Mental Capacity Act 2005 (Select Committee Report)
Lord Hardie Excerpts(9 years, 2 months ago)
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Lord Hardie
To move that this House takes note of the Report of the Select Committee on the Mental Capacity Act 2005 (Session 2013-14, HL Paper 139).
Lord Hardie (CB)
My Lords, I refer to my entry in the register of interests as honorary president of Capability Scotland.
In inviting the House to take note of the report of the Select Committee on the Mental Capacity Act 2005, I thank the members of the committee for their hard work and commitment throughout the inquiry. This was an arduous process, involving the assessment of written and oral evidence amounting to almost 2,000 pages. I also thank Judith Brooke, Tansy Hutchinson and Oswin Taylor—the committee’s clerk, policy analyst and committee assistant, respectively—and our specialist adviser, Professor Peter Bartlett, for their support and guidance throughout. That was invaluable and much appreciated by me and all members of the committee.
It is now a full year since the committee reported its findings. That may seem a long time to wait but in this case it provides the ideal opportunity to hold the Government to account for what they have done in response to our findings. It has also enabled the Government to change their mind about recommendation 13. It may assist the House if I explain that although there are 39 recommendations in the report of the Select Committee, recommendations 3 and 13 are the key ones. They concern, respectively, poor implementation of the Act and the need for replacement legislation for deprivation of liberty safeguards, or DoLS. These key recommendations underpin many of the other specific recommendations, with a few exceptions. In view of the time available, I propose to concentrate on the two key recommendations and the Government’s response to them. I hope that this approach will highlight what needs to be done to ensure the effective implementation of the Act and provide appropriate safeguards for some of the most vulnerable members of our society.
The task of the committee was to consider whether the Act was working as Parliament intended. As enacted, the legislation did not include DoLS and it marked a turning point in the legal rights of people who may lack capacity, whether for reasons of dementia, learning disability, brain injury or temporary impairment. The Act placed those individuals at the heart of decision-making and introduced principles of the presumption of capacity, assisted decision-making and respecting unwise decisions, as we do in our own lives. It also provided protection for those who could not make their own decisions, even with help, by providing for decisions to be taken in a person’s best interests in the least restrictive manner. The Government expected it to bring about,
“a quiet revolution in public attitudes and practice”.—[Official Report, Commons, 18/6/04; col. 68WS.]
However, even after 10 years that has not been achieved.
The overwhelming theme of our evidence was that the Act has not been widely implemented. That is our most important finding. I am pleased that the Government, in responding to our report, concurred with that finding. Their response said that,
“there is much work to be done if the transformative power of the MCA is to be felt by all those people for whom it was intended”.
This acknowledgement was particularly welcome, because when we embarked on our inquiry in June 2013 the departmental officials appeared confident that implementation of the Act had been a success. Nothing could have been further from reality. If nothing else, our committee has made the Government recognise that something has to be done.
When the committee referred to “poor implementation”, it is important to appreciate what that means in practice. It means that the core principles in Section 1 of the Act are not applied. It means that capacity assessments are often not carried out and, when they are, the quality is often poor. Often, those making their assessments do not appreciate that the assessment needs to be time-specific and decision-specific. Capacity is not always presumed when it should be; indeed, some of our witnesses suggested quite the opposite. Certain categories of individuals, such as those with learning disabilities and the elderly, were assumed not to have capacity unless proven otherwise.
In some cases the presumption of capacity was misunderstood, with dangerous consequences. Vulnerable adults were left at risk of harm, after disengaging from services without scrutiny of their capacity to make such a decision. The professionals involved referred to the statutory presumption of capacity, as if they were helpless to intervene. In healthcare settings, often the trigger for assessment of capacity was a refusal to accept treatment. We found this particularly disconcerting. It suggests that someone who may lack capacity but who is acquiescent is denied the protection of the Act. A vulnerable adult might undergo treatment without the relevant safeguards of the best interest test.
Supported decision-making is not well embedded in practice. Best interest decision-making is not undertaken as envisaged. In medical settings best interest decisions were widely confused with the notion of clinical best interests—in other words, the judgment of the treating clinician. The arrogation of such decisions to a medical practitioner is not lawful for patients with capacity. Why should vulnerable people be denied protection from unlawful intervention?
In referring to evidence of poor practice and failure to implement the core principles, I wish to emphasise that we also heard evidence of good practice, but the overwhelming weight of the evidence told us that that was exceptional. What were the causes of the failure to implement the Act? The most prominent one was lack of awareness, followed closely by lack of understanding. That fatal combination leads to a general failure to deliver important rights to vulnerable people.
Against that background the committee considered that the first task of government is to address urgently the very low levels of awareness of the Act, but we also recognise that awareness-raising alone will not change culture. A much wider approach is required, taking in training and professional standard-setting, and monitoring compliance across sectors. To achieve that we recommended that the responsibility for oversight of the Act’s implementation should be given to a single independent body, whose composition reflected the professional fields within which the Act operates, as well as the range of people directly affected by it and their families and carers. Most importantly, this body would drive implementation forward and act as a spur on those professional bodies and associations with a responsibility to ensure compliance. The committee firmly believed that this step was necessary if the benefits of the legislation were to be realised. That was the first of our two key recommendations.
It was a grave disappointment that the Government did not accept that recommendation in their response. The reasons for rejecting our recommendation seem to be related in part to the breadth of sectors covered by the Act and the associated difficulty of the task in designing a single body, coupled with a fear that such a body would result in people involved in the Act failing to accept personal responsibility for its implementation. I note that in their response the Government do not suggest that the task is impossible. Many tasks are difficult but well worth the effort if they achieve a successful outcome. In this case a successful outcome would be the restoration to many thousands of vulnerable people rights conferred on them 10 years ago, but denied to them because of failures of professionals in different sectors to implement this Act.
The breadth of sectors has been part of the problem in the past, with no single body having the responsibility for ensuring compliance across all sectors. I do not accept that a single body would remove personal responsibility from individuals. Rather, it would monitor and reinforce personal responsibility. What is the Government’s counter-proposal to our single independent body with overall responsibility for implementation? In November of last year the Minister, Simon Hughes, announced the Government’s intention to establish a new national mental capacity forum. While I am delighted that the Government are acting to bring together relevant stakeholders, I am concerned that the proposed forum is precisely that: a forum—or, in common parlance, a talking shop with no power or responsibility to drive forward implementation of the Act.
A further concern is the apparent lack of urgency taken to address this matter. The letter from the Minister and the accompanying schedule, for which I am extremely grateful but which was sent out last night, suggests that the recruitment for the post of chair will get under way imminently and that the first meeting of the forum will be in the autumn. Why has there been a delay of four months in the application process and why will the first meeting be a year after the Minister’s announcement? The process appears to be very slow and to lack transparency. Perhaps the Minister here can provide further detail this evening. What will be the remit and powers of the forum? Who will sit on it? How will members be selected? Will the forum have a sufficiently high profile to make a real difference? I would be grateful if the Minister could reply to these points.
However, I emphasise that my fundamental objection to this proposal by the Government is that it is not a solution to the widespread problems, across all sectors, of failure to implement the Act, and to give vulnerable people the voice and empowerment that Parliament conferred upon them in 2005. In short, it will not bring about the quiet revolution in public attitudes and practice promised 10 years ago. That will only be realised if the Select Committee’s recommendation 3 is implemented in full.
Our second principal finding and recommendation concerns DoLS. Criticism of the safeguards was extensive. It came from all parts of the process, those with direct experience of the safeguards as well as solicitors, academics, service users and the judiciary. The criticism was not just about how the safeguards were being implemented. It was about the legislation itself. The purpose behind the safeguards was generally supported, but the provisions themselves were considered overly complex, poorly drafted and having no relationship to the language or ethos of the rest of the Act.
The number of applications was considered suspiciously low by many of our witnesses and it became apparent that in many cases the safeguards were not being applied when they should have been. Witnesses suggested that thousands, if not tens of thousands, of individuals were detained without the protection of the law and without the means to challenge their deprivation. Individuals were left without the safeguards that Parliament intended. That evidence was borne out by the Cheshire West judgment, handed down by the Supreme Court the week after our report was published. Following that decision the number of applications for DoLS in the first nine months of 2014 was 90,000, compared to a total of only 13,000 made throughout the previous 12 months.
It also appeared to the committee that the Bournewood gap had not been closed by the introduction of DoLS. In the face of such wide-ranging criticism the committee was forced to conclude that the only possible course of action was to ask the Government to start again. We recommended that the Government bring forward new provisions that would be in keeping with the rest of the Act. They should be drafted in clear and simple language in order to be understood. They should be extended to include adults in supported living. The interface with the Mental Health Act needs to be made clearer to avoid new gaps arising from the overlap of those two pieces of legislation.
The initial response of the Government did not accept that there was a fundamental flaw in the legislative framework. Instead, the Government offered to instruct the Law Commission to propose a new framework to allow for deprivation of liberty authorisations in supported living. The inclusion of supported living in the authorisation scheme was welcome but was far too narrow to meet the far-ranging criticism which we had heard. I am delighted therefore to learn that the Government have now initiated a fundamental review of the DoLS legislation by the Law Commission. I understand that the Law Commission intends to publish its report and a draft Bill by summer 2017. I consider this the right course of action in the light of our findings, and I am grateful to the Government for changing their mind.
Concerns have been raised by stakeholders about the timetable for new legislation. It appears likely that, with the time required for pre-legislative scrutiny following the publication of the Law Commission’s draft Bill, we may not see new legislation on the statute book until 2020. Good legislation takes time. Our report called for the new provisions to be consulted on widely and for adequate time to be allocated to parliamentary scrutiny. That is necessary in order to get it right, but I urge the next Government to give this matter a fair wind. It is of fundamental significance to the rights of tens of thousands of vulnerable adults in England and Wales and deserves to be addressed at the first opportunity.
In conclusion, I welcome the Government’s acceptance of recommendation 13, but I wish to impress upon the House that there is no cause for complacency about implementation. The failures we identified in our report continue. Callers to the Mencap helpline continue to report that understanding of the Act among health and social care professionals is extremely limited and that it is often applied incorrectly. Family members continue to be excluded from best interest decisions if, indeed, the best interest process is engaged at all. There is still a pressing need to increase awareness and understanding to prevent the Mental Capacity Act withering on the vine. Nothing short of culture change is needed to ensure that vulnerable people are no longer failed by the Government and are empowered as Parliament intended them to be in 2005.
I hope that the Government will realise the inadequacy of their proposed forum and appreciate that the solution proposed by the Select Committee is the only one that will ensure implementation of the Act. I urge the Government to change their mind about recommendation 3, as they did about recommendation 13. That, coupled with the other recommendations accepted by the Government, in whole or in part, would result in a clean sweep of the Select Committee’s recommendations but, more importantly, would ensure that people were empowered to take decisions while enjoying the support and protection of society that they might need. I beg to move.
Lord Hardie
My Lords, I am grateful to all noble Lords and to the Minister for contributing to this stimulating and wide-ranging debate. Noble Lords have raised different aspects of the report and drawn attention to it, thereby giving it much wider coverage than I was able to do. I am grateful to the noble and learned Lord, Lord Brown of Eaton-under-Heywood, for his explanation of the Cheshire West decision. In response to a point raised by the noble Baroness, Lady Hollins, about voting, perhaps it might be of interest to know that when we visited Hammersmith Mencap, there was a young man who had severe learning disabilities but he had voted in every possible election. That was achieved because his mother, who was a French woman, took the time to sit down with him and explain, or his carer would explain, the details of the individual candidates in small stages. He became informed as to the choice that he had. We were particularly moved; he had voted in every election and intended to vote in the London mayoral election as well.
The committee’s report and this debate have shown the value of post-legislative scrutiny of legislation. The noble Lord, Lord Beecham, raised the point about the time it has taken but, as I said earlier, that has worked to our advantage in this case. As I understood it when I accepted the appointment of the chair of the Select Committee, it was a relatively new venture for the House to embark on post-legislative scrutiny of legislation. If that is correct, this report and other reports of similar committees highlight the value of the exercise which this House can undertake in respect of important legislation. The message that we can take away from this is that there is a need to maintain a review of this important topic into the next Government and to ensure that the Government are held to account so that progress is made as quickly as possible in this important matter.
Criminal Justice and Courts Bill
Lord Hardie Excerpts(9 years, 7 months ago)
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Lord Hardie (CB)
My Lords, I apologise for speaking at this late hour and detaining your Lordships but Amendment 138 is important for the application of the safeguards in the Mental Capacity Act against depriving people of their liberty without justification and for the need to provide proper judicial supervision of such actions. I declare an interest in that I was chairman of the Select Committee on the post-legislative scrutiny of the Act.
The consequence of the need to ensure that these safeguards are in place is that there should be adequate resources to decide cases at first instance and on appeal within the Court of Protection. These cases should be decided by the appropriate level of judges. I am grateful to the Minister for explaining the reasoning behind this amendment. I understand that the decision in the Cheshire West case, in which the Supreme Court concluded that each of the three appellants who had mental or physical disabilities or had suffered deprivation of their liberty within the meaning of Section 64(5) of the Mental Capacity Act 2005, had the effect of increasing the workload of the system.
I should advise the House that I have been told that the number of cases involving an alleged deprivation of liberty referred to local authorities for assessment, which is the first stage, has increased dramatically. There has been a ninefold increase in monthly referrals. The total number since April this year is almost 33,000, compared with 8,455 for the whole of 2012-13. This will not come as a surprise to the members of the Select Committee on post-legislative scrutiny of the Act, which I had the honour to chair and of which the Minister was a distinguished member before his justifiable appointment to ministerial office.
Our report predated the decision in Cheshire West by, I think, about a week. We heard evidence over a number of months suggesting that the then available figures did not accurately reflect the number of people who were actually subject to deprivation of liberty. Perhaps I may quote from paragraph 270 of the report, where we record our conclusion on that evidence:
“We are concerned that there is a very real risk that the Deprivation of Liberty Safeguards are frequently not used when they should be, leaving individuals without the safeguards Parliament intended, and leaving care providers vulnerable to legal challenge”.
Against that background, it is not surprising that the Government are anxious to take a more flexible approach to appeals, but it is equally important that these appeals are held by judges of higher authority than first-instance judges. The existing provisions in the Act have a hierarchy where the first-instance judges are set out as people who are drafted in—district court judges or circuit judges—and there is a hierarchy of appeals. From those who are drafted in, there is a right of appeal to the district court judge or the circuit judge. From the district court judge there is a right of appeal to the circuit judge, and from any of the three of them there is an appeal to the senior judges who are nominated to serve in the Court of Appeal.
In Scotland, England and Wales appeals are generally heard by an appeal court that is comprised of more than one judge, but there are exceptions where appeals may be heard by a single judge. In Scotland, for example, one might appeal against a decision of a sheriff to the sheriff principal. We have seen that in England and Wales there is the possibility of an appeal to a single judge in the Court of Protection. But where it is an appeal to a single judge, it is always an appeal to a single judge of a higher status and legal authority. That is preserved in the original provision, but in the amendment being proposed no reference is made to it. I appreciate that the likelihood is that the rules council would not permit an appeal to someone of equal or lower status, but I am concerned that it should be put on the record that that would not happen, because otherwise there might be a suggestion to the more vulnerable members of society that their appeals were not being treated with equal concern and consideration as those of the more able.
Judicial Appointments Commission Regulations 2013
Lord Hardie Excerpts(10 years, 10 months ago)
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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
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.