Judicial Appointments Commission Regulations 2013

Debate between Lord Hardie and Lord Brown of Eaton-under-Heywood

Monday 22nd July 2013 Grand Committee

[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.