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.
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