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 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 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 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 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.)
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.
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 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.
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.
The Minister may recall that, during the passing of the Bill, I spoke in favour of these proposals and said I did not believe there should ever be a ceiling for legal executives. There should be no doors closed, and no ceiling, but at the same time there have to be standards. It is important that we remember, at all times, the principles for judicial appointments: independence of the judiciary, appointment on merit, equality, openness, transparency, efficiency and effectiveness. The judiciary, very properly, have high standards because they serve the public, who have to have confidence at the levels of both district judges and first-tier tribunals, which is how these proposals are now framed.
I am grateful to the Minister for his explanation and support fully the aim of the order. I look forward to seeing many people, from all sorts of diverse backgrounds—people who have, in the past, been prevented from giving their talents to the service of the public—coming on board the judiciary and playing an important part in the legal life of this country.
My Lords, I thank all noble Lords who have spoken for their support for this statutory instrument. It is a real compliment to the department that the noble Lord, Lord Norton of Louth, with his expert eye on these matters, should have picked out this Explanatory Memorandum for praise, which I will ensure is passed back to the department. Sometimes, this House quite rightly criticises, which I am sure gets back to the department; but, equally, when there is praise that should get back there too. I am grateful to the noble Lord, Lord Henley, for supporting that view of the memorandum in this case.
The noble Lord, Lord Norton of Louth, referred to the lack of public interest in the consultation. He will know that consultation papers were set out on a website and we would be very interested to know if he has some thoughts about how better and more widely we can give information about such an important consultation in future. Perhaps the noble Lord would be good enough to let us know. It is a matter of some interest. He will know also that a wide group of bodies was consulted. He can imagine who they were and I have a copy of them here. We are grateful for the noble Lord’s comments.
I am grateful also to the noble Lord, Lord Henley, for his support and his comments. He mentioned the concerns of the CBI. Concerns were expressed by the CBI and the TUC that fellows of ILEX would not possess the necessary skills and experience to act as judges in employment tribunals. There was some lengthy consideration and negotiation with all those involved and with the Department for Business, Enterprise and Regulatory Reform, which has responsibility for policy on employment tribunals. It was decided that employment tribunals should remain on the list.
Finally, but not least, I am grateful to the noble Lord, Lord Thomas of Gresford, who has for many years been a keen supporter of the widening of eligibility for judicial appointments. He should be pleased and proud that what he has supported for many years is now happening. I do not have as much experience of legal executives as he does, but I have quite a bit. Speaking personally, as well as a member of the Government, I am delighted that this Act of Parliament and the regulations that arise from it are being put into effect.
On Question, Motion agreed to.