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Mr. Jonathan Djanogly (Huntingdon) (Con): I thank the hon. Gentleman for giving way. Did he not also approve of the American system where the separation of powers goes somewhat further than the Government are proposing, particularly in relation to the Executive and the legislature?

Mr. Kidney: I take it that the hon. Gentleman is asking whether I approve of the American constitution. I am simply happy to say that I prefer living in this country and I enjoy its constitution much more.

It is right that the position of Lord Chancellor should be filled by someone who no longer sits as a judge, no longer acts as the Speaker of the House of Lords and no longer carries personal responsibility for the appointment of members of the judiciary and Queen's counsel. It is right to impose a duty on the Lord Chancellor, whoever that may be in future, to uphold judicial independence. It is brilliant that the Bill goes beyond that and imposes the same duty on all other Ministers and all other persons who may have an influence on the administration of justice, but I see no reason why we should require the Lord Chancellor to have a legal qualification or to sit in the House of Lords. I am absolutely with the hon. Member for Somerton and Frome (Mr. Heath) in thinking that it is far more desirable in terms of democratic accountability that a Minister of State should be in this House at this Dispatch Box facing questions from elected representatives of the people.

In future, judicial appointments will, by statute, be required to be made solely on merit and to require good character. That incorporates in statute what we presently practise, so that is correct and desirable. The statute is welcome because it includes those words, but a system of appointment must also be transparent, fair, efficient and independent to command widespread public confidence, so it is essential to ensure that the recruitment process itself attracts the broadest possible field of candidates. The judiciary tends to continue to attract those who look like the present incumbents. There are too few women, too few lawyers from ethnic minorities and I repeat that there are too few solicitors.

I give credit to those who have steered the process to reach the point that we are at today, beginning with Lord Mackay, who was mentioned by my hon. and learned Friend the Member for Dudley, North, who introduced the advertisement of vacancies and competition for appointment in 1994,. That was a welcome first step in a process that has since moved on. Hon. Members will appreciate that Lord Mackay was a
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member of a Conservative, not a Labour, Government, so I like to think that there would be cross-party support for the development that has since taken place.

By 1998, Lord Irvine, as the Lord Chancellor, was able to end the invitation-only system of appointments to the High Court bench. He was able to change the age limits for applicants and some of the sitting requirements for part-time judges—for example, block sittings—so as to be more flexible in accommodating people who would have found the previous system too restrictive for them to apply to be judges. He was also able to introduce the requirement that allegations of misconduct or serious criticism against an applicant had to be specific and backed by evidence or be ignored. He was able to introduce a lay input into the recruitment process itself, and, as my hon. and learned Friend said, he introduced the annual report to Parliament about the appointments process—again, desirable developments moving in the right direction. When he was still Lord Chancellor in 2001, it was Lord Irvine who introduced the present independent Commission for Judicial Appointments.

In terms of the continuation of the development and praise for it, I should add that the present Lord Chancellor has introduced the proposals in this Bill, themselves subject to widespread consultation before their introduction, showing that we continue to move in the same direction.

The existing commissioners for judicial appointments support further progress in this direction. In their last annual report in October 2004, they called for the continuation of the independent audits of the recruitment process, and both I and the commission look forward to a speedy extension of the new system to more of the appointments to lower judicial offices. The significance of that is that the commission could be criticised for not understanding what is going on in the legal profession lower down if it has no responsibility for the appointment of those judges. Broader experience and knowledge of the developing pool of judicial talent would help the commission to make future appointments higher up the judicial system.

I hope that the judicial appointments commission will make further improvements on fairness and transparency, continuing the good work that has been done to date. I hope that it will integrate diversity into its recruitment work, because I strongly believe that diversity reinforces merit and does not detract from it. I hope to see continued structured and accountable methods of collecting views from the judiciary on candidates who are suitable for office. I also hope that it will introduce further audit trails on how selection decisions are reached. Parliament and the Lord Chancellor can help to secure improvements such as helping to ensure diversity, consistent with merit, in the future judiciary.

Clause 58 covers the guidance that may be given to the commission and to selection panels for the most senior judges. Guidance may be issued on identifying persons who are willing to be considered for selection and on assessing them. The Bill states that the purposes for which guidance may be given

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My hon. Friend the Member for Leicester, East (Keith Vaz) asked the Minister whether he will assure the House that the good progress that I have recounted will continue. The best answer that the Minister could give would be that the Government will be active in using guidance to ensure that such work continues.

On the procedure for issuing guidance, which involves not only the Minister but Parliament, clause 59 requires the Minister to


The guidance must be approved by affirmative resolutions of both Houses of Parliament before it is given to the commission and to the selection panels. Clause 58 states that the panels and the commission must have regard to any guidance given. For the sake of completeness, the guidance may be revised and reissued too.

After the change from the present voluntary commission to the statutory commission, the old voluntary commission will be left with complaints, which will be dealt with by a new judicial appointments and conduct ombudsman, who will, to all intents and purposes, cover the commission's present complaints role.

One worrying omission, which I hope is put right in Committee, is that the Bill does not include a provision covering the voluntary commission's current role in auditing future judicial appointments competitions. Part of operating fair recruitment processes will be understanding what is going well and what is going wrong, which will require somebody to continue the audit practice of the present voluntary commission in the new system, because the Bill does not charge anyone with that responsibility.

I welcome the Bill and the proposal to introduce a new supreme court. I agree with the Joint Committee on Human Rights that a supreme court with justices barred from sitting in the House of Lords will make it less likely that violations of the European convention on human rights occur in practice. I hope that Middlesex Guildhall becomes the home of the new supreme court and look forward to 2008, when the collection of buildings in Parliament square will become even more impressive, demonstrating in both the geographical and political landscapes that the tranquillity that Montesquieu discussed in 1748 has come to Westminster, the home of democracy.

6.44 pm

Mr. John Gummer (Suffolk, Coastal) (Con): When the Government propose a major constitutional change, they must first explain that the problem is real and that it is worth taking such trouble over. The Minister is always charming and careful when he puts the case to the House, but he found it difficult to bring together two contradictory concepts. He wanted to assure us that everything has been okay for some time, that the judicial system is fair and that the judicial system has not been affected by party political considerations. Although such an example would have been to some extent anomalous, he could not point to any particular uncertainty in the law because of political involvement.
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The Minister went on to say that the structure has caused discomfort and a lack of entire happiness for many years and that it needs radical modernisation. I am sure that one could make the case for tidying up most things, but we should be concerned with priorities and my worry is that the matter is not a priority. Given that the judicial system is right in principle, it is not the issue to go for, given the large number of other things that I can recommend the Minister to do, although, in fact, he himself would not have to do most of them. I would like a considerable extension of environmental policy to do something about climate change rather than talking about it. I can suggest a range of real priorities—we could, for example, improve the standard of our built environment, given that we are building so many houses.

The Minister has not established the fundamental basis for the Bill or explained the real reason for it. He said that the matter is difficult and that people misunderstand it. He said that, if one were to introduce a new constitution, it would be jolly difficult to argue that it should be the same as our system, but he would also find it difficult to argue for a constitutional monarchy or an established Church. I have no interest in those two subjects and no interest in the Bill, because I am not a lawyer—I have never wanted to be a lawyer and think that there are too many lawyers in the House. I am perfectly happy to discuss the matter and am not arguing on behalf of a vested interest.

It is peculiar to argue that everything has been okay, but we must have radical change because we cannot export our constitution to the rest of the world. The Minister has missed the fundamental nature of our constitution—that it is evolutionary, that it produces over time a series of checks and balances and that it is not written because it largely relies on conventions that people continue to observe.

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