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Lord Carlisle of Bucklow: My Lords, in the Select Committee I argued that one should have sufficient confidence in the Judicial Appointments Commission to allow it to appoint those on the lower levels of the judiciary. Therefore, I agree with what the noble Lord, Lord Borrie, has said, in general terms.

Lord Falconer of Thoroton: My Lords, the noble Lord, Lord Carlisle of Bucklow, is right: he did argue that, but he will also remember that he was a man pretty well alone on the Select Committee in that respect.

Appointing judges is a central function of the state. Parliamentary accountability for the appointments system must be retained through the Minister. A Minister who is accountable for appointments should have a real say in those appointments. We recognise that his say must be suitably tempered to protect the independence of the system, and we say that the Bill strikes a balance by the limited power that it gives to the Minister.

There are powerful constraints on the executive. They strike a proper and workable balance of independence and accountability. Sadly, the noble Lord gives no reasons why that balance of independence and accountability, which is OK in relation to the appointment of High Court judges and the Court of Appeal, is not suitable or appropriate in relation to appointments below the High Court, save that my officials might duplicate the work done by the Judicial Appointments Commission. The importance of the state being involved and the importance of having proper accountability make whatever duplication there is—it would not be that great—worthwhile to ensure that there is proper accountability.

This is the fundamental point. In effect, the noble Lord's argument is that the Minister should in future save his or her time for the appointments at the top of the tree. I disagree wholly. Under the current arrangements, the Minister should make sure that he can find the time to consider all appointments to the judiciary, of whatever kind, with the care that they deserve. I have every confidence that each Lord Chancellor in recent times has done the same. I believe that in the more limited role, so will Lord Chancellors in the future.

I stress that to accept the amendment would be to fly in the face of the important concordat agreed between the Government and the Lord Chief Justice and to alter wholly the basis on which the Judicial Appointments Commission would operate. It would also remove the valuable consistency that underpins the fundamental provisions on appointments, and it would weaken—indeed remove—provision for real
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ministerial responsibility and accountability in relation to the appointment of judges below the High Court. That would be fundamentally wrong. I hope that my noble friend will agree to withdraw his amendment.

Lord Borrie: My Lords, I am somewhat amazed by some of those comments, which sound rather artificial. As a matter of principle, of course, I can understand what my noble and learned friend has said, but the idea that the Lord Chancellor's ministerial accountability should extend to the dozens and dozens of appointments of district judges and recorders that are needed seems to be a stretching of the principle.

As to the practical matter to which I referred, if the bureaucracy is not duplicated, how on earth can the principle to which my noble and learned friend the Lord Chancellor has given voice be carried out in practice? That is what I am concerned about. I must accept what my noble and learned friend the Lord Chancellor has said. I will carefully read what has been said, but in the mean time I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 73 [Exercise of powers to reject or require reconsideration]:

Baroness Ashton of Upholland moved Amendment No. 166A:

The noble Baroness said: My Lords, these are drafting amendments that clarify the Minister's powers surrounding the requirement to reconsider or reject a candidate for appointment. I will address them in reverse order, since that is the way in which they are most likely to arise.

The changes reflect the fact that judicial office holders have many responsibilities, and a person may be unsuitable for some without being unsuitable for all. If a candidate is admirable in most respects but nevertheless flawed in some particular respect to which the Lord Chancellor attaches importance, Amendment No. 166B allows the Lord Chancellor to ask the commission to reconsider its recommendation of the candidate.

The Lord Chancellor may make such a decision either because in his opinion there is not enough evidence that the person concerned is suitable for the office concerned, or because there is evidence that the person is not the best candidate on merit. The amendment would add to the first of these limbs that there was not enough evidence that the person concerned was suitable for the office concerned or for particular functions of that office.

Secondly, the Bill makes it clear that the Minister may reject a candidate selected by the commission only if, in his opinion, the person selected is not suitable for the office concerned. Amendment No. 166A would add,

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The amendment makes it clear that he can do so without saying that the candidate was wholly unsuitable in every respect to be appointed to the post or level of post involved.

It may assist the House if I remind your Lordships that when addressing amendments to Clauses 68 and 69, dealing with the appointments to the High Court Bench, we noted that some further work was needed to ensure that the provisions dealt adequately with the full range of bulk competitions and reserve lists. The procedures covered in the amendments are obviously related and will form part of that consideration. That will of course take place with the help of the working party under the chairmanship of Lady Justice Arden. I beg to move.

On Question, amendment agreed to.

Lord Carlisle of Bucklow: My Lords, before we go any further, may I take up a point that the noble Lord, Lord Renton, has made? I understood that there was a convention in the House that we did not sit after ten o'clock. It is now 10.35 p.m., and we have a certain number of important amendments to come.

The amendment that I am considering particularly is the one for the sunrise clause. Is the Minister really expecting to pursue that amendment at this stage? If he is, can I have the assurance that on Third Reading we will be entitled, having had the chance to hear what he says, to put down amendments to the sunrise clause to strengthen it or otherwise? I accept that it is to some extent a matter of total agreement, but it is a matter of importance that was emphasised during the Select Committee sittings. I thought that it should have been discussed an hour earlier than this, and I simply wanted to say so.

Lord Evans of Temple Guiting: My Lords, an agreement was reached with the usual channels that we would finish the Report stage tonight, and that is what we plan to do. I give an undertaking that amendments can be tabled to the sunrise clause on Third Reading.

Lord Falconer of Thoroton moved Amendment No. 166B:

On Question, amendment agreed to.

Baroness Ashton of Upholland moved Amendment No. 166C:

"Assistance in connection with other appointments

(1) The commission must provide any assistance requested by the Minister under this section.
(2) The Minister may request assistance for the making by him or by another Minister of the Crown of an appointment or recommendation for appointment, other than one to which section 17 or a provision of this Part applies.
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(3) The Minister may only request assistance under this section if it appears to him appropriate because of the commission's other functions under this Part and the nature of the appointment concerned.
(4) Without limiting the assistance that may be requested, it may include—
(a) determining a selection process;
(b) applying a selection process;
(c) selecting a person;
(d) selecting a short list;
(e) advice on any of those matters.
(5) Before making a request the Minister must consult—
(a) the Lord Chief Justice, and
(b) the commission.
(6) In this section "appointment" includes the conferring of any public function.
(7) In this Part references to selection under this Part include references to selection by the commission pursuant to a request under this section (and references to a person selected under this Part are to be read accordingly)."

The noble Baroness said: My Lords, the amendment will provide a statutory basis for involving the Judicial Appointments Commission in the selection of candidates for appointment to judicial posts not otherwise catered for in the Bill. The Lord Chancellor's current role in judicial appointments in England and Wales means that he is often involved, to a greater or lesser extent, in advising on similar appointments elsewhere. For example, he advises the Secretary of State for Foreign and Commonwealth Affairs on whom Her Majesty's Government should recommend for appointment to the European Court of Justice or the European Court of Human Rights.

It is clear that the commission should not be responsible per se for appointments to international courts because those are not appointments in England and Wales, and in many cases the appointment does not formally lie within the gift of the UK Government. On the other hand, the commission will in due course be the country's expert in judicial appointments. The expertise in detailed selection processes currently held by the Lord Chancellor and his staff will diminish over time. So it should be open to the Secretary of State to use the commission's expertise on an ad hoc basis when he wishes to do so, including appointments to international courts. However, we do not believe that he should be obliged to involve the commission. That is because what he is asked to do in relation to any particular post varies very widely.

The amendments enable the Lord Chancellor, after consulting the Lord Chief Justice, either to require the commission to select someone to be appointed or nominated for posts not listed in the relevant schedule to the Bill or to advise him on the selection of such a person. The power is drafted widely in order to avoid questions about what does or does not constitute a judicial post. The final part of the amendment extends the ombudsman's remit to complaints about how the commission has conducted a selection under the provision. I beg to move.

On Question, amendment agreed to.
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Clause 84 [Consultation on appointment of lay justices]:

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