I am very pleased to have the opportunity to talk to you this morning. I want to talk to you about the constitutional reforms, and about the interim position.
First, the constitutional reforms. Could I concentrate on appointments, and the abolition of the office of Lord Chancellor? The Supreme Court is just as important, but is an issue for another day.
Over the months since the reforms were announced I and my officials have worked very closely with the senior judiciary, particularly Harry [Lord Woolf], developing the detail of the changes to ensure outcomes which are acceptable to the judiciary.
I believe that the objectives of the changes must be, four things:
Embedded, enduring independence
High-quality judges
Good working relationships between the judiciary and the executive, in particular on the resourcing and administration of the court system
High public confidence in the judiciary
And the purpose of the changes must be to improve on the current arrangements, otherwise they would be not be worth making.
I want to say a little about the wisdom of the changes, and why we are making them. I will also describe some of the main attributes of the system which will replace the current arrangements. The detail of these arrangements for the future is vital. Now is not the moment to go through those arrangements. I am discussing them in detail with Harry and others in the senior judiciary, and he will speak about that later.
The announcement represented the expression of a political judgement that the time had come to make fundamental changes in the arrangements. Whilst many people have commented on the handling of the announcement, I believe that the political judgement - and ultimately this is a political judgement - was right. The time it takes from announcement to the Act passing (if Parliament agree) will be about 18 months. I believe this is long enough, and gives us time to work with stakeholders to ensure that the detail of the changes is as reassuring as possible. The alternative would be to extend the period by over two years. People would not want a continuing period of uncertainty.
First, the justification for the changes.
I will start with appointments. It is clear that the current appointment arrangements do not reflect a traditional separation of powers. But they have nevertheless produced in recent decades a very high quality bench, in whom the public has confidence. So why change them? Because they do not reflect the reality of what is happening, and because they could be better - and I mean better in outcome.
The merit principle has been central to building up a bench of its current quality. That principle must be enshrined in statute, and it should be the only one enshrined in statute.
The process by which judges are appointed has, particularly below the High Court, become (as it has to) increasingly methodical - advertisement, interview, assessment centre for some appointments, introduction of a non-legal element in the assessment of candidates, and improving methods of consultation. To be effective, those more methodical methods of appointment have to be followed. It is neither possible nor right in the long term that a political appointee (albeit one always acting in good faith) should be able to cut across that system to appoint who he or she thinks is right. Although I have on occasions rejected the views of the panels engaged in the appointment process for appointments below High Court level, I have only done so for cause - normally where either the Presiding Judges or the Heads of Division have identified good reason for doing so.
To replace the top of the apex with a commission made up of a mix of judicial knowledge, legal knowledge, and human resources experience will, I believe, provide continuity, consistency and a greater ability to challenge the method and conclusion reached in an individual case. It is both right, and a better reflection of the way the system is currently operating.
For High Court appointments, a very different approach is, in practice, taken. There are obviously fewer of them. They are also without doubt the most important appointments, since the High Court and above determine the judicial tone and quality for the whole system. They are also very difficult appointments to make. Having done it for six months, the decisions seem always to be about which among very strong candidates to choose. There is no shortage of very able and willing candidates. Again we have sought to make the appointment process more methodical. There is advertisement, though my predecessor and I reserve the right, in my view correctly, to appoint those who have not applied, and frequently do so. We have sought to improve, and make more consistent the method of consultation. Many of the things we do for appointments below the High Court we need to do for the High Court (though probably not for the Court of Appeal or the Heads of Division). Whilst those changes could be introduced whilst still retaining the Lord Chancellor to make the decision, that would neither reflect the way it should be done, nor would it incorporate the more effective method of challenge I have identified with the appointments below the High Court.
Leadership on judicial appointments should come from a group made up not just of the senior judiciary, but also from people with experience of appointments, and from the groups from within which appointments will be made. This will improve the process, and therefore improve the outcomes. And it will better reflect the separation of powers. A member of the cabinet should not make the appointments. Nor should one senior judge. Currently that is the position.
But it is I think worth emphasising that to obtain these benefits three conditions must be satisfied:
First, the merit principle must continue to apply. It must be specified as the determining feature
Second, judicial input into the selection must be high at every level, because judges know more than anyone about what makes a good judge
Third, the independence and quality of the commission must be assured.
The process of appointment should not become wholly divorced from the executive. There are two reasons for this. First, the executive inevitably retains parliamentary accountability for the appointment of judges. Whilst their influence on individual appointments should be limited, there are areas where they should have some say - for example, to prevent the Judicial Appointments Commission following a course which might be perceived as politically correct but not at all sensible. And second because our system works best when the executive and the judiciary have a mutual understanding and respect. There will always be disagreements between the judiciary and the executive, because one of the most important areas of cases will be those where the judiciary is policing the executive. The executive needs a stake in the people appointed to the bench. This can be achieved by the executive having limited rights to make the Judicial Appointments Commission think again, as long as there is good reason to do so (and the Secretary of State would under the new arrangements always have to give reasons).
Second, the abolition of the role of Lord Chancellor. The constitutionally anomalous role of the Lord Chancellor is well known to all of you. If you were going to separate the state into constituent parts in order to preserve the independence of the judges, you wouldn't start from here. But your concerns will be based more upon operational effectiveness than reasons of constitutional neatness. The arrangements, some argue, have worked to provide an independent and well-run judiciary (if that is quite the appropriate phrase), and what will come in its place? What is the justification for changing it?
Let me answer those points. The Lord Chancellor currently speaks for the judiciary at the highest levels of government. He defends their independence, and he is responsible for judicial discipline, deployment and administration. He is the head of the judiciary, and he is responsible for providing leadership for the judiciary. His role is of crucial significance to the position of the judiciary in our constitutional arrangements, and also to the day to day conduct of the professional lives of the judiciary.
But he is also now the ministerial head of a significant department of state responsible not just for the administration of the courts and legal aid, but also for politically sensitive issues such as human rights, freedom of information, methods of election, devolution, and constitutional affairs.
His increasing ministerial responsibilities have also been accompanied by two other trends. First, the increasing distance between the law and politics. Professor Stevens of University College London gave evidence to the Constitutional Affairs select committee at the end of last year. He said "in 1960, 25% of the judges had either been MPs or candidates. Today virtually none, perhaps none of the senior judiciary". Law and politics have become separate careers. In 1950 there were three times as many QCs in the commons as there are now. The Attorney General has for the last four years been taken from the Lords. Irrespective of the changes announced on the 12 June the Lord Chancellor had sat less often in the House of Lords. And rightly so. His role does not permit him to provide the degree of concentrated effort that sitting in the judicial House of Lords requires.
Second, the public requires more of its governments. Crime, for example, is no longer thought of something beyond the reach of governments. Sentencing and the role of the courts is becoming an increasingly contentious political issue. The judiciary have, quite sensibly, not sought to be out of step with the direction of travel in this respect, but frequently have real concerns - often of a policy nature - as to what will most effectively produce the outcome most effective in reducing re-offending. A good example is minimum sentences. Many of the judiciary are opposed to them, not because they have a principled objection but because they think they are ineffective in reducing the relevant crime.
Picking up those two points, there is therefore a reducing number of lawyers engaged in politics, and an increasing expectation about what may be achieved by judges and the courts in relation to crime, and other areas of judicial activity - family disputes, judicial review. These trends have been reflected in increasing tensions between the judiciary and the executive, which have often manifested themselves in tensions around the role and conduct of the Lord Chancellor.
As I have mentioned, recent Lord Chancellors have increasingly been subject to criticism from the media, from the public, and from the professions. Rather than implying criticism of their integrity or ability, this is indicative of the growing tensions between the roles of senior judge and politician. This tension has been particularly acute as the demands of the political role has often placed Lord Chancellors in conflict with the legal world. Lord Hailsham, for example, faced enormous criticism from the professions - and a judicial review - over legal aid. Likewise James Mackay over rights of audience. And Derry's increased political role as the chair of the Cabinet's main constitutional committee, dealing with controversial constitutional reforms, also increased the tensions with his judicial role.
That is the background against which we need to look at the continuing existence of the Lord Chancellor as the bridge between the judiciary and the executive.
The increasing tensions, coupled with the decreasing presence of lawyers in Parliament and the executive could, on one view, argue for the continuation of the role - in an era of increasing tension to have as the bridge someone who understands both points of view. The contrary view is that it is time for there to be a clarification of the position so that the Lord Chief Justice becomes that which he is in all other countries - unambiguously the leader of the judges, the person they look to express their point of view, to engage with government and, where necessary, with the public on issues which affect the standing of the judges, and on other policy issues in which judicial resolution is important.
Both as a matter of analysis and from seeing the arrangements work in practice - not just over the last six months but over a period of six years in government - I am strongly of the view that it is time for the Lord Chief Justice to become the constitutionally acknowledged leader of the judges.
There are a number of reasons for this. First, unlike the Lord Chancellor, there is no conflict in the Lord Chief Justice fulfilling that role. He has an unambiguous function as a judge without political responsibility. He will not be confronted with the dual responsibility of being the leader of the judges, and complying with the requirements of collective responsibility.
Second, the power of the Lord Chancellor in defending judicial independence comes from the authority he carries as head of the judiciary and the holder of the third office in the land. In today's world, greater authority will attach to the person who through a process of selection on merit and service as a judge has emerged as the top judge - authority attaches to the person who best suits the role. I believe that the acknowledged chief judge should be just that. Not someone who is part-politician and does not sit as a judge.
In recent decades there have been very considerable flash points between the judiciary and the executive, some of them public some of them not. In some cases it has been appropriate for these disagreements to become public. On other occasions it has not, because they have been resolved satisfactorily to the judiciary before policy has been formed. In these very significant areas, my experience has been that it is the intervention of the Lord Chief Justice, and other members of the senior judiciary that has made the difference. The Lord Chief Justice should have the authority, and the greater authority of his role will more than make up for the fact that the head of the judiciary is no longer in Cabinet.
Third, the removal of the Lord Chancellor will allow there to be a sensible demarcation of functions between executive and judiciary, which currently does not exist. The judges should have more say in the administration of the courts. They should have an exclusive responsibility for the deployment of individual judges. They should have a formal role in the disciplining of judges which ensures the executive cannot discipline judges without the concurrence of the judges, but the judges aren't left to do the disciplining alone.
I strongly believe that we have reached an inevitable point in the development of our constitution where the Lord Chancellor has to step aside as head of the judiciary and let the Lord Chief Justice undertake the role which he will be much better able to fulfil than the Lord Chancellor - namely to lead the judges with the authority which comes from being appointed exclusively on personal merit to become the chief judge. The world will understand that it is right, and our constitutional arrangements will become clear and explicable as a result, not just to the few of us who work them but to the many that live under them.
In the future, the Secretary of State for Constitutional Affairs plainly will not be the head of the judiciary. He may not even be a lawyer. He is likely to be in the commons. That will put him in the same position as all other equivalent ministers in similar democracies. He will not last long in his role unless he establishes a good relationship with the judges. He will be under specific statutory duties to preserve judicial independence. And that obligation needs to go beyond him, or her. It will not take long for effective arrangements to come into existence in which the views of the judiciary will become well known to the politicians. The Lord Chancellor's authority has, in the past, come from the fact that he speaks for the judges; that he expresses their view. The critical aspect of that has always been accurately expressing their views. The way he has enforced that view has always been the ultimate sanction of making public his disagreement with the policy, and in extreme cases by the threat of (and then the actuality) of resignation. The deployment of these sanctions is both available to the Lord Chief Justice, and in most cases more devastating in prospect.
No future Secretary of State will last long in post without developing a close understanding of the judicial and legal worlds, and working closely with you. But it is not necessary that he should be a judge, or from a legal background. I recall that there were some doubts when an Act of Parliament was passed as to whether the Lord Chancellor could properly be supported by a Permanent Secretary who was not a lawyer...but Hayden seems to have muddled along. In fact quite a lot of people in this room would say that he has rather a good understanding of the legal system!
While the changes proceed, I am proud to serve as Lord Chancellor. I aim to carry out the functions and duties of my office with the diligence and integrity of my predecessors. We face a number of challenges. We must continue to improve the appointments process before the Commission takes responsibility. We must ensure the courts run as effectively as they can. And we must set up the new Unified Courts Administration.
Thank you very much.