Judicial Appointments Commission Regulations 2013

Lord Beecham Excerpts

Monday 22nd July 2013 Grand Committee

[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.