- Commons Reasons
- 1:32 pm
- Relevant document: 13th Report from the Constitution Committee
- Motion A
- That this House do not insist on its Amendment 1, to which the Commons have disagreed for their Reason 1A.
- 1A: Because the Commons consider that eight years is a balanced and appropriate approach to ensure that parliamentary constituencies are updated sufficiently regularly.
- My Lords, in moving Motion A, I will also speak to Amendments 2, 6, 7 and 8, on which I shall also beg to move that the House do not insist on those amendments, to which the Commons have disagreed.Amendments 1 and 2 provide that a boundary review would be carried out every 10 years. The Commons have opted to disagree to these amendments, as eight years is deemed a better balanced and appropriate approach to ensure that parliamentary constituencies are updated sufficiently regularly without disruption to local communities and their representatives.The Commons disagree to Amendment 6, which proposes a bespoke appointment system for boundary commissioners. The Commons consider that the existing public appointments system and the requirements of Schedule 1 to the Parliamentary Constituencies Act 1986 are sufficient. The public appointment system used to recruit commissioners is robust and has led to the appointment of impartial and effective candidates for decades.The noble and learned Lord, Lord Thomas of Cwmgiedd, has since tabled an amendment in lieu on this topic, which we will return to in more detail later. However, I wanted to take the opportunity at this point to thank the noble and learned Lord for his constructive and positive approach to engaging with me and officials, and indeed other senior Ministers in the Government, on his amendment throughout the passage of the Bill. It was a model of the approach for a revising Chamber.We have had many conversations at every stage since this Bill entered the Lords and have thoroughly debated the aspects of the amendment. Even though the Government were unable to accept the noble and learned Lord’s amendments, I hope he has found our exchanges of a good nature and believes that they have resulted in reassurances that made them worth while.Under Amendment 7, the number of voters in each constituency would be permitted to vary from the UK average by plus or minus 7.5%, which equates to a total tolerance range of 15%. The Commons—the elected House—consider that the existing law on this matter, that of a tolerance range of 10%, is sufficient to ensure equal parliamentary constituency boundaries.
- My Lords, I begin by thanking the Minister for the courtesy and pleasure, if I may say so, of being able to debate the issues that lay behind the original amendment I put forward. I am extremely grateful to him for the courtesy and the trouble to which he has gone, and to his officials, who went beyond their ordinary tasks even in these most difficult times to help me.I have put forward today an amendment to the original clause that was carried by this House. It is plain that the original clause would have brought about a better appointment system, but the decision has been made by the other place that they do not agree. As regards the amendment I have tabled today, it deals with a narrow and specific point of some constitutional importance. That is why I have put the amendment forward: to amend the clause on a very narrow basis.However, I wish to make it clear now that I do not intend to press this amendment to a Division because, in the ultimate analysis, it must be for the other place to accept it. However, given the times in which we live, I think it is important to record the matter formally, because it may turn out to be of great importance in the future. As regards the more general points, they are of very considerable relevance at the present time. Although in what I have to say I will be a little critical of the Government, I wish to make it abundantly clear that anything I say in no way criticises the present Secretary of State and Lord Chancellor. This is a more general point, directed at the Government as a whole, now and for the future.The amendment today, on this narrow point, has the objective of bringing the provisions for the appointment of the deputy chairman of the Boundary Commission into line with the principles of the Constitutional Reform Act 2005, which changed the position of the Lord Chancellor. Noble Lords may recall that the debate on the position of the Lord Chancellor was an extensive one. There were very detailed discussions between the judiciary, at that time led by the noble and learned Lord, Lord Woolf, and the Department for Constitutional Affairs led by the Lord Chancellor— as he then truly was—the noble and learned Lord, Lord Falconer of Thoroton.
- 1:45 pm
- I am afraid that—as I shall explain in a moment—I must disagree with that last answer. Having received those answers drafted by his officials, I considered the matter of such constitutional importance that I asked the Lord Chancellor to confirm that he agreed with those answers, and that confirmation was given. I was told that he wanted it noted that the role of a constituency MP and Lord Chancellor were separate, and that the Lord Chancellor would always have to act consistently with public law principles.
- To turn to an analysis of those answers, it seems quite clear that it is accepted—as the Government had to accept—that the Secretary of State for Justice and Lord Chancellor had an interest in the decision to appoint a deputy chair, as a decision is being made about his own constituency. The position is plainly different. This is a decision in which the person selecting the chairman has a direct interest. It seems quite clear, therefore, that the decision of the Lord Chancellor to appoint a particular judge is susceptible to judicial review. Obviously, one cannot predict what will happen in the future, but there must be a real risk that an appointment could be challenged, either when made or, more seriously, subsequently. It would be said that it was impossible for someone who had such a conflict of interest to make a fair and impartial decision and, as importantly, to be seen to make a fair and impartial decision.
- The real risk here is for the future. Let us just assume that the Lord Chancellor does this: the Boundary Commission is appointed, someone is disappointed or unhappy with the result, the decision of the Government that it is for the Lord Chancellor to make this decision would provide a perfect means of bringing a judicial review of the appointment of the deputy chairman. This would risk—to my mind a matter of great regret—leaving the decision of the Boundary Commission open to challenge by an attack on its deputy chairman. That would be a very serious inroad into this new system, with which otherwise I entirely agree.
- The decision to proceed on that basis is justified by the reason that the Lord Chancellor has an role in the appointment of judges but, as the parts of the amendment that I am not speaking about today make clear—because those parts were modelled exactly upon the way in which judges are appointed—the role of the Lord Chancellor is extraordinarily limited. He can ask the appointers to think again or he can give reasons for rejection, but those reasons must be in writing. Of course, if the Lord Chancellor had any role whatever in the future career of a judge who he would be entitled to appoint to be deputy chairman, there would be a serious risk of impropriety. Some would be able to say, “He appointed Judge X; Judge X knows what may happen in the future and knows the Lord Chancellor could advance him” and therefore his decision would not be an acceptable one.
- The Lord Chancellor and Secretary of State for Justice has been kind enough to write to me to confirm one matter on which the Government have relied—the practice that has hitherto existed of the Lord Chief Justice being consulted. I shall return in a moment to the way in which this is put. I am grateful to the Lord Chancellor for confirming that, although there is no statutory requirement, he gives an assurance,
- “that I will commit to the Lord Chancellor formally consulting the Lord Chief Justice on all future appointments.”
- However, that does not deal with the question of principle, which is clear in the Constitutional Reform Act that it is for the Lord Chief Justice, as head of the judiciary and the person responsible for the allocation of responsibilities in deployment, to make the decision. The consultation should be the other way around. This course of action that the Government are taking is in flagrant contradiction of well-established constitutional principles laid down in the Constitutional Reform Act.
- I do not understand that, because the reasons given so far in this House and the other place, and by the Lord Chancellor, do not explain why there is to be this departure from principle. One inference could be that there is something to be gained from it. I do not understand what that could be, but of course I am not really involved in politics, so I am not sure why this is being insisted on. Possibly it could be said that the principles in the Constitutional Reform Act are somehow inapplicable. I do not understand that either. Or, more seriously, there may not be a commitment to the principles of the Constitutional Reform Act that underpin the independence of the judiciary and, as I shall explain in a moment, the rule of law. By insisting on retaining the position and not following the clear constitutional principles, Her Majesty’s Government are wrong in what they seek to do. It is a potential attack on the independence of the judiciary and thus corrosive of the rule of law.
- I need not say much about that, because this House is well familiar with the attitude to the rule of law, having only recently had to consider Part 5 of the United Kingdom Internal Market Bill, which, I will just add, has damaged the position of the judiciary in the UK. In the position I have, I am in at least weekly contact—possibly more frequently—with lawyers and judges across the world, and it ought to be clear that very substantial damage has been done by Part 5 of that Bill. People who had always highly respected our system were deeply shocked at the Government’s decision to abnegate the rule of law.
- Now, apart from the question of the views that others take of us, it is also quite important to realise how damaging it is when we turn away from the rule of law.