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Procedure for Appointing Judges

Volume 664: debated on Tuesday 8 October 2019

[Mr Virendra Sharma in the Chair]

I beg to move,

That this House has considered the procedure for appointing judges.

It is a pleasure to serve under your chairmanship, Mr Sharma. I look forward to a positive and perhaps consensual debate on the procedure for appointing judges and the importance of those procedures being consistent with the independence of the judiciary, the separation of powers and the rule of law.

I sought this debate because I was concerned about certain headlines that appeared in the press in the days following the Supreme Court judgment in the Cherry and Miller cases. I pay tribute to my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry) for her work on the Cherry case, as well as the legal team, which did such great work. I was pleased to be one of the MPs party to that case. The headlines I was concerned about came in response to a decision that the Government did not particularly like. They were perfectly entitled not to like the decision, but they were not entitled to consider changing the system for appointing the Supreme Court judges.

For example, a headline in the Daily Mail read:

“Geoffrey Cox suggests UK could move to US-style political vetting of judge appointments in the wake of the Supreme Court’s prorogation ruling”.

The Daily Telegraph ran the headline:

“Supreme Court justices could be appointed by MPs in wake of Brexit ruling, Geoffrey Cox says”.

In a slightly more understated fashion, The Law Society Gazette headed its report with certain exchanges in the Commons Chamber with the headline:

“Supreme Court appointments may need MPs’ approval—attorney general”.

In fairness to the Attorney General, it took a degree of journalistic licence to get from what he said in the Chamber to what was reported. Those headlines arose from exchanges in the Chamber during an urgent question tabled by my hon. and learned Friend the Member for Edinburgh South West.

Does the hon. Gentleman agree that the independence of our judiciary and the way in which we appoint them is admired right across the world, and that that fits in with our role in the Council of Europe, which is there to uphold the rule of law?

I agree with the hon. Gentleman wholeheartedly. I will return to that point later. The exchanges that sparked those headlines came when the Attorney General was asked by one of his Back Benchers whether it was time for MPs to get involved in approving appointments at the Supreme Court level. The Attorney General responded:

“I do think that we are going to have to look again at our constitutional arrangements…there may very well need to be parliamentary scrutiny of judicial appointments in some manner.”—[Official Report, 25 September 2019; Vol. 664, c. 666.]

As I said, I think the subsequent headlines required considerable journalistic licence. It would be useful if the same headline writers would publish the subsequent remarks that the Attorney General made during Attorney General’s questions last week, when he said that

“certainly US-style hearings—would be a regrettable step for us in our constitutional arrangements.”—[Official Report, 3 October 2019; Vol. 664, c. 1360.]

Similarly, I welcome the Lord Chancellor’s words this morning at Justice questions in defence of judicial independence and against any notion of political appointments.

With impeccable timing, as soon as I received notification that I had secured this debate, I received a written answer from the Minister—I welcome him to his place—confirming that there were no plans to change the judicial appointments processes. The answer continued:

“Our judges are selected following a rigorous, independent, merit based process which is key to maintaining the quality, integrity and independence of our world class judiciary.”

That answer echoed the point made by the hon. Member for Henley (John Howell).

In the light of all those assurances, I wondered whether it was worth proceeding with this debate, but I think it is. I am grateful to hon. Members for staying to take part. It is still relevant to proceed because, despite the words of the Minister, the Attorney General and the Lord Chancellor, one fairly significant member of the Government does not seem to be singing from quite the same hymn sheet—perhaps not for the first time. Between the Attorney General’s original comments and his clarification, when the Prime Minister was asked about the consequences of the Supreme Court judgment by The Sunday Telegraph, he said:

“It will take a while to be worked through. But I think, if judges are to pronounce on political questions in this way, then there is at least an argument that there should be some form of accountability.

The lessons of America are relevant.”

Whether the Prime Minister was thinking about putting the UK on the path to a US-style system, under which Supreme Court judges are overtly political appointees, as The Sunday Telegraph interpreted it, only he knows—I very much hope not.

The pot was stirred even more firmly by a former Conservative leader who told The Times at the end of last week that

“more and more people are beginning to ask, with some legitimacy, whether it might be time to hold hearings as they do in America to find out what their political views are and what we can expect. We need to know more about these people.”

I could not disagree more strongly with that statement. A better response to the Prime Minister’s comments came from a former Cabinet colleague of his in an article for The Sunday Times this weekend:

“If he means we should learn from the weaknesses of the US system, he is absolutely right. If he means we should copy that system, he is wrong. It involves far too much political interference in the appointment of judges and also too much judicial law-making.”

My ambition in this debate is, therefore, quite modest: to achieve as broad a consensus as possible, saying clearly and loudly that we believe in the rule of law, the separation of powers and the independence of the judiciary; that our appointments processes must always respect that; and, specifically, that we reject the politicisation of the judiciary, in particular through US-style appointments processes. The Prime Minister and some of the less sensible members of the Conservative party should stop stirring that pot.

I am not saying that the appointments processes in the UK are absolutely perfect, whether through the Judicial Appointments Commission of England and Wales, through its Northern Ireland equivalent, through the Judicial Appointments Board for Scotland or through the appointments commissions that are convened for the purposes of selecting Supreme Court justices. No system is perfect, and they have all been criticised. It is absolutely right that we should keep those systems under review and scrutinise them to ensure that they deliver the appointment of the best judges.

Other hon. Members may want to make suggestions about how we can improve each of those systems, including to better protect judicial independence or to improve the scrutiny and accountability of judges through ombudsman and complaints processes. I have no doubt that more can be done to improve diversity on the bench, for example.

I congratulate the hon. Gentleman on securing this important debate, and I join him in congratulating the hon. and learned Member for Edinburgh South West (Joanna Cherry) on the stunning cases that she brought over the past two weeks. Regarding diversity, the old system required the Lord Chancellor to make all the appointments of the judiciary on the advice of civil servants. Does the hon. Gentleman think that the new system, with the Judicial Appointments Commission, has gone far enough in reflecting the diversity of the community at large? Obviously, gender diversity has increased, because we have a woman President of the Supreme Court, but what about ethnic minority diversity?

I do not have a ready answer to that. The numbers show that it may not have gone far enough. I agree that there is more to be done to ensure that we have a bench that reflects the society that it serves, but I am not sure what the means and mechanisms for that should be.

My key point is that we should never consider or undertake the politicisation of the appointments processes, because the arguments that have been put forward in support of political interference in the appointments process are flimsy and, I would say, misguided. There is an assertion that because judges have suddenly got involved in matters that are deemed to be political, their political judgment should be open to scrutiny by parliamentarians before they are allowed to sit, but to take that view is to misunderstand the role of judges completely. Although what they decide has important political consequences, the decisions they make are not political, but legal. Therefore, a candidate’s legal abilities alone need to be assessed and compared to those of their peers.

I congratulate the hon. Gentleman on securing the debate, and I agree with much of what he has said. I support the separation of powers and the independence of the judiciary. Many judges—particularly those with academic backgrounds—may, although they were appointed through an independent process, have expressed views in the past that could be considered political; in some cases, those may be historical political views. That may lead some people to be concerned about the politicising of the judiciary and the potential for judges’ views to influence their decisions. How would the hon. Gentleman address the perceived concerns of political bias on the part of some judges because of views they have expressed in the past as academic lecturers or in other forums?

I welcome that intervention, and the hon. Gentleman raises an interesting question. There are a couple of things I would say. First, we will never have a judicial bench that does not have political opinions. Just because we do not necessarily know what those opinions are does not mean that members of the judiciary are not normal human beings who have political views. Secondly, all we can do is to ensure that candidates are assessed, like all others, by an independent judicial appointments board to ensure that appointments are made on the basis of their ability to do the job as independent judges. It may be that certain individuals have expressed views such that that is called into question, but we have independent panels in place that are designed to filter out any suggestion that candidates are making decisions for political reasons, rather than simply on the merits of a particular case.

As Sir David Edward, a former judge in both the European Court of Justice and the Court of Session, put it in a recent Scottish Legal News article:

“Many judicial decisions have political consequences but it is a quite different thing to say judges have made decisions for political reasons.”

He argued that if there is a lesson to be learned from America, it is the

“malign effect of a system dependent on political or doctrinaire allegiance”.

There is nothing new about judges making decisions that have political implications or cause political controversy—although given some of the recent commentary, people might think otherwise.

It is worth noting that one of the key reasons why judges’ decisions frequently have significant political implications is precisely because this Parliament has required that of them. The Human Rights Act 1998, for example, requires judges to look at whether Acts of Parliament are compatible with the European convention on human rights. Acts of the Scottish Parliament can be literally struck down, not just under the Human Rights Act, but if the Scottish Parliament is found to have strayed beyond its competence under the Scotland Act 1998. The acts of Ministers here and in devolved Administrations are subject to judicial scrutiny. European Union law has also been a ground for challenges. That links with the growth in the use of secondary legislation—legislation that in my view is often not scrutinised particularly well here—which at least has the fallback and safeguard of judicial review.

Increasingly, judges have been asked by this Parliament to take decisions that have political ramifications, but they make those decisions on legal grounds alone, and we should not forget that. Ultimately, the key point is that the different branches of government should provide checks and balances against each other. The judiciary provides a key check against Executive overreach. To my mind, the cases of Cherry and Miller are brilliant examples of that, though perfectly reasonable people can disagree. The point is this: what sort of check does the judiciary provide if it is stuffed with Government or political appointees? It is either a check that is ineffectual in reality, or one that is perceived to be ineffectual, and both matter for the rule of law.

I will finish with a quote from the vice-president of the Law Society, Stephanie Boyce. In responding to the recent controversies, she told The Law Society Gazette:

“An independent judiciary is fundamental to our democracy. The notion of vetting judges for their political opinions is at odds with the whole construction of British justice.”

I very much hope that is something we can all agree on.

It is a pleasure to serve under your chairmanship, Mr Sharma.

I warmly congratulate the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) on securing this debate. I agreed with virtually every word he said, and I hope we can establish a consensus in Westminster Hall. Like him, I was heartened to hear the very clear statement of the Government’s position from the Lord Chancellor in Justice questions today. The hon. Gentleman is right to say that were we to embark on an American-style system of political selection for our Supreme Court or any other court, we would indeed be the poorer for it. Anyone who has seen the farrago that passes for confirmation hearings before the Senate in the United States—a process that diminishes the quality of law and, frankly, if anything, undermines the integrity of its judiciary—would never wish to see that in the United Kingdom. I think the debate is useful, because it perhaps enables us to put a hare that has been set running by one or two people firmly to rest, where it belongs and where it should stay.

Would my hon. Friend make a distinction between the sort of confirmation hearings that we hold as members of the Select Committee on Justice and those in the United States? The ones we hold are very much part of the establishment and are a way of looking at the process, rather than being a way of generating political attacks on the individual.

My hon. Friend is right. There are two misnomers in this sense. Confirmation, in the strict sense of the word, is not really what we are doing. We are scrutinising the integrity of the appointments process, which is an altogether different matter and entirely consistent with our tradition. In the same way, I wonder, were the legislation for the Supreme Court being drafted now, would we call it a Supreme Court, as opposed to a Court of Final Appeal? That has rather unfortunate implications, but that is really what it is. It is not quite like the Supreme Court in the United States, and the name sometimes gives people the wrong idea about its function.

The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East is absolutely right to say that in the recent cases that have attracted press attention, the courts—both at first instance the High Court or the Court of Session and then the Supreme Court—were asked to answer legal questions, and they gave legal answers. It is as simple as that. The judges did their job as lawyers. The attacks on our senior judiciary by some of the press are an outright disgrace and a shame upon this country. They should be called out for what they are: gutter journalism. Would to God that we had a press in this country that had anything like the quality and integrity of our judiciary. We would be the better place for it.

We are fortunate in the quality of our judiciary in all parts of the United Kingdom. We have a rigorous selection process. I am particularly aware of the work of the Judicial Appointments Commission in England and Wales, but I am cognisant of the like work that is done in Scotland and Northern Ireland by their appointments boards. I pay tribute to the work of Lord Kakkar and his colleagues on the Judicial Appointments Commission for England and Wales. The Justice Committee has had the opportunity to observe and scrutinise its work, and it is accountable to us and to Parliament for the process it engages in. Recently it published its report for the year just gone; it is a substantial document that clearly sets out the methodology by which it works and the consequences.

I am most grateful to the Chair of the Select Committee for giving way. May I declare my interest, which I forgot to do earlier, as a non-practising barrister? My wife is a part-time judge. I put this to the hon. Gentleman: with the system we have now—as opposed to the old system, where the Lord Chancellor made the decision himself, and it was only men who were Lord Chancellor in those days—what does he think about laypersons being able to appoint judges to the highest judicial offices when they themselves are not legally qualified? I think the system is working well, apart from the diversity angle, but what does he think, not only as Chair of the Committee but as a lawyer, about people who are not legally qualified being able to opine on giving posts to those who are the most legally qualified?

The right hon. Gentleman reminds me to refer Members to my entries in the Register of Members’ Financial Interests. I think I would approach the matter he raises in this way: for transparency and because the judiciary needs the confidence not only of the profession but of the wider population and the society it serves, there is a proper role for a lay element in the selection process. The set-up we have in England and Wales with the Judicial Appointments Commission, which has lay members together with experienced practitioners and members of the judiciary, is probably a pretty fair balance as far as that is concerned.

I am most grateful to the hon. Gentleman for giving way for a second time and enabling me to tempt him a little further. The cut-off age has deprived us of some pretty distinguished judges. Does he think we should go that step further and raise the limit from 70 to 75? Can I tempt him down that road?

The right hon. Gentleman tempts me and I fall into the trap willingly: I entirely agree with him. It is a great shame that we have seen the retirement recently of very distinguished and able judges simply by effluxion of time. Lord Thomas of Cwmgiedd, Sir Brian Leveson, Lady Hallett—I was delighted to see her gain a peerage—and others still have much to offer the bench. When we have real difficulty with the recruitment and retention of the highest quality judges, it seems absurd to me to set 70, which most of us would regard as the new 50—certainly those of us who are getting nearer to it—as the limit. We are cutting people off at the height of their professional powers. They have much more to offer and, interestingly, will very often be found, perfectly legitimately and properly, exercising their skills as arbitrators or mediators in commercial jurisdictions, when they would be very happy to continue exercising those skills in high public office as members of the judiciary.

I earnestly hope that one message the Minister takes back to the Lord Chancellor, who I know is apprised of the matter, is that if we have a legislative opportunity in the new Session, we should tack on a clause to increase the judicial retirement age to 75. That would be warmly welcomed. There is more that we need to do at the other end in terms of diversity. There have been improvements, but the right hon. Member for Leicester East (Keith Vaz) is right that we need in particular to improve black, Asian and minority ethnic representation in the judiciary. There are signs of improvement, but there is much more to do.

We have made improvements in relation to gender diversity, but ethnic diversity is something that we still need to work on, as well as perhaps social background more generally. As a member of the Bar, I recognise the potential value of recruiting solicitor judges in broadening the social background base of the profession. There are now some very good and able solicitor judges, and I hope that we can encourage that too.

In a short speech, I wanted to reinforce what the Lord Chancellor, who is admirably playing his role in defending the independence of the judiciary, has said, and to recognise the point fairly made by my hon. Friend the Member for Henley (John Howell) that the independence of the judiciary is not just important in terms of the checks and balances of our own constitution, which are critical, but wholly consistent with our international obligations. My hon. Friend serves as a distinguished member of the Parliamentary Assembly of the Council of Europe, which is something that I have had the pleasure of doing, as have you, Mr Sharma. We all know that Britain is looked up to by our colleagues because of the independence of our judiciary. How would we be able to exercise restraint on some of the emerging democracies in eastern and central Europe, where such independence is not always to be found, were we to do anything that diluted our judicial independence?

It is important that we maintain judicial independence to meet our obligations under article 6 of the European convention, never mind article 14 of the international covenant on civil and political rights and, of course, the UN basic principles on the independence of the judiciary. If we want Britain to remain a world leader in high esteem, maintaining the independence of the judiciary is critical. I hope that the debate will enable us to send a message to all at large that we recognise the checks and balances that are implicit in, and that underpin, our constitution, and that the separation of powers, the independence of the judiciary, and the acceptance of its independence by all, whether we agree with an individual decision or not, are crucial to our national wellbeing.

It is a pleasure to serve under your chairpersonship, Mr Sharma. I congratulate my hon. Friend the Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) on securing this important debate. What a pleasure it is to speak after the Chair of the Justice Committee, the hon. Member for Bromley and Chislehurst (Robert Neill).

I will begin by declaring a few interests. Not surprisingly, most of us speaking in the debate are lawyers, and I am a non-practising member of the Scottish Bar. I am also vice-chair of the all-party parliamentary group on the rule of law and, as has been kindly mentioned by others today, I was the lead petitioner in the case that came to be known as the Cherry case, because that is my surname, which went to the Supreme Court. I am also involved in litigation currently proceeding in Scotland under the name of Dale Vince. I declare my interest, having been supported by the Good Law Project and the generosity of Mr Vince, who is a green energy entrepreneur.

Today’s debate has come about because of comments prompted by ill-informed fallout from the decision of the Supreme Court on Prorogation. My hon. Friend the Member for Cumbernauld, Kilsyth and Kirkintilloch East laid out the circumstances in which that happened. It is a particular matter of regret that on 11 September Downing Street sources briefed The Sun that

“legal activists choose the Scottish courts for a reason”.

Well, I chose the Scottish courts because I live in Scotland. The implication that the Scottish courts are somehow politicised is offensive as well as ignorant. There is, however, a tradition in Scotland going back to the declaration of Arbroath and the claim of right that neither the monarch nor the Government are above the law. I was very proud to see that tradition followed by the Scottish courts.

It was also great to hear Lady Hale, the President of the Supreme Court, remind us that it is also part of the English tradition, when she said that

“the courts have exercised a supervisory jurisdiction”

over the lawfulness of acts of the Government “for centuries”. As long ago as 1611, the court held that the King, who was effectively the Government, had

“no prerogative, but that which the law of the land allows him”.

I join others in particularly deprecating not so much the press, of which we have come to expect very little, but Government sources—particularly unnamed Downing Street sources, who seem to be cropping up all over the place at the moment—for the anti-judicial and anti-Scottish sentiment that they tried to stir up.

It was also a matter of some regret that a Government Minister, the right hon. Member for Spelthorne (Kwasi Kwarteng), went on television and said:

“The extent to which lawyers and judges are interfering in politics is something that concerns many people.”

He went on to say that

“many people…are saying that the judges are biased”.

He specifically claimed that

“many leave voters...are beginning to question the partiality of the judges”,

while going on to state that he personally believed that the judges were impartial.

As I was sitting here, it occurred to me that a former colleague of ours, albeit from before our time in the House, Humfrey Malins, who was the hon. Member for Woking, was, while he was a sitting MP, a practising barrister and, I believe, a recorder. I do not believe that anybody called into question his impartiality when he was overseeing cases in that role, or indeed subsequently when he stood down from the House, even though he is a committed Conservative. I wonder whether the hon. and learned Lady would like to reflect on that, in the context of what she was just saying.

I was not aware of that. Certainly my party, the Scottish National party, believes that MPs should devote themselves full time to that job. That is why I have been a non-practising member of the Scottish Bar from the moment that I was elected. I would find it rather curious if a Member of Parliament were, in the modern age, sitting in a judicial capacity. I think that would rather interfere with the separation of powers, whereby legislature, Executive and judiciary should be separate. However, I was not aware of those circumstances, so perhaps I should not say any more about them.

Returning to the comments made on television by the right hon. Member for Spelthorne, although it has been good to hear the Lord Chancellor repeatedly assert the independence of the judiciary, including today at Justice questions, it is reprehensible for Government Ministers to attempt to stir up anti-judicial sentiment as in this situation. I totally believe in freedom of speech, and am on the record as being somebody on the left who is very much in favour of it. Sometimes the champions of freedom of speech are to be found very much on the right, but there are some of us on the left, and I would never question anyone’s right to say that they disagree with a decision. However, if a Government Minister or unnamed sources call into question the independence or impartiality of the judiciary, such comments can serve to normalise a crude scepticism that ignores the legally complex and personally demanding work that judges have to perform. That is why we politicians have to be careful what we say. Many decisions in the past have not pleased me, and I have certainly criticised them, but I have not tried to suggest that they were made because the judges were of a different political persuasion to me.

We can do no better than look at one of England’s most respected jurists, Lord Bingham, who said in the Belmarsh case in 2004 that it is wrong to argue that judges are somehow undemocratic simply because they are unelected, or because they are asked to assess the legality of the Government’s decisions. He said that, on the contrary,

“the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself.”

I think what Lord Bingham was really saying is that the very concept of a modern democracy envisages an important role for the courts.

It is particularly important to remember that the decision that was made by the Supreme Court justices was not a political decision; as Lady Hale was at pains to underline, it was a decision on the law. In Scotland’s Court of Session, Lord Drummond Young said in relation to the case:

“The courts cannot subject the actings of the executive to political scrutiny, but they can and should ensure that the body charged with performing that task, Parliament, is able to do so.”

That is what the case was about: restoring to Parliament its function of politically scrutinising the Executive. Those on the right of British politics outside this room who do not like what happened in the Supreme Court should ask themselves how they would feel if a left-wing Prime Minister sitting at the apex of a minority Government prorogued Parliament because it was getting in his or her way. It cuts both ways, and that is why this is a principle of law and democracy rather than a political decision.

My hon. Friend the Member for Cumbernauld, Kilsyth and Kirkintilloch East has already quoted some pertinent comments made by Sir David Edward, former judge of the European Court of Justice. I will also quote Lord Hope of Craighead, former Deputy President of the Supreme Court and a former Lord President of the Court of Session, who said that the suggestion—initially made by the Attorney General—that there might need to be some parliamentary scrutiny of judicial appointments was “wholly misguided”. He said:

“The Supreme Court justices were careful to explain in their judgment”

in the Prorogation case

“that they were not pronouncing on political questions. The issues with which they were dealing, as is the case with all the other issues that come before them, were issues of law.”

He went on to say that vetting judges

“would risk politicising the office which they hold, in the minds of the public”

and would be

“contrary to the fact that political opinion plays no part in the work that they do.”

He finished by saying:

“The guiding principle is that they decide cases according to the laws and usages of this country, and not according to such political views, if any that they might happen to hold.”

Very trenchantly, he added:

“We have nothing to learn on this issue from what happens in the United States.”

Somebody pointed out earlier that there will be some judges in position who have, in a previous life, expressed political views. Of course, in Scotland we no longer have a tradition of political appointments for the Law Officers—they are apolitical appointments—but in the past, we did. Frequently, the Lord Advocate in Scotland would go on to sit on the bench, and he—it was always a “he” in those days—would have been from either a Labour or a Conservative background. However, the crucial thing was that when he took his seat, he took the judicial oath of impartiality, and put aside the politics he had had before to enable him to make impartial decisions on the law. I do not think the ability to do that is confined to men. Thankfully, there are at last plenty of women coming through in the judiciary, both north and south of the border. We would all like to see more, but it has been very important to see a female English judge at the apex of the United Kingdom’s Supreme Court. As others have said, there is still much work to be done to ensure that the diversity of all our communities across Scotland and England is represented on the bench.

I will finish with a quote from almost 15 years ago, when Professor Anthony Bradley was advising the House of Lords Constitution Committee. I am pleased to say that Professor Bradley was my tutor when I was an undergraduate at the University of Edinburgh, 30 years ago; he was then, and is now, a very respected authority on constitutional law in the United Kingdom. Back in December 2005, he told that Committee:

“It is more important than ever that the courts should be able to do justice in an even-handed and impartial manner. Ministers and the Government in general should not seek to blame the judges when the courts make decisions that are adverse to the wishes or policies of the Government.”

All of us who are politicians should aspire to follow that advice. His message is just as important now as it was then, given the fallout we have had from the recent, landmark constitutional cases.

It is a pleasure to serve under your chairmanship, Mr Sharma. I congratulate the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) on securing this debate.

It is fair to say that in the wake of the Supreme Court’s recent ruling, some Government Members and even Ministers began to call for the reformation of the judicial appointments system. That tells us that some of those people—often those with very hard Brexiteer points of view—are not interested in parliamentary sovereignty or judicial independence, and they do not respect our traditions or our democracy. As the Chair of the Select Committee on Justice, the hon. Member for Bromley and Chislehurst (Robert Neill) said earlier, the attack on the judiciary by the media was disgraceful, but, sadly, so were some of the words used and the comments made by Members of this House.

It should be said repeatedly and clearly that the selection hearings of the US system have no place in our democracy, and nor do the highly political workings of the US justices. In the immediate aftermath of the Supreme Court’s ruling, the Attorney General seemed to suggest that Parliament would need to look at a judicial appointments system, although I am pleased to hear that he has rowed back on those comments since making them. Those calling for an American-style process rather than a Supreme Court-style one have little interest in the constitutional frameworks that have been essential to government in this country for centuries.

Although these arguments will not be new to anyone, they perhaps deserve reiteration. The US system is beset with practical problems. It allows the President to nominate judges on an explicitly political basis, and even if we accept that idea—which we do not—the power to nominate is not equally distributed. Instead, the make-up of the US Supreme Court is determined by whoever is President when judges become unable to continue in their role. The make-up of the most powerful court in the land is political and dangerously random, and the result is neither stable nor fair. That holds especially true when an Executive like the USA’s current one chooses not to respect conventions or tradition. As the Chair of the Justice Committee also said eloquently, we have only recently seen the unedifying spectacle of a USA-style confirmation hearing.

There is a great deal to be proud of in our judiciary. Our commercial courts are widely recognised as some of the best in the world; every year, a huge number of international litigators choose to come to the UK because they know they can rely on fair treatment. Last year, our legal sector alone contributed around £26 billion of trade to the UK. Even in our tragically undervalued criminal courts, on the back of yet another week of courts being unnecessarily shut, the judiciary is soldiering on impressively.

I admire the durability and professionalism of our judges, along with the rest of the court staff. They deserve significant credit for propping up a system that I am afraid the Government have done little to support, as shown by those court closures. Only recently, I have received emails from some judges—especially recorders—who say that they are expected to attend different courts in the UK at the last minute. They sometimes cannot do so because of their own work commitments, but they are effectively told that if they do not, their chances of being confirmed as judges may well be impacted. There is evidence, even from the Ministry of Justice’s figures, that the time it takes for court cases to come to trial has recently grown longer, while courtrooms are sitting empty and shut. Despite that, our judges, recorders and magistrates continue to work really hard to support our system, and I commend and thank them for all their efforts.

Despite attempts by some people to find political intent in the recent Supreme Court ruling, the decision was a powerful demonstration of the vital power of a genuinely independent, apolitical judiciary. It ruled without fear or favour, and in doing so it protected our democracy. The judiciary in this country has a long and noble tradition, and it is best that we respect that.

Balanced, learned and direct, Baroness Hale is in many ways the best of that British tradition, but the barriers that she has faced are illustrative of how uneven our justice system still is. For far too long, justices have been predominantly people of privilege with wealthy backgrounds, predominantly men and predominantly educated at private schools. Baroness Hale was only the second woman to be appointed to the Court of Appeal. She is the first female Lord of Appeal in Ordinary and the first female President of the Supreme Court. It should worry us all that women still have to break the glass ceiling. A century on from the Sex Disqualification (Removal) Act 1919, we are still yet to achieve real proportional equality in our public bodies and institutions. The Law Society also agrees that our current system for the appointment of judges should be maintained and not changed.

I hope we can all agree that the US system is clearly a bad one, but perhaps today is an opportunity to focus the debate on how we can alter our judicial appointments system not to make it political, but perhaps to make it more representative. As a young barrister, I saw many hugely talented people who did not fit the accepted demographic of a judge. Some struggled their way to the top; too many did not. There have been encouraging steps as the number of female judges has risen. However, it is important that we do not fall into the trap that many businesses do and focus exclusively on comparing numbers without looking at seniority. Although it is heartening to know that the percentage of female tribunal judges is nearing 50%, that falls to 32% for court judges, and for high court judges the figure is well under 30%.

The issue is even more glaring in the case of black and ethnic minority members of the judiciary. Reading through the judicial diversity statistics this year, I see that the Ministry of Justice reports that 11% of new judges in the court were BAME, compared with 6% of those leaving. That is a paltry rate of change that will leave our judiciary disproportionately unrepresentative. The judicial mentoring scheme and the pre-application judicial education programme are good initiatives, but they are nowhere near enough. In a judiciary that continues to display systemic problems, well-intentioned mentoring schemes are unlikely to go far enough.

Worryingly, a metric seems to have crept in that rarely appears in official Government documents in any other Department. For several years in a row, the annual judicial diversity statistics have qualified their admission that the number of BAME judges remained low by comparing the ratio of BAME judges with the ratio of people within a certain age bracket. We are told that

“BAME representation among tribunal judges was similar or higher than that of the general population at all age bands from 40 and over.”

That might seem reasonable at first reading, but it deserves further attention. Where else in Government documents are disparities justified by cherry-picking age groups for comparison? That is done to match proportions that are decades out of date. Our judiciary should not be representative of people over 50, or even 40; it should be representative of our nation as a whole at every stage. Everyone who passes through our justice system should feel that it genuinely represents them. Between 2014 and 2019, the proportion of BAME court judges increased by 2%, which takes us to 7% of court judges. The Government need to move faster.

In the Lammy review, my right hon. Friend the Member for Tottenham (Mr Lammy) stated:

“The government should set a clear, national target to achieve a representative judiciary and magistracy by 2025. It should then report to Parliament with progress against this target biennially.”

It was a bold aspiration with an ambitious deadline. It was an opportunity to facilitate a change, but the Government have missed the opportunity. Despite some positive noises, we have not seen any real changes, and that leads us to the inevitable conclusion that a wealth of talent in the BAME community is ignored.

The fact that more than half of those currently held within the youth estate are BAME shows that there is something fundamentally wrong with our criminal justice system. Although improving judicial diversity is not a panacea for the wide variety of self-inflicted ills that harm our justice system, it would certainly be a significant step. Our judges should be representative of our country and should be diverse in terms of gender, ethnicity and, crucially, socio-economic background. We should also provide more support for those who are not barristers moving into the judiciary. Solicitors continue to form a small minority of judges, closing the profession off from other highly talented practitioners.

The Law Society has suggested some practical steps to ensure representation of solicitor judges: for example, ensuring that solicitors’ experience is given the same due weight as barristers applying for the Bar; ensuring that solicitor judges are involved in the selection process; considering the development of judicial career paths; promoting cross-deployment of judges from tribunals to court; and providing access to shadowing and mentoring opportunities for existing judges. That could apply to women, to members of the BAME community and to those from poor financial backgrounds; children from working-class backgrounds are very under-represented in our system.

Far too often, the Government treat representation as a cosmetic issue that can be changed with minor tinkering. They fail to recognise that the disparities come from histories of inequality that require fundamental reform to remedy. Rather than simply analysing data retrospectively, the Ministry of Justice should set clear deadlines and put plans in place. The public have a right to a judiciary that represents them in all their diversity.

With that in mind, will the Government accept that their judicial appointments system is not sufficient and adopt the approach laid out by the Lammy review? Will the Minister clarify what moneys will be set aside to ensure that judicial diversity is a central objective, rather than just a buzzword? That is essential not only on a moral basis, but on a practical one. A judiciary that is not perceived as representative will have difficulty in maintaining its legitimacy in the long term, particularly for communities who do not see themselves reflected at the most senior level of our justice system. We can fix the problem. It will require funding, long-term commitment and clearer strategic planning, which the Government appear not to offer at the moment. The Government need to go beyond expressing sympathy and set proper deadlines. I hope that when the Minister responds, he will be able to give us some deadlines and suggestions for what they can achieve.

Finally, I want to emphasise that my observations about the representation of ethnic minorities, women and working-class people have no bearing on my belief that our judiciary is the best in the world. No one should ever attack its credibility. Our judges are the best in the world, and they decide things on law, not on politics. The press and Members in this House should appreciate that.

It is a great pleasure to serve under your chairmanship, Mr Sharma, in my first appearance as Minister in a Westminster Hall debate. I add my congratulations and thanks to those that other Members have offered to the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald), who secured this timely debate.

I will begin by directly addressing the hon. Gentleman’s question about the independence of the process we have adopted to appoint members of the judiciary. I and the Government as a whole fully support the position articulated by the Lord Chancellor, that judicial appointments should be wholly independent and separate from any interference by politicians of any kind, including any form of parliamentary oversight. Speakers in the debate, including, of course, the Chair of the Select Committee on Justice, my hon. Friend the Member for Bromley and Chislehurst (Robert Neill), have powerfully and eloquently made the case for that approach. If judges are to act impartially as interpreters of the law that Parliament enacts, they cannot be subject to any form of political interference, including at the moment of their appointment. I join the Lord Chancellor and other Members who have spoken in stating clearly that the American system of Supreme Court confirmation hearings, and even elections for some judicial positions, would be wholly inappropriate in this country. It would undermine the principle of judicial impartiality that has prevailed in all four corners of the United Kingdom for so long. I hope that straight away I can give Members reassurance on the critical question in the debate.

The Lord Chancellor has been extremely clear in his comments, both those he made by the modern means of communication, Twitter, in the immediate aftermath of the various judgments that we have discussed, and those he made on the opening of the English and Welsh legal year last Tuesday. I attended that event in Westminster Hall, a few feet from where we are, and in his opening remarks the Lord Chancellor made it clear to the entire assembled judiciary that he would stand in defence of their independence and impartiality. That message was heard loud and clear. As the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East has acknowledged, a couple of hours ago in the main Chamber, in response to a question from the Chair of the Justice Committee, the Lord Chancellor reiterated his and the Government’s unequivocal support for the principle of judicial independence and the independence of the judicial appointments process.

That process was established and put on a statutory footing in the Constitutional Reform Act 2005. As has been said, prior to that the Lord Chancellor exercised the power on advice from civil servants, but since the Act was passed the Judicial Appointments Commission has made recommendations, which the Lord Chancellor and the Lord Chief Justice and Senior President of Tribunals approve. However, the Judicial Appointments Commission is essentially the body that makes the recommendations and whose voice is decisive. I join the Chair of the Justice Committee in thanking Lord Kakkar, the commission chairman, for his work and that of his fellow commissioners—both lay and lawyers.

On at least two occasions in recent years the work of the Judicial Appointments Commission has been examined. A House of Lords Committee scrutinised the process in 2012, and during the passage of the Crime and Courts Act 2013 a great deal of work was done, looking at the process by which the judiciary are appointed. Recommendations were made and they were enacted in the 2013 Act, which amended the Constitutional Reform Act 2005. They included transferring responsibility for the selection of deputy High Court judges to the JAC. JAC lay commissioners were also allowed greater involvement in more senior judicial appointments above the High Court, including chairmanship of the panel to select the Lord Chief Justice and the President of the Supreme Court. The latter is done in rotation with their counterparts in Scotland and Northern Ireland, the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East and the hon. and learned Member for Edinburgh South West (Joanna Cherry) will be pleased to hear. The process under which the JAC currently operates is a good and effective one. It received significant scrutiny in 2012 and 2013 and I can confirm that the Government have no intention of altering the process.

The shadow Minister, the hon. Member for Bolton South East (Yasmin Qureshi), drew attention to the fact that England and Wales is an international jurisdiction of choice for many litigants whose cases do not directly relate to the United Kingdom. I know less about Scotland in that respect, and would be happy to hear about it. Such litigants choose to use our courts because of their reputation for impartiality, effectiveness and sound decision making. There could be no greater vote of confidence in our courts system than the fact that so many people from around the world choose it. I add my thanks to those that the hon. Lady expressed to all the judiciary, from the magistracy to the Supreme Court, for the work they do to uphold the rule of law and for being a beacon of impartiality and sound judgment around the world.

Some hon. Members raised the topic of the composition of the judiciary, including the retirement age. That is currently 70, but it was older in the past. The Chair of the Justice Committee drew attention to the fact that many capable members of the bench, at all levels, retire while still exercising their functions at a high level and with the benefit of many years’ experience. I saw that at my local Crown court in Croydon. The chairman of the bench there had retired at the age of 70 a year or so ago—in his prime, I would say. The Government and the Ministry of Justice have heard the message from several quarters this afternoon and have listened carefully. We are considering the comments carefully and I suspect that we will consult on the matter before too long.

I welcome what the Minister says, which gives me the opportunity to pay a personal tribute to His Honour Judge Warwick McKinnon, an old professional and personal friend who retired as resident judge at Croydon. I am also glad that the Minister mentioned the magistracy. Constituents of mine who were fine, experienced bench chairs had to retire at 70 when they still had much to offer.

I concur with both comments. I would also like to thank Judge McKinnon, who is a constituent of mine as well as a former chair of the bench. I agree that my comments on age apply as much to the magistracy as to the judiciary more generally—the court judges. As I said, I think my hon. Friend can look forward to a consultation on the topic before too long.

Several hon. Members raised the matter of the gender balance and ethnic composition of the bench, and I entirely understand why those points were raised. The proportion of newly appointed court judges from BME backgrounds is 11%, which compares to slightly over 15% of the population as a whole. Currently 7% of court judges and 11% of tribunal judges are, as the hon. Member for Bolton South East said, from BME backgrounds.

As for gender balance, as the hon. Lady said, 27% of High Court judges are female, and that figure rises to 32% across the courts more generally and 46% in tribunals. Also 56% of the magistracy are female and about 50% of court judges under 50 are female; that is an encouraging sign. Qualifying those remarks, I would say that we rightly expect more senior court judges to have decades of experience at the Bar, so appointments today reflect the Bar 30 or 40 years ago, when diversity was not what we would like, and there is a measure of unavoidable time lag. That does not mean that we should not take proactive and active steps—we should. We should encourage the JAC and work generally to improve diversity in the magistracy and the courts. The figures are moving in the right direction and improving, but I am sure we can do more. As a newly appointed Minister I will certainly consider what active steps can be taken in that area.

I am grateful for the opportunity to respond to this debate, to the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East for securing it, and to other hon. Members for attending. Those include the now very famous hon. and learned Member for Edinburgh South West—

Let me be generous and say famous! It gives me, the Lord Chancellor, and the Government as a whole great pleasure to reconfirm our commitment to independent, non-political appointments to the bench at all levels. That is the foundation on which the rule of law is built, and that should not change.

This has been a worthwhile debate with cross-party strong and unequivocal support for the principle of judicial independence, and the idea that that must be at the centre of our judicial appointment processes. We have heard interesting points about diversity on the bench and retirement ages, and received a sympathetic response from the Minister. We will obviously scrutinise and debate these issues further in future. I therefore thank hon. Members for their excellent contributions, and the Minister for his response.

Question put and agreed to.


That this House has considered the procedure for appointing judges.

Sitting suspended.