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Maximum Number of Judges Order 2008

Volume 702: debated on Thursday 12 June 2008

rose to move, That the draft Maximum Number of Judges Order 2008 laid before the House on 13 May be approved.

The noble Lord said: My Lords, this order will increase the statutory maximum number of judges of the Court of Appeal from 37 to 38 so as to enable a Court of Appeal judge to be appointed chairman of the Law Commission without reducing the judicial capacity of the Court of Appeal. Without that provision, the working capacity of the Court of Appeal would be reduced for the period of the appointment of any existing Lord Justice of Appeal to the chair of the commission as that post is a full-time appointment.

On first reading, the order appears to be relatively simple and straightforward, but it is important that I explain in more detail the background as to how this order came to be necessary, and something about the processes for appointing the chairman of the Law Commission and for the appointment of judges of the Court of Appeal of England and Wales.

Before I do that, I need to bring to your Lordships’ attention a small technical detail. There has been an inadvertent error in the Explanatory Memorandum to the order which means that it does not accurately describe the full policy intention. Although this has no effect on the drafting of the order, I apologise for this oversight. A replacement memorandum has been laid before Parliament and copies are available in the Printed Paper Office. Paragraph 7.5 of the original memorandum set out that, subject to selection by the panel constituted under the Constitutional Reform Act, the chairman of the Law Commission should be made a judge of the Court of Appeal on leaving the Law Commission. In fact, the intention is that it should be possible for the chair also to be a judge of the Court of Appeal at the same time as taking up the Law Commission post, whether by simultaneous appointment or by an existing Appeal Court judge taking the post. Your Lordships will also notice that slight clarification has been made to paragraphs 7.1 and 7.4.

As your Lordships will know, the Law Commission is the statutory independent body created by the Law Commissions Act 1965 to keep the law under review and recommend reform when needed. It fulfils many functions with the key aims of ensuring that the law is as fair, modern, simple and cost effective as possible. The Law Commission also carries out research and consultation, making systematic recommendations for consideration by Parliament, including codifying the law, eliminating anomalies, repealing obsolete and unnecessary enactments and reducing the number of separate statutes. The commission’s recommendations for law reform can shape the legal rights, duties and liabilities of large numbers of people, and large areas of the law have been renewed as a result of its continuing work.

The Law Commission has been recognised by successive Governments as making a valuable contribution within our legal system, and it plays a fundamental part in our constitutional arrangements. There are five commissioners, all of whom work full time at the commission. The chairman is a senior judge appointed to the commission for up to three years. The other four commissioners are experienced judges, barristers, solicitors or teachers of law. The Lord Chancellor appoints them for up to five years, although their appointments may be extended.

Ever since the creation of the Law Commission, because of the demands of the job, its chairman has always been appointed from the ranks of the senior judiciary. Indeed, Section 1 of the Act provides that the chair must be a judge of the High Court or of the Court of Appeal of England and Wales. Having a senior member of the judiciary as the head of the commission acts as both a guarantee of its independence and a pledge of the Government’s continued desire for it to carry out its statutory duty. It is a guarantee, because the chairman is a member of the judiciary who cannot be said to be beholden to the Government in any way and who can deal with members of the Government without concern.

As your Lordships will see, the chairmanship is an extremely important and demanding role. As the commission’s principal public face, the chairman promotes its role and its work, leading the commissioners and representing their views to Ministers and others with a key interest in the law and law reform. The chairman also leads on law reform projects and has special responsibility for overseeing the commission’s work on consolidation and statute law revision.

During the passage of the 1965 Act, the Lord Chancellor, Lord Gardiner, said that in his opinion the chairman should be,

“not only a High Court judge but the High Court judge who, of all the High Court judges … the Commission would be most fortunate to have”.—[Official Report, 14/4/65; col. 426.]

I am sure your Lordships will agree that the chair of the commission needs to be seen to be someone who has the status and authority to command the respect and confidence of the Government and the judiciary. The commission’s work needs to carry the confidence of Parliament if the Bills that it drafts are to pass into law.

Having a Court of Appeal judge—a judge of the highest calibre—as the chair of the commission will help to ensure that that confidence is maintained. Indeed, it is in the public interest that the most able senior judges fill such posts. That is truer now than ever before, in view of the recently proposed significant structural reforms to improve the effectiveness of the commission and its relations with Parliament and the Executive.

I turn now to the issue of appointing Court of Appeal judges. It is precisely this issue that makes the order such a necessary and sensible, although precautionary, measure. Before the Constitutional Reform Act 2005 came into force in April 2006, Lords Justices of Appeal—to give them their proper title—were appointed by Her Majesty the Queen on the recommendation of the Prime Minister, who received advice from the Lord Chancellor. Before submitting his advice, the Lord Chancellor consulted the Lord Chief Justice of England and Wales and the other most senior judges. That made it possible for a High Court judge, serving as chairman of the Law Commission, to be appointed to the Court of Appeal on completion of their term of office at the commission.

Following the implementation of the Constitutional Reform Act, the Queen still appoints Court of Appeal judges on the recommendation of the Prime Minister following advice from the Lord Chancellor. But the selection process is now the responsibility of the independent Judicial Appointments Commission. As a consequence of the newer, clearer and more accountable appointments process, there can be no absolute guarantee of simultaneous appointment. However, the order is an essential step in ensuring that the most experienced and suitable judges can continue to be appointed as chairman of the Law Commission, without adversely affecting the working capacity of the Court of Appeal.

It is in the interests of the proper and efficient functioning of the judiciary that the most able senior judges are interested in taking the chair of the Law Commission. Such a position provides a unique opportunity for the senior judiciary to acquire administrative and management experience, and familiarity with the workings of Parliament and the Executive. It is even more important that the most able judges should acquire those things, as the 2005 constitutional reforms transferred responsibility for management of the judiciary to the most senior judges. In future, having prior management experience will be even more important for them.

The chairmanship of the Law Commission enables senior judges to gain a broader range of legal knowledge than they might otherwise achieve across a diverse range of subject areas, informed by comparative law, empirical research and impact assessments. For that reason and those that I have already mentioned, I commend this order to your Lordships. I beg to move.

Moved, That the draft Maximum Number of Judges Order 2008 laid before the House on 13 May be approved. 20th Report from the Joint Committee on Statutory Instruments.—(Lord Tunnicliffe.)

My Lords, I thank the noble Lord, Lord Tunnicliffe, for introducing the order. I welcome him to Ministry of Justice debates. I think that it is his first outing in this field. He has come in very honourably after his noble friend—his noble boss, if I may put it that way—Lord Hunt of Kings Heath responded today both to Questions and to two debates. The noble Lord, Lord Hunt, deserves some time off. We wish him well wherever he has gone. I think he said that he was going to Birmingham—perhaps he is going to Henley to help canvass for the Labour Party in the by-election there. I do not know, but we will see in due course.

The Minister introduced the order and made quite clear its purpose, which is to increase the number of Court of Appeal judges by one and, as I understand it, because the cost implications are relatively small, to reduce the number of High Court judges by one. Will he confirm that that is correct? If that is the case, the cost implications are marginal because it is a question just of the difference in salary between the two.

Will he then offer us an assurance that the Lord Chief Justice, or whoever the relevant person is, is perfectly content that there should be one less High Court judge, that the High Court will be able to cope and that there will not be further delays in whichever division of the High Court those judges are removed from?

Will he comment also on why all this is necessary? I suspect that the reason is the changes that the Government introduced as a result of the Constitutional Reform Act 2005 and the establishment of the Judicial Appointments Commission. Before that, as is made clear in the Explanatory Memorandum, there was the unwritten convention that whoever was chairing the commission was appointed to the Court of Appeal and others were High Court or equivalent. As judges are now appointed by one method and those chairing the commission by another, the unwritten convention no longer works as it should. It seems, therefore, that the unwritten convention has almost to be codified in a way that strikes one as not particularly necessary.

Will the Minister comment also on what is happening in regard to the appointment of judges? We heard rumours outside that there are considerable delays in appointments, that not enough of those who are suitably qualified are coming forward, that the whole process is much slower and a backlog is building up, and that there may therefore be a shortage of judges. I have no doubt that the Chief Secretary to the Treasury is pleased about that and that savings are being made by the Government, but it does not help in the administration of justice.

I thank the Minister for his courtesy in ringing me up to tell me that there had been a mistake in the Explanatory Memorandum. I assured him that it was not necessary for him to have a copy sent up to my office and said that I would pick one up from the Printed Paper Office. As always, my incompetence is such that I picked up the Explanatory Memorandum for the Armed Forces (Alignment of Service Discipline Acts) Order. That will no doubt not matter, because the Minister has explained in detail the changes that should be made to paragraph 7.5, for which I am very grateful.

My Lords, I have been a great admirer of the Law Commission and its work ever since it was created in 1965 by that great lawyer, Lord Gardiner, when he was the Lord Chancellor in Harold Wilson’s first Government. Over the 43 years since then, the Law Commission has done a great deal of extremely useful work and has entirely justified its creation. Of course, during that time it has had long-running difficulties over obtaining implementation of its recommendations, even after they have been accepted in principle by the Government, because of the difficulty of getting parliamentary time.

I say in passing, although this is not directly relevant to the order, that I have very greatly appreciated the enormous effort that the noble Baroness the Lord President has put into designing a fast-track procedure that, it is hoped, will enable more uncontroversial Law Commission Bills to pass through your Lordships’ House and through the other place as well. So far as concerns your Lordships’ House, we approved the proposals of the noble Baroness two months ago in April, when we approved the recommendation from the Procedure Committee on trialling the new procedure.

I am also glad to see what appears to be an increased degree of interest from the Ministry of Justice in the work of the Law Commission. We will have to wait and see whether that materialises, but I understand that a good deal of interest is being shown.

The order is another step towards increasing the effectiveness of the Law Commission. The chair of the Law Commission is required by law to be a judge either of the High Court or of the Court of Appeal. The result has been that a long succession of distinguished judges have chaired the Law Commission, starting with Lord Scarman—then Sir Leslie Scarman—who was the first commissioner, down to the present chair of the Law Commission, Sir Terence Etherton, and including one woman chair, who is now Lady Justice Arden.

It has been a convention that the chair is an experienced High Court judge who is appointed to be a Lord Justice of Appeal soon after finishing his or her term of office as chair. No doubt this prospect plays some part in persuading high-quality High Court judges to accept the office of chair of the Law Commission. The noble Lord, Lord Tunnicliffe, explained that the Constitutional Reform Act procedure for making appointments to the Court of Appeal does not fit in with this convention. We on these Benches agree that in future it should be the practice, though not a legal requirement, that the chair of the council should be someone who, at the time of appointment, already holds the office of Lord Justice of Appeal. I am interested in the noble Lord’s reference to the usefulness of giving training in administration to a senior judge through his or her chairmanship of the Law Commission. It suggests that the appointment as chair of the Law Commission might be a step towards holding the office of Lord Chief Justice, which of course is now very much an administrative appointment. However, other administrative roles are played by some of the judges in the High Court and the Court of Appeal.

It has certainly been regarded in the legal profession for many years that the Court of Appeal is the most demanding level of the judiciary in terms of workload and stress. The current rules provide for 37 places. It is clear—and I quite understand why—that none of those can be spared to become the chair of the Law Commission. Therefore, it is necessary and desirable to increase the number of authorised places for a Lord Justice of Appeal by one. I also understand that the effect of that will not increase the number of High Court judges sitting as such but that the place left open by the move of the chair of the Law Commission to the higher level will not be replaced, although I understand that there is no reason, and therefore no necessity, to reduce the number authorised by the present rules. We on these Benches are happy to support the order.

My Lords, I thank the noble Lord, Lord Henley, for welcoming me to this brief—we will see how well I cope. He asked whether the total number of judges would increase. The answer is no. The Lord Chief Justice has agreed with the Lord Chancellor that the extra seat on the Court of Appeal will be offset by a seat being left vacant in the High Court. The costs of the changes are around £23,000 per annum—the difference between Court of Appeal and High Court salaries with longer-term pension implications. He asked whether that meant there would be enough members of the High Court with all the implications for workload. My own assessment of my brief is that, since the chairman has to be a High Court judge, it all nets to zero, but I will write to the noble Lord if that supposition is wrong.

The system has worked for 40 years, so why do we have to change it now? The premise of the Constitutional Reform Act 2005 was that it was no longer acceptable for the Executive to be in charge of selection and appointment to the judiciary. The independence of the judiciary is paramount if the rule of law is to be upheld. The change has resulted entirely as a consequence of the desire for increased transparency and accountability in judicial appointments, which Parliament clearly supported. Yes, there was an unwritten convention. Was that good enough? No; we need this as a necessary condition to allow the simultaneous holding of both jobs and to maintain the capacity of the Courts of Appeal.

The JAC is still in its early days and working hard to improve the speed of the process. However, it has made 400 appointments in its first year and continues to believe that it is able to fill those posts—and is filling those posts—to a high quality.

I thank the noble Lord, Lord Goodhart, for his general welcome of the order. He is quite right about the wider implications of the new procedure that has been agreed. We share with him the view that the slow implementation of Law Commission reports is a bad thing. The new approved process recommending the creation of new House of Lords procedure for appropriate or uncontroversial Law Commission recommendations will address that. The noble Lord is right to suggest that the old system seemed, to any layman, to be a way of persuading a judge to take on this onerous task. I would not say that that was the case. We are turning the convention into a simultaneous appointment. That process, in itself, will take some getting right. I made the point that justices will need more administrative experience and skills, but I could not possibly comment on whether that is a secure route to becoming Lord Chief Justice. I commend the order to the House.

On Question, Motion agreed to.