Crime and Courts Bill [HL]

Baroness Prashar Excerpts

Monday 28th May 2012 Lords Chamber

[Baroness Prashar]

My Lords, I wish to speak about the part of the Bill which relates to judicial appointments. In so doing, I declare interest as the former inaugural chairman of the Judicial Appointments Commission, a post which I held from 2005 to 2010. I fully endorse the comments made by the noble Baronesses, Lady Jay and Lady Neuberger, and commend them both for the way that they have handled the issue of diversity and kept it high on the agenda. Like them, I welcome most of the changes contained in the Bill, but particularly those which relate to part-time working. It was in 2008 that the JAC first recommended that change, because the research which it conducted showed that for many underrepresented groups, the absence of part-time working was a real disincentive. Availability of part-time working will have a positive impact on diversity. I know that people have raised the issue of practicality, but similar objections were raised when the JAC itself was set up. It was suggested that making people apply would decrease the number of applications and that we would not get high-quality applicants. That has not been the case: neither the quantity nor the quality of the applications has diminished. I am sure that ways can be found to get around some of those difficulties.

I am also disappointed that there has been no relaxation on employed lawyers and no movement on appraisals. I am very concerned that it is intended that where a selection commission is convened to select a person for appointment as president of the Supreme Court and the Lord Chief Justice, the Lord Chancellor may be a member of the selection commission. The process by which judges are appointed is of constitutional significance, and the Lord Chancellor should have a limited role in the appointment of senior members of the judiciary. The rationale for establishing an open and independent process for judicial appointments in 2005 was to ensure that there was appropriate distance between the appointments process and the Lord Chancellor. The Constitutional Reform Act 2005 removed the role of the Lord Chancellor as the head of the judiciary and Speaker of the House. The position of Lord Chancellor, which is legally and constitutionally distinct from that of the Secretary of State for Justice, is now a more political role than it was. That change was one reason why the role of the Lord Chancellor was restricted in the Constitutional Reform Act.

Furthermore, in my experience, the process has worked fine in practice, so why the change? It is difficult to see the rationale for it. Indeed, the Select Committee on the Constitution states in its report that:

“The Lord Chancellor should continue to have a limited role in the appointment of senior members of the judiciary; he should be properly consulted and retain his right of veto in relation to the most senior appointments. He must also retain responsibility, and be accountable to Parliament, for the overall appointments process. But he should not be permitted to select candidates from a shortlist, nor should he sit on selection panels. Such changes would risk politicising the appointments process and would undermine the independence of the judiciary”.

I very much hope that the Minister will encourage his department to withdraw that change.

I would also like two new provisions in the Bill. I would like the duty contained in Section 64 of the Constitutional Reform Act, whereby the JAC is required to encourage diversity in the range of persons available for selection for appointment, to be extended to the Lord Chancellor and the Lord Chief Justice. Promoting diversity is a joint endeavour between the JAC, the Lord Chancellor and the Lord Chief Justice. The JAC alone cannot bring about the desired change, and the provision as it stands creates unrealistic expectations of the JAC, because it carries the whole burden, and issues which are outwith its responsibility are neglected. For that reason, it is very important that that change is included in the Bill.

My final comments are about the selection of the JAC commissioners themselves. The independence of the JAC is crucial; it is also a body of constitutional significance. If we want an independent judiciary, the body which selects judges should be independent and be seen to be independent. It is important that the membership of the JAC continues to be prescribed in primary legislation and that any changes be brought before Parliament. However, it is equally important that how the members of the JAC are appointed is prescribed in legislation.

The Constitutional Reform Act 2005 makes some provision for the JAC commissioners, requiring that they may not be appointed for more than five years at a time, and not for more than 10 years in all. However, there is a lack of specific detail about the process for the appointment of commissioners. The Ministry of Justice’s position is that the guidance for public appointments should apply, as the CRA does not make specific arrangements. Public appointments guidance provides Ministers with considerable flexibility in making appointments and, importantly, choice in candidates recommended for selections. In my view, it would be appropriate and consistent if the provisions in the Constitutional Reform Act for the appointment of judges, which were so carefully crafted to ensure judicial independence, were also applied to the appointment of commissioners and prescribed in legislation. This would in reality and in perception secure the independence of the body that selects judges. In recommending this change, I am not for a minute suggesting that the JAC is not independent or that its current members are not independent; but this change would ensure that this independence is safeguarded in the future, because there is evidence in other jurisdictions that attempts have been made to criticise the selecting body in order to impact on the appointments. So this small change will ensure that the independence of the judiciary is guarded if the body that selects judges remains independent.