On Thursday February 12th, there was a debate in the House of Lords (parliamentary chamber) on the proposed changes to the judicial system.

bq. The Secretary of State for Constitutional Affairs and Lord Chancellor (Lord Falconer of Thoroton) rose to move, That this House takes note of Her Majesty’s Government’s proposals for a United Kingdom Supreme Court, an independent Judicial Appointments Commission and the abolition of the office of Lord Chancellor.

Incidentally, the debate includes the maiden speech of Lord Cullen of Whitekirk, who was made a life peer in June 2003. As Lord Justice General, he is the chief judge of Scotland, a new one on me (but probably not to Adrian).

Frances Gibb, in The Times Online, in its law section (Tuesday, February 17th; registration should still be free of charge) summarizes the main points of dispute in an article entitled ‘Why wait 1,000 years and then rush the job?’

From the debate, Lord Lester of Herne Hill on appointing judges:

bq. It is also essential to avoid political patronage, or anything like the “advise and consent” system in the politically polarised Senate of the United States, in which, during Clinton’s presidency, the Republicans held up more than 60 nominees to the federal judiciary. As my noble friend Lord Goodhart has pointed out, the Government’s recent suggestion that the Supreme Court appointments commission will recommend a minimum of two and a maximum of five to the Secretary of State for Constitutional Affairs is unacceptable. In England and Wales, we believe that only one name should be recommended by a broad-based independent commission for acceptance or rejection for appointment to the Supreme Court, in our quasi-federal system of law and government.

bq. Plainly, appointments to the senior judiciary should be drawn from a more diverse pool of well qualified candidates than at present, in terms of the different legal systems of the United Kingdom as well as gender, ethnic spread and range of experience and practice. However, that can and should be done by the appointments commission and not by politicians. The under-representation of women has long been an unacceptable feature of the system. Justice Ruth Bader Ginsburg noted in a recent lecture that, in 1890, when Columbia University denied admission to three female applicants, a member of the university’s board of trustees is reported to have said:

bq. “No woman shall degrade herself by practising law in New York especially if I can save her. The clack of those possible Portias will never be heard in”,
the university’s “Moot Court”. Although I hear chuckles, similar views were current in some quarters when I became a member of the English Bar almost 40 years ago.

bq. Justice Ginsburg points out that the Chief Justice of the Supreme Court of Canada is a woman, as are two of that court’s other justices. The Chief Justice of New Zealand is a woman. Five of the 16 judges in Germany’s Federal Constitutional Court are women, and a woman recently served as president of that court. Five women are members of the European Court of Justice. The American Supreme Court has only two women justices. As for the United Kingdom, the appointment of the noble and learned Baroness, Lady Hale, as the first ever female Law Lord is most welcome and long overdue.