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Courts and Tribunals (Judiciary and Functions of Staff) Bill [Lords]

Part of the debate – in the House of Commons at 2:36 pm on 27th November 2018.

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Photo of Bob Neill Bob Neill Chair, Justice Committee 2:36 pm, 27th November 2018

Yes, I do. That is very important, and that is why it is not surprising that experienced former judges have expressed a view on this. We have referred to the former President of the Supreme Court, Lord Neuberger, and the immediate past Lord Chief Justice, Lord Thomas of Cwmgiedd. I note also the observations of Lord Thomas’s predecessor, the noble Lord Judge. They all supported the thrust of this Bill in enabling more flexible deployment of judges within tribunals and the assignment of procedural matters to non-judicial court staff. They also warned about not unduly fettering the ability of the court procedure rules committees, which have on them practitioner representatives who are able to set matters in the light of their practical experience. That is absolutely right, and it in no way contradicts the point made by my hon. Friend the Member for Cheltenham about the need to have the requisite number of top-class members of the judiciary. I agree with my hon. Friend John Howell that this is a sensible and proportionate Bill.

I want to touch on a couple of other points that relate to the issues legitimately raised by both the Law Society and the Bar Council. It is possible to meet their concerns in a proportionate way. I think it is fair to say that the Bar Council and the Law Society’s main issue, in terms of the scope of the Bill, has been the relationship to authorised staff. They make a fair point about the underlying issue of the courts modernisation programme, which I will touch on later. There was an acceptance in the other place that some types of procedure and hearing do not require a legally qualified person to deal with them.

However, we have to ensure that when the procedure committee draws up the rules around this—I welcomed the Government’s amendment, which gives greater clarity about how that will operate and makes it easier to achieve—it is not, as my hon. Friend the Member for Cheltenham said, placed in the invidious situation of trading off access to rights against costs. I have sympathy, therefore, for what underpinned the concern raised by Yasmin Qureshi, though I do not advocate the same solution. That balance cannot be allowed to be swayed unduly in terms of the transactional or the financial.

The right of reconsideration is worthy of consideration, and I hope the Government will look seriously at it. It is a question of the appropriate level at which to pitch that. Some of the matters that it is proposed be delegated are almost entirely procedural in nature. We should distinguish between delegating to a court official a procedural matter, such as granting an extension in time, which many of us probably think is not the sort of thing where the fundamental rights of a party are so affected that it requires reconsideration, and something that goes to the issue of the case, such as a summary judgment. The way forward is to give the rules committees the ability to reflect those distinctions, rather than to try to spell things out too much in statute.

It has been suggested that there should be a form of benchmark against which the rules and procedures operations are carried out. That may be worthy of consideration by Ministers, and it may be discussed in Committee. I would not want to tie people’s hands, but we could have some form of benchmark against which that is done, without falling into the trap that Lord Thomas, Lord Judge and Lord Neuberger counselled against, of overly restricting, over-legislating and tying the hands of the judges.

I take issue with the Opposition on this point. It is not right or desirable for politicians—who, by their nature in our system, are partisan animals—to seek to constrain too much the operation of the rules or procedure of the desirably and deliberately independent courts. We have to be careful about how we achieve a balance. Our job is to set the policy and legislative framework within which the courts operate, but if we get too far into the detail, we run the risk of trespassing on judicial independence, and also on efficiency.

There are good aspects to the Bill that I hope the House will take forward. I intervened on the hon. Member for Bolton South East to point out that it was Mr Joshua Rozenberg, the well-known journalist, who coined the phrase

“it is a little too late and quite a lot too little.”

In fact, to be wholly accurate, it was Lord Marks, a Liberal Democrat shadow Minister, who quoted it in the other place. It is a very good phrase, but it is harsh on the Bill. The Bill does good work within the scope that it seeks, but that does not mean we should not support the Lord Chancellor and his Ministers when they seek, as I am sure they will, to find the appropriate legislative time to bring forward measures on a number of other aspects of the former Prisons and Courts Bill, which was lost in the Dissolution.

Ms Harman and I have discussed some matters of criminal and family law in domestic violence cases that it is important for us to tie up. I stress strongly that much of these reform proposals stem from the excellent reports of Lord Justice Briggs and Lord Justice Leveson. Their reports were seminal in suggesting a modernising way forward, but taking that way forward requires the underpinning of statute. I urge the Lord Chancellor, who has been very patient in listening to us all, to make it a priority to persuade the business managers to find time for the legislative vehicle that will enable the modernisation of the court procedure rules on all civil matters to be brought forward. The Leveson proposals could have statutory underpinning in the same Bill. There is a real sense of uncertainty, referred to by the Law Society and the Bar Council, about the statutory underpinning for this ambitious courts programme. That was also picked up by the National Audit Office in its inquiry.

I welcome the Bill, and I support it as a valuable and worthwhile step forward, but—I think the Lord Chancellor would be the first to accept this—it is only one part of the programme that we need to deliver. We ought to get the Bill through the House as swiftly as possible and then move on to the next step. I note that Second Reading in the Lords lasted just under two hours, which shows that we can be both erudite and remarkably brief, which is perhaps an improvement on some debates we have here.