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The noble Lord said: My Lords, during the debates this afternoon and earlier, my noble and learned friend the Lord Chancellor said how important it was that the Judicial Appointments Commission had the role of recommending people for appointment to the judiciary. It is clear not only that it is a key feature of the Bill but that the Government must think it of sufficient importance to have set out in very clear and precise terms in Schedule 10 precisely the sort of people who are to be on the commission—the exact balance between members of the judiciary, members of the profession, lay members and magistrates. It lays down clearly and exactly how the membership of 14 plus the lay chairman should be made up. The precise way in which the commission is to be composed should not be too easily altered.

In proposing the amendment, I have received advice from the present Commission for Judicial Appointments. Although the existing commission does not recommend or make judicial appointments, it has a great deal of experience of them because it investigates complaints about those who may not have been given a fair opportunity to be appointed and it conducts audits of the High Court appointment process.

Schedule 10 sets out the composition of the new Judicial Appointments Commission and the numbers in each of the categories of judicial, professional and lay members. It then provides in paragraph 5 that the Lord Chancellor, who is to appoint the commission may, by order, alter the numbers in each category of membership subject only to the agreement of the Lord Chief Justice. I am glad that the agreement of the Lord Chief Justice is there, but my amendment would add the need for agreement with the chair of the commission itself. The chair of the commission will have, to my mind, the closest understanding of the workings of the commission on a day-to-day basis in a way in which my noble and learned friend the Lord Chief Justice will not. He will have a closer connection than that of the Lord Chief Justice. It seems appropriate that the chair should have a veto on altering the membership numbers in any category of members on the commission.

What could be done by ministerial order is very significant. It could alter the relationship or balance between lay and judicial members, for example. If noble Lords believe that the balance set out in Schedule 10 is appropriate and apt, your Lordships may be concerned that that balance could be altered by ministerial announcement—subject, admittedly, to the approval of both Houses of Parliament, but otherwise subject only to the approval of the Lord Chief Justice.
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In Committee, when I proposed a similar amendment, the noble Lords, Lord Goodhart and Lord Maclennan of Rogart, attached their names to it and supported it in debate. I hope that they will continue to do so. My noble friend Lady Ashton, said in Committee on 18 October that she was happy to give a commitment at any rate that before making any such order as envisaged by paragraph 5 of Schedule 10, consultation would be made with the chair of the commission. To that extent, she seemed to support the spirit of my amendment. But I have to note that after saying that she went on to say,

I found that statement a little mysterious. Perhaps she can explain it a little more fully this evening so that your Lordships can understand fully what possible grounds there could be for a drastic change in the balance of the commission, which would justify an order from the Minister.

I suggest that it is illogical for the Lord Chief Justice but not the chair of the commission to have a veto on change. Perhaps there will be circumstances—if I can follow whatever sort of logic I can get from the Minister's statement—when it is desirable to make a change, when the Lord Chief Justice does not recognise such a change is needed. If a veto from the Lord Chief Justice, who is left directly involved with the commission, is acceptable, why not one from the chair of the commission? Logically, it should be neither or both. I beg to move.

Lord Renton: My Lords, I support this amendment, although it is moved by a Member supporting the present Government. It seems to me that if we rely entirely on the Lord Chief Justice for consent in this matter, it places a burden on him which he should not have to exercise alone. But if we include the chairman of the commission, we are being consistent.

Lord Goodhart: My Lords, although my noble friend and I did not put our names to the amendment on this occasion, we do in fact support it. We believe that in a sense the chairman of the commission can also be regarded as the protector of the concerns of the lay membership of the commission. While we entirely accept the concordat in this case, if left to our own devices we would probably have had a majority of lay members, as is the Scottish position.

It is perfectly foreseeable that at some time in future a Lord Chancellor, who will as matters now stand in statute be a distinguished lawyer and a High Court judge, might come to the conclusion that there were too many lay members on the commission, and use the powers to reduce that number, subject to parliamentary approval. We think that, in any event, where there is a reasonable case for variation of the numbers it should be possible to get the agreement of
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the chairman of the commission, and if not, it would be necessary for the Government—as this is a very important principle—to aim at primary legislation.

Baroness Howe of Idlicote: My Lords, I should like briefly to support this amendment. The Minister very kindly wrote a letter to me explaining the Government's position. I read it but I was not entirely convinced. I thought that the answer was to listen to the debate on the Floor of the House. I am convinced by what I have heard from the proposers of this amendment. I am particularly appreciative of the role of the current appointments commission. It seems to me that it has had a long period of watching what has happened in the past and making very good and well informed recommendations about how the situation should be conducted in the future.

If the noble Lord, Lord Borrie, presses the matter to a vote tonight, I would certainly support him. However, having said that, I rather hope that the Government will think again, that the noble Lord, Lord Borrie, will not press the matter and that perhaps we can come back to it at Third Reading.

Baroness Ashton of Upholland: My Lords, I had hoped that, as my noble friend Lord Borrie, suggested, I had won over the noble Lord, Lord Goodhart, and the noble Baroness, Lady Howe, but that is clearly not the case.

I say to my noble friend that there was nothing mysterious—I would like to be mysterious, but I fear that I am not—in what I was trying to say. I do not have very much to add. I believe that what I said in Committee was clear; namely, we believe it is right that the chairman is consulted. I gave that commitment and I happily repeat it now. However, we do not accept that that should amount to a veto being imposed by the chairman before an order can be laid. It would be a much larger step to give the chairman of the commission a veto on making changes in all circumstances with the result that—as the noble Lord, Lord Goodhart, said—the Government's only recourse, if they wanted to change the commission, would be further primary legislation. I do not believe that is the best approach to take.

I refer to a situation in which it was considered that the commission needed different expertise or a different balance of input from that provided by the Bill, and in which there was widespread concern, shared by the Minister and the Lord Chief Justice, regarding whether the commission was meeting the challenges that it faced. We believe that it would not be appropriate in those circumstances to allow the commission or its chairman to veto changes to its own composition designed to deal with perceived defects in its own performance or capacity. We believe it is possible—I am not suggesting anything with regard to the commission; I give this only as a theoretical example—that the problems might not be recognised by the commission itself—hence the need for those changes to be made. We believe that those matters should properly be left for the Lord Chancellor and the Lord Chief Justice.
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I outlined a scenario which I hope is not likely but it is possible. As I have indicated, we should be very reluctant to put ourselves in a position where the only remedy would be further primary legislation to change the composition of the commission. I am sorry to disagree with my noble friend for whom I have enormous respect, but I hope that he will feel able to withdraw his amendment.

Lord Borrie: My Lords, I am most grateful to those who have spoken in this debate, particularly to the noble Lord, Lord Renton, because his party's Front Bench preferred to say nothing at all. I was delighted to hear that the noble Lord, Lord Goodhart, supports the measure. The noble Baroness, Lady Howe of Idlicote, is also very welcome as a supporter. Irrespective of the Conservative Front Bench's rather desultory attitude on the matter, it is somewhat late in the evening for me to press the matter to a vote. Therefore, I will not do so. I am grateful to the Minister for putting her comments on the record, which I will examine closely, because I found some of her remarks curious. The word "expertise", which I had not heard previously, cropped up. I will look closely at what she said. I hope that I will not need to bring the matter back to the House. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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