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"remains committed to nearly all the proposals seen by the Joint Committee".
That commitment seems to have lasted barely a year before this paring down, which is, in effect, the removal of most of the changes to the Executive power of the Government in this area of judicial appointments. I simply seek an explanation from the Government as to why they have changed their view. Why have they decided not to proceed with that which they promised?
Mr. Wills: I will come to the burden of what the hon. Gentleman has been saying, but it may help the Committee if I briefly set out the purpose of this clause and, if I may, discuss the substance of it, which is schedule 5.
The Second Deputy Chairman: Order. The Minister is correct. The hon. Member for Somerton and Frome (Mr. Heath) was moving his discussion from the clause into the schedule. As long as we all understand that we are discussing the two things at the same time, that is fine.
The Second Deputy Chairman: It was the hon. Gentleman who led us astray in the first place by moving his discussion from the clause into the schedule. He could deal with any other points he has to make through interventions on the Minister, but in fact we are dealing with the two things together, if he is happy with that.
Mr. Heath: Thank you for getting us out of a procedural conundrum in respect of exactly who should be speaking, Sir Michael. The point that I wish to raise on schedule 5-this may assist the Minister in collecting his thoughts-relates to the Government's response on the order-making power to exempt positions from the JAC's remit. In response to the Joint Committee's report, the Government said:
"The Government remains convinced that the most appropriate way to resolve this issue is an order making power",
"no longer believes this Bill is the appropriate vehicle for such a change, and in the meantime will explore further non-statutory options available."
I would like to know precisely what that means. What are those "non-statutory options" that the Minister is exploring? When does he expect to bring forward more detailed proposals? What will they encompass?
Schedule 5 removes magistrates from the JAC's remit by deleting them from schedule 14 to the 2005 Act. Presumably there is a good reason for that. The 2008 draft Bill also proposed an extremely broad order-making power allowing the Lord Chancellor to amend any part of schedule 14 to the 2005 Act to exempt candidates to certain offices from being selected by the JAC. I think that procedure was intended to allow redeployment, rather than appointment, and to facilitate matters within the field of judicial appointments. It would have been a sweeping power and, as such, it was not entirely surprising that it met with opposition from the JAC itself, the Lord Chief Justice, the House of Lords Constitution Committee and the Joint Committee. Although that proposal has now been dropped, we face the threat or promise of arriving at the same result by alternative means. We are entitled to know from the Minister exactly what those alternative means are and what the Government's intention is.
Mr. Wills: As has been discussed, clause 35 gives effect to schedule 5, which makes amendments relating to judicial appointments and other matters. I hope that my brief run through what the schedule contains will help the Committee in deciding on this matter.
What the Government have sought to do throughout their constitutional reform agenda is to recalibrate to ensure that we have the right relationships between the citizen, the Executive, the legislature-Parliament-and the judiciary. So, for example, the founding of a Supreme Court was a profound constitutional change, which symbolises and entrenches legally, the separation of powers between the state and the judiciary. However, there are also smaller steps that we must take to achieve the goals of this reform programme, and although they are smaller, they are not necessarily nugatory.
Clause 35, and the provisions in schedule 5, to which it gives effect, both help to limit the role of the Executive and reinforce the independence of the judiciary. They also make a number of other minor changes to streamline the judicial appointments process. The Government remain committed to nearly all the proposals seen by the Joint Committee on the draft Constitutional Renewal Bill and we will continue to review and develop them separately from the forthcoming Bill, along with its judicial partners.
Mr. Edward Timpson (Crewe and Nantwich) (Con): The Minister has mentioned that some minor amendments to this Bill are being proposed to try to streamline the judicial appointments process. Can he tell the Committee what assessment is being made of the effect that these streamlining measures will have on attempts to reduce the unfortunate delay that there still is in the appointment of judges, which is causing such problems in our court system?
Mr. Wills: I am happy to set out our thinking. It would give me a little more help in addressing the hon. Gentleman's particular concerns if he could be a little more specific about the problems to which he is referring. If he could list them, I will be happy to address them.
Mr. Timpson: As the Minister might recall, this was an issue that I raised with the Lord Chancellor on Second Reading. I have in fact written to him to set out specific examples of where there are some holes in the number of judges in certain circuits across the country. Clause 35 and schedule 5 will, on the face of it, reduce the time that the medical assessment of a potential candidate will take, but they do not set out in any practical terms how that will affect the time from application to appointment. Can the Minister give us some idea of how much of an effect that process will have?
Mr. Wills: I am grateful to the hon. Gentleman and if he will bear with me, I shall come to that point as I proceed through all the advantages of the schedule. Obviously, if he has written to the Lord Chancellor, I am sure that he will receive a full and completely adequate reply in a timely fashion.
Paragraphs 2, 3, 4 and 9 of schedule 5 remove the Prime Minister from the appointment process of the president, deputy president and judges of the Supreme Court. Paragraph 2 amends section 26 of the Constitutional Reform Act 2005, with the effect that when presented with a candidate chosen by a selection commission recommendations for appointment will now be made by the Lord Chancellor instead of by the Prime Minister. Instead of notifying a selection to the Prime Minister, the Lord Chancellor is to make a recommendation for appointment. Paragraphs 3, 4 and 9 make various consequential amendments to the 2005 Act.
Although we accept that the Executive need to retain a limited role in the appointment of the justices of the Supreme Court, so that there is a direct line of accountability to Parliament for such appointments, the Government believe that, as with all other judicial appointments, the Lord Chancellor has the necessary authority to fulfil this role. Involving the Prime Minister in addition to the Lord Chancellor at a point twice removed from the work done by the independent selection commission that is convened to recommend appointments to the Lord Chancellor in the first place only serves to perpetuate an erroneous perception that the appointment process is not as independent from the Executive as it should be. For that reason, the Government believe that even though the Prime Minister's role in recommending the final nomination to the Queen is a limited one, removing that role is very much in line with the Government's long-standing reform agenda of reducing the role of the Executive, where appropriate, wherever possible.
Paragraphs 5 and 6 of the schedule transfer responsibility for obtaining medical assessments of selected candidates for judicial office from the Judicial Appointments Commission to the Lord Chancellor. That is supported by the commission because it sees the process of medical assessment as part of the final appointment process, rather than the initial selection process. In addition, there was consensus in consultation that this aspect of the appointment process should be quicker-and so there is general agreement with the burden of the appraisal made by the hon. Member for Crewe and Nantwich (Mr. Timpson), which is that it has taken too long.
The hon. Gentleman is nodding. There is general agreement that this needs to be quicker, and the proposal helps to streamline the process by reinforcing an administrative move to a system of self-certification
rather than a medical assessment by a doctor in every case-only in those cases where the self-certification reveals a cause for concern will candidates be asked to undergo a medical assessment. The proposal should speed up and streamline the process. No systems are perfect and obviously if further problems remain, we will address them. I hope that provides some reassurance to the hon. Gentleman.
The Joint Committee was in favour of the proposal, but questioned whether it could be achieved without the need for legislation. The Government view is that legislation is needed to provide absolute clarity. Sections 96 and 97 of the 2005 Act provide for medical assessments of those who have been selected for appointments to be conducted by the Judicial Appointments Commission. Paragraph 5 of the schedule makes amendments to the provisions in section 96 of that Act relating to medical assessments. Sub-paragraph (3) adds new subsections (2A) and (2B) to section 96 to enable the Lord Chancellor to request a person who has been selected for appointment by the Judicial Appointments Commission to provide information about his or her physical or mental condition. The Lord Chancellor may specify a period in which the information has to be supplied.
Sub-paragraph (4) amends section 96(3). The amendment made to that section provides that the Lord Chancellor may also request a candidate to undergo a medical assessment and for a report of that assessment to be made available to the Lord Chancellor. The provisions replace section 96(3) under which the Lord Chancellor may direct the Judicial Appointments Commission to make arrangements for any assessment of the health of those who have been selected for appointment.
Sub-paragraph (5) modifies section 94(4) and sub-paragraph (6) inserts new subsections (4A) and (4B). These provide that the Lord Chancellor may, after consultation with the Lord Chief Justice, notify the Judicial Appointments Commission that he or she is not proceeding with an appointment if the circumstances specified in new subsection (4A) apply. These circumstances are if the candidate does not comply with a request to provide information under the new subsection (2B) or to undergo a medical assessment under proposed new subsection (3)(a), or if the Lord Chancellor is not satisfied on the basis of a medical report under proposed new subsection (3)(b) that it would be appropriate to proceed with the appointment.
Sub-paragraph (7) amends section 96(5) to make it clear that if a candidate is rejected, any other selection for the same appointment or recommendation is to be disregarded and that the candidate must not be selected again pursuant to that request for the same appointment or recommendation. Sub-paragraphs 8 and 9 are transitional provisions that ensure that the new procedures apply only to requests to undergo medical assessments made after the relevant provisions of the Bill have come into force.
Paragraph 6 is a consequential amendment in relation to Scotland and Northern Ireland. It ensures that where reference was made in section 97(1)(e) to the duty to consult the relevant head of judiciary under section 96(4)(a), the reference in section 97(1)(e) now refers to the duty to consult the relevant head of judiciary set out in section 96(4B).
Paragraphs 7 and 10 provide for the removal of magistrates from schedule 14 to the 2005 Act. Schedule 14 to that Act lists the offices that comprise the statutory recruitment and selection remit of the Judicial Appointments Commission. Magistrates were included in schedule 14 under the title of justices of the peace as it was originally intended that recruiting and selecting for the role should be a part of the Judicial Appointments Commission's remit.
The current system has the considerable advantage of providing invaluable local input into the process of recruiting and selecting local people to deliver local justice. Advisory committees are composed of local magistrates and at least one third of local lay persons. This helps to ensure that the recruitment and selection of magistrates is firmly grounded in the communities in which they serve. I hope that the whole House will agree that that is a desirable outcome. Agreement has been reached between the Lord Chancellor, the Judicial Appointments Commission, the Lord Chief Justice and the Magistrates' Association that the Judicial Appointments Commission will not in future take responsibility for the recruitment and selection of magistrates.
Paragraph 10 of schedule 5 to the Bill removes magistrates from schedule 14 of the 2005 Act. The recruitment and selection function will therefore remain for the foreseeable future with local advisory committees, where it is performed effectively and with a high degree of independence by dedicated volunteers drawn from among magistrates and members of the local community.
Paragraph 7 of schedule 5 amends section 118 of the 2005 Act to ensure that even though magistrates have been removed from schedule 14, they will remain within the scope of the disciplinary powers exercised by the Lord Chief Justice and the Lord Chancellor. This could have been done by making an order under section 118, but in this instance the Government feel that primary legislation is the most efficient way to make the necessary changes. It most closely reflects the current arrangements, under which the disciplinary scheme applies to magistrates by means of primary legislation.
Paragraph 8 of schedule 5 clarifies that confidential information obtained during the appointment or disciplinary process can be shared with the police for specified purposes relating to the prevention or investigation of crime, including for the purposes of criminal proceedings. Current sections of the Constitutional Reform Act 2005 covering the disclosure of confidential information do not explicitly allow such information to be provided. We do not consider the proposal to be controversial: it is considered that any indication that a criminal offence had been committed could be disclosed to the police without the need for an explicit gateway, but without a legislative change the Ministry of Justice could be left open to the possibility of litigation that would be costly in terms of both time and money. We therefore want to make it completely clear that confidential information could be disclosed to the police.
We are confident that sharing confidential information for the purpose of preventing a crime, or for the purposes of a criminal investigation or procedures, will be compatible with the principles of data protection. The Data Protection Act does not stand in the way of such disclosures, so they would either be compatible with data protection principles or fall under the exemption to the Act that relates to the prevention or detection of crime, or the apprehension or prosecution of offenders.
The proposal was raised in the White Paper, welcomed by the Joint Committee, and also supported by the JAC. It will bring the judicial appointments process into line with the process in other organisations.
Paragraph 1 of schedule 5 corrects a typographical error. I was perhaps harsh with the hon. Members for Perth and North Perthshire (Pete Wishart) and for Epping Forest (Mrs. Laing) for alleging that the Government had allowed an anomaly to creep into the devolution legislation. They were wrong about that, but I hold my hand up to the typographical error.
The error came about because the original section 21(4) was substituted by the Constitutional Reform Act 2005, which also inserted section 21(4A). The amendments came into force on 3 April 2006, and this has been the first legislative opportunity to correct the error. The correction is uncontroversial and has no adverse impact, but I apologise to the Committee for the fact that it was allowed to creep in in the way that it did.
I turn now to the question asked by the hon. Member for Somerton and Frome (Mr. Heath) about why we dropped certain provisions. We did not drop them: the way that I would phrase it-and I hope that he will agree that this is an accurate reflection of what happened-is that we listened. We consulted extensively on this Bill, and we listened carefully to what hon. Members, the Joint Committee and other people said.
We took to heart what the Joint Committee said about making changes to a process that in effect has been in operation for only a short period. We remain committed to nearly all the proposals put to the Joint Committee, but we take the point that it might be sensible to allow the changes already in place to bed down before we decide exactly how to take them forward.
We will continue to develop the entire judicial appointments process in partnership with our judicial partners separately from the Bill. We recognise that there is more work to do, and I think that the judiciary agree. We do not regard this as a closed chapter, but merely as an onward step in the process.
Mr. Heath: I think that we can take it from what the Minister has said that, when the Government told the Joint Committee that they did not accept the recommendation, what they meant was that they did accept it and that they would remove the promises to remove certain areas of judicial appointments from Executive control. Are those promises are now shelved sine die, or does he have firm proposals to bring them back at an early date?
Mr. Wills: I think that the hon. Gentleman is using the very wide margin of appreciation afforded to Opposition Members to interpret what I said. That is not what I said: I said that we listened to the concerns and agreed that the right thing to do was to allow time to see how the proposals already in place bedded down.
I also said that we are committed to nearly all the proposals originally put forward. To that extent, we do not accept the Committee's recommendation that we should not proceed with the changes. We think that they have merit, but also that we should allow more time to see precisely how we should take them forward.
The promises are not postponed sine die. The Government have shown that we are serious about constitutional reform in all areas. Many people consider
that we have achieved a quite revolution in bringing about a programme of constitutional reform. I am completely confident that it will stand the test of time. We will continue with the reform programme; nothing is postponed sine die.
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