Constitutional Reform Bill

HL Deb 14 December 2004 vol 667 cc1275-305

9 p.m.

Further consideration of amendments on Report resumed on Clause 44.

Baroness Ashton of Upholland moved Amendment No.141A:

Page 19, line 3, leave out subsection (4) and insert—

"(4A) Before making an order under this section, the Minister must consult all of the following—

1. (a) the persons listed in subsection (4B);
2. (b) the bodies listed in subsection (4C).

(4B) The persons referred to in subsection (4A)(a) are—

1. (a) the President of the Supreme Court;
2. (b) the Lord Chief Justice of England and Wales;
3. (c) the Master of the Rolls;
4. (d) the Lord President of the Court of Session;
5. (e) the Lord Chief Justice of Northern Ireland;
6. (f) the Lord Justice Clerk;
7. (g) the President of the Queen's Bench Division;
8. (h) the President of the Family Division;
9. (i) the Chancellor of the High Court.

(4C) The bodies referred to in subsection (4A)(b) are—

1. (a) the General Council of the Bar of England and Wales;
2. (b) the Law Society of England and Wales;
3. (c) the Faculty of Advocates of Scotland;
4. (d) the Law Society of Scotland;
5. (e) the General Council of the Bar of Northern Ireland;
6. (f) the Law Society of Northern Ireland."

The noble Baroness said: My Lords, in moving Amendment No.141A, 1 shall speak also to the other amendments in the group standing in the names of the noble Duke, the Duke of Montrose, and the noble Baroness, Lady Carnegy of Lour, and government Amendment No.150A.

The amendments tabled by the noble Duke add to the list of those required to be consulted in relation to the exercise of certain powers affecting the operation of the Supreme Court. After considering the arguments on Amendments Nos. 142 and 143 in Committee, the Government have concluded that there is merit in them—so much so that we have tabled government amendments to very similar effect.

Amendment No. 141A has been drafted to ensure that it achieves the same end as Amendments Nos. 142 and 143, tabled by the noble Duke, the Duke of Montrose, and the noble Baroness, Lady Carnegy of Lour—the addition of the Lord Justice Clerk and the legal professional bodies to the list of those who must be consulted.

The opportunity has been taken, however, to separate out the judges to be consulted from the bodies to be consulted, with a consequent shortening of the rather long single list which would otherwise result. I hope that noble Lords will agree that this makes for an improvement in the structure of the clause. I therefore hope that the noble Duke and the noble Baroness will feel able to withdraw their amendments.

Amendment No. 150A adds the Lord Justice Clerk to the list of senior judges in Clause 48, the significance of which is that the "senior judges" must be consulted about the selection of suitable candidates for appointment to any vacancy in the Supreme Court, subject to their not being candidates themselves or members of the selection commission.

The amendment was, in a very slightly different form, originally tabled by the noble Duke, the Duke of Montrose, and the noble Baroness, Lady Carnegy of Lour, in Committee and has been brought forward on Report in the same format. There was considerable support for this proposal in your Lordships' House and, on reflection, the Government agree with the arguments of the noble Duke and the noble Baroness and have now tabled an amendment to give effect to that agreement. On that basis, I hope that the noble Duke, the Duke of Montrose, and the noble Baroness, Lady Carnegy of Lour, will agree to withdraw their amendments. I beg to move.

The Deputy Speaker (Lord Ampthill)

My Lords, I should remind the House that if this amendment is agreed to I cannot call Amendments Nos.142 and 143.

The Duke of Montrose

My Lords, I thank the Minister for her words. This was always going to be a sensitive subject. I am glad that, through the amendment, the Government are opening up the question of consultation to a fairly wide list of responsible bodies. This includes those to whom I and my noble friend Lady Carnegy of Lour referred in our amendment in Committee. I welcome the changes in the amendment.

The Minister has accepted the contents of Amendment No. 150, but in Amendment No. 141A the Government have placed the Lord Justice Clerk one rung further down the ladder from the position that I suggested. Perhaps the Minister can explain the system used to determine those matters and whether I should accept the difference.

Baroness Ashton of Upholland

My Lords, if I could answer the noble Duke's question, he can be assured that I would. I shall endeavour to find out, but I suspect that it has nothing to do with anything other than the appropriate way in which these lists are drawn up.

On Question, amendment agreed to.

[Amendments Nos. 142 to 144 not moved.]

Clause 45 [Fees: supplementary]:

[Amendment No. 145 not moved.]

Baroness Ashton of Upholland moved Amendment No. 145A: After Clause 45, insert the following new clause—

"ANNUAL REPORT

(1) As soon as practicable after each financial year, the chief executive of the Supreme Court must prepare a report about the business of the Supreme Court during that year and give a copy of that report to the following persons—

1. (a) the Minister;
2. (b) the First Minister in Scotland;
3. (c) the First Minister and the deputy First Minister in Northern Ireland;
4. (d) the Assembly First Secretary in Wales.

(2) The Minister must lay a copy of any report of which a copy is given under subsection (1)(a) before each House of Parliament.

(3) Each of the following is a "financial year" for the purposes of this section—

1. (a) the period which begins with the date on which this section comes into force and ends with the following 31 March;
2. (b) each successive period of 12 months."

On Question, amendment agreed to.

Clause 46 [Records of the Supreme Court]:

[Amendment No. 146 not moved.]

Clause 47 [Proceedings under jurisdiction transferred to Supreme Court]:

[Amendment No. 147 not moved.]

Schedule 9 [Proceedings under jurisdiction transferred to Supreme Court]:

[Amendment No. 148 not moved.]

Clause 48 [Interpretation of Part 2]:

[Amendments Nos. 149 and 150 not moved.]

Baroness Ashton of Upholland moved Amendment No.150A:

Page 19, line 40, at end insert— (ea) the Lord Justice Clerk;

On Question, amendment agreed to.

[Amendments Nos. 151 to 155 not moved.]

Schedule 10 [The Judicial Appointments Commission]:

Baroness Ashton of Upholland moved Amendment No. 155A:

Page 205, line 24, at end insert "of a county court, a District Judge (Magistrates' Courts) or a person appointed to an office under section 89 of the Supreme Court Act 1981"

The noble Baroness said: My Lords, these amendments to Schedule 10 are technical and drafting amendments to clarify and define what is meant by certain judicial offices. They also tidy up some of the drafting in the Bill.

Amendment No. 155A further clarifies and defines what is meant by the office of district judge in the context of judicial membership of the Judicial Appointments Commission. The district judge member of the commission will include the offices of district judge of the county court, a district judge in magistrates' courts or a person appointed to an office under Section 89 of the Supreme Court Act 1981. Those offices are: Senior Master of the Queen's Bench Division; Chief Chancery Master; Chief Taxing Master; Chief Bankruptcy Registrar; Senior District Judge of the Family Division; Master, Queen's Bench Division; Queen's Coroner and Attorney and Master of the Crown Office and Registrar of Criminal Appeals; Admiralty Registrar; Master, Chancery Division; Registrar in Bankruptcy of the High Court; Taxing Master of the Supreme Court; District Judge of the Principal Registry of the Family Division; and Master of the Court of Protection.

Amendments Nos. 156A and 156G are consequential drafting amendments applying the improved definition to Schedule 10 to the Bill, so a full definition is no longer required in paragraph 6(1), and linking it to the reference to district judge in paragraph 11 of Schedule 10, which sets out the seniority of the judicial members of the commission.

Amendment No. 155C is a technical amendment to ensure that the lay justice member of the Judicial Appointments Commission should be just that. It provides that holders of offices listed in Part 3 of Schedule 12 who may also have been appointed justices of the peace are not eligible for membership of this category. The effect is to exclude anyone from being a lay justice member who is a justice of the peace who holds any other office listed in the Bill. The only exception is the office of general commissioner of income tax. That role has a number of similarities to the role of justice, for example. The members of that tribunal are not legally qualified, and sit in benches to consider cases, so it would clearly not be right for dual membership to disqualify them for commission membership.

Amendment No. 156K is a drafting improvement. We believe that the existing wording might give rise to some uncertainties, for example, it might be contended that the commission climes into existence when the commissioners are appointed, not when the commencement order comes into force. The amendment removes the ambiguity. I beg to move.

On Question, amendment agreed to.

Lord Lester of Herne Hill moved Amendment No. 155B:

Page 205, line 32, leave out from "is" to "employed" in line 35.

The noble Lord said: My Lords, in moving Amendment No. 155B, I shall speak also to the other amendments that have been grouped with it. Section 49 of the Bill provides for the Judicial Appointments Commission. Schedule 10 is about the commission. The commission consists of a chairman and 14 other commissioners, appointed by Her Majesty at the recommendation of the Minister. Paragraph 3 of Schedule 10 provides that a person must not be appointed as a commissioner if he is a member of this House. The purpose of my amendment is to remove that sweepingly broad disqualification so that Cross-Benchers who are not tainted, as, for example, I am, by being political Peers are eligible to become members of the commission. I fully recognise why Members of the other House are disqualified and I also recognise why those who are still political would not be appropriate to be members of the commission.

I shall briefly explain what each amendment does. Amendment No.155B amends paragraph 3 of Schedule 10 to delete the prohibition on appointing Members of the House as commissioners.

Amendment No. 156B would amend paragraph 8(9)(e) of Schedule 10, which provides that the first member of the panel selecting commissioners may not be a Member of either House of Parliament and substitutes a prohibition on Members of the House of Commons.

Amendment No. 156C would amend paragraph 8(10) of Schedule 10, which provides that a person may not be the third member of the panel selecting the commissioners if he is a Member of either House of Parliament. It substitutes a prohibition on Members of the House of Commons.

Amendment No. 156D tidies up paragraph 8(11) of Schedule 10 and clarifies that the sub-paragraphs of paragraph 11 are the questions which the Minister and the Lord Chief Justice or Head of Division must consider.

Amendment No. 156E would insert a new sub-paragraph (c) into paragraph 8(11) of Schedule 10, requiring the Minister and the Lord Chief Justice, in selecting the first member of the panel that will choose commissioners, to consider whether the extent of a person's party political activity or affiliation makes them unsuitable for appointment as a member of the panel. That is designed to ensure that, even following the removal of the prohibition on Peers as members of the panel, Peers who are associated with a political party will not be selected. The provision also applies to non-Peers being considered for the post. So someone who was a Member of neither House of Parliament but was a prominent political activist outside Parliament should not be selected as a first member of the panel.

The amendment would also insert a new paragraph, 8(12), which would ensure that the question set out in paragraph 8(11), including new sub-paragraph (c), would also be considered by the first member before nominating a person to be appointed as the third member of the panel.

Finally, Amendment No. 156F would insert a new sub-paragraph (c) into paragraph 10(3) of Schedule 10, requiring the panel, in selecting members of the commission, to consider whether the extent of a person's party political activity or affiliation makes them unsuitable for appointment as a commissioner. It is designed to ensure that even following the removal of the prohibition on Peers as members of the panel, Peers who are associated with a political party will not be selected. It also applies to non-Peers, as I have said, being considered for the posts, so someone who was a Member of neither House of Parliament but was a prominent political activist outside Parliament would not be selected as a commissioner. I beg to move.

Baroness Ashton of Upholland

My Lords, I thank the noble Lord, Lord Lester of Herne Hill, for the amendments. We have been concerned, and are still concerned, to prevent the new Judicial Appointments Commission being subject to party political domination or influence. The Bill therefore prevented Members of either House of Parliament being appointed as members of the commission or being members of the appointing panel that will choose the commissioners.

On reflection, we agree that many distinguished figures in public life, with the experience and qualities that might well suit them to the work of the commission, are Cross-Bench Peers. There is no good reason why those of your Lordships' House without clear party political affiliations should be barred from membership of the commission. As the noble Lord, Lord Lester, has indicated, the amendments would remove the restriction on Peers and put in place instead a test of whether someone, whether or not they are a Peer, has past or present party political activities or associations that make them unsuitable for appointment.

In addition, we intend that the terms and conditions of commissioners and their code of conduct will make it clear that they are barred from party political activities. Any commissioner who wished to pursue a party political career would have to resign.

I should take the opportunity to inform your Lordships, with regret, that Dame Rennie Fritchie, the Commissioner for Public Appointments, has decided that she will not, after all, be able to chair the panel selecting commissioners, as was previously announced. That is because her tenure has been extended until next July, when the process of selecting commissioners is likely to be under way, and it would not be appropriate for her to take part in a process about which she might have to consider complaints. Previously, Dame Rennie's term of office had been due to come to an end in February, so she would have been available to chair the panel.

The noble and learned Lords the Lord Chancellor and the Lord Chief Justice have yet to select a new first member of the panel, but the amendments tabled by the noble Lord, Lord Lester, would allow them to select a Cross-Bench Peer if they thought that appropriate.

I welcome the amendments. The Government are happy to accept them, and I hope that the House can, too.

9.15 p.m.

Lord Henley

My Lords, the amendment relates to Cross-Bench Peers, and we all accept that most Cross-Bench Peers have no party political affiliation. However, I understand that a number of Cross-Bench Peers have been members of other political parties or sit as Cross-Bench Peers but are actually still, despite that, card-carrying members of one or other party. Would they be excluded from sitting?

Baroness Ashton of Upholland

My Lords, the amendment says that the test covers someone whose past or present political activities make them unsuitable for appointment. Cases would be examined on an individual basis. If that made people inappropriate for appointment, so be it. However, the essence of the amendment is that when it is clear that somebody has a neutral position, if I can describe it that way, they should be eligible for appointment.

Lord Henley

My Lords, the point is that merely being a Cross-Bencher does not make that person neutral.

Baroness Ashton of Upholland

My Lords, indeed. The amendment removes the restriction on Peers and replaces it with a test of whether someone—whether or not they are a Peer—has past or present political activities or associations making them unsuitable for appointment. It is that change, which the noble Lord, Lord Henley, is getting at, that will make the difference. It applies to Cross-Bench Peers and also to those outside your Lordships' House.

Lord Lester of Herne Hill

My Lords, I thank the Minister very much and must say how happy I am. I always think that Bateman should do a cartoon for such occasions of "The Minister who accepts the Back-Bencher's amendment". It is such a rare experience, and I am very glad indeed. I hope that the first chair of the panel might be someone from the Cross Benches in this House because such a person with sufficient authority would know exactly how to conduct themselves with independence, integrity and authority. However, that is for another day.

On Question, amendment agreed to.

Baroness Ashton of Upholland moved Amendment No.155C:

Page 206, line 3, leave out sub-paragraph (4) and insert—

"(4) A lay justice member is a justice of the peace who—

1. (a) holds no other listed judicial office, or no other except that of General Commissioner,
2. (b) is not a practising barrister in England and Wales, and
1282
3. (c) is not a practising solicitor of the Supreme Court of England and Wales."

On Question, amendment agreed to.

Lord Borrie moved Amendment No.156:

Page 206, line 23, at end insert "and the chairman of the Commission"

The noble Lord said: My Lords, during the debates this afternoon and earlier, my noble and learned friend the Lord Chancellor said how important it was that the Judicial Appointments Commission had the role of recommending people for appointment to the judiciary. It is clear not only that it is a key feature of the Bill but that the Government must think it of sufficient importance to have set out in very clear and precise terms in Schedule 10 precisely the sort of people who are to be on the commission—the exact balance between members of the judiciary, members of the profession, lay members and magistrates. It lays down clearly and exactly how the membership of 14 plus the lay chairman should be made up. The precise way in which the commission is to be composed should not be too easily altered.

In proposing the amendment, I have received advice from the present Commission for Judicial Appointments. Although the existing commission does not recommend or make judicial appointments, it has a great deal of experience of them because it investigates complaints about those who may not have been given a fair opportunity to be appointed and it conducts audits of the High Court appointment process.

Schedule 10 sets out the composition of the new Judicial Appointments Commission and the numbers in each of the categories of judicial, professional and lay members. It then provides in paragraph 5 that the Lord Chancellor, who is to appoint the commission may, by order, alter the numbers in each category of membership subject only to the agreement of the Lord Chief Justice. I am glad that the agreement of the Lord Chief Justice is there, but my amendment would add the need for agreement with the chair of the commission itself. The chair of the commission will have, to my mind, the closest understanding of the workings of the commission on a day-to-day basis in a way in which my noble and learned friend the Lord Chief Justice will not. He will have a closer connection than that of the Lord Chief Justice. It seems appropriate that the chair should have a veto on altering the membership numbers in any category of members on the commission.

What could be done by ministerial order is very significant. It could alter the relationship or balance between lay and judicial members, for example. If noble Lords believe that the balance set out in Schedule 10 is appropriate and apt, your Lordships may be concerned that that balance could be altered by ministerial announcement—subject, admittedly, to the approval of both Houses of Parliament, but otherwise subject only to the approval of the Lord Chief Justice.

In Committee, when I proposed a similar amendment, the noble Lords, Lord Goodhart and Lord Maclennan of Rogart, attached their names to it and supported it in debate. I hope that they will continue to do so. My noble friend Lady Ashton, said in Committee on 18 October that she was happy to give a commitment at any rate that before making any such order as envisaged by paragraph 5 of Schedule 10, consultation would be made with the chair of the commission. To that extent, she seemed to support the spirit of my amendment. But I have to note that after saying that she went on to say, it is a much bigger step to make that amount to a veto on making such changes whatever the circumstances. There are possible circumstances when one would wish to make a change perhaps when the commission did not sufficiently recognise that such change needed to be made".—[Official Report, 18/10/04; col. 621.] I found that statement a little mysterious. Perhaps she can explain it a little more fully this evening so that your Lordships can understand fully what possible grounds there could be for a drastic change in the balance of the commission, which would justify an order from the Minister.

I suggest that it is illogical for the Lord Chief Justice but not the chair of the commission to have a veto on change. Perhaps there will be circumstances—if I can follow whatever sort of logic I can get from the Minister's statement —when it is desirable to make a change, when the Lord Chief Justice does not recognise such a change is needed. If a veto from the Lord Chief Justice, who is left directly involved with the commission, is acceptable, why not one from the chair of the commission? Logically, it should be neither or both. I beg to move.

Lord Renton

My Lords, I support this amendment, although it is moved by a Member supporting the present Government. It seems to me that if we rely entirely on the Lord Chief Justice for consent in this matter, it places a burden on him which he should not have to exercise alone. But if we include the chairman of the commission, we are being consistent.

Lord Goodhart

My Lords, although my noble friend and I did not put our names to the amendment on this occasion, we do in fact support it. We believe that in a sense the chairman of the commission can also be regarded as the protector of the concerns of the lay membership of the commission. While we entirely accept the concordat in this case, if left to our own devices we would probably have had a majority of lay members, as is the Scottish position.

It is perfectly foreseeable that at some time in future a Lord Chancellor, who will as matters now stand in statute be a distinguished lawyer and a High Court judge, might come to the conclusion that there were too many lay members on the commission, and use the powers to reduce that number, subject to parliamentary approval. We think that, in any event, where there is a reasonable case for variation of the numbers it should be possible to get the agreement of the chairman of the commission, and if not, it would be necessary for the Government—as this is a very important principle—to aim at primary legislation.

Baroness Howe of Idlicote

My Lords, I should like briefly to support this amendment. The Minister very kindly wrote a letter to me explaining the Government's position. I read it but I was not entirely convinced. I thought that the answer was to listen to the debate on the Floor of the House. I am convinced by what I have heard from the proposers of this amendment. I am particularly appreciative of the role of the current appointments commission. It seems to me that it has had a long period of watching what has happened in the past and making very good and well informed recommendations about how the situation should be conducted in the future.

If the noble Lord, Lord Borrie, presses the matter to a vote tonight, I would certainly support him. However, having said that, I rather hope that the Government will think again, that the noble Lord, Lord Borrie, will not press the matter and that perhaps we can come back to it at Third Reading.

Baroness Ashton of Upholland

My Lords, I had hoped that, as my noble friend Lord Borrie, suggested, I had won over the noble Lord, Lord Goodhart, and the noble Baroness, Lady Howe, but that is clearly not the case.

I say to my noble friend that there was nothing mysterious—I would like to be mysterious, but I fear that I am not—in what I was trying to say. I do not have very much to add. I believe that what I said in Committee was clear; namely, we believe it is right that the chairman is consulted. I gave that commitment and I happily repeat it now. However, we do not accept that that should amount to a veto being imposed by the chairman before an order can be laid. It would be a much larger step to give the chairman of the commission a veto on making changes in all circumstances with the result that—as the noble Lord, Lord Goodhart, said—the Government's only recourse, if they wanted to change the commission, would be further primary legislation. I do not believe that is the best approach to take.

I refer to a situation in which it was considered that the commission needed different expertise or a different balance of input from that provided by the Bill, and in which there was widespread concern, shared by the Minister and the Lord Chief Justice, regarding whether the commission was meeting the challenges that it faced. We believe that it would not be appropriate in those circumstances to allow the commission or its chairman to veto changes to its own composition designed to deal with perceived defects in its own performance or capacity. We believe it is possible—I am not suggesting anything with regard to the commission; I give this only as a theoretical example—that the problems might not be recognised by the commission itself—hence the need for those changes to be made. We believe that those matters should properly be left for the Lord Chancellor and the Lord Chief Justice.

I outlined a scenario which I hope is not likely but it is possible. As I have indicated, we should be very reluctant to put ourselves in a position where the only remedy would be further primary legislation to change the composition of the commission. I am sorry to disagree with my noble friend for whom I have enormous respect, but I hope that he will feel able to withdraw his amendment.

Lord Borrie

My Lords, I am most grateful to those who have spoken in this debate, particularly to the noble Lord, Lord Renton, because his party's Front Bench preferred to say nothing at all. I was delighted to hear that the noble Lord, Lord Goodhart, supports the measure. The noble Baroness, Lady Howe of Idlicote, is also very welcome as a supporter. Irrespective of the Conservative Front Bench's rather desultory attitude on the matter, it is somewhat late in the evening for me to press the matter to a vote. Therefore, I will not do so. I am grateful to the Minister for putting her comments on the record, which I will examine closely, because I found some of her remarks curious. The word "expertise", which I had not heard previously, cropped up. I will look closely at what she said. I hope that I will not need to bring the matter back to the House. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9.30 p.m.

Lord Falconer of Thoroton moved Amendment No.156A:

Page 206, leave out lines 25 to 29.

On Question, amendment agreed to.

Lord Lester of Herne Hill moved Amendments Nos.156B to 156F:

Page 208, line 22, leave out "either House of Parliament" and insert "the House of Commons"

Page 208, line 23, leave out "either House of Parliament" and insert "the House of Commons"

Page 208, line 27, at end insert "these questions"

Page 208, line 33, at end insert— (c) whether the extent of any present or past party political activity or affiliations appears to him to make the person inappropriate for the appointment.

(12) The first member must consider the same questions before nominating a person to be appointed as the third member."

Page 209, line 8, at end insert— (c) whether the extent of any present or past party political activity or affiliations appears to the panel to make the person inappropriate for the appointment.

On Question, amendments agreed to.

Lord Falconer of Thoroton moved Amendment No.156G:

Page 209, line 18, leave out "district judge" and insert "the offices mentioned in paragraph 2(3)(e)"

On Question, amendment agreed to.

Lord Lester of Herne Hill moved Amendment No. 156H:

Page 209, line 43, leave out sub-paragraph (3).

The noble Lord said: My Lords, in my wish to expedite the procedures of the House, I forgot to say anything about Amendments Nos. 156H and 156J. They tidy up paragraph 14 of Schedule 10, deleting subsection (3), which says that a commissioner ceases to be a commissioner on becoming a Member of the House of Lords or a civil servant, and inserting a new subsection at the end, which replaces the prohibition on commissioners becoming civil servants. This order is more logical than the existing order in the Bill, as the current subsection (4) relates to subsection (2) and not to subsection (3). I beg to move.

On Question, amendment agreed to.

Lord Lester of Herne Hill moved Amendment No.156J:

Page 210, line 7, at end insert— (5) A Commissioner ceases to be a Commissioner if he becomes employed in the civil service of the State.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendment No.156K:

Page 216, line 12, leave out "the Commission is established" and insert "section 49 comes into force"

On Question, amendment agreed to.

Schedule 11 [The Judicial Appointments and Conduct Ombudsman]:

Baroness Ashton of Upholland moved Amendment No. 156L:

Page 216, line 37, leave out "a judicial office" and insert "an office listed in Schedule 12"

The noble Baroness said: My Lords, these are technical and drafting amendments to clarify and define what is meant by some of the posts set out in Schedule 12. In addition, Amendment No. 163B clarifies the power in Clause 68 to amend Schedule 12, and Amendments Nos. 164E to 164G delete references to some posts that are currently listed in Schedule 12 but which should not be selected by the Judicial Appointments Commission, for reasons which I will explain.

Amendments Nos. 156L and 156M amend the provisions on who is ineligible for appointment as the ombudsman. They improve the drafting, so that it refers specifically to the offices listed in Schedule 12. Amendment No. 156N removes a possible ambiguity about commencement. The existing wording might give rise to some uncertainties. For example, it might be contended that the ombudsman comes into existence when the ombudsman is appointed, not when the commencement order comes into force, as the amendment provides.

Amendment No. 163B amends the power in Clause 68 for the Minister by order to amend Schedule 12, by adding a power to amend the schedule to reflect changes in the enactments under which an appointment is made. Amendments Nos. 164B and 164C correct the references in Part 1 of Schedule 12 to the Senior District Judge (Chief Magistrate) and Deputy Senior District Judge (Chief Magistrate), to bring them into line with Section 10A of the Justices of the Peace Act 1997.

Amendment No. 164D completes the references to the office of justice of the peace in Schedule 12. The existing appointment power is already listed. This will be replaced by Section 10(1) of the Courts Act 2003, when it is commenced next year. The amendment now adds a reference to the new power. Amendment No. 164E removes the references to acting chairman and acting deputy chairman of the Copyright Tribunal from Schedule 12. As the titles indicate, these are not substantive appointments, but temporary stopgaps, and are on reflection better treated as deployment issues to be dealt with by the Lord Chief Justice.

Amendment No. 164F removes the references to the member of the panel of chairmen of Reserve Forces Appeal Tribunals and the member of the panel of ordinary members of Reserve Forces Appeal Tribunals from Schedule 12. Those posts will not come under the ambit of the Judicial Appointments Commission, initially at least. The current practice for making appointments to those tribunals, which are needed only intermittently, is to do so by deployment from existing ranks of judicial office holders and not by separate competitions. Those arrangements work well, and there are no plans to change them. If it proved necessary in future for there to be separate competitions, the posts could be added to the commission's remit by amending Schedule 12.

Amendment No. 164G removes the reference to the president of the Immigration Appeal Tribunal from Schedule 12. The reason is that the post is now always held by a High Court judge. It will be for the Lord Chief Justice to deploy one of his High Court judges to the post after consultation with the Lord Chancellor. I beg to move.

On Question, amendment agreed to.

The Deputy Speaker

My Lords, would the noble Baroness care to move Amendments Nos. 156M, 156N, 156P and 156Q? The question is that those amendments be agreed to.

Baroness Ashton of Upholland

My Lords, I do not think that I spoke to Amendments Nos. 156P or 156Q. I am sorry if I confused the noble Lord. Should I speak to them now?

The Deputy Speaker

My Lords, I apologise to the noble Baroness. I repeat that the question is that Amendments Nos. 156M, 156N, 156P and 156Q be agreed to.

Baroness Ashton of Upholland

My Lords, I need to speak very briefly to Amendments Nos. 156P and 156Q, to which I have not already spoken. It might expedite matters if I do that.

The Deputy Speaker

I am sorry, my Lords; there are no speakers here and I could not hear exactly what the noble Baroness was saying. Amendments Nos. 156M and 156N must be dealt with first.

Baroness Ashton of Upholland moved Amendments Nos.156M and 156N:

Page 216, leave out line 39.

Page 220, line 18, leave out "the Ombudsman is established" and insert "section 50 comes into force"

On Question, amendments agreed to.

Lord Renton

My Lords, I hope that the noble Lord on the Woolsack is not racing through amendments. I thought that Amendment No. 156P required some comment.

Noble Lords

Order!

Lord Renton

That is what we are on at the moment, my Lords.

Baroness Ashton of Upholland

My Lords, the noble Lord is right; I am about to comment on precisely that amendment.

Lord Renton

My Lords, may I conclude?

Lord Evans of Temple Guiting

My Lords, the amendment has not yet been spoken to by the Minister.

Clause 51 [Merit and good character]:

Baroness Ashton of Upholland moved Amendment No. 156P:

Page 21, line 9, at end insert— () Selection must be solely on merit.

The noble Baroness said: We have got there, my Lords. I indicated in Committee on 18 October that we would amend the Bill to indicate a clearer and stronger formulation of the merit principle when selecting candidates for judicial appointment. We have taken into account the informed discussion in the Select Committee, when it was suggested that the wording could be amended to provide that selection must be solely on merit. That would put the matter beyond doubt and remove any possible suggestion that the merit criterion was in some way qualified by other considerations.

The Government agree that the best person must be selected for the post, as does the noble and learned Lord the Lord Chief Justice. The amendment makes it clearer that no other considerations should he taken into account when making selections for judicial appointments. I beg to move.

Lord Renton

My Lords, in the context of the Bill, surely it is inappropriate and irrelevant to say that that selection must be solely on merit? Surely all selections of a judicial character within the terms of the Bill would automatically be considered on merit. For us to write it into the statute seems to be unnecessary and inappropriate.

Lord Mackay of Clashfern

My Lords, I would have thought that it was pretty important to have it solely on merit. I wonder what would happen if two equally meritorious candidates presented themselves, if the appointment had to be solely on merit. Surely, merit must be the leading consideration, otherwise our judiciary might well suffer in the longer term.

Baroness Ashton of Upholland

My Lords, the noble and learned Lord, Lord Mackay, has, in a sense, answered the question put by the noble Lord, Lord Renton, which is that, yes, it is very important; yes, it was felt in the discussions at the Select Committee, and, indeed, by members of your Lordships' House, that it should be explicit. We agree and we have placed it there. The noble Lord, Lord Renton, feels that it does not need to be there, but it is there. Fortunately, if there are two candidates of equal merit, it will not be my decision.

On Question, amendment agreed to.

Baroness Ashton of Upholland moved Amendment No. 156Q:

Page 21, line 12, leave out subsection (3).

On Question, amendment agreed to.

Clause 52 [Guidance about procedures]:

[Amendments Nos. 156R to 156T not moved.]

Clause 53 [Guidance: supplementary]:

[Amendments Nos. 156U and 156V not moved.]

Clause 54 [Selection of Lord Chief Justice and Heads of Division]:

[Amendment No. 156W not moved.]

Clause 56 [Selection panel]:

Baroness Ashton of Upholland moved Amendment No. 156X:

Page 23, line 11, leave out from "or to end of line 17 and insert "four members. () The first member is the most senior England and Wales Supreme Court judge who is not disqualified, or his nominee.

The noble Baroness said: My Lords, perhaps I may turn the pages quickly enough to ensure that I am moving the right amendment. These amendments are technical and relate to the provisions for both the panels selecting the Lord Chief Justice and the Heads of Division and the panel selecting Appeal Court judges to ensure that all readily foreseeable circumstances are provided for.

The most senior Supreme Court judge or his nominee sits on the former and the chairman of the Commission or his nominee sit on both. The amendments allow for the possibility of the senior Supreme Court judge being a candidate for appointment as Lord Chief Justice, or, indeed, as a Head of Division and for chairman of the commission being unavailable or the post being vacant. As well as it being inappropriate for someone, however eminent, to sit on a panel considering his own candidacy for appointment, it also seems inappropriate for him to be seen to be the person to designate someone to take his place on the panel.

We have provided that where the senior Supreme Court judge is a candidate for appointment as Lord Chief Justice or Head of Division, the next most senior judge would take his place in the selection process. We have also catered for the chairman of the commission not being available to sit on either panel or to nominate someone to sit on his behalf. That could be because, as I have indicated, the post is vacant or because he or she is unavailable. While the latter may be a remote and regrettable possibility, we felt that we should cater for a situation where the incumbent, perhaps through illness, is really not in a position to play a part in the process. I beg to move.

On Question, amendment agreed to

The Deputy Speaker

My Lords, has the noble Baroness spoken to the remainder of the alphabet? I suggest to the House that Amendments Nos. 156Y, 156Z, 156AA, 156 AB, 156AC and 156AD be moved by the noble Baroness en bloc.

Baroness Ashton of Upholland moved Amendment Nos. 156Y to 156AD:

Page 23, line 18, leave out "participating judge" and insert "second member"

Page 23, line 19, at end insert—

"(2A) Unless subsection (4B) applies, the third member is the chairman of the Commission or his nominee.

(2B) The fourth member is a lay member of the Commission designated by the third member."

Page 23, line 23, after "judge" insert "who is not disqualified"

Page 23, line 24, leave out "participating judge" and insert "second member.

(4A) Subsection (4B) applies if—

1. (a) there is no chairman of the Commission, or
2. (b) the chairman of the Commission is unavailable and has not nominated a person under subsection (2A).

(4B) In those cases the third member is a lay member of the Commission selected by the lay members of the Commission other than the chairman."

Page 23, line 26, leave out "(1)(a)" and insert "(1A)"

Page 23, line 37, leave out from first "The" to "is" and insert "first member"

On Question, amendments agreed to.

Clause 57 [Report]:

[Amendments Nos. 156AE to 156AG not moved.]

Clause 61 [Selection of Lords Justices of Appeal]:

[Amendment No. 156AH not moved.]

Clause 63 [Selection panel]:

The Deputy Speaker

My Lords, Amendment No. 156AJ was spoken to with Amendment No. 156X, as was Amendment No. 156AK.

Baroness Ashton of Upholland moved Amendments Nos. 156AJ and 156AK:

Page 26, line 14, leave out from "of" to end of line 20 and insert "four members.

(1A) The first member is the Lord Chief Justice, or his nominee.

(1B) The second member is a Head of Division or Lord Justice of Appeal designated by the Lord Chief Justice.

(1C) Unless subsection (1F) applies, the third member is the chairman of the Commission or his nominee.

(1D) The fourth member is a lay member of the Commission designated by the third member.

(1E) Subsection (1F) applies if—

1. (a) there is no chairman of the Commission, or
2. (b) the chairman of the Commission is unavailable and has not nominated a person under subsection (1C).

(1F) In those cases the third member is a lay member of the Commission selected by the lay members of the Commission other than the chairman."

Page 26, line 29, leave out "Lord Chief Justice or his nominee" and insert "first member"

On Question, amendments agreed to.

9.45 p.m.

Lord Lloyd of Berwick moved Amendment No.157: After Clause 67, insert the following new clause—

"SELECTION OF PUISNE JUDGES

(1) This section applies to a recommendation for appointment as a puisne judge.

(2) A recommendation may be made only under section (The Minister's options).

(3) If there is a vacancy among the puisne judges the Minister must, unless the Lord Chief Justice agrees otherwise, make a recommendation to fill the vacancy.

(4) For the purposes of subsection (3) a vacancy arises only on a puisne judge vacating his office after the commencement of this section.

(5) A request for the selection of a person to be recommended must be made by the Minister to the Commission.

(6) Before making a request the Minister must consult the Lord Chief Justice.

(7) Sections (Selection process) to (Selection following rejection or requirement to reconsider) apply where the Minister makes a request under this section."

The noble and learned Lord said: My Lords, the purpose of the amendment is to bring the selection process for High Court judges into line with the selection process for judges of the Court of Appeal. The selection panel for members of the Court of Appeal is set out in Clause 63 and consists of the Lord Chief Justice, a head of division, the chairman of the commission and one other lay member. Therefore, there are two lawyers and two laymen, with the Lord Chief Justice as the chairman. That is all straightforward, simple and sensible.

My proposal is that the membership of the panel for selecting High Court judges should be similar but not identical. It is set out in Amendment No. 159. The panel would consist of the relevant head of division, a puisne judge, the chairman of the commission and one other lay member of the commission. Up until that point, it is similar to the process relating to Lords Justices, but I would add a representative of the General Council of the Bar and a representative of the Law Society, making two judges, two other legal members of the commission and two lay members of the commission.

As the Bill now stands, membership of the selection panel is entirely at the discretion of the chairman of the Judicial Appointments Commission. Thus, the panel might consist of nothing but lay members, who can have little idea of the job of a High Court judge and therefore little idea of the best candidates for that job. It is true that from time to time it has been suggested that, through an amendment to the Bill or some regulation under the Bill, a puisne judge should be included on the panel, but so far we have not seen that.

The High Court judge is the key appointment in the whole judicial process. In many ways, he is more important than, although of course not as senior as, members of the Court of Appeal. The High Court judge is important because, unlike circuit judges, he is irremovable, except following an address by both Houses of Parliament, and therefore it is essential that we should not make a mistake in his appointment. He is also important because he is in the front line in defending the liberty of the subject against the Government by the process of judicial review. Again, circuit judges are in an entirely different position because they have no jurisdiction in judicial review.

Therefore, I was very surprised to find that, instead of being given the kind of panel that Lords Justices are given, High Court judges were tucked away in Schedule 12 to the Bill between non-judicial members of the Restrictive Practices Court and Masters of the Queen's Bench Division. In my submission, that is quite wrong. High Court judges are worth much more than that.

What qualities will the panel look for in selecting a High Court judge? Judicial qualities apart, which are taken for granted, the main one must be that the High Court judge is to be chosen from among the very top rank of lawyers; otherwise, the quality of the High Court Bench will gradually be eroded. That is especially true of the specialist High Court judges, particularly commercial judges, of whom there are now 10, and the Patent Appeals Tribunal in the Chancery Division.

I am the strongest possible supporter of lay involvement in the judicial process. I am the strongest possible supporter of lay magistrates and of lay juries, but I wonder how a panel consisting largely, or perhaps entirely, of laymen could be the best panel to choose judges of the right calibre.

The only argument put forward in the Select Committee for distinguishing between High Court judges and judges of the Court of Appeal was that judges of the Court of Appeal were chosen by promotion, whereas it was said that judges of the High Court were not. That is no longer true, because increasingly High Court judges are chosen by promotion from the circuit Bench. In any event, promotion is an irrelevant consideration in this discussion. We need the best way of getting the best men in those important jobs, which include not only the Lords Justices but also the judges of the Court of Appeal. If promotion is irrelevant, it follows that no good reason has been given for distinguishing between the two.

This is a genuine attempt, as I have said, to improve the Bill and to eliminate what High Court judges could well consider a grievance. I accept that the amendments tabled by the noble and learned Lord the Lord Chancellor in this group go some way to correct what may be a sense of grievance, but they are purely cosmetic in their effect. What matters here is acquiring the best panel. I hope that the noble and learned Lord the Lord Chancellor will consider the matter again and not just say, "It is all in the concordat and that is that". We know that the concordat can be changed by agreement between him and the Lord Chief Justice. I hope that he will try to secure that agreement. I beg to move.

Lord Carlisle of Bucklow

My Lords, despite the hour, I support everything that the noble and learned Lord, Lord Lloyd, has said. I fully support the appointment of a Judicial Appointments Commission. I accept its membership, as recommended by the Government, thought out with great care, with a lay chairman and 14 other members, divided between judicial members and lay members. It will have a large job to do. It will be responsible for recommendations for appointments to the judiciary from the level of magistrate to the level of either the House of Lords or the Supreme Court, whichever we end up with after next week's debate.

As I understand it, the commission will, up to the level of Lord Justice, choose its own committee, which will interview and decide on the recommendations to the Lord Chancellor. Indeed, I was one of those who advocated in the Select Committee, unfortunately unsuccessfully, that its work was such that at the lower levels it should be an appointing rather than a recommending committee. That is dealt with in paragraph 294 of our report at that time, which said: Some members of the Committee recognise that there is some force in the argument that the Judicial Appointments Commission might be given responsibility for making appointments of itself—rather than … recommendations". However, we said that, having heard that it was the desire of the magistrates among others that they should not be appointed directly but merely recommended, we withdrew our objection.

The job is very large. As I understand it, the Bill draws the line at the level of those who are to be members of the Court of Appeal. It says that the form of appointment for the judiciary should be the same from magistrate level to the High Court and that the break thereafter would be between the Lords Justices of Appeal, when in fact the Bill lays down a statutory form of commission that will be the responsible committee for those appointments.

Like the noble and learned Lord, Lord Lloyd, I think that that is too high. The break is not between the High Court and the Court of Appeal but between those below the High Court and the High Court. The figures for full-time judges in England and Wales are set out: justices of the High Court, puisne judges—107; circuit judges—610; and district judges—414. Surely the major break—to any of us who are involved in practising in the court—is between the High Court and the other court.

The recorder has responsibility in the area that he sits, probably with limited authority and with the necessity, for example, to have a ticket to try murder cases or cases of other kinds. The High Court judge sits throughout the country with unlimited criminal jurisdiction. I shall stick with crime, about which I know rather more than the noble and learned Lord, Lord Lloyd, who talked about the commercial side.

The argument that the break should be between the justices and the Lords Justices of Appeal and that it is at that level that you should have a special committee to look at it because they know that their work is promotion, falls down, as the noble and learned Lord, Lord Lloyd, said, when you look at the practicality. Most of those who become High Court judges today have either been recorders or deputy High Court judges. Their assessment of their work is just as valid as the assessment of those in the High Court moving to the Court of Appeal. High Court judges are different from those below them in that they can only be removed by a decision of both Houses of Parliament. As I said, they have jurisdiction that is countrywide and total.

I hope that the noble and learned Lord the Lord Chancellor will look seriously at the matter again. I repeat that I support the Judicial Appointments Commission proposals. I believe that it is right to have it, but I think that at the level of the High Court—the argument having been accepted that at Court of Appeal level you should have a special commission to appoint those people—those who are going to the High Court should have a specially appointed committee.

Whether the noble and learned Lord, Lord Lloyd, has got the matter right, I do not know, but it seems that the provision should be clear that the commission must involve at least two judicial members.

Lord Goodhart

My Lords, I spoke against this group of amendments fully in Committee. I daresay that what I would have said today will be the same as that which the noble and learned Lord the Lord Chancellor—if it is he who is to reply to this—will say anyway.

All I would say is this. I should have supported a more modest amendment from the noble and learned Lord, Lord Lloyd of Berwick—in particular, an amendment to paragraph 21(5) of Schedule 10 to permit the Judicial Appointments Commission to delegate the selection functions fora High Court judge only to a sub-committee of not less than five of its members, one or perhaps even two of whom should be chosen from the three senior judicial members of the commission. But this group of amendments, in its present form, is damaging to the Commission for Judicial Appointments; unravels the concordat; and preserves too many unsatisfactory features of the present appointments system.

Lord Mackay of Clashfern

My Lords, there is a good deal of substance in the amendments proposed by the noble and learned Lord, Lord Lloyd of Berwick. I am assuming that when he spoke of men, he spoke in the language of the Interpretation Act 1978, so as to include women as well. I am sure that he had that in mind.

I can see that there may be room for some halfway house, such as the noble Lord, Lord Goodhart, suggests, but I think that there is much to be said for the view that the critically important distinction is between the judges of the High Court and those immediately below them. As the noble and learned Lord, Lord Lloyd, said, that is where judicial review is available for the first time. That has always been seen as an important function of a High Court judge and that requires to be taken into account in considering the relative arrangements for circuit judges, on the one hand, and High Court judges, on the other.

The concordat is of course to be taken into account, but I do not think that any one would claim that the concordat is the laws of the Medes and Persians; it has shown that it can be altered; and, if it can be improved, I am sure that the noble and learned Lord the Lord Chief Justice would be the first to agree to that. So I hope that it will be possible, at the level of the High Court, to make a distinction between the methods of appointment and exactly what they should be. Taking account of what the noble Lord, Lord Goodhart, said, I would not wish finally to commit myself to that, but I think that something along the lines of what the noble and learned Lord, Lord Lloyd, has proposed is certainly well worthy of consideration.

Lord Renton

My Lords, I totally support the amendment proposed by the noble and learned Lord, Lord Lloyd of Berwick. Indeed, it surprises me that the Bill, with its various intentions, has not already included amendments roughly on the same lines. As for what the amendments would do, they go far towards what is needed, but I accept what my noble and learned friend Lord Mackay of Clashfern has just said and I therefore hope that the Government will agree that, whether or not the amendments are agreed in their present form, the Government will allow the necessary clauses that have been proposed to become part of the Bill.

Lord Kingsland

My Lords, I agree with all of your Lordships who say that the High Court judge is the cornerstone of our judicial system, not only because of the kind of decisions that High Court judges have to take, but because they form the raw material for promotion to the Court of Appeal and the court that lies beyond that, described in the Bill as the Supreme Court.

I share your Lordships' bewilderment at the way in which the High Court judge is catalogued in Schedule 12, falling, as the noble and learned Lord, Lord Lloyd, said, between non-judicial members of the Restrictive Practices Court and Masters of the Queen's Bench Division. I suppose that one excuse for that might have been alphabetical, if P fell between N and M, but, even at this time of night, it does not do so in my alphabet.

Lord Goodhart

My Lords, has the noble Lord noticed that the order is the chronological order of the statute from which the power of appointment is derived?

Lord Kingsland

My Lords, given my view of the statute, that adds to my sense of incredulity. I sense that what lies behind this is the hand of recent Northern Ireland legislation—I see the noble and learned Lord, Lord Falconer, nodding—which has sought to treat High Court judges in something of the same fashion. Whatever else the noble and learned Lord does between now and Third Reading, I would like to think that he would reorder Schedule 12 so as to give High Court judges their rightful place in the hierarchy of posts that are mentioned there.

Many noble and noble and learned Lords have described the important role that High Court judges play in administrative law. For that reason, perhaps above all, it is crucial that the most professional attention is given to their selection. I am not necessarily wedded to the wording of the amendment tabled by the noble and learned Lord, Lord Lloyd. I was rather encouraged by the reaction of the noble Lord, Lord Goodhart, when he seemed to me to extract the essence of what the noble and learned Lord, Lord Lloyd, was trying to do and suggested a rather ingenious way of achieving the noble and learned Lord's objectives without accepting the full measure of his amendment.

I would like to think that between now and Third Reading some agreement might be reached between the noble and learned Lord, Lord Lloyd, and the noble Lord, Lord Goodhart, so that we might present to your Lordships' House at Third Reading an amendment that attracts the noble and learned Lord the Lord Chancellor.

The arguments about promotion in my submission are particularly weak. As a number of your Lordships have already said, it is increasingly the case that the High Court Bench is drawn from the circuit Bench. In any case, as a matter of practice, if not indeed of obligation, all High Court judicial appointments nowadays are drawn from the ranks of recorders.

Lord Falconer of Thoroton

My Lords, as indeed are circuit judges.

Lord Kingsland

My Lords, yes, as indeed are circuit judges. But that in my submission does not weaken the case of the noble and learned Lord, Lord Lloyd. As I understand it, it is argued against the noble and learned Lord, Lord Lloyd, that the fact that a High Court judge was not promoted from another appointment undermined his case. The fact that circuit judges were also appointed from the ranks of recorders does not in any way undermine the point made by the noble and learned Lord, Lord Lloyd, that High Court judges are also appointed on promotion from recorderships.

I see that the noble and learned Lord the Lord Chancellor is looking somewhat bewildered. This is a good moment therefore for him to get to his feet.

Lord Falconer of Thoroton

My Lords, first, noble Lords are right that the drafting of the Bill needs to recognise a special place for the High Court, which is an incredibly important part of the justice system. I have tabled amendments to remove them from Schedule 12 and to refer to them in the Bill, which deals with the quite legitimate point that has been made by noble Lords about the structure of the Bill.

I need to look again to determine whether I have captured, in terms of the drafting, before I come to the substance, proper recognition for the High Court. I also accept the importance of High Court appointments. However, I am strongly of the view that if we are setting up a Judicial Appointments Commission we must broadly leave it to determine how it makes those appointments, particularly in relation to appointments such as the High Court.

The distinction between, on the one hand, High Court judges and, on the other hand, heads of divisions and members of the Court of Appeal is that heads of divisions and members of the Court of Appeal are invariably appointed by promotion from having been full-time High Court judges or, alternatively, members of the Court of Appeal in relation to heads of division. On those appointments I recognise, as does the Bill, that the right course is to look to those who have worked most closely with them to determine who should be selected. I do not think there is any dispute about that.

The distinction between members of the Court of Appeal or heads of division on the one hand and High Court judges on the other is that High Court judges, for the most part, are selected from private practice. Some chosen for appointment have been circuit judges, but the numbers being appointed from that route are in a clear minority. As it happens, their number has not gone up over the past few years. Like circuit judges, those appointed to the High Court are almost invariably recorders. So the fact that they are selected from part-time judicial appointments does not seem in any way to distinguish them from the circuit Bench, although as I have made clear, I accept their importance to the judicial system.

There is widespread support throughout the House for a Judicial Appointments Commission. If we believe in such a commission and we cannot identify a reason to separate these from other judicial appointments, I think we should leave it to the Judicial Appointments Commission.

I was interested in what was said by the noble Lord, Lord Goodhart. Although I may have misheard him, I think he said that if sub-committees are to make such selections, he would be keen on seeing one judicial member included on such sub-committees when appointments of judges to the High Court are being considered. I invite the noble Lord to look at paragraph 21(5) of Schedule 10. It indicates that when a selection committee or sub-committee is set up, it will need to include a judicial member.

Lord Goodhart

My Lords, I had intended to go rather further than that. I said that one or possibly two judicial members should be not only that, which would include the lower judiciary, but should also be either a judge of the Court of Appeal or a judge of the High Court, and therefore in both cases would be a member of the commission.

Lord Falconer of Thoroton

My Lords, again, if a committee or sub-committee is set up, it must include a judicial member. However, if the appointment is for a High Court judge, I could not agree more that it would be inappropriate if the judicial member were not a judge of the High Court or above. I should have thought that was obvious. However, paragraph 21(5) of Schedule 10 does not prevent there being more than one judicial member. I hope that that satisfies the noble Lord.

I turn now to the concordat. From time to time the noble and learned Lord, Lord Lloyd of Berwick, has suggested that this is something the High Court itself is unhappy about. I have spoken to the Lord Chief Justice about it. He has assured me that that is not the case and I accept his view rather than that of the noble and learned Lord.

I have thought carefully about the proposal put forward by the noble and learned Lord, but ultimately, if we are setting up a Judicial Appointments Commission and there is no good reason—such as that in relation to the Court of Appeal and heads of division—we should trust the Judicial Appointments Commission. I think that it would he wrong to propose that there should be in effect six members of a selection committee, four of whom would be either judges or lawyers.

Lord Lloyd of Berwick

My Lords, the noble and learned Lord, Lord Mackay, and the noble Lord, Lord Carlisle, both seemed to make it clear that this is a case where, for whatever reason—I do not know it—the line has simply been drawn in the wrong place. The noble Lord, Lord Kingsland, has made clear that there is nothing in the argument on the basis of a promotion being the ground of distinction between Lords Justice and High Court judges. Turning to the point that the Judicial Appointments Commission is to be set up and therefore we must trust it, of course we must, but the commission will have quite enough to do and will have to provide two people, a chairman and one other member, for the panel I am suggesting.

Having said that, and having heard the remarks of the noble Lord, Lord Goodhart, it may be that for once it will be possible for the noble Lord and myself to reach some kind of agreement on what might be the best way to achieve what I believe most Members of this House want. On that basis, therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos.158 to 163 not moved.]

10.15 p.m.

Clause 68 [Selection of puisne judges and other office holders]:

Lord Falconer of Thoroton moved Amendments Nos.163A and 163B:

Page 28, line 19, at end insert— (za) a recommendation for an appointment to the office of puisne judge of the High Court;

Page 28, line 32, leave out paragraph (c) and insert—

1. "(c) an amendment consequential on the abolition or change of name of an office;
2. (d) an amendment consequential on the substitution of one or more enactments for an enactment under which appointments are made to an office."

On Question, amendments agreed to.

Schedule 12 [The Judicial Appointments Commission: Relevant Offices and Enactments]:

[Amendment No. 164 not moved.]

Lord Falconer of Thoroton moved Amendments Nos.164A to 164D:

Page 221, leave out lines 11 and 12.

Page 222, line 4, column 1, leave out "(Magistrates' Courts)" and insert "(Chief Magistrate)"

Page 222, line 7, column 1, leave out "(Magistrates' Courts)" and insert "(Chief Magistrate)"

Page 223, line 3, at end insert—

Justice of the peace who is not Section 10(1) of the Courts Act a District Judge (Magistrates' 2003 (c.39)" Courts)

On Question, amendments agreed to.

The Deputy Speaker (Lord Lyell)

My Lords, I am advised that Amendment No. 165, in chronological order, should be in here. I therefore call Amendment No.165.

Lord Renton

My Lords, before the noble Lord moves his amendment, perhaps I may ask the noble and learned Lord the Lord Chancellor whether he would indicate how much later he intends that we should sit tonight, bearing in mind that we have already reached a fairly late hour and that we are dealing with fundamental issues in the Bill.

Lord Falconer of Thoroton

My Lords, the intent is that we go on until we finish.

Lord Maclennan of Rogart moved Amendment No.165:

Page 223, line 3, at end insert—

"Justices' Clerk

Sections 2(1) and 27(1) of the Courts Act 2003 (c. 39)"

The noble Lord said: My Lords, in retabling the amendment, neither my noble friend Lord Goodhart nor I intend to afford ourselves the opportunity of repeating in extenso arguments which were heard in earlier debates on the Bill. However, the justices' clerks remain dissatisfied, even given the considerable changes made since the original Bill was drafted.

The essence of their concern is that by being treated as civil servants their position may be seriously affected by civil servants in other departments who are concerned about the manner in which they are executing their jobs. They have cited a number of disturbing allegations of interference in their work.

I know that there has been a continuing dialogue in the Government about this, and I am anxious simply to know whether Ministers have had any further thoughts about these concerns. The possibility of appeal or of obtaining the consent of the Lord Chief Justice is simply not regarded as sufficient. Surreptitious manipulation of staff by senior departmental officials would militate strongly against their interests and the interests of the judicial system.

I am merely affording the Government the opportunity to indicate what thinking there has been about this matter since it was last before the House. I beg to move.

Lord Kingsland

My Lords, I agree entirely with the noble Lord, Lord Maclennan, and I have nothing to add.

Lord Falconer of Thoroton

My Lords, I accept that this is a very important issue. The amendment of the noble Lord, Lord Maclennan, seeks to treat justices' clerks like judges. I do not believe that that is a realistic suggestion. It is not what the Justices' Clerks' Society wants because, ultimately, the appointment or otherwise of justices' clerks would be in the hands of the Minister under the terms of the Bill, and he could accept or reject the recommendations made. I understand that that is not what the justices' clerks seek. Equally, it would not change the status of justices' clerks as civil servants, which comes from the Courts Act. In Committee, my noble friend Lady Ashton outlined at length the protections that were in existence. Since then, we have made changes in the revised Schedule 4, which the noble Lord accepted on that day, but I accept that it was made clear at the time that those amendments were accepted without prejudice to these amendments. Those are additional measures that ensure that justices' clerks can exercise those aspects of their responsibility that are or a judicial nature, and they can exercise them independently.

I should also state, as I think that it is important, that I have agreed in principle that the professional training of justices' clerks and legal advisers should be carried out by the Judicial Studies Board. The Justices' Clerks' Society, in particular, was concerned that this might be an area where the professional independence of justices' clerks might be threatened. I do not think that that would be the case. There are, however, clear links between the training of magistrates and their legal advisers that it must be beneficial to explore with the unified administration. I want the detail to be worked through, however, before giving a formal direction to the Judicial Studies Board. In particular, the JSB has emphasised that it could not take this on before 2007–08, due to the demands of it taking on a strengthened role in the training of magistrates. I hope that this indication is helpful, and demonstrates that I am serious about ensuring that there is confidence in the arrangements for justices' clerks in the unified administration.

The government amendments that the House has already accepted, and the other commitments that we have given, provide practical ways of ensuring that the justices' clerks can carry out independently those aspects of their responsibility that are of a judicial nature.

I am also very conscious of the points that the noble Lord, Lord Maclennan of Rogart, made on behalf of the Justices' Clerks' Society in relation to particular concerns over what some people have perceived as examples of interference by the department in the independence of justices' clerks. However, the Government provided a response to the Select Committee, demonstrating that nothing untoward had taken place. These were examples of the department working and consulting with the Justices' Clerks' Society and others, such as the senior district judge and magistrates' courts.

Justices' clerks carry out an important role in administration and in giving legal advice to lay magistrates. However, the point has been made before, but I think it warrants making it again: they are not judges; they do not have judicial status; they do not conduct trials, sentence offenders, give judgments or decide substantive issues between parties; and they do not take the judicial oath. As well as being legal advisers, they have very important administrative responsibilities. My noble friend pointed out the administrative aspects of the justices' clerks' role in Committee. She also noted that the Judicial Appointments Commission will be set up to select judicial office holders, and will have the skills and experience needed to select those people.

In summary, although I am not sure that this is necessarily the point of the noble Lord's amendment, I do not think that it would be wise to accept his amendments in place of the appointments process that the House accepted on 7 December. On the contrary, I see distinct disadvantages in using the JAC mechanism for these particular posts, and I think that it is simply inappropriate to give the commission the task of selecting people for non-judicial appointments. I hope that the noble Lord is reassured, and I hope that he will withdraw his amendment.

Lord Maclennan of Rogart

My Lords, I wish I could say to the noble and learned Lord the Lord Chancellor that the justices' clerks' view is as he has described it. They are persuaded that their judicial functions—and that is how they describe them—are such that they merit a separate and different form of appointment and that their status, while originally changed by the 2003 Act and not in anticipation of the Bill, is something about which they are seriously concerned. I know that the noble and learned Lord the Lord Chancellor and, indeed, the noble Baroness, Lady Ashton, have given a lot of attention to this. I also have no doubt that they are aware that telephone calls making very strong representations about this are being received practically daily. They will no doubt have heard, as the House has, the arguments deployed by the noble and learned Lord the Lord Chancellor. I can only express the hope that they are satisfied by the answers that they are being given.

It is unquestionably a difficult issue. There is a hybridity about the role; the interferences are not of a kind that would naturally come to light very easily. There is an understandable concern about their status. However, we have reached the point at which the arguments have been deployed to the best of my ability. I have no new arguments; therefore, I will not weary the House, at this late hour, by further protraction of the debate. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Falconer of Thoroton moved Amendments Nos.164E to 164G:

Page 226, leave out lines 2 to 5.

Page 227, leave out lines 11 to 14.

Page 229. leave out lines 40 to 42.

On Question, amendments agreed to.

Clause 69 [Request]:

Lord Falconer of Thoroton moved Amendment No. 165A:

Page 29, line 1, after "vacancy" insert "in the office of puisne judge of the High Court or"

On Question, amendment agreed to.

Clause 71 [Report]:

[Amendment No.165B not moved.]

Clause 72 [The Minister's options]:

Lord Borrie moved Amendment No. 166:

Page 30, line 10, after "must" insert "recommend or appoint the person selected or, in the case of a selection for appointment as a puisne judge of the High Court, must"

The noble Lord said: My Lords, the aim of the amendment is to provide that in relation to appointments to the judiciary below the level of a High Court judge, the Lord Chancellor should not have the option of rejecting the nominee of the Judicial Appointments Commission or, indeed, of requiring the commission to reconsider the selection. We should, if I may borrow a phrase from my noble and learned friend the Lord Chancellor, trust the Judicial Appointments Commission.

The amendment would require the Lord Chancellor to appoint or to recommend to the Queen all candidates selected by the Judicial Appointments Commission for appointments below the High Court level—that is, circuit judges, recorders and district judges.

The whole point of the new Judicial Appointments Commission is to reduce the role and influence of the Lord Chancellor and his officials in the Department for Constitutional Affairs in decisions on individual appointments to individual posts. Since a very large number of junior—if I may use that word loosely—judicial appointments are made each year, compared with the much more modest number of senior appointments that have to be made each year, if the Bill remains as it is, it seems that the Lord Chancellor and his Department for Constitutional Affairs will have to retain a parallel bureaucracy, with all the costs involved of files, consultations and inquiries on the merits and demerits, qualities or lack of qualities, of individual persons to be appointed to the relatively low levels on the judicial ladder of district judges, recorders, and so on. Either that is the case or ministerial involvement would be, as Sir Colin Campbell put it to the Select Committee, a rather hypocritical rubber stamp".

I beg to move.

Lord Carlisle of Bucklow

My Lords, in the Select Committee I argued that one should have sufficient confidence in the Judicial Appointments Commission to allow it to appoint those on the lower levels of the judiciary. Therefore, I agree with what the noble Lord, Lord Borrie, has said, in general terms.

10.30 p.m.

Lord Falconér of Thoroton

My Lords, the noble Lord, Lord Carlisle of Bucklow, is right: he did argue that, but he will also remember that he was a man pretty well alone on the Select Committee in that respect.

Appointing judges is a central function of the state. Parliamentary accountability for the appointments system must be retained through the Minister. A Minister who is accountable for appointments should have a real say in those appointments. We recognise that his say must be suitably tempered to protect the independence of the system, and we say that the Bill strikes a balance by the limited power that it gives to the Minister.

There are powerful constraints on the executive. They strike a proper and workable balance of independence and accountability. Sadly, the noble Lord gives no reasons why that balance of independence and accountability, which is OK in relation to the appointment of High Court judges and the Court of Appeal, is not suitable or appropriate in relation to appointments below the High Court, save that my officials might duplicate the work done by the Judicial Appointments Commission. The importance of the state being involved and the importance of having proper accountability make whatever duplication there is—it would not be that great—worthwhile to ensure that there is proper accountability.

This is the fundamental point. In effect, the noble Lord's argument is that the Minister should in future save his or her time for the appointments at the top of the tree. I disagree wholly. Under the current arrangements, the Minister should make sure that he can find the time to consider all appointments to the judiciary, of whatever kind, with the care that they deserve. I have every confidence that each Lord Chancellor in recent times has done the same. I believe that in the more limited role, so will Lord Chancellors in the future.

I stress that to accept the amendment would be to fly in the face of the important concordat agreed between the Government and the Lord Chief Justice and to alter wholly the basis on which the Judicial Appointments Commission would operate. It would also remove the valuable consistency that underpins the fundamental provisions on appointments, and it would weaken—indeed remove—provision for real ministerial responsibility and accountability in relation to the appointment of judges below the High Court. That would be fundamentally wrong. I hope that my noble friend will agree to withdraw his amendment.

Lord Borrie

My Lords, I am somewhat amazed by some of those comments, which sound rather artificial. As a matter of principle, of course, I can understand what my noble and learned friend has said, but the idea that the Lord Chancellor's ministerial accountability should extend to the dozens and dozens of appointments of district judges and recorders that are needed seems to be a stretching of the principle.

As to the practical matter to which I referred, if the bureaucracy is not duplicated, how on earth can the principle to which my noble and learned friend the Lord Chancellor has given voice be carried out in practice? That is what I am concerned about. I must accept what my noble and learned friend the Lord Chancellor has said. I will carefully read what has been said, but in the mean time I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 73 [Exercise of powers to reject or require reconsideration]:

Baroness Ashton of Upholland moved Amendment No. 166A:

Page 30, line 32, at end insert "or particular functions of that office"

The noble Baroness said: My Lords, these are drafting amendments that clarify the Minister's powers surrounding the requirement to reconsider or reject a candidate for appointment. I will address them in reverse order, since that is the way in which they are most likely to arise.

The changes reflect the fact that judicial office holders have many responsibilities, and a person may be unsuitable for some without being unsuitable for all. If a candidate is admirable in most respects but nevertheless flawed in some particular respect to which the Lord Chancellor attaches importance, Amendment No. 166B allows the Lord Chancellor to ask the commission to reconsider its recommendation of the candidate.

The Lord Chancellor may make such a decision either because in his opinion there is not enough evidence that the person concerned is suitable for the office concerned, or because there is evidence that the person is not the best candidate on merit. The amendment would add to the first of these limbs that there was not enough evidence that the person concerned was suitable for the office concerned or for particular functions of that office.

Secondly, the Bill makes it clear that the Minister may reject a candidate selected by the commission only if, in his opinion, the person selected is not suitable for the office concerned. Amendment No.166A would add, or particular functions of that office". The amendment makes it clear that he can do so without saying that the candidate was wholly unsuitable in every respect to be appointed to the post or level of post involved.

It may assist the House if I remind your Lordships that when addressing amendments to Clauses 68 and 69, dealing with the appointments to the High Court Bench, we noted that some further work was needed to ensure that the provisions dealt adequately with the full range of bulk competitions and reserve lists. The procedures covered in the amendments are obviously related and will form part of that consideration. That will of course take place with the help of the working party under the chairmanship of Lady Justice Arden. I beg to move.

On Question, amendment agreed to.

Lord Carlisle of Bucklow

My Lords, before we go any further, may I take up a point that the noble Lord, Lord Renton, has made? I understood that there was a convention in the House that we did not sit after ten o'clock. It is now 10.35 p.m., and we have a certain number of important amendments to come.

The amendment that I am considering particularly is the one for the sunrise clause. Is the Minister really expecting to pursue that amendment at this stage? If he is, can I have the assurance that on Third Reading we will be entitled, having had the chance to hear what he says, to put down amendments to the sunrise clause to strengthen it or otherwise? I accept that it is to some extent a matter of total agreement, but it is a matter of importance that was emphasised during the Select Committee sittings. I thought that it should have been discussed an hour earlier than this, and I simply wanted to say so.

Lord Evans of Temple Guiting

My Lords, an agreement was reached with the usual channels that we would finish the Report stage tonight, and that is what we plan to do. I give an undertaking that amendments can be tabled to the sunrise clause on Third Reading.

Lord Falconer of Thoroton moved Amendment No. 166B:

Page 30, line 37, after "concerned" insert "or particular functions of that office"

On Question, amendment agreed to.

Baroness Ashton of Upholland moved Amendment No. 166C: After Clause 76, insert the following new clause—

"Assistance in connection with other appointments