Judicial Appointments Commission (Amendment) Regulations 2025

Lord Kirkhope of Harrogate Excerpts

Monday 8th December 2025 Grand Committee

[The Parliamentary Under-Secretary of State, Ministry of Justice (Baroness Levitt) (Lab)]

My Lords, this amends the Judicial Appointments Commission Regulations 2013, which govern the composition of and eligibility criteria for the board of commissioners of the Judicial Appointments Commission, to which I shall refer as the JAC for brevity.

As your Lordships will be aware, the JAC is the independent body established under the Constitutional Reform Act 2005 to select candidates for judicial office in England and Wales, and for some tribunals with UK-wide powers. It is governed by an independent board of commissioners, appointed by His Majesty the King, on the recommendation of the Lord Chancellor.

One of the board of commissioners’ primary objectives is to ensure that the JAC fulfils its statutory responsibilities and obligations. These include ensuring that judicial appointments are made solely on merit through fair and open competition and having regard to diversity and good character. Commissioners oversee the selection processes, review recruitment strategies and make final selection recommendations to the appointing authority.

The current regulations set out the structure of the JAC’s board, specifying that there should be 15 commissioners, including a lay—i.e. non-judicial—chair. Of the other 14, seven must be judicial officeholder members, five must be lay members and two must be professional members—that is, people practising or employed as lawyers.

One of the purposes of these regulations is to expand the number of professional members from two to three, which will then expand the overall number of commissioners. Each of the professional commissioners must come from one of the three categories of legal professional; they must be either a barrister or a solicitor or a fellow of CILEX, which is the Chartered Institute of Legal Executives. At the moment, there is a barrister commissioner and a solicitor commissioner, but there is no CILEX commissioner. Apart from the three senior judicial members, the other 12 commissioners are recruited and appointed through open competition.

The regulations are being updated to strengthen the JAC’s capacity and ensure its continued effectiveness in judicial recruitment in two ways. First, the total number of JAC commissioners will be increased from 15 to 16, which is needed because of the anticipated increase in the volume of work. This will be done by increasing the number of professional commissioners from two to three. The requirement that they be from different professions will remain, so the effect will be that all three main legal professions—barrister, solicitor and CILEX fellow—are represented simultaneously on the board.

The reason this matters is that CILEX membership is generally more diverse than the other legal professions. Some 78% of CILEX fellows are women, and because CILEX provides a non-graduate route to become a lawyer, its members tend to be from more varied socioeconomic backgrounds. This amendment will support the JAC in its duty to promote diversity in judicial appointments by providing for a commissioner to lead on outreach in this field.

Secondly, there is, at present, an anomaly in the eligibility criteria for the senior tribunal commissioner role. These regulations will expand the eligibility criteria by including a wider range of senior salaried tribunal officers. Currently, only Upper Tribunal judges, chamber presidents of the First-tier Tribunal, chamber presidents of the Upper Tribunal and presidents of employment tribunals for England, Wales and Scotland are eligible.

The effect is that it is not open to all senior salaried members within the unified tribunal structure. In order to remedy this, the amendment expands eligibility to include all salaried members of the Upper Tribunal, certain judges of the Employment Appeal Tribunal, deputy chamber presidents of the First-tier Tribunal and deputy chamber presidents of the Upper Tribunal. This ensures equality of opportunity for those holding broadly equivalent roles, and it is a change that has been requested by the Senior President of Tribunals.

The extent of this instrument is UK-wide, and the territorial application of this instrument is UK-wide. The Lady Chief Justice and the JAC chair on behalf of the board, the Bar Council, the Law Society, CILEX, the Legal Services Board, the Senior President of Tribunals, the Lady Chief Justice of Northern Ireland and the Lord President of Scotland have all been consulted and are all supportive of these changes.

As far as public consultation is concerned, although there was a public consultation exercise for the 2013 regulations, it has not been considered necessary to conduct a further such exercise for these amendments given their limited effect. The amendments are necessary to strengthen the JAC’s capacity, provide greater equality of opportunity for those applying to be commissioners and support the JAC’s commitment to encouraging judicial diversity. I beg to move.

[Lord Kirkhope of Harrogate (Con)]

My Lords, I hope not to detain the Committee for very long. I declare my interest as a solicitor of the senior courts of England and Wales—a professional qualification that fills me with considerable pride even now, after many years of practice. In mixed company, where no one is aware of my political or administrative responsibilities over the years, I always indicate my function, when I am asked, as being a lawyer, not a politician, because that is the priority I place on that profession.

In no way do I wish to criticise these arrangements—indeed, I think that they are very sensible—but I want to point out a little of the history here and a bit about what I think may be a misunderstanding in the composition, particularly in relation to the three professional members that we will be discussing. Before the 19th century in this country, the provision of legal services was an amorphous, muddled arrangement that caused considerable difficulties; I will not refer to Shakespeare’s view on lawyers because plenty of people since Shakespeare have had a similarly negative view.

By the time we reached the 19th century, we had ended up with a clear division between barristers and solicitors. Although many countries went down that path and went on to merge those two sides of the legal profession into attorneys or some other single name, we retained that until the Legal Services Act 2007, so who a lawyer is has probably always been, in most people’s minds, a solicitor or a barrister.

We were then joined by legal executives: fellows of CILEX. I must pay tribute to the people who had previously been described as managing clerks, in terms of their functions in offices—they were people doing enormously important jobs—because all of my knowledge of property law was given to me by the managing clerk of the firm to which I was originally articled and in which I became an assistant. I pay massive tribute to their ability and knowledge.

Originally, though, however well-equipped they were, they were not lawyers. The 2007 Act came in and redefined “lawyers”—a word that is spread around. I know that my noble friend has talked about legal practitioners; again, they are slightly different from lawyers, in my opinion. We had lawyers being redefined in 2007 as solicitors, barristers, legal executives—fellows of CILEX—and licensed conveyancers. I have to say that the word has taken on a rather broad description, frankly. A lot of solicitors now have difficulty in dealing with licensed conveyancers whose licences appear to have been granted by bodies that most solicitors have never heard of. Trademark agents, patent agents and law costs draftsmen are lawyers under the Legal Services Act 2007.

Paragraph 5.2 of the Explanatory Memorandum states that commissioners should be

“persons practising or employed as lawyers”.

This Motion has been defined by the Minister as simply being moved so that fellows of the Institute of Legal Executives are eligible to be the third lawyer. However, if you then describe lawyers more broadly in this document without defining them in the context of, specifically, fellows of CILEX—or you do not include all those defined as lawyers under the Legal Services Act 2007—it is rather confusing because, if you say “lawyers” and maintain that description, there is no reason whatever why a law costs draftsman should not be appointed, thus maintaining the diversity that the Minister rightly suggests should be brought to bear in the commission. I think that that is confusing.

I know that these documents are mostly looked at only by other lawyers, as are the constitutions of the commission. But looked at from a public point of view, or if there is an argument or a discussion, clarification of this really is necessary. The Minister made it clear and I am perfectly happy with that, but it is wrong to generalise the term “lawyers” unless you define it within the terms of eligibility in that long list I have just given of people who are now claimed to be lawyers—much to my surprise, I have to say.

I am not looking at this narrowly; I am old-fashioned and have been around so long that, as I said at the start, I always thought that lawyers were either solicitors or barristers. I did not know about this longer list because of my ignorance in not actually having looked at the 2007 Act, which I have now read. I would be grateful if the Minister would reflect on that and perhaps make it clear—it has to be made clear somewhere—that merely being a lawyer, which is argued to be necessary in having the three representatives, is not broad at all but is actually confined to that one strand of lawyers under the 2007 definition, which is to be a fellow of the Chartered Institute of Legal Executives.

[Lord Sandhurst (Con)]

My Lords, I am grateful to the Minister for introducing these regulations. They make technical changes to the Judicial Appointments Commission. As explained, the number of commissioners will increase from 15 to 16 and a third professional commissioner will be added. This will mean, subject to the observations of my noble friend Lord Kirkhope, that a barrister, a solicitor and a fellow of the Chartered Institute of Legal Executives will be on the panel. The regulations also expand the list of offices from which the senior tribunal commissioner may be drawn. This ensures that holders of broadly equivalent judicial offices have equal opportunity to serve.

The Minister notes that these changes are intended to help the JAC manage a higher level of recruitment. The number of exercises and recommendations has grown in recent years, and the addition of a further commissioner should assist in meeting that workload. We accept that these regulations are largely technical, but remain concerned about the structure of the JAC. The current arrangements separate ultimate responsibility for judicial appointments from Ministers who are accountable to Parliament. This can weaken accountability, fracture responsibility and leave Ministers less directly answerable when appointments fail or standards fall short.

For that reason, the Conservatives continue to propose a judicial vetting committee within the Lord Chancellor’s office. Such a committee would be appointed by and accountable to the Lord Chancellor, ensuring that appointments are made on merit while restoring democratic accountability. In doing so, it would place ultimate responsibility for judicial appointments clearly with Ministers, who are answerable to Parliament and the public.

We would be grateful if the Minister could offer a few brief points of clarification. First, will the expanded eligibility of the senior tribunal commissioner affect the independence of the JAC or the balance of judicial representation? Secondly, is any further review of the JAC’s structure planned, particularly in light of proposals for a judicial vetting committee? Thirdly, will guidance be issued to ensure that adding commissioners does not create delays or extra burdens in the recruitment process?

Finally, I touch on the observations of my noble friend Lord Kirkhope of Harrogate. He acknowledged that these arrangements are sensible, but helpfully highlighted that the definition of a lawyer has been expanded over recent years to include a much wider range—not simply barristers, solicitors and, more recently, legal executives, but licensed conveyancers, patent agents and others. He suggests that the term “lawyer” is looked at carefully if it is to mean eligibility for judicial appointments, because it needs clarification if it is not to extend to a wider range than those in the three premier categories—if I can call them that—of barristers, solicitors and legal executives. Having said that, and subject to the assurances which I have sought, we on this side recognise the technical purposes of these regulations and are content not to oppose them.