I will try to keep going while I can before another quorum is called. The point I am making is that the idea that an appointments commission involving judges should have a lay majority is grossly disrespectful to the legal profession generally. I do not like the idea of having lots of people who might not know much about judges or judicial appointments as opposed to people who do it for a living as their existence. People with the necessary expertise might include current judges and, as is listed here, the Chief Justice; the Presidents of the Court of Appeal, the High Court, the Circuit Courts and the District Courts; and the Attorney General - I appreciate it being changed slightly.
The general function of the commission will be to select and recommend to the Minister candidates for appointment to judicial office. I am not sure we have really discussed those who are to be appointed as laypersons and how that is taking place. Perhaps it has been discussed already. I was not here for all of the debate on this section but I was here for a good bit of it. Who trains the trainers? Who manages and scrutinises those who are being appointed as laypersons? If we appoint a group of laypersons of any one particular political persuasion and they have a majority, they could almost do what they liked. I am sure other parts of the Bill put some caveat on that but I do not think we should assume it is a good idea to have a majority of people on a committee who know less about the committee's business than those doing the work on a daily basis.
I have book in my hand called The Politics of Judicial Independence in the UK's Changing Constitution written by Graham Gee, Robert Hazel, Kate Malleson and Patrick O'Brien. Dr. Patrick O'Brien is a member of the department of law in the London School of Economics and Political Science. He makes reference to the Judicial Appointments Commission Bill 2017 in respect of diversity, which we have discussed. He says he has no particular difficulty with the involvement of lay members in the proposed commission and that the evidence from the UK suggests such involvement does not preclude significant judicial influence in a selection body of this kind, even when lay members form a majority. In terms of diversity, however, he says there a risk which has demonstrably occurred in the UK. I was listening very carefully to Senator Ruane's words on diversity last week and Senator McDowell's response to her argument. Dr. O'Brien says there is a demonstrable risk that the move to a formalised and administrative approach to judicial appointments will result in a reduction in the diversity of those appointed to the Bench. He is arguing that the formalised, tick-box approach will reduce the diversity of those appointed. He suggests that a more informal and political appointment process, whatever the other faults of such a system may be, seems to better facilitate the choice of candidates from non-traditional backgrounds - something many Senators have addressed in recent days - and allows a panel to make a judgment on the basis of likely future performance and the composition of the Judiciary as a whole rather than simply on the basis of the career history of an individual applicant. A formalised and strictly merit based system, he says, that looks at individual applications in isolation, tends to favour those from more traditional backgrounds and with more traditional career paths, with the result that progress towards a more diverse Judiciary is hampered.
Some of the people sponsoring this Bill and who believe it is a great idea might want to consider the comments from Patrick O’Brien from the law department in the London School of Economics.
He also stated:
A formalised and strictly merit-based system that looks at individual applicants in isolation tends to favour those from more traditional backgrounds and with more traditional career paths, with the result that progress towards a more diverse Judiciary is hampered. Further, the legal profession and Judiciary in the UK have tended to resist the kind of formal rules for positive action appointments which might address this within the context of a formalised process as they see them as undermining the centrality of the principle of appointment on merit. The diversity of the Judiciary is not simply a matter of abstract concern. The Judiciary is more than the sum of its parts, especially in the higher courts where policy concerns may be more significant. A diverse Judiciary with broad life and professional experience is better able to address the myriad issues with which it will be confronted. A more diverse Judiciary also presents a more legitimate face of the population it serves.
I heard much of this last week from various Members about having a broader base. I accept it must always be on merit and must always be people who are qualified for the job, regardless of background. We have a job, however, to ensure people of diverse backgrounds get into the law faculties of various universities, get through college, then into solicitors and barristers and work their way up through the process.
Patrick O’Brien continued that section 7(2)(a) and section 55 permit the commission to have regard to the importance of gender and cultural diversity. He feared that this objective would be crowded out in the practice of the commission, given that it is made subject to requirement in section 7(1) that appointments would be based on merit. He suggested an amendment that might address the problem that would make it explicit in the Bill that a requirement of the commission should be that it would present to Government a balanced slate of names and candidates who were all highly able and appointable, meeting the merit requirement but also reflecting the objective of a diverse Judiciary. That would require amendments to various texts further on.
The experience [in] the UK, as well as internationally, suggests a diverse Judiciary would not happen organically but would require deliberate and conscious effort by politicians and policymakers to achieve it. If a diversity criterion is not expressed as a formal requirement in the recommendation process, it is unlikely to be achieved. The balanced slate approach can be an effective way of achieving this goal without compromising on the requirements that all judges be appointed on merit.
Last week many Members, some of whom are supporting the Bill, said they wanted more diversity, yet it looks like there is nothing in the Bill to promote that. I note the Minister is nodding. I hope he is agreeing with me, rather than disagreeing.
The Politics of Judicial Independence in the UK's Changing Constitution contained a significant section on the judicial appointments commission. I am not going to read all 250 pages of it, although I am sure some people would like if I did. It stated:
The judicial appointments commission is an independent body but it manages a long and highly formalised selection process involving advertising, short-listing by tests or paper sifts, interviews, and, for some posts, presentations or role-playing. It was created, despite its name, as a recommending body that makes initial selections for judicial office, with the final say whether or not to appoint being made by another decision-making authority.
The book’s findings indicated “it effectively functions more akin to an appointing body”. There was a Lord Chancellor involved at one stage.
The book referred to the relations with the Ministry of Justice. It stated:
The judicial appointments commission is an executive non-departmental public body, operating at arm's length from, but within strategic framework set by, the Ministry of Justice. The relationship is defined formally by legislation and a framework document, but also, as with so many of the institutional relationships, informally by one-to-one personal relationships. The [JAC’s] lay chair is accountable to the Lord Chancellor for formulating a strategy to deliver the JAC’s main objective of selecting candidates.
It then referred to the history of various individuals with which I will not bother the House.
It then stated:
In its short history, the JAC’s relationship with the Ministry has been turbulent, at times divided by [a] series of clashes over both policy and personality. From its very beginning, the JAC had a tense relationship with the Ministry's predecessor, the Department for Constitutional Affairs. In 2006, when it assumed day-to-day responsibility ... it encountered several challenges: financial, workload and staffing. On top of a 5% budget cut in its first year.
The book continued with the experience of various Ministers, including Kenneth Clarke. His tenure was described as having much less emphasis placed on meaningful ministerial appointment and far more stress on cutting the JAC’s size and cost. Clarke described his involvement in appointments as largely ceremonial and ritualistic. In other words, he went through the motion of reviewing candidates about whom he knew little or nothing.
Generally, there is much opposition to this Bill. The idea there must a lay majority on the commission purely because a certain Minister appears not to trust the legal profession to do its job is wrong. I found with the Dental Council that the members who were the toughest on dentists who were not behaving were the dentists themselves because they felt these people were impugning the entire profession and its integrity. Judges and the law profession generally would be very tough and careful to ensure they do not seem to be appointing people just because they are friends. In fact, they will be far tougher than any lay majority because they will have much more information and savvy about the individuals and the job involved. Lay people, with all the best will in the world, cannot say they have as much expertise in this particular field as somebody who does it every day for their entire career.
Will the Minister consider the points I am making? It is important the lay majority idea is not absolutely adhered to. I believe having a lay chair and lay majority will do a disservice to the commission. I take on board what Senator Craughwell said earlier. This legislation will be around for a long time, if it makes through both Houses. We must ensure that whatever is passed is right and not just for one individual who seems to have an agenda.