New clause 20 — Lords Justices of Appeal

Part of Oral Answers to Questions — Prime Minister – in the House of Commons at 3:00 pm on 4th November 2009.

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Photo of Oliver Heald Oliver Heald Conservative, North East Hertfordshire 3:00 pm, 4th November 2009

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-

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