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Session 2007 - 08
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Public Bill Committee Debates

Draft Maximum Number of Judges Order 2008

The Committee consisted of the following Members:

Chairman: Mrs. Janet Dean
Baldry, Tony (Banbury) (Con)
Bellingham, Mr. Henry (North-West Norfolk) (Con)
Bone, Mr. Peter (Wellingborough) (Con)
Butler, Ms Dawn (Brent, South) (Lab)
Cox, Mr. Geoffrey (Torridge and West Devon) (Con)
Curtis-Thomas, Mrs. Claire (Crosby) (Lab)
Featherstone, Lynne (Hornsey and Wood Green) (LD)
Hesford, Stephen (Wirral, West) (Lab)
Howarth, David (Cambridge) (LD)
Hurd, Mr. Nick (Ruislip-Northwood) (Con)
James, Mrs. Siân C. (Swansea, East) (Lab)
Khan, Mr. Sadiq (Tooting) (Lab)
Lepper, David (Brighton, Pavilion) (Lab/Co-op)
Moran, Margaret (Luton, South) (Lab)
Pound, Stephen (Ealing, North) (Lab)
Wills, Mr. Michael (Minister of State, Ministry of Justice)
Glenn McKee, Edward Waller, Committee Clerks
† attended the Committee

First Delegated Legislation Committee

Monday 9 June 2008

[Mrs. Janet Dean in the Chair]

Draft Maximum Number of Judges Order 2008

4.30 pm
The Minister of State, Ministry of Justice (Mr. Michael Wills): I beg to move,
That the Committee has considered the draft Maximum Number of Judges Order 2008.
I am extremely pleased to serve under your chairmanship, Mrs. Dean. The order will increase the statutory maximum number of judges of the Court of Appeal from 37 to 38 so as to enable a Court of Appeal judge to be appointed chairman of the Law Commission without reducing the judicial capacity of the Court of Appeal. Section 1 of the Law Commissions Act 1965 provides that the chair of the commission must be a judge of the High Court or the Court of Appeal of England and Wales. The order will increase the limit on the number of lords justices of appeal to accommodate the appointment of a lord justice as chairman of the commission. Without that provision, the working capacity of the Court of Appeal would be reduced for the period of appointment of any existing lord justice of appeal to the chair of the commission, as that post is a full-time appointment.
As the Committee will know, the Law Commission is the statutory independent body created by the 1965 Act to keep the law under review and recommend reform when needed. Its key aims are to ensure that the law is as fair, modern, simple and cost-effective as possible; to conduct research and consultation to make systematic recommendations for consideration by Parliament; and to codify the law, eliminating anomalies, repealing obsolete and unnecessary enactments, and reducing the number of separate statutes. The commission’s recommendations for law reform can shape the legal rights, duties and liabilities of large numbers of people, and large areas of the law have been renewed as a result of its continuing work.
The commission has been recognised by successive Governments as making an invaluable contribution within our legal system, and it plays a fundamental part in our constitutional arrangements. There are five commissioners, all of whom work full-time at the commission. The chair is a senior judge appointed to the commission for up to three years. The other four commissioners are experienced judges, barristers, solicitors or teachers of law. The Secretary of State for Justice and Lord Chancellor appoints them for up to five years, although their appointments may be extended. The 1965 Act provided for all the commissioners to be
“persons appearing to the Lord Chancellor to be suitably qualified by the holding of judicial office or by experience as a barrister or solicitor or as a teacher of law in a university.”
Ever since the creation of the commission, its chairman has always been appointed from the ranks of the senior judiciary because of the demands of the job. Having a senior member of the judiciary at the head of the commission acts as both a guarantee of its independence and a pledge of the Government’s continued desire for it to carry out its statutory duty. It is a guarantee because the chairman is a member of the judiciary who cannot be said to be beholden to the Government in any way and who can deal with members of the Government without concern.
As hon. Members will see, the chairmanship is an extremely important and demanding role, and he or she promotes the role and work of the commission, is its principal public face, leads the commissioners and represents their views to Ministers and other stakeholders. The chairman also leads on law reform projects and has special responsibility for overseeing the commission’s work on consolidation and statute law revision. During the passage of the 1965 Act, the Lord Chancellor, Lord Gardiner, said that in his opinion the chairman should be
“not only a High Court Judge but the High Court Judge who, of all the High Court Judges ...the Commission would be most fortunate to have.”—[Official Report, House of Lords, 14 April 1965; Vol. 265, c. 46.]
Therefore, the chair of the commission needs to be seen to be someone who has the status and authority to command the respect and confidence of the Government and the judiciary. The commission’s work needs to carry the confidence of Parliament if the Bills that it drafts are to pass into law. Having a Court of Appeal judge as the chair of the commission will help to ensure that that confidence is maintained, and it is vital that the chair is a judge of the highest calibre. Indeed, it is in the public interest that the most able senior judges fill such posts. That is more true than ever in view of the recently proposed significant structural reforms to improve the effectiveness of the commission and its relations with Parliament and the Executive.
It is in the interests of the proper and efficient functioning of the judiciary that the most able senior judges are interested in taking the chair of the Law Commission because such a position provides a unique opportunity for the senior judiciary to acquire administrative and management experience and familiarity with the workings of Parliament and the Executive. It is even more important that the most able judges should acquire those things, as the 2005 constitutional reforms transferred responsibility for management of the judiciary to the most senior judges. In future, having prior management experience will be even more important for them. The Law Commission chairmanship enables senior judges to gain a broader range of legal knowledge than they might otherwise achieve across a diverse range of subject areas, informed by comparative law, empirical research and impact assessments.
The draft order is an essential step in ensuring that the most experienced and suitable judges can be appointed chair of the Law Commission while the working capacity of the Court of Appeal is maintained. I commend it to the Committee.
4.36 pm
Mr. Henry Bellingham (North-West Norfolk) (Con): It is a pleasure to serve under your chairmanship, Mrs. Dean. I thank the Minister for turning up and for the clear and erudite way in which he explained the purpose of the order.
Those on the Conservative Benches support the order in principle, but I have one or two questions for the Minister. He was right to explain the vital work that the Law Commission does. As he pointed out, the chairman of the commission has always been appointed from the ranks of senior High Court judges. By convention, the chairman is then upgraded to the Court of Appeal. In other words, he has always been somebody of Court of Appeal calibre. That reflects the thinking of Lord Gardiner when the 1965 Act was debated.
There have been good examples of chairmen of the commission who have gone on to do great things in the Court of Appeal. I have no doubt that the immediate past-chairman, Sir Roger Toulson, and the current chairman, Sir Terence Etherton, will do exactly that. Sir Terence is doing a first-class job and relishing the newly expanded constitutional role of the chairman of the commission, particularly in dealing with the legislature.
One of the advantages of the old system of appointments by the Lord Chancellor was that the convention could be guaranteed. The same individual appointed the head of the commission and made appointments to the Court of Appeal. The chairman of the commission is still appointed by the Secretary of State for Justice and Lord Chancellor. Although Court of Appeal appointments are made by the Lord Chancellor, those people are appointed from a list of High Court judges, who are in turn appointed by a selection panel drawn up by the Judicial Appointments Commission. It is a bit of a convoluted process.
The Minister alluded to there being no guarantee under the new appointment arrangements for the Court of Appeal that the chairman of the commission will be appointed to the Court of Appeal, as is the convention. Why can that not be guaranteed? As I understand it, the selection panel draws up the list of High Court judges to be appointed by the Lord Chancellor. That selection panel is in turn appointed by the Judicial Appointments Commission.
I would not have thought it beyond the wit of Ministers to make it clear to the Judicial Appointments Commission that the outgoing head of the Law Commission should always be appointed to the Court of Appeal, even though that might involve a slight delay. I would not have thought that much pressure was needed because the Judicial Appointments Commission understands the importance of that convention.
I ask the Minister simply, why is it necessary to increase the number of Court of Appeal judges? If we were living in times of great plenty and his Department’s budget was awash with funds, it would be slightly different. However, we know that there are serious expenditure problems with the Prison Service, legal aid and the Courts Service, and there is a small cost implication to the measure.
I would be grateful if Minister explained and told the Committee exactly what that cost implication is. Are we talking about the cost of an extra Court of Appeal judge or of one fewer High Court judge and one more Court of Appeal judge? In which case, the figure will be the difference between the costs of the two. There will also be pension implications.
The Minister will be aware that there are, as he pointed out, four other law commissioners who sit alongside the current chairman, Sir Terence Etherton. They also do an absolutely first-class job. Again, by convention, they normally go to the High Court after their term of office ends. I could not find a single example of a former commissioner not being appointed to the High Court bench, if that was what he or she wanted to do—maybe the Minister will correct me on that. There have been examples of commissioners not wanting to go to the High Court bench. Will the Minister clarify that matter?
Concerns have been expressed to me, by judges and senior silks alike, that there is a paucity of really top-class silks and other senior people in the profession coming forward to volunteer their services and go on the commission. That is because there is now no absolute guarantee that they will be appointed to the High Court thereafter because of the new arrangements for appointments. Will the Minister comment on that? It is a second issue that flows from the measure.
I would have thought that for Ministers to have a good professional working relationship with the Judicial Appointments Commission, which they obviously have, it has to be at arm’s length, because the essence of the commission being set up was that those appointments would be taken away from Ministers. We accept that that has happened, although we do not necessarily agree with all aspects of it. In some ways, it is an unintended consequence of the new arrangements.
We had in place a perfectly good system that worked well, but the new arrangements have created various problems in the working of the system and in honouring the conventions. I would like the Minister to comment on that because, although we are talking about only a small amount of money, it is public money nevertheless and it comes from a Department that is under a lot of pressure. Having said that, we are obviously anxious to ensure that no obstacles whatever are placed in the way of excellent heads of the commission, such as Sir Terence Etherton, being appointed to the Court of Appeal.
4.42 pm
Lynne Featherstone (Hornsey and Wood Green) (LD): It is a pleasure to serve under your chairmanship, Mrs Dean.
We will support the order, and much of what I would have said has already been said. Obviously, it is incredibly important that we have those of the highest calibre at this rank. When the new arrangements were envisaged or invoked, at what point was it realised that they might inhibit the fulfilment of the convention? That is my only question for the Minister.
4.43 pm
Mr. Peter Bone (Wellingborough) (Con): It is a pleasure to serve under your chairmanship, Mrs. Dean.
I have a couple of brief questions for the Minister. Did the Joint Committee on Statutory Instruments consider the order before today’s sitting, and if so were there any comments? Am I to assume that 37 judges have already been appointed, which is why we are creating the 38th space? Otherwise, the order would seem to be meaningless. I want to clarify that that is the case, then I will obviously support the motion.
4.44 pm
Mr. Wills: I am grateful for the Committee’s support for the measure overall.
I want to give the Committee a precise answer on the question on cost, and, if I may, I will write to the hon. Member for North-West Norfolk. I accept his point that there is a cost involved, but he answered his own question during his remarks on it not being beyond the wit of Ministers to find a way to persuade the JAC to make such an arrangement. Later, he rightly said that it is important that this should be an arm’s-length—and it is. That is precisely why the JAC was set up.
I am not sure that many would share the hon. Gentleman’s view that the old system worked well and did not need to be changed. Most people welcome the new system and the continued distancing of the Executive from the judiciary. That was a wise and prudent move, and it is working well. It has given rise to certain issues, but in the end this is mainly a human resources issue.
In answer to the question from the hon. Member for Hornsey and Wood Green, that potential problem was brought to our attention by the Law Commission itself. We discussed the move with the commission a few months ago, and it agreed that it was prudent.
The Law Commission is an important institution and we are taking measures to improve how it works with the Government. We hope that they will command the assent of the House in due course. We want to entrench the institution’s importance, and this measure is a significant part of that.
In answer to the question from the hon. Member for Wellingborough, the Joint Committee on Statutory Instruments has seen the order and has not made any comments, as far as I am aware. There are 37 Court of Appeal judges, so the number will increase by one.
I hope that I have sufficiently reassured hon. Members and that they will support the measure.
Question put and agreed to.
That the Committee has considered the draft Maximum Number of Judges Order 2008.
Committee rose at thirteen minutes to Five o’clock.

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