Procedure for Appointing Judges

Debate between Robert Neill and Keith Vaz

Tuesday 8th October 2019 Westminster Hall

[Robert Neill]

My hon. Friend is right. There are two misnomers in this sense. Confirmation, in the strict sense of the word, is not really what we are doing. We are scrutinising the integrity of the appointments process, which is an altogether different matter and entirely consistent with our tradition. In the same way, I wonder, were the legislation for the Supreme Court being drafted now, would we call it a Supreme Court, as opposed to a Court of Final Appeal? That has rather unfortunate implications, but that is really what it is. It is not quite like the Supreme Court in the United States, and the name sometimes gives people the wrong idea about its function.

The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East is absolutely right to say that in the recent cases that have attracted press attention, the courts—both at first instance the High Court or the Court of Session and then the Supreme Court—were asked to answer legal questions, and they gave legal answers. It is as simple as that. The judges did their job as lawyers. The attacks on our senior judiciary by some of the press are an outright disgrace and a shame upon this country. They should be called out for what they are: gutter journalism. Would to God that we had a press in this country that had anything like the quality and integrity of our judiciary. We would be the better place for it.

We are fortunate in the quality of our judiciary in all parts of the United Kingdom. We have a rigorous selection process. I am particularly aware of the work of the Judicial Appointments Commission in England and Wales, but I am cognisant of the like work that is done in Scotland and Northern Ireland by their appointments boards. I pay tribute to the work of Lord Kakkar and his colleagues on the Judicial Appointments Commission for England and Wales. The Justice Committee has had the opportunity to observe and scrutinise its work, and it is accountable to us and to Parliament for the process it engages in. Recently it published its report for the year just gone; it is a substantial document that clearly sets out the methodology by which it works and the consequences.

[Keith Vaz]

I am most grateful to the Chair of the Select Committee for giving way. May I declare my interest, which I forgot to do earlier, as a non-practising barrister? My wife is a part-time judge. I put this to the hon. Gentleman: with the system we have now—as opposed to the old system, where the Lord Chancellor made the decision himself, and it was only men who were Lord Chancellor in those days—what does he think about laypersons being able to appoint judges to the highest judicial offices when they themselves are not legally qualified? I think the system is working well, apart from the diversity angle, but what does he think, not only as Chair of the Committee but as a lawyer, about people who are not legally qualified being able to opine on giving posts to those who are the most legally qualified?

[Robert Neill]

The right hon. Gentleman reminds me to refer Members to my entries in the Register of Members’ Financial Interests. I think I would approach the matter he raises in this way: for transparency and because the judiciary needs the confidence not only of the profession but of the wider population and the society it serves, there is a proper role for a lay element in the selection process. The set-up we have in England and Wales with the Judicial Appointments Commission, which has lay members together with experienced practitioners and members of the judiciary, is probably a pretty fair balance as far as that is concerned.

[Keith Vaz]

I am most grateful to the hon. Gentleman for giving way for a second time and enabling me to tempt him a little further. The cut-off age has deprived us of some pretty distinguished judges. Does he think we should go that step further and raise the limit from 70 to 75? Can I tempt him down that road?

[Robert Neill]

The right hon. Gentleman tempts me and I fall into the trap willingly: I entirely agree with him. It is a great shame that we have seen the retirement recently of very distinguished and able judges simply by effluxion of time. Lord Thomas of Cwmgiedd, Sir Brian Leveson, Lady Hallett—I was delighted to see her gain a peerage—and others still have much to offer the bench. When we have real difficulty with the recruitment and retention of the highest quality judges, it seems absurd to me to set 70, which most of us would regard as the new 50—certainly those of us who are getting nearer to it—as the limit. We are cutting people off at the height of their professional powers. They have much more to offer and, interestingly, will very often be found, perfectly legitimately and properly, exercising their skills as arbitrators or mediators in commercial jurisdictions, when they would be very happy to continue exercising those skills in high public office as members of the judiciary.

I earnestly hope that one message the Minister takes back to the Lord Chancellor, who I know is apprised of the matter, is that if we have a legislative opportunity in the new Session, we should tack on a clause to increase the judicial retirement age to 75. That would be warmly welcomed. There is more that we need to do at the other end in terms of diversity. There have been improvements, but the right hon. Member for Leicester East (Keith Vaz) is right that we need in particular to improve black, Asian and minority ethnic representation in the judiciary. There are signs of improvement, but there is much more to do.

We have made improvements in relation to gender diversity, but ethnic diversity is something that we still need to work on, as well as perhaps social background more generally. As a member of the Bar, I recognise the potential value of recruiting solicitor judges in broadening the social background base of the profession. There are now some very good and able solicitor judges, and I hope that we can encourage that too.

In a short speech, I wanted to reinforce what the Lord Chancellor, who is admirably playing his role in defending the independence of the judiciary, has said, and to recognise the point fairly made by my hon. Friend the Member for Henley (John Howell) that the independence of the judiciary is not just important in terms of the checks and balances of our own constitution, which are critical, but wholly consistent with our international obligations. My hon. Friend serves as a distinguished member of the Parliamentary Assembly of the Council of Europe, which is something that I have had the pleasure of doing, as have you, Mr Sharma. We all know that Britain is looked up to by our colleagues because of the independence of our judiciary. How would we be able to exercise restraint on some of the emerging democracies in eastern and central Europe, where such independence is not always to be found, were we to do anything that diluted our judicial independence?

It is important that we maintain judicial independence to meet our obligations under article 6 of the European convention, never mind article 14 of the international covenant on civil and political rights and, of course, the UN basic principles on the independence of the judiciary. If we want Britain to remain a world leader in high esteem, maintaining the independence of the judiciary is critical. I hope that the debate will enable us to send a message to all at large that we recognise the checks and balances that are implicit in, and that underpin, our constitution, and that the separation of powers, the independence of the judiciary, and the acceptance of its independence by all, whether we agree with an individual decision or not, are crucial to our national wellbeing.