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Lord Maclennan of Rogart: I begin by thanking the Minister for giving a full reply to my remarks. I have to say that I do not think that she introduced a new argument this afternoon in support of the Government's position. As the justices' clerks have already indicated their dissatisfaction with what the Government have in mind, I am reluctant to see the back of this issue.
This is not the final occasion on which it will be possible for this House to give consideration to these issues. I think that some further reflection and discussionalso involving the Government, I hopemay prove of value to test whether the Government's proposed safeguards, particularly about enabling the justices' clerks to complain in a timeless fashion about the sorts of pressure which have evidently been brought to bear upon them, can be properly ventilated so as to extirpate any meddling of this kind by a civil servant or a department, whether or not there is ministerial involvement. It would be rather unlikely that there would be. I cannot say that the Minister's answer entirely removes my anxieties. None the less, the pause for reflection is to be welcomed. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 88CPZB not moved.]
Clause 74 agreed to.
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Clause 75 [The Minister's options]:
[Amendment No. 88CPZC not moved.]
Clause 78 [Reconsideration of decision not to select]:
[Amendment No. 88CPZD not moved.]
Lord Goodhart moved Amendment No. 88CPZE:
"REVIEW OF SELECTION PROCESS
(1) The Ombudsman must in each year review the process of selection under this Part by the Commission and selection panels to establish whether selections are being made in accordance with section 54 and any guidance given under section 55.
(2) The Ombudsman must prepare a report on the outcome of the review and send a copy of the report to the Minister and the Commission.
(3) The Minister must lay a copy of the report before each House of Parliament."
The noble Lord said: The amendment proposes setting up a system to review the work of the Judicial Appointments Commission. In speaking to it, I shall speak also to Amendment No. 88CPZF. The amendments were suggested originally by the Commission for Judicial Appointments. I am afraid that the language is now somewhat confusing. The Commission for Judicial Appointments is, of course, an existing body, whose functions do not include the making or recommending of individual appointments, but whose job is to oversee the process of selection currently exercised by the Lord Chancellor and the Department for Constitutional Affairs. The amendments are supported by the Law Society.
The existing process has been much improved in recent years by the review of the process of appointment, both to the judiciary and to Silk, which has been carried out by the CJA. The CJA will cease to exist as such when the Bill comes into force, but the substitution of the new Judicial Appointments Commission for the Lord Chancellor and the appointments unit at the DCA will not necessarily mean that everything in the appointments system will be perfect. Indeed, the JAC may stick too rigidly to existing practices of appointment, some of which have already been found by the CJA to be unsatisfactory. The JAC may be overcautious in making appointments. For example, it may improve diversity of backgrounds among the judiciary but not diversity of personality. It may be unwilling to take a chance on individuals who do not fit into the mainstream. The noble and learned Lord, Lord Mackay of Clashfern, took a chance, extremely successfully. Without any kind of audit, the Judicial Appointments Commission may become slipshod or develop questionable practices of its own.
The Judicial Appointments Commission will be a body of enormous constitutional importance. It is therefore highly desirable that there be some form of continuing external oversight. The obvious person to
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exercise that oversight is the Judicial Appointments and Conduct Ombudsman, whose appointment is contained in the Bill. As the Bill stands, he will investigate individual complaints against the Judicial Appointments Commission by individuals who feel that the process has, in some respect, been improper when applied to them. If the investigation convinces the ombudsman that there is a systematic problem with the processes of the Judicial Appointments Commission, the report will obviously have to say so.
It is a desirable extension of the ombudsman's duties and powers to enable him or her to be proactive. He or she can then investigate the system, even if there are no complaints or, for example, if the complaint leads to a suspicion that there may be some systematic problem but it is impossible for the ombudsman to be sure without further investigation of the process. Of course there could be alternative methods of review, such as by the office of the Commissioner for Public Appointments. However, the fact that the Judicial Appointments and Conduct Ombudsman already has a duty to deal with individual complaints about defects in the appointments process makes him or her the obviously appropriate person to conduct the wider review.
The amendment will encourage good practice, help to detect flaws in the system, and increase public confidence in the process. It will do all that without adding greatly to the existing duties of the ombudsman under the Bill. The amendments deserve acceptance. I beg to move.
Lord Crickhowell: I hurried from the Chamber to fetch my copy of the report prepared by the committee that considered the Bill, because I wanted to refresh my memory about a later amendment tabled by the noble Viscount, Lord Bledisloe. As it happened, I then turned to the page on which the committee considered the proposition that the noble Lord has just advanced. It states:
"The Lord Chancellor disagreed with this proposal. He told us that the audit function will no longer be needed as the system is being made more transparent".
He went on to advance the argument rather further; the matter is covered in paragraph 296 of the report. I shall not read it all out, as I suspect that the Minister will advance exactly the same arguments when she winds up. However, I remind noble Lords that the committee agreed that no further provision in respect of audit of appointments need be made. The Liberal Democrat members of the committee believed that it should be, but that was not generally supported by others.
Baroness Ashton of Upholland: I am very grateful to the noble Lord, Lord Crickhowell. The timeliness of his speech means that I may be able to keep my remarks shorter. Both he and I can refer people to the report of the Select Committee, which is a very important document, particularly in this context.
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As the noble Lord, Lord Crickhowell, said, the basis on which we disagree with the amendment is that the system that we are putting in place is about transparency and openness. We have the existing provision because the system is seen to be in the hands of a single government Minister, and seen as closed and opaque. However wonderful and worthy it may be, that is the case. We wanted to make sure that we had some external guarantee of the integrity of that system.
We will have a non-departmental public body with 15 independent commissioners and its own staff, their role being to guarantee the independence and impartiality of the selection process and, as the noble Lord, Lord Goodhart, said, to increase public confidence in the system. They will be the Minister's prime source of expert advice on any issue relating to judicial appointments.
The difficulty with the amendment is that it would establish the ombudsman as a rival source of advice in addition to the Judicial Appointments Commission on general questions about the direction of judicial appointments or the manner in which competition should be run. We do not believe that there are any obvious reasons why the views of the ombudsman on these matters should prevail over those of the commission. Indeed, it is undesirable that they should. Otherwise the ombudsman would be placed in charge of the JAC and that would undermine the commission.
The role that we have envisaged for the ombudsman is set out in the concordat with the judges, but I shall examine carefully the noble Lord's comments. Perhaps the noble Lord and I might discuss these matters to ensure that the noble Lord recognises everything that we have done. But I fully agree with the noble Lord, Lord Crickhowell, and the Select Committee. We believe that what we have in place is appropriate. On that basis, I hope that the noble Lord will withdraw the amendment.
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