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Lord Goodhart: I am grateful to the Minister for her comments, although they were not satisfactory. We were not suggesting that the views of the judicial ombudsman should prevail. It is desirable that there should be some form of external monitoring of what is done by this extraordinarily important committee. Particularly, since monitoring is provided for individual cases—because they can be referred to the judicial ombudsman if an individual were to complain about the way in which he or she had been treated by the JAC—it would be a small but sensible step to extend that more widely. I must admit that this would go somewhat beyond the line that we took at the time of the report of the Select Committee, but, subsequent to discussions with the CJA, I have found that its arguments were increasingly persuasive on this issue. It has a significant point.
However, this is not a matter which can be taken any further today. We will consider carefully whether this matter is or is not one that needs to be brought back at a later stage. Meanwhile, I beg leave to withdraw the amendment.
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Amendment, by leave, withdrawn.
[Amendment No. 88CPZF not moved.]
Viscount Bledisloe moved Amendment No. 88CPA:
The noble Viscount said: In moving the amendment, I shall also speak to Amendments Nos. 88CPB, 88CPC and 88CPD.
These amendments relate to Clause 88 and the question of the confidentiality of proceedings and the workings of the appointments commission. It is universally agreed that when someone has applied for an appointment, that must be kept extremely confidential, as well as the views, favourable or unfavourable, of those who are consulted. I shall return to the importance of that in a moment.
Clause 88 imposes a duty of confidentiality only on a commissioner, a member of the commission staff or an agent of the commission. My amendments seek to extend that to a member of a panel of the commission and, most importantly, to those who are consulted or otherwise involved in the process.
Amendment No. 88CPD is slightly different. It also imposes a duty of confidentiality for the first time on the different commission that is responsible for the appointment of justices of the Supreme Court or Law Lords—whichever we end up with. At the moment, for some reason, that commission does not have any duty of confidentiality at all.
Returning to the main substance of my amendments, the Select Committee heard evidence from Sir Colin Campbell, who said that he, "very, very strongly" emphasised that the confidentiality should be preserved. The same was said by Sir Hayden Phillips, the then Permanent Secretary of the Department for Constitutional Affairs, who, in a candid moment, stated:
"We all know in life there are . . . leaks and . . . gossip and those, I am afraid, the appointed authorities cannot always absolutely control".
There are certain noble Lords, including the Lord Chancellor, who know from one very unfortunate incident that occurred recently, how very true those words were. Her Majesty's judges may be wonderful people at their judicial affairs, but there are few more leaky or gossipy places than the Benches of the four Inns of Court. Such matters do get talked about with distressing regularity and with unfortunate consequences. Both the Law Society and the Bar Council in their evidence emphasised strongly that if people were to be expected to apply they had to be as certain as possible that those applications would be kept confidential. I know full well that it is very damaging to a barrister's practice if it is thought that
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he is about to go to the Bench, because obviously people do not wish to instruct him in case he will not be there to do those cases. The Law Society pointed out that the situation was even worse for a solicitor, because the last thing that one would want one's partners to know was that one might be jumping ship when one might not be given the appointment and might not be able to jump ship.
So confidentiality is essential and the Select Committee recognised that. It stated:
"The Committee agrees that a duty of confidentiality relating to the judicial appointments process should extend beyond the Commissioners and staff . . . to others involved in the appointments process. Amendments to that effect will be brought forward by the Lord Chancellor at a later stage in the bill".
They have not been brought forward thus far, but we hope that they will be forthcoming. Will the Minister assure me that those amendments will be forthcoming and that they will extend to cover the various categories of people I have included in these amendments? I shall not press the amendments today, but I ask for her assurance that it is recognised that it is essential to extend the duty to these further persons. I beg to move.
Lord Crickhowell: In moving the amendment, the noble Viscount referred to the evidence that Professor Sir Colin Campbell gave to the committee on 6 May and the strongly held views that he expressed. The noble Viscount also drew attention to the paragraph summarising the conclusion of the committee, which I would have referred to. Like him, I wait with interest to hear what amendments the Government intend to bring forward in accordance with the undertaking that they gave.
My specific point arises from the same piece of evidence and the question that I asked Sir Colin Campbell regarding the point that the consultation process involved the First Minister in Scotland and the Deputy First Minister in Northern Ireland, but the Welsh Assembly in Wales. As soon as I asked the question, our chairman, the noble Lord, Lord Richard, who, after all, had recently completed a substantial report on the work of the Welsh Assembly, intervened to say:
"Sorry, I have been obsessed with this recently, there is a problem with the Welsh Assembly, which Lord Crickhowell knows, which is effectively it is a corporate body. That is absurd under the existing Government of Wales Act, it should never have been that".
I do not think that I am being unkind if I say that if there are doubts regarding the confidentiality around the Inns of Court, then there are far greater doubts about confidentiality around the Welsh Assembly. Frankly, it is an appalling thought that individual Members of the Welsh Assembly might become involved in the process and that no absolute obligation of confidentiality should be imposed on them.
I hope that, when she replies, the Minister will be able to assure me that not only will a clause be brought forward on confidentiality generally but that she will
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ensure that the problem raised by the fact that the Welsh Assembly is consulted as a corporate body and not through its First Minister is adequately covered by that amendment.
Lord Carlisle of Bucklow: Having been on the committee which considered the Bill, I agree wholeheartedly with every word that the noble Viscount, Lord Bledisloe, and my noble friend Lord Crickhowell have said. There must be a clear duty of confidentiality on anyone who receives information regarding a possible appointment to the Bench at all levels. We are told that one desire of the Government is that those who are to go on the Bench will be drawn from a wider area than is currently the case. People will not come forward or apply to go on the Bench if they feel that there is a danger that the knowledge that they applied but failed will get out. Therefore, I hope very much that the Government will meet the point made by the noble Viscount, Lord Bledisloe.
Lord Kingsland: The noble Viscount, Lord Bledisloe, has summarised the issue with his customary cogency and comprehensiveness. He has therefore lightened my burden enormously. I wholly agree with what he said. His remarks about the undertakings given by the noble and learned Lord the Lord Chancellor to the Select Committee should be incentive enough to the noble Baroness to stand up and say that she concedes everything to the noble Viscount.
Baroness Ashton of Upholland: Thanks to the noble Viscount, Lord Bledisloe, I have some new insights into the incentive in terms of its leaky nature. I also have new insights into the views and thoughts of the noble Lord, Lord Crickhowell, and the Welsh Assembly. I agree, too, with what the noble Lord, Lord Carlisle, said, which was also reflected in the remarks of the noble Viscount. It is important that when people come forward they do so with a sense of confidentiality. I recognise entirely what has been said.
I have an enormous amount of sympathy with the amendments before us. As noble Lords know, at the moment the Bill has, in Clause 88, separate provisions in relation to the Judicial Appointments Commission and in relation to the Judicial Appointments and Conduct Ombudsman in Clause 99. I agree that the current provisions are not wholly satisfactory. Instead of provisions directed at particular bodies, we need provisions which guarantee confidentiality in relation to the appointments process and judicial disciplinary matters. Those provisions should cover all those involved in these processes and not only the Judicial Appointments Commission and the ombudsman. Therefore, it is our intention to move appropriate amendments on Report, and I give that commitment.
The last in this group of amendments—Amendment No. 88CPD—would, as the noble Viscount said, extend the confidentiality requirements of Clause 88 to the process of selecting Supreme Court justices. The Government believe that this provision does not belong in Part 3 of the Bill because the appointments are governed by Part 2. Therefore, we shall also
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endeavour to consider whether a provision needs to be added to Part 2 in order to protect the confidentiality of that process, as the noble Viscount indicated.
In response to the noble Lord, Lord Crickhowell, on the matter of the First Minister in Scotland and the corporate body of the Welsh Assembly, I understand that that was in relation to Supreme Court appointments and not the Judicial Appointments Commission. None the less, the Government are planning to change that to the First Minister in Wales, and I believe that that addresses the noble Lord's point.
On the basis that I accept the sentiments behind these amendments and that we are committed to bringing forward appropriate amendments on Report, I hope that the noble Viscount will feel able to withdraw his amendment.
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