from 4,500 cases a month to 6,000 cases putting increasing pressure on our budget and this decision was taken to lift this up after, as it were, the SR 2002 settlement had been made. We were conscious of that within about three or four months of the start of the financial year which is why we had an agreement with the Treasury, which they supported in this area, to the tune of , 281 million last summer. The other area of growing difficulty during the year was pressure on criminal legal aid which is essentially a demand-led pressure and there were a number of elements in that and gradually during the course of the year it became clear that we were going to have a real difficulty in meeting that expenditure. We were tracking it through and we were beginning to find out the reasons for the underlying growth in criminal legal aid, but they were both realities out there in the real world which we had to cope with. We had to have the money for those, hence the agreement with the Treasury for the supplementary estimate of the size and the sort of which you are aware.

I will put my question again to the Lord Chancellor. Is it not embarrassing given that part of your role might be to remind the Cabinet of the legal aid and other consequential costs of policies that they are pursuing, whether it is new initiatives by the Home Office or new legislation, and that perhaps your Ministers in the Commons should also be alerting the Commons to the consequent costs of other government policies if the argument is, and I understand it is, that most of this increase has resulted from decisions by other departments which generate a legal aid requirement?

(Lord Irvine of Lairg) Well, first of all, it is quite obvious from what Sir Hayden said that the Department is financially embarrassed. I am not personally embarrassed because I think that Sir Hayden has given a perfectly sound explanation of how that arose, but you have put your finger on an absolutely major point which I do accept. It is absolutely critical when changes to the substantive law are being made, particularly in the criminal field, which have downstream consequences for the courts, that the thing should be looked at end to end and the downstream consequences should be funded and that is a position that I have consistently maintained.

One of the arguments, and we will come on to this later, which is advanced for the present position of the Lord Chancellor, and I do not mean in a personal sense, but the constitutional position of the Lord Chancellor, is that here in the Cabinet we have a voice in the judiciary. In this particular case of course that voice is presumably heard in Cabinet saying that there are consequential costs of all these things, but I do not remember in a parliamentary argument about any of these policies anyone saying that the legal aid bill is going to be such and such and it has got to be calculated on this basis.

(Lord Irvine of Lairg) Well, public expenditure issues of this detail are not in fact in practice discussed in Cabinet, but they are discussed extensively in our discussions with the Treasury and you can be absolutely assured that the point that you make which you regard as valid I regard as valid and we put continuously, as Sir Hayden has said. One of the problems is that criminal legal aid is demand-led. It is therefore, inherently difficult to predict and in times past we have had underspends and this time we had an overspend, but because something is inherently difficult to predict because it is demand-led, you cannot look for perfection in budgeting, but you must do as best you can and I agree with you that it is absolutely critical that changes are not made to the substantive law unless also you take on board the downstream consequences for the courts and fund that.

Does the Treasury not listen to your arguments?

(Lord Irvine of Lairg) I am sure the Treasury does listen to these arguments and I am sure the Treasury accepts the validity of these arguments, but at the end of the day, as you know as well as I do, it has to translate into pounds, shillings and pence and the fact is that we have not been sufficiently funded for the way matters have turned out.

(Sir Hayden Phillips) I think in fact the Treasury do recognise that by working with us in order to assist us during the course of this year. I think what we do have to say in addition to what the Lord Chancellor has said is that the criminal justice system is much more joined up than it was three, four, five years ago, but we still have a long way to go in technical terms in being able to forecast precisely the impact on legal aid, the changing behaviour of the magistrates= courts, different actions by the probationary service and so on. The next really important task is to get that end-to-end budgeting and costing process working really well. We are not there yet, but we are on target.

(Lord Irvine of Lairg) An important point about that is that the success of the police impacts directly upon the courts. This is what was called A tackling the attrition target@ , how many cases which are recorded as crime are actually cleared up by the police in the sense that they have a suspect whom they wish the prosecution authorities to prosecute. Now, obviously if they succeed significantly in that task beyond their current level of achievement, that has downstream consequences for the courts of a significant character. Of course if the Treasury are not completely persuaded that that success will be achieved, then our Department may not be funded to the extent that it requires, but, as I say, the principle that downstream consequences should be predicted and funded is acceptable.

Mr Field

I also wish to focus on some of the financial aspects and you will be gratified to know that I am just old enough to remember pounds, shillings and pence, but it is to do with the asylum issues that Sir Hayden referred to. How much of the legal aid bill would you estimate is being wasted due to immigration lawyers milking the system, as was suggested by a High Court Judge earlier in March?

(Sir Hayden Phillips) Well, I think it is very difficult to assess the degree to which there has been over-claiming, but it is undoubtedly the case that the Legal Services Commission, which polices this for us, are concerned about a number of law firms. The Chief Executive of the Commission and I gave evidence to the PAC on this matter some while ago. They will actually target and withdraw contracts from firms that are over-claiming, so there is a policing system for this. Abuse is not, I can assure you, widespread and we are focused on trying to do something about it where it occurs.

I accept that financial abuse may not be entirely widespread on this matter, but I speak as an inner-city Member of Parliament, and the same applies to Clive Soley and various others, and we do find it an enormous paperchase effectively where legally-aided lawyers are well aware of the way the system works, but in a sense Members of Parliament quite rightly are directed to the Home Office which has a special department and they know, therefore, there is a massive paperchase which continues and it is in their interests to ensure that our constituents write directly to us or indeed the law firms also begin that process. I appreciate there may not be out and out fraud, but that was not really the question I was asking. I was looking at how the system is being milked. Clearly where there is evidence of fraud, that is totally unacceptable and understandably you will wish to stamp down on that initially, but is there also a sense that there needs to be a reassessment of the entire process to ensure that legally-aided lawyers and various other immigration advisers are not using the system and legitimately getting monies, but legitimately under a system that is not necessarily doing good either for your budgetary constraints or, perhaps more importantly, for the people they are purporting to represent?

(Lord Irvine of Lairg) Well, because of the huge expansion in applications for asylum, it was necessary to build up a market in specialist asylum and immigration lawyers actually to meet the demand and in fact early legal advice is of great advantage to the system provided it is quality advice because it assists IND, the department in the Home Office which deals initially with asylum applications, to come to a sensible and well-documented decision which will withstand appraisal when it goes to the adjudicator, so there is great merit in involving lawyers of the integrity and quality in the giving of legal advice at that stage. Also the supplier base had to be expanded. The Legal Services Commission is concerned to maintain the quality of its suppliers. As Sir Hayden has said, they are subject to contracts which can be withdrawn. The extent of abuse is something which I would not exaggerate, but the Legal Services Commission has got strong powers to investigate and withdraw a contract from a firm that was proved to be, as you put it, milking the system.

(Sir Hayden Phillips) I have three quick points to make. First of all, in terms of the jurisdiction of immigration and asylum, in terms of the part the Lord Chancellor is responsible for, it has been the largest and fastest growth of any jurisdiction, I think, in this Century in terms of dealing with this problem and I would hope to argue when the Committee come to look at this that that has been a managerial success story from the point of view of handling the work. The second point is that we do at the Home Office look extremely closely at each stage of the process to see how it can be streamlined and we do that on a continuous basis. The third point is that we were asked about this in the Public Accounts Committee because of the number of inner-city MPs who said that they were concerned about themselves perhaps being used as part of the system, and Baroness Scott has written round to some MPs, I think about a dozen, asking them for their views and we have received their evidence, as it were, back to us which I am going to pass on to the Chairman of the PAC and I imagine, Chairman, that that information and that process of correspondence would also be of interest to you and your Committee. I am sure there is no problem about our making that available to you. We were asking the question in very much the way you are posing it to us to MPs, so we have better communication with Members of Parliament about the problems they see on the ground in this area.

Mr Soley

I certainly see abuse in my area of the legal aid system for asylum and I have raised this a number of times, including with the Law Society. I have to say there are a number of solicitors= companies I would actually pay not to defend me. The area of abuse that I am most interested in actually is multiple claims or withdrawing claims and putting in new claims and general delay. I would accept that the early advice is right, but the reality is that we have got some companies who are accepting and turning a blind eye to multiple and overlapping claims and to some extent encouraging it. What do you say to that?

(Lord Irvine of Lairg) We would frown on that seriously. I think again perhaps I can turn it back, as I did to Mr Field, and say that where there is evidence of that, where MPs come across cases of that sort, we need to know that quickly and then if there is action needed, we will take it.

But what would you do in a situation where they put in, for example, a claim for asylum and then changed that claim half-way through or put in an overlapping claim with it? What would you actually do with that?

(Lord Irvine of Lairg) What do you mean by an overlapping claim?

Putting in another claim for another basis of staying here, which may be a work permit or whatever, or a student permit.

(Lord Irvine of Lairg) Basically what would assist us would be if you wrote with the detail of particular cases. If there is abuse, it is the duty of the Legal Services Commission to clamp down on it. If there was a pattern of a particular firm gaming the system in the way that you are describing, then the Legal Services Commission would investigate under sanction and could withdraw the contract so that they did not get any more work.

I have done that and some have had it withdrawn. There are the more difficult ones where you get the painful cases where you are worried that it is only one person in the practice, one lawyer.

(Lord Irvine of Lairg) My own view would be that if there was one person in the practice who was the sinner, that would nonetheless be the sinner= s practice and they would either get rid of that individual who was abusing the system and retain their contract or not and lose their contract, and I would be in favour of the very toughest sanctions.

Can I finally ask you how much would you work with the Law Society on policing this system? The Law Society began to work with me in terms of drawing up a code of conduct for solicitors in relation to MPs.

(Lord Irvine of Lairg) Well, I think it is primarily the job of the Legal Services Commission to police the expenditure of public money. I think that if what is improper professional conduct emerges, then that should be reported by the Legal Services Commission to the Law Society to deal with as a professional misconduct matter. Speaking for myself, I would come down on anything like this like a tonne of bricks.

Ross Cranston

I wanted to ask you a couple of questions about access to justice, but before that could I come back to criminal legal aid and the problems I can see you have got because it is demand-led. Have we not reached a point where that position has to be addressed? I was particularly struck when Sir Hayden said last year that he had something like 49 per cent of criminal legal aid can go on one particular case if it is a high-cost case

(Sir Hayden Phillips) Forty-six per cent.

I imagine that some of them are fraud cases, but just as a casual observation one often sees these multi-handers with a silk and a junior for each defendant.

(Lord Irvine of Lairg) Well, we are dealing with that and you are quite right to identify it as an important problem because of the proportion of the criminal legal aid budget that it represents, but we have put forward in the last Spending Round a proposal in relation to very high cost criminal cases and basically these have been provided for by fixed-price contracts. That is going to go ahead and that should significantly reduce the cost of these cases.

(Sir Hayden Phillips) Absolutely.

Can I ask you about a couple of issues on the access to justice side. I think a lot of progress has been made on areas like community legal partnerships and I see that in my own constituency. I am very impressed by the telephone advice lines, the advice back-up centres and so on, so there is a lot of progress there, but you will forgive me if I concentrate on a few of the difficulties. The first point put to us by, for example, the Legal Aid Practitioners Group is that there is a drift away from legal aid work. Now, you, I think, have taken one of the initiatives here in funding something like 100 traineeships which I think is a very good move, but do you see this as a problem and what more could be done? Could I also ask you, will that funding of the traineeships be continued?

(Lord Irvine of Lairg) I cannot give any commitment to any particular funding being continued, but obviously the traineeship idea was an original idea and I am glad that you favour it. There is no crisis yet in supply of legal aid lawyers. It is true that there has been some weakening of the supply base and there is no doubt that it is attributable to the fees which we can afford to pay, but at present there is a sufficient supply at current rates to meet the demand.

(Sir Hayden Phillips) The area of greatest difficulty is not in crime, but in family law and in certain parts of the country and we are aware of that and we will try and take steps where we can. We are aware of the frailty and the fragility of that part of the supply base, but in crime generally we have not had a real problem.

Sorry, my question was mistaken to start with. It was actually the Legal Aid Practitioners Group and the Family Bar saying that there is a drift away in that area.

(Lord Irvine of Lairg) Well, there is some evidence of the drift away and I would be the first to acknowledge it, but it is not at such a level that there is an insufficiency of quality supply to meet current demand, but it is a state of affairs we have to keep a very close eye on, I quite agree.

Could I ask you about conditional fee agreements because again we are being told by people like the Association of Personal Injury Lawyers and other groups that there are problems there and it is obviously the case that there has been satellite litigation, that insurance companies are trying to attack particular agreements and so on, but I guess my question is that three years down the line, what is your assessment of the impact? I should say, incidentally, that I support it and if litigation can be funded outside legal aid, it is absolutely right, but what assessment has the Department made, for example, of the extent to which there is at least an equivalent number of personal injury cases being brought as there were under the previous system?

(Lord Irvine of Lairg) We have no reason to. I never get letters, never, ever, and my mailbag is as vast as any Cabinet Minister= s complaining about the system that the Cabinet Minister is responsible for. I get many thousands and thousands of letters, but I do not think I have received a single one saying that they are unaided and had to find a conditional fee agreement to support a personal injury case that they wanted to bring, so I do not think there is any problem about access to justice. The problem is the one that you raise, that there has been warfare between plenty of solicitors or trade unions on the one side and the defendant= s insurer= s solicitors on the other, and I quite agree with you that there has been a vast amount of unacceptable satellite litigation. The Civil Justice Rules Committee, at the initiative of the Master of the Rolls, was trying very hard to mediate agreements between both sides to resolve this. I have high hopes that it will succeed. Only the other day I wrote a very detailed letter on the subject to Andrew Dismore and I will ensure that I write before the morning is out a similar letter to you setting out all the detail, as I see it at the moment, but not precluding further action by way of legislation, if need be, to ensure the system works. My own belief is that we are going to mediate our way out of these problems.

(Sir Hayden Phillips) We have done some research and evaluation and I will check where that has got to and it might be of interest to the Committee to see that.

I think it ought to cover collective CFAs as well because I think that is another concern raised by the trade unions.

(Lord Irvine of Lairg) Collective CFAs is something the trade union movement sought and we thought it right to grant so that they were not at a disadvantage because of their tradition of funding the whole of their service to their members in personal injury cases out of the costs they received in successful cases.

Do you think there is scope for contingency fees?

(Lord Irvine of Lairg) No. My own view is that contingency fees are basically objectionable because they give the lawyers an interest in the outcome, as I think is called sometimes A a slice of the action@ , and I think the view would be that we ought to give CFAs a chance if they have substantially succeeded. Quarrels about costs between a defendant= s insurers and plaintiff= s solicitors have adversely affected the operation of the system a bit, but I think it is by far preferable that the solicitor in a CFA agreement runs the risk of nothing if he fails but enhanced costs against the unsuccessful defendant in the cases where he wins, but not to take something out of the recovery of the injured plaintiff to diminish the compensation that the court has decided the injured plaintiff is entitled to in order to fund the litigation. The basic objection with contingency fees are that the plaintiff gets less than he is entitled to.

Mr Cunningham

As to the Hunting Bill, what have you actually done on the Hunting Bill?

(Lord Irvine of Lairg) My Department has no policy role whatsoever in relation to the Hunting Bill. My Department= s sole role relates to the tribunal which will be set up when the Hunting Bill passes to deal with applications, so ours is not a policy function at all; it is simply to provide a tribunal to appoint the members, provide a structure, run the tribunal, I am pleased to say, at the expense of DEFRA.

Can you say how much you think you are likely to spend on that?

(Lord Irvine of Lairg) No, I have not got a figure available. I have not had specific notice of this question. There are figures floating about because obviously my Department and DEFRA have been discussing what it is going to cost and we have got a clear agreement that whatever it is going to cost, DEFRA will bear the cost, as you would expect. That is a good example of the downstream consequences being paid for by the Department that is the initiator of the policy. I will find out what the latest estimate is and write to you.

(Sir Hayden Phillips) I am sure it will be less than the provision which has been made, but we do not know precisely what it is.

If you do not know the cost, why have you asked for a supplementary estimate?

(Sir Hayden Phillips) Because that is based on the fact that we will spend some money on this. The estimate which was put in was based on a faster-track process than the Bill has had so far and that was the figure which was put in because that was the best estimate at the time, but my judgment at the moment is that we will not spend as much as that, but we had to make some revision.

Chairman

Have you spent anything at all in 2002/03 when you asked for the , 580,000 supplementary estimate?

(Sir Hayden Phillips) Certainly there has been expenditure this year because ----

So you have spent some already?

(Lord Irvine of Lairg) My officials have been working very hard on this subject and that carries a price tag as well.

(Sir Hayden Phillips) In other words, we are being reimbursed for the work we had to do to prepare for the tribunal aspect of that Bill.

Peter Bottomley

I would say kill the Bill! There is reference to the Legal Services Commission and it might be sensible to get them to ask Members of Parliament whether we have noticed what we think are abuses of the legal aid system, not individual complaints, but getting a gathering of them and seeing the pattern. If I can move along, we have had a useful letter from the Director of the Northern Ireland Court Services, Mr Nathery(?), talking about how legal aid there has been increasing. The figures are released in public, so I will not go into them. The Legal Services Commission is going to come to Northern Ireland, so is there an expectation that that will in some way reduce the rate of progress of legal aid in Northern Ireland?

(Lord Irvine of Lairg) As you know, in England and Wales legal aid used to be the responsibility of the legal professions, of the Law Society. It then became the responsibility of the Legal Aid Board and the Legal Services Commission which has to operate within a budget. As a matter of general principle, it is best that the budget-holder makes the determinative decisions, so as a matter of principle I think it is better that it should be the Legal Services Commission, but if you have detailed questions about the operation of legal aid and its grant in particular cases, then, as far as I am concerned, I would be absolutely delighted if you invited the Chief Executive of the Legal Services Commission to appear in front of you and to answer those questions in detail.

Is there any expectation that the rate of growth of legal aid will be reduced?

(Sir Hayden Phillips) In Northern Ireland, yes, the object of the exercise is to get much better control over costs than has been possible before and also at the same time in September when the organisation comes on stream, I think it is also proposed that standard fees should be introduced again, so the position in Northern Ireland will be much more analogous to that in England and the evidence that we have is that that actually in itself does get better control of the costs. What I cannot give you is an estimate of what it would be and what it might turn out to be.

Chairman

I think you might understand, Lord Chancellor, that in looking at some of these details we are simply trying to see what picture you have of trends in the Department= s expenditure and issues like whether you will be coming back for an excess on expenditure for the coming year, which seems quite likely, and to know how far those at the top of the Department realise what burgeoning bills they seem to have.

(Lord Irvine of Lairg) We are only too painfully aware of it.

(Sir Hayden Phillips) The accountants are only too well aware of the essential requirement really to try to live within your means. There is a risk of an excess later this year. We have done quite a bit to try to avoid that ourselves as well as with the Treasury= s help. It all turns, I think, on the forecasting of the asylum expenditure which might turn out to be okay or might turn out to be more than we want it to be and that will put additional pressure upon our position for the coming financial year, but on that we are now taking action to ensure that we live within our means.

Well, let me change gear which might be welcome to you and can I turn your attention to the wider constitutional issue. You wrote and you are quoted as saying that, A The overwhelming majority of the judiciary want the office of Lord Chancellor to remain unchanged whether or not a new Supreme Court is to be established. Without the office, there would be damaging disputes about Executive interference and judicial independence where issues of discipline or conduct arose@ . Have they arisen and if they have a tendency to arise, could a Minister of Justice not speak up for the judiciary just as clearly as a member of the judiciary sitting in the Cabinet?

(Lord Irvine of Lairg) I think that what has to be appreciated is that the Lord Chancellor is head of the judiciary by force of many statutes with all that that entails and one of the central organising principles of the administration of justice in this country is that the Lord Chancellor is head of the judiciary. On taking office, the Lord Chancellor takes the judicial oath and he becomes President of the superior courts in the country. As my predecessor, Lord Mackay, put it very clearly the other day in the debate in the Lords on the 7^th March, A The provision of administrative support to the judges is part of the judicial administration of judicial functions@ , and, incidentally, before I pass on to the views of the judiciary generally, Lord Mackay has authorised me to say that he would be more than happy to put his experience at the disposal of your Committee and to give evidence to it. The first point that he made was that the higher judiciary accept and support that an integral part of the office of Lord Chancellor is being head of the judiciary. When the Wakeham Commission was considering Lords= reform, Lord Bingham, on behalf of the Council of Judges, which is the body which represents the views of the senior judiciary, government and others, wrote this to the Commission and it remains the position of the higher judiciary today, and I think it is as well to put it on the record: A The Council is concerned that the Lord Chancellor= s dual position as head of the judiciary and as the Cabinet Minister whose responsibility is the administration of justice should not be affected by the outcome of the reforms. There is no doubt that this dual role has historically proved invaluable in maintaining the independence of the judiciary and there would be a considerable anxiety that any other arrangements would result in time in the encroachment of the Executive Government into the proper sphere of judicial independence essential in a democratic society.@ Now, that remains the view of the higher judiciary today, so these constitutional arrangements are actually based on consent. They work successfully in practice, not merely in defending judicial independence, which I will deal with separately if you wish, Chairman, but in relation to the whole system of the administration of justice and I have read the note of Mr Jurgens= evidence to you and let me just say that we are a nation of pragmatists, not theorists, and we go quite frankly for what works. It is a central organising principle of our existing system of justice that the Lord Chancellor is head of the judiciary and it works in a whole range of examples quite beyond that of the traditional function of upholding the independence of the judiciary. The notion of the Lord Chancellor as a representative of the judiciary in Cabinet and a representative of Cabinet in the judiciary is based upon the longstanding position that the office of Lord Chancellor as head of the judiciary is one and indivisible and it has huge ramifications for the administration of justice, which I would like to tell you about in case I abstain from doing so if I go on for too long.

There are many issues, but I would just like to ask about this particular one. Do you find you have to defend the independence of the judiciary in Cabinet or with senior ministers and that your role puts you in a better position to do so than a Minister of Justice would be?

(Lord Irvine of Lairg) Well, obviously I am not at liberty to talk about discussions which take place in Cabinet and obviously I am bound by collective responsibility, but I can give you an absolute assurance that at many, many stages in my experience over six years now as Lord Chancellor, it has been necessary to argue in ways that ensure that the independence of the judiciary is upheld. As you know very well, in our country the legislature is the normally senior partner, the executive is very powerful and the truth is that the judiciary is the weakest arm in the separation of the powers and when the judiciary gives decisions that the executive of the Government does not like, in all governments some ministers have spoken out against decisions that they do not like and I have to say that I disapprove of that. I think that it undermines the rule of law and I think that maturity requires that when you get court decisions you favour, you do not clap and when you get a court decision which is against you, you do not boo.

That is a very interesting point. Collective Cabinet responsibility, does that preclude you from making the public comments which the head of the judiciary might otherwise make when a Cabinet minister does not merely question a court= s decision, but challenges the judge= s competence and integrity to do so as, some would argue, the Home Secretary has done?

(Lord Irvine of Lairg) I do not think that collective responsibility would in any way preclude my speaking out on behalf of the judges. In fact in a letter which I delivered recently on the Human Rights Act and its operation in practice, I expressed myself quite strongly.

From the safe distance of Australia!

(Lord Irvine of Lairg) No, in the beautiful English city of Durham. You always have to ask what is the most productive way to go about things and sometimes you can be more influential by speaking strongly in private than you can be by making a great hoo-ha in public.

Mr Dawson

I am just interested in your role, Lord Irvine, as head of what is a burgeoning department of state. You have already given us a graphic description of your postbag, but what amount of time do you actually spend as head of the Lord Chancellor= s Department as opposed to the other responsibilities which you have?

(Lord Irvine of Lairg) Well, you see, this is a really interesting question because they cannot actually separate, which is the point I am trying to get over and perhaps I am not getting it over very well and it is my fault. What I am trying to get across is how the office of Lord Chancellor and being head of the judiciary is one and indivisible. Now, let me give you one example. Nowadays judges assume umpteen tasks of an administrative nature. There is the closest cooperation between my Department and judges. The resident judge in the Crown court, the designated civil judge, family judges, they take the lead in organising the caseloads in their own area and usually it works very well. If a dispute arises between them and the circuit administrator, the Lord Chancellor settles it. Why? Because he is the head of the judiciary. The senior presiding judge visits the circuits for substantial periods of time on an investigative basis and he produces very, very detailed reports about the business on the circuits which he visits, as I say, really in-depth for the purpose, and these pull no punches at all about administrative or judicial failings. These are sent to me in my capacity as head of the judiciary and it is for that reason that they are so full and frank and I can tell you that if it was a Minister of Justice, who was not of course head of the judiciary, I would strongly predict that they would not be as full and frank. What happens in that area is that the Lord Chancellor responds in detail and the problems are sorted out. Now, let me give you one other example because you mentioned my mailbag. There is an industry of complaints, about which I do not complain, to the Lord Chancellor about judges because most cases produce either winners or losers and some losers are aggrieved. I think I receive at least 1,000 of these a year and about 100, maybe a bit more, come through Members of Parliament. The principle is that I cannot entertain complaints about judicial proceedings because of judicial independence, but about 200 are about judicial conduct and all of these I consider personally. I will not take up time, although you would find it fantastically interesting if I did, to give you examples of the small number that have been upheld, but these are when judges speak or act in a way in a case usually, occasionally outside the court, in a way which is not acceptable. Now, I do not want to give the wrong impression, but this is a system which works 99.9 per cent extremely well, but there are occasionally examples which let the system down. Now, here, as head of the judiciary, I can and do warn, reprimand or rebuke judges where a complaint is justified. I also believe that the Lord Chancellor brings a broader perspective to this than a senior judge would who was sitting in judgment on alleged misconduct by judges, and I ought to tell you that the judges would never accept this kind of reprimand, rebuke or warning from a Cabinet minister who was not also head of the judiciary.

Can I ask about how this fits with the party-political role. As a Labour MP, I would look towards secretaries of state to take on quite an overtly party-political role at particular times in this process, so how does fit with your responsibilities?

(Lord Irvine of Lairg) What I am trying to get across is that there is a bit of uniqueness about the Lord Chancellor= s Department which is that its business is dealing with an arm of the state called the judiciary. It is part of the separation of powers. We deal with, as I say, an arm of the state within the separation of the powers and this arm of the state values, and rightly, its judicial independence above all else. It does not want to be bullied by the executive. It believes that its function is to stand between the citizen and the state and to be absolutely robust in deciding when the state has acted contrary to the law. Now, the view of the higher judiciary, and indeed my own view, is that this system works much better through a system in which there is a Lord Chancellor, who is the equivalent of a secretary of state, but who is also accepted by the higher judiciary as head of the judiciary and is able to mediate in a way which all parties find entirely acceptable between the Government and the judiciary.

Can I just push you a bit more on your party role. How do you see yourself in party-political terms?

(Lord Irvine of Lairg) Well, I see myself in party-political terms as a Cabinet Minister who takes the Labour Whip in the House of which I am a member, who votes for the Party and so on, but I see no difficulty, and none of the actual stakeholders in the system sees any particular objection to this. Your question is perhaps really whether a politician should do this at all and if that were so, then of course if it was a Minister of Justice, a Minister of Justice would be an elected politician. It may be a question as to whether an unelected politician should do it. I do not really know precisely what the thrust is.

It is not particularly as a member of Cabinet or of the Government, but in a party-political sense, you are involved in roles to support the Labour Party ----

(Lord Irvine of Lairg) Of course.

---- in terms of fund-raising, in terms of donations to the Party, in terms of overall political support for the Party.

(Lord Irvine of Lairg) I do not have very much to do with that these days.

Chairman

When you did, you said it was not the case that Lord Chancellors are not party-political. I take the view then that unless and until the rules are changed, the Lord Chancellor is no different from any other Cabinet minister.

(Lord Irvine of Lairg) I am absolutely entitled to participate in an election campaign. Lord Hailsham participated vigorously in his last election campaign and nobody said that he was in this way disqualified from doing all the other things as Lord Chancellor that he in fact did extremely well.

That distinguishes you from every other member of the judiciary.

(Lord Irvine of Lairg) Well, of course, but this is not a discovery.

Mr Dawson

And judges do not object to your being robust with them when you have been at them on the party-political stump the previous day?

(Lord Irvine of Lairg) Well, I do not think I have ever met judges the day after I have been out on a party-political stump, but the basic point is that the higher judiciary accept this role and they believe profoundly that it is a superior system to any other.

(Sir Hayden Phillips) Could I just add one small point of observation as someone who is not a lawyer and who came to the Department from the rest of Whitehall. What has struck me as remarkable is that it is not just the high Constitution issue in the way we would explain it in the indivisibility of the two roles, but it affects my junior staff on the ground. We have an arrangement by which we have members of the executive, low-grade civil servants in the Department, working day by day with the judges and for the judges in a way which they understand and which is quite subtle, and it forms a partnership of activity right down to the grassroots. That would not be the case on either side if you did not have the sort of situation which we have, as it were, at the top and I get this impression going around and talking to junior staff around the country as well and that is understood and I find that quite an interesting phenomenon.

It is so mysterious that it is difficult to get hold of. Can I raise just one further issue because Lord Irvine stressed the distinction between elected and non-elected ministers. I think you are extremely well represented by two ministers in the House of Commons, but they plainly have their own particular responsibilities. I regard it as a problem as a Member of Parliament that you are the only Secretary of State who is not there in the House of Commons to answer particular questions and I would be interested in how you see that.

(Lord Irvine of Lairg) First of all, I am accountable to Parliament as a whole. Before the Department came of age and merited an LCD Select Committee, I did appear in front of the Home Affairs Select Committee, in front of the Public Administration Committee, in front of the Joint Committee on Human Rights, and my Permanent Secretary appears regularly, and it gives him great pleasure, in front of the Public Accounts Committee, so there is a high level of accountability. Also this new Committee, if I may say so, will increase the visibility and the accountability of the Lord Chancellor= s Department. To take your point directly, I entirely accept that the office is a unique one and it must be justified or not in the terms in which I have tried to justify it. Now, of course under our system there are many ministers in the House of Lords and they are ministers of the Crown and they are regarded entirely as valid ministers. I have one excellent minister myself, Patricia Scotland, and it was not so long ago that there was a Secretary of State for Trade, David Young, and Lord Carrington as Foreign Secretary in the House of Lords, but more traditionally the Lord Chancellor and the Leader of the House of Lords have been in the Cabinet and that is that. Today there is a practical reason for the Lord Chancellor sitting in the House of Lords. But it relates to my point that it is an integral part of the office, that the office holder is head of the judiciary and that that is accepted and desired by the judiciary in this country. The truth is that lawyers of sufficient standing to occupy the office are more likely to come through a Lords route than a Commons route. That is no criticism whatever of the House of Commons. Of course, it is no criticism whatever of the eminent Lord Chancellors like Quentin Hogg, whom I have mentioned, who came via the House of Commons route. As we all know, the truth is that membership of the House of Commons today has become basically a full-time job for professional politicians, leaving very little time - I do not say no time - for a professional career outside. If you want to maintain the office of Lord Chancellor, an integral part of which is being head of the judiciary and accepted as such, it is inherently likely that the office holder will come via a Lords route rather than a Commons route. What about accountability to the House of Commons? As you know from the debates that there have been about House of Lords reform, there has been the strongest support from me of the primacy of the House of Commons and the need to keep it that way. I think that the Lord Chancellor with two Ministers in the Commons and with his liability to be called in front of a Select Committee such as this, is sufficiently accountable to Parliament. That is for you to consider.

Mr Cunningham

Commenting on your role as a judge and Lord Chancellor, how often have you sat as a judge over the past two years?

(Lord Irvine of Lairg) I cannot remember, but I probably have not sat much in the past two years. I have probably sat about nine times in all. I would have to look up the figure. I have been involved in some fairly major cases - three lead judgments. I am anxious to get across to you that a lot of this debate has taken place on the basis that sitting as a judge is a problem. I have been trying to get across the fact that sitting as a judge is but one aspect of the head of the judiciary. Being head of the judiciary is integral to the whole office. If you want to know whether I would like to sit more than I do, the answer is yes. But there has been a huge expansion, as you know, in the responsibilities of the department since the last election. There was then the break up of the DTLR leading to a further expansion of responsibilities so it is quite a big job.

If you are not able to perform your role as a judge, why do you retain that role?

(Lord Irvine of Lairg) I am trying to explain that being head of the judiciary does not merely entail sitting as a judge. Sitting as a judge is but one aspect of it. I intend to sit as opportunity arises. I do not think that the question is so much how often I sit but whether one is entitled to sit.

Perhaps I may put the question another way. Do you think that it is important that you sit?

(Lord Irvine of Lairg) Yes, I do. I think it is important that the Lord Chancellor, from time to time, sits, yes.

If you are not able to sit, with all due respect, why did you take the job?

(Lord Irvine of Lairg) I would sit tomorrow. I can give you more detail if you like. Obviously, if any case concerned directly or indirectly in a significant way what may be perceived as the interest of the Government one would not sit. The kind of cases where there would be no conceivable objection to a Lord Chancellor sitting are the long commercial cases between private parties, the kind of cases that I did extensively when I practised, and they can take three or four days. I readily acknowledge that that is too long a period to take away from my other duties in order to sit. There are practical problems. I have difficulty in seeing why this issue is so important. That is why I wanted to begin by emphasising that it is an aspect of being head of the judiciary.

Chairman

May it become important if you had a decision challenged under Article 6 of the European Convention on Human Rights?

(Lord Irvine of Lairg) Obviously, I would not want to sit and I would be absolutely sure that I would never sit in a case in which my sitting would infringe Article 6 of the Human Rights Act. Article 6 is not concerned with the way in which our constitutional arrangements are made in the European Court of Human Rights. Article 6 is not a means by a side-wind to change our constitutional arrangements. It merely ensures that there is a fair hearing. I would not sit in any appeal where it could be thought that I represented some governmental interest that would cause someone to consider that it was not a fair hearing because the Lord Chancellor was sitting. I would astutely ensure that that would not happen. I do not believe that it has happened. I would choose with care the cases where the law was being developed significantly, probably in areas that affected private persons or corporations and did not engage the interest of the state directly.

Mr Soley

If you were advising a country that was newly emerging from a period of authoritarian rule on its constitution, would you recommend the way in which we do things or a more traditional administration of justice?

(Lord Irvine of Lairg) I have visited all the accession countries, or the majority of them: Poland, Hungary, the Czech Republic, Slovakia and so on. I have discussed the need for judicial independence and the rule of law. They have all emerged from authoritarianism and from cultures that did not respect the rule of law or judicial independence. I would not prescribe the office of the Lord Chancellor to them. The more all the elements of a democratic government, the rule of law and the independence of the judiciary are accepted, with courts standing between citizens and the state, the better. I would say that for countries emerging for the first time and trying to gain the attributes of a mature democracy, a much stricter doctrine of separation of powers would be appropriate than is appropriate for us who represent a very old and well-founded democracy in which those values are well understood and upheld. Before we propose any change to fundamental arrangements of this kind, I think that we are entitled to ask whether the world and Britain would be better if we made those changes. We do not want to make changes for the sake of it or for academic reasons or to conform to some kind of universal paradigm of how we manage our affairs, but we should look to see what works. A few years ago in Ireland, there were major articles in the Irish newspapers saying that they wished they had a Lord Chancellor who would sort out everything. I accept that that is a view.

Let me make it clear that I am not convinced in my own mind that we need a supreme court, but I am interested in why the Law Lords should sit in the legislature. When they become Law Lords why do they take any further part in the proceedings except in their judicial role? In effect, you would then have a form of supreme court without all the trappings.

(Lord Irvine of Lairg) The answer to all these questions is that that could be the case. The question is whether the present system is a good system. It was considered by the Wakeham Royal Commission, the most recent authoritative consideration of the issue. That concluded that the Law Lords make a positive contribution to the work of the House of Lords; they chair and serve on committees. The report sets out the committees on which they make a huge contribution and it goes on. Recommendation 57 was that they should continue to be Members of the House of Lords in the fullest sense. There is no doubt that they make a major professional contribution to some of the specialist work of the House of Lords in its legislative capacity.

Is it not more likely that they will be called into conflict with Article 6?

(Lord Irvine of Lairg) Lord Bingham, the senior Law Lord, made a statement in the Chamber setting out the principles that the Law Lords will apply in deciding to which debates in the Lords that they would contribute. He said that he did not think it appropriate for them to engage in matters where there is a strong element of party political controversy and he said that they bear in mind that they might consider themselves ineligible to speak if they were to express an opinion that may later become relevant in an appeal to the House of Lords in its judicial capacity. They have that well in mind. Another point is this business about a new supreme court. A new supreme court means a building. That would be highly desirable if the funds were available and priority could be given to it. We could have a fine supreme court building somewhere in the heart of London of major architectural merit. I dare say we would all applaud that idea. But the judges have been very careful to say - they said it in the evidence to the Wakeham Commission - that in their judgment it would not make a bit of difference to the role of the Lord Chancellor because the Lord Chancellor would still be the president of the new supreme court.

I am not convinced of the need for a supreme court and a separate building.

(Lord Irvine of Lairg) I am convinced of the need for other court buildings up and down the country.

I am interested in the blurring of the role of the Law Lords. It seems to me that because they take such an active role in the second chamber that their role becomes more blurred than is healthy. In a way, you had examples of that in the Pinochet case. I suspect that the problem for one member in that case, which had to be reheard, was because he had links with Amnesty. I suspect that he would not have such a role with Amnesty if he acted purely in a judicial role as opposed to being seen asa legislator in the House of Lords. Often organisations such as Amnesty want a Member of the Lords to take a wider role and they would not necessarily if they were Law Lords per se.

(Lord Irvine of Lairg) Firstly, Law Lords do not take an active role in the House of Lords in the sense that you have expressed. They speak very rarely, and usually in debates that concern the administration of justice where they have a unique and specialist contribution to make. They also carry out terrific work on specialist committees. There is no doubt that they add to the quality of the service that the second chamber provides. They sit on the Joint Committee on Consolidation Bills, the Ecclesiastical Committee and they do a very important job on Sub-Committee E which deals with the law and institutions of the European Union. They bring to the work of that committee inestimable skills and experience. I note what you say about the Pinochet case. My belief is that Law Lords, because of the prestige that attracts to the supreme court judge in any country, would be very likely to be invited to be a trustee of a charity or whatever, even if not a Member of a legislative chamber. I had forgotten the facts about the Law Lord in question, but I do not believe that he was even a trustee. I think he had an association through his wife with Amnesty International. No one thought of that Law Lord that he was in any way biassed. It was simply that there may have been a perception of unfairness as the Law Lords decided in the course of the case to allow certain civil liberty organisations like Amnesty to address them. It was an unfortunate affair, but I do not think that there are any permanent lessons to be learned from it, other than that you have to be very careful not to sit in an appeal where there may be a perception of unfairness, although no unfairness would take place in fact.

The fact that you have to spell it out in some detail like that suggests that the blurring between the role of the Law Lords as law officers and their role as legislators is actually prone to accidents, and probably more so than your role.

(Lord Irvine of Lairg) In a whole century, that never happened. What happened in relation to the Pinochet case was an absolute one off. Of course one has to draw a lesson from it. A system that produced one remedial mistake at the highest level in 100 years is, in my book, a pretty good system. I also urge on you that the product of the system is our judges. They are internationally regarded. They are of the very highest quality. They are regarded as incorruptible and you cannot cite any example of a bribe to a judge in this country in 100 years. We have a very, very high quality system which rests on customs, conventions and traditions that are special to us. You should only interfere with them if you are absolutely sure that you can produce a better product as a result.

Chairman

A distinguished Law Lord expressed an interesting view on some of the subjects of today. (Lord Irvine of Lairg) That was Lord Steyn.

Yes.

(Lord Irvine of Lairg) Yes. There are many, many views to the contrary.

I thought that the expression of unanimity in your comments could be corrected.

(Lord Irvine of Lairg) The Council of Judges speaks on behalf of them. We must not convert a one-person minority into a majority.

Peter Bottomley

Lord Chancellor, when judges sit together to deliver their judgments, they do not have to agree. No one would assume that any other Law Lord would ever vote for something that he thought was wrong. You, as a Cabinet Minister, like Cabinet Ministers in the Commons, have to vote in the way that the Cabinet decides. I do not ask you for examples as I do not want to personalise the matter. Does someone in your position, as the leader of the judiciary, occasionally have to vote for things that one knows are wrong and against things that one knows are right?

(Lord Irvine of Lairg) Do you mean in my capacity as a Cabinet Minister or as a judge or a Member of the House of Lords?

As a Member of the House of Lords.

(Lord Irvine of Lairg) Anyone who is a politician, who is a Member of the Houses of Parliament and who abides by a party whip has to accept all the compromises that are associated with not being a single individual, but with being a member of a party. Of course, that is true. I would not like you to think that when judges come to a judgment that there are not necessarily intellectual compromises as well in order to arrive at a single judgment. Of course there are majority judgments and minority dissenting judgments, but often we have unanimous judgments. You believe in fairy tales if you believe that there are not compromises lying behind a single judgment arrived at by a court of three or five judges.

Ross Cranston

I am interested in some of the practical issues rather than the highfaluting constitutional issues. Therefore, I want to ask you about access to judges. Perhaps I can ask a practical question about the Law Lords in terms of their facilities. They are on the Judicial Corridor; they do not have a separate library, although there is a library. Would a separate building provide them with better resources? They now have judicial assistants.

(Lord Irvine of Lairg) Of course, a separate, well-appointed, supreme court building would make them very much happier and it would be a public building of great importance in the heart of London.

Mr Soley

It would add to your supplementary estimates.

(Sir Hayden Phillips) I was with Lord Bingham in Washington and we went to the Supreme Court and he was quite taken with it.

Ross Cranston

Is there any future for a separate building?

(Lord Irvine of Lairg) There is a future for anything, but there are no present plans for a new supreme court building.

Mr Field

Given your parties great desire to ensure that we have a broadening out of all the regions - even in the quiet corridors of the Cabinet you agree with that perhaps - the supreme court building could be put in another city such as Durham. I am concerned about some of the cases that have come through and surely the issue in the Lord Hoffmann case was his failure to declare his interest. One may argue that it was deep-seated arrogance that suggested that he did not need to declare his interest. You have been very selective in your quotations from the Wakeham report, which also suggested that there should be some elected Lords, a position that you held and then decided not to hold a matter of months later. We are now in a state of flux, not least with what is happening in the House of Lords. Where do you see the end game on this, or is your view that there should be a brake on these grand constitutional reforms that have happened in the country in the past six years and that you should maintain aspects of your position as Lord Chancellor and all your many successes?

(Lord Irvine of Lairg) There are three parts to your question. First of all, I am sure that Durham would be absolutely delighted at the suggestion that a new supreme court should be housed there, but I have to say that I believe that London is the more likely candidate. You should also know that the Court of Appeal from time to time sits out of London; and the administrative court sits from time to time out of London. It is well recognised that sometimes, because of the importance of the case to the locality in question, the court should move to the locality rather than the locality to the court. I support that. I do not accept, as far as Lord Hoffmann is concerned, that it was anything other than an oversight. We can all be guilty of oversight. I have no doubt that he did not think of it. One of the reasons why he would not have thought of it is because he would have believed, as I would believe - you might say it is arrogance - that it is inconceivable that he would have acted other than as a judge, fairly. Anyone knowing him would not have thought otherwise. The issue of House of Lords reform is stretching the remit of the Select Committee. However, I would say that there is a Joint Committee of both Houses of Parliament that is addressing these issues. My understanding is that it will produce an interim report that will indicate the areas where they intend to continue to consider.

Chairman

Anything that is in your remit as Lord Chancellor is within our remit, including Lords reform.

(Lord Irvine of Lairg) That is the most alarming thing to have come from you all morning.

Keith Vaz

You have been Lord Chancellor for six years. What would you say is your proudest achievement and what is your biggest regret?

(Lord Irvine of Lairg) It is not for me to judge what are the biggest achievements. That is for others to say. What gave me personally very great pleasure - that is not necessarily the same as achievement - was to chair the Cabinet committees concerned with the constitutional reform programme, devolution, freedom of information, human rights and House of Lords reform. I regard the Human Rights Act potentially as a major monument of this Government. What is my biggest regret? I make it my business not to have regrets and to get on with the job.

Turning to judicial appointments, we have heard of your role in the Cabinet and the fact that you are a senior member of the Government. We have heard in evidence today of your role in the Government and in the Cabinet. You chair many Cabinet committees and you are a close confidante of the Prime Minister. Is it right that someone who is as political as yourself should be making judicial appointments?

(Lord Irvine of Lairg) You have to consider the alternatives. All major English speaking countries locate the power for judicial appointments in the executive. If that activity were out-sourced to a quango, the quango would be seen by many as bypassing the democratic process. Do not forget that I am accountable to Parliament for the overall quality of the judiciary and all the rules that we apply in relation to appointing judges. I also think that if it were out-sourced to a quango, there would be a real risk that that quango would become politicised in the sense that appointments would be made not exclusively on merit, but on the basis of compromise and process. If it were a body dominated by the judiciary, it would be said to be a self-perpetuating judicial oligarchy. If it were a silk system, it would be dominated by the profession and the attack would be that lawyers were feathering their own nests and handing out honours to themselves. I think, although the contrary is arguable, that appointments of judges by the executive is seen as an important safeguard of quality and integrity. I recognise that the contrary can be argued.

Sir Iain Glidewell= s report published in March 2003 takes the opposite view. It stated: A We have concluded that it has become politically unacceptable for High Court Judges to be appointed in effect by a Member of the Government of the day and that in future appointments to the High Court Bench should be the responsibility of a new, high calibre, independent High Court Appointments Board@ . Surely people of merit can be found to sit on that body. Are you really the only person who can do that?

(Lord Irvine of Lairg) He was recommending a board chaired by a retired judge. You have to bear in mind that most appointments commissions are dominated by the judiciary. Therefore, that would be exposed to the criticism that it is a self-perpetuating judicial oligarchy, without any kind of democratic accountability at all. I noted his opinion; it is one opinion among many.

Why did you not decide to go out to consultation on the idea of the appointments commission? The report was before Parliament in October last year. It is now April.

(Lord Irvine of Lairg) What report?

The commissioner= s report. We have had no consultation since then.

(Lord Irvine of Lairg) Let me take it in stages. Often in the past I have said that I do not exclude the possibility of a judicial appointments commission and that I may go out to consultation, to people who really commit themselves as to whether this is what they want. I think that there are powerful arguments against that. I know that many people would be strongly opposed. Never mind what Sir Iain Glidewell says, many people would be strongly opposed and would say that that measure of responsibility should not be out-sourced to a quango, but should remain the responsibility of a Minister accountable to Parliament. That is a significant argument. As you have mentioned a commission, the other thing that I want to mention is that we must not confuse what such a commission will be. Since May 1997 I have been working as hard as I can to make the existing appointments system of the highest quality that has ever been achieved. The most important thing is the commission to which you refer. I have subjected our appointments procedures to rigorous assessments by a supervisory commission - call it an appointments commission, but it is a supervisory commission - but that makes the existing appointments procedures as transparent as any system could conceivably be. The commission is free to see every piece of paper, to consider every assessment, to attend every interview, to attend every meeting that I have with the higher judiciary to discuss the merits of candidates for the Bench or silk. It reports annually and independently. I can think of nothing more open.

But judged by your own criteria of trying to make the judiciary more representative, you have been a complete failure. Perhaps I can draw your attention to an article in The Times, which said that 98 per cent were male, 87 per cent went to public school, 90 per cent went to Oxford or Cambridge and 38 per cent achieved a full house being white, male, public school and Oxbridge educated. That is a complete failure for a Labour Government.

(Lord Irvine of Lairg) I do not believe that. I would like a judiciary obviously that is much more representative of the community as a whole. However, the problems lie further back in the appointments system. We have an appointments system that operates on merit. If we went over to a judicial appointments commission in the stricter sense, which would be advisory for the Government or would make the appointments itself - there is a broad distinction in that - I would hope that the statute would say that it made appointments on the basis of merit. But if you are a disappointed litigant who thought that the judge was no good and you were told afterwards, A Yes, that judge is not much good, but of course it was a man= s turn that day@ , or A it was a woman= s turn that day@ , you would be opposed to that. I am totally opposed to quotas or anything of that sort. The education system and the profession= s willingness to go for merit across the broadest possible sphere mean that the system will improve over time. Unless you are challenging the merit principle, I do not know what more to say.

No, I am not challenging the merit principle. I am using your own words that there are not sufficient women or black and Asian people of merit to make an impact on the high judiciary.

(Lord Irvine of Lairg) That is not the case. I think that there is an enormous number of women and members of the ethnic communities in the pipeline who will become circuit judges and High Court judges in the future. The point that I always make - obviously I have failed to get it across - is that the judiciary today or the new appointments to the Bench represent the profile of the profession of 20 or 25 years ago because our judges are appointed from those who have been practitioners in the law for 20 to 25 years. Although men and women enter the legal profession in equal numbers today - 50:50 - that was not so 25 years ago. Women and members of ethnic minorities are doing extremely well against that standard.

When can we have a timetable for consultation on a judicial appointments commission? This has been sitting around since October last year.

(Lord Irvine of Lairg) I do not know that I have been sitting on it. I do not follow that.

You promised consultation.

(Lord Irvine of Lairg) I have never promised consultation.

You have not ruled it out.

(Lord Irvine of Lairg) I have not ruled it out.

Are we going to see it happen?

(Lord Irvine of Lairg) It is perfectly possible that a choice can now be made by people as to whether they want a different system. Therefore, they would be invited to choose between the existing system, which I think has been brought to as good a state as it can be, and an alternative.

When may we have that choice?

(Lord Irvine of Lairg) What I am about to say is that I am minded to put these issues quite soon to the test. I am prepared to conduct a wide consultation. It will be part of a single, integrated programme of work. It will extend to the possibility of a judicial appointments commission; it will extend to the manner of the appointment of Queen= s counsel; it will extend to whether the status of Queen= s counsel should continue to exist or not; and it will extend to whether the existing court dress should remain or be changed. Therefore, I am not disappointed in you, Mr Vaz - the last thing that I would wish. But I want to emphasise one thing: I have no concluded view. I am well aware of the argument, but I have no concluded view on any of those three very important issues. However, I am saying that we shall be consulting on that very shortly.

Your statement is very helpful. You have listed the achievements of your department over the past six years. Why do you think that the department has had such a bad press over the past six years over certain issues? Do you think that it is a case of the media being beastly for the sake of it, or do you think that it is a case of the way in which your department presents the achievements?

(Lord Irvine of Lairg) I would never say that any of the critics are beastly. On the contrary, I would say that it is our failure to get our position across.

(Sir Hayden Phillips) I do not recognise the picture that Mr Vaz has painted. If you followed through what the press has written about the way in which the department has developed and is developing, you would find that on the whole it is a pretty good story.

Chairman

Did you mean to exclude Scotland from the significant English speaking countries when you talked about those that have not chosen to have a judicial appointments commission?

(Lord Irvine of Lairg) I suspect that we are in the dying minutes. We know what the Scottish Parliament and the executive have decided. I will not take up time telling you about the many concerns that are entertained by many people in Scotland about that system. However, it is important to appreciate that Scotland has a separate system. Every legal system has its own traditions, customs and practices that have to be continuously appraised and justified for circumstances as those circumstances develop. But you must not go over to some fancy new system for the sake of theory or academic purity when we have never been a nation of purists but of pragmatists. You look to see whether anything that is proposed would be better in practice than what already exists. As I have said to you, Mr Vaz, I think that these are issues that have been around for a long time. I believe that our system has been brought over the past few years to the best state that is reasonably achievable with a system of this kind. People will have to choose whether they want something different and express their views and express them as cogently as they can.

We wish that to be the closing note of today= s session. We expect to see you and Sir Hayden again before long on a range of topics.

(Lord Irvine of Lairg) And I expect to see you on the same basis very shortly.