Amendment 11

Part of Parliamentary Constituencies Bill - Report – in the House of Lords at 3:15 pm on 8th October 2020.

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Photo of Lord Thomas of Cwmgiedd Lord Thomas of Cwmgiedd Chair, Consolidation, &c., Bills (Joint Committee), Chair, Consolidation, &c., Bills (Joint Committee) 3:15 pm, 8th October 2020

My Lords, Amendment 11 seeks to put in place matters essential to dealing with the important consequences of automaticity. As the decision of the Boundary Commission will become final, and there will be no parliamentary veto, it is essential that the commission is, and is seen to be, entirely independent and so is its appointment processes. Although I have taken up the kind invitation of the Minister to discuss this issue with him, and have done so very cordially on two occasions, the Government have made it clear that they consider that no change is necessary to the current position. I do not believe that this accords with constitutional principle, hence I will seek to take the opinion of the House on the amendment.

In many senses, the new role of the Boundary Commission will become very much nearer to that of a judicial tribunal: sitting in a panel of three, gathering and hearing the evidence and coming to a decision. There will be no appeal from that decision and the other two branches of the state must accept it, just as they accept decisions and judgments of judges. The amendment therefore seeks to ensure that, in a manner akin to the appointment of judges, the appointment of the boundary commissioners is wholly independent and that that independence is guaranteed during their period of office. It seeks to do so in three ways, and I will deal with each in turn.

The first of these is the appointment of the deputy chairman. Under the 1986 Act, the deputy chairman must be a High Court judge. In Scotland and in Northern Ireland, that judge is appointed by the head of the judiciary in those jurisdictions—the Lord President and the Lord Chief Justice of Northern Ireland. In England and Wales, for historic reasons, the appointment is made by the Lord Chancellor. That was all very well with the old-style Lord Chancellor in 1986 when the Act was passed. At that time, he was head of the judiciary of England and Wales. There was, therefore, nothing anomalous in him making that appointment, like he appointed all judges. However, that all changed in 2005 with the reform of the office of Lord Chancellor. The Lord Chancellor ceased to be a judge and head of the judiciary. He became, in essence, a political Minister. All allocation of judicial responsibilities passed to the Lord Chief Justice and appointments were made independently by the Judicial Appointments Commission. For some reason—no doubt oversight—the position was not changed. Although the Lord Chancellor consults the Lord Chief Justice, the time has come when it should now be made clear that the decision is that of the Lord Chief Justice. We should bring this provision into line with constitutional principle. The appointment of a judge who chairs a tribunal which makes the final determination of a series of sensitive issues should be in the hands of the Lord Chief Justice, just as in Scotland and Northern Ireland. There is no reason for England and Wales to be treated differently.

As I understand it, the objection is not grounded in constitutional principle but on the view that, as all judges of the High Court go through a rigorous selection process, they must all be qualified and therefore appointable. It is, therefore, open to a political Minister to select one of them. It could not possibly be disputed that it would be the antithesis of justice if a political Minister could select a judge to try a case, let alone one where there was a party-political consideration. In principle, the position of the Boundary Commission is no different, but there is one further consideration. There is a danger to the independence of the judiciary. A decision of the Boundary Commission is always open to attack on grounds that the chair, although a judge, had been selected by a political Minister because he had shown himself sympathetic to the Government, or had some distant connection with them. We all know how the media can find those connections. We should do all we can to avoid the risk of such an attack, because attacks are so damaging to the rule of law.

I turn to the second part of the amendment on the appointment of the other two commissioners. The Act specifies that the other two members of the Boundary Commission are to be appointed by the Secretary of State, but says nothing about the manner of appointment. As I understand it—I pay tribute to Minister’s officials for their helpful assistance on this—the other two members are appointed under a process set out in the Government’s Code on Public Appointments, promulgated under the Public Appointments Order in Council 2019.

That process, as for any other public appointment, gives the Minister extensive powers: as your Lordships will know, the Minister can appoint the panel that selects the commissioners; he must be consulted at every stage; he can reject names; he can ask for the competition to be rerun; and he can even make an appointment of his own choice, without a competition, or appoint someone whom the selection panel does not think appointable, though he has to make disclosures in respect of that. Furthermore, the code does not bar the candidacy of a person who has had significant political activity, though this must be disclosed and will be investigated by the appointment panel. If those conflicts can be managed, it will not form a bar. I respectfully ask the House to consider that such a method of appointment is no longer appropriate for the new automaticity process.

Amendment 11 seeks to put the appointment on a clear statutory basis. The selection panel must contain a deputy chairman—current practice envisages this, but it should be made statutory—and the other two people who are to form the appointment panel should be appointed independently by the Speaker of the House of Commons. The panel should determine the process and should then select one name for each post. The Minister has a role: he can ask for reconsideration and even reject the name, providing he gives reasons, of course.

The process that the amendment sets out is modelled on the process for the appointment of judges, for, as I said at the outset, the Boundary Commission will be akin to a judicial tribunal. As I understand it, the argument against this part of the amendment is that the present system is entirely adequate, but I do not think that this takes into account the new and distinct position that requires the commission’s independence to be put beyond doubt. Furthermore, it is argued that having a different process for the appointment of the two commissioners might damage confidence in the public appointments system. The answer to that can be put briefly: the fact that judges are appointed by a special process does not call into question the public appointments system. It is a process designed for an office where the officeholder makes decisions to which there is no appeal, and which the other two branches of Government must accept. This process is designed to follow that. In reality, the Boundary Commission is a tribunal that is no different to a judicial tribunal. The process for appointing judges has worked well; it has not affected confidence in the public appointments system, and there is no reason think that the proposed amendment would affect confidence in public appointments in any other way.

I turn to the third part of the amendment on the term for which the appointments are to be made. The amendment does not specify the length of the term and, in light of the proceedings earlier in this debate, I am glad that it does not. All the 1986 Act does is to provide that the two members hold their appointments under the terms and conditions determined by the Secretary of State. My amendment seeks to provide that the appointment be for a non-renewable term. There are two reasons for this, which can be explained briefly. First, as has been pointed out by Professors Robert Hazell and Alan Renwick of the Constitution Unit of University College London, a vital safeguard for independence is that the appointment is for a fixed, non-renewable term. Like judges, commissioners must have security of tenure for the whole period necessary for them to carry out their functions. They cannot be put at risk of being subjected to pressure or undue influence by the prospect of not being reappointed or by being offered reappointment. As they have pointed out, there are numerous posts that are now made on non-renewable fixed terms: the Civil Service Commission, the Commission for Public Appointments, HOLAC and many others.

Amendment 11 simply seeks to import this principle into the terms of the appointment of the two members of the Boundary Commission. The only objection seems to be that having a renewable term will make it easier to attract good candidates and then review their performance to ensure they are doing their job properly. In my view, the second reason is plainly contrary to principle, and the first is untenable, given the new cycle of the work of the Boundary Commission. Let me deal with that point: the move to an eight-year or 10-year cycle for the Boundary Commission—I do not wish to commit myself to either at this stage, but I take it now to be 10—means that the commission will have a period of intense activity for two to three years every 10 years. Thus, appointing a person to the office for a single term, probably for eight or 10 years, will better fit into the new cycle, rather than the shorter-term appointment renewable for a further term. The longer term will not discourage the appointment as any candidate will know of the cycle and the period in which there will be intense activity. When they are not active, they will have time to obtain the necessary skills and experience. Each of these three ways set out in the amendment will ensure that the Boundary Commission, in its new role, is fully independent and seen to be so. I beg to move.