HL Deb 18 October 2004 vol 665 cc635-42

(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: I am grateful that we have reached my amendment tonight. Its purpose is to bring the process of selecting High Court judges into line with the process for selecting judges for the Court of Appeal. The process for the Court of Appeal is set out in Clause 66, which states that the selection panel will consist of four members: the Lord Chief Justice, the head of the relevant division, the chairman of the commission or his nominee, and one other lay member of the commission. So there will be two judicial and two lay members.

The purpose of my amendment is simply to make a similar panel available for the selection of High Court judges, except that I would add to those four a barrister and a solicitor, who would almost certainly be the professional members of the Judicial Appointments Commission. One would then have two judges and four members of the Judicial Appointments Commission—two laymen and two lawyers. I suggest that that would form a sensible panel for the selection of High Court judges.

As the Bill stands, the selection panel could consist of nothing but laymen. It would appear to be entirely at the discretion of the chairman of the Judicial Appointments Commission. There has been a suggestion that the panel should contain at least one High Court judge, but that suggestion has not yet found its way into the Bill. The trouble with having a panel consisting almost entirely of laymen—certainly a majority—would be that they would have little idea of what the job of a High Court judge really was and, perhaps, still less idea of who the best available candidates were.

The High Court judge is the key appointment in the entire judicial system. In many ways, it is more important than the appointment of judges in the Court of Appeal, although the High Court judge is not so senior. That is because he is in the front line of the defence of the liberty of the subject against the Government. First, any question of judicial review comes before a High Court judge in the first instance. The circuit judges and the inferior judiciary have no jurisdiction in relation to judicial review. Secondly, a High Court judge, unlike a circuit judge, is irremovable. So it is crucial to get the best people to be our High Court judges.

When I looked at how High Court judges would be appointed, or selected for appointment, I turned to Schedule 14 on page 212 of the Bill, where I found, half way down the page, that the puisne judges of the High Court were placed between non-judicial members of the Restrictive Practices Court and Masters of the Queen's Bench Division. When I saw High Court judges put in that position, I thought that there simply must have been a mistake.

There are currently about 35 members of the Court of Appeal and 100 High Court judges. The turnover is perhaps six or eight in the course of the year. To place the selection of High Court judges along with the selection of judges at the Court of Appeal would impose no great burden on the Lord Chief Justice, the head of the division and the two members of the Judicial Appointments Commission. In comparison, there are 632 circuit judges, 414 district judges, 731 deputy judges. The Judicial Appointments Commission will clearly have enough to do without also selecting appointments to the High Court Bench.

What are the qualities required for selection to the High Court Bench? Judicial qualities apart—which go without saying—the main qualification must be that they are to be the best legal brains available for the job. That is especially true when one thinks of the specialist High Court judges, such as those who sit in the commercial court, the Patents Appeal Tribunal and so on.

It is impossible to believe that a panel that might consist largely of lay people could make the best selection of judges for those offices. So important did I regard the selection of High Court judges that I took the opportunity, with the consent of the Lord Chief Justice, to write to all current High Court judges to find out what their views were. I had 25 replies, which was perhaps slightly disappointing. Of those, 16 agreed with my view. Seven would have agreed with my view but they felt that they were somehow bound by what had been agreed in the concordat. Only two were against my view.

So a great majority of the current High Court judges believe that High Court judges should be chosen in the same way as judges of the Court of Appeal. The role of the High Court judge is crucial. I cannot see any good reason for not having the same or a similar panel for selecting High Court judges as judges of the Court of Appeal. In selecting High Court judges we cannot afford to make a mistake.

This is a real attempt to make an improvement to the Bill. I hope that the Minister will see it in that way and that she will not say, "It is all in the concordat and therefore it's beyond anything we can do". It is not. The concordat is not the law of the Medes and Persians. If the Lord Chief Justice and the Lord Chancellor are agreeable to this there is no reason why we should not make a small improvement in the concordat, to bring the High Court judges into line with the judges of the Court of Appeal. I beg to move.

10 p.m.

Lord Carlisle of Bucklow

I realise that the time is late. If I had any doubt, the brief appearance of a scowling Chief Whip on the government side would have made that point to me. But this is an enormously important amendment. I should make it clear that I support the appointment of an appointments commission. If I might say so to the Minister, the Government have probably got its membership about right in that difficult area we discussed earlier. I was quoted in the Select Committee report as one of those members who would have felt that at the lower end of the judiciary there could have been an appointing rather than a recommending committee but nevertheless were persuaded that there were other reasons why we should go along with the recommending committee.

I totally disagree with putting the High Court judges on the same level as the recorders, the deputy recorders, the district judges, the circuit judges and on a different level to those of the Court of Appeal and the High Court—the Judicial Committee or the Supreme Court, whichever it may be. All I shall say at this stage, realising the time, is that I agree with every word that my noble and learned friend Lord Lloyd has said.

I should have thought that to any practising member of the Bar, in general practice, that was the big divide between being a High Court Judge or not being a High Court judge. A High Court judge has the power to sit in any part of the country. As the noble and learned Lord, Lord Lloyd, has said, he can be removed only by a petition taken through both Houses of Parliament. He is a unique representative of the judiciary in this country, far more so than the individual recorder, sitting in his own town or area.

There are 104 High Court judges and 600-odd recorders. I feel that the noble and learned Lord, Lord Lloyd, is right that the appointment of High Court judges should be dealt with in the same way as judges in the Court of Appeal rather than by the Judicial Appointments Commission provided at an earlier stage. I realise that there has to be a break somewhere, but I think that the selection of a High Court judge is of vital importance. It is vital that on the body that appoints him should be those who, from their own professional knowledge, feel capable of making the decision on who would be the right High Court judge.

I shall not say any more in view of the hour, but I hope that the Minister will say that she will look at this again. It is a non-party political point, frankly—there are no party politics in which way a High Court judge is appointed. I hope that she will say that she will look at this again. If not, I hope that my noble and learned friend Lord Lloyd will raise the matter at another time so that we can consider it in a more fully attended Chamber at an earlier hour on another day.

Lord Goodhart

I recognise that we are now past the magic hour of 10 o'clock, but as the noble Lord, Lord Carlisle of Bucklow, has said, this is an extremely important amendment. Since I profoundly disagree with it, I cannot let it pass without explaining, as briefly as I can, why I do so.

The amendment is one that, once again, unravels a central provision of the concordat—the appointment of High Court judges by the commission. Instead, it proposes appointment by a special panel consisting of two senior judges, the chairman and another lay member of the commission, and two representatives of professional organisations. This panel is more weighted against the lay members than either the commission as a whole or the special panels which are set up for appointing heads of Division or judges of the Court of Appeal. Taking into account the existence of a casting vote, the lay members in the case of the panel suggested by the noble and learned Lord, Lord Lloyd, have two votes out of seven as opposed to two votes out of five on the other panels.

Furthermore, the professionals who are appointed to the selection panel are described here as direct representatives of their professional organisations and will not necessarily be the professional members of the Judicial Appointments Commission who will be selected by an appointments panel set up under Schedule 12.

The commission has the power, of course, to delegate its function to committees, including selection committees, but selection committees cannot be wholly made up of lay people because the committee is required by paragraph 21(5) of Schedule 12 to include at least one judicial member and one lay member.

I would have had some sympathy with the amendment of the noble and learned Lord, Lord Lloyd, if it had said that appointments to the High Court Bench must be made by the commission as a whole and cannot be delegated to a sub-committee of the commission. I do not think that it is right by any means as it stands.

The noble and learned Lord referred to a poll he had taken by letter from the judges of the High Court. He took the view that 16 out of those judges amounted to a substantial majority of the whole of the High Court bench. That seems to me to be completely devoid of logic, because it is at least possible that those who did not reply to him did not reply either because they thought it was improper for them to state their views on the subject—as I suspect many of them did—or because they thought it was not worth bothering, if they did not agree with him. All that can be deduced from it is that at least 16 of the judges do disagree with the concordat.

I explained in the debate on the amendments of the noble Lord, Lord Borrie, why the concordat should not be unravelled. Those amendments would have operated in the other way: they would have strengthened the powers of the lay members. The amendments of the noble and learned Lord, Lord Lloyd, weaken the powers of the lay members, but I believe that the same argument applies. If one side starts to reopen the concordat, then the other side must be equally entitled to do so. That will lead ultimately to the destruction of the concordat, which I believe is of central importance to these reforms.

I object to these amendments on principle as well as because they are inconsistent with the concordat. I can understand—indeed I quite accept—why special panels are set up for the appointment of judges of the Court of Appeal and the Heads of Division, though I would not have been unhappy to leave those decisions too to the commission. Those are of course almost entirely promotions from the High Court. Indeed, I believe that the last appointment to the Court of Appeal or to the post of Head of Division of someone who had not previously sat as a High Court judge was the appointment of the noble and learned Lord, Lord Simon of Glaisdale, to be President of what was the Probate, Divorce and Admiralty Division many years ago.

The work of High Court judges is highly visible and promotion will depend very largely on the quality of their judicial work, and the other senior judges are undoubtedly in the best position to decide that. However, the great majority of High Court judges are appointed from practice; only very few of them are at present promoted from full-time appointments to lower courts. Unlike those who have sat for some time as High Court judges, it is not clear whether their personalities, if they are successful advocates, are necessarily suited to a position on a High Court bench.

I believe, therefore, that appointments to the High Court bench call for the full expertise of the commission, both judicial and lay. If we are to have an effective commission, we need to attract people of standing and expertise from the judiciary and from professional and lay people. In order to attract people of that standing, the commission needs to be able to appoint to the High Court bench as well as to the circuit bench and the lower judiciary. To remove responsibility for the High Court appointments from the commission would be to unbalance the carefully crafted deal between the Government and the Lord Chief Justice and would preserve too many of the unsatisfactory elements in the present system. I believe that the amendment is misguided.

Baroness Ashton of Upholland

I am very well aware of the passion with which the noble and learned Lord, Lord Lloyd, and the noble Lord, Lord Carlisle, have spoken. I am very grateful to the noble Lord, Lord Goodhart, for rehearsing some of the points I would have made, which makes me able to he more succinct at this hour.

The schedule order to which the noble and learned Lord referred follows the date and section arrangement of the legislation under which the appointment is made. There is no reflection on status within it, and I think it important to say that.

It is also important to say that the way in which we have determined the committees and sub-committees of the Judicial Appointments Commission is that they must include a judicial member and a lay member and they must not prescribe the procedure—leaving that for the appointments commission to determine. But we have provided that they must consult the Lord Chief Justice and another judge at the level of the post. As in the case of judicial members, we consider it inconceivable that they will not play a major role, but we can continue to discuss that.

Our starting point in drawing up the Bill and in the discussions with the senior judiciary which preceded that and which resulted in the concordat—which is an important element in the discussion—was that all candidates for judicial appointment should be selected by the new Judicial Appointments Commission. The detail of the procedure would be a matter for the commission to determine. However, on reflection, we considered that the selection of heads of division and Lords Justices raised special issues. They were referred to in the consultation paper which we issued in 2003 on a new way of appointing judges.

Although it is possible in theory that someone could be appointed from practice as a lawyer direct to the Court of Appeal, in practice all modern appointments have been by promotion from the High Court Bench. Similarly, in modern times the Lord Chief Justice and other heads of division have been appointed from the House of Lords, the Court of Appeal or High Court Bench and not as a first judicial post. Clearly, the promotion of existing senior judges raises rather different issues from the appointments which the appointments commission will usually make. There are also questions about the overall balance of skills and aptitudes among the leadership of the judiciary, which the JAC would not be well placed to address.

Our conclusion was that, while the appointments should remain within the formal remit of the Judicial Appointments Commission, as they do, special arrangements should be made to ensure that in considering the promotions decisions were taken by a special panel, which would include senior judges with direct first-hand experience of the judicial and other qualities of the candidates. That is what the Bill seeks to do.

As the noble and learned Lord, Lord Lloyd, has said. High Court judges are extremely senior and important judges. As the noble Lord, Lord Carlisle, said, there is a big divide between them and the lower echelons—if I may describe them as such. I can see why, if it were a matter of status, they might wish to be appointed in the same way as Lords Justices and not in the same way as circuit judges. However, that is not what the argument is about.

It is true that some High Court judges are former circuit judges who have been promoted. Most, however, as the noble Lord, Lord Goodhart, said, are not. They are appointed from practice as lawyers, and their High Court posts are their very first full-time judicial post. The Lord Chief Justice and other very senior judges will not generally have any experience of their judicial performance. There is no reason, in our view, why the Judicial Appointments Commission should not be able to assess the qualities of those applying for appointment in the same way as it will assess the qualities of those applying for other first appointments. The crucial factor is that it is a first appointment, not seniority.

I could go on to talk about the specifics of the individual amendment, but I shall not, because I know that the noble and learned Lord is probing us to discuss the technicalities of the provision. I know that he has referred to correspondence with High Court judges, but I am sure that he accepts that the official position of the senior judiciary is that expressed by the Lord Chief Justice and his colleagues on the Judges Council in agreeing to the concordat and supporting the arrangements of the Bill. Those arrangements, however strongly the noble and learned Lord feels, would run counter to the views of the senior judges.

The arguments that apply to the promotion of senior judges do not apply here. Therefore, we believe that there can be no reason to make special arrangements, because the nature of the special arrangements that we made for the more senior judges are based on a different criterion—in other words, that it is a promotion. Under no circumstances should we be seen to lack confidence in the ability of the Judicial Appointments Commission to make fair and independent selection to the senior post. I agree with the noble and learned Lord that what we are trying to do is to recruit and employ the best. I believe that the commission will do that very well.

I hope, on the basis of my explanation of our policy, the noble and learned Lord will feel able to withdraw his amendment.

Lord Mackay of Clashfern

I may have misunderstood the Minister, but I believe that she said that senior judges would not have experience of the judicial qualities of the candidates for appointment as High Court judges, because many would be appointed from practice. Would it not still be a practice to have prospective High Court judges sitting as recorders for some time before appointment, so that an assessment could be made of their work actually in the office to which ultimately they would be appointed—the recorder being as near to the actual office as it is possible to be? There is something to be said for the view that the best way in which to see how people would be in a job is to try them in it for a while.

Baroness Ashton of Upholland

I entirely agree with the sentiment behind that. As the noble and learned Lord said, they are the ones who are being considered and are prospective in this context. We are debating the principle of who might be prospective, and would want to do that within the Judicial Appointments Commission.

There is a difference between that appointment and someone with a track record of experience who is being promoted. One is then looking for a different set of qualities and attributes, as the record of that individual as a judge is already known. The question is what additional qualities are required. In that context, we need to look at a different set of arrangements.

It is not that the noble and learned Lord is inaccurate, but simply that when looking at the first appointment, however one decides to test the ability and merit of the individual, he is not as well known to the senior judiciary, and needs to be within the remit of the Judicial Appointments Commission.

Lord Lloyd of Berwick

I am grateful to the Minister for taking such trouble to answer, but I need hardly say that I am not satisfied with her response.

I can see no ground for distinguishing between appointments to the High Court bench and appointments to the Court of Appeal. As the noble and learned Lord, Lord Mackay, said, most High Court appointments are made in perfect knowledge of how the man has behaved either as a recorder or a circuit judge. There will be knowledge of him appearing in the High Court, so that ground of distinction seems to me to fade away.

Having listened with care to what the Minister said, I am not persuaded. I propose to bring the matter back on Report. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 88CJ to 88CO not moved.]

Clause 71 agreed to.

Schedule 14 [The Judicial Appointments Commission: Relevant Offices and Enactments]:

[Amendment No. 88CP not moved.]

Lord Evans of Temple Guiting

I beg to move that the House do now resume.

Moved accordingly, and, on Question. Motion agreed to.

House resumed.