Draft Judicial Appointments (Amendment) Order 2023
(1 year, 6 months ago)
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The Parliamentary Under-Secretary of State for Justice (Mike Freer)
I beg to move,
That the Committee has consider the draft Judicial Appointments (Amendment) Order 2023.
It is an honour to work under your chairmanship, Mr McCabe. This draft statutory instrument amends the Judicial Appointments Order 2008, which made chartered legal executives eligible for some judicial offices using powers granted by the Tribunals, Courts and Enforcement Act 2007. The draft order, which amends the Judicial Appointments Order 2008, will be made under section 51 of the Act and will make chartered legal executives—fellows of the Chartered Institute of Legal Executives, known as CILEX—eligible for three additional offices: recorder, judge of the upper tribunal and deputy judge of the upper tribunal. The purpose of the draft order is twofold: to widen the pool of people who are eligible to apply for those important judicial roles; and to increase the range of roles for which CILEX fellows are eligible.
CILEX offers a non-graduate pathway to law, enabling professionals from various backgrounds to access a legal career. Chartered legal executives are authorised persons under the Legal Services Act 2007, meaning that they carry out some of the reserved legal activities prescribed in the Act. The legal services market has evolved over many years to allow chartered legal executives to exercise many of the same functions as solicitors, although there are still some differences in the legal functions that they may undertake.
The Government are clear that expanding the eligibility of CILEX fellows to a wider range of judicial offices is the right thing to do, as the judicial appointment eligibility condition can be a barrier to being able to draw on the widest pool of lawyers who are eligible to be a judge. That forms part of a wider Government ambition to ensure that no unnecessary barriers prevent CILEX members from progressing their careers.
I will talk briefly about judicial diversity. The draft order is consistent with the Lord Chancellor’s statutory duty to encourage judicial diversity. The Government have been working as part of the Judicial Diversity Forum since 2015 to improve judicial diversity. Last year, 50% of newly appointed judges were women, and 14% were from ethnic minorities. We know that we have a long way to go, as only 41% of serving judges are women and only 10% are from ethnic minorities. There is less diversity in the senior judiciary. However, 77% of CILEX fellows are women, and as CILEX provides a non-graduate route to becoming a lawyer, it attracts candidates from diverse socioeconomic backgrounds, with benefits to social mobility. The change in the draft order would be one step towards a lawyer’s ability, rather than their method of qualification, determining suitability for judicial appointment.
My right hon. Friend the Lord Chancellor met the Chair of the Select Committee on Justice, my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), who asked if we had consulted other legal professions about the draft order. I confirm that we sought a range of views on the proposal. We consulted members of the Judicial Diversity Forum, which includes the judiciary, the Judicial Appointments Commission and the legal professions, on the broad proposals to extend CILEX eligibility for judicial office.
The responses having been considered, the Government’s decision has been to move incrementally, with three additional offices included in the draft order. The Government are required to consult formally the Judicial Appointments Commission and the Lord Chief Justice on amendments to the 2008 order. I am happy to report that, having reviewed the draft order, both have confirmed that they support it.
Finally, I emphasise that the draft order does not change the requirement for CILEX fellows—as for all candidates—to demonstrate through the Judicial Appointments Commission’s selection process that they meet the bar to be appointed on merit. Ultimately, the independent, rigorous and merit-based selection undertaken by the Judicial Appointments Commission provides an objective test of whether a lawyer, irrespective of their legal qualification, meets the high threshold to be a judge.
In summary, I am confident that the draft order, supported by the diversity programmes delivered by the members of the Judicial Diversity Forum, will result in a wider range of judicial offices being accessible and open to CILEX fellows. The draft order can only be to the benefit of the courts and tribunals and the people whom they serve. I therefore commend the draft order to the Committee.
Afzal Khan (Manchester, Gorton) (Lab)
It is a pleasure to serve under your chairmanship, Mr McCabe. I thank the Minister for outlining the provisions of the draft order. As he explained, today’s SI amends the Judicial Appointment Order 2008 to extend eligibility for fellows of the Chartered Institute of Legal Executives to be appointed deputy judges and judges of the upper tribunal and recorders, provided that they have gained at least seven years’ experience. We are pleased to support the SI, particularly on account of its welcome potential to increase judicial diversity.
As the Minister noted, CILEX lawyers are notably more diverse than other groups of legal professionals. We agree with the Government that increasing opportunities for excellent and experienced lawyers to join the bench will strengthen our judiciary. A huge amount of work needs to be done to improve judicial diversity. For example, black judges make up just over 1% of the judiciary of England and Wales, and that figure has not improved over the last 10 years. In the words of my right hon. Friend the Member for Tottenham (Mr Lammy), in his previous role as the shadow Justice Secretary, it is an “absolute scandal”.
Analysis by the Law Society demonstrates that at the rate of current progress it could take until the year 2149 for the proportion of the judiciary who are black to match the current estimate for the general population. I agree with the Law Society’s president Lubna Shuja that those figures are simply unacceptable. While today’s measures are welcome, we must recognise that their impact in driving improvements in judicial diversity will be limited. I would be grateful if the Minister would share with us the other plans that his Department is working on to improve progress in this area, and any modelling it has undertaken on the potential impact of today’s changes on diversity in the judiciary.
Today’s draft order may also have a very small impact in assisting with the ongoing issues with judicial availability that the Government have overseen. The problem continues to contribute substantially to the record court backlogs. That is especially the case in the Crown court, which has a backlog of more than 60,000. I would be interested to hear any figures that the Minister’s Department has produced on the anticipated number of judicial vacancies that may be filled by the widening of eligibility that we are discussing.
We welcome the Government’s measures to address the deeply entrenched problems surrounding judicial diversity and availability. However, today’s draft order will have a minimal impact on the issue. We believe that the opportunity to serve as recorders or judges of the upper tribunal should not be denied to outstanding lawyers simply because of how they qualified. I am therefore glad to offer our support for the SI.
Angela Crawley (Lanark and Hamilton East) (SNP)
The Scottish National party supports today’s statutory instrument to extend the eligibility of CILEX lawyers and applauds its aim of creating a more diverse judiciary. The statutory instrument will affect Scotland only in so far as the position of upper tribunal judges, but the impact on the wider judiciary is also welcome. The legislation will allow 4,500 experienced lawyers to apply for judicial roles and take on new challenges in their career. I hope that that will allow greater diversity, more women and more minority ethnic lawyers to enter the judiciary, with all the benefits that that will bring for applying the rule of law and widening access.
Mike Freer
I reassure the shadow Minister, the hon. Member for Manchester, Gorton, that we do not have enough time today to inform him of all the good work that we are doing to recruit judges and widen diversity, but I am happy to meet him privately. It will take some time to explain to him all the successes of the Government. Widening the pool, and widening diversity, but ensuring that our new judges are both skilled and experienced is a good thing, and I commend the draft order to the Committee.
Question put and agreed to.