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It is perfectly true that the very long amendment that I seek to delete has not been debated in its entirety. Whatever side issues may have arisen from it, it was not debated and there was no time in the other place to do so. That is a serious matter.

If all the decisions on whether tissue can be used must go before the body to which the noble Baroness referred, I would point out that in my experience such bodies take a long time to decide on cases. I imagine that there must be some urgency before the use of the tissue passes over. That may negate any point in passing it to another body first and saying, “Can we do this?”

There are very sincere and big worries about this legislation and I beg the Government to receive what I have said in the sense in which it is offered to them and recognise that we face here a most serious matter, which could well lead the Government into trouble later if it is decided to challenge the Article 8 position. I wish to test the opinion of the House.

9.26 pm

On Question, Whether the said amendment (No. 92A) shall be agreed to?

Their Lordships divided: Contents, 34; Not-Contents, 105.

Division No. 3


Alton of Liverpool, L. [Teller]
Astor, V.
Bates, L.
Byford, B.
Carnegy of Lour, B.
Cotter, L.
Crathorne, L.
Denham, L.
Dixon, L.
Donoughue, L.
Elton, L.
Ferrers, E.
Fookes, B.
Glentoran, L.
Greaves, L.
Hylton, L.
Kirkham, L.
Knight of Collingtree, B.
Lyell, L.
Mackay of Clashfern, L.
Maginnis of Drumglass, L.
Masham of Ilton, B.
Mayhew of Twysden, L.
Morris of Bolton, B.
Neill of Bladen, L.
Norton of Louth, L.
O'Cathain, B. [Teller]
Rowe-Beddoe, L.
Skelmersdale, L.
Southwell and Nottingham, Bp.
Tombs, L.
Ullswater, V.
Waddington, L.
Williams of Crosby, B.


Adams of Craigielea, B.
Addington, L.
Alderdice, L.
Alli, L.
Amos, B.
Andrews, B.
Archer of Sandwell, L.
Bach, L.
Barker, B.
Bassam of Brighton, L. [Teller]
Bew, L.
Bilston, L.
Boyd of Duncansby, L.
Bradley, L.
Brett, L.
Brooke of Alverthorpe, L.
Campbell-Savours, L.
Carter of Barnes, L.
Clark of Windermere, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Craigavon, V.
Darzi of Denham, L.
Davidson of Glen Clova, L.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Desai, L.
Drayson, L.
D'Souza, B.
Dubs, L.
Elder, L.

29 Oct 2008 : Column 1674

Evans of Parkside, L.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Ford, B.
Foster of Bishop Auckland, L.
Gale, B.
Gibson of Market Rasen, B.
Goudie, B.
Greengross, B.
Grocott, L.
Harris of Haringey, L.
Harris of Richmond, B.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Hilton of Eggardon, B.
Howe, E.
Howells of St. Davids, B.
Howie of Troon, L.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Joffe, L.
Judd, L.
Kirkwood of Kirkhope, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
McKenzie of Luton, L.
Malloch-Brown, L.
Manningham-Buller, B.
Massey of Darwen, B.
Mawson, L.
Maxton, L.
Mitchell, L.
Moonie, L.
Morgan of Huyton, B.
Morris of Yardley, B.
Myners, L.
Neuberger, B.
Noakes, B.
Parekh, L.
Patel, L.
Patel of Bradford, L.
Quin, B.
Rea, L.
Rendell of Babergh, B.
Richard, L.
Rodgers of Quarry Bank, L.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sawyer, L.
Shutt of Greetland, L.
Simon, V.
Stone of Blackheath, L.
Taylor of Bolton, B.
Thomas of Gresford, L.
Thomas of Winchester, B.
Thornton, B.
Tomlinson, L.
Tonge, B.
Truscott, L.
Tunnicliffe, L.
Vadera, B.
Walmsley, B.
Walton of Detchant, L.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Whitaker, B.
Wilkins, B.
Young of Norwood Green, L.

Resolved in the negative, and amendment disagreed to accordingly.

On Question, Motion agreed to.

9.36 pm
Commons Amendments Nos. 93 to 103

Lord Darzi of Denham: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 93 to 103, to which I have spoken with earlier amendments.

Moved accordingly, and, on Question, Motion agreed to.

Commons Amendment No. 104

104: Page 99, line 24, at end insert-

“2A In section 7 of the 1990 Act (reports to Secretary of State) for subsection (1) substitute-

“(1) The Authority shall prepare-

(a) a report for the period beginning with the 1 August preceding the relevant commencement date (or if that date is a 1 August, beginning with that date) and ending with the next 31 March, and

(b) a report for each succeeding period of 12 months ending with 31 March.

(1A) In subsection (1)(a) “the relevant commencement date” means the day on which paragraph 2A of Schedule 7 to the Human Fertilisation and Embryology Act 2008 comes into force.

(1B) The Authority shall send each report to the Secretary of State as soon as practicable after the end of the period for which it is prepared.””

29 Oct 2008 : Column 1675

Lord Darzi of Denham: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 104, which refers to the requirement on the Human Fertilisation and Embryology Authority, the HFEA, to produce an annual report. Section 7 of the 1990 Act requires the HFEA to produce an annual report. Section 7(1) requires a report covering a year that runs from August to July, reflecting the fact that the HFEA came into operation on 1 August 1991.

The Treasury’s Financial Reporting Manual requires non-departmental public bodies such as the HFEA to produce an annual report to accompany their annual accounts. It is therefore practical that we amend the reporting period in the 1990 Act to cover the financial year April to March in line with the requirements of the Financial Reporting Manual.

Amendment No. 104 is purely a minor administrative amendment to bring the statutory reporting requirements into line with Treasury guidance. There is no change to the requirement for the Secretary of State to lay the annual report, or any other reports produced under this section, before Parliament.

Moved, That the House do agree with the Commons in their Amendment No. 104.—(Lord Darzi of Denham.)

Baroness Barker: My Lords, it will come as a relief to noble Lords to know that I have absolutely no feelings on the HFEA’s annual report that I wish to share with them. However, I should like to thank the Government for the assistance that they have given to those of us in the Opposition parties during the passage of the Bill. I thank also the Bill team, which has been outstanding. I thank the scientific noble Lords for the medical education that some of us have received. I thank also those Peers with whom I did not always agree but who were always assiduous in putting forward some very difficult and technical views. The Bill that we have before us is a great deal better than the Bill which first appeared in this House. I offer thanks from these Benches.

On Question, Motion agreed to.

Commons Amendments Nos. 105 to 118

Lord Darzi of Denham: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 105 to 118, to which I have spoken with earlier amendments.

Moved accordingly, and, on Question, Motion agreed to.

Judicial Appointments Order 2008

9.39 pm

The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bach) rose to move, That the draft order laid before the House on 6 October be approved.

The noble Lord said: My Lords, this 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

29 Oct 2008 : Column 1676

of Legal Executives, registered patent attorneys and registered trade mark attorneys for specified judicial appointments.

This statutory instrument enables the Government to effect the provisions in the Tribunals, Courts and Enforcement Act 2007, the TCE Act, which widened the pool of candidates eligible for judicial office. I will begin by discussing the changes to judicial eligibility set out in the TCE Act, some of which have already been implemented, and the reasons behind them. I will then go on to talk in detail about the content of the statutory instrument we have before us. I will do my best to explain what it does and how we put it together. I will then go on to discuss what some of the benefits of the changes will be. I hope not to be too long in moving this particular statutory instrument.

I would like to begin by providing some background to the statutory instrument. The Ministry of Justice is currently implementing Sections 50 to 52 of the TCE Act 2007. These sections change the eligibility requirements 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 if they held rights of audience for a specified period. There was no requirement that they had actually practised in the law or gained any relevant experience. That has now been changed, so that individuals wishing to apply must satisfy the judicial-appointment condition. That means that they must hold a relevant qualification and be able to show evidence of post-qualification legal experience in relation to most judicial offices. For these purposes, a relevant qualification is held by a person if he is a solicitor or barrister or holds a qualification specified under the order-making power in Section 51 of the TCE Act 2007. This change came into force on 21 July 2008. It supports quality by ensuring that all those applying for judicial office have some relevant experience in the law.

Secondly, the TCE Act reduced the number of years post-qualification legal 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. That also came into force on 21 July 2008.

The third change is the one that we are here to debate today. Section 51 of the TCE Act introduced order-making powers to enable the Lord Chancellor to extend eligibility to holders of qualifications issued by the Institute of Legal Executives, and other qualifications issued by authorised bodies under the Courts and Legal Services Act 1990 in relation to judicial offices specified in the order. The Institute of Trade Mark Attorneys and the Chartered Institute of Patent Attorneys are authorised bodies for these purposes. Qualifications specified under this power will be relevant qualifications for the purposes of the judicial-appointment eligibility condition which I mentioned previously.

The statutory instrument today gives effect to those powers. It sets out which posts fellows of the Institute of Legal Executives, registered trade mark attorneys

29 Oct 2008 : Column 1677

and registered patent attorneys will be able to apply for. I will explain the policy principle behind these changes. The key purpose of this 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.

The Government are committed to increasing public confidence in the justice system, and one way to support that is to have a judiciary that broadly reflects the society it serves. Women are under-represented in the judiciary and in fact make up less than 20 per cent of the courts’ judiciary in England and Wales. The comparable figure for the number of women in the population of England and Wales is 51.3 per cent. Similarly, 7.9 per cent of the UK population is from a BME background, but only 4 per cent of the English and Welsh judiciary fall into this category. It is essential that we take steps to ensure that we recruit judges from the widest possible pool of available talent. That is what these sections of the Act seek to do.

With regard to the statutory instrument, the Tribunals, Courts and Enforcement Act introduced order-making powers to allow the Lord Chancellor to extend eligibility for judicial office to members of certain bodies. The changes set out in this statutory instrument will, for the first time in England and Wales, open up judicial office to qualified legal practitioners other than barristers and solicitors.

I will say a word about legal executives. Only fellows of ILEX may describe themselves as legal executives. They are qualified lawyers who specialise in a particular area of law. Practitioners have to 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 have spent at least five years working under the supervision of a solicitor in legal practice, or in the legal department of a private company or of local or national government.

Trade mark attorneys are qualified legal professionals who specialise in national and international trade mark law. To be registered with ITMA, members must pass examinations in the legal procedures regarding trade mark law, not only in the UK, but also in more than 20 foreign countries. Members of ITMA must also undertake continued professional development.

Patent attorneys have 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 academic studies. Patent attorneys must register with the CIPA, pass CIPA examinations and then complete a set training period. It should be clear from these descriptions that there is a great wealth of talent within these 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 could demonstrate the qualities and abilities required of a judicial office-holder. Once this statutory instrument

29 Oct 2008 : Column 1678

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 for. As regards the range of posts, a guiding principle shaping the content of the statutory instrument was that, in the first instance, fellows of ILEX, registered patent attorneys and trade mark attorneys should be eligible for more junior level judicial posts. These have been defined as posts roughly analogous to district judge level, first-tier tribunal posts or posts requiring five years’ post-qualification experience. This was considered to be an appropriate initial level, to give time for the changes to bed in. The Lord Chancellor has the power to make further orders in future, 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 are competing successfully alongside barristers and solicitors for judicial posts, the Lord Chancellor may consider it appropriate to extend the list further.

At every stage of the process, the Ministry of Justice has been working with others to ensure that the list of posts is appropriate. A project board was set up to draft the statutory instrument and to implement the related sections of the Act. There was also a full public consultation. The Government formally consulted a wide range of interested parties and specifically contacted groups that represent particular diversity interests in the legal and judicial professions.

Most of the respondents to the consultation were broadly in favour of the proposals. There was some disappointment in ILEX that their members would not be eligible for district judge posts until 2010. ILEX considered that this staged approach was not necessary. However, the phased implementation of the office of district judge reflects the policy that candidates for that office must usually serve for two years as a fee-paid deputy district judge before applying to become a district judge. In practice, therefore, we believe that the phasing will have very little impact on the eligibility of fellows of ILEX. Apart from that issue, ILEX was supportive of the proposals.

A further outcome from the consultation was that we agreed to review the operation of the policy in two years’ time. This was requested to ensure that we continually monitor the effectiveness of the policy and its impact on diversity. We were happy to accept that suggestion.

To sum up, the statutory instrument as drafted grants the fellows of ILEX eligibility for a wide range of more junior level judicial posts. In due course, they will be eligible to apply for the office of district judge and thereafter circuit judge. Registered patent attorneys and trade mark attorneys will become eligible for specialist roles in recognition of their experience.

We believe that the changes set out in this statutory instrument will help to increase the diversity of the judiciary in terms of professional background. They will support the judiciary in further reflecting the diverse make-up of our society, which we trust will ultimately increase public confidence in our justice system. They will enhance the quality and reputation

29 Oct 2008 : Column 1679

of our judiciary by widening the range of legal experience in the eligible pool. I commend the draft order to the House. I beg to move.

Moved, That the draft order laid before the House on 6 October be approved. 27th Report from the Joint Committee on Statutory Instruments.—(Lord Bach.)

Lord Norton of Louth: My Lords, I shall be very brief but I wish to make one or two small points. I have no problem of substance with the order; it is merely a question of process. First, I commend the Ministry of Justice for the Explanatory Memorandum that accompanies the order. Some Explanatory Memoranda are not that helpful or revealing. I thought that the explanation in this document was extremely clear and extremely well done, so I should like to place on record that this represents, in effect, best practice.

I wish to make a very minor point with regard to process. As the Explanatory Memorandum makes clear and as the Minister has touched upon, the process of consultation with affected groups seems to have been well done and it is well explained. My only query concerns paragraph 7.6, which says:

“The level of public interest in the policy has been minimal”.

The way that that is expressed is refreshing, but it goes on to say:

“No individual members of the public responded”.

That may be partly due to the mode of publication, which is principally the website. Even if there had been more widespread dissemination, I suspect that public interest would still have been minimal, but it raises an important point of principle. One needs to reflect on how one goes beyond the affected interests to let people know what is going on and at least give them an opportunity to comment if they wish. That is the only real point that I wish to pick up on but I do so in the context that I find this a very good Explanatory Memorandum.

Lord Henley: My Lords, I thank the Minister in particular for his admirable brevity in introducing the order. I wish to say a word or two about timing. The Minister will know that when we originally discussed when we would debate the order, we agreed that it was to be in the dinner hour. Then the dinner hour ceased to exist and it was to be at the end of business. However, we were all assured that the end of business would be somewhat earlier than it turned out to be, which is rather unfortunate. I do not know whose fault that is. If it is the fault of the Government Whips Office, I shall get my revenge in the usual way in due course. It may be the fault of the usual channels. I have been part of the usual channels and I know that sometimes they get things wrong. It may be my own fault in naively accepting the original deal as to when the order would be debated. Whatever has happened, it is unfortunate that we have had to delay dealing with the order as much as we have, particularly as we were assured that it would happen somewhat earlier.

I turn to the substance of the order. Like my noble friend Lord Norton of Louth, I, too, was grateful for a very clear Explanatory Memorandum. Sometimes when one gets an order one cannot understand it at all. One turns to the Explanatory Memorandum but is left in

29 Oct 2008 : Column 1680

even greater confusion about what is going on. On this occasion, the whole thing was clear and we were grateful for that.

Secondly, and again like my noble friend Lord Norton of Louth, we were grateful for the level of consultation that took place on this order, particularly in the light of some of my past comments to the Minister about consultation on Titan prisons, or whatever. That a large number of bodies were consulted, both within government and outside in the voluntary sector, is listed in paragraph 7.7 of the Explanatory Memorandum. We are also grateful that the Government took some note of the consultation that took place, in that a point that the CBI put to them about whether certain fellows of ILEX might not have enough experience to sit on employment tribunals was taken into account.

I understand that the CBI was concerned about another tribunal, and on that occasion—I forget which, but the noble Lord may be able to remind me—the Government did not accept their concerns. Will the Minister deal with that point, and say whether it would also have been wise to have listened to the CBI on that concern? Having said that, we have no objection to the order.

Lord Thomas of Gresford: My Lords, your Lordships should know that I have always been a supporter of the Institute of Legal Executives, because from the time I started in the legal profession I realised that there were many people of great talent whose background had prevented them qualifying in the usual way. One problem with the legal profession was that it set up barriers that prevented people fulfilling their talents. For many people, the Institute of Legal Executives was a major step forward in opening the door to a professional qualification. I am pleased to have been a part of the process of seeing their chances and opportunities developing.

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