Schedule 13 - Judicial appointments

Crime and Courts Bill [Lords] – in a Public Bill Committee am 11:30 am ar 31 Ionawr 2013.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Damian Green Damian Green Minister of State (Ministry of Justice and Home Office) , The Minister for Policing and Criminal Justice 11:30, 31 Ionawr 2013

I beg to move Government amendment 69, in schedule 13, page 219, line 12, at end insert—

“8A In section 27 of the Constitutional Reform Act 2005 (selection for appointment to Supreme Court to be on merit etc) after subsection (5) insert—

(5A) Where two persons are of equal merit—

(a) section 159 of the Equality Act 2010 (positive action: recruitment etc) does not apply in relation to choosing between them, but

(b) Part 5 of that Act (public appointments etc) does not prevent the commission from preferring one of them over the other for the purpose of increasing diversity within the group of persons who are the judges of the Court.”’.

Photo of Nadine Dorries Nadine Dorries Ceidwadwyr, Mid Bedfordshire

With this, it will be convenient to discuss amendment 77, in schedule 13, page 219, line 31, at end insert—

‘() Each of the Lord Chancellor and the Lord Chief Justice of England shall lay before Parliament a report annually, describing—

(a) their performance of the duty in this section;

(b) the contribution made towards a more diverse judiciary in the preceding year; and

(c) the composition of the judiciary, including the number of part-time and full-time judges, gender, educational background and other relevant demographic data.’.

Photo of Damian Green Damian Green Minister of State (Ministry of Justice and Home Office) , The Minister for Policing and Criminal Justice

Government amendment 69 applies a “tipping point” provision to UK Supreme Court appointments, similar to the one being applied to other judicial appointments in England and Wales by paragraph 9 of schedule 13. It will allow a selection commission to take diversity into consideration when making the final selection decision between two candidates of equal merit. However, I stress that the provisions will come into play only when two candidates for a Supreme Court appointment have satisfied the merit criteria.

The Government’s position has always been that the tipping point principle should apply to Supreme Court appointments, and we believe that section 159 of the Equality Act 2010 could already be applied to Supreme Court appointments. However, that interpretation was questioned on Third Reading in the other place, and the Government undertook to consider whether there was merit in putting the issue beyond doubt through an express statutory provision. After further consideration, we decided to introduce this amendment to remove any uncertainty that the tipping point applies to Supreme Court appointments. I look forward to hearing what the hon. Member for Darlington has to say about amendment 77, which she has tabled, before I respond to it.

Photo of Jenny Chapman Jenny Chapman Shadow Minister (Justice)

Amendment 77 deals with a requirement that

“the Lord Chancellor and the Lord Chief Justice of England shall lay before Parliament” an annual report on progress in this area. I should say that we strongly welcome the provisions in the Bill that address judicial diversity, and we support Government amendment 69, which the Minister has just moved. It is very welcome, and it is encouraging to see cross-party support and consensus on the issue. To demonstrate  that, I shall reference the words of a Liberal Democrat Member of the other place, Lord Marks, who, in debating the issue, noted that

“for all its strengths, the judiciary is…too white, too male and too middle class to be representative of the society it serves.”—[Official Report, House of Lords, 4 December 2012; Vol. 741, c. 582.]

He shares the view, expressed by the Government in their consultation on the issue, that a judiciary that does not adequately reflect our contemporary society does some damage to public confidence in our system. Diversity matters, for reasons of representation, equality of opportunity and the quality of the profession.

The House of Lords Select Committee on the Constitution, in its report on judicial appointments published last year, opened the third chapter with this statement:

“We take it as a given that no-one should be prevented from becoming a judge merely by reason of their sex, race, religion or other protected characteristic”.

It stresses that diversity incorporates a number of other elements,

“including disability, sexual orientation, legal profession and social background.”

It is social background that we are particularly interested in. The Constitution Committee rejected

“any notion that those from under-represented groups” were “less worthy candidates” or that a more diverse judiciary would

“undermine the quality of our judges”.

I am trying to skip through this, Ms Dorries, as I know that we are trying to make progress today.

There is a significant benefit to increasing the pool of talent that is considered. That does not endanger appointment on merit, which I know would concern members of the Committee, but it does increase the choice of meritorious candidates from which to pick. We have only to look at the Government Benches in this Committee. It is not that there are not any stunningly brilliant women members of the Liberal Democrat or Tory parties in Parliament, but obviously there are not enough to enable the Government to select any for the Committee. [Interruption.] It is a fact.

In 2011, only 22.3% of the judiciary were women and 5.1% were black and minority ethnic. Only one in 20 judges are non-white and fewer than one in four are female. The trouble is that the higher up we go, the worse the situation is and the less representative it becomes. In the Supreme Court, there is only one female on the bench compared with 10 males. There are no female heads of division; all five are male. Only four out of the 37 lords justices of appeal are women, and only 17 out of 108 High Court judges.

As Baroness Hales commented, we need

“a variety of dimensions of diversity”.

I referred earlier to social mobility and the social background of judges, which is just as important as gender. I would like to refer to Alan Milburn’s report on social mobility. When we speak about diversity, it is important to be aware of the many different concerns that come into play. The eight protected characteristics listed under the Equality Act are age, disability, gender reassignment, pregnancy and maternity, race, religion or belief, sex and sexual orientation. When addressing access to the professions, however, another aim must inform our efforts—social mobility.

The panel on fair access to the professions, which was chaired by the former Darlington MP Alan Milburn, was established by the previous Government in 2009 and produced a report in the same year. In his findings, Alan Milburn noted that

“alarmingly…there is strong evidence, given to the Panel, that the UK’s professions have become more, not less, socially exclusive over time…The default setting in too many professions, particularly at the top, is…to recruit from too narrow a part of the social spectrum.”

We are being asked to consider judicial diversity today. Members across the House and the profession know, and the numbers demonstrate, that the judiciary is one of the least representative professions. Only 7% of our population attend independent schools, but more than 70% of judges did. If we are to address the representative nature of our judiciary, we need to have a discussion, at least, about why it is still the case that a talented student from a school in my constituency is less likely to make it to the bench than an equally talented child raised in different circumstances.

Photo of Gavin Barwell Gavin Barwell Ceidwadwyr, Croydon Central

I completely share the concerns that the hon. Lady is expressing about the lack of representativeness in our judiciary, and indeed many other professions. What is her analysis of the answer to the question that she has just posed? Why does she think that an equally talented young person from her constituency has less chance of reaching the top of one of the professions?

Photo of Jenny Chapman Jenny Chapman Shadow Minister (Justice)

I recommend that the hon. Gentleman read the report on fair access to the professions, because he will find in it many suggested solutions. There are important recommendations concerning information, advice and guidance; Sure Start; young people making different choices early in their school careers; and mentoring opportunities. The judiciary and legal profession are entering into some of those areas now. I recommend that he looks again at that report. He indicates that he has, so he should know where I am coming from.

The report provides a number of recommendations—this might help the hon. Gentleman—to address levels of social mobility and the barriers to opportunity that face many potential candidates, often from particular backgrounds. The report places responsibility for making progress in a wide range of camps, including both the Government and the profession itself. A I said, it is hugely encouraging to see the Government’s commitment to increasing diversity. However, it is less encouraging when considered against a background of policies such as lack of protection for Sure Start funding and the scrapping of education maintenance allowance, both of which directly hit the early life chances of young people from disadvantaged backgrounds.

The key action needed was the establishment in the Constitutional Reform Act 2005 of the Judicial Appointments Commission. That commission was established by the previous Government to maintain and strengthen judicial independence, by taking responsibility for selecting candidates for judicial office out of the hands of the Lord Chancellor and making the appointments process clearer and more accountable.

In section 64 of the Act, the then Government placed on the commission a statutory duty to encourage diversity. I am pleased to note that the current Government have  agreed, after some persuasion in another place, to extend that duty to the Lord Chancellor and Lord Chief Justice. The figures do show some improvement. Since its creation, the JAC has made almost 2,500 selections. More than 35% of those were women, and at least 9% were black and minority ethnic. Of selections for the courts, approximately 34% were women and 7% were black and minority ethnic. There is still a huge way to go.

We welcome the Government’s provisions in part 2 of schedule 13, including what is perhaps the centrepiece of the schedule, the tipping point principle. Our amendment 77 is intended to build on progress that has already been made and strengthen provisions in the Bill. In the response to the pubic consultation on judicial appointments, the then Secretary of State, the right hon. and learned Member for Rushcliffe (Mr Clarke), stated:

“As well as any legislative change there will need to be strong and clear leadership at all levels.”

The new statutory duty now calls for that strong leadership. Our amendment calls for the way that leadership is exercised to be clear. It would require the Lord Chancellor and the Lord Chief Justice of England to lay before Parliament a report annually. The report should describe

“their performance of the duty in this section…the contribution made towards a more diverse judiciary in the preceding year; and…the composition of the judiciary, including the number of part-time and full-time judges, gender, educational background and other relevant demographic data.”

It is a simple amendment that highlights of the importance of tracking and measuring progress.

After extending a duty to the Lord Chancellor and Lord Chief Justice and believing it important enough to be a statutory obligation, it is reasonable to ask for reports on how they have used their position for the advancement of that duty and how far they have progressed. Questions will need to be asked and answered—what continued work are the Department and the profession undertaking? Have assessments been made of the impact of reforms, such as the legal aid changes, on legal staff? What is the profile of those entering the profession?

It is vital to be able to see and evaluate progress. We will gain experience in what works and what does not and what more needs to be done. If we are to do this, let us do it properly and be willing to hold progress up for inspection. That is what the amendment is intended to do. We have specified educational background as one area on which progress should be reported, as although it is not included in the Equality Act definition of diversity, we think that in this case it is of equal importance. It is clearly an influential determinant of entry into the profession. The provisions in the Bill are certainly a step in the right direction, but amendment 77 would ensure that there is a force that keeps moving that way. I hope that the Government will consider the merits of reporting on their hard work in this area, and of asking the profession to do the same.

Photo of Valerie Vaz Valerie Vaz Llafur, Walsall South 11:45, 31 Ionawr 2013

It is a pleasure to serve under your chairmanship, Ms Dorries. I congratulate my hon. Friend on her thoughtful speech.

Clearly, we all start from the premise that amendment 77 is supported by men and women. When we consider equality issues now, we are talking about men and women, and about people from diverse backgrounds, who all support them. We have moved on since I first started out as a lawyer. Lady Justice Hallett is also trying to educate the judiciary about cultural life. Members of the Committee will recall the time when judges asked, “Who is Gazza?” and, “What is Linford Christie’s lunchbox?” Times have moved on, and we have a new set of judges coming through.

I felt that I had to say something today, partly because when people talk about equality issues, they usually feel that standards are being lowered. That is never the case; it is usually that, be they women or people from ethnic minorities, people are more qualified. The tipping point principle that the Government have introduced is clearly an excellent measure, and it reminds me of previous legislation allowing measures to be taken where a work force needs diversity in a post in order to replicate the wider work force.

It is good that this measure has come from the Government, and I want to see progress on it, which I am sure there will be. It will help people to think that if, for example, four people are applying for a job and three of them are from a different or diverse background, the job does not simply go to the one other person. I hate using terms such as “white” or “male”—I do not like describing people in that way. That is where the frustration has lain and why people do not apply for positions, because they feel that they have been excluded. However, that is another myth, because women and people from ethnic minorities are around and do apply for positions, certainly within the judiciary.

I do not know whether the Committee is aware of this, but previously, when judges were appointed they would get a tap on the shoulder. If someone appeared before a particular judge, the judge would say to them, “Come into my chambers,” where he would say, “I think you should apply for the bench.” That is why we see the judiciary in its current state. Clearly, men used to be the main barristers, solicitors and so on. To some extent it still happens now. If someone appears before a judge, the judge—whether in the High Court, the Supreme Court, or whatever—will say, “I think you should apply for it.”

However, that is changing, and I am pleased to say that the process is now very rigorous. There is a lot of mentoring and shadowing at all levels. It is not really a question of waiting for women or people from ethnic minorities to come through, because they do. We must look at what happens at the lower levels. If access to the Bar or to training contracts has been reduced, as my hon. Friend the Member for Darlington mentioned when talking about Mr Milburn’s report, people need support and help. We need only look at the Attorney-General’s panel of barristers—I ask the Government to look at ways of making that more diverse. I would ask them to consider ways of increasing the fees, because only if one has a good practice can one afford to go on the panel. The fees are absolutely minimal, and people may not want to take time away from their budding practices to try to get on to the panel.

Obviously there are certain barristers who can afford to take a brief in Luton, even though the costs of getting up there far outweigh the costs of the brief.  Sometimes simple briefs that give someone experience before a court can pay something like £30. The cost of getting to different places so that one’s clerks are pleased far outweighs that.

One has to look at what happened—I have to mention this—under the previous Government. Baroness Hale is a shining example of how to change the face of the judiciary and how to take steps to make it different. She has a background in academia. Previously, some judges would have thought, “Maybe that is not acceptable”, but she has proved to be a diligent judge. I would also have to say that about Baroness Butler-Sloss. She had not been to university, but she has been one of the most outstanding judges, male or female, in this country.

The issue is very important. To me, that is the beauty of the rule of law in this country. It is the third arm; the brilliant triangle; the checks and balances, which is why it is so important to have a diverse judiciary. Whether we are talking about a female Prime Minister, MP or anyone else, once the mould is broken, we will wonder what all the fuss was about.

Photo of Damian Green Damian Green Minister of State (Ministry of Justice and Home Office) , The Minister for Policing and Criminal Justice

The Committee will be pleased to hear that I will resist the temptation to follow the route set by the hon. Member for Darlington and have a debate on the wider policy on social mobility, because I completely agree with her that that is a central issue facing all Governments in this country—certainly all Governments since I came to this House.

One of my gloomy reflections on modern Britain is that while, on the whole, life for the vast majority of people here is immeasurably better now than it was in the 1970s, when I left school, one thing that I suspect has become worse is that it is more difficult now for someone who comes from my background—I was born in a terraced house in a small town in south Wales, to parents who had both left school at 14—to get on in life. That is one of the depressing things about modern Britain, and it is one of the reasons why hon. Members on both sides of the House feel passionately about social mobility. It is always extremely difficult to promote that, but it is important.

What the hon. Member for Darlington pointed out in relation to the lack of diversity in the Supreme Court at the moment is, unarguably, a symptom of other problems. It is not a problem created by or the fault of the Supreme Court or even the legal system as a whole, but a symptom of a much wider and deeper problem, which we are not supposed to be debating now.

Amendment 77, as the hon. Lady suggested, seeks to build on the changes introduced by the Government on Third Reading in the other place. A new statutory duty was introduced, committing both the Lord Chancellor and Lord Chief Justice to encourage judicial diversity.

The Government are firmly committed to improving diversity in the judiciary. We consider that a more diverse judiciary that reflects modern society will enhance confidence in the whole justice system. The new statutory duty will provide a visible statement of the importance that both the Lord Chancellor and the Lord Chief Justice will place on that vital issue.

We agree with the underlying principle of the amendment—namely, that it is important that statistical and other information on progress is made available, including steps being taken by the Lord Chancellor, the  judiciary and others such as the Judicial Appointments Commission and the legal professions. The publication of such information will allow the public to hold those contributory parties to account in achieving increased diversity.

However, I am not persuaded that it is necessary to set out a reporting requirement in primary legislation. The majority of the information is already published by both the Lord Chancellor and the Lord Chief Justice, through their work as joint leads on the judicial diversity taskforce. The group, which includes representation from the JAC and the legal professions, is taking forward the recommendations made by the advisory panel on judicial diversity and has committed to reporting on progress annually. The latest annual report was published last September and includes details of the latest statistical position on diversity, as well as progress on a range of other activities.

The judiciary also publishes statistical information annually concerning its diversity, both courts and tribunals-based. Parliament already possesses the appropriate mechanisms to invite both the Lord Chancellor and the Lord Chief Justice to discuss what actions they are taking on these matters, without the need to resort to statutory duties.

The Lord Chancellor also has a range of ways of promoting diversity. The Bill includes a number of valuable legislative changes that should help to promote diversity. However, we all recognise that statutory change in itself will not bring about the change we all want; the issue is just as much about cultural change. The role of the Lord Chancellor in bringing that about may be more subtle. It may include behind the scenes encouragement or challenge with the legal professions or judiciary. Such leadership is important to help drive progress, but does not necessarily lend itself to the formal reporting envisaged by amendment 77.

Although I understand the reason for the amendment, I am of the view that imposing such requirements in primary legislation is excessive and I therefore invite the hon. Lady to support the Government amendment.

Photo of Jenny Chapman Jenny Chapman Shadow Minister (Justice)

I am grateful to the Minister for his comments. The legal profession and judiciary are probably one of the better professions that have a problem with transparency, reporting and collecting information.

The Opposition will be keeping an extremely close eye on the issue and we will use other opportunities to hold Ministers to account. As the right hon. Gentleman said, there is an issue of culture and leadership, and we feel strongly that Ministers and the Secretary of State have a clear role in that. However, I am happy not to press the amendment to a Division.

Amendment 69 agreed to.

Photo of Jenny Chapman Jenny Chapman Shadow Minister (Justice)

I beg to move amendment 78, in schedule 13, page 220, line 22, at end insert—

‘Judicial appointments

14A After section 65 of the Constitutional Reform Act 2005 insert—

“65A Additional guidance

The Lord Chancellor, after consultation with the Lord Chief Justice, the Treasury Solicitor and the Chairman of the Judicial Appointments Commission, shall issue guidance as to the circumstances in which those employed by the Government Legal Service, the Crown Prosecution Service or any other  government legal office may apply for any of the judicial office or tribunal posts, which are in the remit of the Judicial Appointments Commission.”.’.

The amendment is about careers in the legal profession and how we destroy what is often called the glass ceiling, which can discourage diversity at the very top of the profession. The amendment returns to an issue touched on in the previous discussion. It is about progress to all ranks. The provision on the tipping point is welcome; it addresses access to the profession at precisely one point of the appointment process. However, we think that much needs to occur before that, so that eligible candidates can reach that point in the first place.

The amendment addresses the issues raised by both the advisory panel on judicial diversity and the panel on fair access to the professions about how a candidate moves up in a profession once they have entered it. The amendment would require the Lord Chancellor to

“issue guidance as to the circumstances in which those employed by the Government Legal Service, the Crown Prosecution Service or any other government legal office may apply for...judicial office or tribunal posts”.

It addresses a specific issue regarding opportunities for career progression in legal and judicial office.

The advisory panel on judicial diversity explicitly reported that as well as encouraging new entrants to the judiciary, progress on diversity must be sought by encouraging career progression for those who enter the profession. The panel noted that the diversity of those entering the profession is significantly greater than that of those who have the experience to apply for judicial office. Therefore, it persuasively argued that delivering a more diverse judiciary is not simply about recruiting talent where it may be found, but about retaining that talent and enabling capable individuals to reach the top. That argument was also prominent in the 2012 report, delivered by the Lords Constitution Committee, on barriers to judicial diversity. The report noted that

“women have been studying law and entering the solicitors profession in equal or greater numbers than men for over twenty years. Yet the so-called trickle-up effect whereby greater diversity amongst young lawyers should lead to a more diverse judiciary has failed to materialise to any significant degree.”

It also noted that

“other professions, for example the senior Civil Service, have made much greater and faster improvements in diversity over the last few decades”

than has been accomplished in the judiciary.

Encouraging applications from candidates from across the legal profession, rather than just barristers, and ensuring that the best candidates from all backgrounds can progress to a point where application to the judiciary is a genuine possibility, are central components of improving access to and the diversity of our judiciary. The amendment speaks to a concern raised by the Lords Constitution Committee about the barrier to appointment for those employed by the Government legal service. Lawyers in the Government legal service are of a high calibre. They go through a stringent application procedure, and constitute a pool of talented potential candidates for judicial service.

The Government legal service and the CPS have, encouragingly, more diverse work forces than much of the legal profession. Those services contain a proportionately higher number of people from under-represented groups. In the Treasury Solicitor’s Department, over 50% of senior civil servants are women, and 15% of those at senior civil service pay band 1 are from black and minority ethnic backgrounds. In the CPS, women form 75.9% of Crown prosecutors, 63.9% of senior Crown prosecutors, 49.7% of Crown advocates, and 21.6% of senior or principal Crown advocates. Of CPS lawyers for whom ethnicity data are held, BME lawyers make up 21.7% of Crown prosecutors, 18.3% of senior Crown prosecutors, 14.4% of Crown advocates and 8% of senior or principal Crown advocates.

The recruitment process for the Government legal service is designed to recruit candidates from a wide range of socio-economic backgrounds. The process takes no account of the candidate’s schooling, A-level results or the university that they attended. It ensures that their educational background and the standard of their attainments while at school do not bear on their eligibility. The selection process is based on their ability at the time they apply.

The appointment of more Government lawyers and prosecutors to the bench is therefore a practical option. It will improve judicial diversity and encourage talented candidates to apply to the GLS and, later, to judicial and tribunal posts. However, there is a barrier. GLS lawyers are currently prevented from becoming judges due to their Government status. In another place, the Government explained that it is policy that Government lawyers, when holding judicial office, cannot sit on cases involving their Department. Therefore, CPS lawyers cannot sit as recorders in criminal courts, because the overwhelming majority of cases are prosecuted by the CPS.

In another place, it was asked whether we are missing out on talented CPS applicants. Members of the Bar and solicitors who practise in the criminal area are able to sit as recorders. Restrictions were partially relaxed by the previous Government, but there are still not many posts available.

The Lords Constitution Committee agrees that

“it remains necessary to avoid conflicts of interest”.

The Opposition accept that. However, those barriers need to be properly addressed. The Committee said:

“Structural impediments to the appointment of government lawyers and prosecutors should be removed.”

It recommended that

“Those who work for the Government Legal Service and Crown Prosecution Service must not be prevented from becoming judges because of their status as government lawyers.”

Photo of Steve McCabe Steve McCabe Llafur, Birmingham, Selly Oak 12:00, 31 Ionawr 2013

Is my hon. Friend being a touch too timid in her amendment? The Government already recognise that, where candidates are of equal value, the under-represented candidate should be given preference. Would it not make perfect sense to set a minimum quota for people from the GLS for these posts, as a way of speeding up broader diversity in the judiciary?

Photo of Jenny Chapman Jenny Chapman Shadow Minister (Justice)

That is a very interesting suggestion. I must admit, I did not consider that when I prepared the amendment. I would be interested to hear the  Minister’s response to that proposal. If he does not want to go as far as that, perhaps he will consider our suggestions.

The Government and the JAC must act to overcome any undue impediments to candidates being appointed as fee-paid or full-time judges. That is important for ensuring equal access to judicial appointments and because it would promote the diversity of the judiciary. Furthermore, it is in the public interest that high-quality candidates are not discouraged, which they might be, from applying to join the GLS or the CPS because of a potential lack of career progression in the judiciary.

The amendment is probing. We want a sense of the Government’s thinking on this area. Issuing guidance might help advertise the posts that are available to GLS and CPS lawyers and encourage applications. Centrally, it would draw attention to the issue and afford an opportunity for thought on how progress could be made. We are keen to hear the Government’s position on the amendment.

Photo of Damian Green Damian Green Minister of State (Ministry of Justice and Home Office) , The Minister for Policing and Criminal Justice

First, I will deal briefly with quotas. The problem with quotas, as both the hon. Lady and the hon. Member for Birmingham, Selly Oak will recognise, is that they could easily lead to a situation where there are two candidates and the less good one has to be appointed. That is always the objection to quotas and when that situation happens, it is unfair to individuals.

Photo of Valerie Vaz Valerie Vaz Llafur, Walsall South

I thought I had addressed that point. It is always the argument that is put forward, but the Minister has to start from the premise that the candidates are of equal calibre. When we talk about quotas, it is never that one candidate is of less calibre.

Photo of Damian Green Damian Green Minister of State (Ministry of Justice and Home Office) , The Minister for Policing and Criminal Justice

If they are entirely of equal calibre, the hon. Lady will welcome our clarification that a tipping point may be reached with the Supreme Court. If that was what the hon. Gentleman was proposing, that is fine. My impression was that he was proposing an overall quota, which I would not agree with.

Photo of Steve McCabe Steve McCabe Llafur, Birmingham, Selly Oak

I do not want to delay the Minister, but I was pointing out that it is his proposal that where candidates are of equal value, preference should be given to the under-represented candidate. I was suggesting that he stretch that to this area and create a minimum quota with the same rules applied.

Photo of Damian Green Damian Green Minister of State (Ministry of Justice and Home Office) , The Minister for Policing and Criminal Justice

There are clearly technical complications with that, in that once there is a minimum quota, more candidates of equal merit are required. That in itself would cause mathematical problems.

Photo of Damian Green Damian Green Minister of State (Ministry of Justice and Home Office) , The Minister for Policing and Criminal Justice

Well, if there are two candidates of equal merit for a post, tipping point arrangements can apply. That is how to get diversity.

Amendment 78, as the hon. Member for Darlington said, would impose a duty on the Lord Chancellor to issue guidance on the circumstances in which Government lawyers may apply for judicial office. The Government are keen that members of the employed legal professions  are encouraged to apply for judicial roles for which they are eligible. We agree that that could be a useful route to increasing the diversity of the judiciary, as well as ensuring that the Government can attract the best lawyers. We are also open to considering suggestions on how more progress could be made in this area, but requiring statutory guidance is not the correct approach.

It may help the Committee if I set out the restrictions for Government lawyers holding judicial posts, as it is important that those are not overstated. It has been the policy of successive Lord Chancellors that serving Government lawyers, including those in the CPS, do not sit on cases involving their own Department when holding judicial office, as the hon. Lady said.

The policy is based on the need to comply with article 6 of the European convention on human rights, which provides that litigants are entitled to be heard in front of an independent and impartial tribunal. That restriction does not, however, prevent Government lawyers from applying for a whole range of fee-paid judicial offices. Indeed, the published Judicial Appointments Commission programme for 2012-13 included more than 300 vacancies for fee-paid office that would be open for Government lawyers.

That restriction has more of an effect for CPS lawyers, as their opportunities to sit as fee-paid judges in criminal cases are limited. However, even in instances when the work can be organised in such a way that a CPS lawyer can sit and hear non-CPS prosecuted cases, that is done. As a result, since 2003, CPS lawyers have been eligible for appointment as deputy district judges at magistrates courts in some criminal cases, and the Judicial Appointments Commission makes it clear when advertising the posts whether CPS lawyers can apply.

Another option is for CPS lawyers to seek judicial experience in a different jurisdiction. We need to think creatively about the concept of a judicial career and how experience in one area can support subsequent appointment to judicial office in another area. In 2004, the requirements that in order to be considered for a particularly salaried judicial office, an individual’s fee-paid judicial service must be in that or in a similar post, were changed, so the fee-based service in any jurisdiction was made acceptable.

A CPS lawyer could sit as, for example, a fee-paid civil deputy district judge or a fee-paid member of a tribunal, and then apply, for example, as a salaried district judge on the basis of that experience. It is, of course, important to communicate the opportunities that are available to Government lawyers, and that is best done in a targeted fashion—to them, rather than through statutory guidance.

The availability, for example, of deputy district judge roles that are open to CPS lawyers will vary from one recruitment exercise to the next. I put it to the hon. Lady that the best approach is to make it clear whether the posts are open to CPS lawyers in the materials published by the Judicial Appointments Commission as part of the information pack, which is produced in support of every selection exercise.

We also need to look more creatively at other ways in which the opportunities can be communicated. I know that the JAC has worked closely with the legal profession to develop web-based seminars, highlighting the opportunities for judicial office that are available to  lawyers. There are two web-based seminars on the commission’s website that employed lawyers, from all branches of the profession, can access for free at a time and place most convenient to them. More of those are planned.

I hope that the professions will continue to work with the commission and to support its efforts to draw those, and other online resources as they are produced, to the attention of all their members, as the assistance provided is very beneficial. Such an innovative and targeted communication will be more effective at addressing the issue than statutory guidance. However, if, in the future, it were considered desirable to produce statutory guidance on the issue, the power to issue guidance under section 65 of the Constitutional Reform Act 2005 already provides the basis to do that without the need for the amendment.

Photo of Steve McCabe Steve McCabe Llafur, Birmingham, Selly Oak

What would convince the Minister in the future of the need for statutory guidance? Does he have a monitoring mechanism up his sleeve so that we can judge his good intentions?

Photo of Damian Green Damian Green Minister of State (Ministry of Justice and Home Office) , The Minister for Policing and Criminal Justice

I do not have a specific monitoring mechanism, but such matters are monitored all the time. We discussed earlier the number of opportunities that Parliament has to scrutinise both the Lord Chancellor and the Lord Chief Justice on the general issue of diversity. Clearly, those who work in the Government legal service can be assiduous in promoting information about such matters inside the Government.

Transparency is a good thing, and the Government seek to promote it. The amount of information that exists on the issue means that, in effect, there is a continuous public monitoring process with, as I have explained, the backstop of the possibility of a move to statutory guidance, if necessary. As I said, significant progress has been made, and I hope that I have persuaded the hon. Member for Darlington, who said that hers was a probing amendment, to withdraw it.

Photo of Jenny Chapman Jenny Chapman Shadow Minister (Justice) 12:15, 31 Ionawr 2013

I am grateful to the Minister for his remarks but, although a lot of creativity is being used in respect of the issue, progress—although significant—is incredibly slow. We regard the matter as an area where it is appropriate to monitor such progress closely, and we may wish to return to it at a later date. Although I am thankful for what the Minister said, we want to see much faster progress in the coming years. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 13, as amended, agreed to.

Clause 19 ordered to stand part of the Bill.

Schedule 14 agreed to.

Clauses 20 and 21 ordered to stand part of the Bill.