Judicial Appointments Commission Regulations 2013
(11 years, 4 months ago)
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Lord McNally
That the Grand Committee do report to the House that it has considered the Judicial Appointments Commission Regulations 2013.
Relevant document: 6th Report from the Joint Committee on Statutory Instruments.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the three sets of regulations before us today contain the detail of selection processes for judicial appointments and the composition of the Judicial Appointments Commission. Specifically, the draft Judicial Appointments Regulations 2013 set out the details of the selection processes to be followed when selecting for certain judicial offices managed by the Judicial Appointments Commission, and processes of selection for the offices of Lord Chief Justice, heads of division, the Senior President of Tribunals and Lords Justice of Appeal. The draft Judicial Appointments Commission Regulations 2013 set out the details of the composition of the Judicial Appointments Commission including the number of commissioners and the process for their selection, while the draft Supreme Court (Judicial Appointments) Regulations 2013 set out details of the selection process for the appointment of Supreme Court Justices, including the revised composition of the selection commissions.
Before setting out further details, I will explain the background to these changes. In November 2011, the Ministry of Justice issued a public consultation entitled Appointments and Diversity: A Judiciary for the 21st Century, which focused on delivering changes to the statutory and regulatory frameworks for judicial appointments and contained measures to increase judicial diversity. One of the proposals in our consultation was to address the balance between primary and secondary legislation; specifically, to move the detail of the appointments processes into secondary legislation while keeping important elements of principle on the face of primary legislation. This approach was supported by the Constitution Committee as part of its inquiry into the judicial appointments process.
Running concurrent with our consultation, the Constitution Committee in the other place carried out an inquiry into the judicial appointments process. In its final report following the inquiry, the committee agreed that the detailed provisions of the Constitutional Reform Act 2005 should be included in secondary legislation. They emphasised that Henry VIII clauses should not be sought; provisions of particular constitutional importance should continue to remain in primary legislation where they will continue to be subject to full parliamentary scrutiny. Upon the introduction of a Bill, the Government should publish draft secondary legislation and the Lord Chief Justice and, where relevant, the senior judge of the Supreme Court should be consulted before secondary legislation is laid before Parliament.
Following the committee’s recommendations and the support we received via our consultation, the Government introduced powers for the Lord Chancellor to make regulations through the Crime and Courts Act 2013, with the agreement of the Lord Chief Justice and, where relevant, the senior judge of the Supreme Court, which would contain the detail of the judicial appointments processes, and these are the regulations we are considering today. While moving this detail into secondary legislation, we also made some changes to the judicial appointments processes themselves that were informed by the recommendations arising from the report of the Advisory Panel on Judicial Diversity, chaired by the noble Baroness, Lady Neuberger, together with observations received from the Constitution Committee in the other place.
All three sets of regulations have been developed in conjunction with the judiciary and the Judicial Appointments Commission, and we have shared the draft versions with the devolved Administrations. Early drafts of these regulations were shared with Parliament during the course of the Crime and Courts Bill, as it then was, through Parliament as per the observation made by the Constitution Committee. Lastly, as required by legislation, the draft Judicial Appointments Regulations 2013 and the draft Judicial Appointments Commission Regulations 2013 have been agreed by the Lord Chief Justice before being laid. The draft Supreme Court (Judicial Appointments) Regulations 2013 have been agreed with the President of the UK Supreme Court before being laid. With this in mind, I turn now to each statutory instrument individually.
Lord Marks of Henley-on-Thames
My Lords, I wish to make a brief general point about judicial diversity in connection with these regulations. The Committee knows that my noble friend is a forceful advocate of judicial diversity. The Government’s commitment was apparent during the passage of what is now the Crime and Courts Act, and in particular in their promotion of the provisions which find expression in Schedule 13 to that Act. While not wishing to make any judgment about the recent appointment to the position of Lord Chief Justice it is, from the diversity point of view, a shame that the extremely highly thought-of female candidate was not selected. That would have been real and very public progress.
These regulations implement the new systems in ways that are both detailed and welcome, but the imperative is to ensure that we move towards a much more representative judiciary with more women, more ethnic minority judges and judges from a far broader range of social background. These regulations can be no more than a step on the way to achieving that. While they are detailed and welcome provisions, to achieve real change we need a deep and continuing change of culture. That was highlighted in the report of the Advisory Panel on Judicial Diversity, chaired by the noble Baroness, Lady Neuberger and mentioned by my noble friend. I look forward in the future to Government and the judiciary working together to achieve that change.
Lord Hope of Craighead
My Lords, I shall make a short point relating to the Supreme Court (Judicial Appointments) Regulations. Before I explain my point, I should declare an interest. I recently retired as deputy president of the Supreme Court. For the past four years I have been a member of the ad hoc commission and thus responsible, along with the president, for a number of appointments, which have included something like a third of the court now sitting as the Supreme Court across the square.
My point relates to diversity in a rather unusual way. As the Minister has explained, one of the aims of redesigning the composition of the selection commission described in Part 3 of these regulations is to meet the recommendation that the commission should no longer be seen to be appointing or selecting for appointment people in their own image. It may be that that was a fair criticism at the time when I was sitting as one of the two judicial members of the panel since the president and I were both men, but I have just retired and I have been succeeded by the noble and learned Baroness, Lady Hale of Richmond. In a way, this follows on from a point just made by the noble Lord that one may regret for diversity reasons the choice of Lord Chief Justice. I make no comment on that, but one great advance that has been made in the Supreme Court is that we now have the noble and learned Baroness, Lady Hale, who is a very vigorous proponent of diversity and is probably best suited of anyone to sit on such a commission.
It is a great misfortune of timing. If she had been in my position when the noble Baroness, Lady Neuberger, came with her members to visit us and to discuss the change, I am sure that the noble Baroness would have seen—it would have been perfectly obvious—that the noble and learned Baroness was there and that we had on our team every component for diversity one could possibly have wished for. As the noble Lord rightly explained, when the draft regulations were discussed with us, it was impossible to make the point that the noble and learned Baroness, Lady Hale, might be my successor because I had not yet resigned and the selection process for my successor had not yet taken place. Therefore, we were very cautious not to make any prediction about who would succeed me. The succession process produced this result only about four weeks ago.
It is a great misfortune of timing has led us to the position where the noble and learned Baroness will now be excluded from participation in the selection process. The regulations are very carefully drafted because the composition of the selection commission in Regulation 11 provides for a senior UK judge to be nominated to take the position which I previously occupied. It is quite clear, if you read Regulation 11(1)(e) with Regulation 14 and Regulation 2, that the senior UK judge can be any senior UK judge other than a judge of the Supreme Court. So it is quite clear it can only be the president who would be the Supreme Court member, and the noble and learned Baroness, Lady Hale, has no prospect of playing any part in the work of the commission.
The way that the appointments have gone in the Supreme Court in recent years means that there will be no fresh vacancy, I think I am right in saying, for two or three years. Now that I have gone, the way is clear for the court to settle down without any real change. However, in two or three, or possibly three or four years’ time, a significant number will retire and fall to be replaced, and the noble and learned Baroness will still be there. The composition of what one might call the next but one Supreme Court will be greatly influenced by the work of this commission. It is a great pity that the reform has taken this form. As I said earlier, I doubt very much whether it would have done before, but I must concede that the Minister is absolutely right to say that the regulations were shown to us. We did the best we could in our discussions to make this point without naming names.
The purpose of my intervention is to express regret at this turn of events and hope that perhaps one day it may be possible to recognise the enormous qualities of the noble and learned Baroness, Lady Hale, and the major contribution she would be able to make to increasing diversity in a way which concerns us all.
Lord Scott of Foscote
My Lords, perhaps I may express my agreement with the remarks made by my noble and learned friend Lord Hope of Craighead. I want to add a few words on the Supreme Court regulations relating to the manner in which believed incapacity is to be dealt with. As your Lordships will be aware, the regulations provide for the setting up of a selection commission, and various individuals are to be given the power to nominate other individuals for membership of that commission. One of the persons with the power to nominate such a person is the President of the Supreme Court. That is set out in Regulation 5:
“(1) The selection commission must consist of—(a) the Deputy President; (b) a senior UK judge nominated in accordance with regulation 7”.
Regulation 7 states that, unless paragraphs (2) or (3) of Regulation 5 apply, the President,
“must nominate a senior UK judge who is not disqualified under regulation 16”.
Paragraph (2) of Regulation 7 goes on to state that:
“Where—(a) the office of President is already vacant; or (b) it appears to the Lord Chancellor that the person holding the office of President is for the time being incapacitated, the Deputy President (unless the Deputy President is disqualified under regulation 16) must nominate a senior UK judge in accordance with paragraph (1) to sit on the selection commission”.
The believed incapacity puts out of the ring as a nominator the President and brings in the Deputy President. So far, so good, but the existence of the incapacity is simply dependent upon the opinion of the Lord Chancellor: it appears to the Lord Chancellor that the person holding the office of the President is, for the time being, incapacitated. One finds an echo of that in Regulation 14:
“(1) Unless paragraph (2) or (3) applies, the President— (a) must nominate a senior UK judge who is not disqualified under regulation 16”,
or,
“(2) Where—(a) the office of President is already vacant; or (b) it appears to the Lord Chancellor that the person holding the office of President is for the time being incapacitated, the Deputy President (unless the Deputy President is disqualified under regulation 16)”.
Under Regulation 16,
“A person is disqualified for the purposes of membership of a selection commission if it appears to the Lord Chancellor that that person is for the time being incapacitated from serving as a member of the selection commission”.
All these provisions depend on nothing other than the opinion of the Lord Chancellor “for the time being” that the individual is, using the language of the regulations, incapacitated. There appears to be no indication of whether the person concerned agrees with his or her believed incapacity, it is just the opinion of the Lord Chancellor that the incapacity exists and therefore someone else must be the nominator for the relevant purpose. I would suggest that that is profoundly unsatisfactory. There are provisions about incapacity in the Constitutional Reform Act 2005. Section 16 provides that the Lord Chief Justice is incapacitated only if at least three of the four heads of division declare in writing that he is incapacitated. Section 36,
“applies if the Lord Chancellor is satisfied by means of a medical certificate that a person holding office as a judge of the Supreme Court—(a) is disabled by permanent infirmity from the performance of the duties of his office, and (b) is for the time being incapacitated from resigning his office”.
What does “incapacitated” mean? It depends on the opinion of the Lord Chancellor. One of the functions of the 2005 Act was to put an end to the believed impropriety inconsistent with the separation of powers of the highest court in the land being a part of the legislature—the Law Lords, as they then were. The impropriety of that was accepted by a number of people, and the Supreme Court was brought into existence to put an end to that conflict. However, this produces another conflict. So far as the regulation is concerned, the Executive, in the form of the Lord Chancellor, does not have to base his opinion on any medical evidence at all. The Lord Chancellor has the right to pronounce his belief in the incapacity of the President, the Deputy President or some other senior UK judge to act for the purposes of the selection commission that these regulations will set up. That itself seems to be inconsistent with the separation of powers—not, as before, the separation between the legislature and the judiciary but between the Executive and the judiciary. It appears to be a much more serious infringement of the doctrine of separation of powers than that which formerly existed when the Law Lords, as Members of this House, acted as the highest court of the land.
I wonder why relying on the opinion of the Lord Chancellor on these matters of incapacity, which must require somebody with a little medical or perhaps psychiatric knowledge to have a view, and without any indication that the individual who is thought incapacitated is having his or her opinion canvassed, should be thought to be an appropriate way of dealing with this situation. I would seriously suggest to the Government that it is a most improper way of dealing with the situation. The Lord Chancellor’s opinion should not be sufficient to declare somebody incapacitated, unless backed by a medical certificate—which would suffice—or by the concurrence of the heads of division or, so long as it was not the Lord Chief Justice’s position being considered, of the Lord Chief Justice. However, just relying on the opinion of the Lord Chancellor on a matter that would require some medical or psychiatric expertise seems to me to be offensive, unnecessary and something that should be remedied before these regulations are brought into effect.
Lord Jones
My Lords, I thank the Minister for his pithy exposition of the Supreme Court (Judicial Appointments) Regulations 2013. I have been in this Parliament for only four decades. Notwithstanding that, I know that a Member without any legal insight is entitled to take part in the proceedings of your Lordships’ Committee and ask a question of the resourceful Minister who is taking forward the business. By coincidence, a new Lord Chief Justice—a distinguished Welshman—was appointed very recently, and I noted in the correspondence column of the Times today that my compatriot, Mr Winston Roddick QC, a former Counsel General to the Welsh Assembly Government, has strongly supported his appointment. I think the Lord Chief Justice is being warmly welcomed throughout the Principality; he has the reputation of being a very charming and knowledgeable Welshman.
At this point, I will hurry on to ask whether the Minister is able to say in what way, if at all, there is any prospect of what one might call ordinary people being consulted on this enormously important post of Lord Chief Justice. Does he have a point of view on that? Does a point of view exist regarding widespread consultation or has it been resolved that such a course would not be wise? How was the First Minister of Wales consulted? I see at Regulation 19 that the First Ministers in Scotland and Wales are down for consultation. Would it be reasonable to assume that the First Minister of Wales was consulted on this recent appointment of the new Lord Chief Justice? I am not in any way asking what the result of the consultation was, or about the detail of what was said or written, but it is reasonable to ask in what way he was consulted, when he was consulted, and how, by whom and how recently his opinions were received.
The Minister mentioned diversity. Is he able, in all this, regarding this regulation and this appointment, to give to the Committee instances of diversity in these senior appointments of crucial importance to all the people in Britain? I note, too, that references are made to the Judicial Appointments Commission. Does he have to hand the current membership of that commission? I again thank him for his pithy exposition at the beginning of our debate.
Lord Hardie
My Lords, in relation to the Judicial Appointments Commission Regulations 2013, I seek some guidance and some information from the Minister. In terms of the composition of the commission, to which the Minister referred in his remarks, Regulation 4(5) includes as a legally qualified member of the commission a,
“fellow of the Chartered Institute of Legal Executives”.
What particular judicial appointments would the commission comprising such a member be involved in? Perhaps the Minister can assist me. I may have something further to say once I know the answer to that.
Lord Brown of Eaton-under-Heywood
My Lords, I, too, echo the words expressed by my noble and learned friend Lord Hope of Craighead about the signal and striking contribution made over the years by the noble and learned Baroness, Lady Hale of Richmond, to the laudable, estimable cause of judicial diversity. It is indeed a pity—I cannot put it higher than that—that at the very moment that she would stand to be a critical part of the selection process these regulations in every sense must disappoint her.
I would also say a word sharing my noble and learned friend Lord Scott’s concern, though perhaps without the passion he brought to bear on the point, about the insistence throughout the regulation—he referred to the various places where this concept appears—that it is purely for the opinion of the Lord Chancellor whether any relevant person is incapacitated from serving as a member of the selection commission. The same formula he pointed out appears in Regulations 7(2)(b), 14(2)(b), 16(1) and 17(2)(b). That is exhaustive but that is where the concept appears. He made a point on Section 16 of the Constitutional Reform Act 2005 with regard to the incapacity of the Lord Chief Justice. It is fair to point out that in Section 16 that is a permanent incapacity, and indeed “incapacitated” is defined in Section 16(5) in relation to the Lord Chief Justice to mean,
“unable to exercise the functions of that office”.
It is made plain that that is on a permanent basis. There is a distinction between that and, in our regulations, the formula,
“for the time being incapacitated”.
I suggest a possibility: somebody else, together with the Lord Chancellor, could be involved in making a judgment and expressing a determination as to whether there is, for the time being, incapacity of the relevant member—that is, simply incapacity from serving as a member of a selection committee. I would suggest possibly the Lord Chancellor together with the Lord Chief Justice did that. If somebody were then to make the point, “Well, it may be that the Lord Chief Justice could himself be a candidate for appointment either to the relevant office or, indeed, to being on the selection committee”, in such a case it could be the next senior UK judge, who, again, is defined within the statute. I merely put those forward as possible suggestions to dilute the objection and concern voiced by my noble and learned friend Lord Scott that it is, at least in terms of perception, troubling that the matter should be left simply to the untrammelled opinion of the Lord Chancellor unaided.
Lord Beecham
My Lords, I join other noble Lords in congratulating and thanking the Minister for his very clear presentation of the regulations, and join some of your Lordships in expressing a slight note of regret that the noble and learned Baroness, Lady Hale, has not been appointed to the very high position of Lord Chief Justice—not this time at any rate. That in no way reflects, of course, on the esteem in which the new incumbent is held across the system. However, if the noble and learned Baroness had been appointed, it would have sent a powerful signal endorsing the Government’s approach.
In congratulating the Government generally on coming forward with these proposals, it is as well to remember where we are in the higher courts in terms of diversity. Of 110 High Court judges, only 17 are women and only five are from black and ethnic minority backgrounds, with no female heads of division. However, we now have a female Supreme Court judge and that is welcome. Those facts illuminate the reason for the Government’s approach, which we certainly endorse. I particularly welcome the reinforcing of independent elements in the appointments processes and, of course, promoting diversity. That includes the revision of the composition of selection panels for the most senior appointments. The Government’s intention is explicit—to make the appointments more diverse and increase lay representation on the panels. However, I am not entirely clear about the extent to which the selection panels themselves reflect diversity among their members, particularly at the higher levels. As there are five members of the commission, it is important that diversity is also reflected at that level.
I particularly welcome two matters. The first is that these procedures will apply to tribunals. In answer to the noble and learned Lord, Lord Hardie, that, I think, is the relevance of the inclusion of the Chartered Institute of Legal Executives in the new process as they are eligible for tribunal appointments, as the Minister indicated. There is, therefore, every reason why they should be on the panels.
Lord Hardie
To clarify, is the noble Lord saying that the legally qualified person who is a fellow of the Chartered Institute of Legal Executives would only be part of a commission which appointed members to a tribunal?
Lord Beecham
I am not in a position to say that—the Minister is—but I gather that he or she would not necessarily be restricted in that respect. Personally I welcome that because otherwise you would have the somewhat anomalous position where the converse would not be the case: the member engaged in tribunal appointments would, by definition, not be a member of the chartered institute and would be either a barrister or solicitor. There is the option for balance—it is not necessarily the case—where the CILEx member was involved in other than tribunal appointments. That possibility could occur. I dare say the Minister will correct me if my interpretation is wrong. I very much welcome the inclusion of CILEx in that.
I return to the question of the steps the Government will take to ensure that there is diversity in the appointment of membership of panels, especially in relation to gender and ethnicity. The noble and learned Lords, Lord Scott and Lord Brown, referred to the difficulties raised by the provision relating to incapacity. It is rather striking that incapacity is only treated as a matter of concern if it afflicts a holder of judicial office. It is not inconceivable that it might afflict the Lord Chancellor but that is not covered by the arrangements. That is slightly odd. I sympathise very strongly with the observations of the noble and learned Lords in that regard. There must be a procedure in which the Lord Chancellor is not perceived to have an unfettered and sole discretion in this matter. That might not be the Government’s intention—I suspect it is not—but it would be much better if that were explicit. I hope the Minister will take this back and possibly make it the subject of further regulation. The point that was made was quite powerful.
There are two other matters I invite some comment on. First, given that we are not talking about judicial appointments, I wonder whether the Government have taken on board sufficiently—or to any extent—the impact on future appointments of the changes they are proposing, particularly in criminal legal aid. There is widespread concern, expressed across the legal profession and reaching into the judiciary, that diversity issues will arise if, as seems likely, there is a significant reduction in the size of particularly the criminal Bar but also of the solicitors’ side of the profession. I declare my interest as a member of the Law Society and an unpaid consultant to a firm of which I was formerly senior partner. There is a fear that the ladder of appointments might become rather remote from those who currently succeed in progressing. Even now, as I indicated, they do not progress as high as the Government would wish. Again, I invite the Government to consider the impact of these changes on their aspirations for diversity in the judiciary.
Secondly, there is an area that I confess is beyond the scope of these regulations. I invite the Minister to indicate what steps the Government are considering to sustain and promote diversity among the magistracy. That is diversity of all kinds: again gender and ethnicity but also, although it is not in this series of recommendations affecting the judiciary, social class as well. A local justice system needs diversity in its officeholders to a significant extent, as does the judiciary with which we are today concerned.
Having said all that, the Government are certainly moving in the right direction. We hope that some of the points made today might be reflected in further regulation. This is a good start but needs to be taken further. No doubt over time the Government will assess what progress has been made and what steps they could take to encourage more applications for judicial officers at all levels from a wide range of people qualified in every respect to fulfil that important duty.
Lord McNally
My Lords, I am extremely grateful to all those who have contributed to a very interesting debate. I have to confess that as I sat waiting for the debate to begin, I felt rather like a character in Alfred Hitchcock’s “The Birds”, as I watched various distinguished Members of your Lordships’ House flutter on to their perches waiting to take a peck at me. I shall start by responding to the noble Lord, Lord Beecham, who is always thoughtful and incisive in what he has to say.
I think that a lot of people were hoping that the selection of the Lord Chief Justice would give us an opportunity to make a great statement in terms of diversity with the noble and learned Baroness, Lady Hale, as one of the candidates. But, as has been made clear in a number of letters to the Times today, that does not take away from the fact that we have a very good choice for the Lord Chief Justice and we wish him well in his appointment. A name which has been bandied around a great deal is that of the noble and learned Baroness, Lady Hale. I remember when the Metropolitan Police appointed its first black policeman, PC Norwell Gumbs. For a while, PC Gumbs seemed to be on duty outside 10 Downing Street, Buckingham Palace or almost anywhere that would give the impression of a diversity that did not actually exist. I must also say to the noble and learned Lord, Lord Hope, that in the three years that I have been a Minister, the Supreme Court has made three or four appointments, none of which has been particularly diverse, although undoubtedly extremely eminent. As my noble friend Lord Marks said, in these regulations we are taking some stuttering steps forward in diversity. I have been assured by the very highest ranks of the judiciary that if I am patient, in 20 years’ time all will be well. I would say that that is not a timescale that the country will be satisfied with.
We are trying to encourage the panels themselves to be diverse. It could take us into a much wider debate, but I am conscious that it is from the criminal Bar that we get the flow of eminent lawyers who go into our senior judiciary. I hope that the Bar itself becomes much more constructively involved in looking at how we bring about social mobility there. For one reason or another—you cannot put all the blame on legal aid—in my opinion, access to the Bar is probably less socially mobile than it was 20 or 30 years ago, and that should be a matter of concern to us.
I also agree with the noble Lord, Lord Beecham, in that I am a great supporter of the magistracy. There is always a problem in respect of its social composition but I think that it has come a long way from being the local squire dispensing justice. Indeed, if we want to look for diversity in our judicial system, it is there in the magistracy, where there is far greater diversity both in terms of gender and ethnic representation. I hope that we will look at how we encourage more people into the magistracy and how we can give the magistracy greater responsibility and powers within our criminal justice system. While I remain in this post, I will certainly look for those opportunities.
Baroness Donaghy
I thank the Minister for allowing me to intervene on this. I do not have any legal qualifications, but I understand employment relations. I am grateful that the Minister has agreed to take this incapacity issue back because I think it is important to look at it from an employment relations point of view, if only to refer to agreed procedures in the regulations. That might see the issue out.
I think that there has to be transparency about the procedures. The circumstance might be very narrow, it might be extremely rare, but it is always those narrow and rare occasions which come under the spotlight. I think it is also a case of how the people who work in that environment feel about the fact that they could be treated in this way. I think there is an important issue as regards referring to some accepted procedure for the Lord Chancellor to go about in taking his or her decision.
Lord McNally
First, I am sure that those who produce Hansard will know this, but I think that I said that the noble and learned Baroness, Lady Hale, was a candidate for Lord Chief Justice. I was of course referring to Lady Justice Hallett, but I know how wonderful Hansard is at making sure that “ums”, “ahs” and mistakes miraculously become eloquence the following day.
I must be clear on this: I cannot take back the order. I am not empowered and, as I made very clear, these three orders have gone through a considerable mincer. What I have said I will do is draw to the Lord Chancellor’s attention the concerns that have been expressed today, the broader concerns of noble and learned Lords, and the noble Baroness’s particular concerns from the point of view of what I would call human relations. I will ask him to consider the points that have been made. If this is genuinely a mistake, a lacuna, or something that needs further action, I am sure that there are ways and opportunities to do so.
I hope that this very useful debate, which has covered a wide area, has given us an opportunity to air a number of important points. In the end, however, it is worth remembering that these statutory instruments build on the ambitions of previous Governments to make our judiciary more diverse and the method of selection more open. To go right back to the noble Lord, Lord Marks, yes, there is still a long way to go and these are perhaps timid steps, but they are steps in the right direction and I hope that they will have the support of the Committee.
Lord Hardie
I should just express my concern about the reference to CILEx. I fully appreciate that CILEx members should be members of a commission appointing a tribunal where they have experience, but the whole point of having legally qualified members of the commission is to have people who have experience of the courts within which they appear. That is why we are talking about barristers or solicitors of the Supreme Court. When it comes to those other courts, the CILEx member will have no experience of that and he or she will effectively be an additional lay member, so the balance of the commission is being skewed. I invite the Minister to reflect on that and perhaps come back with an amendment to confine the involvement of CILEx members to jurisdictions where they practise and have some experience. It is important that we should be aware of the legal qualifications and legal ability of the people presiding over courts in which they do not appear.
Lord McNally
I hear what the noble and learned Lord, Lord Hardie, says. As with the other point, I will take it back. We have to get the balance right between panels that are suitably qualified so that they know what they are doing and panels that choose “chaps like us”. That debate will go on.
Lord Hardie
I should say that I am not from this jurisdiction. I have no experience of this jurisdiction and I was not advocating an appointments process on the basis of appointing “chaps like us”. I was trying to confine myself to the regulations. The regulations themselves set out the basis on which the commission is to be composed. It is to be composed of so many judges, so many lay people and so many legally qualified people. The point of legally qualified people—that is, barristers and solicitors in the Supreme Court in England and Wales—is that these men and women have experience of that jurisdiction and know what is required of people exercising that jurisdiction. I can understand the Government’s desire to involve CILEx in tribunal appointments because that is a jurisdiction of which its members have experience. I am not advocating jobs for the boys but trying to adopt a sensible approach to these regulations. If you appoint a member of CILEx to sit on a commission which is appointing a judge of a higher level than that of a tribunal, effectively you are adding an extra lay member and you do not have the balance that the regulations suggest.
Lord McNally
I repeat that these regulations have gone through the most thorough mincer in gaining the approval of the Lord Chief Justice and the President of the Supreme Court. They have been examined by the Constitution Committee and very thoroughly by both Houses. I think that the noble and learned Lord, Lord Hardie, is making a new point. I can only take it back to colleagues but that was not how we saw the position in terms of having CILEx members. I think that a CILEx member is now a judge, although admittedly of a tribunal. CILEx members can apply for judicial office. Although I cannot withdraw the regulations, I will draw this to the attention of the Lord Chancellor and—
Lord Marks of Henley-on-Thames
My Lords, I wonder whether part of the answer to this is that membership of CILEx is one of the three possible qualifications. Members of CILEx are practising in all fields of the law. All this is saying is that a member of CILEx can be appointed to the commission. It has nothing to do with the possible appointment of a CILEx member to a judicial post.
Lord McNally
That is most certainly true. When I saw the noble and noble and learned Lords gathering, I should have known that this was not going to be an easy task. One of the great benefits of the House of Lords—those who know that I am an avid reformer should take note of this—is there are not many places where one could get such profound legal advice so cheaply. For that, I am extremely grateful to noble and noble and learned Lords. I would again ask that they pass these regulations, but with the firm promise that the points that have been raised will be drawn to the attention of the Lord Chancellor.
Lord Scott of Foscote
I hope that the noble Lord can clarify a matter for me. My understanding is that this has to go before the House, which must pass the affirmative resolution. The matter cannot be dealt with finally just by this Committee.
Lord McNally
It will go before the House where, I am sure, having listened to my explanations today, I will have at least a dozen strong supporters in favour of adopting these regulations.