That the draft regulations laid before the House on 20 June be approved.

Relevant document: 6th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 22 July.

Before your Lordships pronounce on the satisfactory or unsatisfactory quality of these regulations, I have a point which I endeavoured to make when these Motions were debated in the Moses Room a week or so ago. It relates to the provision regarding the appointment of members of selection committees, whose job it will be, once the committees have been established, to deal with the applications for appointments to senior judicial roles. The arrangement is that senior judges—the president, the Lord Chief Justice, the Masters of the Rolls or whoever it may be—will have the power to nominate the members of these commissions. However, the regulations go on to say that, in the event that the Lord Chancellor of the day is of the opinion that the senior judge in question suffers from an incapacity—presumably an incapacity to discharge the role of nominating members of the commissions—somebody else has that power.

I am bound to say that, when I first read these regulations, I thought it was thoroughly unsatisfactory for a senior member of the Executive to have the power to pronounce on his or her belief in the incapacity of a senior judge to discharge a statutory function that would otherwise be exercisable by that judge. I made this point in the course of the debate in the Moses Room and, since then, the noble Lord, Lord McNally, has been kind enough to write me a letter about these points. He drew my attention to similar provisions that can be found in primary legislation—in particular, the Constitutional Reform Act 2005 but there was another Act that he referred to where similar provisions are to be found. I was not aware of that. It is profoundly unsatisfactory that provisions of that sort allow a member of the Executive to remove powers from a senior judge on the Executive member’s belief in the incapacity of the judge to exercise those powers without any apparent necessity for the opinion to be backed up by medical evidence or psychiatric evidence. It is not consistent with the constitutional requirement of the separation of powers and I voice these objections now.

The sting is taken away by the fact that similar provisions have already found their way into primary legislation but, nonetheless, the existence of these provisions is unsatisfactory. I wish I had known that they were there in primary legislation. I would have taken the same objections at that stage. It is difficult to see why the opinion of a Lord Chancellor, who is not a medical person or necessarily even a lawyer, on the incapacity of a senior judge to exercise a particular statutory function should by itself be enough to relieve the individual of the power to exercise that function. The House should be aware of this matter before allowing these regulations into legislation. I am not proposing that the regulations should be voted down but the House should be aware of this. I regard it as unsatisfactory in principle and, up to a point, unconstitutional.

My Lords, the noble and learned Lord, Lord Scott, goes even further than he did in Committee. These matters are not unconstitutional. Let me be clear that the role of the Lord Chancellor to determine the incapacity of the Lord Chief Justice and the President of the Supreme Court is not newly created by these regulations. As the noble and learned Lord, Lord Scott, has acknowledged, this role is already set out in extant primary legislation. It is also true that these regulations come before the House after extensive discussions with the President of the Supreme Court and the Lord Chief Justice. The regulations have been examined in detail by the Justice Committee and I think by the Constitution Committee of this House—but I may be wrong on that. Certainly, they have gone through quite a thorough mincer of committees and they were discussed in Committee in the Moses Room.

The Lord Chancellor’s letter to the Scrutiny Committee set out in some detail why the normal procedure for determining incapacity of the Lord Chief Justice was not appropriate in these circumstances. In short, the heads of division who normally make this determination may themselves be applicants in the appointment process in question. Therefore, to ensure there is no perception of conflict of interest, they do not have a role. It may also be helpful if I explain why we consider it entirely appropriate for the Lord Chancellor to determine incapacity. The Lord Chancellor has a significant number of responsibilities through the process from requesting a panel is convened, determining the content of the panel’s report and, of course, making the final selection decision. The system is therefore reliant on the Lord Chancellor discharging a range of duties and powers appropriately. The Lord Chancellor, under Section 3 of the Constitutional Reform Act, also has a statutory duty to protect the independence of the judiciary. Therefore, if the Lord Chancellor were to determine incapacity where that was not in fact the case, this would be a breach of that duty. This means that in reality it is very likely that the Lord Chancellor would consult the relevant members of the judiciary to determine incapacity, but we do not consider it necessary to spell out the nature of that consultation in the regulations. That is particularly the case as relevant persons may be different in different circumstances.

As regards determining the Lord Chief Justice’s incapacity, it may be appropriate to consult him or her personally to determine whether, for example, the incapacity results from a planned operation; or it may be appropriate to consult the heads of division if they are not the subject of the appointments process in question. Alternatively, it may be appropriate to consult the President of the Supreme Court.

The role of the Lord Chancellor in determining incapacity is taken from extant primary legislation. We do not consider that the role gives rise to any risk of inappropriate behaviour, particularly as the Lord Chancellor could not, of course, do anything that would breach his overriding duty to protect the independence of the judiciary.