My Lords, the purpose of this group of amendments is twofold. It is, first, to explore the nature of the office that is to be created by this legislation and, secondly, to make an important constitutional point about the appropriateness of appointing an individual to an office of this nature in the current constitutional environment as set out in the Bill.
I start my argument by referring to the comments some minutes ago of the noble Viscount, Lord Eccles, when he referred to the recommendation of the Competition Commission for the appointment of an ombudsman. He said that this post was something quite different from an ombudsman, and I respectfully agree with him. I hesitate to do this, but I point out to my noble friend Lord Knight that it is not helpful to refer to this office as the office of a referee. It is something quite different from a referee, too. In fact, when one researches and considers carefully the powers that are being vested in the office of the adjudicator of the groceries code—I direct noble Lords’ attention to the Second Reading debate of 22 May at column 275 of the Official Report, when the noble Baroness set out quite extensively the roles of the adjudicator—one finds that at the heart of the many roles that the adjudicator will have, over and above all those other roles, is the role of investigator, arbitrator and the imposer of penalties. I dare say that if I were to ask most people with experience of life, “In whom do we invest those roles?”, they would say, “We invest those roles in a judge”. That is probably why this particular office has been called the office of the adjudicator. Respectfully, this is, if not a judicial position, a quasi-judicial position. There is no doubt that we are vesting in an individual the sorts of powers that we would expect a judge or magistrate, somebody who investigated and adjudicated on conflicts, to have. In normal parlance, such a person exercises a judicial role.
Since 3 April 2006, as a consequence of the Constitutional Reform Act 2005, all persons appointed to judicial roles in England and Wales—all those listed in Schedule 14 of that Act—are selected for them, if not appointed to them, by the Judicial Appointments Commission. That is simply because Parliament took the view that in the modern world it was inappropriate for persons to be appointed to such roles unless it was done independently of the Executive.
Consequently, I have proposed amendments that deploy those resources. In response, noble Lords may say, “This is something quite different from those judicial appointments listed in Schedule 14 to the Act”. They would be partly right, but the Judicial Appointments Commission goes much beyond what we would traditionally refer to as a judge and selects people for roles in a very wide range of tribunals that cover social care to taxation and farming to employment. I do not intend to be exhaustive in my arguments, but those who wish to do so can look at Schedule 14 and see the extensive list of roles in which people make judgments where we now expect there to be an element of independence.
I am reinforced in this view because everything that I have read in preparation for the debates in Committee makes constant reference to the necessity for the adjudicator to be independent. In my view, it is crucial for a person who exercises these sorts of powers to be independent of the Executive, to the extent that there should be some significant independent element in the selection of the person who is suitable for that role. I would argue that that is the constitutional position in England and Wales and that it has been since 3 April 2006, as a result of the 2005 Act.
On the basis of that analysis, I have proposed amendments that would ensure that the appointment by the Secretary of State can only be on the recommendation of the Judicial Appointments Commission. In that way, the independence of the adjudicator will be reinforced, if not preserved. Consequently, the adjudicator and not the Secretary of State will appoint the deputy adjudicator. Given the nature of this role, the Secretary of State would not be able to dismiss the adjudicator or the deputy adjudicator without the consent of the Lord Chief Justice. Certainly, it would not be just in his or her own judgment. Finally, in order to make it clear that this role can be held only by a person who is above reproach, I have added to the requirements of the person who holds this role that he or she should not have been convicted of an offence.
I have very little to add to my argument. With respect, I think that it is clear that independence requires this in the modern world. If the Minister disagrees with that analysis, I invite her to explain why this role, with all these powers, is significantly different from that of a judge or a justice and why it is appropriate to reverse the trend of constitutional change in this country in this way and in this legislation.
4.45 pm