New clause 20 — Lords Justices of Appeal

Part of Oral Answers to Questions — Prime Minister – in the House of Commons at 3:30 pm on 4th November 2009.

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Photo of Michael Wills Michael Wills Minister of State, Ministry of Justice, The Minister of State, Ministry of Justice 3:30 pm, 4th November 2009

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.

On Second Reading of the Constitutional Reform Bill, the Lord Chancellor said:

"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.

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