"to have held judicial office for at least two years", or—and it is either/or so obviously one does not have to be a High Court judge—to have
"practised as a qualifying practitioner . . . for at least 12 years".
Under clause 22, a qualifying practitioner must have "a Supreme Court qualification" under section 71 of the Courts and Legal Services Act 1990, which states that a person must have rights of audience in all the proceedings of the Supreme Court. That is of course not the new supreme court, but the old one, which is the Court of Appeal and the High Court.
I am right about the meaning because the next tier of qualification in the 1990 Act is a person who has a "High Court qualification", who is only a High Court advocate and not a Court of Appeal one. It is thus definitely a requirement under the clause that a person must for at least 12 years have been a person with rights of audience in the Court of Appeal and the High Court. That excludes an enormous number of senior and good lawyers.
Many, many solicitors are not High Court advocates because that does not enter into their way of being. They may prepare, and know a great deal about, High Court proceedings, because they are the solicitors who back up senior High Court advocates with their preparation, but they are not themselves High Court advocates. One could imagine that commercial solicitors, family solicitors or senior partners in a number of types of solicitor's practices might be admirably qualified in every way and would fit the mould that even Opposition Members are hankering for, but they will be excluded by the clause. It is a bad idea because it could exclude many good people.
On the other hand, the clause gives little protection from anything in the context of the Bar, because every member of the practising Bar is a Supreme Court advocate from day one as long as they remain a practising member of the Bar. Consequently, that does not require someone to be a senior lawyer; it requires them only to have been called for 12 years, which, as most Members who are lawyers will realise, is a calibre they will have attained by the age of about 33, 34 or 35. It does not require a barrister to be a senior lawyer and quite a few solicitors are likely to qualify. For instance, there is no protection in requiring a barrister of 12 years' call: someone might have undertaken magistrates court advocacy or industrial tribunal cases, or they might—being in private practice—do Chancery paperwork and never ever go to court, because they retain their status as a Supreme Court advocate by virtue of being in independent private practice. There is no protection of the kind that members of the Committee are seeking from that qualification. It is the wrong test. What is the point of it?
The clause would exclude—would it not?—a senior professor of law who might be ideal but who had never become a High Court advocate. He may have been a solicitor, but he may not even have done that; he may have been a law commissioner for several years. He might be an admirable person to take up the post, yet under the clause he would be excluded.
Equally, it seems to me that a professor of accountancy, who might have been seconded to the Court Service or have advised in detail about how the Court Service should organise its accounting procedures and finances, will understand its administration in far more detail than a barrister of 12 years' call possibly could, popping in and out of court to do a case or never going there at all. It seems to me that such a person could admirably understand the way the courts and their financing work and would be an admirable choice for that role.
Somebody from social sciences who might have been called in to try to turn the courts into what we all want them to be—an institution that puts the public participants first—may also have looked in huge detail at the way in which courts function, in order to try to guarantee that witnesses, victims and so on are looked after properly. They will know extremely well from start to finish, from A to Z, far better than a barrister of 12 years' call, how the courts work—and they will have known for many years. All such people will be excluded by the requirement of being a Supreme Court advocate, a High Court judge or a lawyer.
The provision is quite unnecessary. It gives no protection and does the damage of excluding people from other than the legal profession who could be just as good as a lawyer. Insisting on such a provision in legislation has the additional danger of making the job look like it is there for the protection and promotion of lawyers. In fact, it is not; it is about administering a public service. As such, it can be done by anyone who has any of the range of qualifications that I have mentioned and many many more that I have not thought about. I urge Members not to vote for this silly clause.