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12.46 pm
The Parliamentary Under-Secretary of State for Justice (Vera Baird): I beg to move, That the clause be read a Second time.
Mr. Speaker: With this it will be convenient to discuss the following:
Government new clause 8— Appointment of temporary assistant to Judge Advocate General.
Government new clause 9— Appointment of deputy Circuit judge.
Government new clause 10— Appointment as Chairman of Law Commission.
Government new clause 13— Continuation of judicial office after normal retirement date.
Government amendments Nos. 43 to 51, 71, 66, 52 to 63 and 67.
Vera Baird: New clauses 7 and 9 and amendments Nos. 43 to 63 deal with a single topic, which is that those who have served in judicial office on a salaried basis should be facilitated to continue to do so on a fee-paid basis, offering as they do an important additional resource for the peaks and troughs of court and tribunal business, and to preserve their tried and tested specialist skills. Where someone has served successfully in salaried office, it would be a waste of resources if he had to go through a Judicial Appointments Commission selection process in order to become, as it were, part-time, but every case must be carefully considered. A business case will be required in each instance, and the individual must of course be guaranteed to be up to the job.
Originally, in clauses 53 and 54 the provision was available for deputy district judges and deputy and temporary additional masters and registrars of the Supreme Court. The Lord Chancellor and the Lord Chief Justice have agreed that it would be better if the provisions were amended and extended. Such a use of staff was regarded as deployments appropriately carried out by the Lord Chief Justice, but the two men have agreed that it is more appropriate to call them appointments and to say that they will be done by the Lord Chancellor, although he will be required to obtain the concurrence of the Lord Chief Justice in relation to appointments in the ordinary courts, and of the senior president of tribunals in relation to tribunal appointments. The provisions will in addition apply to all the judicial offices at the level of circuit judge and below in the ordinary courts and to all tribunal appointments made by the Lord Chancellor.
I should be happy to take the House through the details of how all the amendments culminate in what I have set out, but essentially I have outlined their import. They will facilitate the use of a formerly salaried chairman, judge or master to work on a part-time paid basis, either on retirement or when they have held office in the previous two years. The provisions contain all the checks and balances to which I have referred, but if more amplification is needed, I shall of course respond to any comments that are made.
New clause 8 sets out amendments to the Constitutional Reform Act 2005 and the Courts-Martial (Appeals) Act 1951. It arises from an unforeseen interaction between the 2005 Act and the anticipated Armed Forces Act 2006. The effect of this interaction, if not remedied, would mean that certain judicial office holders and lawyers who sit as judge advocates would no longer be eligible to do so without having to apply afresh for their posts.
Currently, the Judge Advocate General can appoint judge advocates from a pool of 12 judicial office holders or lawyers to individual courts martial. That will change once the new Armed Forces Act comes into force, as all appointments will require selection by the Judicial Appointments Commission. That could cause difficulty for the current band of 12 people from whom court martial officials are drawn. If they were to require selection by the JAC, we could lose a good deal of specialist expertise, as the people involved have worked in this field for many years, and are regarded with esteem.
The problem has been discussed with the Ministry of Defence and with the Office of the Judge Advocate General. To achieve our purpose, it is necessary to amend the Constitutional Reform Act 2005 and the Courts-Martial (Appeals) Act 1951. New clause 8 does that by adding three new subsections to the 1951 Act. It requires that the Lord Chancellor, who will be in charge of the appointments, seek the concurrence of the Lord Chief Justice before making any such appointment. I assure the House that new clause 8 is necessary for the continued smooth running of the courts martial system, and I trust that hon. Members will be able to support it.
New clause 10 relates to the appointment of the chairman of the Law Commission. As hon. Members know, the Law Commission is a statutory body set up in 1965, and it comprises a chairman and four other commissioners. All are appointed by the Lord Chancellor from persons who appear to be suitably qualified by the holding of judicial office or by practical or academic experience of the law.
The first chairman was the then Sir Leslie Scarman, who was appointed in 1965, and the present chairman is the delightful and extremely effective Sir Terence Etherton, who was appointed in 2006. In practice, the policy of all the successive Lord Chancellors has been to appoint a candidate from among the judges of the High Court. That has brought significant advantages of independence, expertise and prestige to the Law Commission, and has helped to make it the internationally well regarded law reform body that it is today.
We propose to amend the Law Commissions Act 1965 so that in future the Lord Chancellor can appoint only a senior judge as chairman of the Law Commission. The change is necessary because the code of practice on ministerial appointments of the Commissioner for Public Appointments requires that an appointment should be open to all those who are qualified to be appointed. Therefore, the fact that the chairmanship of the Law Commission would have to be open to judges, barristers, solicitors and legal academics could deter applications from judges and could deny the Law Commission the very important benefits that flow from the appointment of a senior High Court judge. There are also consequential amendments, but I hope that I need spend no more time persuading hon. Members that the proposed change is wholly desirable.
Finally, new clause 13 rectifies a technical lacuna in a section of the Judicial Pensions and Retirement Act 1993 that resulted inadvertently from its modification by the Constitutional Reform Act 2005. The 1993 Act prescribes a normal compulsory retirement age of 70
for judicial office holders, subject to transitional provisions for later retirement dates for those already sitting at the date of commencement. Section 26 of the 1993 Act makes further provision to enable the service of judicial office holders to be extended, on a year-to-year basis, up to the age of 75—that is, beyond what is otherwise their compulsory retirement date. That is an example of flexibility in the interests of justice, in exceptional cases. It means, for instance, that an office holder should be retained if his or her specialist knowledge causes particular difficulty in finding a replacement.
Paragraph 228 of schedule 4 to the Constitutional Reform Act 2005 modifies the Pensions and Retirement Act 1993 to reflect the new division of functions between the Executive and the judiciary. By reassigning the power for the extension of service of judicial office holders, it catered for the exercise of that power in relation to judicial office holders exercising jurisdiction exclusively in England and Wales, Scotland or Northern Ireland. However, it has latterly come to light that there is a lacuna, because the changes did not cater for those who exercise cross-border jurisdiction. Consequently, we have sought to close that lacuna, and again I hope that I need persuade the House no further that that is an entirely desirable development.
Mr. Henry Bellingham (North-West Norfolk) (Con): I begin by thanking the Minister for her courtesy in writing to the Opposition Front-Bench team—and I presume also to our Liberal Democrat counterparts—to inform us about these changes. We support them because, as she explained, they tidy up various problems. We certainly support the amendments relating to the appointment of the chairman of the Law Commission, and to the appointment of retired judges.
In Committee, my hon. Friend the Member for Hornchurch (James Brokenshire) suggested that retired High Courts judges should be able to sit as deputy judges in the upper tribunal. The Minister said that she would follow up his suggestion, and I am especially pleased that she has done so. I am also keen about what she is doing in respect of the appointment of existing part-time judge advocates. She explained clearly that the 12 lawyers in the pool from which the Advocate General makes appointments to sit on courts martial will have to go through a formal appointment process, under the auspices of the JAC. Obviously, quite a few of them will not feel able to put themselves through that selection procedure, and that is why the proposal is pragmatic and sensible. The Opposition are the last people who would want to lose experienced post holders, as that would have an impact on the smooth running of the courts martial system.
There are a lot of amendments and new clauses in the group, which makes it look rather intimidating. We support the Government’s proposals, some of which flow from our discussions in Committee, but I am concerned that the Government should have introduced so many new clauses at this stage. The Minister was correct to inform us about her plans, and I appreciate entirely that it is important to get things right. We had a lengthy debate in the other place and in the Joint Committee, but the Bill has taken a long time to come to fruition.
Various reports were followed by a draft Bill, and there has been a great deal of discussion for many years. I hope that the Minister will say why so many amendments have been left to the last moment. Why could she and her Department not get all of it right from the word go? With those few critical remarks, however, I assure the Minister that we support these amendments. They make a great deal of sense, and I commend her on bringing them to the House.
Simon Hughes (North Southwark and Bermondsey) (LD): I too thank the Minister for writing to us in good time for today’s debate. She indicated the Government’s intentions and the nature of their amendments in a way that was both clear and sensible. I understand the value of allowing people to be available for work on a part-time basis, as that will extend the range of those who are able to assist in the tribunal service. That is completely logical. It is right to deal with the point about the courts martial and with the technical issue in the Bill, as it is a perfectly proper Bill in which to sort out the structure of the courts and tribunals. The proposals are welcomed by the Liberal Democrats.
1pm
A point could be made about the delay, but these are not major constitutional changes. There is nothing that rocks the ship of state. It is much better that we get a Bill in good shape, so the new clauses are entirely acceptable to me and my colleagues. We are glad that we can tidy matters up at this stage of our proceedings.
Vera Baird: I am immensely grateful to the hon. Members for North-West Norfolk (Mr. Bellingham) and for North Southwark and Bermondsey (Simon Hughes). As the hon. Member for North-West Norfolk suggested, the lacuna regarding cross-border jurisdiction and pensions emerged only when we tried to draft appropriate provisions for the matter that we discussed in Committee of extending tenure of office and transferring people from salaried to part-time posts. The issue was late to arrive.
The issue of the Law Commission chairman was raised by the current chairman himself. We have taken some time to ascertain that no adverse consequences would result from complying with his wishes. It seems to us that the steps are only advantageous, and I am grateful for the support for them.
Clause read a Second time, and added to the Bill.
‘After section 30(2) of the Courts-Martial (Appeals) Act 1951 (c. 46) (temporary assistants to Judge Advocate General) insert—
“(3) The Lord Chancellor may not appoint a holder of relevant office under subsection (2) without the concurrence of the Lord Chief Justice of England and Wales.
(4) Section 85 of the Constitutional Reform Act 2005 (selection of certain office holders) does not apply to an appointment to which subsection (3) applies.
(5) In subsection (3) “holder of relevant office” means a person who has, within the two years ending with the day on which this subsection comes into force, been appointed as judge advocate to a court-martial under—
(a) section 84B of the Army Act 1955,
(b) section 84B of the Air Force Act 1955, or
(c) section 53B of the Naval Discipline Act 1957.”’.— [Vera Baird.]
Brought up, read the First and Second time, and added to the Bill.
‘In section 24(1) of the Courts Act 1971 (c. 23) (appointment of deputy Circuit judges and assistant recorders) for paragraph (a) substitute—
“(a) the Lord Chancellor may, with the concurrence of the Lord Chief Justice, appoint to be a deputy Circuit judge, during such period or on such occasions as the Lord Chancellor thinks fit, any person who has held office as a judge of the Court of Appeal or of the High Court or as a Circuit judge;”.’.— [Vera Baird.]
Brought up, read the First and Second time, and added to the Bill.
‘(1) Section 1 of the Law Commissions Act 1965 (c. 22) is amended as follows.
(2) After subsection (1) insert—
“(1A) The person appointed to be the Chairman shall be a person who holds office as a judge of the High Court or Court of Appeal in England and Wales.”
(3) In subsection (2) before “Commissioners” insert “the other”.— [Vera Baird.]
Brought up, read the First and Second time, and added to the Bill.
‘(1) Section 26 of the Judicial Pensions and Retirement Act 1993 (c. 8) (retirement date for holders of certain judicial offices etc.) is amended as follows.
(2) In subsection (12), in the definition of “the appropriate person”, after paragraph (c) insert “;
(d) the Senior President of Tribunals in the case of a person who holds a judicial office that—
(i) is specified in subsection (12A) below, and
(ii) is not in the person’s case an office to which any of paragraphs (a) to (c) above applies;
(e) the Lord Chief Justice of England and Wales in the case of a person who holds a judicial office that is not in the person’s case an office to which any of paragraphs (a) to (d) applies;”.
(3) After subsection (12) insert—
“(12A) The judicial offices mentioned in paragraph (d) of the definition of “appropriate person” in subsection (12) above are—
(a) Chamber President, or Deputy Chamber President, of a chamber of the First-tier Tribunal or of a chamber of the Upper Tribunal;
(b) judge, or other member, of the First-tier Tribunal or of the Upper Tribunal appointed under paragraph 1(1) or 2(1) of Schedule 2 or 3 to the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”);
(c) deputy judge of the Upper Tribunal appointed under paragraph 7(1) of Schedule 3 to the 2007 Act, except in a case where the holding of the office by the person in question falls within subsection (7)(ga) above;
(d) transferred-in judge, or transferred-in other member, of the First-tier Tribunal or of the Upper Tribunal (see section 31(2) of the 2007 Act);
(e) deputy judge of the Upper Tribunal by virtue of an order under section 31(2) of the 2007 Act;
(f) an office held by a person if the person’s holding of the office results in the person being a member of, or person who is, a tribunal in a list in Schedule 6 to the 2007 Act that has effect for the purposes of section 30 of that Act (but only if the office is specified in Schedule 5 to this Act);
(g) President or other member of the Asylum and Immigration Tribunal;
(h) member of the Employment Appeal Tribunal appointed under section 22(1)(c) of the Employment Tribunals Act 1996;
(i) member of a panel of chairmen of employment tribunals.
(12B) Neither paragraph (d) nor paragraph (e) of the definition of “appropriate person” in subsection (12) above applies to an office held by a person if provision about that person’s continuation in the office after the compulsory retirement date for the office—
(a) would be within the legislative competence of the Scottish Parliament if it were included in an Act of that Parliament, or
(b) would be within the legislative competence of the Northern Ireland Assembly if it were included in an Act of that Assembly.”
(4) In subsection (13) (Lord Chief Justices to exercise functions under section with concurrence of Lord Chancellor), after “Northern Ireland” insert “or the Senior President of Tribunals”.’.— [Vera Baird.]
Brought up, read the First and Second time, and added to the Bill.
‘The provisions of Chapter 1 of Part 3 of this Act shall not come into force until a registration scheme for bailiffs and enforcement agents, enforcement agency businesses and enforcement trade associations has been set up and implemented in accordance with the Private Security Industry Act 2001 or this Act.’.— [Simon Hughes.]
Brought up, and read the First time.
Simon Hughes: I beg to move, That the clause be read a Second time.
Mr. Deputy Speaker (Sir Alan Haselhurst): With this it will be convenient to discuss the following: New clause 4— Uniforms
‘All enforcement agents, both private and Crown-employed, must at all times wear such uniform or other means of identification as shall be prescribed.’.
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