Crime and Courts Bill [HL]

Lord Falconer of Thoroton Excerpts

Wednesday 27th June 2012 Lords Chamber

[Lord Thomas of Gresford]

My Lords, going back some 25 years, I remember being warned in 1987: “You realise, don’t you, that Mrs Thatcher has never appointed anybody as a High Court judge who has been overtly political?”. I was about to stand for the 1987 election. I stood; I lost for the eighth time; but that did not dissuade me. My point is that then, how the system worked was completely opaque. You did not know what recommendations were being made. You did not know when you had scored a black mark. I recall a close colleague once seeing his file in the Lord Chancellor’s Department, which said in terms that he had fought and lost eight elections as a Liberal candidate—he was so close a colleague that he had been mixed up with me. I am sure that that held him back for a long time from obtaining the appointment that he ultimately did.

I was slightly shocked to hear that we still have a non-transparent system whereby the Lord Chancellor is consulted and becomes involved in the appointment of judges, although there is nothing formal about it. I did not know that. It is opaque. The Bill makes it absolutely transparent that the Lord Chancellor will play a part, and I think it is very good that he should. He should listen to other people who are high in the profession and to what a lay person thinks of a particular appointment. His view may change. I do not think that the Lord Chancellor would necessarily dominate such a selection committee, certainly not if he has a political angle. There may be a toing and froing of views within that committee but we will know that it is happening because he is on it. Consequently it will be a far more satisfactory system than what we have heard is happening now: the Lord Chancellor, without it being in any statute, is involved in some way. That is wrong and I think that the Bill is preferable.

[Lord Falconer of Thoroton]

I was rather appalled by the mischaracterisation by the noble Lord, Lord Thomas of Gresford, of what the noble and learned Baroness, Lady Butler-Sloss, said. My experience as Lord Chancellor, when not making the appointments, was that I remained regularly in touch with the judiciary. If I had not remained regularly in touch with the judiciary on issues such as the funding of courts and the difficulties that the judges were facing, I would have regarded myself as not performing my job as Lord Chancellor correctly. If you are a Lord Chancellor—or now, Secretary of State for Justice—who does not know the leadership of the judiciary, that would be a very bad thing. Indeed this idea expressed by the noble Lord, Lord Thomas of Gresford—that it is in some way a sort of secret-sounding basis—is wrong. I am sure that his misunderstanding was not deliberate. He was looking back to a time 20 years ago when he was looking for a position.

This side of the Committee supports the amendment tabled by the noble Lord, Lord Pannick. We earnestly ask the Government to think again about this provision. Perhaps I may explain why we take that view. The basis of the settlement reached and approved in the Constitutional Reform Act 2005 was that the time had come for the appointment of judges to be clearly depoliticised. The justification for the process that then existed was that although the Lord Chancellor was Labour or Tory and appointed by the Prime Minister, he nevertheless had especial independent roles that made it possible for a political appointment to appoint the judiciary.

We in the then Government took the view, supported by the Liberal Democrats and endorsed by both Houses of Parliament, that in a period of time and a generation where people had to have complete confidence that the judiciary was not being appointed on a political basis, there needed to be a structure in which people would have confidence that you were appointed on your merits as a respected judge. That was the basis of the constitutional settlement reached. Those who considered it in detail were of the view—and I agreed with this view—that the state, the Executive, had to have a stake in the appointment of judges so that there was part of the Executive in Parliament that would defend the system and defend the appointments. That is why the Lord Chancellor has the power to veto some appointments and to reject others.

It is incredibly important for the standing of the judiciary and the separation of powers that that essential separation—that essential constitutional settlement—not be affected. The proposal made by the coalition goes right to the heart of that constitutional settlement. Bringing the Secretary of State into the process would not even have the redeeming feature of the old-style Lord Chancellors, which is that they had an independent role as a judge as well as being a politically appointed Minister. What Ken Clarke said about his role—my noble friend Lady Jay has quoted it—exactly reflects what the constitutional settlement envisaged; namely that he should be a member of the Cabinet with a particular statutory duty as imposed in Section 1, but essentially a political Minister without anything else to distinguish him from other Ministers in the Government. The two roles that we are talking about here are the president of the Supreme Court and the Lord Chief Justice. The president of the Supreme Court is probably the most important judge for the whole of the United Kingdom. The Lord Chief Justice is undoubtedly the most important judge for England and Wales.

The proposal envisages that the commission appointing the president of the Supreme Court should consist of one person who is not legally qualified, one judge of the court, one member of the Judicial Appointments Commission for England and Wales, one for Scotland and one from Northern Ireland, and, if he chooses, the Lord Chancellor. I know Ken Clarke well and admire him greatly. I have absolutely no doubt that, in a group such as that, he would have no difficulty in ensuring that his choice was obtained. The noble Lord, Lord McNally, is shaking his head, but I tell noble Lords that Ken Clarke’s choice would prevail. It would not just be a matter of appearance; it would be a matter of actuality. Go forward in time and imagine someone not of the ethical quality and standard of Ken Clarke as Lord Chancellor. For example, there is the example given by the noble Baroness, Lady Kennedy of The Shaws: “I don’t want the best lawyer; I want the person who is most against the Human Rights Act”. That is a perfectly conceivable position for a Lord Chancellor to take.

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[Baroness Falkner of Margravine]

That is absolutely not what I said; that is a mischaracterisation entirely. I said that if a Lord Chancellor exercised a veto and rejected a candidate and, as he would have to, gave his reasons for doing so in writing, given that it is such a small and intimate community, not only would everyone else know that this had happened but inevitably it would leak into the legal papers. That is what I was saying. I was not saying that the transparency would come from the leak but that huge damage would be done by that happening.

[Lord Falconer of Thoroton]

As I understand it, the noble Baroness, Lady Falkner, is saying that gossip would be the way that transparency would come. No? Explain again.

[Baroness Falkner of Margravine]

Forgive me. I am describing what could potentially happen; I am not saying that that would be transparent. All I am trying to say is that very few vetoes are exercised. There are vetoes in other positions as well—the Prime Minister has the power of veto over several other appointments, for example—but apparently they are seldom used; I could find the figures for the noble and learned Lord. I think that one of the reasons why they are so infrequently used is the damage that it might do if it got out that they had been used.

[Lord Falconer of Thoroton]

I think that there is a misunderstanding here. As I understand it, the noble Baroness is saying that when the veto is used it is kept secret. It is not, so there is no question of gossip. The Lord Chancellor is willing to use that veto where appropriate. I have no problem with that and it does not cause difficulty. In the proposed system, there would be no transparency about the role that the political Minister had played; indeed, it would be assumed that he or she was the person who had dominated the process. It would profoundly undermine the settlement. At the moment, I can see no benefit from it. I have not had the pleasure and privilege of reading the letter that was sent to the noble Baroness, Lady Prashar. I have heard the speech of the noble Baroness, Lady Falkner, which was very persuasive in many respects. However, I am unable at the moment to see the basis for departing from a constitutional settlement that is intended to ensure the sanctity of the process. It is an independent process in which one is judged on one’s merits, and it keeps politics out of it except for the exercise of a transparent veto.

[Lord Thomas of Gresford]

Would the noble and learned Lord not agree that it was not the best moment in the appointment of the judiciary, and that it does appear that political influences were coming into the question of who was to be appointed? Would it not have been better for the difficulties and the problems between the Lord Chancellor and the appointments commission to have been sorted out in a committee, such as that proposed in this Bill?

[Lord Falconer of Thoroton]

Game, set and match to this side. As I understand it, the noble Lord is asking whether it is so wrong that people might think that political influences have been brought to bear on the appointment, because the Lord Chancellor, performing a constitutional role, says explicitly “I don’t want”, or “I am thinking of vetoing”, the choice that has been made on legal merits. As I understand it, the noble Lord, Lord Thomas of Gresford, and the noble Baroness, Lady Falkner of Margravine, are saying, “Let’s keep all the political influences secret”. The noble Lord is shaking his head; I am not sure what he has in mind.

[Lord Thomas of Gresford]

I am not saying that. I am saying that had the Lord Chancellor been able to discuss in a committee—such as that is proposed—the merits of the particular candidate, we would not have had something which did not do the judiciary any good.

[Lord Falconer of Thoroton]

If the Lord Chancellor said “I want this candidate” and persuaded everybody, none of that would have been apparent. People would doubt the independence of the appointment from the political situation, or the political influences on the position. Do not be under any illusion; if the Lord Chancellor proceeds with this proposal, those people who have had dealings with the constitutional settlement will think that he is, without properly understanding it, going against the basis of the constitutional settlement which the noble Lord, Lord McNally, worked so hard to get through. As he said on Monday, the noble Lord, Lord Goodhart, was one of the main Liberal Democrat architects of the constitutional settlement, as was, as he also acknowledged on Monday, the noble and learned Lord, Lord Woolf. What on earth is the reason for so undermining the political independence of the judiciary?

For these reasons we support the amendments that are being made. If, as I think is unlikely, they are put to the vote today, we will support them. I earnestly ask that the Minister reconsiders the Government’s position on this, and the Lord Chief Justice’s position. It would be a really bad idea if people thought that a Conservative or Labour Secretary of State for Justice, not the Lord Chancellor, had appointed the Lord Chief Justice and the president of the Supreme Court.

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, I am grateful to those who have taken part in this, which is an interesting and important debate on a very important constitutional issue. I am not sure that I share the analysis of these proposals. As I said before, the Lord Chancellor is determined to defend the separation of powers and the independence of the judiciary. We are committed to the constitutional settlement that was brought in by the noble and learned Lord, Lord Falconer, when he was in office. But, as I said earlier, we are making proposals which, with the passage of time, improve on that settlement. The debate today is part of that.

Interestingly enough, I was flicking through Hansard for Monday evening. The noble and learned Lord is always passionate and eloquent, but he was particularly passionate and eloquent then. He was urging us not to take the Executive out of decisions on appointments in the lower courts. Well, that is what it says.

[Lord Falconer of Thoroton]

Can I answer that?

[Lord McNally]

Yes. Perhaps the noble and learned Lord would like to turn to column 112 of the Hansard of 25 June when, as I say, he was quite passionately making the case for the Executive being involved.

[Lord Falconer of Thoroton]

Indeed I was. The noble Lord, Lord McNally, was agreeing with me that the way you do it is to have an independent process of appointment which the Executive must endorse, or not, so that there is somebody responsible in Parliament to defend it. Does the noble Lord agree with that approach?

[Lord McNally]

The noble and learned Lord was saying that the Executive should be kept in the process. The noble and learned Lord is marvellous; he spends half his interventions twisting the words of people who disagree with him, and when anybody tries to put him right, he starts protesting.

Of course the Lord Chancellor is accountable to Parliament. That is central to the settlement. He is responsible to the public for the overall process of judicial appointments and the effective working of the judicial system. It is important, at this very senior level of the judiciary, that as well as possessing first-rate judicial skills, candidates for the leadership roles are alive to the management and administrative issues that affect the administration of justice and are able to work with the Government on developing the system. This is an area where the view of the Lord Chancellor is likely to be of particular importance. This is therefore a legitimate role for the Lord Chancellor to play in the most senior judicial appointment.

I know that the noble and learned Lord has a kind of sense of ownership of the constitutional settlement.

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[Lord Falconer of Thoroton]

I am happy to change it.

[Lord McNally]

Well, if he is happy to change it, perhaps he will listen to the argument for making just the smallest tweak in the perfect construction that he left for us. That means that it should be balanced appropriately against judicial and lay input into the process. It should respect, as I have said, the independence of the judiciary.

[Lord Falconer of Thoroton]

Lay input is how you get management experience, I agree. What is wrong with the non-legally qualified person, the member of the Northern Ireland commission, the member of the Scottish commission and the member of the English commission? There is a quite substantial balance of lay people already.

[Lord McNally]

We had a very vigorous discussion about this when we had a second go in front of the Constitution Committee. Looking at those three top jobs—the presidency, the Lord Chief Justice and the Lord Chancellor—I was struck by the fact that it is not just judicial excellence but a whole fingertip interrelationship that makes those three jobs work. That is why the Lord Chancellor is arguing, and I am convinced of this—it is not just a matter of me saying, “The Government believe”—that an input into the selection process at the selection board—

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[Lord McNally]

I was about to come to the interventions of the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Prashar. I do not think that my noble friend Lady Falkner got it wrong at all, despite her being bullied by the noble and learned Lord, Lord Falconer.

[Lord Falconer of Thoroton]

I apologise to the noble Baroness, Lady Falkner of Margravine, who I have never thought of as someone who it was possible to bully. However, if the noble Lord, Lord McNally, was under that impression, that just goes to show how wrong perceptions can develop.

[Lord McNally]

Turning to the other noble Baronesses, to get them going as well, there did seem to be a suggestion of, “Don’t worry, because the present system already has the nudges, nods and winks that will get”—

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[Lord McNally]

Quite often in politics, in the law and in other parts of life, one finds oneself working with someone whom you do not particularly like. The difference this time is that there would be no political veto to that committee’s decision. It is worth putting on record that this would be a Lord Chancellor withdrawing his veto from those appointments. Yet, with his silken sophistry, the noble and learned Lord, Lord Falconer, implies that this is an extension of political power. It is just the opposite of the extension of political interference.

[Lord Falconer of Thoroton]

I was not implying it; I was saying it expressly, because that is plainly what is happening.

[Lord McNally]

It is simply not true, and anyone who is looking at this sees that it is a move away from a politician being able to exercise a veto to a politician transparently taking part in a process. If the Members of this Committee cannot see that, we will presumably withdraw it or take it back.

[Lord McNally]

It has been the feeling that the retention of a veto in this matter was keeping in the political process.

[Lord Falconer of Thoroton]

So why is a veto being kept for every other member of the Supreme Court, every member of the Court of Appeal and every member of the High Court?

[Lord McNally]

I have explained before that this unique triumvirate is very important, and that that is why we have adopted a very distinctive way of making this selection. I am not sure how far I can take the Committee, except perhaps to read from the letter that I wrote to the noble Baroness, Lady Jay, which the noble and learned Lord, Lord Falconer, said he had not had the pleasure of sharing. In that letter I said: “At the present the Lord Chancellor decides at the end of the selection process whether to accept or reject the name put forward by the panel or to ask for the panel’s decision to be reconsidered. In practice, under these current arrangements it may be difficult to make use of the veto in these high-profile cases without risking perception of politicisation of the process. This difficulty was acknowledged by Lord Phillips and others in their evidence to your committee”—that is, the committee of the noble Baroness, Lady Jay. “The Government therefore considers that allowing the Lord Chancellor to sit on the panel will enable his accountability to be exercised in a more direct and effective way. You will, of course, be aware that the Lord Chancellor’s involvement as a member of the selection panel was supported in evidence to the Constitutional Committee by both the Lord Chief Justice and the president of the UK Supreme Court”. So I am not isolated in this view.

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[Lord McNally]

No. I am very grateful to the noble Baroness because I should have clarified this point. The Bill says that the Lord Chancellor “may” be a member, but we intend to bring forward regulations setting out that the Lord Chancellor “will” be a member of the panel. This will not be able to be changed other than by a new regulation, which will be subject to affirmative procedures and agreement and to the agreement of the Lord Chief Justice and the president of the Supreme Court.

[Lord Falconer of Thoroton]

I would be rather averse, as would this House, to the constitution being changed in this way by regulations.

[Lord McNally]

I take note of what the noble and learned Lord says. I am merely saying what the intention is. Clearly—

[Lord Falconer of Thoroton]

I say that it is a deceptive question for the reasons that underlay the question of my noble friend Lady Jay. We thought that sometimes you would and sometimes you would not, but apparently you are always going to be a member of the panel.

[Lord McNally]

There is no deception; I have nothing up my sleeve.

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[Lord Thomas of Gresford]

My Lords, before the Committee sat I informed the noble Lord, Lord Pannick, that I was fairly relaxed and neutral about his amendment. However, the more I have listened to the argument, the more I have come down on the Government’s side. I recall the very unseemly row when the former Lord Chancellor’s veto was exercised in relation to an appointment, and I believe that I put down a Parliamentary Question. I think that he reversed his decision before I got the Answer, but I certainly tabled a Question about it. There was a furore at the Bar and I was approached by many people to do what I could to defend the reputation of a person who was considered to be the best judge in a particular division. It was extremely unseemly and the Lord Chancellor backed down. What did that say? He had given his veto and then he withdrew it and the appointment went ahead. All these matters should have been sorted out but not in such a public way as to damage the reputation of the person concerned and damage the reputation of the Lord Chancellor, if it needed to be damaged any further. It did not resolve the situation.

I have heard the debate and, as I understand it, the Lord Chancellor does have discussions behind the scenes with the Appointments Commission. That is what was said in terms by the noble Baroness, Lady Prashar. I do not think that that is right. I think we should have an open system. She said that it was open and transparent. It was not—I did not know about it, although I was sufficiently involved to put down a Parliamentary Question about the matter in issue.

[Lord Falconer of Thoroton]

How would the discussions between the Lord Chancellor and the other members of the committee that the noble Lord envisages be transparent?

[Lord Thomas of Gresford]

The fact that it is happening is transparent. That is where the argument can be held and not in public, which damages people’s reputations. The noble Lord said that the Lord Chancellor will always have his way. What sort of a pushover does he think these people in the commission are that they will simply bow down to a political figure? I do not believe that the chairs of the Judicial Appointments Commission in Northern Ireland, Scotland, England and Wales are going to follow a political lead because the Lord Chancellor does not like someone on political grounds. He may have some knowledge that does not involve the politics of the matter and that would persuade the other members of the commission, but I do not think that he would persuade them on political grounds, which is what the noble and learned Lord, Lord Falconer, said. He nods. Perhaps he was a very persuasive Lord Chancellor in private.

[Lord Falconer of Thoroton]

Under the new system, I would have the power. That is the point.

[Lord Thomas of Gresford]

He had the veto, although I do not think that he ever exercised it.

[Lord Falconer of Thoroton]

I never exercised the veto, although my successor considered it and everything was open.

[Lord Thomas of Gresford]

Why did he exercise it? We do not know. Did he say so at the time? He did not say, “For political reasons I do not want that person as the head of the division”. He did not give us his reasons. It was not discussed with anybody. He just vetoed that appointment and it was unfairly damaging to the person concerned.

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[Lord Thomas of Gresford]

My Lords, I support the amendment for all the reasons that the noble Lord, Lord Pannick, gave. However, I would suggest an alternative. If we are not going to go to 75, the alternative is to appoint judges to the Supreme Court who have not gone through the processes of the High Court, the Court of Appeal and so on. We have the power now, apparently, to appoint people to the Supreme Court who have not been in the Court of Appeal. It was interesting that, on Monday, the noble and learned Lord, Lord Lloyd of Berwick, said, “Of course, members of the Supreme Court will have come from the Court of Appeal”. I do not think that that is necessary. I think that the pool should be broadened. There are people in academic life and lawyers at the Bar who would be appropriate as members of the Supreme Court. The age of 70 is ridiculously low. If it is to stay at that, people should be appointed in their 50s—early 50s perhaps—to the Supreme Court without having to go through the cursus honorum required at present.

[Lord Falconer of Thoroton]

My Lords, I strongly support the amendment for the reasons given by the noble Lord, Lord Pannick, the noble and learned Baroness, Lady Butler-Sloss, the noble Baroness, Lady Jay, and the noble Lord, Lord Thomas of Gresford. It is an important amendment on a matter that is already causing difficulty. The loss of the noble and learned Lord, Lord Collins, from the Supreme Court was a direct result of the reduction in the retiring age. The Government now have an opportunity to do something about that, because this is a legislative opportunity.

[Lord McNally]

My Lords, this is probably the last Chamber on earth where Ministers should be defending a retirement age of 70. I have listened very carefully to what has been said. I understand and sympathise with some of the frustrations. The noble and learned Lord, Lord Falconer, just referred to the case where someone comes to senior judicial office for a very short term. I also acknowledge that, in many cases, those judges would be able to continue beyond the age of 70 in terms of their intellectual sharpness. In such cases, they can be a costly loss to the judiciary. I am not sure that I go as far as the noble Lord, Lord Gilbert, in advocating no retirement age at all—I have always been a strong supporter of a retirement age for this House. However, that goes into a different issue. I see that the noble Lord is about to come up for air.

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[Baroness Jay of Paddington]

My Lords, like the noble and learned Lord, Lord Woolf, I rise really for the sake of the record and because my name is on this amendment. As the noble Lord, Lord Pannick, said in introducing the amendment, this was one of the very strong recommendations that the Constitution Committee made in its report on judicial appointments. The Minister has referred to his kindness in coming once again to speak to the Constitution Committee between Second Reading and Committee. He gave a very strong indication —and I do not think I say anything inappropriate—that he was favourably disposed to matters which we suggested counted as leadership matters in the question of diversity. He will remember the remarks he made on Monday when we spoke again about gesture politics in relation to another amendment, where he said that this was not about gesture politics, but about leadership and political leadership. I hope he will be consistent in his reply on this amendment.

[Lord Falconer of Thoroton]

My Lords, in 1997 I had the privilege of becoming the Solicitor-General. The first speech I made outside Parliament was in Nottingham, and the person who preceded me on that occasion was Mr John Selwyn Gummer, now Lord Deben. He said in his speech, “We are so lucky to have Charlie Falconer here. He is going to make a speech, it’ll have been written by his officials. It’ll be inspirational, but not so inspirational that you would want either legislative change or any additional expenditure of money”. It was exactly the same point as the noble Lord, Lord Deben, made just now: there is an important point in these amendments, and there needs to be an active and continuing role for the head of the government-end of the story, the Lord Chancellor, and the head of the judicial-end, the Lord Chief Justice, as well as the head of the appointments commission, in looking at the detail of issues and actually taking active steps to ensure the ability to promote diversity.

I am very grateful to the noble Baroness, Lady Prashar, for giving practical examples of what the Lord Chancellor can do. The Lord Chief Justice is able, for example, to make arrangements for working conditions which will promote diversity. The Judicial Appointments Commission will be actively seeking to promote diversity, all the more so now that the tie-break provision is likely to be in the Bill. The effect of our proposals is that everybody is in it together in promoting diversity. I very much adopt the approach of the noble Lord, Lord Deben: it is a basic requirement for the head of an organisation that is appointing people, whether they be judges or any other group. I hope that the Minister will feel able to embrace the basis of those proposals.

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[Lord McNally]

I will ponder on that, but I also ask the Committee to ponder on the Pannick amendment. The noble Lord’s proposal to write specific responsibilities into the Bill makes a regular appearance when we are legislating—I think that it is the second time that he has done it anyway and that makes it regular. The argument is usually the same; it is a please-stop-beating-your-wife amendment. These duties are embedded in the Bill and in the roles of both the Lord Chancellor and the Lord Chief Justice.

[Lord Falconer of Thoroton]

The Minister is making some serious points. I am surprised by the proposition that the Equality Act would already require the Lord Chancellor or the Lord Chief Justice, for example, to promote among young people and black and minority-ethnic groups a greater willingness to apply to be lawyers, because that is partly what trying to increase the pool involves. Is the Minister really saying that that obligation, to get more people to apply at a much younger age to learn to be lawyers, is already covered by the Equality Act?

[Lord McNally]

The Equality Act invites the Lord Chancellor and the Lord Chief Justice to apply the principles of the Equality Act to the job that they are doing, which is the point that I thought that the noble Lord, Lord Deben, was making: that if one is doing a job that is covered by the Equality Act, one should be carrying out the responsibilities in which those duties are embedded. I think that is true.

Amendment 121A also relates to the duty in Section 64 and to Supreme Court appointments. It would ensure that the Section 64 duty to encourage diversity in the range of persons available for selection applied to those appointments. The amendment would also provide that Section 63 of the Constitutional Reform Act should apply to Supreme Court appointments. This would have the effect that those appointments would be solely on merit, that the person should not be selected unless he or she is of good character and that where two persons are of equal merit, one can be selected over the other for the purpose of increasing diversity.

Before turning to the detail of the amendment, I should first say that diversity is, of course, important at all levels of the judiciary, up to and including the Supreme Court. In fact, it is particularly important at the higher levels, as female judges or judges from an ethnic minority can act as powerful role models for those at a more junior level in the judiciary. Indeed, due to their higher public profile, they may also act as a role model for younger people considering a legal or judicial career and may be a powerful symbol to the public at large with regard to the perception of the judiciary reflecting our society. We are supporting diversity at this level in the measures that we are taking in the Bill to enable flexible working arrangements at the highest level, including the Supreme Court.

Turning now to the detail of the amendment, and starting with the application of Section 63, the objective here is to apply the tipping-point provision in these cases. Section 159 of the Equality Act 2010 contains a provision to allow a person to be preferred to another on the basis of a protected characteristic, such as gender or race, when they are equally qualified to be appointed. In relation to judicial appointments in England and Wales, our view is that it is not clear that the tipping-point provision in the Equality Act can apply, because Section 63(2) specifies that selection must be solely on merit. This use of “solely” may be seen as precluding the use of the Equality Act test. That is why the Bill brings forward the new tipping-point provision in Section 63(4) so that it can apply to judicial appointments, selection for which is within the remit of the Judicial Appointments Commission, notwithstanding the use of “solely”.

In relation to appointments to the UK Supreme Court, however, there is no provision that appointment must be “solely” on merit. Section 27(5) of the Constitutional Reform Act specifies that appointment must be on merit. However, other considerations apply, in particular Section 25(8), which specifies that in making a selection the selection panel must ensure that the candidate has knowledge and experience of practice in the law of each part of the United Kingdom. As there is no reference to “solely”, we consider that there is no bar to the Equality Act tipping point applying to Supreme Court appointments without the need for further legislative change.

In relation to the application of Section 64 to the UK Supreme Court, I have already set out the commitment to encouraging diversity in the Supreme Court, but for the reason that I have already outlined in relation to Amendment 74, I do not consider that a statutory duty would add anything to this. In addition, in this case any statutory duty would also need to reflect the UK nature of the Supreme Court, so the current amendment, by placing this duty on the Lord Chief Justice of England and Wales and the Judicial Appointments Commission, would not be appropriate.

I understand where the noble Lord, Lord Pannick, and other noble Lords are coming from. We have a summer to consider these things, but I also hope that noble Lords who have been involved in legislation will know that these declaratory commitments that overlay existing commitments are not always as helpful as has been suggested. I hope to assuage the concern of the noble Baroness, Lady Prashar, by saying that we will look at the case that has been made this evening. As I say, at the moment we are not minded to accept the amendments, but with the promise that this debate will be among my summer reading I invite the noble Lord, Lord Pannick, to withdraw his amendment.

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Moved by

[Lord Falconer of Thoroton]

121AB: Schedule 12, page 173, line 32, at end insert—
“Judicial appointments13A After section 65 of the Constitutional Reform Act 2005 insert—
“65A Additional guidance
The Lord Chancellor, after consultation with the Lord Chief Justice, the Treasury Solicitor and the chairman of the Judicial Appointments Commission, shall issue guidance as to the circumstances in which those employed by the Government Legal Service, the Crown Prosecution Service or any other government legal office may apply for any of the judicial office or tribunal posts, which are in the remit of the Judicial Appointments Commission.””

[Lord Falconer of Thoroton]

My Lords, this amendment seeks to probe the Government’s attitude to the appointment of judges from the Government Legal Service, the Crown Prosecution Service and any other prosecution body in effect employed by the Government. We suggest in the amendment that the Lord Chancellor issue guidance as to the circumstances in which members of any government legal office may apply for either a judicial office or a tribunal post; those judicial offices and tribunal posts being ones that are covered by, or within the remit of, the Judicial Appointments Commission.

We have in mind two particular thoughts. First, members of the Crown Prosecution Service are limited from applying for judicial office because they cannot sit as recorders because they deal with crime—they cannot sit as recorders anywhere, as we understand it. Are we being deprived, as a result of that perhaps unnecessary limitation? Since members of the Bar and solicitors who practise in the criminal area are well able to sit as recorders, why should the same situation not apply to those employed by the Crown Prosecution Service?

Secondly, I cannot find what, if any, the limitations are that apply to people in the Government Legal Service applying either for part-time or full-time office as a judge. People in the Government Legal Service are a very diverse—in the sense that we have used that word in this debate—group of people of very great talent who make up a pool from whom very good judges could be selected. I would be grateful if the Minister would indicate the Government’s attitude towards appointments to the judiciary from prosecution services and the Government Legal Service and whether they intend to issue new guidance to make the position clear.

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[Lord McNally]

My Lords, I am very grateful for the amendment, because it allows me to clarify an important area: those who work in government legal services, the Crown Prosecution Service and other government legal offices. The intervention of the noble Lord, Lord Pannick, is extremely helpful, because it puts on record what a rich seam there is to be mined in those public appointments, and counterpoints the point that I have made several times from this Dispatch Box: that the public service has managed to make far more progress in promoting diversity over the past decades than has the private. We may learn lessons from that.

The Government are keen that members of the employed legal professions should take up judicial roles for which they are eligible, as like noble Lords, we are of the view that this could be a useful route to increasing diversity as well as ensuring that the Government can attract the best lawyers.

However, it has been the policy of successive Lord Chancellors that Crown Prosecution Service and other government lawyers when holding judicial office do not sit on cases involving their department. For CPS lawyers, this means that they cannot sit as recorders in the criminal courts, as the overwhelming majority of cases are prosecuted by the CPS.

Under the previous Administration, in 2003 the restrictions on applications by government lawyers were relaxed partially, and CPS lawyers became eligible for appointment as deputy district judges in magistrates’ courts. However, this was still on the basis that they did not sit on CPS-prosecuted cases, and therefore few roles are available.

The policy is based on the need to comply with Article 6 of the European Convention on Human Rights, which provides that litigants are entitled to be heard in front of an independent and impartial tribunal. Given those constraints, we need to think more creatively around the concept of a judicial career and how experience in one area can support subsequent appointment to judicial office in another area.

Opportunities are available for government lawyers to apply for judicial office. The published Judicial Appointments Commission programme for 2012-13 includes more than 300 vacancies for fee-paid office, which would be open to government lawyers to apply for. It is therefore important to communicate those opportunities available to government lawyers and to encourage them to take up judicial roles for which they are eligible—not least as this could be another useful route to increase diversity in the judiciary.

I am personally committed to playing a part in raising awareness of these opportunities. I recently met the Treasury Solicitor to discuss the best way to communicate them. I am also happy to consider any suggestions for changes to the current restrictions that apply to government lawyers to see whether we can go any further than the current practice—without, of course, infringing the rights to an independent and fair trial. When I met the Treasury Solicitor, I said that I was willing to write articles, go to seminars, or whatever, to raise the profile and awareness of those opportunities. As this is a probing amendment, I hope that the noble and learned Lord will believe that we are responding in this area and withdraw it.

[Lord Falconer of Thoroton]

I will certainly carefully consider what the Minister said. At the moment, he has given no reason why not to publish guidance that Parliament can consider. I invite him to consider whether guidance could be published regularly so that the issue is looked at with much more of a searchlight than at the moment. I will consider what the Minister said, in exchange for him agreeing—he is nodding—to consider what I said. I beg leave to withdraw the amendment.

Amendment 121AB withdrawn.

Moved by

[Lord Falconer of Thoroton]

121AC: Schedule 12, page 174, line 11, leave out “not be greater” and insert “be less”

[Lord Falconer of Thoroton]

My Lords, this is a short point about the Judicial Appointments Commission. Schedule 12 allows for equality between judicial members of the Judicial Appointments Commission and everyone else. I want to change that to make it clear that the judicial members will always be in the minority. As noble Lords will know, no one holds the judges in more admiration than me. One thing that is clear in the current process is that the judges’ views on appointing judges are very well expressed. Part of the reason for having the Judicial Appointments Commission was to bring in other people to the appointments process. I would like there to be judges on the Judicial Appointments Commission, but I would not want them to be, as it were, a blocking equality. I would be perfectly happy if they were in the most substantial minority. That is what I wish to reflect in the amendment.

[Lord McNally]

My Lords, if I could short-circuit debate on this, this is a very interesting proposal. I would like to take it away, consider it and bring it back on Report.