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Tribunals, Courts and Enforcement Bill [Lords]

New clauses 7 and 9 and amendments Nos. 43 to 63 deal with a single topic, which is that those who have served in judicial office on a salaried basis should be facilitated to continue to do so on a fee-paid basis, offering as they do an important additional resource for the peaks and troughs of court and tribunal business, and to preserve their tried and tested specialist skills. Where someone has served successfully in salaried office, it would be a waste of resources if he had to go through a Judicial Appointments Commission selection process in order to become, as it were, part-time, but every case must be carefully considered. A business case will be required in each instance, and the individual must of course be guaranteed to be up to the job. Originally, in clauses 53 and 54 the provision was available for deputy district judges and deputy and temporary additional masters and registrars of the Supreme Court. The Lord Chancellor and the Lord Chief Justice have agreed that it would be better if the provisions were amended and extended. Such a use of staff was regarded as deployments appropriately carried out by the Lord Chief Justice, but the two men have agreed that it is more appropriate to call them appointments and to say that they will be done by the Lord Chancellor, but he will required to obtain the concurrence of the Lord Chief Justice in relation to appointments in the ordinary courts, and of the senior president of tribunals in relation to tribunal appointments. The provisions will in addition apply 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. I should be happy to take the House through the details of how all the amendments culminate in what I have set out, but essentially I have outlined their import. They will facilitate the use of a formerly salaried chairman, judge or master to work on a part-time paid basis, either on retirement or when they have held office in the previous two years. The provisions contain all the checks and balances to which I have referred, but if more amplification is needed, I shall of course respond to any comments that are made. New clause 8 sets out amendments to the Constitutional Reform Act 2005 and the Courts-Martial (Appeals) Act 1951. It arises from an unforeseen interaction between the 2005 Act and the anticipated Armed Forces Act 2006. The effect of this interaction, if not remedied, would mean that certain judicial office holders and lawyers who sit as judge advocates would no longer be eligible to do so without having to apply afresh for their posts. Currently, the Judge Advocate General can appoint judge advocates from a pool of 12 judicial office holders or lawyers to individual courts martial. That will change once the new Armed Forces Act comes into force, as all appointments will require selection by the Judicial Appointments Commission. That could cause difficulty for the current band of 12 people from whom court martial officials are drawn. If they were to require selection by the JAC, we could lose a good deal of specialist expertise, as the people involved have worked in this field for many years, and are regarded with esteem. The problem has been discussed with the Ministry of Defence and with the Office of the Judge Advocate General. To achieve our purpose, it is necessary to amend the Constitutional Reform Act 2005 and the Courts-Martial (Appeals) Act 1951. New clause 8 does that by adding three new subsections to the 1951 Act. It requires that the Lord Chancellor, who will be in charge of the appointments, seek the concurrence of the Lord Chief Justice before making any such appointment. I assure the House that new clause 8 is necessary for the continued smooth running of the courts martial system, and I trust that hon. Members will be able to support it. New clause 10 relates to the appointment of the chairman of the Law Commission. As hon. Members know, the Law Commission is a statutory body set up in 1965, and it comprises a chairman and four other commissioners. All are appointed by the Lord Chancellor from persons who appear to be suitably qualified by the holding of judicial office or by practical or academic experience of the law. The first chairman was the then Sir Leslie Scarman, who was appointed in 1965, and the present chairman is the delightful and extremely effective Sir Terence Etherton, who was appointed in 2006. In practice, the policy of all the successive Lord Chancellors has been to appoint a candidate from among the judges of the High Court. That has brought significant advantages of independence, expertise and prestige to the Law Commission, and has helped to make it the internationally well regarded law reform body that it is today. We propose to amend the Law Commissions Act 1965 so that in future the Lord Chancellor can appoint only a senior judge as chairman of the Law Commission. The change is necessary because the code of practice on ministerial appointments of the Commissioner for Public Appointments requires that an appointment should be open to all those who are qualified to be appointed. Therefore, the fact that the chairmanship of the Law Commission would have to be open to judges, barristers, solicitors and legal academics could deter applications from judges and could deny the Law Commission the very important benefits that flow from the appointment of a senior High Court judge. There are also consequential amendments, but I hope that I need spend no more time persuading hon. Members that the proposed change is wholly desirable. Finally, new clause 13 rectifies a technical lacuna in a section of the Judicial Pensions and Retirement Act 1993 that resulted inadvertently from its modification by the Constitutional Reform Act 2005. The 1993 Act prescribes a normal compulsory retirement age of 70 for judicial office holders, subject to transitional provisions for later retirement dates for those already sitting at the date of commencement. Section 26 of the 1993 Act makes further provision to enable the service of judicial office holders to be extended, on a year-to-year basis, up to the age of 75—that is, beyond what is otherwise their compulsory retirement date. That is an example of flexibility in the interests of justice, in exceptional cases. It means, for instance, that an office holder should be retained if his or her specialist knowledge causes particular difficulty in finding a replacement. Paragraph 228 of schedule 4 to the Constitutional Reform Act 2005 modifies the Pensions and Retirement Act 1993 to reflect the new division of functions between the Executive and the judiciary. By reassigning the power for the extension of service of judicial office holders, it catered for the exercise of that power in relation to judicial office holders exercising jurisdiction exclusively in England and Wales, Scotland or Northern Ireland. However, it has latterly come to light that there is a lacuna, because the changes did not cater for those who exercise cross-border jurisdiction. Consequently, we have sought to close that lacuna, and again I hope that I need persuade the House no further that that is an entirely desirable development.