'(1) The Constitutional Reform Act 2005 is amended as follows.
(2) Omit sections 76 to 84.'.- (Mr. Bellingham.)
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The Second Deputy Chairman:
'(1) Section 88 of the Constitutional Reform Act 2005 is amended as follows.
(2) After subsection (5) insert-
"(6) At no stage during any selection procedure may the Commission apply any written tests."'.
I should declare an interest as a barrister. I should also point out that I am not at present seeking any judicial appointments. I did at one stage have serious ambitions to become a high-flying QC who might go on to one of the highest judicial appointments in the land, but I suspect that what I am going to say in a few minutes will probably not endear me to the Judicial Appointments Commission.
New clause 20 removes from the scope of the JAC the appointment of Court of Appeal judges, the Lord Justices of Appeal. It does this by removing the relevant sections of the Constitutional Reform Act 2005. New clause 22 clarifies section 88 of that Act by stating clearly in the legislation that the JAC will not be able to continue with its unpopular and, I would suggest, discredited written tests.
Why are we proposing these two new clauses? We need to have a quick look at the JAC and the background to it. It was set up by section 61 of the 2005 Act. It was a completely new system and represented a significant departure from the previous system, which was based on recommendations to the Lord Chancellor. This was part of a much wider package of constitutional changes involving the position of the Lord Chancellor, the new Supreme Court, which we shall discuss later this afternoon if new clause 21 is reached, and judicial appointments in Northern Ireland. Another important part of that package of constitutional changes was the creation of the Ministry of Justice, which took over the former Department for Constitutional Affairs and took over from the Home Office responsibility for prisons and the probation service.
When the proposals were announced, they were notorious for the lack of proper consultation. There was no Green Paper and no White Paper. As I understand it, there was no consultation even with Her Majesty. There was no consultation with the judiciary, the Lord Chief Justice or the senior Law Lords. The then Lord Chancellor, the noble Lord Irvine of Lairg, was not consulted. He was told about the changes only after the decisions had been taken. He was told that, as part of the original package, his own post was to be abolished.
As the noble Lord Neuberger recently commented, all this was completely unprofessional and seemed like the product of late night whiskeys and back of an envelope calculations by the then Prime Minister, Tony Blair, and some of his sofa government cronies. He did not look carefully at what would be required in getting rid of the post of Lord Chancellor. He did not appreciate at the time that it would require primary legislation, and he did not realise that there are 5,000 references to the post of Lord Chancellor in our law.
Lord Irvine of Lairg has now broken his silence and accused the then Prime Minister of blocking his ideas, botching the reforms and humiliating him. Perhaps we should not worry too much about the latter point. He spoke about
"the chaotic, even cavalier way" in which the business was conducted, with the then Prime Minister
"winging it on hunches, using inadequate advice" and having
"scant regard for procedure."
It is indicative in many ways.
Is my recollection correct, and does my hon. Friend remember, that the Lord Chief Justice was told five minutes before the press release went out from No. 10? That was the extent of consultation for our most senior judge.
I intervene with great hesitancy because I am interested in the word picture that he is painting of the Government. Can he tell me what all this has to do with new clause 20?
I should now like to consider the system of judicial appointments and consider whether the old system worked, because we need to look at the previous system before we can reach a considered opinion on how the new system is working.
Does my hon. Friend agree that the JAC is an important part of the patchwork of compromises and decisions that had to be made following the decision to abolish the position of Lord Chancellor? For example, there was also the concordat, a very lengthy document agreed with Lord Woolf, which had to be produced because the Government had no idea of the complexity of what they were trying to do during the ministerial reshuffle.
Again, my hon. Friend, who followed the issue carefully at the time, is absolutely spot-on. Indeed, many of us took the view that the JAC, which was established by the relevant sections of the Constitutional Reform Act 2005, was created on the basis that the position of Lord Chancellor would be abolished. But of course the position was not abolished, because it was discovered that, as part of the reform of our constitution, it would be almost impossible to do that without introducing a much lengthier Bill.
Does my hon. Friend agree that this issue is part and parcel of the problem with the Government's overall approach to constitutional reform, whereby they start down a road with no clear idea of their destination? The later provisions of the Bill will show that the same thing is happening to the House of Lords as happened to judicial appointments.
My hon. Friend is 100 per cent. correct, because we have seen a hotchpotch of different reforms. Indeed, they were initially predicated on getting rid of the post of Lord Chancellor and moving the Law Lords out of the House of Lords and into the new Supreme Court. But, as my hon. Friend rightly points out, a decision was taken at the time without any clear idea of how the legislation would be framed, and as a consequence we are picking up different bits of it.
Did the previous system of judicial appointments work? Did it deliver an exceptionally high calibre of judges? The answer is undoubtedly yes, and the system cost virtually nothing. One issue that has been raised at the Bar for as long as I can remember is diversity, but we are looking at it from the wrong direction in terms of judicial appointments. The key point is to look at it from the point of view of access to the professions, because if the most able and competent people, from all backgrounds, are attracted to them and do well at the Bar, for example, as solicitors or in other, linked professions, they will be appointed to the Bench and, I hope, secure judicial appointments.
At the Bar, for example, which is the part of the profession I know most about, the percentage of ethnic minority students at law school and in paid pupillages is far greater than the percentage of ethnic minorities in the population as a whole. The Bar has reached out to schools throughout the country, and explained to schools and universities what a career at the Bar is all about. My hon. Friend Mr. Heald and I virtually had to pay for our pupillages, but now one has paid pupillages.
I pay tribute to those former chairmen of the Bar Council, Geoffrey Voss and Timothy Dutton, who worked incredibly hard on ensuring that the Bar made sterling efforts to reach out to schools throughout the country, and on widening access to the Bar. That work has been continued by Desmond Browne QC, the current chairman of the Bar Council, and he has stated time and again that he is passionate about the issue and feels strongly that the Bar must ensure that access is widened as much as possible. I am sure that the Minister agrees that, on this issue, the Bar sets a glowing example. Law schools are full of overseas students, students from Commonwealth countries, Dominion countries and people who will undoubtedly go on to great success in their own countries.
I remember that when I was at law school, I had a number of fellow pupils from Commonwealth countries, and they have since gone on to high judicial appointments and, indeed, to high political office. In fact, one contemporary has even gone on to become king of a country.
Does my hon. Friend agree that one great thing about ethnic minority solicitors is that they have been able to set up small firms that cater for the interests and needs of a particular community? One damaging aspect of the Carter review has been the attempt to force all firms to conform to a particular size and way of working. It has impacted, and will impact, badly on many ethnic minority solicitors, who until now have been able to become the senior partner in a firm and move on to judicial office later. Does my hon. Friend agree that the reforms, though well intentioned, may establish a glass ceiling?
I am grateful to my hon. Friend for that observation, because it illustrates the Government's complete lack of joined-up thinking. They have made various changes to legal aid, and, as a result, their absolute obsession with consolidation and "big is best" will drive out of business many small firms, particularly small minority ethnic businesses in city centres. They are often the launch pad for members of the ethnic minorities to go into law. With the loss of that launch pad, those people may not go into the legal profession, and they will not be available to take up judicial appointments later.
Again, may I just say how much I am enjoying this paean of praise to equality and diversity? It is particularly bracing, coming as it does from the Conservative Front Bencher. However, will the hon. Gentleman tell me how it is relevant to the provisions that affect the Judicial Appointments Commission?
The Minister is obviously desperate to join the Chairmen's Panel, whereupon he will be able to control debates in that way. It is up to a Committee's Chairman to say whether I am in order, however, and it is important that we look at the background to the JAC. If we do, we will be able to see whether the clauses make sense.
The issue is also about judicial appointments and what our constituents expect from the judiciary. When our constituents appear before a court, be it a magistrates court, county court, Crown court or the High Court, above all else they want to encounter a level of expertise, wisdom, fairness and professionalism. After all, at that juncture in their lives, they may be facing the loss of their liberty, property or finances, or the removal of a child from their custody, so they are not interested in the gender, race or able-bodiedness of the judge. All they are interested in is competence, expertise, wisdom and the judge's ability to deliberate upon the case and reach the right conclusion.
I am listening intently to the preamble to the subject of the hon. Gentleman's new clauses. I understand that he has concerns about the way in which the JAC works, but why is he exclusively concerned about the way it selects Lords Justices of Appeal and not, apparently, about the way it appoints Lords Chief Justice, heads of division or puisne judges?
The hon. Gentleman is now getting to the guts of his argument, but will he clarify something, as much for his own interest as for anyone else's? He quite rightly set out what our constituents expect when they appear in front of the judiciary. From memory, the JAC has appointed 12 Court of Appeal judges. The casual listener may think that he implies that those 12 appointments did not meet the criteria that he just set out. Would he like to clarify his view on that? Does he think that those 12 appointments meet the criteria?
I think that they are excellent appointments, but they could have taken place under the old system anyway without the need for this extremely costly bureaucracy.
Section 64 of the Constitutional Reform Act 2005-my hon. Friend the Member for North-East Hertfordshire spoke eloquently on it at the time-is headed, "Encouragement of diversity". It states:
"The Commission, in performing its functions under this Part, must have regard to the need to encourage diversity in the range of persons available for selection for appointments."
It then says in subsection (2):
"This section is subject to section 63", which stresses that the appointment
"must be solely on merit."
That is meaningless window-dressing and tokenism. We need to get coming into the professions, from an early stage, more people from ethnic minorities, more women, and more people who are enthused by the idea of a career in the law, either as solicitors or as barristers. We will do that by widening access to those professions. The chairman of the Bar Council feels incredibly strongly about that, as do I.
The JAC is incredibly bureaucratic, and it is growing in size. I think that its annual running costs are £8.5 million; the Minister may well correct me, as he probably has the figures directly to hand. That may not seem a vast amount of money. However, we should look at it in the context of the changes that his Department is making to the legal aid budget, or the changes being made to the family law advocacy scheme, which has caused a huge amount of anger among barristers. The initiative to introduce best-value tendering for police station work will have a significant impact on several smaller firms. Yet the savings that will be made through those changes to the legal aid budget involve sums that are sub-£10 million. That is why the £8.5 million cost of the JAC, an organisation that is doing work that cost virtually nothing before, is significant.
Can the hon. Gentleman remind the Committee of the Conservative plans to increase the legal aid budget?
We have no plans to increase the amount of money for the legal aid budget. That budget is £2.1 billion, and we feel that far better value for money can be got from it. We feel strongly that we need to bear down on some of the drivers of costs, particularly the very high-cost cases, and that there is ample scope for bringing in new money to the legal aid budget from outside the MOJ. If the Minister is saying that he expects me to make a pledge to increase that expenditure, he knows the answer to that, unfortunately, as well as I do: whoever wins the next election, the Treasury will say that there will be no increase to that £2.1 billion. I hope that when the economy improves there will be more money for legal aid, because the legal aid budget is a vital part of the welfare state. Access to justice is something that all Conservative Members feel strongly about.
If my hon. Friend asked me, "Is the JAC working?", I would say that it is not doing a bad job. However, we should put our hands on our hearts and think to ourselves that this is a time when this country's public finances are in an horrendously vulnerable state. The country will probably be spending about 10 per cent. of gross domestic product on the interest on our national debt. Bearing in mind that the figure in 1976, when the then Chancellor went off to the IMF, was 9.5 per cent., we are moving into Argentine or Guatemalan territory. That is why we must look at every single item of expenditure and ask ourselves, "Is this organisation doing a good job?" The answer is that it is not doing a bad job. If we ask, "Is it necessary? Was the previous system inadequate and not delivering?", the answer is that it certainly was delivering. That is why we must look at how much money it costs.
Going back to the point made by my hon. Friend Mr. Timpson, one of the problems with the JAC is that because it is so bureaucratic, incredibly cumbersome, very costly and an empire that is growing the whole time, it is moving very slowly. I have heard similar stories to him about judicial appointments that are not being filled. The JAC is not conducting its affairs as efficiently as it should be. The competitions for different types of judicial appointment are not being run as speedily or efficiently as they should be. I have been round several combined courts over the past year or so, and I have had compelling stories put to me by presiding judges who are concerned about the speed at which these appointments are being made and the impact that that is having on their ability to conduct justice and to deliver the services that Ministers rightly expect presiding judges to deliver in their combined courts. The JAC must look into that.
We realise that the JAC cannot be changed overnight, and if we win the next election we are not going to take an axe to it. However, we could certainly make some important initial changes and thereby reduce its cost and make it more efficient and streamlined. The Minister talked about these constitutional reforms having to be more streamlined. Well, we have a good idea in our new clause; let us see the Government support it.
Why do we want to put new clause 20 on to the statute book? The answer is simple. Sections 76 to 84 of the Constitutional Reform Act 2005, which relate to the appointment of Lord Justices of Appeal, are unbelievably cumbersome and bureaucratic. Section 78(1) states:
Subsection (2) says that the Lord Chancellor
"must consult the Lord Chief Justice"; of course, he would have done that anyway. Section 79 states that
"the Commission must appoint a selection panel" and says what the panel must do. It goes on to say that the
"selection panel is a committee of the Commission".
Section 80 states that the "first member" of the panel
"is the Lord Chief Justice"- well, he would have been anyway-"or his nominee." Under section 81, the selection panel has to report and
"state who has been selected".
For goodness' sake, it would have done that anyway; it does not have to be specified in legislation. The report must
"contain any other information required by the Lord Chancellor."
Section 82 gives a number of options for the Lord Chancellor. That system is incredibly bureaucratic, ridiculously prescriptive, absurdly cumbersome, and very expensive. It requires a number of bureaucrats who are putting together a huge amount of paperwork, looking at that legislation and having to pinpoint each particular subsection.
Let me return to the Minister's point about the appointment of Lord Justices of Appeal. I agree that they are excellent appointments, but they probably would have been made under the old system anyway. The key point is that all those appointments to the Court of Appeal came from the High Court. I may be wrong about that; if so perhaps the Minister will correct me. Any High Court judge or senior judge is, in any event, going to be someone who has gone through a major threshold in terms of his qualifying period in his career, and there will have been intense oversight and analysis of how he has done on the High Court bench. Of course, from time to time those High Court judges will make judgments that are taken to the Court of Appeal. So who better to analyse and assess the ability of those High Court judges as a possible Court of Appeal judge than the Court of Appeal judges who, time and again, are sitting in judgment, on appeal, on the judgments made by the High Court judges? We do not need a bureaucratic system of appointments under the JAC to appoint this particular type of judge. I put it to the Minister that for the sake of obsession with the new process and with constitutional reforms, a cumbersome operation is being put in place that is costing a great deal and is totally unnecessary.
Does my hon. Friend agree that the Minister should welcome new clauses 20 and 22, as they would contribute to his stated aim of bringing about the maintenance of good-quality, high-calibre candidates for the bench? They would provide a system that does not have in-built delay, is efficient and brings candidates as good as those that we have had in the past without unnecessary costs. In the process, they would ensure that more judges are sitting in the courts, hearing more cases, and they would therefore reduce the cost of the courts system. We could then use that money to ensure that we continue the process of increasing access to justice for all those people who are currently denied it.
I thank my hon. Friend, who until his spectacular by-election victory was active in the courts day in, day out, as a family law barrister, appearing before judges at different levels of the judiciary and developing an in-depth understanding of what was going on. He is far better qualified than me, and probably than the Minister, to tell the Committee what is happening.
I have a letter from a well known judge, who will, of course, remain nameless. After we had a discussion the other day, he wrote to me:
"There is an arrogance about the JAC which refuses to recognise that the persons most able to judge are those before whom the applicant appears on a regular basis. Instead the task is assigned to persons who have no experience whatsoever of this work. No private company would tolerate such a procedure."
He is right, because the people who are best able to assess the ability of applicants to the Court of Appeal are the judges before whom their decisions and judgments are assessed and appealed against. They know very well the ability of the applicants, and they are best placed to advise the Lord Chancellor. New clause 20 represents a small step, and as part of our reforms of the JAC, we will consider a number of ideas, but it is an important first step to remove judges in the Court of Appeal from the JAC's scope. I urge Ministers and other Members to support that modest proposal and thus reduce the costs of that body. We have ideas for the future, but this is a modest first step forward.
New clause 22 is about written tests. I shall explain for hon. Members who may not know what they are that very often someone applying for a judicial appointment, particularly a more minor one such as that of recorder, district judge or county court judge, is asked to take a written test. Those tests are extremely unpopular and incredibly controversial, and they are very public.
In the past, top QCs, leading solicitors and academics-and patent or trademark attorneys, whom we should not overlook because they can now qualify for judicial appointments-would make their application in confidence. It was kept confidential, because it might well have been turned down, and there is a certain amount of humiliation if a top QC or a managing partner of Allen & Overy applies for an appointment on the High Court bench and is turned down. In the past, no one ever knew that they had applied. Now, they have to take a written test in a public place, and everyone knows that they have done it.
A large number of solicitors and leading QCs tell us that that is having an impact on their practice. They obviously want to keep their clients in place and keep their practice going, and they want to ensure that their partners in their firms and the junior members of their chambers have confidence in them as senior QCs or managing partners. Yet when they apply for a judicial appointment, which in the past would have been kept totally confidential, everyone hears that they have done a test. I am less concerned about whether they fail the test, because I am not saying that it is necessarily unfair, but it is completely unnecessary because it puts the fact of the application into the public domain.
Given that the Government's intention in setting up the JAC was to encourage those who would not otherwise come forward to seek judicial office, does my hon. Friend share my view that any obstacle to those potential applicants is to be regretted? Is it not at least possible that the written test is one of those obstacles?
I am grateful to my hon. Friend for making that point, because it leads me on to a briefing that I have received from the Law Society. I was staggered by what it said:
"The written tests are proving to be an invaluable method of screening applicants. According to the JAC they are...a good indicator".
Of course the JAC would say that. It continued:
"Another beneficial result of the use of written tests is that more women, ethnic minority and solicitor candidates are progressing through to interview and eventual appointment."
I put it to the Law Society and my hon. Friend that most top QCs and senior solicitors are used to dealing with complex paperwork day in, day out. Most of them have top degrees from top universities, and they have the self-confidence and ability to flourish in a written test. However, we are trying to encourage people to apply who are not as fortunate in their background but have ample ability and may well be ideal people to be considered for a judicial appointment, and they may well fall at that first hurdle. As he has said, that puts an unnecessary obstacle in the way of such candidates and may well put them off applying in the first place.
I do not know whether the Minister has had a chance to look at the JAC's website or examine some of the tests, but some of them are Alice in Wonderland scenarios. We are asking senior people of his type of age, maturity and ability to take a written test in which they have to devise some imaginary legislative scenario and then work out cases based on it and deliberate upon them. They are not law students; they are top QCs, barristers and academics. The test is demeaning and completely unnecessary, and I have not yet met a single person who thinks it a good idea, apart from a few people on the JAC and the Law Society, which appears to regurgitate exactly what the JAC has said. If one speaks to any barrister or anyone who has been through the test, they say that it is completely unnecessary.
Will the Minister tell the Committee what percentage of the £8.5 million a year costs of the JAC go into the running the tests? It must be expensive to devise the papers, put together the panels that write them, bring in outside consultants and expertise, book the halls where the tests take place, supervise the tests and put in place the necessary security. It is an incredibly expensive and bureaucratic exercise. The Minister talks about streamlining the system and making it simpler and easier. We have an idea for him: get rid of those tests, which are completely unnecessary.
It seems to me that the JAC has found itself in new, uncharted territory, and of course any new organisation or commission will want to build an empire. The JAC is building its own little empire and wants to embed it, and what better way than to put in place something as bureaucratic as the written test procedure, which obviously means more work for people and more jobs?
As I said to the Minister a moment ago, his budget is under huge pressure. Looking at the Red Book and the roll-forward of the Ministry of Justice budget, we see that he will be looking for cuts across the piece. There will be substantial cost cuts in prisons, in the Courts Service, maybe in legal aid, in the administration of the Legal Services Commission and in every other part of the MOJ because of what the Treasury has done to his Budget. Well, we are giving him a very good suggestion for reducing costs. At the same time, we are proposing the measures not just to reduce costs, but because we want a better system for judicial appointments. On that basis, I hope new clauses 20 and 22 will command the support not only of Opposition Members, but of the Minister and Labour Members.
May I start by talking about the quality of judiciary that we want to attract in this country? We have an honourable tradition and a high standard, which has been set by giants such as Lord Devlin, Lord Denning and Lord Reid. There is a history of legal figures who have commanded respect not only for their wisdom, but for their great intellect, their ability to interpret the law, and through the common law, their ability to make the law.
That proud tradition brings me to the point the Minister made when he intervened on my hon. Friend Mr. Bellingham. He asked my hon. Friend whether he could criticise any of the 12 appointments to the Court of Appeal. I would turn the question round to the Minister and ask him, "Look, you are spending £8.5 million extra; can you criticise any of those who went before?" I think the history of our appointment of judges, particularly at that level, is a marvellous one. I do not think that anyone could point to a Court of Appeal judge in England who was not of a high quality of intellect and wisdom. Some perhaps occasionally made judicial mistakes that were overturned in the highest court, but I do not think it could be said that they had no reasons for their decisions or for putting their decisions in the way they did.
The problem of how to choose our judges for the higher courts all comes down to having a system that allows the best minds and the most wise to emerge. That is what happens. In the High Court, or dealing with tier 1 work in the Crown court, it becomes clear over a period which judges are doing an impeccable job. That happens not only by word of mouth, but because of decisions that go to appeal. Often when appeals are upheld, the judgment of a particular judge-his summing-up in a criminal case or his judgment in a High Court case-will be praised, and it will become the law in due course as the higher courts adopt his reasoning. Those legal minds and those people have emerged in the past and continue to emerge.
Not only the lords justices of appeal sit in the Court of Appeal and the divisional court, but High Court judges sit there as flankers, helping the court as part of the court. Therefore, the lords justices of appeal get to see the High Court judges. They not only see their decisions, but see them in action. The High Court judges give judgments in cases and are often very highly regarded, particularly in specialist areas, so the idea that we need to have laymen in the JAC deciding who should be in the Court of Appeal is really a nonsense. The fact is that the people who should be there emerge through their talents, wisdom and intellect. That has always been the case, and we cannot point to a time when that did not happen.
Why have we got the JAC? The commission has a worthy role-I am not against the idea that we should try to improve diversity-but I think merit should be the first and foremost criterion. In relation to the debate that my hon. Friend mentioned, my point was that it is all very well to have a two-track approach, but when it comes down to it, merit must be the greatest thing, because that will guarantee the rule of law and a system that holds water.
Historically, it is true that the reason why we have a JAC is that Tony Blair, in the course of a reshuffle, decided he was going to abolish the Lord Chancellor. He wanted to do that not for any high and worthy reason-as far as one can tell-but because he had had enough of Lord Irvine. Lord Irvine says so, and I am sure that is the history. I thought it sad that our Prime Minister made a decision for that reason without even consulting the top judge in the country, Lord Woolf, who was told five minutes before the press release went out. It is said that his remark was, "What?" but that may be completely untrue.
However, it is certainly the case that the concordat, which is a very substantial document, had to be agreed between the Government and the Lord Chief Justice before the new approach-retaining a Lord Chancellor but without many of the powers of before-was able to go ahead. At that time, various things were done to replicate the traditional role of the Lord Chancellor, such as his role in appointing judges. One thing that came out of that was the JAC.
The Conservatives did not oppose the setting up of the JAC, but we made two important points on the matter. First, we said that merit should be the main reason for appointing a person, and secondly, we said that the higher courts should be treated slightly differently.
If we look at what has been happening, we will see some encouraging signs in the law. When I first qualified as a lawyer, I think about 25 per cent. of solicitors were women; now the numbers coming through university law courses are roughly equal, so we can see improvement on that. There are greater numbers of ethnic minority solicitors and barristers coming through. The trend of ethnic minority solicitors setting up practices that cater to particular communities and their needs has been beneficial and we have seen some role models come through. It has enabled some pioneers to set the way.
With that in mind, and on the subject of diversity and the role of the JAC, Lord Carter's suggestion-it is now being implemented-of making solicitors' firms larger so that they are more substantial entities that can undertake particular legal aid work, is not very helpful. The ethnic minority senior partners whom I have met have criticised that. They make the point that it creates something of a glass ceiling. If senior partners in small firms that cater to a particular community have to amalgamate with a larger firm, they will no longer be senior partners. Not allowing a member of an ethnic minority community member to be the senior partner in a small firm creates the glass ceiling, which worries me.
The other point that is worth mentioning is that, as my hon. Friend said, the Bar Council has a very honourable tradition of trying to widen access to the profession. Geoffrey Vos, whom my hon. Friend mentioned, made that the keynote of his year's chairmanship. Through that period, he worked with a lot of schools and other institutions to encourage people from poorer backgrounds to come into the law and encourage barristers' chambers to offer proper scholarships, so that individuals had the money to train or undertake a pupillage. When I started-I went from a state education to the Bar-we had to find money from anywhere to survive during pupillage. I worked in an inner-city settlement in south London. In fact, I got to know Clive Efford at that time-we used to run a youth football team together. However, it was not easy to become a barrister in those days. What Geoffrey Vos and others have done has been a good thing for the legal world.
New clause 20 has a lot of merit, but I have mixed feelings about whether the written tests are a good idea. When they were first suggested, I worried that they would be about being a contemporary, modern kind of judge. We all know the story of the judge who famously asked, "Who are the Beatles?" during a case years ago, and there was the famous case in which a judge made an ill-judged remark about a soap star. I worried that the tests would be very politically correct, but my understanding is that they have not been about knowing who is in "The X-Factor" or who Simon Cowell is, or who Dannii Minogue is sitting next to-
The hon. Gentleman obviously has all the necessary trappings to become a judge, as he is asking who Dannii Minogue is- [ Interruption. ] Perhaps he prefers another member of the panel or perhaps he does not know what the panel is.
It is a good idea, in some ways, to ensure that candidates have an appropriate level of knowledge. My hon. Friend the Member for North-West Norfolk said that the top barrister or solicitor who wants to be a judge will be bound to know the basic information about how the legislature works and how to apply cases, but if we are trying to widen the ambit for the lower judicial appointments, it may be that having a written test that anyone can take will bring in a few more people. Does the Minister think that it is worth the cost of what is potentially quite a bureaucratic exercise? Historically, one would have said that the sort of people who would be able to apply to become a judge-after years of experience in the law-would not need to do a written test. What is the aim of the test? Is it about modernity, or some basic level of knowledge? Is it about encouraging new applicants but ensuring that they can read and write?
In summary, I have great sympathy for new clause 20 and will be interested to hear the Minister's answers on new clause 22.
I listened carefully to Mr. Bellingham and I heard much background history of the events that led to the Constitutional Reform Act 2005, but I did not hear a convincing argument in favour of his new clauses. I will address the issues that he raised, but I am not yet convinced that I should advise my right hon. and hon. Friends to support his new clauses- [ Interruption. ] It is indeed sad that he was unable to persuade me, but perhaps I can demonstrate the holes in his argument.
I start from the basis that the constitutional reforms to which the hon. Gentleman referred were, as he correctly said, a hurried and, in many ways, botched job. I was part of the Committee that dealt with those legislative changes and it was clear that, to a large extent, they had been written on the back of an envelope and were not subject to prior consultation. Indeed, they appeared as a complete surprise to most practitioners in the law, who quickly had to respond to what was being proposed and insist-properly-on certain conditions that were eventually part of the protocol that was decided with the Lord Chief Justice.
Does the hon. Gentleman agree that a combination of Lord Woolf and the Conservative and Liberal Democrat parties saved the day by improving the Constitutional Reform Act considerably and, in Lord Woolf's case, agreeing the concordat? Without that, the changes would have been a disaster.
I agree entirely, and it showed good co-operation between the two ends of Parliament and with the senior judiciary, who played an important role in achieving a good outcome from inauspicious beginnings. That is not to say that I object to the vast bulk of the proposals as they ended up, because I felt that they were right. They were changes that many of us had advocated for some time, but their genesis was more predicated-as the hon. Member for North-West Norfolk said-on the needs of political management than on the need for reform in good order.
We now have these proposed changes to the proposals that were agreed then. I intervened on the hon. Gentleman to ask him why he felt that it was so important to remove the Judicial Appointments Commission process for the lords justices of appeal but to leave it in place for the other appointments, such as the Lord Chief Justice, the Heads of Division, the puisne judges and other office holders. I am not sure that I received a convincing answer. The argument was that the lords justices of appeal are senior judges, so the process was less appropriate. I would have thought that the Lord Chief Justice and Heads of Division were also fairly senior members of the judiciary, and if the argument held for one it would hold for the other. However, apparently that is not the case.
The principal argument seemed to be that the process was bureaucratic, long and less than efficacious. I do not think there is any evidence that the latter is the case. There has been no serious objection to those who have been appointed lords justices of appeal since the process has been in place, nor has there been any criticism of their performance. So that is not a justified complaint.
In terms of the length of the process, the hon. Gentleman made great play of what the Constitutional Reform Act says. It is a fact that when any sort of process is set out in statutory form, it necessarily sounds more complicated than it actually is. That is how the law works and how statutes look. In fact, it is a very simple process. The Lord Chancellor requests the JAC to fill a vacancy. The JAC appoints a selection panel, which submits a report to the Lord Chancellor about the person it has chosen, and the Lord Chancellor may reject the selection, require it to be reconsidered or accept it. Of course, once he has exhausted the other options, he must accept the JAC's decision. That is not a difficult process. It is the sort of process that any appointment procedure, other than the most archaic or rudimentary, would follow. It is a simple system of setting up a shortlisting process and then accepting the recommendation of the shortlisting committee in due course. I do not accept that it is an unnecessarily prolonged process.
Obviously, a process, however simple, can be delayed in its execution. It might well be that those criticisms were entirely justified, and if so, I hope the JAC takes them into account and addresses the cause of the delay. I hope, too, that the Ministry of Justice is equally engaged in the process. However, I do not think that we can criticise a process for delay if the cause of the delay is not inherent in the process. That seems to be the crux of the argument. Mr. Timpson might have a justifiable complaint-I do not have the information to agree or disagree with him-but I do not see that the cause of the delay is inherent in the process set out in statute. There should be no substantial delay other than that necessary to do a good job in appointments.
Does the hon. Gentleman think there would be any difficulties with a system in which the Lord Chancellor asks the Lord Chief Justice for the runners and riders for the Court of Appeal and produces a shortlist? Would that produce a different list? If so, why?
In the case of the current Lord Chancellor and Lord Chief Justice, the difference would probably not be very great. However, the hon. Gentleman knows his history, and he knows that the history of judicial appointments has not always been a good one. He knows that, in the past, some Lords Chancellor have blatantly abused their position in respect of judicial appointments. He might recall Lord Halsbury, who had a fearsome reputation for advancing the careers of those who shared his friendship or political persuasion. There are many other examples.
The House should identify with-and it has done so in the process proposed in the Bill-a system that moves us away from the old-school club, from the magic circle and from decisions made between chums in fine dining rooms about who to put forward. That touches on one of my great criticisms of new clause 22: it does not propose an alternative process for the appointment of Court of Appeal judges; the suggestion is simply that they will "emerge"-I have heard that expression used several times in this debate. Well, we know what emerges from such a process: people who are male, who are educated in certain institutions, who share a commonality of background, but who do not necessarily represent those with the greatest merit for judicial appointments and who certainly do not represent the diversity that is beginning to develop, quite rightly, among the judicial, and indeed lawyer, populations in this country.
Mr. Heald makes an important point about how the situation has now developed-he applauded it, and I know he is genuine. However, he cannot then have a process that, at the end of the day, depends on who someone knows, rather than on a proper, transparent appointment process.
It is one thing to hark back to the Victorian period, but the ladies justices of appeal, who have been so successful in recent years, were all appointed under the old system.
But not enough of them. And look at the Supreme Court-there are not enough there! We cannot hold up the current population in the higher levels of the judiciary and say that it reflects modern Britain. However, it is not because of a paucity of candidates that we cannot address that situation, which is why I think it is important to have the judicial appointments system as it currently is.
I agree with the Law Society, which rejects the proposal from the hon. Member for North-West Norfolk. It says:
"The fear must be that there would be a reversion to the old system of secret soundings and appointment by the Lord Chancellor. That would be a wholly retrograde step."
I, too, believe that it would be. I am surprised that the proposal has been put forward, not just because it is so partial-it would abolish the process for only one class of judicial appointment-but because of the effect that it would have in terms of reversion.
On the written test, I am clear that there might be arguments on both sides. Criticisms have been voiced in legal circles about the tests, although some of them sound rather precious-as if there is some indignity involved in taking part in a proper appointments process. Senior appointments in other fields involving written tests, or something similar-presentations and so on-are made every day of the week. Nobody else sees it as an affront to their dignity to apply for a job and go through a proper selection process. Nobody else, whether a head of human resources or of a finance department, when they apply for a job as a chief executive, feels it an indignity to be known to be applying for a job and going through a selection process that might involve tests of some kind.
There is an awful lot wrong with ministerial appointments, but let us not divert ourselves by discussing what is wrong with those. The hon. Gentleman might well be right-but there we are!
In any case, the sort of person who will be put off by the process is the sort of person whom I am not sure I want as a judge, because it suggests that they have such high regard for their own dignity that they perhaps could not do the job as I, and many others-I think-would want them to do it. I note again the partiality of the new clause. In this case, it deals only with the selection procedure for puisne judges, and not other selections that the JAC makes. They alone would not have the written test.
There is another point here, and it is the exact opposite of what the hon. Member for North-West Norfolk said. He argued, I think, that the written tests will present an obstacle to diversity in the appointment of judges. That is the reverse, of course, of what the Law Society thinks. It says that they will be an assistance, and I think that they probably will be too. They will be an assistance to people who do not fit what has been-and I hope is no longer-the conventional view of what a judge ought to look like, because they provide an objective way for candidates to demonstrate that, whatever the preconceptions of those making the appointment, they have the technical ability, the level of judgment and the facility to perform in the way required of a judicial appointment. There is clear evidence that that process is helping well qualified, able and meritorious candidates to make progress in this area when otherwise they would not.
But does that mean that the procedures cannot be improved? I am sure that if I had the ability, I could look at the written tests and see areas where they could be improved. Indeed, it would be remarkable if they could not be. However, I cannot see it as an affront to a well qualified barrister to ask them to go through a simple process before appointment or candidacy as a judge. I do not see engaging in such a process as below their self-esteem; indeed, for some candidates it is a benefit and helps to assess people who might otherwise not be considered as suitable for judicial appointment.
On the basis of both those arguments, I am not persuaded by the case put forward by the hon. Member for North-West Norfolk. I fear that he seeks to take us backwards, to an era when the magic circle did everything, when everything was decided by nudges and winks, and when what emerged was the same old type of person, who conformed in every way to the same old image of a judge. That is exactly what this House has been trying to avoid in the legislation that it has put in place over recent years.
May I start by welcoming you to the Chair, Mrs. Anderson? You have assumed it since we began this debate, and although that might seem like a long time ago, I would still like to take this opportunity to welcome you to it.
I congratulate Mr. Bellingham on his marathon tour of the horizon, as I think the translation goes. He ranged very widely indeed. I congratulate him in particular on his accomplishment of spending 30 minutes advocating what he described as a modest step. If I take it rightly, the reason he spent so much time on it is that he was treating the issue as a microcosm of what he and some of his colleagues who intervened on him see as wrong with the Government's constitutional reforms. He was right to treat the issue as a microcosm of different attitudes towards constitutional reform, because his approach, as seen in his colleagues' interventions on him too, reflects precisely the problems with the Conservatives' approach to constitutional reforms: a mistrust of the British people, a mistrust of change and a misunderstanding of the consequences of their own advocacy.
Jeremy Wright, who has now wafted off somewhere- [ Interruption. ] No, he is still here, on the Front Bench. He said that he thought that the issue was a microcosm of how the Government did not know where we were going. He is wrong, because we know precisely where we are going in all the areas covered by new clauses 20 and 22. What lies at the heart of the arrangements that the new clauses seek to alter is the principle of the separation of powers and the independence of the judiciary from the Government, which is fundamental.
The hon. Gentleman may not recognise those principles; he may not think them important. But we recognise them and we think that they are fundamental to the health of our constitution. They are particularly important now, in what many commentators have described as a constitutional crisis. People have lost trust in the processes of their democracy, including those in this House, and in Members of this House. We know that, and every Member knows that we have to change that.
One of the key things, as we take forward a programme of constitutional reform that all parts of the House recognise has to be undertaken, is that power should never be concentrated in one place. The best protection against the arbitrary or absolute use of power is the separation of powers-in other words, the diffusion of powers.
Is not the fault in the Minister's thinking the fact that, in Britain, that has never been our way of doing things? In Britain, all the power in the country is focused in the Cabinet, where we had the Lord Chancellor, a judge who spoke up for the judiciary, the Leader of the House, who spoke up for the Back Bencher, and the Attorney-General, who spoke up for the legal profession. That is an odd way of doing things, but it was our way, and now the Minister has broken it.
With all respect for the hon. Gentleman, his understanding of our constitutional history is flawed. He is right that in this country we have always evolved, rather than had revolutions, although there have been great disjunctions in our political history-far more than we perhaps realise-and there has been a certain fuzzy logic about our arrangements. Nevertheless, there has always been a logic. Montesquieu, the great proponent of the separation of powers, took his inspiration from the way this country operated. I am proud to say that this country has always followed the principle that healthy societies are democracies in which power is diffused as widely as possible. All parts of the House can agree on that.
That is fundamental, and it is precisely the area at which the measures that the proposed new clauses would overturn are directed-that is, the independence of the judiciary. It is profoundly important that we do nothing to harm that principle and that, as far as possible, we pursue the principle of the separation of powers. It is important not only that powers should be separated in practice, but crucially that they are perceived and believed to be so by the people we all serve.
I agree with the Minister that there are elements of separated powers in Britain, because each of the institutions has fought for its rights. The judges fought for theirs, Parliament fought for its right over the King, and so on. However, the compromise was that we had to have representatives of all the main interests right at the heart of power, at the Cabinet table, because the Executive are not separate from our Parliament. The Government fell into error by breaking the role of the Lord Chancellor, and that is why we have to have a massive concordat and a great big Bill to deal with this. I still worry that Ministers do not understand that we do not have a true separation of powers, as they do in America; that is not our system.
Of course the hon. Gentleman is right. We do not have a written constitution in which these things are formally codified, although we have elements of codification in our constitution. He is right to say that this is a complex issue. Inevitably, the patterns shift over time. The courts arrogate powers to themselves, for example, and Parliament tries to get power back from the Executive. Under this Government, the Executive are giving power away to Parliament. This is a constant process that ebbs and flows and, in among the inevitable conflicts and tensions that arise, I believe that we have a healthy democracy. We have to prove that in the months and years ahead. We have to reinvent our democracy for ourselves collectively, and we must ensure that the people we serve know that that is what we are here to do.
We broadly agree that, as we do not have a written constitution, these matters are flexible. However, the goal of diffusing power as widely as possible and, in this context, maintaining the robust independence of the judiciary is fundamentally important to the liberties of the British people.
Is not the central thesis of the argument put forward by my hon. Friend Mr. Heald that if it ain't broke, don't fix it? The problem here is that the Government have embarked on a programme of constitutional reform with regard to the judiciary that they did not need to start and that they have no idea how to finish. The Minister cannot possibly argue that the independence of the judiciary was weak before these reforms and is stronger now. The judiciary challenged Executives of both political colours in a robust way well before the Judicial Appointments Commission was thought of.
I am grateful to the hon. Gentleman for that intervention, because I was about to come to precisely that point. I would just say that clichés are not really a maxim for constitutional reform, but I shall rephrase that, and say that we should not approach constitutional reform in this country as engineers with a blueprint into which everything has to be shoehorned. If that is what he is saying, I agree with him. He is nodding. We should approach it as physicians, healing what needs to be healed and encouraging preventive medicine. We need to be fit, and constantly to respond to the needs of the people we serve.
The gist of the arguments in favour of the new clauses is that the system was good before, so let's not change it. I agree with the point made by the hon. Members for North-West Norfolk, for North-East Hertfordshire (Mr. Heald) and for Rugby and Kenilworth that our judiciary has comprised many individuals of surpassing excellence. The hon. Member for North-East Hertfordshire listed many luminaries of the bench, and we look back on their judgments and see their wisdom, their command of the law and the way in which they developed the common law. Of course, no one could possibly be anything other than full of admiration for the work that they have done over decades and generations. The hon. Gentleman is right about that. So, too, is Mr. Heath when he says that we should not be complacent about these things, however. Just because we have a list of luminaries, that does not mean that the system is perfect. Of course it is not, and we should always strive to do better. That is my response to the hon. Member for Rugby and Kenilworth. The fact that the system was good does not mean that it cannot be better.
I urge hon. Members to focus on this point: the system should not only work but be seen and believed to work in accordance with the fundamental principles of the British people. We have to give the British people confidence in the system. It is not enough that the hon. Member for North-East Hertfordshire thinks that those judges have been brilliant; the people we serve have to believe it as well.
May I support the Minister even further? It is clear to those who have studied the judiciary over long periods that the quality of judicial appointments under the old system was highly dependent on the quality of the Lord Chancellor of the day. There were some immensely good Lord Chancellors, but, to be frank, others were not so good.
I am grateful to the hon. Gentleman who, as always, brings a great deal of learning and knowledge to our proceedings. He is right. We have to be clear about the purpose of new clause 20: it is to return to the old system. Various points are made about the role of the Judicial Appointments Commission, but even in its own terms-and the terms of the argument made by the hon. Member for North-West Norfolk-the provision is flawed. The hon. Gentleman quoted a letter from an anonymous judge, although I am not quite sure whether this was a High Court judge. The hon. Gentleman does not want to clarify that, so let us call him the anonymous judge of whatever level. He said that these appointments would be made by people with no experience of these matters, so let me remind the hon. Gentleman what happened before our reforms were put in place-the position to which he wants to return-and what happens now.
Previously, these judges were appointed by the Queen-that remains-on the recommendation of the Prime Minister. According to our anonymous judge, the Prime Minister presumably has no experience relating to the people being appointed. The advice of the Lord Chancellor was also relevant, and he may well have had some experience before the reforms. The Lord Chancellor consulted the various heads of division; that was the role-they were consulted, and that was it. What happens now is that the Lord Chief Justice takes part in the proceedings and the Constitutional Reform Act 2005 establishes the selection panel-this is what the new clause would abolish-chaired by the Lord Chief Justice who I think all Conservative Members would accept has had day-to-day experience throughout his working life. [Interruption.] The hon. Member for North-West Norfolk might want to listen to this, as he seemed to have forgotten it in his remarks.
As I say, the Lord Chief Justice chairs the selection panel, so I assume that the anonymous judge whom the hon. Gentleman quoted would be content with that. The Lord Chief Justice or his nominee chooses another judge-again, I hope our anonymous judge would be happy with that-and another lay member of the JAC. This system therefore puts two judges, with all the experience that the hon. Gentleman wanted to see deployed in the appointment of lords justices of appeal, in the driving seat in the selection of those judges. That is precisely what the new clause would remove. Even in terms of the hon. Gentleman's own argument, it does not fly.
There are enormous benefits from having the Judicial Appointments Commission, but Mr. Timpson has made various complaints about it. I would like to reinforce what the hon. Member for Somerton and Frome said to him when he pointed out that the fact that a system may not work perfectly does not mean that we have to ditch the whole system; we simply have to improve it. We have to decide first whether the system we have is better than the one we had before-and I think that it is, unarguably. It is unarguably better because it ensures greater levels of independence and transparency in the appointment process. I do not understand, particularly nowadays, how anyone-even those on the Conservative Benches-can argue against having greater independence and transparency in an appointments process.
To clarify, the JAC appoints candidates solely on merit, so the various innuendos we heard floating around that judges were appointed on criteria other than merit are not right. This system works and continues to work well; of course it can work better; that is what we all want it to do.
I could go through various arguments for and against the written tests. As hon. Members have said, there are arguments both for and against them, but it is worth bearing in mind that some recent selection processes had up to 1,000 candidates applying. We need a sifting process to deal with that. As to the comments about costs and all the rest of it, I ask hon. Members to reflect on how they would carry out the sift. Having a personal system of interviews is likely, as a first sift, to be considerably more expensive than a written test. Every business has to do this and the civil service adopts similar processes for its fast-stream.
The key point is that I am deliberately not going to comment on the efficacy of the written tests. I invite hon. Members to reflect on it for themselves. The reason I am not going to do that is that doing so would be another instance of the Executive trampling into terrain that should properly be the preserve of the independent Judicial Appointments Commission.
"I will ensure that the definition of merit should be for the commission itself and not for Ministers."-[ Hansard, House of Lords, 8 March 2004; Vol. 658, c. 984.]
The Act went on to recognise that, and the importance of the JAC and the judiciary, by providing that the JAC should determine its own selection processes. That is right and proper. That is our position, too. The JAC should determine its own processes. There are arguments for and against, which we could have until 7 o'clock, but I do not intend to do so.
When I began my remarks, I referred to the traditional Conservative attitude towards constitutional reform. There is another tradition of Conservatism, which I invite the hon. Member for North-West Norfolk to discover: the tradition of progressive Conservatism of Disraeli and Lord Randolph Churchill. They would never have pressed such a new clause, so I invite the hon. Gentleman to rediscover that tradition and withdraw his new clause.
I will be brief. The Minister has been his normal charming self. I do not agree with everything he said, but I listened carefully to his comments on our new clause 20, and to the compelling points of Mr. Heath. Although we in no way resile from the arguments we put forward, I accept what the Minister has said. On that basis, I will not press new clause 20, but I would nevertheless like to put new clause 22 to the vote at the appropriate stage.
I beg to ask leave to withdraw the clause.
Clause, by leave, withdrawn.