Judicial Appointments (Amendment) Order 2023

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Judicial Appointments (Amendment) Order 2023.

My Lords, this order amends the Judicial Appointments Order 2008, which made chartered legal executives eligible for some judicial offices using powers under the Tribunals, Courts and Enforcement Act 2007. The order before us in effect adds three judicial offices for which members of the Chartered Institute of Legal Executives become eligible. Those three offices are that of recorder, judge of the Upper Tribunal and deputy judge of the Upper Tribunal. The purpose of the order is twofold: first, to widen the pool of people who are eligible to apply for these important judicial roles and, secondly, to further encourage diversity in the judiciary. The 2008 order made CILEX fellows eligible for various judicial offices such as district judge and judge of the First-tier Tribunal, and this draft order adds three offices to the list in that order.

Perhaps I could say a little bit at this stage about judicial diversity, which is a central part of understanding this order. Since 2013, the Lord Chancellor has had a statutory duty to encourage judicial diversity. The Judicial Diversity Forum has worked since 2015 to improve judicial diversity. There has been progress. Last year, 50% of newly appointed judges, taking the judiciary as a whole, were women, and 14% were from ethnic minorities. We know that we have a long way to go, however, and there is certainly less diversity in the senior judiciary.

CILEX offers an important route to increasing judicial diversity. It is interesting to note that 77% of CILEX fellows are women. Additionally, CILEX provides a non-graduate route to becoming a lawyer; it can and does attract candidates from diverse socioeconomic backgrounds, with considerable benefits for social mobility.

The important change in this order is another step towards it being a lawyer’s merit, rather than their particular method of obtaining their legal qualification, that determines suitability for judicial appointment.

As for the offices with which the order is concerned, it is already the case that a CILEX fellow can become a circuit judge if they have held office as a district judge for three years. Our position is that there is no substantial reason why they should not become recorders, which is an equivalent fee-paid role. The cadre of recorders is not currently as diverse as the Government would wish: only 28% of recorders are women and just 7% are from non-barrister backgrounds. It is important to encourage greater diversity in appointments to that office. As far as the judges of the Upper Tribunal are concerned, CILEX members can already be judges of the First-tier Tribunal, and that would normally entitle someone to be considered for the office of judge of the Upper Tribunal. That addition remedies a small anomaly in this area.

I will take this opportunity to say a word about the Government’s vision for the CILEX profession. CILEX offers a non-graduate pathway to law, enabling professionals from varied backgrounds to have a fulfilling legal career. Chartered legal executives are authorised under the Legal Services Act 2007 to carry out some of the reserved legal activities prescribed under that Act. As the legal services market has evolved, chartered legal executives now exercise many of the same functions as solicitors. The Government’s ambition is to ensure that there are no unnecessary barriers preventing CILEX members progressing their careers.

Two other examples come to mind. One is in relation to powers of attorney, which will be dealt with in forthcoming legislation. The other is about enabling, in a different context, CILEX members to perform the role of duty solicitors in police stations in criminal cases. This statutory instrument is in line with the Government’s overall vision to create and improve diversity in the profession and in the pool of potential applicants.

The Government consulted widely on this proposal. We consulted members of the Judicial Diversity Forum, the Judicial Appointments Commission, the three legal professions—barristers, CILEX members and solicitors—and the Legal Services Board. All consultees were in favour of encouraging more CILEX members to join the Bench. The Government are required formally to consult the Judicial Appointments Commission and the Lord Chief Justice, and I am happy to report that both have confirmed that they support the order. With that background, I commend the order to the Committee.

My Lords, this is a non-controversial instrument and we, the Opposition, support it. I am grateful to the Minister for setting out the priorities, particularly the priority to encourage diversity. He said that about 50% of newly recruited judges are women, and 14% are from ethnic minorities.

I want to drill down a little on that latter figure. My understanding is that the ethnic minorities are not evenly spread: some ethnic minority groups are far worse represented than others. From my perception as a magistrate, black men are about the worst represented in the magistracy, and I suspect that it may well be the same for the judges. It has to be said that we see a larger proportion of black men in our courts as defendants, so this is a concerning situation. It emphasises the importance of encouraging diversity and actively recruiting among certain ethnic minority groups to try to improve that situation.

The Minister made another point about people from non-graduate backgrounds applying for judicial appointments and said that they can work their way through CILEX to become a judge, as he showed. As he knows, I sit as a magistrate, and I remember that when I was first sitting as a magistrate, we still had a few magistrates’ clerks who were non-graduates. I understand that this is still possible, although it is quite unusual these days. Certainly all the legal advisers I have spoken to think it is something that should be kept as a route for people to work their way up through to becoming a legal adviser and then on to becoming a judge if that were possible. I do not know whether the route up through the magistrates’ clerk’s career, if I can put it like that, is something else that would be covered by this or is already covered within these provisions. I look forward to the Minister’s answer to that point. I think it is a good thing to maintain non-graduate routes potentially to the very top as there are in other professions.

My Lords, I understand—and I will correct the position in writing if I am wrong—that CILEX members can already be appointed as legal advisers. Speaking for myself, I would certainly support the idea that we should preserve non-graduate routes from the “lowest” position right through to the highest. I think that is essential so that everyone can work their way up without necessarily having to spend enormous sums of money on obtaining very expensive legal qualifications, in some ways, top-heavy legal qualifications, as is currently sometimes the position. The noble Lord’s point on that is very well taken, and the Government must certainly bear it in mind.

As to judicial diversity in general, the judicial diversity forum works on this. There is a programme known as PAGE which supports potential judicial applicants from underrepresented groups. I understand that, by December last year, 667 lawyers had participated in workshops run through that programme. The MoJ is providing considerable amounts of funding and there is in additional £200,000 for 2023 for the targeted outreach programme—TOP—managed by the Judicial Appointment Commission to support diverse candidates towards more senior roles. By December 2022, 229 candidates had had one-to-one advice from a senior team with expert knowledge of the selection process to improve their chances. Forty people who participated in the PAGE programme have subsequently become judges. It is perfectly true, as the noble Lord said, that in terms of ethnic minorities the position is somewhat unbalanced and there are fewer black participants than the Government would wish, but it is the case that black PAGE participants who have applied to be judges have been appointed at a rate more than double that of the wider pool of black candidates over the past three years, so there is some evidence of success in this programme, which needs to be fully reinforced.

The Government are very conscious of the situation to which the noble Lord refers and will continue to work on improving that matter, as well as on encouraging female candidates from ethnic minorities. That is another very important element of outreach and is emphasised in the TO programme run by the Judicial Appointments Commission. This is ongoing work and I hope the Government will never take their foot off the pedal in this regard. I commend the order to the Committee.

Motion agreed.