HL Deb 18 October 2004 vol 665 cc619-35

8.53 p.m.

House again in Committee (on Recommitment) on Schedule 12.

Lord Borrie moved Amendment No. 88CGH:

Page 198, line 4, at end insert "and the chairman of the Commission"

The noble Lord said: I am not surprised that the noble Lord, Lord Goodhart, thought that I had already spoken to this amendment in the course of discussing the six amendments which were considered before the adjournment.

One of those amendments was concerned with the power of Ministers to alter the categories of various types of people who should be upon the Judicial Appointments Commission. This amendment is to say that, whatever is finally agreed—and I have already spoken to the effect that I hope that it will be a lay majority on the Judicial Appointments Commission—it will only be altered by ministerial decree if not only the Lord Chief Justice but also the chairman of the Judicial Appointments Commission agrees with the Government.

It seems to me very appropriate indeed that the chairman, who is concerned more than anybody with the day-to-day working of the commission, and how people work well together and so on, should have a say if there is to be any alteration in the numbers of people in any particular category of members on the Judicial Appointments Commission.

I am most grateful to the noble Lords, Lord Goodhart and Lord Maclennan of Rogart, for supporting and putting their names to the amendment. I beg to move.

Lord Goodhart

The names of my noble friend Lord Maclennan of Rogart and myself are down to this amendment. Before the adjournment I argued that it was undesirable to undermine the concordat, as that document was of very considerable importance and should not be unravelled unless we felt that it was in some respects seriously defective. We do not feel that it is, so we were unable to support previous amendments moved by the noble Lord, Lord Borrie. However, this amendment falls into a different category.

The system for changing the size of the Judicial Appointments Commission is not a central point of the deal between the Lord Chancellor and the judiciary and is not mentioned in the concordat. Therefore, we do not feel inhibited from supporting an amendment to that particular provision. Requiring the agreement of the Lord Chief Justice to any alteration to the size of the commission is reasonable in itself, but it creates an uneven playing field. A change in size should require consensus between the lay and judicial members of the commission, which can best be achieved by requiring the agreement of both the Lord Chief Justice and the chair of the Judicial Appointments Commission who, as the Bill stands, will be a lay person.

In those circumstances, we believe that the amendment is appropriate. If the Government wished to go ahead without the consent of the Lord Chief Justice and the chair of the commission, they could do so, but only by primary legislation. The use of secondary legislation should therefore require not only an affirmative resolution procedure and the consent of the Lord Chief Justice, but also the consent of the chairman of the commission.

Lord Henley

I wish to make one point—other than the point that we have no particular objections to the ideas behind the noble Lord's amendment. He used the expression "ministerial decree" when referring to the provisions in Clause 106, and said that it would be an affirmative resolution. In other words, he said that although it might be a ministerial decree, with the support, rightly, of the Lord Chief Justice, as the noble Lord. Lord Goodhart, said, and, if this amendment were accepted, of the chairman of the commission, it would need the consent of both Houses.

I remind the House of the recent very sad death of Lord Russell, who I might call my noble kinsman, since he always addressed me as such in all social security debates. He was a Member of this House who took very seriously indeed affirmative resolutions and the power of this House occasionally to object to them. That is not something that this House or another place should ever give up, which is why I commented on the use by the noble Lord, Lord Borrie, of the phrase "ministerial decree". We should remember that we have our own rights, too.

I am grateful that on this occasion the Government have decided that the process should be done by affirmative resolution and that they should look to the consent of both Houses in looking for any change in the commission. Having said that, we have no objection to the amendment.

9 p.m.

Baroness Ashton of Upholland

I agree with the noble Lord, Lord Henley, on two counts. First, affirmative resolutions are important to both your Lordships' House and another place. I also agree that Lord Russell, who is sadly no longer with us, played an enormous part in ensuring that affirmative resolutions were taken seriously. I shall miss him.

The difference between us is straightforward. Of course, we would expect the Minister to consult the chairman of the commission about proposed changes. Indeed, although it is not a matter that requires to be stated in the Bill explicitly, I am happy to give a commitment that such consultation will take place. 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 a change needed to be made.

We believe that, with the support of the Lord Chief Justice, affirmative resolutions from both Houses and in consultation with the chairman, we have the right balance. That is the difference between us, and on that basis I hope that the noble Lord will withdraw his amendment.

Lord Borrie

I am grateful to the noble Lords, Lord Goodhart and Lord Maclennan of Rogart, for supporting my amendment. I am grateful, too, to the noble Lord, Lord Henley, for pointing out my error in referring to the matter as "ministerial decree" because, as he rightly pointed out, it is a ministerial proposal, subject to affirmative resolution.

I am somewhat disappointed by my noble friend's response but grateful to her that she regards consultation as normal procedure in this sort of case. I continue to feel that if the Lord Chief Justice has a right of veto—to use my noble friend's word—so should the experienced chairman of the Judicial Appointments Commission who will be concerned on a day-to-day basis with all those matters. Any change in the categories of membership would particularly affect the commission's working. I shall bear in mind what has been said and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 12 agreed to.

Clause 53 agreed to.

Schedule 13 [The Judicial Appointments and Conduct Ombudsman]:

Lord Henley moved Amendment No. 88CGJ:

Page 207, line 39, leave out sub-paragraph (2).

The noble Lord said: I shall also speak to Amendments Nos. 88CGK and 88CGL. One has to say that with some care at this hour of the night.

They are again merely probing amendments, which arise from the thought that I believe it right and proper for the Committee to say and hear something about the provisions of Clause 53. It is a simple clause which states: There is to be a Judicial Appointments and Conduct Ombudsman…Schedule 13 is about the Ombudsman".

My three amendments relate to Schedule 13, which say what the ombudsman is about. In passing, I should make a drafting point as someone who is not familiar with the technicalities of drafting. As one goes through the schedule, we see that there is a lot about the ombudsman. We are told: Schedule 13 is about the Ombudsman".

We are told who he cannot be, the terms of the office, salary and expenses. Interestingly again, the Minister "may", pay to the Ombudsman such remuneration". There is no "shall" or "must", but no doubt the ombudsman is capable of negotiating his own terms.

We are then told something about the "Acting Ombudsman", the "Status of the Ombudsman", "Powers of the Ombudsman". It seems that he does not have any powers. He does not have the power, to borrow money … to hold real property … to appoint staff". There are later arrangements whereby the Minister can do that for him.

There is then something about "Delegation of functions" and "Reports", but there is nothing at this stage about the functions of the ombudsman, which I find odd. For that, one has to turn back from the schedules to Clauses 82, 83, 84 and 85 which refer to the ombudsman's functions.

My first question comprises a rather technical drafting point that I would like to put to the Government. Would it not have been possible, rather than jumping from Clause 53 to Schedule 13, to Clauses 82, 83, 84 and 85, to have them all together, or are there good and proper drafting reasons why that is not proper? That I do not know. It might be that it is better to have Clauses 82 to 85 where they are and leave Clause 53 where it is. However, I would be very grateful if the Minister could help me on that.

As regards the particular probing amendments that I have put down, they are not amendments of any real consequence other than the fact that it is right and proper that we should look at certain parts of the Bill. My first question relates to my first amendment in this group, Amendment No. 88CGJ, which seeks to delete sub-paragraph (2) of paragraph 1 of Schedule 13. Subparagraph (2) contains a list of those who cannot be appointed as the ombudsman. In effect the Government are saying that they do not want anyone who is a lawyer to be appointed as the ombudsman. They have ruled out barristers and solicitors in England and Wales, advocates in Scotland, members of the Bar in Northern Ireland and holders of judicial office. Will the Government explain why they consider that the ombudsman should not be someone with a legal background? I am sure that there are very good reasons for that, but no doubt the Government will set that out.

In the second amendment in the group, Amendment No. 88CGK, I merely suggest deleting from paragraph 2(2) of Schedule 13 the words "as such" with regard to the definition of what a practising barrister is. In paragraph 2(2) a barrister is described as "practising as such". Do the words "as such" add anything whatever? That is a flippant aside but if the noble Baroness, Lady Ashton, could help me on that I should be more than happy.

The third amendment in the group, Amendment No. 88CGL, concerns the report that the ombudsman has to produce during the course of the year. It would be helpful if the Government could say a little about what they are proposing in this regard. I am particularly worried about paragraph 14(2) to Schedule 13 which states: The Minister may by direction require the Ombudsman to deal, in reports or a particular report under sub-paragraph (1), with matters specified in the direction". What exactly is the Minister suggesting that he might have to direct the ombudsman to do'? Is the ombudsman not—if we appoint the right person—supposed to be a grown-up man or woman capable of deciding themselves what ought to go into reports? No doubt there are very good reasons why that provision has been included and no doubt the Government will assist us on that point.

Finally, I return to the words "must" and "shall". Paragraph 14(4) of Schedule 13 states: The Minister must lay before each House of Parliament a copy of any report provided to him under sub-paragraph (1)". I am grateful for the use of the word "must" in that regard. I believe that my noble friend Lord Renton suggested earlier that the word "shall" was always thought to be a politer version of "must". However, I believe that on this occasion it is right and proper that the Minister lays the relevant material before the House. I suggest that "must" ought therefore to remain as "must" and should not be changed to "shall". I again assure the noble Baroness that these are merely probing amendments. I beg to move.

Baroness Ashton of Upholland

I am grateful to the noble Lord, Lord Henley, for so succinctly laying out the rationale behind his amendments. I begin by discussing the issue that the noble Lord raised about the way in which the Bill has been put together. I refer to Clause 53, Schedule 13 and Clauses 82 to 85. As the noble Lord will know, the Bill has been drafted by parliamentary counsel. I understand that it is normal to have the main functions of the ombudsman on the face of the Bill and details of the appointments and so on in schedules. It is then normal to have clauses creating new bodies at the start of a part, and for the rest of the part to set out those functions. Therefore the commission comes first, then the ombudsman, then the commission's functions, then the ombudsman's functions. That is the logic behind that. I hope that is a reasonable parliamentary answer and that it satisfies the noble Lord.

I am grateful to the noble Lord for describing his amendments as probing ones. It gives me the opportunity to say a little bit about each of the areas that he has indicated to be of importance.

I will begin with why we have ruled out those of a judicial or legal background from the post of ombudsman. It is of the greatest importance in these kinds of posts that we avoid any possible public perception of a lack of independence. As the noble Lord knows this is not a new principle. There are a number of comparable posts—for example, the Legal Services Complaints Commissioner and the Legal Services Ombudsman—where we have similar provisions. When dealing with complaints, it is right to prevent the ombudsman being a member of a group that is the subject of complaints. These schemes have not been hampered by a lack of professional expertise none the less. That is the principle behind it—to ensure that it is clear there is independence.

I take the point raised by the noble Lord on Amendment No. 88CGK about the words "as such". This makes it absolutely unequivocal that he should practise as one of the group of lawyers specified, which is the disqualifying factor. I am not sure if taking two words out of the Bill will necessarily provide a strengthening of its rationalisation. That is my understanding of that point. I will look at it again but that is parliamentary counsel drafting to make sure that it is absolutely clear.

Concerning the annual report, it is normal that the public—and your Lordships' House—are provided with a report on activities and expenditure. That is an essential element. It is particularly important when looking at individual complaints that the ombudsman is able to publish a report on these areas. Parliament is entitled to have the benefit of the ombudsman's views based on experience and knowledge of the complaints that he is handling on how the new appointments and complaints handling systems are working.

The noble Lord asked about the words "specified in the direction" in Schedule 13, paragraph 14(2), relating to specific issues to be addressed. This is a common device to enable the Minister to ask the ombudsman to look at a report on specific issues. The example that came to mind comes from education, which I feel I know a little bit about. For example, we might want to look at the impact of the new fee structure in higher education on part-time students and the Minister might wish to ask somebody reporting in that area to look at that. The ombudsman might equivalently be asked to look at how particular appointments are made, regardless of whether there have been complaints. In other words, that involves using that expertise not to direct in the negative sense but to find out particular areas where there might be a genuine interest.

As to "must" and "shall", I am grateful that the noble Lord agrees with us that in this context "must" is the right word to use, and I hope on this basis that the noble Lord will withdraw his amendment.

Lord Henley

Obviously I was always going to withdraw these amendments. They are merely probing amendments and I am grateful for the various explanations that the noble Baroness has given. No doubt the order in which the various clauses are arranged is logical. It makes for rather confusing reading, particularly when Clause 53 states that, Schedule 13 is about the Ombudsman", and then we find that it is about the ombudsman but does not say what he has to do so we have to look somewhere else. I am glad I have found where the somewhere else is.

I am also grateful to the noble Baroness for her explanation about what the Minister had to say about the directions that might be issued under paragraph 14(2) on Report. Like her, I have some small experience of the world of education and I suspect that I was showing undue suspicion when I saw the words: The Minister may by direction require". I have a similar suspicion about other wording later in the Bill and I hope that the noble Baroness will be able to allay my fears, as on this occasion. I thank her for her explanations and beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 88CGK and 88CGL not moved.]

Schedule 13 agreed to.

9.15 p.m.

Clause 54 [Merit and good character]:

Lord Henley moved Amendment No. 88CGM:

Page 19, line 27, leave out subsection (2).

The noble Lord said: This is another probing amendment as I simply seek clarity from the Minister. It relates to Clause 54(2), which states: A person must not be selected unless the selecting body is satisfied that he is of good character".

I want first to ask a particular question on an issue that worries me, but no doubt there is a simple explanation. In Clause 106, to which we referred earlier when dealing with paragraph 5 of Schedule 12, two provisions require the affirmative resolution procedure. One was paragraph 5 of Schedule 12, which I understand, and the other was in Clause 54. I see no order-making powers in that clause and I am therefore confused about the reference to it in Clause 106. No doubt there is a simple explanation which the noble Baroness will be able to give me. If necessary, I shall keep talking to ensure that the answer gets to her in due course. It is on its way.

Secondly, can the noble Baroness define "good character"? No doubt when many years ago I did my Bar exams and knew a tiny bit of law we were all familiar with the expression. Presumably it appears in statute on many occasions, but it would be helpful if the Minister, on behalf of the Government, could lay out her definition of the expression. That would assist the Committee. I beg to move.

Baroness Ashton of Upholland

The reference to an affirmative resolution being required under Clause 54 is a mistake by parliamentary counsel, I am told. I hate to blame parliamentary counsel but it should not be there and it will not be there at future stages.

I have no idea whether the noble Lord is the first to spot the mistake, but I can reassure him that I had no briefing on the subject. The noble Lord can assume what he wishes from that, but I am grateful to him for drawing attention to the matter.

As regards the substance of the probing amendment, the provision exists to ensure that people cannot be selected who are considered inappropriate to hold judicial office because of criminal conviction or some other complaint against them from a professional body such as the Bar Council, the Law Society or the General Medical Council which has been upheld.

It will be for the commission to determine how it satisfies itself of that matter without unduly prying into matters which are not relevant to the candidate's fitness for office. It might be helpful as it is standard practice in the current system to ask candidates to disclose convictions; whether they have had financial judgments made against them; whether they have been involved in proceedings because of non-payment or delayed payment of tax; any relevant actions for professional negligence; any disciplinary or complaints processes; and anything in their private or professional life which might be a source of embarrassment to themselves or the Lord Chancellor if it became known in the event of appointment. They are the current requirements.

It is normal practice to check on such issues, for example, with the relevant professional body. Under the Bill, it will be for the commission and not the department to consider those issues and conduct the necessary checks. I submit that this is a standard and normal way of proceeding and we would want to have that on the face of the Bill. I hope that in the light of that explanation the noble Lord will feel comfortable in withdrawing his amendment. I am grateful to him for picking up the mistake.

Lord Carlisle of Bucklow

I must confess that the other day I was slightly surprised to learn from someone that it was suggested that he was unsuitable to be considered for judicial rank as he had been disqualified from driving because of three convictions for speeding. Although I fully accept the words "good character", I hope that the Minister will agree that one has to use them sensibly and recognise that there is a difference between the types of involvement in criminal law that people may have had.

Baroness Ashton of Upholland

Obviously, one cannot comment on an individual case about which one knows nothing. The commission will need to consider for itself how it determines that and to look at the facts in individual cases. There are occasions—and I am not suggesting that this is one—where individuals have a particular penalty but there is more substance underneath it. It would be for the commission to determine.

Lord Henley

In my 26 years in this House, this is the first time that I have discovered a mistake in a piece of legislation, whether on the Back Benches or as a Minister. I am very grateful for confirmation from the noble Baroness that I have achieved something. I hope that an appropriate amendment will come forward from the Government in due course on Report. More seriously, I want to look very carefully at what the Minister said about good character, particularly in the light of the intervention from my noble friend Lord Carlisle, for which I am most grateful. It might be that we would want to come back to this on Report. At this stage, the best thing for me to do is to withdraw the amendment and consider what the Minister had to say. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Henley moved Amendment No. 88CGN:

Page 19, line 29, leave out subsection (3).

The noble Lord said: In moving Amendment No. 88CGN, I shall speak also to Amendment No. 88CGAC and I suspect that I ought to throw in Amendment No. 88CGQ at the same time, although it has been grouped separately, which is probably my fault. I think that that would assist the Committee and move us on somewhat faster. In a rather sparsely attended Chamber, I am not sure to what extent we can have a valid discussion on this subject but we will see how we go. It may be that we shall have to come back to this matter later on.

These amendments relate to the question of selection on merit and the conflicting demand—some would say that it is conflicting, but I think that the Government would not accept that—that there must be appropriate encouragement of diversity in the range of persons available for selection. We have a further amendment, Amendment No. 88CGQ, where we say very firmly that merit must be taken into account and that under no circumstances must diversity overtake it.

Last week, a consultation document was issued by the noble and learned Lord the Lord Chancellor, which I have not yet read in detail. I have seen a great deal of comment on it in the press. The comment that I was most sympathetic towards was made in the Telegraph by Tom Utley. Broadly speaking, he said that we have a very fine judiciary, that there is no bias in the judiciary and that it is of the highest standard. He said that "it ain't broke"—as we have said on many other occasions—so there is no need to fix things as time itself will resolve this problem. I think he suggested that ultimately the best option in terms of responding to the Lord Chancellor's consultation document was to tick the box saying "Do nothing". I have often been a believer in the "do nothing" option, and on this occasion I think that Tom Utley is right.

I have glanced briefly at the consultation document and, as I said, we may want to return to this matter at a later stage when we have all had more than just a short weekend in which to consult on it. However, briefly, it sounds all very fine and dandy to say that we want to encourage diversity, just as we want to appoint solely on merit, but is it really the case that the two are incompatible?

The second point that one needs to address is: where does diversity end? We obviously know what the noble and learned Lord the Lord Chancellor and those who have written forewords to his book are getting at when they refer to "diversity". They wish to see a larger number of women among the judiciary—that is fair enough; they wish to see a larger number of people from the ethnic minorities to reflect the population of the country; and, rightly, they wish to see a greater number of disabled people coming in to the judiciary. But the idea behind diversity, as set out by the Government, is that as far as possible the judiciary should reflect the broad composition of the nation at large.

What I want to know most is: where on earth does this end? How can we ever have a judiciary that is totally diverse, as the Bill and the consultation paper seem to suggest? Do we want to have the appropriate number of stupid people sitting as members of the judiciary? Obviously we do not want to have the appropriate number of people who are not of good character. We have already dealt with that, and I dare say that that is quite a large section of the population. How many bad lawyers or, to take an extreme example, how many bigots do we want sitting on the judiciary? We want none of those because we want good lawyers appointed on merit.

But if we want our judiciary to reflect entirely the broad span of the population, which seems to be what diversity is all about, presumably that means that we must include the stupid people, those not of good character, the bad lawyers, the bigots and many more that I could think of. No doubt the noble Baroness can also think of many others who could be included.

I hope that that does not sound too flippant. I do not want to be flippant but I think that when, for very good reasons, the Government say that they want to increase and encourage diversity, first, they should define it slightly better and, secondly, they should think very hard about how diversity and merit can be reconciled to ensure that, in the end, no one is appointed other than on merit. I beg to move.

Lord Goodhart

We on these Benches take a somewhat different line from that of the noble Lord, Lord Henley. Of course, what he said was perfectly true in the sense that the judiciary neither can nor should reflect the membership of society as a whole. We do not, for example, expect judges to be appointed under the age of 25, although a substantial proportion of the population is under that age. We do not expect judges to be appointed from those who have no legal qualifications, although only a small proportion of the population as a whole has the necessary legal qualifications. But we do want to see a fair crack of the whip for all those who fall within the necessary restrictions that must be imposed on the population as a whole.

We do not see any necessary conflict between appointment on merit and the encouragement of diversity among those who apply for judicial appointment. It is clear that it is highly desirable that those who are appointed should be appointed on merit, and we entirely accept that that is the right principle. However, the evidence from the Commission for Judicial Appointments and others has shown that there are serious holes in the playing field, if I can put it in that way. For instance, the present system is plainly skewed in favour of successful advocates. Among other things, that is a skew against solicitors, few of whom have the same kind of experience of advocacy as most barristers have and therefore do not have the opportunity of presenting themselves to judges, who can then comment on them for the purposes of selection.

9.30 p.m.

It is also true that the system is skewed against perhaps not all but a significant proportion of women, in particular those who take a career break or a reduction in their level of practice because of family responsibilities. A good friend of mine, a woman who was a member of the Bar, who had two children, applied for silk and was refused. When she asked why she had been refused, she was told, "Your earnings have not been as good as they should have been in the past few years". She said, "I know that perfectly well. That is because I decided that I had to take a certain amount of time off to look after my young children". That should plainly have been disregarded, but it was riot.

It seems to us that there are people not selected for the pool who should be selected, and that one of the main roles of the Judicial Appointments Commission is to guard against the sort of unthinking, automatic refusal to take into account issues that, for instance, may explain the fact that earnings have been low. There are also issues concerning ethnic minorities. For instance, in the past members of ethnic minorities—fortunately, it is becoming considerable less true than it was—had difficulty getting into the kinds of chambers and practices that tended to be regarded as appropriate for appointment to the judiciary. That also needs to be corrected.

We therefore want to see a wider pool from which appointments can be made, because we believe that although the present system almost invariably appoints people who are highly qualified to do the job, it all too often overlooks some who might he equally or even better qualified to do the same job.

Baroness Ashton of Upholland

I, too, regret that the Chamber is sparsely attended when we are debating such an important issue. I am glad that the noble Lord, Lord Henley, has had sight of our document on diversity. There is also a video that I shall send to the noble Lord—I am sure that he will enjoy it immensely—which perhaps deals with some of the issues that he has raised.

I shall try to outline briefly the principles that underlie the issues and come to some conclusion. As noble Lords know, the guiding principle that underpins the selection of candidates for judicial appointment is strictly that of merit—in other words, the best candidate for the post. We agree with the noble Lord, Lord Henley, that that has been a major factor in achieving the current situation in which our judges are respected the world over. Therefore, our very firm view is that that fundamental principle should continue when the commission is established, and that it is of sufficient importance to be on the face of the Bill. There are different views as to how we define merit but our view is clear; that is, we should stick with the way in which this has been determined. That, I hope, will give some comfort to the noble Lord, Lord Henley.

The second amendment would prescribe that when selecting candidates for appointment of the Lord Justice of Appeal the Minister must not take into account the encouragement of diversity. It follows from what I have said so far, without in any way detracting from the vital importance of seeking to achieve a more diverse judiciary, that I have a great deal of sympathy with the intention behind the amendment tabled by the noble Lord, Lord Henley. However, I am not sure that it is the right way to achieve that.

First, we proposed an amendment to the Select Committee to ensure that it is for the commission to determine what constitutes merit rather than it being the subject of guidance. The judges agree with that approach. It would be for the commission to refine and improve our existing definitions of merit and, in my view, the members of the commission who are recruitment experts and not lawyers would be uniquely placed to do so.

However, the Select Committee discussion prompted us to consider what more can be done to put the matter beyond doubt and to remove any suggestion that the merit criterion is in some way or other qualified by other considerations. In the light of that and in view of what the noble Lord, Lord Henley said, we shall table an amendment on Report that will seek a clearer and stronger formulation of the importance of the merit principle. I hope that that will give great comfort to the noble Lord, Lord Henley.

I am mindful of what the noble Lord, Lord Goodhart, said. Indeed, the document that we produced on judicial diversity is an important one. However, the critical factor in our determination to look at the issue of diversity is to ensure that we get the applications that we want. Perhaps I may say to the noble Lord, Lord Henley, that it is not a question of, "if it ain't broke, don't fix it". If one looks at the statistics—I am happy to provide them for noble Lords—of the numbers of women and men and members of ethnic minority communities within the judiciary and the legal profession, one begins to see that we have a huge pool of people. The issue really is that applications are not coming through from that wider group of people for the higher parts of the judiciary.

So, the thrust of our work on judicial diversity is to identify why it is that people are not putting themselves forward to become judges to take up higher office and to identify what we can do to sort out those issues if we can or indeed simply to encourage people. Noble Lords will probably know that I could talk about this for hours. One small example is that research which has been conducted in the past 20 to 30 years on why women do not come forward for appointments is that they are less confident in doing so and need to he reminded or even asked to do this. My noble and learned friend in Canada recently found that the Canadians have a system of simply keeping in touch by e-mail with those people who, by length of service, are eligible to apply. That made a difference in those who applied.

That is a small example but it is at the core of what we are trying to do; that is, to identify ways in which we can ensure that we receive applications and that we deal with the issues in an appropriate manner and, as the noble Lord, Lord Goodhart, said, in the case of women who take career breaks, that that is recognised in the appropriate way. However, the appointment must be on merit. The critical point about why diversity is relevant now is that we are losing out on talent. We have hugely talented people who are simply not coming forward. We want to see them do so.

I think that there is nothing in what I have said with which the noble Lord, Lord Henley, would disagree. I hope that there is nothing with which the noble Lord, Lord Goodhart, would disagree. On the promise of what I shall bring back on Report and with what I have said about the purpose of our work on diversity, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Henley

Of course I shall withdraw my amendment at this stage of the evening and I look forward very much to seeing the amendments to be tabled by the noble Baroness on Report. As I said, this is a fairly thin Chamber at this stage and this is a matter that possibly warrants greater discussion in something that might be termed "prime time".

Having said that, I very much look forward to seeing the video that the noble Baroness promised me. I promise that when I receive it I shall take it home, watch it and inwardly digest and learn all possible lessons, just as I hope in due course properly to examine the noble and learned Lord's consultation paper. As that was issued only on Thursday, I think that there are many Members of the Committee who will require slightly longer to examine it before we have a proper discussion on that subject. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 54 agreed to.

Clause 55 [Guidance about procedures]:

Lord Henley moved Amendment No. 88CGP:

Page 19, line 34, leave out from "Part" to end of line 1 on page 20.

The noble Lord said: My Lords, I will try to go quickly over some of my remaining probing amendments. I appreciate that the noble and learned Lord, Lord Lloyd of Berwick, will probably wish to get to his amendment on puisne judges before we break up soon after ten o'clock. Am I right in thinking we are due to adjourn at about ten?

Lord Evans of Temple Guiting

Yes.

Lord Henley

It is 20 minutes to ten now. Amendment No. 88CGP concerns the guidance that will be issued by the noble and learned Lord the Lord Chancellor about the selection procedure. We heard earlier from the Minister that the commission itself will decide on what "merit" means. If that is the case, why does it also need guidance from the noble and learned Lord on how to assess such persons for selection and other such matters, and on how to identify persons willing to be considered for selection? I might just have a suspicious mind, but I will be grateful if the Minister can assist me on that.

Baroness Ashton of Upholland

My Lords, I will be equally brief. The Government think it is important to issue guidance on assessing candidates, so they look at the full range of assessment methods, respond to developing good practice in other areas or to concerns about the effectiveness of existing methods, and use the various possibilities in ways that are appropriate, given the wide range of judicial appointments.

The Government do not intend to dictate what methods are used for a particular competition, but expect the commission to consider different ways of testing people for selection. Even so, some safeguards are obviously required to ensure the commission is not subject to undue or covert pressure, which is why guidelines require the concurrence of the Lord Chief Justice and must be laid before both Houses. I hope that will do the trick of allaying the noble Lord's fears.

Lord Henley

My Lords, I am grateful for what the noble Baroness has said. I will look at that carefully, but for the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 88CGQ and 88CGR not moved.]

Clause 55 agreed to.

Clause 56 [Guidance: supplementary]:

[Amendments Nos. 88CGS and 88CGT not moved.]

Clause 56 agreed to.

Clause 57 [Selection of Lord Chief Justice and Heads of Division]:

Lord Henley moved Amendment No. 88CGU:

Page 21, line 9, leave out ", unless the Lord Chief Justice agrees otherwise,"

The noble Lord said: My Lords, this is again a brief probing amendment. It arises from the fact that, under subsection (4) of Clause 57, If there is a vacancy in one of the other offices mentioned in subsection (1)"— that is, Master of the Rolls, President of the Queen's Bench Division, President of the Family Division, or Chancellor of the High Court— unless the Lord Chief Justice agrees otherwise, the Minister must make a recommendation to fill the vacancy". I ask this simple question out of ignorance: would the clause allow the Lord Chief Justice and the Lord Chancellor, if they so wished, to abolish unilaterally the post of, say, Master of the Rolls without any further ado, and without any consideration by any other body—just as, in June last year, the Prime Minister attempted, without consultation with this House or anyone else, to abolish the position of Lord Chancellor? I beg to move.

9.45 p.m.

Baroness Ashton of Upholland

My understanding is that the amendment is concerned with recognising that there could be occasions when it is preferable to hold a post vacant for a limited time because worse problems might be created through the almost inevitable consequential sequence.

If one of the heads of division were to die suddenly in office, it would not have been possible to plan for and recruit a successor. The small number of the best candidates to succeed the post holder might be engaged in cases that it would be highly undesirable to interrupt. In those circumstances, we would want to be able to leave the post vacant for a term, so that we could choose the right person. Equally hypothetically, if it were proposed to restructure the divisions of the High Court at some point, there might be circumstances in which leaving one or more of the existing head of division posts unfilled would be relevant. We have no plans for either situation, nor do we envisage any other similar circumstances.

The safeguard is that such a move could be taken by the Minister only with the agreement of the Lord Chief Justice, whose own post is an exception to the provisions. We think that that is the right kind of flexibility. I note what the noble Lord, Lord Henley, said about whether it meant that the two could abolish a post. I do not believe that it does. If I need to say anything further, I shall write to the noble Lord with clarification.

Lord Henley

I am not sure that I follow that. There seems to be no limit on the time before a recommendation must be made to fill the vacancy. It looks to me as if one of the posts could just quietly disappear without anyone, other than the Lord Chancellor and the Lord Chief Justice, saying anything about it.

I am sure that the noble Baroness and the Government speak with total good faith when they say that that would not happen. Nevertheless, I will, as always, read what the noble Baroness said and consider whether it is necessary to return to the matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 57 agreed to.

Clauses 58 and 59 agreed to.

Clause 60 [Report]:

Lord Henley had given notice of his intention to move Amendment No. 88CGV:

Page 22, line 32, leave out paragraph (b).

The noble Lord said: I wanted to speak at some length on this group of amendments, but it would be unfair to do so at this stage. I do not expect a response from the Government now, and I will come back to the amendments at a later stage.

The amendments are concerned with the various reports that must be submitted to the Minister and with the material that the Minister might demand goes into such reports. It may be my suspicious nature again, but we are concerned particularly with whether the Minister might ask or insist on reference to the former political affiliations of some of those who are being reported about. However, I would prefer to speak to the amendments at greater length, and it would be better if, before we rose, we allowed the noble and learned Lord, Lord Lloyd of Berwick, to move his amendment on puisne judges.

[Amendment No. 88CGV not moved.]

[Amendments Nos. 88CGW and 88CGX not moved.]

Clause 60 agreed to.

Clause 61 [The Minister's options]:

[Amendment No. 88CGY not moved.]

Clause 61 agreed to.

Clause 62 agreed to.

Clause 63 [Selection following rejection or requirement to reconsider]:

[Amendments Nos. 88CGZ and 88CGAA not moved.]

Clause 63 agreed to.

Clauses 64 to 66 agreed to.

Clause 67 [Report]:

[Amendment No. 88CGAB not moved.]

Clause 67 agreed to.

Clause 68 agreed to.

Clause 69 [Exercise of powers to reject or require reconsideration]:

[Amendment No. 88CGAC not moved.]

Clause 69 agreed to.

Clause 70 [Selection following rejection or requirement to reconsider]:

[Amendment No. 88CGAD not moved.]

Clause 70 agreed to.

Lord Lloyd of Berwick moved Amendment No. 88CH:

After Clause 70, insert the following new clause—