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Public Bill Committee Debates

Draft Judicial Appointments Order 2008

The Committee consisted of the following Members:

Chairman: John Bercow
Bellingham, Mr. Henry (North-West Norfolk) (Con)
Blunkett, Mr. David (Sheffield, Brightside) (Lab)
Carswell, Mr. Douglas (Harwich) (Con)
Cawsey, Mr. Ian (Brigg and Goole) (Lab)
Dunne, Mr. Philip (Ludlow) (Con)
Eagle, Maria (Parliamentary Under-Secretary of State for Justice)
Farrelly, Paul (Newcastle-under-Lyme) (Lab)
Hall, Mr. Mike (Weaver Vale) (Lab)
Hemming, John (Birmingham, Yardley) (LD)
Hesford, Stephen (Wirral, West) (Lab)
Howarth, David (Cambridge) (LD)
Kemp, Mr. Fraser (Houghton and Washington, East) (Lab)
Lucas, Ian (Wrexham) (Lab)
Shepherd, Mr. Richard (Aldridge-Brownhills) (Con)
Soames, Mr. Nicholas (Mid-Sussex) (Con)
Soulsby, Sir Peter (Leicester, South) (Lab)
Celia Blacklock, Committee Clerk
† attended the Committee

Fifth Delegated Legislation Committee

Wednesday 29 October 2008

[John Bercow in the Chair]

Draft Judicial Appointments Order 2008

2.30 pm
The Parliamentary Under-Secretary of State for Justice (Maria Eagle): I beg to move,
That the Committee has considered the draft Judicial Appointments Order 2008.
It is a pleasure to serve under your chairmanship again, Mr. Bercow. [Interruption.] Given the strictures I have just heard, I will rely on you to wave at me so I can stop at the appropriate time.
The order is made in exercise of the powers conferred by section 51 of the Tribunals, Courts and Enforcement Act 2007 and section 7(6A) and (6B) of the Social Security Act 1998, and relates to the eligibility of fellows of the Institute of Legal Executives, registered patent attorneys and registered trade mark attorneys for specified judicial appointments. The instrument enables the Government to effect the provisions in the Tribunals, Courts and Enforcement Act 2007, which widen the pool of candidates eligible for judicial office. The Ministry of Justice is currently implementing sections 50 to 52 of that Act, which change the eligibility requirement for judicial office in three key ways.
First, they introduce a new judicial appointment eligibility condition. In the past, individuals were usually eligible for judicial appointment—some of us will remember this—if they held rights of audience for a specified period. There was no requirement that they should have practised in law or gained any relevant experience. That has now changed, so that individuals wishing to apply must satisfy the judicial appointments condition. That means they must hold a relevant qualification and be able to show evidence of post-qualification legal experience.
For these purposes, a relevant qualification is held by someone who is a solicitor or barrister, or who holds a qualification specified under the order-making power in section 51 of the Tribunals, Courts and Enforcement Act 2007. That change came into force on 21 July this year. It supports quality in the judicial system and our judicial appointments by ensuring that all those applying for judicial office have some relevant experience in the law.
Secondly, the Act reduced the number of years’ post-qualification experience required for judicial office from 10 and seven years to seven and five years respectively, depending on the appointment, by amending the relevant pieces of legislation providing for judicial appointments. The change opens up judicial appointments to a wider range of individuals than were previously eligible, which is where diversity comes in. That also came into force on 21 July this year.
The order gives effect to those powers. It sets out which posts fellows of the Institute of Legal Executives, registered trade mark attorneys and registered patent attorneys will be able to apply for. The key purpose of the package is to support diversity by widening the range of people who are eligible for judicial appointment and to ensure that all those with the requisite qualifications, skills and experience can apply.
One of the Government’s key objectives is to increase public confidence in the justice system and one way to achieve that is to have a judiciary that better reflects the society it serves. Women are under-represented in the judiciary, and make up less than 20 per cent. of the court judiciary in England and Wales. By comparison, women account for 51.3 per cent. of the population. Similarly, 7.9 per cent. of the UK population as a whole are from black and ethnic minority backgrounds, but only 4 per cent. of the English and Welsh judiciary fall into this category.
It is essential that we take steps where we can to ensure that we recruit judges from the widest possible pool of talent available, and that is what those sections of the Tribunals, Courts and Enforcement Act 2007 seek to achieve. I shall briefly describe the roles of the different legal practitioners and the range of skills and experience that they will bring to judicial office to convince the Committee that we are not watering down or undermining the quality of candidates in any way.
To take legal executives first, only fellows of ILEX may describe themselves as legal executives. They are qualified lawyers who specialise in a particular area of law. Practitioners must pass the ILEX professional qualification in law in an area of legal practice to the same level as that required of solicitors. To be allowed to call themselves legal executives, members must spend at least five years working under the supervision of a solicitor in legal practice, or in the legal department of a private company, or in local or national Government.
Trade mark attorneys are qualified legal professionals who specialise in national and international trade mark law. To be registered with the institute, members must pass examinations in the legal procedures regarding trade mark law not only in the UK, but in more than 20 foreign countries. Members of the institute must undertake continuing professional development to ensure that their knowledge of legal developments is up to date.
Patent attorneys have particular expertise in the field of intellectual property. They work to obtain and enforce intellectual property rights. All patent attorneys require a scientific or technical background, followed by practical legal training in a patent attorney’s office alongside their academic studies. To be a registered patent attorney, registration with the Chartered Institute of Patent Attorneys is compulsory and involves passing its examinations and completing a set training period.
I hope it is clear from those descriptions that there is potentially a great wealth of talent within those three professions that could be of benefit to our judiciary. It was considered that the current eligibility criteria were too limiting, as they were based on the assumption that only qualified solicitors or barristers would be able to demonstrate the qualities and abilities required of a judicial office holder. Once the statutory instrument is made, other legal professionals will have the opportunity to compete for judicial posts on the same terms as solicitors and barristers.
The statutory instrument sets out which posts the fellows of ILEX, registered patent attorneys and registered trade mark attorneys will be eligible to apply for. A guiding principle that has shaped the content of the statutory instrument is that fellows of ILEX and others should be eligible for more junior-level judicial posts in the first instance. Those are defined as posts roughly analogous to district-judge level, first-tier tribunal posts or posts requiring five years of post-qualification experience. That was considered to be an appropriate level in the first instance, and gives the changes time to bed in.
The Lord Chancellor has the power to make further orders, should he consider it appropriate, to expand the list of qualifications and posts set out in the statutory instrument. For example, if fellows of ILEX compete successfully alongside barristers and solicitors for judicial posts, the Lord Chancellor may consider it appropriate to extend the list. At every stage of this process, the Ministry of Justice has worked with others to ensure that the list of posts is appropriate. A project board was set up to draft the statutory instrument and implement the related sections of the 2007 Act. The board consisted of representatives from the Ministry of Justice, the Judicial Office, the Judicial Appointments Commission, the Tribunals Service and the Judicial Studies Board. A full public consultation took place from 5 February to 29 April. A wide range of stakeholders has been consulted, including the Lord Chief Justice, the Judicial Appointments Commission, the Law Society, the Bar Council, ILEX, the Chartered Institute of Patent Attorneys and others. We also contacted groups that represent particular diversity interests in the legal and judicial professions, and a full list has been published on the Ministry of Justice website.
I hope that I have convinced the Committee that these changes, small though they may appear, can be an important part of extending the diversity of judicial appointments, while the quality in the judiciary that this country is so rightly known for is maintained.
2.39 pm
Mr. Henry Bellingham (North-West Norfolk) (Con): It is a pleasure to serve under your chairmanship, Mr. Bercow. I thank the Minister for her clear presentation, and I declare an interest as a barrister.
The Opposition supported the Tribunals, Courts and Enforcement Bill, which is now an Act. We strongly supported parts 1 and 2—we were less supportive of part 3, which does not affect these proceedings—so we support the statutory instrument. I endorse what the Minister said about the Institute of Legal Executives, the Chartered Institute of Patent Attorneys and the Institute of Trade Mark Attorneys. I have met those organisations, and can vouch for what she said: the people in those organisations are of a very high calibre. As she pointed out, although members of ILEX are not qualified solicitors or barristers, they have qualified as lawyers, and many of them have a huge amount of practical experience. It always struck me as perverse that they were not eligible for some of the more junior judicial appointments, which is why we supported that part of the Tribunals, Courts and Enforcement Bill.
I agree with the Minister that it is important to broaden the pool of potential applicants for judicial appointments, particularly at a time when lawyers at the top of their profession are earning more and more—it sounds strange to mention that at a time when the economy is nose diving into recession. Unfortunately, there are drivers that prevent people from going into the judiciary, and it is important to broaden the pool and, in particular, to encourage more women to apply for these appointments. We strongly support the measure, although we were not particularly happy at the time about the change in the eligibility requirements for post-qualification experience. The Minister mentioned the reduction from 10 and seven years of experience, to seven and five. Perhaps the Ministry of Justice could look at that again to see how it works in practice.
The Minister mentioned consultation, but I see in the explanatory notes that there was no media or public interest in this important initiative. I am surprised that the trade press did not pick up on this; it is a significant step forward for the profession and the organisations in question. The statutory instrument will enable members of the profession to apply for an important selection of judicial appointments for the first time, and I am surprised that the Department did not do more to promote the merits of that initiative. I also note what the Minister said about wider consultation, and in particular, the views of the president of ILEX, who expressed disappointment that the eligibility rules will not come into force until 2010. I do not understand why that is the case, so perhaps she would explain why in more detail.
The CBI has been in contact with the official Opposition, as it was concerned about ILEX fellows being eligible to serve on the Competition Appeal Tribunal. I understand that the Ministry of Justice listened to those concerns, as it thought that that tribunal required specific and definite skills. Because some of the work was akin to that carried out by more senior judges, it was decided not to include it on the list of judicial appointments. To some extent, that applies to employment tribunals, as the work can be technical and involved. The CBI expressed reservations about including that judicial appointment on the list, so perhaps the Minister could provide more information on that.
To some extent this is a policy in transition. The Minister mentioned that the Lord Chancellor might look at additional appointments at some stage in future. What proposals does the Ministry of Justice have for reporting back to the House on how the order is working? Will the Minister, or the Lord Chancellor, make a statement or report to Parliament in a year’s time? Does she plan to review the statutory instrument in two years’ time, or whenever, and look at how the changes are working and how broadening the pool of applicants for those traditional posts has impacted on the ground? Will we attract greater talent, and how will that new talent for those appointments perform? Will we look at extending the measure further, although not until a particular stage has been reached? On the basis of those questions, we support the statutory instrument and thank the Minister for her clear explanation.
2.44 pm
John Hemming (Birmingham, Yardley) (LD): I am pleased to serve under your chairmanship yet again, Mr. Bercow. The Liberal Democrats, too, support the broadening of the pool of applicants to the judiciary. My first question is about whether the filtering process for that pool means that people have sufficient practical experience of the activity. That is clearly the case for ILEX and the patent agents, so we support the measure on that basis. I share the official Opposition’s request for an answer as to how we will review its outcomes.
2.45 pm
Maria Eagle: I hope to answer the points raised by members of the Committee. First, the hon. Member for North-West Norfolk is correct—there was some response. I do not wish to go through the way in which we responded to every one of the comments on the consultation, but he is quite right to say that we responded to the views and concerns that were raised about the impact on the Competition Appeal Tribunal. We thought that that was too senior a level of post to open up, as the order deals with junior-level posts. It is quite right that we made some changes to our original proposals as a result of the consultation. It is generally a good thing to listen to the results of consultations, and respond if appropriate.
The hon. Gentleman asked why we should wait until 2010 on the question of eligibility. It is quite normal for this level of post—a district judge-level post—to require two years of post qualification fee-paid experience so, in that sense, 2010 seemed right. We always have to balance the requirement to open up the levels of diversity and give more people a chance with the quite appropriate concern for proper quality and levels of experience. This is simply a balancing act, and we hope that 2010 is the right time to do this. One can understand why ILEX might feel a bit disappointed, but there will be a lot of opportunities coming up for fellows of ILEX over the next couple of years to get involved in the kind of appointments that were not open to them until now. We very much believe in evidence-based policy making and ensuring that we check what goes on and look at the impact of these changes. That plays into the point that the hon. Gentleman raised about how we are going to report back, and it also refers to the point that the hon. Member for Birmingham, Yardley made in his short contribution.
We have undertaken to come back and review in two years’ time the impact of the proposals on the extra bits of the legal profession that we are opening up to judicial appointment, to see what the outcome is. It is quite appropriate that we report those results to Parliament. One would hope that that would enable us fully to understand the impact of what we have done on increasing both diversity and quality. I do not expect to see the quality of our judiciary falter in any way. I hope that the hon. Gentleman is happy with that assurance and that the Committee will feel able to support this statutory instrument.
Question put and agreed to.
Committee rose at thirteen minutes to Three o’clock.

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