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Mr. Heath: I have a couple of very brief questions about clause 36. They also relate to Government new clause 23, which is a very similar provision relating to Northern Ireland. I therefore hope, Sir Michael, that it will not disturb our proceedings too greatly if we do not repeat these questions later.
Secondly, what is the position of the lay members of tribunals? Chairmen have salaried posts, but do lay members have the same protection? I was approached over the summer by a lay member of an employment tribunal who was extremely concerned that there appeared to be arbitrary changes in what he was expected to do as a tribunal member, the conditions under which he was expected to work and the remuneration that he could expect in terms of appropriate expenses. To what extent does the protection offered to what are quasi-judicial tribunal appointments extend to the lay members who sit alongside them? Lay members provide a very important resource to the country in helping to arbitrate sometimes extremely difficult issues.
Mr. Wills: I think that it partially answers the hon. Gentleman's question if I say that we are seeking to correct a legislative anomaly. Every hon. Member agrees with the principle that we should have an independent judiciary in this country, and that that independence should be robustly protected in all ways.
We have talked about the appointments process, in which we are trying to entrench that fundamental principle of independence. Another crucial aspect of judicial independence is salary protection for judicial office holders, and that is what clause 36 is designed to advance. There is a legislative anomaly, and we are trying to remedy it by providing a statutory prohibition preventing the Secretary of State or the Lord Chancellor from determining reductions in the salaries of judicial office holders in tribunal services.
The hon. Member for Somerton and Frome (Mr. Heath) asked why only these members of the judiciary are mentioned in the clause, and the answer is that most other judicial office holders are already protected in primary legislation from the Executive determining reductions in their salaries. That statutory salary protection is widely regarded as an important safeguard of judicial independence against Executive interference, but currently there are no equivalent provisions for tribunal judges.
This change is designed to harmonise the statutory safeguards of judicial independence across the judiciary, and it was welcomed by the Joint Committee.
Lay members of tribunals will not have the same protection, precisely because of the principle of judicial independence. Lay members do valuable and crucial work, but none the less they are not part of the judiciary in quite the same way.
It might be worth informing the Committee that there are a relatively small number of judicial office holders who will still not receive salary protection in the way set out in clause 36. The judge advocate general and the deputy and assistant judge advocates general are not covered by primary legislation because they fall outside the mainstream judiciary.
In speaking to the new clause, I hope I will address the final part of the remarks of the hon. Member for Somerton and Frome (Mr. Heath). The new clause provides a guarantee that the salaries of certain judicial office holders in Northern Ireland may not be reduced. As I said, the statutory salary protection is a crucial
part of judicial independence. We have just passed clause 36, which provides it for tribunal office holders. With the inclusion of the provisions concerning England and Wales giving statutory protection for tribunal judges, we saw an opportunity to bring salary protection for the judiciary in Northern Ireland into line with that in England and Wales. That is what the new clause will do.
Mr. Dodds: I welcome the Minister's comments on new clause 23. I have a couple of brief questions. I should be grateful if he could outline the extent to which there was consultation with the Northern Ireland Court Service and others in the Northern Ireland Office on the matter, given the current debate on the devolution of justice powers in respect of Northern Ireland.
Further to the questions posed earlier by the hon. Member for Somerton and Frome (Mr. Heath), can the Minister outline what the measure will mean in relation to those judicial and tribunal officers in Northern Ireland who are not covered? There is an extensive list in new clause 23 but what about the officers not covered? Are any posts in Northern Ireland specifically related to the Province not covered by salary protection provisions?
Mr. Wills: I am grateful to the hon. Gentleman for his welcome for the new clause and for his questions. We consulted everyone appropriate in Northern Ireland, including the Court Service, so I can reassure him on that.
On the question who is covered and who is not, the provision covers the salaried judiciary in the courts as well as social security and child support commissioners, but as I think the hon. Gentleman was suggesting, there are a number of other tribunal judiciary in Northern Ireland who are not included. That is because this is a matter for the devolved Administration. As I said, we have made the relevant Departments aware of our plans to introduce these changes. It is a matter for them whether they choose to follow suit.
I should declare an interest as a barrister. I should also point out that I am not at present seeking any judicial appointments. I did at one stage have serious ambitions to become a high-flying
QC who might go on to one of the highest judicial appointments in the land, but I suspect that what I am going to say in a few minutes will probably not endear me to the Judicial Appointments Commission.
New clause 20 removes from the scope of the JAC the appointment of Court of Appeal judges, the Lord Justices of Appeal. It does this by removing the relevant sections of the Constitutional Reform Act 2005. New clause 22 clarifies section 88 of that Act by stating clearly in the legislation that the JAC will not be able to continue with its unpopular and, I would suggest, discredited written tests.
Why are we proposing these two new clauses? We need to have a quick look at the JAC and the background to it. It was set up by section 61 of the 2005 Act. It was a completely new system and represented a significant departure from the previous system, which was based on recommendations to the Lord Chancellor. This was part of a much wider package of constitutional changes involving the position of the Lord Chancellor, the new Supreme Court, which we shall discuss later this afternoon if new clause 21 is reached, and judicial appointments in Northern Ireland. Another important part of that package of constitutional changes was the creation of the Ministry of Justice, which took over the former Department for Constitutional Affairs and took over from the Home Office responsibility for prisons and the probation service.
When the proposals were announced, they were notorious for the lack of proper consultation. There was no Green Paper and no White Paper. As I understand it, there was no consultation even with Her Majesty. There was no consultation with the judiciary, the Lord Chief Justice or the senior Law Lords. The then Lord Chancellor, the noble Lord Irvine of Lairg, was not consulted. He was told about the changes only after the decisions had been taken. He was told that, as part of the original package, his own post was to be abolished.
As the noble Lord Neuberger recently commented, all this was completely unprofessional and seemed like the product of late night whiskeys and back of an envelope calculations by the then Prime Minister, Tony Blair, and some of his sofa government cronies. He did not look carefully at what would be required in getting rid of the post of Lord Chancellor. He did not appreciate at the time that it would require primary legislation, and he did not realise that there are 5,000 references to the post of Lord Chancellor in our law.
Lord Irvine of Lairg has now broken his silence and accused the then Prime Minister of blocking his ideas, botching the reforms and humiliating him. Perhaps we should not worry too much about the latter point. He spoke about
"the chaotic, even cavalier way"
"winging it on hunches, using inadequate advice"
"scant regard for procedure."
Mr. Oliver Heald (North-East Hertfordshire) (Con):
Is my recollection correct, and does my hon. Friend remember, that the Lord Chief Justice was told five
minutes before the press release went out from No. 10? That was the extent of consultation for our most senior judge.
Mr. Bellingham: My hon. Friend is right about that. It indicates the Government's cavalier attitude to parts of the constitution that we regard as precious. They cannot look at those parts of the constitution without wanting to kick them hard.
I should now like to consider the system of judicial appointments and consider whether the old system worked, because we need to look at the previous system before we can reach a considered opinion on how the new system is working.
Mr. Heald: Does my hon. Friend agree that the JAC is an important part of the patchwork of compromises and decisions that had to be made following the decision to abolish the position of Lord Chancellor? For example, there was also the concordat, a very lengthy document agreed with Lord Woolf, which had to be produced because the Government had no idea of the complexity of what they were trying to do during the ministerial reshuffle.
Mr. Bellingham: Again, my hon. Friend, who followed the issue carefully at the time, is absolutely spot-on. Indeed, many of us took the view that the JAC, which was established by the relevant sections of the Constitutional Reform Act 2005, was created on the basis that the position of Lord Chancellor would be abolished. But of course the position was not abolished, because it was discovered that, as part of the reform of our constitution, it would be almost impossible to do that without introducing a much lengthier Bill.
Jeremy Wright (Rugby and Kenilworth) (Con): Does my hon. Friend agree that this issue is part and parcel of the problem with the Government's overall approach to constitutional reform, whereby they start down a road with no clear idea of their destination? The later provisions of the Bill will show that the same thing is happening to the House of Lords as happened to judicial appointments.
Mr. Bellingham: My hon. Friend is 100 per cent. correct, because we have seen a hotchpotch of different reforms. Indeed, they were initially predicated on getting rid of the post of Lord Chancellor and moving the Law Lords out of the House of Lords and into the new Supreme Court. But, as my hon. Friend rightly points out, a decision was taken at the time without any clear idea of how the legislation would be framed, and as a consequence we are picking up different bits of it.
Did the previous system of judicial appointments work? Did it deliver an exceptionally high calibre of judges? The answer is undoubtedly yes, and the system cost virtually nothing. One issue that has been raised at the Bar for as long as I can remember is diversity, but we
are looking at it from the wrong direction in terms of judicial appointments. The key point is to look at it from the point of view of access to the professions, because if the most able and competent people, from all backgrounds, are attracted to them and do well at the Bar, for example, as solicitors or in other, linked professions, they will be appointed to the Bench and, I hope, secure judicial appointments.
At the Bar, for example, which is the part of the profession I know most about, the percentage of ethnic minority students at law school and in paid pupillages is far greater than the percentage of ethnic minorities in the population as a whole. The Bar has reached out to schools throughout the country, and explained to schools and universities what a career at the Bar is all about. My hon. Friend the Member for North-East Hertfordshire (Mr. Heald) and I virtually had to pay for our pupillages, but now one has paid pupillages.
I pay tribute to those former chairmen of the Bar Council, Geoffrey Voss and Timothy Dutton, who worked incredibly hard on ensuring that the Bar made sterling efforts to reach out to schools throughout the country, and on widening access to the Bar. That work has been continued by Desmond Browne QC, the current chairman of the Bar Council, and he has stated time and again that he is passionate about the issue and feels strongly that the Bar must ensure that access is widened as much as possible. I am sure that the Minister agrees that, on this issue, the Bar sets a glowing example. Law schools are full of overseas students, students from Commonwealth countries, Dominion countries and people who will undoubtedly go on to great success in their own countries.
I remember that when I was at law school, I had a number of fellow pupils from Commonwealth countries, and they have since gone on to high judicial appointments and, indeed, to high political office. In fact, one contemporary has even gone on to become king of a country.
Mr. Heald: Does my hon. Friend agree that one great thing about ethnic minority solicitors is that they have been able to set up small firms that cater for the interests and needs of a particular community? One damaging aspect of the Carter review has been the attempt to force all firms to conform to a particular size and way of working. It has impacted, and will impact, badly on many ethnic minority solicitors, who until now have been able to become the senior partner in a firm and move on to judicial office later. Does my hon. Friend agree that the reforms, though well intentioned, may establish a glass ceiling?
Mr. Bellingham: I am grateful to my hon. Friend for that observation, because it illustrates the Government's complete lack of joined-up thinking. They have made various changes to legal aid, and, as a result, their absolute obsession with consolidation and "big is best" will drive out of business many small firms, particularly small minority ethnic businesses in city centres. They are often the launch pad for members of the ethnic minorities to go into law. With the loss of that launch pad, those people may not go into the legal profession, and they will not be available to take up judicial appointments later.
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