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"( ) Selection must be solely on merit."
The noble Baroness said: We have got there, my Lords. I indicated in Committee on 18 October that we would amend the Bill to indicate a clearer and stronger formulation of the merit principle when selecting candidates for judicial appointment. We have taken into account the informed discussion in the Select Committee, when it was suggested that the wording could be amended to provide that selection must be solely on merit. That would put the matter beyond doubt and remove any possible suggestion that the merit criterion was in some way qualified by other considerations.
The Government agree that the best person must be selected for the post, as does the noble and learned Lord the Lord Chief Justice. The amendment makes it clearer that no other considerations should be taken into account when making selections for judicial appointments. I beg to move.
Lord Renton: My Lords, in the context of the Bill, surely it is inappropriate and irrelevant to say that that selection must be solely on merit? Surely all selections of a judicial character within the terms of the Bill would automatically be considered on merit. For us to write it into the statute seems to be unnecessary and inappropriate.
Lord Mackay of Clashfern: My Lords, I would have thought that it was pretty important to have it solely on merit. I wonder what would happen if two equally meritorious candidates presented themselves, if the
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appointment had to be solely on merit. Surely, merit must be the leading consideration, otherwise our judiciary might well suffer in the longer term.
Baroness Ashton of Upholland: My Lords, the noble and learned Lord, Lord Mackay, has, in a sense, answered the question put by the noble Lord, Lord Renton, which is that, yes, it is very important; yes, it was felt in the discussions at the Select Committee, and, indeed, by members of your Lordships' House, that it should be explicit. We agree and we have placed it there. The noble Lord, Lord Renton, feels that it does not need to be there, but it is there. Fortunately, if there are two candidates of equal merit, it will not be my decision.
On Question, amendment agreed to.
Baroness Ashton of Upholland moved Amendment No. 156Q:
On Question, amendment agreed to.
Clause 52 [Guidance about procedures]:
[Amendments Nos. 156R to 156T not moved.]
Clause 53 [Guidance: supplementary]:
[Amendments Nos. 156U and 156V not moved.]
Clause 54 [Selection of Lord Chief Justice and Heads of Division]:
[Amendment No. 156W not moved.]
Baroness Ashton of Upholland moved Amendment No. 156X:
( ) The first member is the most senior England and Wales Supreme Court judge who is not disqualified, or his nominee."
The noble Baroness said: My Lords, perhaps I may turn the pages quickly enough to ensure that I am moving the right amendment. These amendments are technical and relate to the provisions for both the panels selecting the Lord Chief Justice and the Heads of Division and the panel selecting Appeal Court judges to ensure that all readily foreseeable circumstances are provided for.
The most senior Supreme Court judge or his nominee sits on the former and the chairman of the Commission or his nominee sit on both. The amendments allow for the possibility of the senior Supreme Court judge being a candidate for appointment as Lord Chief Justice, or, indeed, as a Head of Division and for chairman of the commission being unavailable or the post being vacant. As well as it being inappropriate for someone, however eminent, to sit on a panel considering his own candidacy for appointment, it also seems inappropriate for him to be seen to be the person to designate someone to take his place on the panel.
We have provided that where the senior Supreme Court judge is a candidate for appointment as Lord Chief Justice or Head of Division, the next most senior
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judge would take his place in the selection process. We have also catered for the chairman of the commission not being available to sit on either panel or to nominate someone to sit on his behalf. That could be because, as I have indicated, the post is vacant or because he or she is unavailable. While the latter may be a remote and regrettable possibility, we felt that we should cater for a situation where the incumbent, perhaps through illness, is really not in a position to play a part in the process. I beg to move.
On Question, amendment agreed to
The Deputy Speaker: My Lords, has the noble Baroness spoken to the remainder of the alphabet? I suggest to the House that Amendments Nos. 156Y, 156Z, 156AA, 156 AB, 156AC and 156AD be moved by the noble Baroness en bloc.
Baroness Ashton of Upholland moved Amendment Nos. 156Y to 156AD:
"(2A) Unless subsection (4B) applies, the third member is the chairman of the Commission or his nominee.
(2B) The fourth member is a lay member of the Commission designated by the third member."
Page 23, line 23, after "judge" insert "who is not disqualified"
Page 23, line 24, leave out "participating judge" and insert "second member.
(4A) Subsection (4B) applies if—
(a) there is no chairman of the Commission, or
(b) the chairman of the Commission is unavailable and has not nominated a person under subsection (2A).
(4B) In those cases the third member is a lay member of the Commission selected by the lay members of the Commission other than the chairman."
Page 23, line 26, leave out "(1)(a)" and insert "(1A)"
Page 23, line 37, leave out from first "The" to "is" and insert "first member"
On Question, amendments agreed to.
[Amendments Nos. 156AE to 156AG not moved.]
Clause 61 [Selection of Lords Justices of Appeal]:
[Amendment No. 156AH not moved.]
The Deputy Speaker: My Lords, Amendment No. 156AJ was spoken to with Amendment No. 156X, as was Amendment No. 156AK.
Baroness Ashton of Upholland moved Amendments Nos. 156AJ and 156AK:
(1A) The first member is the Lord Chief Justice, or his nominee.
(1B) The second member is a Head of Division or Lord Justice of Appeal designated by the Lord Chief Justice.
(1C) Unless subsection (1F) applies, the third member is the chairman of the Commission or his nominee.
(1D) The fourth member is a lay member of the Commission designated by the third member.
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(1E) Subsection (1F) applies if—
(a) there is no chairman of the Commission, or
(b) the chairman of the Commission is unavailable and has not nominated a person under subsection (1C).
(1F) In those cases the third member is a lay member of the Commission selected by the lay members of the Commission other than the chairman."
Page 26, line 29, leave out "Lord Chief Justice or his nominee" and insert "first member"
On Question, amendments agreed to.
Lord Lloyd of Berwick moved Amendment No. 157:
"SELECTION OF PUISNE JUDGES
(1) This section applies to a recommendation for appointment as a puisne judge.
(2) A recommendation may be made only under section (The Minister's options).
(3) If there is a vacancy among the puisne judges the Minister must, unless the Lord Chief Justice agrees otherwise, make a recommendation to fill the vacancy.
(4) For the purposes of subsection (3) a vacancy arises only on a puisne judge vacating his office after the commencement of this section.
(5) A request for the selection of a person to be recommended must be made by the Minister to the Commission.
(6) Before making a request the Minister must consult the Lord Chief Justice.
(7) Sections (Selection process) to (Selection following rejection or requirement to reconsider) apply where the Minister makes a request under this section."
The noble and learned Lord said: My Lords, the purpose of the amendment is to bring the selection process for High Court judges into line with the selection process for judges of the Court of Appeal. The selection panel for members of the Court of Appeal is set out in Clause 63 and consists of the Lord Chief Justice, a head of division, the chairman of the commission and one other lay member. Therefore, there are two lawyers and two laymen, with the Lord Chief Justice as the chairman. That is all straightforward, simple and sensible.
My proposal is that the membership of the panel for selecting High Court judges should be similar but not identical. It is set out in Amendment No. 159. The panel would consist of the relevant head of division, a puisne judge, the chairman of the commission and one other lay member of the commission. Up until that point, it is similar to the process relating to Lords Justices, but I would add a representative of the General Council of the Bar and a representative of the Law Society, making two judges, two other legal members of the commission and two lay members of the commission.
As the Bill now stands, membership of the selection panel is entirely at the discretion of the chairman of the Judicial Appointments Commission. Thus, the panel might consist of nothing but lay members, who can have little idea of the job of a High Court judge and therefore little idea of the best candidates for that job. It is true that from time to time it has been suggested
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that, through an amendment to the Bill or some regulation under the Bill, a puisne judge should be included on the panel, but so far we have not seen that.
The High Court judge is the key appointment in the whole judicial process. In many ways, he is more important than, although of course not as senior as, members of the Court of Appeal. The High Court judge is important because, unlike circuit judges, he is irremovable, except following an address by both Houses of Parliament, and therefore it is essential that we should not make a mistake in his appointment. He is also important because he is in the front line in defending the liberty of the subject against the Government by the process of judicial review. Again, circuit judges are in an entirely different position because they have no jurisdiction in judicial review.
Therefore, I was very surprised to find that, instead of being given the kind of panel that Lords Justices are given, High Court judges were tucked away in Schedule 12 to the Bill between non-judicial members of the Restrictive Practices Court and Masters of the Queen's Bench Division. In my submission, that is quite wrong. High Court judges are worth much more than that.
What qualities will the panel look for in selecting a High Court judge? Judicial qualities apart, which are taken for granted, the main one must be that the High Court judge is to be chosen from among the very top rank of lawyers; otherwise, the quality of the High Court Bench will gradually be eroded. That is especially true of the specialist High Court judges, particularly commercial judges, of whom there are now 10, and the Patent Appeals Tribunal in the Chancery Division.
I am the strongest possible supporter of lay involvement in the judicial process. I am the strongest possible supporter of lay magistrates and of lay juries, but I wonder how a panel consisting largely, or perhaps entirely, of laymen could be the best panel to choose judges of the right calibre.
The only argument put forward in the Select Committee for distinguishing between High Court judges and judges of the Court of Appeal was that judges of the Court of Appeal were chosen by promotion, whereas it was said that judges of the High Court were not. That is no longer true, because increasingly High Court judges are chosen by promotion from the circuit Bench. In any event, promotion is an irrelevant consideration in this discussion. We need the best way of getting the best men in those important jobs, which include not only the Lords Justices but also the judges of the Court of Appeal. If promotion is irrelevant, it follows that no good reason has been given for distinguishing between the two.
This is a genuine attempt, as I have said, to improve the Bill and to eliminate what High Court judges could well consider a grievance. I accept that the amendments tabled by the noble and learned Lord the Lord Chancellor in this group go some way to correct what may be a sense of grievance, but they are purely cosmetic in their effect. What matters here is acquiring
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the best panel. I hope that the noble and learned Lord the Lord Chancellor will consider the matter again and not just say, "It is all in the concordat and that is that". We know that the concordat can be changed by agreement between him and the Lord Chief Justice. I hope that he will try to secure that agreement. I beg to move.
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