Rule of Law

Lord Kakkar Excerpts

Tuesday 26th November 2024 Lords Chamber

[Lord Kakkar (CB)]

My Lords, I join noble Lords in congratulating the noble and learned Baroness, Lady Smith of Cluny—the Advocate-General for Scotland —and the noble Baroness, Lady Laing of Elderslie, on their magnificent maiden speeches. They were truly great contributions to begin their long service in your Lordships’ House. I also congratulate the noble and learned Baroness on the thoughtful way in which she introduced this important debate.

As a surgeon by training I too am nervous about intervening in this debate, but I do so as chairman of the Judicial Appointments Commission between 2016 and 2022. The noble and learned Baroness, in mentioning the importance of an independent judiciary in securing the rule of law in our country, provided me with an opportunity to make some observations about one of the most important elements that underlies the fact that we have an independent judiciary in this country: it is that we enjoy an independent judicial appointment process. It was secured in the Constitutional Reform Act 2005, nearly 20 years ago. An important part of that legislation sets out the two statutory duties of the independent Judicial Appointments Commission: to appoint on merit individuals of good character, and to ensure diversity of application among those seeking judicial appointment. By large measure, that has been achieved over the past 20 years. We know that the principles that underlie independent judicial appointment include transparency, ensuring that there is no corruption in the judicial appointment process, appointments made on merit, and diversity of representation in the appointment process. Indeed, that appointment process can ultimately achieve diversity among the judiciary.

In pursuing independent judicial appointment, the Constitutional Reform Act rightly ensured that the levers that might be properly exercised to achieve diversity of appointment and representation in the judiciary were distributed across three main bodies: the Lord Chief Justice, the Lord Chancellor and the Judicial Appointments Commission. In so doing, it might be suggested that there was some limitation in bringing those three elements together to ensure that action could be taken that would drive forward achieving diversity among the different jurisdictions in England and Wales.

When one looks at how other common-law jurisdictions have performed and succeeded with regard to judicial appointment to secure independence and achieve diversity, one finds research undertaken a few years ago by the Judicial Appointments Commission and recently published. It established that we have the largest number of initiatives and give the greatest attention to achieving the important objective of diversity, but always in the context of putting at the very heart of our appointment process the need to appoint on merit. We also take every possible action to ensure that candidates are not put off by the appointment process but rather are encouraged to seek appointment and therefore to serve in the judiciary and to ensure, as a result of that, that we secure and maintain the confidence of the public in the judicial system and, indeed, our judges.

There are important challenges that face all this. One of the difficult questions that has been faced over recent years is criticism of judges. Criticism of judges for whatever reason has, as mentioned by the noble Lord, Lord Lilley, the potential to suggest that judicial appointment in our country should be conducted in a different way. Some commentators have suggested that rather than having an independent commission responsible for that independent process—indeed, the previous Administration made clear that they would not interfere in it—one of the ways to overcome the problem of the perception that the courts are some way distant from the will of Parliament, or indeed the will of the Executive, is for there to be greater parliamentary scrutiny of judicial appointments.

It is quite right that the appointment process is scrutinised. The chair of the Judicial Appointments Commission is obliged to appear before the Justice Select Committee in the House of Commons on a regular basis and before the Constitution Committee of your Lordships’ House to ensure that Parliament has the capacity to scrutinise that independent process and give a view on it. However, to move to the system in the United States where there is congressional involvement, with direct questioning of candidates appointed to senior judicial office, would be quite alien to our system and would draw Parliament into a position of direct influence in the appointment of an independent judiciary that would be very unhelpful and unwelcome.

Indeed, one might argue that if one day the House of Lords Appointments Commission, which I also had the privilege of chairing for a period of time, were to be put on a statutory basis and its criteria were to become statutory, ultimately there might be an opportunity for that statute and decisions based on those criteria to be challenged in the courts by way of judicial review. If that were the case, ultimately judges might start to determine who would sit in your Lordships’ House. That would be considered inappropriate, so these divisions are vital.

In answering, will the Attorney-General confirm, first, His Majesty’s Government’s commitment to independent judicial appointment as laid out in the Constitutional Reform Act 2005? Secondly, with regard to the important challenge pertaining to the diversity of the judiciary and the pace at which it is achieved—we always hear about it when there is a discussion about judicial appointment in the jurisdiction of England and Wales—can he confirm that, although there are well-meaning suggestions that quotas might be introduced and imposed on the appointment process to determine the proportion of judges appointed, the best way is to ensure that the system is fair and transparent and that every opportunity is taken to ensure that there are schemes and opportunities through exposure and other tools to develop those who wish to seek judicial appointment, so that they are properly prepared to participate successfully in the process and then serve on the Bench, in such a way that every appointment is considered to be made on the basis of merit and merit alone?