Judicial Appointments Commission Regulations 2013

Lord Marks of Henley-on-Thames Excerpts

Monday 22nd July 2013 Grand Committee

The substance of these regulations and the main changes contained within them have been debated at length through the passage of the Crime and Courts Act. As I have already mentioned, the changes made through the Act were a product of a government consultation and recommendations from the Advisory Panel on Judicial Diversity and the Constitution Committee. The regulations have been developed in consultation with the judiciary and the JAC and have received the required approval from the Lord Chief Justice and the President of the Supreme Court, where relevant, before being laid before Parliament to consider. I therefore commend these draft regulations to the Committee and beg to move.

[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.

--- Later in debate ---

[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.