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Baroness Ashton of Upholland moved Amendment No. 95A:
"(1A) As part of the selection process the commission must consult each of the following—
(a) such of the senior judges as are not members of the commission and are not willing to be considered for selection;
(b) the Minister;
(c) the First Minister in Scotland;
(d) the Assembly First Secretary in Wales;
(e) the Secretary of State for Northern Ireland.
(1B) If for any part of the United Kingdom no judge of the courts of that part is to be consulted under subsection (1A)(a), the commission must consult as part of the selection process the most senior judge of the courts of that part who is not a member of the commission and is not willing to be considered for selection.
(1C) Subsections (2) to (8) apply to any selection under this section or section 22."
The noble Baroness said: My Lords, this group of amendments does two separate things although structurally our attempts to improve their accuracy and comprehensibility are best considered together. I expect, however, that the House will welcome both elements as they address concerns expressed in your Lordships' House at earlier stages.
The first element addresses concerns about the possibility that there might be no senior judicial input from a part of the United Kingdom into the selection process for a Supreme Court judge in certain circumstances. Clauses 18 and 19 require the selection commission and the Minister respectively to consult "the senior judges", as defined in a list in Clause 48
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(which is the subject of an amendment to which I shall speak later). As the clauses stand at present, there is a possibility that, for a given vacancy, all of the "senior judges" from one or other part of the United Kingdom may be ruled out of consultation because they are members of the selection commission or are candidates to fill the vacancy. For example, it might be that the Lord Chief Justice of Northern Ireland, who is in the list of "senior judges" representing Northern Ireland, is a prime candidate, and cannot be consulted.
The provision in Amendment No. 95A, therefore, amends the duty to consult the senior judges, to the effect that if there is no senior judge from a specific part of the United Kingdom who is able to be consulted, the selection commission must consult the available next most senior judge of the courts of that part of the UK who is not ruled out for consultation purposes; that is, the most senior judge who is not a member of the commission and does not wish to be considered for selection.
There is a consequential amendment also to Clause 19. The Minister is required to consult the judges who are consulted by the commission. The amendment ensures that the Minister will consult any judges required under this fallback provision. Thus it is guaranteed that at least one serving senior judge within a jurisdiction will be consulted. That is a matter which noble Lords considered we should address.
The second element of these amendments addresses the concern expressed in the Select Committee and again in Committee of the whole House that the selection commission and the Minister would be required to consult the National Assembly for Wales rather than its First Secretary, the First Minister. The objection was the obvious possibility that it would be difficult to ensure confidentiality if the consultation requirement was taken to include the whole Assembly.
It was always envisaged that, as is customary for functions of this type, the Assembly would delegate to the First Secretary in Wales and not opt for some kind of consultation in plenary session. However, I appreciate the benefit of certainty, and so the amendments, which have the approval of the Assembly, replace the references in Clauses 18 and 19 to the National Assembly for Wales with reference to the Assembly First Secretary in Wales. I trust that this offers the necessary reassurance and allays any fears about breaches of confidentiality. I beg to move.
Baroness Carnegy of Lour: My Lords, I am sure the House will be grateful to the Minister for including these consultations. It is very important that consultation should take place on this point throughout the United Kingdom because it is a United Kingdom court. This is one of a number of amendments that the Government have tabled in view of the need for this widespread consultation. I am sure that we are grateful for that.
On Question, amendment agreed to.
[Amendments Nos. 96 and 97 not moved.]
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Baroness Ashton of Upholland moved Amendment No. 97A:
On Question, amendment agreed to.
Baroness Ashton of Upholland moved Amendments Nos. 97B and 97C:
On Question, amendments agreed to.
Baroness Ashton of Upholland moved Amendments Nos. 97D to 97F:
Page 8, line 32, leave out "18(6)(a)" and insert "18(1A)(a) and any judge consulted under section 18(1B)"
(aa) any judge consulted under section 18(1B)"
Page 8, line 40, leave out "National Assembly for" and insert "Assembly First Secretary in"
On Question, amendments agreed to.
Clause 21 [Exercise of powers to reject or require reconsideration]:
Viscount Bledisloe moved Amendment No. 99:
"SELECTION COMMISSION MEMBER: CONFIDENTIALITY
A person who is a member of the selection commission, or a member of its staff or an agent of the commission and who is consulted by or on behalf of the Commission or is otherwise involved in the process of selection must not disclose confidential information except with lawful authority and the provisions of section 85 of this Act shall apply to all such persons."
The noble Viscount said: My Lords, we now come to the question of confidentiality, to which the noble Baroness, Lady Ashton, referred a moment ago in passing. With this amendment I wish to speak also to Amendment No. 168, which is the more important of the two amendments.
Amendment No. 168, to which I spoke in Committee, seeks to extend the duty of confidentiality not merely to members of the Appointments Commission alone but also to all the people whom they consult. I pointed out that those persons were dangerously likely to leak information unless it was impressed upon them that it was very important that they should not disclose the identity of persons who were being considered for appointment because of the vast damage it might do to their career and to their position in their firms if it was known that they had applied but been rejected.
Amendment No. 99 merely applies that to the commission for the appointment of members of the Supreme Court, who otherwise by a curious omission would not be covered at all. These are essential provisions and, indeed, in Committee the Government
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accepted that they should be included. I do not know whether they are happy with my drafting or whether parliamentary counsel, as always, think that they can do better by saying the same thing less elegantly. However, I hope to hear at least that the substance of the amendments, if not the exact wording, will be accepted, although I urge the Government merely to accept them as they stand at this stage.
Lord Renton: My Lords, will the noble Viscount explain what is meant by the words "except with lawful authority", which appear at the end of Amendment No. 168? Whose authority would that be?
Viscount Bledisloe: My Lords, I do not mean anything by that. The Bill already contains the provision that members of the commission are not to disclose confidential information without lawful authority. I have merely repeated the words of the Bill when seeking to extend that duty. I imagine that the Government have in mind that people such as the ombudsman may want to know how the process is conducted and so on, or someone may complain that he has not been selected, and obviously his complaint cannot be investigated without confidential information being revealed. However, I may have given an inadequate response in which case I know that the noble Baroness, Lady Ashton, will tidy up the matter for me. I beg to move.
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