Tribunals, Courts and Enforcement Bill [HL]

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 1 to 33. I am most grateful to noble Lords for permitting me to deal with this large group of amendments together. As a very late entrant into your Lordships’ debate on the Bill, I also pay tribute to the constructive way in which discussions have taken place throughout its passage. The new clauses in Amendments Nos. 1 and 3 and the associated Amendments Nos. 11, 15, 18, 19 and 21 to 30 deal with a single topic: the arrangements for appointing those who have served in judicial office on a salaried basis to do so on a fee-paid basis. The amendments extend and improve the provisions that were already in the Bill in Clauses 53 and 54 and Schedule 11. These provisions, as drafted, dealt with fee-paid appointments in two categories of office: deputy district judges and deputy and temporary additional masters and registrars of the current Supreme Court. The former Lord Chancellor, my noble and learned friend Lord Falconer of Thoroton, discussed these provisions with the Lord Chief Justice and it was agreed that it would be better if they were amended and extended. First, they agreed that conversion of salaried to part-time service is more appropriately treated as a new appointment, rather than as a deployment. Under the concordat, appointment is a matter for the Lord Chancellor, so these amendments in Clause 54 and Schedule 11 now confer the relevant appointment powers on the Lord Chancellor, rather than the Lord Chief Justice. They further enable him to make such appointments without requiring a Judicial Appointments Commission selection procedure, which would be disproportionate in such circumstances. It is also essential that the relevant senior judge agree that the potential appointee is up to the job, so the new provisions also require the Lord Chancellor to obtain the concurrence of the Lord Chief Justice. There are also consequential amendments in Schedule 11 and Clause 54, resulting from the substantive changes in each one. The other significant change introduced by these amendments is to apply such provisions to all the judicial offices at the level of circuit judge and below in the ordinary courts and to all tribunal appointments made by the Lord Chancellor. The concurrence of the Lord Chief Justice is required for appointments in the courts and that of the Senior President of Tribunals in relation to tribunal appointments. The substantive provisions are in the new clause in Amendment No. 1, adding two new sections to the Constitutional Reform Act 2005. The remaining amendments are technical or simply consequential on these substantive new provisions. Amendment No. 2 inserts a new clause that simply rectifies a lacuna in a section of the Judicial Pensions and Retirement Act 1993. The 1993 Act prescribes a normal compulsory retirement age for judicial office holders, which is generally 70, but further provision is made for service to be extended beyond that point in the public interest. Such flexibility is clearly in the interests of justice, in exceptional cases—if, for instance, there is particular difficulty in finding a replacement for the office holder in question or if he or she has specialist knowledge and expertise that it is thought desirable to retain. Schedule 4 to the Constitutional Reform Act 2005 modified the 1993 Act, reassigning the power for the extension of service of judicial office holders under this provision. In so doing, it catered for the exercise of the power in relation to judicial office holders respectively exercising jurisdiction exclusively in England and Wales, Scotland or Northern Ireland. There is a lacuna here because this did not cater, strictly speaking, for those who exercise cross-border jurisdiction—that is to say, those whose jurisdiction extends beyond England and Wales to either Scotland or Northern Ireland, or both. This situation normally arises only in relation to tribunal office holders. The new clause serves to deal with the problem. It adds further provision to Section 26 of the 1993 Act, providing for the power for the extension of service in such circumstances to be exercisable by the Senior President of Tribunals, in relation to tribunals, subject to the concurrence of the Lord Chancellor, with a default provision for the Lord Chief Justice to exercise the responsibility—again with the concurrence of the Lord Chancellor—in any other case. Amendment No. 16 is a consequential drafting amendment. Amendment No. 12 inserts a new clause setting out amendments to the Courts-Martial (Appeals) Act 1951. The current position, whereby the Judge Advocate General appoints judge advocates from a pool of 12 judicial office holders or lawyers to an individual court martial, will change once the new Armed Forces Act comes into force. Once that Act is implemented, apart from the Judge Advocate General and High Court judges, only persons appointed under Section 30 of the 1951 Act may sit as judge advocates on courts martial. Appointments under Section 30 of the 1951 Act require JAC selection. This causes a serious problem. A JAC selection would mean asking members of the existing pool to submit themselves again for selection to continue sitting as judge advocates—a role that they have had for several years. It is unlikely that they would be prepared to do this. The loss of such experienced judicial office holders would have a significant impact on the running of the courts martial system. It would also be difficult to fit a JAC selection for judge advocates into the very full JAC programme before the Armed Forces Act is implemented in 2009. We have discussed the issue with the Ministry of Defence and the Office of the Judge Advocate General, and consider that the only option is to amend the Constitutional Reform Act 2005 and the 1951 Act. Accordingly, Amendment No. 12 does this. Amendments Nos. 13, 17 and 33 relate to the appointment of the chairman of the Law Commission. As noble Lords will know, in practice the policy of all the successive Lord Chancellors has been to seek and appoint a candidate to this post from among the judges of the High Court. This policy has brought, and continues to bring, significant advantages of independence, expertise and prestige to the commission. It has helped to make the commission the internationally well regarded law reform body that it is today. In amending the Law Commissions Act 1965 so that the Lord Chancellor can appoint only a senior judge as chairman of the Law Commission, Amendment No. 13 will embed in the 1965 Act the policy and practice of the past 42 years. The change is necessary because the Commissioner for Public Appointments’ code of practice on ministerial appointments to public bodies requires that an appointment should be open to all those qualified to be appointed to it. In the case of the chairmanship of the Law Commission, the appointment would therefore have to be open to judges, barristers, solicitors and legal academics. That might deter applications from judges and could deny to the Law Commission the very important benefits that flow from the appointment of a senior judge as chairman. The new clause inserted by Amendment No. 13 therefore restricts the pool of potential candidates for the chairmanship to judges of the High Court and judges of the Court of Appeal. Amendment No. 14 makes a minor correction in a cross-reference to the Bill being inserted into the County Courts Act 1984. It updates a reference to the Tribunals, Courts and Enforcement Act from 2006 to 2007 and was tabled by the Conservatives in Committee in the other place. Although we considered this change to be unnecessary, as all such references would be updated automatically when the Act is printed, we accepted the amendment none the less. Amendments Nos. 31 and 32 are needed as a result of changes to the Income and Corporation Taxes Act 1988 made by the Income Tax Act 2007, which received Royal Assent on 20 March. Paragraph 87 of Schedule 13 to the Bill consequentially amended paragraph 6(5) of Schedule 16 to the 1988 Act, but this no longer works because of changes made to that Act by the 2007 Act. Amendments Nos. 31 and 32 correct this. Finally, Amendment No. 20 removes the privilege amendment inserted by your Lordships’ House to ensure the maintenance by the Commons of control over public funds. I am grateful to noble Lords for allowing me to speak to this large group of amendments. These are important improvements to the drafting of the Bill and they were supported by both sides in the other place. Moved, That the House do agree with the Commons in their Amendments Nos. 1 to 33.—(Lord Hunt of Kings Heath.)