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That proud tradition brings me to the point the Minister made when he intervened on my hon. Friend the Member for North-West Norfolk (Mr. Bellingham). He asked my hon. Friend whether he could criticise any of the 12 appointments to the Court of Appeal. I would turn the question round to the Minister and ask him, "Look, you are spending £8.5 million extra; can you criticise any of those who went before?" I think the history of our appointment of judges, particularly at that level, is a marvellous one. I do not think that
anyone could point to a Court of Appeal judge in England who was not of a high quality of intellect and wisdom. Some perhaps occasionally made judicial mistakes that were overturned in the highest court, but I do not think it could be said that they had no reasons for their decisions or for putting their decisions in the way they did.
The problem of how to choose our judges for the higher courts all comes down to having a system that allows the best minds and the most wise to emerge. That is what happens. In the High Court, or dealing with tier 1 work in the Crown court, it becomes clear over a period which judges are doing an impeccable job. That happens not only by word of mouth, but because of decisions that go to appeal. Often when appeals are upheld, the judgment of a particular judge-his summing-up in a criminal case or his judgment in a High Court case-will be praised, and it will become the law in due course as the higher courts adopt his reasoning. Those legal minds and those people have emerged in the past and continue to emerge.
Not only the lords justices of appeal sit in the Court of Appeal and the divisional court, but High Court judges sit there as flankers, helping the court as part of the court. Therefore, the lords justices of appeal get to see the High Court judges. They not only see their decisions, but see them in action. The High Court judges give judgments in cases and are often very highly regarded, particularly in specialist areas, so the idea that we need to have laymen in the JAC deciding who should be in the Court of Appeal is really a nonsense. The fact is that the people who should be there emerge through their talents, wisdom and intellect. That has always been the case, and we cannot point to a time when that did not happen.
Why have we got the JAC? The commission has a worthy role-I am not against the idea that we should try to improve diversity-but I think merit should be the first and foremost criterion. In relation to the debate that my hon. Friend mentioned, my point was that it is all very well to have a two-track approach, but when it comes down to it, merit must be the greatest thing, because that will guarantee the rule of law and a system that holds water.
Historically, it is true that the reason why we have a JAC is that Tony Blair, in the course of a reshuffle, decided he was going to abolish the Lord Chancellor. He wanted to do that not for any high and worthy reason-as far as one can tell-but because he had had enough of Lord Irvine. Lord Irvine says so, and I am sure that is the history. I thought it sad that our Prime Minister made a decision for that reason without even consulting the top judge in the country, Lord Woolf, who was told five minutes before the press release went out. It is said that his remark was, "What?" but that may be completely untrue.
However, it is certainly the case that the concordat, which is a very substantial document, had to be agreed between the Government and the Lord Chief Justice before the new approach-retaining a Lord Chancellor but without many of the powers of before-was able to go ahead. At that time, various things were done to replicate the traditional role of the Lord Chancellor, such as his role in appointing judges. One thing that came out of that was the JAC.
The Conservatives did not oppose the setting up of the JAC, but we made two important points on the matter. First, we said that merit should be the main reason for appointing a person, and secondly, we said that the higher courts should be treated slightly differently.
If we look at what has been happening, we will see some encouraging signs in the law. When I first qualified as a lawyer, I think about 25 per cent. of solicitors were women; now the numbers coming through university law courses are roughly equal, so we can see improvement on that. There are greater numbers of ethnic minority solicitors and barristers coming through. The trend of ethnic minority solicitors setting up practices that cater to particular communities and their needs has been beneficial and we have seen some role models come through. It has enabled some pioneers to set the way.
With that in mind, and on the subject of diversity and the role of the JAC, Lord Carter's suggestion-it is now being implemented-of making solicitors' firms larger so that they are more substantial entities that can undertake particular legal aid work, is not very helpful. The ethnic minority senior partners whom I have met have criticised that. They make the point that it creates something of a glass ceiling. If senior partners in small firms that cater to a particular community have to amalgamate with a larger firm, they will no longer be senior partners. Not allowing a member of an ethnic minority community member to be the senior partner in a small firm creates the glass ceiling, which worries me.
The other point that is worth mentioning is that, as my hon. Friend said, the Bar Council has a very honourable tradition of trying to widen access to the profession. Geoffrey Vos, whom my hon. Friend mentioned, made that the keynote of his year's chairmanship. Through that period, he worked with a lot of schools and other institutions to encourage people from poorer backgrounds to come into the law and encourage barristers' chambers to offer proper scholarships, so that individuals had the money to train or undertake a pupillage. When I started-I went from a state education to the Bar-we had to find money from anywhere to survive during pupillage. I worked in an inner-city settlement in south London. In fact, I got to know the hon. Member for Eltham (Clive Efford) at that time-we used to run a youth football team together. However, it was not easy to become a barrister in those days. What Geoffrey Vos and others have done has been a good thing for the legal world.
New clause 20 has a lot of merit, but I have mixed feelings about whether the written tests are a good idea. When they were first suggested, I worried that they would be about being a contemporary, modern kind of judge. We all know the story of the judge who famously asked, "Who are the Beatles?" during a case years ago, and there was the famous case in which a judge made an ill-judged remark about a soap star. I worried that the tests would be very politically correct, but my understanding is that they have not been about knowing who is in "The X-Factor" or who Simon Cowell is, or who Dannii Minogue is sitting next to-
David Howarth (Cambridge) (LD): Who?
Mr. Heald: The hon. Gentleman obviously has all the necessary trappings to become a judge, as he is asking who Dannii Minogue is- [ Interruption. ] Perhaps he prefers another member of the panel or perhaps he does not know what the panel is.
It is a good idea, in some ways, to ensure that candidates have an appropriate level of knowledge. My hon. Friend the Member for North-West Norfolk said that the top barrister or solicitor who wants to be a judge will be bound to know the basic information about how the legislature works and how to apply cases, but if we are trying to widen the ambit for the lower judicial appointments, it may be that having a written test that anyone can take will bring in a few more people. Does the Minister think that it is worth the cost of what is potentially quite a bureaucratic exercise? Historically, one would have said that the sort of people who would be able to apply to become a judge-after years of experience in the law-would not need to do a written test. What is the aim of the test? Is it about modernity, or some basic level of knowledge? Is it about encouraging new applicants but ensuring that they can read and write?
In summary, I have great sympathy for new clause 20 and will be interested to hear the Minister's answers on new clause 22.
Mr. Heath: I listened carefully to the hon. Member for North-West Norfolk (Mr. Bellingham) and I heard much background history of the events that led to the Constitutional Reform Act 2005, but I did not hear a convincing argument in favour of his new clauses. I will address the issues that he raised, but I am not yet convinced that I should advise my right hon. and hon. Friends to support his new clauses- [ Interruption. ] It is indeed sad that he was unable to persuade me, but perhaps I can demonstrate the holes in his argument.
I start from the basis that the constitutional reforms to which the hon. Gentleman referred were, as he correctly said, a hurried and, in many ways, botched job. I was part of the Committee that dealt with those legislative changes and it was clear that, to a large extent, they had been written on the back of an envelope and were not subject to prior consultation. Indeed, they appeared as a complete surprise to most practitioners in the law, who quickly had to respond to what was being proposed and insist-properly-on certain conditions that were eventually part of the protocol that was decided with the Lord Chief Justice.
Mr. Heald: Does the hon. Gentleman agree that a combination of Lord Woolf and the Conservative and Liberal Democrat parties saved the day by improving the Constitutional Reform Act considerably and, in Lord Woolf's case, agreeing the concordat? Without that, the changes would have been a disaster.
3.15 pm
Mr. Heath:
I agree entirely, and it showed good co-operation between the two ends of Parliament and with the senior judiciary, who played an important role in achieving a good outcome from inauspicious beginnings. That is not to say that I object to the vast bulk of the proposals as they ended up, because I felt that they were right. They were changes that many of us had advocated for some time, but their genesis was more predicated-as
the hon. Member for North-West Norfolk said-on the needs of political management than on the need for reform in good order.
We now have these proposed changes to the proposals that were agreed then. I intervened on the hon. Gentleman to ask him why he felt that it was so important to remove the Judicial Appointments Commission process for the lords justices of appeal but to leave it in place for the other appointments, such as the Lord Chief Justice, the Heads of Division, the puisne judges and other office holders. I am not sure that I received a convincing answer. The argument was that the lords justices of appeal are senior judges, so the process was less appropriate. I would have thought that the Lord Chief Justice and Heads of Division were also fairly senior members of the judiciary, and if the argument held for one it would hold for the other. However, apparently that is not the case.
The principal argument seemed to be that the process was bureaucratic, long and less than efficacious. I do not think there is any evidence that the latter is the case. There has been no serious objection to those who have been appointed lords justices of appeal since the process has been in place, nor has there been any criticism of their performance. So that is not a justified complaint.
In terms of the length of the process, the hon. Gentleman made great play of what the Constitutional Reform Act says. It is a fact that when any sort of process is set out in statutory form, it necessarily sounds more complicated than it actually is. That is how the law works and how statutes look. In fact, it is a very simple process. The Lord Chancellor requests the JAC to fill a vacancy. The JAC appoints a selection panel, which submits a report to the Lord Chancellor about the person it has chosen, and the Lord Chancellor may reject the selection, require it to be reconsidered or accept it. Of course, once he has exhausted the other options, he must accept the JAC's decision. That is not a difficult process. It is the sort of process that any appointment procedure, other than the most archaic or rudimentary, would follow. It is a simple system of setting up a shortlisting process and then accepting the recommendation of the shortlisting committee in due course. I do not accept that it is an unnecessarily prolonged process.
Mr. Timpson: Why does the hon. Gentleman think that the Joint Committee came to the position that the JAC was being criticised for inefficiencies and delays in the judicial appointments process?
Mr. Heath: Obviously, a process, however simple, can be delayed in its execution. It might well be that those criticisms were entirely justified, and if so, I hope the JAC takes them into account and addresses the cause of the delay. I hope, too, that the Ministry of Justice is equally engaged in the process. However, I do not think that we can criticise a process for delay if the cause of the delay is not inherent in the process. That seems to be the crux of the argument. The hon. Member for Crewe and Nantwich (Mr. Timpson) might have a justifiable complaint-I do not have the information to agree or disagree with him-but I do not see that the cause of the delay is inherent in the process set out in statute. There should be no substantial delay other than that necessary to do a good job in appointments.
Mr. Heald: Does the hon. Gentleman think there would be any difficulties with a system in which the Lord Chancellor asks the Lord Chief Justice for the runners and riders for the Court of Appeal and produces a shortlist? Would that produce a different list? If so, why?
Mr. Heath: In the case of the current Lord Chancellor and Lord Chief Justice, the difference would probably not be very great. However, the hon. Gentleman knows his history, and he knows that the history of judicial appointments has not always been a good one. He knows that, in the past, some Lords Chancellor have blatantly abused their position in respect of judicial appointments. He might recall Lord Halsbury, who had a fearsome reputation for advancing the careers of those who shared his friendship or political persuasion. There are many other examples.
The House should identify with-and it has done so in the process proposed in the Bill-a system that moves us away from the old-school club, from the magic circle and from decisions made between chums in fine dining rooms about who to put forward. That touches on one of my great criticisms of new clause 22: it does not propose an alternative process for the appointment of Court of Appeal judges; the suggestion is simply that they will "emerge"-I have heard that expression used several times in this debate. Well, we know what emerges from such a process: people who are male, who are educated in certain institutions, who share a commonality of background, but who do not necessarily represent those with the greatest merit for judicial appointments and who certainly do not represent the diversity that is beginning to develop, quite rightly, among the judicial, and indeed lawyer, populations in this country.
The hon. Member for North-East Hertfordshire (Mr. Heald) makes an important point about how the situation has now developed-he applauded it, and I know he is genuine. However, he cannot then have a process that, at the end of the day, depends on who someone knows, rather than on a proper, transparent appointment process.
Mr. Heald: It is one thing to hark back to the Victorian period, but the ladies justices of appeal, who have been so successful in recent years, were all appointed under the old system.
Mr. Heath: But not enough of them. And look at the Supreme Court-there are not enough there! We cannot hold up the current population in the higher levels of the judiciary and say that it reflects modern Britain. However, it is not because of a paucity of candidates that we cannot address that situation, which is why I think it is important to have the judicial appointments system as it currently is.
I agree with the Law Society, which rejects the proposal from the hon. Member for North-West Norfolk. It says:
"The fear must be that there would be a reversion to the old system of secret soundings and appointment by the Lord Chancellor. That would be a wholly retrograde step."
I, too, believe that it would be. I am surprised that the proposal has been put forward, not just because it is so partial-it would abolish the process for only one class of judicial appointment-but because of the effect that it would have in terms of reversion.
On the written test, I am clear that there might be arguments on both sides. Criticisms have been voiced in legal circles about the tests, although some of them sound rather precious-as if there is some indignity involved in taking part in a proper appointments process. Senior appointments in other fields involving written tests, or something similar-presentations and so on-are made every day of the week. Nobody else sees it as an affront to their dignity to apply for a job and go through a proper selection process. Nobody else, whether a head of human resources or of a finance department, when they apply for a job as a chief executive, feels it an indignity to be known to be applying for a job and going through a selection process that might involve tests of some kind.
Mr. Bellingham: Ministers don't!
Mr. Heath: There is an awful lot wrong with ministerial appointments, but let us not divert ourselves by discussing what is wrong with those. The hon. Gentleman might well be right-but there we are!
In any case, the sort of person who will be put off by the process is the sort of person whom I am not sure I want as a judge, because it suggests that they have such high regard for their own dignity that they perhaps could not do the job as I, and many others-I think-would want them to do it. I note again the partiality of the new clause. In this case, it deals only with the selection procedure for puisne judges, and not other selections that the JAC makes. They alone would not have the written test.
There is another point here, and it is the exact opposite of what the hon. Member for North-West Norfolk said. He argued, I think, that the written tests will present an obstacle to diversity in the appointment of judges. That is the reverse, of course, of what the Law Society thinks. It says that they will be an assistance, and I think that they probably will be too. They will be an assistance to people who do not fit what has been-and I hope is no longer-the conventional view of what a judge ought to look like, because they provide an objective way for candidates to demonstrate that, whatever the preconceptions of those making the appointment, they have the technical ability, the level of judgment and the facility to perform in the way required of a judicial appointment. There is clear evidence that that process is helping well qualified, able and meritorious candidates to make progress in this area when otherwise they would not.
But does that mean that the procedures cannot be improved? I am sure that if I had the ability, I could look at the written tests and see areas where they could be improved. Indeed, it would be remarkable if they could not be. However, I cannot see it as an affront to a well qualified barrister to ask them to go through a simple process before appointment or candidacy as a judge. I do not see engaging in such a process as below their self-esteem; indeed, for some candidates it is a benefit and helps to assess people who might otherwise not be considered as suitable for judicial appointment.
On the basis of both those arguments, I am not persuaded by the case put forward by the hon. Member for North-West Norfolk. I fear that he seeks to take us backwards, to an era when the magic circle did everything, when everything was decided by nudges and winks, and
when what emerged was the same old type of person, who conformed in every way to the same old image of a judge. That is exactly what this House has been trying to avoid in the legislation that it has put in place over recent years.
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