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Mr. Garnier: I am grateful to my hon. Friend for giving way because he allows me to clarify a point that I made in an intervention. I believe that Lord Justice Potter will make an extremely good president of the family division and I have no criticism of his judicial qualities. However, I am worried about the illogic of the Government's position. On the one hand, they advocate modernisation of the judicial appointments system, yet on the other they appoint a judge—as it happens, an excellent judge—by old-fashioned means. I heard the Under-Secretary's comments, but it is deeply unconvincing of him to try to advance one argument after the Bill is enacted, yet rely on the much-criticised system that pertains before enactment.

Mr. Grieve: My hon. and learned Friend is right that there are strange standards in the Under-Secretary's approach. However, in fairness to him we are considering one argument that shows the merit of a judicial appointments commission and why I support it. However, we need to consider flexibility carefully.

There is another concern. The Under-Secretary said that any appointment would be made on merit. Indeed, it must be on merit. I am not worried about the desire to expand the pool of talent—many people hide their light under a bushel and such talented individuals should be brought forward and considered. However, there is a narrow dividing line between that and engaging in a form of engineering that rapidly leads the public to conclude that appointment on merit is not happening. We need to consider that carefully because although I am as keen as the Under-Secretary to ensure that those with merit who are qualified are appointed from all sections of society, merit must nevertheless be central and any attempt to dilute it must be examined with great caution.

Vera Baird: I was pleased to hear the hon. Gentleman set out the importance of merit and his appreciation, which I am sure was implicit, that the wider the pool, the better the calibre of candidate. Is he ready to confirm that the current system is not the best because, historically, positive discrimination has taken place in favour of white men from Oxbridge colleges and public schools? That is unfair and does not constitute promotion on merit alone.
 
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Mr. Grieve: I hesitate to join the hon. and learned Lady in that criticism. I simply point out that the Under-Secretary appears to take the view that every effort has been made in the current system to ensure appointment on merit from the widest possible pool of those qualified. I have not heard him say that that is not happening. Indeed, it would be surprising if it were not, because that would constitute a criticism of either this Lord Chancellor or his predecessor. Indeed, going back to the Conservative Lord Chancellor before them, I seem to recollect some extremely creative appointments being made, and his not being criticised for that.

Mr. Beith : Does the hon. Gentleman recognise that it is a merit not only to have the highest levels of judicial ability but to add to the bench greater representativeness than it had before?

Mr. Grieve: I certainly agree with the right hon. Gentleman that we should not be doing our job properly if those who were capable of serving were being denied access to the higher ranks of the judiciary, for whatever reason. To that extent, I entirely agree with him that if the system can be improved so that there are fewer occasions on which anyone makes a complaint, that would be a good thing. Appointment on merit is the key criterion that must be observed, because ultimately judges are there to decide issues not because of their background, their race or their faith. The wonderful thing about this country is that that is exactly what has been happening for many years and we must ensure that it is preserved.

If we are to encourage people to go on to the higher benches of the judiciary, we must face the fact that, at the moment, many of them have to be asked to do so. The Minister will acknowledge that the current composition of the Court of Appeal simply would not be as it is if people had not been prodded—at the moment by the Lord Chancellor and sometimes the Lord Chief Justice—into accepting appointments that often involve a substantial diminution in their earnings. That is something that we shall need to consider carefully, because if the appointment system is simply going to involve filling in a form and answering an advertisement, I have a nasty feeling that many people who have the requisite talent and merit will be excluded from applying, either through diffidence or some other reason. This is another area of the existing flexibility that we must not lose through the mechanism of setting up a judicial appointments commission. We can look at that in detail in Committee.

Mr. Hogg : Will my hon. Friend note that a number of hon. Members, myself included, have considerable concerns about the procedure whereby complaints can be made to the ombudsman regarding the methods of selection used by the appointments board? This matter must be carefully scrutinised in Committee.

Mr. Grieve: I agree with my right hon. and learned Friend. Indeed, I apologise for not having touched on that matter. I was conscious of the passage of time and wished to allow adequate time for Back-Bench contributions. He is right—that is another area of detail that we need to examine.
 
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The principle of the judicial appointments commission appeals to me and I am sure that it will lead to improvements, but the detail is important, and the fact that we support the principle should not, and will not, mean that we ignore the detailed problems associated with it. I have read the Bill and looked at the debates in the other place, and it has become apparent that there are complexities involved. Unless we get them right, we could end up with an appointments system that does no better than the present one. Indeed, it could contain flaws that the present one does not.

The Minister tells us that the supreme court will cost £30 million to set up. I suspect that that is a highly conservative figure. If we have understood him correctly, the court is heading straight into the Middlesex Guildhall, which is the one place that the Law Lords who support the idea of a supreme court do not want to go, because it would send out all the wrong signals about what they are and how they operate—[Interruption.] I give way to the Minister.

Mr. Leslie: I was expressing slight surprise that the hon. Gentleman thinks that it is the wrong place in which to have a supreme court. Parliament square represents pretty much the apex of our constitution, so perhaps he could elaborate on why it is the wrong preferred choice.

Mr. Grieve: The valid points that were made were that the building is an old guild hall. A number of its rooms have limitations in the way in which they can be adapted. They are not suitable for the sitting of a supreme court because the judges want to maintain the informal atmosphere that they currently enjoy in a Committee Room in the House of Lords. Most of the other accommodation is similarly unsuitable. Those points were made with some force not by me, but by Lord Bingham and it seems that the Government intend to ignore them. I find it a little surprising that as the new supreme court is supposed to send out a powerful signal of novelty—I mean that in the best sense of a new beginning—it is proposed to house it in a building that is not exactly a symbol of the supremacy of law.

The irony, as Lord Nicholls of Birkenhead made clear in his speech, is that many Law Lords find the setting in which they currently do their work extremely congenial because of both the accommodation and the signal that it sends out of how they conduct their business. It may be a bit cramped, but it is astonishingly cheap with £168,000 a year of overheads, compared with the Government's estimate of £8.8 million a year on overheads for the new supreme court. I shall need a lot of convincing from the Minister that the new idea has any merit.

Mr. David Heathcoat-Amory (Wells) (Con): Has my hon. Friend attempted to understand the notes on clauses about costs? If he has tried to read them, does he understand, as I do, that the extra capital and running costs will be reflected in higher court fees charged to litigants by the judicial system? Does that not contradict the Government's expressed wish to increase access to the justice system through lower costs?

Mr. Grieve: My right hon. Friend is right. Not only is that contradictory, but it seriously undermines a central
 
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activity of government. The original compact between the state and the citizen—the principle by which we become citizens of a state—is that we have access to justice. It is an extraordinary state of affairs. I do not want to widen the debate too much this afternoon, but at present access to justice is becoming harder and harder for more and more people because of increasing restrictions on legal aid. Court costs are another mechanism by which access to justice may be seriously hindered and it worries me that the Government are approaching the matter in what can only be described as a commercial way. Access to justice is not a commercial matter.

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