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Lord Falconer of Thoroton: My Lords, as indeed are circuit judges.
Lord Kingsland: My Lords, yes, as indeed are circuit judges. But that in my submission does not weaken the case of the noble and learned Lord, Lord Lloyd. As I understand it, it is argued against the noble and learned Lord, Lord Lloyd, that the fact that a High Court judge was not promoted from another appointment undermined his case. The fact that circuit judges were also appointed from the ranks of recorders does not in any way undermine the point made by the noble and learned Lord, Lord Lloyd, that High Court judges are also appointed on promotion from recorderships.
I see that the noble and learned Lord the Lord Chancellor is looking somewhat bewildered. This is a good moment therefore for him to get to his feet.
Lord Falconer of Thoroton: My Lords, first, noble Lords are right that the drafting of the Bill needs to recognise a special place for the High Court, which is an incredibly important part of the justice system. I
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have tabled amendments to remove them from Schedule 12 and to refer to them in the Bill, which deals with the quite legitimate point that has been made by noble Lords about the structure of the Bill.
I need to look again to determine whether I have captured, in terms of the drafting, before I come to the substance, proper recognition for the High Court. I also accept the importance of High Court appointments. However, I am strongly of the view that if we are setting up a Judicial Appointments Commission we must broadly leave it to determine how it makes those appointments, particularly in relation to appointments such as the High Court.
The distinction between, on the one hand, High Court judges and, on the other hand, heads of divisions and members of the Court of Appeal is that heads of divisions and members of the Court of Appeal are invariably appointed by promotion from having been full-time High Court judges or, alternatively, members of the Court of Appeal in relation to heads of division. On those appointments I recognise, as does the Bill, that the right course is to look to those who have worked most closely with them to determine who should be selected. I do not think there is any dispute about that.
The distinction between members of the Court of Appeal or heads of division on the one hand and High Court judges on the other is that High Court judges, for the most part, are selected from private practice. Some chosen for appointment have been circuit judges, but the numbers being appointed from that route are in a clear minority. As it happens, their number has not gone up over the past few years. Like circuit judges, those appointed to the High Court are almost invariably recorders. So the fact that they are selected from part-time judicial appointments does not seem in any way to distinguish them from the circuit Bench, although as I have made clear, I accept their importance to the judicial system.
There is widespread support throughout the House for a Judicial Appointments Commission. If we believe in such a commission and we cannot identify a reason to separate these from other judicial appointments, I think we should leave it to the Judicial Appointments Commission.
I was interested in what was said by the noble Lord, Lord Goodhart. Although I may have misheard him, I think he said that if sub-committees are to make such selections, he would be keen on seeing one judicial member included on such sub-committees when appointments of judges to the High Court are being considered. I invite the noble Lord to look at paragraph 21(5) of Schedule 10. It indicates that when a selection committee or sub-committee is set up, it will need to include a judicial member.
Lord Goodhart: My Lords, I had intended to go rather further than that. I said that one or possibly two judicial members should be not only that, which would include the lower judiciary, but should also be either a judge of the Court of Appeal or a judge of the High
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Court, and therefore in both cases would be a member of the commission.
Lord Falconer of Thoroton: My Lords, again, if a committee or sub-committee is set up, it must include a judicial member. However, if the appointment is for a High Court judge, I could not agree more that it would be inappropriate if the judicial member were not a judge of the High Court or above. I should have thought that was obvious. However, paragraph 21(5) of Schedule 10 does not prevent there being more than one judicial member. I hope that that satisfies the noble Lord.
I turn now to the concordat. From time to time the noble and learned Lord, Lord Lloyd of Berwick, has suggested that this is something the High Court itself is unhappy about. I have spoken to the Lord Chief Justice about it. He has assured me that that is not the case and I accept his view rather than that of the noble and learned Lord.
I have thought carefully about the proposal put forward by the noble and learned Lord, but ultimately, if we are setting up a Judicial Appointments Commission and there is no good reason—such as that in relation to the Court of Appeal and heads of division—we should trust the Judicial Appointments Commission. I think that it would be wrong to propose that there should be in effect six members of a selection committee, four of whom would be either judges or lawyers.
Lord Lloyd of Berwick: My Lords, the noble and learned Lord, Lord Mackay, and the noble Lord, Lord Carlisle, both seemed to make it clear that this is a case where, for whatever reason—I do not know it—the line has simply been drawn in the wrong place. The noble Lord, Lord Kingsland, has made clear that there is nothing in the argument on the basis of a promotion being the ground of distinction between Lords Justice and High Court judges. Turning to the point that the Judicial Appointments Commission is to be set up and therefore we must trust it, of course we must, but the commission will have quite enough to do and will have to provide two people, a chairman and one other member, for the panel I am suggesting.
Having said that, and having heard the remarks of the noble Lord, Lord Goodhart, it may be that for once it will be possible for the noble Lord and myself to reach some kind of agreement on what might be the best way to achieve what I believe most Members of this House want. On that basis, therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 158 to 163 not moved.]
Clause 68 [Selection of puisne judges and other office holders]:
Lord Falconer of Thoroton moved Amendments Nos. 163A and 163B:
"(za) a recommendation for an appointment to the office of puisne judge of the High Court;"
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Page 28, line 32, leave out paragraph (c) and insert—
"(c) an amendment consequential on the abolition or change of name of an office;
(d) an amendment consequential on the substitution of one or more enactments for an enactment under which appointments are made to an office."
On Question, amendments agreed to.
Schedule 12 [The Judicial Appointments Commission: Relevant Offices and Enactments]:
[Amendment No. 164 not moved.]
Lord Falconer of Thoroton moved Amendments Nos. 164A to 164D:
| Justice of the peace who is not a District Judge (Magistrates' Courts) | Section 10(1) of the Courts Act 2003 (c. 39)" |
On Question, amendments agreed to.
The Deputy Speaker (Lord Lyell): My Lords, I am advised that Amendment No. 165, in chronological order, should be in here. I therefore call Amendment No. 165.
Lord Renton: My Lords, before the noble Lord moves his amendment, perhaps I may ask the noble and learned Lord the Lord Chancellor whether he would indicate how much later he intends that we should sit tonight, bearing in mind that we have already reached a fairly late hour and that we are dealing with fundamental issues in the Bill.
Lord Falconer of Thoroton: My Lords, the intent is that we go on until we finish.
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