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4 Nov 2009 : Column 894

Mr. Wills: Again, may I just say how much I am enjoying this paean of praise to equality and diversity? It is particularly bracing, coming as it does from the Conservative Front Bencher. However, will the hon. Gentleman tell me how it is relevant to the provisions that affect the Judicial Appointments Commission?

Mr. Bellingham: The Minister is obviously desperate to join the Chairmen's Panel, whereupon he will be able to control debates in that way. It is up to a Committee's Chairman to say whether I am in order, however, and it is important that we look at the background to the JAC. If we do, we will be able to see whether the clauses make sense.

The issue is also about judicial appointments and what our constituents expect from the judiciary. When our constituents appear before a court, be it a magistrates court, county court, Crown court or the High Court, above all else they want to encounter a level of expertise, wisdom, fairness and professionalism. After all, at that juncture in their lives, they may be facing the loss of their liberty, property or finances, or the removal of a child from their custody, so they are not interested in the gender, race or able-bodiedness of the judge. All they are interested in is competence, expertise, wisdom and the judge's ability to deliberate upon the case and reach the right conclusion.

Mr. Heath: I am listening intently to the preamble to the subject of the hon. Gentleman's new clauses. I understand that he has concerns about the way in which the JAC works, but why is he exclusively concerned about the way it selects Lords Justices of Appeal and not, apparently, about the way it appoints Lords Chief Justice, heads of division or puisne judges?

Mr. Bellingham: If the hon. Gentleman waits a little while, he will hear the answer, because I am about to come to it and he will be all the wiser, I hope.

Mr. Wills: The hon. Gentleman is now getting to the guts of his argument, but will he clarify something, as much for his own interest as for anyone else's? He quite rightly set out what our constituents expect when they appear in front of the judiciary. From memory, the JAC has appointed 12 Court of Appeal judges. The casual listener may think that he implies that those 12 appointments did not meet the criteria that he just set out. Would he like to clarify his view on that? Does he think that those 12 appointments meet the criteria?

Mr. Bellingham: I think that they are excellent appointments, but they could have taken place under the old system anyway without the need for this extremely costly bureaucracy.

Section 64 of the Constitutional Reform Act 2005-my hon. Friend the Member for North-East Hertfordshire spoke eloquently on it at the time-is headed, "Encouragement of diversity". It states:

It then says in subsection (2):

which stresses that the appointment

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That is meaningless window-dressing and tokenism. We need to get coming into the professions, from an early stage, more people from ethnic minorities, more women, and more people who are enthused by the idea of a career in the law, either as solicitors or as barristers. We will do that by widening access to those professions. The chairman of the Bar Council feels incredibly strongly about that, as do I.

The JAC is incredibly bureaucratic, and it is growing in size. I think that its annual running costs are £8.5 million; the Minister may well correct me, as he probably has the figures directly to hand. That may not seem a vast amount of money. However, we should look at it in the context of the changes that his Department is making to the legal aid budget, or the changes being made to the family law advocacy scheme, which has caused a huge amount of anger among barristers. The initiative to introduce best-value tendering for police station work will have a significant impact on several smaller firms. Yet the savings that will be made through those changes to the legal aid budget involve sums that are sub-£10 million. That is why the £8.5 million cost of the JAC, an organisation that is doing work that cost virtually nothing before, is significant.

Mr. Wills: Can the hon. Gentleman remind the Committee of the Conservative plans to increase the legal aid budget?

Mr. Bellingham: We have no plans to increase the amount of money for the legal aid budget. That budget is £2.1 billion, and we feel that far better value for money can be got from it. We feel strongly that we need to bear down on some of the drivers of costs, particularly the very high-cost cases, and that there is ample scope for bringing in new money to the legal aid budget from outside the MOJ. If the Minister is saying that he expects me to make a pledge to increase that expenditure, he knows the answer to that, unfortunately, as well as I do: whoever wins the next election, the Treasury will say that there will be no increase to that £2.1 billion. I hope that when the economy improves there will be more money for legal aid, because the legal aid budget is a vital part of the welfare state. Access to justice is something that all Conservative Members feel strongly about.

Jeremy Wright: In the context that my hon. Friend is correctly describing, is it not all the more important to ensure that money already being spent within the legal system is being spent wisely, which is why we are interested in the specific workings of the JAC?

Mr. Bellingham: If my hon. Friend asked me, "Is the JAC working?", I would say that it is not doing a bad job. However, we should put our hands on our hearts and think to ourselves that this is a time when this country's public finances are in an horrendously vulnerable state. The country will probably be spending about 10 per cent. of gross domestic product on the interest on our national debt. Bearing in mind that the figure in 1976, when the then Chancellor went off to the IMF, was 9.5 per cent., we are moving into Argentine or Guatemalan territory. That is why we must look at every single item of expenditure and ask ourselves, "Is this organisation doing a good job?" The answer is that it is not doing a bad job. If we ask, "Is it necessary? Was
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the previous system inadequate and not delivering?", the answer is that it certainly was delivering. That is why we must look at how much money it costs.

Going back to the point made by my hon. Friend the Member for Crewe and Nantwich (Mr. Timpson), one of the problems with the JAC is that because it is so bureaucratic, incredibly cumbersome, very costly and an empire that is growing the whole time, it is moving very slowly. I have heard similar stories to him about judicial appointments that are not being filled. The JAC is not conducting its affairs as efficiently as it should be. The competitions for different types of judicial appointment are not being run as speedily or efficiently as they should be. I have been round several combined courts over the past year or so, and I have had compelling stories put to me by presiding judges who are concerned about the speed at which these appointments are being made and the impact that that is having on their ability to conduct justice and to deliver the services that Ministers rightly expect presiding judges to deliver in their combined courts. The JAC must look into that.

2.45 pm

We realise that the JAC cannot be changed overnight, and if we win the next election we are not going to take an axe to it. However, we could certainly make some important initial changes and thereby reduce its cost and make it more efficient and streamlined. The Minister talked about these constitutional reforms having to be more streamlined. Well, we have a good idea in our new clause; let us see the Government support it.

Why do we want to put new clause 20 on to the statute book? The answer is simple. Sections 76 to 84 of the Constitutional Reform Act 2005, which relate to the appointment of Lord Justices of Appeal, are unbelievably cumbersome and bureaucratic. Section 78(1) states:

Subsection (2) says that the Lord Chancellor

of course, he would have done that anyway. Section 79 states that

and says what the panel must do. It goes on to say that the

Section 80 states that the "first member" of the panel

well, he would have been anyway-"or his nominee." Under section 81, the selection panel has to report and

For goodness' sake, it would have done that anyway; it does not have to be specified in legislation. The report must

Section 82 gives a number of options for the Lord Chancellor. That system is incredibly bureaucratic, ridiculously prescriptive, absurdly cumbersome, and very expensive. It requires a number of bureaucrats who are putting together a huge amount of paperwork, looking at that legislation and having to pinpoint each particular subsection.

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Let me return to the Minister's point about the appointment of Lord Justices of Appeal. I agree that they are excellent appointments, but they probably would have been made under the old system anyway. The key point is that all those appointments to the Court of Appeal came from the High Court. I may be wrong about that; if so perhaps the Minister will correct me. Any High Court judge or senior judge is, in any event, going to be someone who has gone through a major threshold in terms of his qualifying period in his career, and there will have been intense oversight and analysis of how he has done on the High Court bench. Of course, from time to time those High Court judges will make judgments that are taken to the Court of Appeal. So who better to analyse and assess the ability of those High Court judges as a possible Court of Appeal judge than the Court of Appeal judges who, time and again, are sitting in judgment, on appeal, on the judgments made by the High Court judges? We do not need a bureaucratic system of appointments under the JAC to appoint this particular type of judge. I put it to the Minister that for the sake of obsession with the new process and with constitutional reforms, a cumbersome operation is being put in place that is costing a great deal and is totally unnecessary.

Mr. Timpson: Does my hon. Friend agree that the Minister should welcome new clauses 20 and 22, as they would contribute to his stated aim of bringing about the maintenance of good-quality, high-calibre candidates for the bench? They would provide a system that does not have in-built delay, is efficient and brings candidates as good as those that we have had in the past without unnecessary costs. In the process, they would ensure that more judges are sitting in the courts, hearing more cases, and they would therefore reduce the cost of the courts system. We could then use that money to ensure that we continue the process of increasing access to justice for all those people who are currently denied it.

Mr. Bellingham: I thank my hon. Friend, who until his spectacular by-election victory was active in the courts day in, day out, as a family law barrister, appearing before judges at different levels of the judiciary and developing an in-depth understanding of what was going on. He is far better qualified than me, and probably than the Minister, to tell the Committee what is happening.

I have a letter from a well known judge, who will, of course, remain nameless. After we had a discussion the other day, he wrote to me:

He is right, because the people who are best able to assess the ability of applicants to the Court of Appeal are the judges before whom their decisions and judgments are assessed and appealed against. They know very well the ability of the applicants, and they are best placed to advise the Lord Chancellor. New clause 20 represents a small step, and as part of our reforms of the JAC, we will consider a number of ideas, but it is an important first step to remove judges in the Court of Appeal from the JAC's scope. I urge Ministers and other Members to support that modest proposal and thus reduce the costs of that body. We have ideas for the future, but this is a modest first step forward.

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New clause 22 is about written tests. I shall explain for hon. Members who may not know what they are that very often someone applying for a judicial appointment, particularly a more minor one such as that of recorder, district judge or county court judge, is asked to take a written test. Those tests are extremely unpopular and incredibly controversial, and they are very public.

In the past, top QCs, leading solicitors and academics-and patent or trademark attorneys, whom we should not overlook because they can now qualify for judicial appointments-would make their application in confidence. It was kept confidential, because it might well have been turned down, and there is a certain amount of humiliation if a top QC or a managing partner of Allen & Overy applies for an appointment on the High Court bench and is turned down. In the past, no one ever knew that they had applied. Now, they have to take a written test in a public place, and everyone knows that they have done it.

A large number of solicitors and leading QCs tell us that that is having an impact on their practice. They obviously want to keep their clients in place and keep their practice going, and they want to ensure that their partners in their firms and the junior members of their chambers have confidence in them as senior QCs or managing partners. Yet when they apply for a judicial appointment, which in the past would have been kept totally confidential, everyone hears that they have done a test. I am less concerned about whether they fail the test, because I am not saying that it is necessarily unfair, but it is completely unnecessary because it puts the fact of the application into the public domain.

Jeremy Wright: Given that the Government's intention in setting up the JAC was to encourage those who would not otherwise come forward to seek judicial office, does my hon. Friend share my view that any obstacle to those potential applicants is to be regretted? Is it not at least possible that the written test is one of those obstacles?

Mr. Bellingham: I am grateful to my hon. Friend for making that point, because it leads me on to a briefing that I have received from the Law Society. I was staggered by what it said:

Of course the JAC would say that. It continued:

I put it to the Law Society and my hon. Friend that most top QCs and senior solicitors are used to dealing with complex paperwork day in, day out. Most of them have top degrees from top universities, and they have the self-confidence and ability to flourish in a written test. However, we are trying to encourage people to apply who are not as fortunate in their background but have ample ability and may well be ideal people to be considered for a judicial appointment, and they may well fall at that first hurdle. As he has said, that puts an unnecessary obstacle in the way of such candidates and may well put them off applying in the first place.

I do not know whether the Minister has had a chance to look at the JAC's website or examine some of the tests, but some of them are Alice in Wonderland scenarios.
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We are asking senior people of his type of age, maturity and ability to take a written test in which they have to devise some imaginary legislative scenario and then work out cases based on it and deliberate upon them. They are not law students; they are top QCs, barristers and academics. The test is demeaning and completely unnecessary, and I have not yet met a single person who thinks it a good idea, apart from a few people on the JAC and the Law Society, which appears to regurgitate exactly what the JAC has said. If one speaks to any barrister or anyone who has been through the test, they say that it is completely unnecessary.

Will the Minister tell the Committee what percentage of the £8.5 million a year costs of the JAC go into the running the tests? It must be expensive to devise the papers, put together the panels that write them, bring in outside consultants and expertise, book the halls where the tests take place, supervise the tests and put in place the necessary security. It is an incredibly expensive and bureaucratic exercise. The Minister talks about streamlining the system and making it simpler and easier. We have an idea for him: get rid of those tests, which are completely unnecessary.

It seems to me that the JAC has found itself in new, uncharted territory, and of course any new organisation or commission will want to build an empire. The JAC is building its own little empire and wants to embed it, and what better way than to put in place something as bureaucratic as the written test procedure, which obviously means more work for people and more jobs?

As I said to the Minister a moment ago, his budget is under huge pressure. Looking at the Red Book and the roll-forward of the Ministry of Justice budget, we see that he will be looking for cuts across the piece. There will be substantial cost cuts in prisons, in the Courts Service, maybe in legal aid, in the administration of the Legal Services Commission and in every other part of the MOJ because of what the Treasury has done to his Budget. Well, we are giving him a very good suggestion for reducing costs. At the same time, we are proposing the measures not just to reduce costs, but because we want a better system for judicial appointments. On that basis, I hope new clauses 20 and 22 will command the support not only of Opposition Members, but of the Minister and Labour Members.

3 pm

Mr. Heald: May I start by talking about the quality of judiciary that we want to attract in this country? We have an honourable tradition and a high standard, which has been set by giants such as Lord Devlin, Lord Denning and Lord Reid. There is a history of legal figures who have commanded respect not only for their wisdom, but for their great intellect, their ability to interpret the law, and through the common law, their ability to make the law.

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