Courts and Tribunals (Judiciary and Functions of Staff) Bill [HL] - Report

– in the House of Lords at 3:18 pm on 16th October 2018.

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Clause 3: Authorised court and tribunal staff: legal advice and judicial functions

Amendment 1

Moved by Baroness Chakrabarti

1: Clause 3, page 3, line 24, leave out subsection (3) and insert—“( ) A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”

Photo of Baroness Chakrabarti Baroness Chakrabarti Shadow Attorney General

My Lords, I believe we have some settled agreement in your Lordships’ House on the constitutional system we serve, which is still much admired around the world. In that system, notwithstanding the peculiarities of your Lordships’ revising House, accountable primary legislators make our laws and independent judges apply them.

I fear that we have been lulled into a false sense of security on this so-called mouse of a Bill. We have been encouraged to wave it through your Lordships’ House without much of a squeak, but I fear none the less that it breaches the crucial distinction I just attempted to set out. It attempts to sneak through principal changes that, in my view, constitute a double delegation of legislative powers to unaccountable judges by way of the procedure rule committee—and ultimately not even to judges because in my experience, government lawyers will draft those rules, which will pass on the rule committee without much by way of amendment.

Secondly, judicial powers are to be delegated to non-independent courts and tribunal staff. The procedure rule committee is primarily made up of senior judges. That would ensure relatively little external public scrutiny of this delegation of judicial functions to non-judicial staff, to employees of Her Majesty’s Courts and Tribunals Service. It is vital that Clause 3, which delegates judicial functions to authorised staff, is understood in the context of a much wider court reform agenda, and the significant austerity measures—because austerity is not quite over yet—that sit behind this.

Efficiencies generated by the proposed reforms will arise not only through the reduction of the court estate but through savings on judicial salaries. The Government’s Queen’s Speech promised a programme of reforms that would transform the way the United Kingdom justice system operates. Unlike last year’s Prisons and Courts Bill, which dealt with these proposed reforms head on, the courts and tribunals Bill is the beginning of a slower legislative drip-feed process. There has been no adequate parliamentary scrutiny of this broad programme of expensive modernising measures—even by the Justice Committee—nor indeed of the associated court closures and staff cuts.

The Bill currently provides that regulations under Clause 3 shall be made under a negative resolution procedure. This would allow for new rules of court stipulating which judicial functions may be delegated and to whom, and an authorised person’s requisite qualifications or experience to take on those judicial functions. As the Bill stands, this delegation will come into force without any real parliamentary scrutiny. By providing that the regulations in the Bill be made under the negative resolution procedure, the Government are once again seeking to avoid proper scrutiny by democratically mandated legislatures, principally the other place. This amendment, supported by the Bar Council, attempts to ensure more constitutionally appropriate accountability and scrutiny, through at least the affirmative resolution procedure, of the potentially sweeping regulations to be made under Clause 3. Those regulations concern powers to make rules stipulating which judicial functions may be delegated and to whom, alongside appropriate stipulations regarding the qualifications or experience required before this member of the administration—potentially quite a junior member of Whitehall staff—be given these judicial functions.

As the noble Lord, Lord Pannick, who I see in his place, pointed out in Committee:

“The power which the Secretary of State or Lord Chancellor is being given”, under the clause,

“includes a power to make ‘consequential provision’”.—[Official Report, 10/7/18; col. 878.]

Despite the Government’s promise to give further consideration to the issue during the previous debate, they seem to have offered only the assurance that the power will be limited to changes to statutory instruments. If that is the assurance, why should it not appear in the primary legislation? As a legislator, that seems an assurance worth having.

At Second Reading, the Minister said in response to concerns expressed about the lack of consultation and scrutiny of this ambitious reform programme that,

“the purpose of primary legislation is to implement law, not to review that which we can already do”.—[Official Report, 20/6/18; col. 2053.]

I once more respectfully disagree with that constitutional analysis, for to my mind the role of the legislative process is most certainly in part to review government policy and to restrain executive action, particularly when that policy has the potential—just the potential—profoundly to impact on our justice system. Without careful scrutiny and additional safeguards, the Government’s drip-feed might erode some of our most fundamental institutions and our understanding of the rule of law. The safeguards that we are calling for on the powers created by this Bill are not unreasonable, or seeking to wreck the fundamental notion of reasonable delegation of non-contentious administrative functions. They are minimal if we consider that provisions in this so-called uncontroversial Bill have the potential profoundly to impact on our justice system. The relatively unrestrained double delegation of legislative and judicial powers that the Bill encourages is a slippery constitutional slope that we can, and ought to, resist.

Photo of Lord Marks of Henley-on-Thames Lord Marks of Henley-on-Thames Liberal Democrat Lords Spokesperson (Justice)

My Lords, since Committee on 10 July there have been meetings and extensive correspondence with the noble and learned Lord’s department. The question arises on this amendment as to what is the ambit of the power. If it were as described by the noble Baroness, Lady Chakrabarti, one would have considerable sympathy with the amendment—indeed, I do have sympathy with it, but it needs a little more analysis.

When serving on the Delegated Powers and Regulatory Reform Committee, as I did for some years, we were astute always in not ruling out a negative resolution procedure in cases where the power was strictly limited, but insisting on an affirmative resolution where it was not. In the analysis that we have conducted I have been very grateful to the Bill team, and in particular to the Bill manager, Dominic Smales, for the careful and thorough way in which he in particular responded to my persistent and probably rather troubling questioning. What has concerned me is Clause 3(1), to which the noble Baroness referred, which states:

The Schedule provides for authorised court and tribunal staff”— it is subsection (b) that worries me—

“to exercise judicial functions where procedure rules so provide”.

The phrase,

“where procedure rules so provide”, is important.

Then Clause 3(2) provides the Lord Chancellor with the power to make regulations,

“in relation to the Schedule”, and the power is limited to,

“consequential, transitional, transitory or saving provision”.

It was the word “consequential” that provoked some criticism from the noble Lord, Lord Pannick, in Committee.

In the context of the Schedule, I was not sure how limited the power is, and was concerned that the proposed power will be subject to the negative resolution procedure only—hence my question. My concern arose particularly out of the width and ambit of new Section 67B(1) of the Courts Act, on page 10 of the Bill, which will give the power to make rules of court to the relevant rules committee. That is important because the Government’s response to my concern has been that rules of court, which they point out are subject to the negative procedure only, cannot be used to make additional changes to the Schedule, and it is to change the Schedule that this power is directed.

The Government therefore say that the supplementary power under Clause 3(2), which is described by them as “narrow”, cannot be used to make substantive changes to judicial functions delegated by the Schedule because such changes would be substantive and therefore not within the definition of,

“consequential, transitional, transitory or saving provisions”.

The Government say that the power is needed only to make very limited changes to other secondary legislation. They make the point—and I am not sure the noble Baroness grappled with this in her speech—that there is no provision for the amendment of primary legislation by regulations, which there would need to be if it were to have that effect.

There is also no power to make supplementary or incidental provision by regulations. The Government cite as an example of the power granted by this clause the power to make consequential provision such as the amendment of references in secondary legislation from “justices’ clerk” to “member of authorised staff”. If they are right that that is the kind of provision with which we are concerned, I do not suppose that anybody would press for the affirmative resolution.

I have set all this out in some detail because my concerns have been allayed by the Government’s explanations—if they are right—and for that reason, provided that the noble and learned Lord confirms the explanations that we have been given, I shall abstain on this amendment should it be put to the vote. So I would be grateful if the noble and learned Lord would, in addressing this amendment, confirm my understanding of the ambit of the proposed power—in particular the power to amend primary legislation—and deal with the Government’s intention for its exercise.

Photo of Lord Judge Lord Judge Judge 3:30 pm, 16th October 2018

My Lords, it is very geeky to wonder whether secondary legislation amending a schedule should be affirmative or negative. It is rather like a storm in an egg-cup. But there is rather an important issue here. If I may for present purposes adopt what my noble and learned friend has recently said rather than repeat it, the issue that troubles me about this is in the Schedule itself. It makes very clear provision for the Lord Chief Justice to have various responsibilities. He may authorise a person to do this; he may do that; he may nominate the other, and so on. The whole Schedule contains a series of powers and responsibilities vested in the Lord Chief Justice.

The Schedule also includes a number of provisions which expressly say that the Lord Chancellor may not interfere in the exercise of these powers, for which, on page 11, new Section 67C provides a perfect example. I shall not burden the House by going through all the provisions. My concern is that it is not at all clear from the Bill that the Lord Chief Justice is to be consulted, let alone asked for his concurrence, with any of these proposed changes—and the proposed changes relate to issues over which the Lord Chancellor now has no statutory authority.

Since the changes—I shall use the word advisedly—in 2003, 2004 and 2005, the Lord Chancellor has ceased to be head of the judiciary. He no longer has any of the functions that former Lord Chancellors used to have. All those responsibilities are vested in the current Lord Chief Justice and, in relation to tribunals, the Senior President of Tribunals. Suddenly, there is a clear danger that, by exercising the powers given in Clause 3(3), the Lord Chancellor may seek at some stage in the future to transfer back to the Lord Chancellor powers that have been vested in the Lord Chief Justice.

Photo of Lord Pannick Lord Pannick Crossbench

My Lords, we are dealing here with a very sensitive subject: that of authorising court and tribunal staff to exercise judicial functions. The noble Lord, Lord Marks, emphasised that the question may well be the scope of the Clause 3(2) power to make consequential provision. I am still puzzled as to why the Minister says that it is a power only to amend subordinate legislation, because it is not what it says. It states:

“The Secretary of State or Lord Chancellor may, by regulations made by statutory instrument, make consequential … provision”— that is the part that concerns me—

“in relation to the Schedule”.

I understand the Minister seeking to reassure the House, as he sought to reassure the Committee, that the power may be validly used only to amend subordinate legislation, but I would welcome an explanation as to why that is so.

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

My Lords, I am obliged for all the contributions that have been made with regard to this matter. Your Lordships will be aware that the power in Clause 3 allows the Secretary of State to make consequential, transitional, transitory or saving provisions in relation to certain provisions for staff by way of regulations.

I say immediately that I am most obliged to the noble Lord, Lord Marks, because it would appear that we are being briefed by the same Bill team. That is hardly a surprise, but I am in a position to say that he has eloquently and clearly expounded the rationale for these provisions being in the Bill. I accept his point about how they are intended to operate as set out between Clause 3 and the schedule.

The power that we are talking about is constructed narrowly, both in regard to the nature of the amendments that it provides for and being in respect only of secondary, rather than primary, legislation. However, there seems to be some confusion about the extent of the provision. Perhaps noble Lords will allow me briefly to explain the interaction between the substantive power in paragraph 32 of the schedule and the consequential power in Clause 3(2).

The key substantive power in paragraph 32 is that the rules of court may provide for the exercise of judicial functions by authorised court and tribunal staff. It will therefore be the procedure rules that set out the details of which functions authorised staff may exercise, the qualifications and experience that they may require and any specific right of reconsideration should the relevant rule committee consider that one is needed. Rules are made by independent committees to govern procedure within courts and tribunals. All rules are made by statutory instrument subject to negative resolution in Parliament.

However, the procedure rules cannot be used to make all the necessary amendments to other secondary legislation, such as consequential changes to remove references within existing secondary legislation—I take as an example those to “justices’ clerks”, which will become redundant once these provisions are in force. For that, we will use regulations under Clause 3(2), which will in turn be subject to the negative resolution procedure. We could not use this consequential power to make substantive provision in relation to judicial functions.

Further, I refer to the width of the provision itself. The concept of an amendment that is consequential, transitional, transitory or saving is well understood, with many precedents. I should note that these terms are construed strictly by the courts. The power in Clause 3 is a narrow power so, although the rules may provide for a wide variety of functions to be exercised by authorised staff, it does not follow that the consequential power has wide application. In our case, this power is needed principally, as I say, to amend references in secondary legislation from, for example, “justices’ clerk” to “authorised officer”. So far, I think that we have identified about 200 references in over 60 pieces of secondary legislation that would need amendment; there may be more.

I come to the point raised by the noble Lord, Lord Pannick, as to which legislation may be amended. It is normal practice in legislation to say expressly when a power is to be used to amend primary legislation. The Government have no intention of using this power to amend primary legislation, so there is no express provision for such amendments in Clause 3. We have identified consequential amendments to primary legislation for these provisions, which are provided for in the schedule. We do not need, or seek, any further power to amend primary legislation in the Bill.

In drafting the Bill, we thought carefully about the extent of the power in Clause 3(2). The Prisons and Courts Bill, from which the clauses originated, included powers to make consequential provision and for such powers to be able to be used to amend primary as well as secondary legislation. As we have now identified the consequential changes needed, as I say, we do not intend to make any further changes to primary legislation. In drafting Clause 3, there was therefore no inclusion of the express provision to make such changes to primary legislation.

I am happy to give noble Lords an undertaking in Hansard that the power in the Bill will not be used to amend primary legislation. If a future Government attempted to do so, I would expect the Joint Committee on Statutory Instruments to bring this to the attention of Members of both Houses. I am content to give that undertaking without qualification, for the purposes of Hansard.

Photo of Lord Pannick Lord Pannick Crossbench

Can the noble and learned Lord not merely give the House an assurance that the Government do not intend to use the power to amend primary legislation but also tell the House that the Government’s intention and understanding is that the scope of this power in Clause 3 is such that it could not validly be used for that purpose?

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

I endeavoured to set that point out in my previous observations, but I am happy to repeat them. If the Government’s intention had been to seek the power to amend primary legislation then, in accordance with precedent and court decisions on interpretation, they would have included the express power to do so in Clause 3, as they did in the Prisons and Courts Bill. There is no intention of doing that and they have not included that power. I do not consider that such a power is available to the Government, in light of the way in which Clause 3 is carefully framed, so I have no difficulty with that.

The provisions that we have now made within the Bill for dealing with this by way of the negative procedure found approval with the Delegated Powers and Regulatory Reform Committee, which is of course charged with reporting on such provisions. It noted in its 29th report that there was nothing in the Bill to which it wished to draw the attention of the House. I am aware that in the past the Magistrates’ Association raised a point similar to that raised by the noble Baroness, Lady Chakrabarti, but I understand that once we—by which I mean the Bill managers—had explained the position, as they did to the noble Lord, Lord Marks, it withdrew its concerns because it appreciated the narrow scope of this provision. With that explanation, I hope that the noble Baroness will see fit to withdraw the amendment.

Photo of Baroness Chakrabarti Baroness Chakrabarti Shadow Attorney General 3:45 pm, 16th October 2018

I am grateful to the Minister for his answer and to other noble Lords for their interventions, particularly the comments of the noble and learned Lord, Lord Judge, and the noble Lord, Lord Pannick. I set out my broad concerns about the Bill, but I want to be distinct about this amendment in particular. I think that it was worth asking the Minister to set out in some detail not only the Government’s intentions in relation to this power but their view of the power, what they are able and not able to do and the fact that they are not able under this power to amend primary legislation. With that firm statement of belief in the law around this power and the intention, I am grateful to the Minister and happy to beg leave to withdraw the amendment.

Amendment 1 withdrawn.

Amendment 2

Moved by Baroness Chakrabarti

2: After Clause 3, insert the following new Clause—“Review of the delegation of legal advice and judicial functions to authorised staff(1) Within the period of three years from the coming into force of this Act, the Lord Chancellor must arrange for a review to be undertaken on the impact of the implementation of the provisions contained within section 3 and the Schedule to this Act.(2) A report setting out the findings of the review must be laid before both Houses of Parliament.”

Photo of Baroness Chakrabarti Baroness Chakrabarti Shadow Attorney General

My Lords, this amendment would ensure that within three years of the coming into force of the Act the Lord Chancellor must arrange for a review of the impact of the implementation of its provisions, including provisions within what would by then be Section 3 and the Schedule. The report would have to be laid before both Houses of Parliament. We should bear in mind the potential perils of justice reforms without sufficient research, consultation and subsequent evaluation.

I hope noble Lords will forgive me reminding your Lordships’ House of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The Public Accounts Committee made clear that, in bringing forward that legislation, the Ministry of Justice had not properly assessed the full impact of those reforms. That impact has proved devasting for some of the most vulnerable in our society who, as a result of that reform and those cuts, have almost been shut out altogether from the legal aid system of which we were once so very proud.

We are still awaiting the much-anticipated review of the operation of LASPO required after three to five years of implementation in 2013. The hope for the many thousands of people who have been locked out of our justice system due to the withdrawal of legal aid is that a sober assessment of LASPO might precipitate reform and recognition of the need to reverse some of the more destructive elements of that legislation. The Bach commission report—conducted by my noble friend Lord Bach—made many recommendations for reform, but we continue to wait for the Government to deliver on that statutory obligation to review and report.

The fact that the LASPO review has been delayed makes such mechanisms no less vital. For the same reasons of accountability and adequate evaluation of reform we are seeking to ensure that this Government are obliged to assess and report on the impact of the reforms to our court system proposed by the Bill. The Bar Council has also expressed support for this amendment. I beg to move.

Photo of Baroness Vere of Norbiton Baroness Vere of Norbiton Baroness in Waiting (HM Household) (Whip)

My Lords, this amendment would require the Lord Chancellor to arrange a review of the impact of the authorised staff provisions within a period of three years of the Act coming into force. As the impact assessment for these measures states, we will work closely with the rule committees and the senior judiciary to monitor the impact of any future assignment of functions and responsibilities to authorised staff. HM Courts & Tribunals Service is also committed to evaluating and testing the impacts of the reforms to courts and tribunals.

As noble Lords will be aware, the majority of the authorised staff provisions in the Bill are not new. Within the civil and tribunals jurisdictions, and in the magistrates’ courts and family court, staff can already be authorised to undertake a variety of judicial case management responsibilities. The exercise of judicial functions by staff is already kept under review. For example, earlier this year the HMCTS conducted a review of the work of tribunal caseworkers two years after the role was created. We would expect the rule committees and the senior judiciary to continue to keep these provisions under review across the jurisdictions as they feel necessary, drawing on their relevant expertise to do so. We would expect the rule committee meeting minutes where authorised staff are discussed to be published where it is in the public interest to do so.

Where we are extending these provisions to a new jurisdiction—namely, the Crown Court—we expect the Criminal Procedure Rules Committee to conduct a review along the lines of those undertaken in other jurisdictions. It is right that the committee conducts the review; it is independent of government and its membership includes judges, lawyers who practise regularly in criminal courts and representatives of voluntary organisations with a direct interest in the work of the criminal courts. It is therefore very well placed.

The noble Baroness, Lady Chakrabarti, asked for more information about recent reforms. We are already committed to evaluating and testing the impact of our wider package of reforms to the courts and tribunals system. That evaluation will be published in due course.

The amendment is at best an unnecessary duplication of effort and resources. I hope I have been able to provide the noble Baroness with the appropriate assurance that the authorised staff provisions will continue to be kept under review in all jurisdictions. I trust that she will now feel able to withdraw her amendment.

Photo of Baroness Chakrabarti Baroness Chakrabarti Shadow Attorney General

I am grateful to the Minister for that. I am grateful that there is a continuing commitment to evaluate such reforms in future, notwithstanding the lack of evaluation of LASPO to date. Once more I feel that the fact that she has made that commitment in your Lordships’ House should give me and others some assurance, and we must make sure that we follow up on that assurance in due course. With that in mind, I beg leave to withdraw the amendment.

Amendment 2 withdrawn.

Schedule: Authorised court and tribunal staff: legal advice and judicial functions

Amendment 3

Moved by Baroness Chakrabarti

3: The Schedule, page 6, line 36, at end insert—“( ) is a qualified solicitor, barrister or chartered legal executive with more than three years’ experience post-qualification, and”

Photo of Baroness Chakrabarti Baroness Chakrabarti Shadow Attorney General

My Lords, I shall also speak to Amendments 4 and 6, which are consequential. These amendments in aggregate stipulate that authorised persons must have the following bare minimum legal qualifications: that they be a qualified solicitor, barrister or chartered legal executive with more than three years’ experience post-qualification, as recommended and drafted by the Law Society and supported by the Bar Council. This is a very minimal ask of the Government in the circumstances. It is a lower qualification threshold than is currently required for pupil supervisors or for solicitors to supervise an office.

Authorised staff who are not subject to the training, experience, ethos and oaths of professional judges could be performing judicial functions and employed directly by HMCTS. Even the concept of such delegation, as I said earlier, raises questions of independence. There is legitimate concern that they would inevitably be subject to administrative pressures—for example, meeting targets in a very difficult fiscal climate—and potentially subject to political pressures as well. Without some reasonable limit on who can be authorised, this delegation has, as I said, the potential—perhaps just the potential, but the potential none the less—to change an essential aspect of our judicial system.

I acknowledge that the relevant procedure rules committee will set out procedural requirements about who is empowered to carry out those procedures, but, as we have heard, the committees are made up predominantly of senior judges. This marks a growing trend towards forcing a judiciary that is already bearing the brunt of cuts to the MoJ’s budget also to have to mark its own homework. This has implications for the rule of law and for the independence of judicial decision-making. We also argue that such a shift may well fall short of reasonable expectations held by members of the public about the level of experience and independence of those charged with making judicial decisions—not least about their fundamental rights.

The draft Authorised Court Staff Qualifications Regulations which have been offered in response to those concerns offer only that authorised persons are legally qualified solicitors or barristers. The Bill policy statement provided by the MoJ states:

“We do not expect legal qualifications to necessarily be required for all the different types of judicial functions that authorised staff will carry out”, so that assurance does not go very far. The Opposition, along with key stakeholders—in this case, the Law Society and the Bar Council—are clear that further qualification is necessary for authorised persons adequately to take on judicial functions of whatever magnitude and that minimum requirements ought to be included in the Bill.

I note that the Minister previously pointed out that three years’ post-qualification experience sets the bar higher than that currently required of assistant justices’ clerks, who currently tend to legal advice within magistrates’ and family courts. However, assistant justices’ clerks are not currently performing judicial functions. If the object here is to provide uniformity to the practice of delegation across all courts and tribunals, surely we should set the bar at least three years PQE.

One has to ask whether the reluctance on the Government’s part to set minimum qualifications just a little higher than nowhere is not due to fiscal concerns about HMCTS staff salaries. Once again, the Government are asking the public—on this occasion, users of our courts and justice system—to bear the burden of austerity, which we have only just been told is over. I beg to move.

Photo of Lord Marks of Henley-on-Thames Lord Marks of Henley-on-Thames Liberal Democrat Lords Spokesperson (Justice)

My Lords, the noble Baroness has opened our debate on the amendment with considerable eloquence and a beguiling argument. We have approached the question of whether an authorised member of staff needs to be a qualified lawyer of stipulated experience with an eye on what the extent of the delegated powers of authorised persons would be. In particular, the concern that I expressed in Committee was that the delegated powers should not extend to taking away a person’s liberty, or to ejecting a person from his or her family home, or the family from that home, or to granting an injunction or an order for preserving evidence, which can have far-reaching consequences, or authorise searches of private premises.

It seemed to us that only a judge should have the power to take those serious steps, with the consequences that follow in relation to individual rights and freedoms. If the powers were to extend to any of those areas, it was abundantly clear that only a qualified lawyer of substantial experience should be entitled to exercise them.

However, in Amendments 5 and 12 in the next group, in the Minister’s name, which are in terms that we have sought and which we will support, the delegated judicial functions are to be restricted so as to exclude the removal of a person’s liberty, the making of possession orders in respect of a person’s home or a family home, or injunctions or orders for preserving evidence. In those circumstances, and given those amendments, we are not persuaded that it is necessary for the authorised person exercising the remaining powers—some of which are trivial, some minor and some of more substance—to be a qualified lawyer or one of particular experience.

We have concluded that we are content to rely on rules of court and delegation by the Senior President of Tribunals to ensure that authorised persons have qualifications that are commensurate with the tasks they are to undertake under their delegated powers. As the noble and learned Lord, Lord Neuberger of Abbotsbury, said in Committee:

“There will be many decisions where people with … requisite experience would be appropriate, but there will be others where less experience would be adequate for the decision-making.—[Official Report, 10/7/18; col. 882.]

It seems to us relevant that the purpose of this part of the legislation is to increase efficiency and—hopefully, and to everybody’s advantage—the speed of decision-making within the court and tribunal systems, while making some cost savings in so doing. Having a legislative requirement that all delegated decisions must be taken by qualified lawyers with a minimum experience requirement runs the risk of frustrating this objective. In spite of the noble Baroness’s eloquence, we will be abstaining on this amendment if she puts it to the vote.

Photo of Lord Garnier Lord Garnier Conservative 4:00 pm, 16th October 2018

My Lords, I do not wish to be impertinent. This is my first intervention and exchange with the Government Front Bench on any legislation. My diffidence is reinforced by the fact that I was not a functioning Member of the House in the earlier stages of this Bill. I note what the noble Lord, Lord Marks, said in relation to the minimum qualifications required, and quite correctly, he points out in anticipation of what the Government seek in Amendment 5 what an authorised person may not do. It is probably my fault, but I am not entirely clear what an authorised person may do. Once one knows what an authorised person may do, it might be possible to reach an intelligent conclusion on what the proper level of qualifications should be.

Photo of Lord Neuberger of Abbotsbury Lord Neuberger of Abbotsbury Judge

My Lords, as has been said, the purpose of this part of the Bill is to introduce a degree of flexibility and take the pressure off serving judges who are under considerable pressure at the moment, as we all know. It is right and proper that the officers who are appointed to carry out these very low-level judicial functions—and the principle is accepted—should have appropriate qualifications. However, echoing what the noble Lord, Lord Marks, said, the qualifications will be determined either by regulations or rules set down by the rules committee, which have to be put before this House, and approved by the Lord Chief Justice. Given the large number of low-level decisions which will be involved in this case, rather than fettering either of those bodies by legislating on the sort of people who can do this job, why not leave it to the Lord Chief Justice and the rules committee or the regulations? Our minds in this House cannot cater for these circumstances because, as the noble Lord said, we do not know all the types of orders which these people might be expected to make. We will have the regulations and we will trust the Lord Chief Justice and the Senior President of Tribunals.

Photo of Lord Pannick Lord Pannick Crossbench

My Lords, I am all in favour of flexibility and entirely understand the argument, in relation to the exercise of judicial functions, that we should be careful not to prescribe conditions that are more appropriately left to the rules committee and the Lord Chief Justice. I have more difficulty with Amendment 3, which concerns the function of giving legal advice to judges. We are concerned here with paragraph 14 of the Schedule. As I understand it, Amendment 3 seeks to impose a minimum standard for those who perform the function of giving legal advice to judges. I have some difficulty in understanding how that function can appropriately be performed by someone who does not have at least the minimum qualification of three years’ experience post qualification as a solicitor, barrister, or chartered legal executive. Unless the Government are able to say that they envisage this function being performed by someone who does not have that minimum qualification, I see great force in Amendment 3.

Amendment 4 is slightly more difficult, as it is concerned with the same function—giving legal advice—but in relation to justices of the peace. It may be that that minimum standard is not appropriate to that function. I will listen carefully to what the Minister says about that. Amendment 6 is concerned with a different question: the function of actually performing relevant judicial functions, which the noble and learned Lord, Lord Neuberger, has spoken about. I am most troubled by the issue raised by Amendment 3.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench

My Lords, as a former judge of the family court, I wonder in what circumstances such judges—district judges, circuit judges or even possibly High Court judges—might need the advice of those who were not themselves qualified lawyers. I find that difficult. I see no difficulty with justices of the peace—that is perfectly obvious—but at the moment I cannot see how any family court judge, at any level, should be advised on legal issues by someone who is not legally qualified. I would be grateful to the noble and learned Lord for explaining what he sees this applying to, and in what circumstances.

Photo of Baroness Vere of Norbiton Baroness Vere of Norbiton Baroness in Waiting (HM Household) (Whip)

My Lords, these amendments relate to two elements of the Bill. Amendments 3 and 4 require that any authorised person who gives legal advice to lay judges or judges of the family court must be legally qualified and have more than three years’ experience post-qualification. Amendment 6 makes the same requirement of staff carrying out judicial functions.

The qualifications for staff giving legal advice have been set out in regulations since 1979. They remain substantively the same today: broadly, one must be a barrister or solicitor or have passed the necessary exams to become one. The qualifications will continue to be set out in regulations and subject to parliamentary scrutiny. We are not proposing any changes to that process. Allowing qualifications to be set out in regulations has not resulted in a lowering or lessening of this bar. Amendments 3 and 4 would, however, raise it to a height that is unnecessary and could adversely impact on the diversity of legal experience in our courts.

In our draft regulations, which we published ahead of Committee stage, we are proposing to take the opportunity to modernise the qualifications required for legal advisers by adding to those eligible to give legal advice fellows of the Chartered Institute of Legal Executives—CILEx—and those who have passed the necessary exams to be fellows. The addition of CILEx fellows highlights the danger of all three of these amendments. Prescribing qualifications on the face of the Bill means that, should an alternative route to legal qualification emerge, adding this qualification to these provisions could only be achieved through primary legislation.

I turn to the point raised by the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss, about Amendment 3. One might be in a circumstance where a judge would need advice from somebody with less than three years’ qualification. It may be exceptional—for example, a judge might reasonably ask for advice on procedure. Legal advisers must know, understand and apply the law, and advise judges and magistrates accordingly. The bar we have had in place for almost 40 years has worked perfectly well, and our current legal advisers are providing an excellent service.

Requiring three years’ post-qualification experience would restrict the avenues through which people can qualify as lawyers and would also exclude experienced legal advisers. Amendment 6 takes a similarly one-size-fits-all approach, but for the qualifications needed for staff to exercise judicial functions. The difficulty with this is that it does not allow for a variety of qualifications to mirror the variety of tasks that staff may carry out. I stress that the exercise of judicial functions by authorised staff is not new anywhere but in the Crown Court. Courts and tribunals staff already carry out judicial functions in the Court of Appeal, magistrates’ courts and family courts, as do registrars and caseworkers in the tribunals. Some of these staff are legally qualified; others are not. For example, there are specialist registrars in some of the tribunals, such as the tax tribunal, where tax specialists are not legally qualified. Their qualifications depend on the work they are carrying out—as in any job—and many of them already exercise the jurisdiction of our courts on a daily basis.

As my noble and learned friend Lord Keen said in Committee, the kinds of tasks authorised staff already carry out—and could undertake more of in future—are largely preparatory or interlocutory. These staff support the progression of cases: getting things ready for court and working out what the court should do. Their work will ensure that hearings and trials are as effective as they can be and that our courts, tribunals and resources are put to best use.

Perhaps that goes some way to answering the question from my noble and learned friend Lord Garnier about the sorts of roles these authorised members of staff will undertake. It is right that we have sought to carve out those roles that we feel they should not undertake. However, the number of roles they could undertake is extremely broad. The level of qualification that staff need should vary according to the work they do. The Bill allows the procedure rule committees to set the requirements as to the qualifications or experience of authorised staff exercising judicial functions. This is the right approach. The committees are best placed to assess the requirements for their jurisdictions in light of the functions that they permit authorised staff to carry out.

Amendment 6 would require that someone carrying out the simplest of tasks, such as changing the start time of a hearing, must be a qualified and experienced lawyer. This is plainly unnecessary. The judiciary is ultimately responsible for authorising court and tribunal staff to exercise judicial functions, and will do so only if satisfied of their competence. An applicant’s formal qualifications will be checked before appointment, and their judgment, skills and knowledge assessed by a supervising judge or senior lawyer before any authorisation can take place.

For the reasons that I have set out, I hope that the noble Baroness, Lady Chakrabarti, will feel able to withdraw her amendment.

Photo of Baroness Chakrabarti Baroness Chakrabarti Shadow Attorney General 4:15 pm, 16th October 2018

Once again, I am grateful to the Minister and other noble Lords for that interesting and illuminating discussion. I would like to take this opportunity to welcome the noble and learned Lord, Lord Garnier. He is a first-rate lawyer, judge and parliamentarian, and I have no doubt that he will make many important contributions in your Lordships’ House.

The noble Lord, Lord Marks, nailed the basic thrust of the objections to this group of amendments: they fly in the face of efficiency and cost savings. Less was offered, I am afraid, by way of reassurance as to the quality of justice that the public may look forward to as a result of this Bill.

As always, I am grateful to the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss, for pointing out the slight anomaly that legal advisers to the judiciary need not be qualified lawyers. That is perhaps a little strange, and points to the underlying motive behind this draft legislation.

Anyone who has spent any time in a magistrates’ court will realise that very serious decisions about people’s lives are made in that jurisdiction, under a great deal of pressure. Therefore, I do not share the relaxed approach to the training and qualifications required to be a legal adviser to lay magistrates or justices of the peace. None the less, I do not want to trouble your Lordships’ House with a Division that is doomed due to lack of support from the noble Lord, Lord Marks. So, with a somewhat heavy heart, I beg leave to withdraw my amendment.

Amendment 3 withdrawn.

Amendment 4 not moved.

Amendment 5

Moved by Lord Keen of Elie

5: The Schedule, page 10, line 19, at end insert—“but does not include a function to which any of the following subsections applies.(2) This subsection applies to any function so far as its exercise involves authorising a person’s committal to prison.(3) This subsection applies to any function so far as its exercise involves authorising a person’s arrest, but it does not apply to the issue of a warrant (whether or not endorsed for bail) for a person’s arrest in order to secure that the person attends court proceedings relating to an offence of which the person has been accused or convicted in a case in which no objection is made by or on behalf of the person to the issue of the warrant.(4) This subsection applies to the function of making an order to recover possession of a building, or part of a building, which is occupied as a dwelling by—(a) the person against whom the order is made, or(b) the person’s spouse, civil partner or dependent child aged under 18,but it does not apply to the making of an order in a case in which no objection is made by or on behalf of the person against whom the order is made to the making of the order.(5) This subsection applies to the function of granting an injunction under section 37 of the Senior Courts Act 1981.(6) This subsection applies to the function of making an order under section 7 of the Civil Procedure Act 1997 (order for preserving evidence etc).”

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

My Lords, in moving Amendment 5, I will speak also to Amendment 12, standing in my name. I am most obliged to the noble Lord, Lord Marks, for his engagement, not only with me but with the Bill team, in consideration of the issues he raised in Committee and the time he took to discuss how we could address the concerns he mentioned during the debate on earlier amendments. As he indicated, the purpose of these amendments is to place in the Bill a limit to the functions that authorised staff may carry out by specifying certain functions that they will not be permitted to undertake. We consider that there are certainly judicial functions that authorised staff should not be permitted to exercise, particularly where these relate to deprivation of liberty or repossession of residential property. We have therefore brought forward amendments in response to the concerns that were raised.

Amendment 12 would prevent the Tribunal Procedure Committee enabling authorised tribunals staff to carry out functions that involve authorising a person’s committal to prison or arrest, or the granting of an injunction. Amendment 5 provides that similar restrictions will apply in the courts, subject to certain exceptions. Amendment 5 also prevents the relevant rule committees allowing authorised courts staff to make orders for repossession of residential property where the case is contested, and making search orders. Whether authorised staff may exercise other functions beyond those prohibited by this amendment will, as indicated, be for the independent rule committees to decide.

I hope that these amendments will find support across the House. I beg to move.

Photo of Lord Marks of Henley-on-Thames Lord Marks of Henley-on-Thames Liberal Democrat Lords Spokesperson (Justice)

My Lords, the noble and learned Lord has indicated that we support these amendments, and indeed they respond to concerns that I raised. I indicated in Committee, and in discussion and correspondence with the department since, that I did not see the need to restrict the ambit of delegated functions in a way that could prevent authorised officers extending time for the service of documents, or making consent orders of a procedural nature in substantial civil claims.

However, I was extremely concerned that an authorised officer should not have the power to: make orders taking away the liberty of the subject; make a possession order that would have the effect of depriving someone, or their family, of their home; take the serious steps and risk the far-reaching consequences of granting injunctions; or make orders to preserve evidence—which, as I said earlier, could involve searches of private premises.

I am very grateful to the noble and learned Lord, and to the Bill team, for their consideration and acceptance of the principles I have made. Amendments 5 and 12 respond fully to our concerns and we support them.

Photo of Baroness Chakrabarti Baroness Chakrabarti Shadow Attorney General

My Lords, as far as I am concerned, this is the good news in this afternoon’s proceedings. I am very grateful to the Government, assisted by the noble Lord, Lord Marks, for responding to some of the gravest concerns about the gravest decisions that ought not to be delegated to non-judicial persons. I have been trying to suggest that there is an ocean of difference between purely procedural decisions and those that could have, for example, the effect of depriving an individual of their freedom. Without limits on who can be authorised, and what powers can be delegated, measures such as those that we have been discussing could have a very profound effect on the nature of our judicial system. Such a profound change really requires proper scrutiny by parliamentarians.

The stated intention of the policy is to improve the efficiency of the Courts Service by diverting judges’ time from routine tasks, to allow them to focus their time and expertise on more complex matters. Matters of personal liberty and of people’s homes should surely be considered in that higher order of decision-making. That is why I am particularly grateful for having been heard by both the noble Lord, Lord Marks, and by the Government, in relation to concerns raised at earlier stages and in discussion.

While it is almost impossible to create a definitive or exhaustive list of appropriate judicial functions for delegation, covering each tribunal and eventuality—particularly as these roles cover a broad range from the administrative to the determinative, depending on the jurisdiction—we can surely all agree that functions that might deprive a person of their home or their liberty are never appropriate for this kind of delegation. These particular limitations really are the bare minimum. It is worth noting that, in his civil courts structure review, Lord Justice Briggs drew the line at caseworkers making any dispositive decisions, which he saw as being a purely judicial role.

All delegated functions in the civil jurisdiction are routine case-management functions, and are often confined only to cases where all parties consent. Legal advisers do not currently make decisions that represent a final determination, and a party may request a reconsideration of any decision of a legal adviser within 14 days of being served a notice of that decision. Are these not reasonable restrictions to have been placed on delegated functions in criminal proceedings? The MoJ’s own factsheet on delegation to staff says that delegated decisions are unlikely to involve contested matters. In addition to concerns around transparency, there is a danger that efficiencies gained by delegating case management decisions will be lost if the court has to reconsider these decisions at a later stage in the process.

I give the Government due credit for having gone some way towards addressing real concerns raised at the Lords Committee stage with an amendment that prohibits the delegation of decisions affecting people’s homes and personal liberty. We wholeheartedly support these government amendments, which are very welcome; none the less, they highlight the potential hidden dangers in an apparently benign Bill.

Amendment 5 agreed.

Amendment 6 not moved.

Amendment 7

Moved by Lord Keen of Elie

7: The Schedule, page 11, line 8, at end insert—“67BA Exercise of relevant judicial functions: reconsideration of decisions (1) Before making rules of court that provide for the exercise of relevant judicial functions by authorised persons by virtue of section 67B(1), the authority with power to make the rules must take the following steps in relation to each of the functions in question.(2) The authority must consider whether the rules should include a right for the parties to proceedings in which a decision is made by an authorised person exercising the function to have the decision reconsidered by a judicial office holder.(3) If the authority considers that the rules should include such a right, it must include provision to that effect when it makes the rules.(4) If the authority does not consider that the rules should include such a right, it must inform the Lord Chancellor of—(a) its decision, and(b) its reasons for reaching that decision.”

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

My Lords, as well as moving Amendment 7, I shall speak also to Amendments 9, 10 and 13, which stand in my name. When the Bill was in Committee, there was a general desire to see more safeguards on the face of the Bill and greater transparency around the process of making court and tribunal procedure rules. The Government have listened to these concerns and, after further discussion, we have tabled these amendments.

The purpose of the amendments is to require the committees, when making any rules to allow authorised staff to exercise judicial functions, to consider whether the rules should include a right to judicial reconsideration of decisions made by authorised staff exercising those functions. This means that the rule committees would have to consider whether each judicial function should be subject to a right to reconsideration. Furthermore, the amendments require that, if a rule committee decides against the creation of such a right in the rules that it makes, it will have to inform the Lord Chancellor of its decision and the reasons for it.

The amendments should be read alongside existing statutory provisions relating to the making of court and tribunal rules. The committees are under a statutory obligation to,

“consult such persons as they consider appropriate”, before making rules. If, following consultation, a rule committee chose not to include a right to reconsideration in its rules, it would have to inform the Lord Chancellor of this and, as I indicated, it would also have to give reasons for the decision. The Lord Chancellor would then have two options: either to ask the committee to reconsider its decision, as he has the power to ask the rule committees to make rules, or, if he agrees with the committee, to lay the rules in Parliament. In doing so, we would expect the Lord Chancellor to set out, in the Explanatory Memorandum to accompany the statutory instrument containing the rules, the committee’s rationale for not including a right to reconsideration. The amendments would therefore ensure much greater transparency in the decision-making process.

Our amendments would ensure that the jurisdictional rule committees continued to play a full part in determining the most appropriate mechanism for reviewing decisions by authorised persons. I hope that in the light of these amendments the noble Baroness, Lady Chakrabarti, will consider her position with regard to her Amendments 8 and 11, which fall within this group, but perhaps I can defer that and allow her to state her position with regard to those amendments.

Photo of Lord Pannick Lord Pannick Crossbench

Before the Minister sits down, can he give the House a practical example of the exercise of relevant judicial functions by someone who is not a judge in respect of which it would not be appropriate to allow for a review by someone who is a judge?

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice) 4:30 pm, 16th October 2018

One obvious example is the issuing of a summons. Such persons issue about 2.5 million summonses at the instigation of public authorities each year. If every one of those applications for a summons was the subject of judicial reconsideration, with the kind of time limits alluded to in Amendments 8 and 11, the delays involved would be enormous. There are other means by which, in due course, a party may seek to challenge the issuance of such a summons. I take that as one clear example of where it would not be appropriate for there to be judicial reconsideration.

Photo of Baroness Chakrabarti Baroness Chakrabarti Shadow Attorney General

My Lords, I shall speak to Amendment 8 and to Amendment 11, which is consequential, both of which were drafted by the Bar Council.

Clause 3 and the Schedule to the Bill provide for judicial functions to be delegated to authorised staff across the criminal, civil and family courts and tribunals. This would allow decisions that are currently made by independent judges to now be made by employees of Her Majesty’s Courts & Tribunals Service. The Bill provides that authorised staff will be independent of the Lord Chancellor when carrying out these delegated judicial functions, but they will remain court staff and will not take the judicial oath of independence.

Amendments 8 and 11 would ensure that a party to any decision made by an authorised person in the execution of relevant judicial functions or of a tribunal—by virtue of Section 67B(1) or paragraph 3 of Schedule 5 respectively—may apply in writing within 14 days of the service of the order to have the decision reconsidered by a judge of the relevant court within 14 days from the date of application.

A statutory right of reconsideration allowing any party to a decision by an authorised person to have that decision reconsidered by a judge was recommended by Lord Justice Briggs in his 2016 report Civil Courts Structure Review: Final Report. That right is currently already provided for, for example, in the tribunal procedure rules. Lord Justice Briggs said:

“The creation of an extensive right to have the decisions of Case Officers considered by a judge has from the outset been regarded as the natural safety valve for concerns about what was … described as the delegation of judicial functions to persons who are not judges”.

As a minimum safeguard, the right of consideration has the benefit of freeing an authorised person from the obligation to produce detailed reasons for every decision, as would be the case if the right of appeal were, for example, created. It is important to point out that this consideration on the papers by a judge is not the same as a full right of appeal. It has the additional benefit of going further than a right of review, guaranteeing judicial oversight of a decision which a right of review would not ensure.

Crucially, this statutory right would also ensure compliance with Article 6 of the European Convention on Human Rights—the right to a fair trial—surrounding decisions affecting people’s rights by an independent and impartial person, which is not a member of court staff. It is a proportionate safeguard relevant to the new powers created by the Bill. Your Lordships are aware that Article 6 provides that the determination of a person’s civil rights and obligations or any criminal charge against them must be undertaken by an independent and impartial tribunal established by law.

The requirements of independence apply not only to the tribunal but also to any judge or other officer authorised by law to exercise judicial power. As the Ministry of Justice acknowledges in its memorandum on the Bill,

“In considering independence, … guarantees against outside pressures are relevant – as is the question whether the body presents an appearance of independence”.

In that human rights memorandum, the MoJ suggests that it is intended that,

“case management decisions which it is proposed these authorised members of staff will be able to take will be uncontentious and not of sufficient importance to engage Article 6”.

However, case management decisions can have a significant impact on shaping the issues, progress and ultimate outcome of the case. For example, a decision on the appropriate timescales within which a party should take a step in proceedings may be significant, as failures to comply with that timescale can subsequently lead to some or all of the party’s case being struck out.

Furthermore, the Ministry of Justice’s fact sheet on the delegation of functions to non-judicial staff states:

“In future, we expect that authorised staff will be able to carry out a range of functions and responsibilities, including case management powers and some mediation roles”.

This suggests that it is envisaged that such staff will have a role beyond merely making non-contentious decisions on purely procedural matters in future.

The Government’s welcome amendment excludes some functions from delegation, but there are still others that may be significant to the progress and outcome of an important case. Such functions—for example, the issuing of an arrest warrant to secure a person’s attendance in court—can still be delegated to non-judicial staff.

In Committee, the Minister argued that a blanket right to reconsideration across all jurisdictions will not work in practice, as it will add significant cost and delay to the process on the basis that a dissatisfied party will inevitably apply for reconsideration by a judge, thereby negating the benefits of delegating decisions to staff. However, this objection was dealt with by Lord Briggs in his Civil Courts Structure Review: Final Report. He accepted that,

“an unfettered right of reconsideration will be a necessary long-stop”.

He also cited evidence from real-life precedents, suggesting that where such a right exists elsewhere, the number of reconsideration applications is low. Surely that should continue to be the case, particularly if, as the Ministry of Justice suggests, the decisions being made by authorised staff are properly non-contentious.

The Government’s concession, placing an obligation on the relevant rule committee to consider a right to judicial reconsideration for delegated functions, does much less to satisfy our concerns than their concession on delegated functions themselves, such as the safeguard in relation to a person’s liberty in their home. In fact, the Government’s concession here replicates the fundamental problem with the effect of the Bill. Placing the obligation on the rules committee, which ultimately does not have the budget to fund the Courts Service, delegates a legislative duty to an unaccountable body.

We on this side of your Lordships’ House strongly believe that Parliament has a legitimate role in ensuring that the new system of delegation proposed in the Bill includes a backstop protection for the right to a fair trial. Consequently, I urge noble Lords to support our amendments, which have already been endorsed by the Law Society, the Bar Council and the Equality and Human Rights Commission. They propose a statutory right to judicial reconsideration for any party to a judicial decision made by an authorised person, or non-judge. This would afford stronger protection for the right to a fair trial and guarantee the independent and impartial determination required by Article 6.

Photo of Lord Marks of Henley-on-Thames Lord Marks of Henley-on-Thames Liberal Democrat Lords Spokesperson (Justice)

My Lords, in Committee I spoke in favour of a blanket right to judicial reconsideration of all delegated decisions of authorised persons, much along the lines suggested just now by the noble Baroness, Lady Chakrabarti. During the debate, and after I had spoken, I was gently chided—if I may put it that way—by the noble and learned Lord, Lord Neuberger of Abbotsbury. He said that he sympathised with my view, stating that,

“the idea of a decision being made by a non-judicial person and not being referable to a judicial figure is inconsistent with justice”.

However, he went on:

“Whether it is right to provide in such clear terms, and such uncompromising general terms, for the circumstances and requirements for such an appeal seems to me, again, to be questionable. While I absolutely see the requirement for a right of appeal, I would have thought that, again, it would be better to leave it to the rule committee”.—[Official Report, 10/7/18; col. 890.]

I stress, as has been stressed before, that rules made by the rule committee have to be laid before Parliament, and are subject to annulment if Parliament so decides. The question is, then: how far do the amendments tabled by the Government in this group ensure that a right of judicial reconsideration will apply, when such a right ought to apply?

The noble and learned Lord, Lord Keen, suggested meeting the need to provide for judicial reconsideration by introducing requirements for the rule-making bodies to consider and work on the judicial reconsideration specific for each type of function. Amendments 7 and 13 reflect the Government’s thinking on that. The rule-making body will first have to consider and decide whether rules delegating functions should, in respect of each delegated function—that is important, because they are function-specific—include a right to judicial reconsideration. Secondly, if the rule-making body considers that the rules should include such a right, that body will be compelled to include it, so the right will stand. Thirdly, if the rule-making body considers that the rules should not include such a right, the body should be compelled to inform the Lord Chancellor of its decision and reasoning. Not only are these function-specific arrangements, but they meet the point that there would be no judicial reconsideration.

I was initially concerned when I saw these amendments that they would stop there, without providing for what the Lord Chancellor should do when informed of a decision by a rule-making body not to include a right to judicial reconsideration. But the Lord Chancellor has the power to require rules to be made. It seems to me that if the Lord Chancellor is of the view—being answerable to Parliament and having to lay rules before it—that a rule-making body is wrong in failing to provide for judicial reconsideration, he may be expected to require appropriate rules to be made. That is enhanced by the fact that, if he decides that they are right, he will have to come back to Parliament and say so. In my view, that meets the point made by the noble and learned Lord, Lord Neuberger, while providing for the introduction of rights to judicial reconsideration and delegated decisions where appropriate.

I do not see that there is a contravention of Article 6 simply because a judicial decision is delegated to an authorised officer. That would be a matter of consideration of the particular function and delegation and the presence of a right of appeal. A decision taken by someone who is not a judge is not necessarily a decision by a non-independent party. Indeed, in private litigation between parties, I can see no reason why a decision by an authorised officer should not be a decision by an independent party compliant with Article 6.

Photo of Lord Thomas of Cwmgiedd Lord Thomas of Cwmgiedd Judge 4:45 pm, 16th October 2018

My Lords, I support what the Government seek to do and urge a substantial degree of caution in respect of the proposal put forward by the noble Baroness. The Criminal Procedure Rule Committee and the other ones—the civil, family and tribunals committees—are independent bodies. They look at and scrutinise everything with a great deal of care. They are representative of all interests in litigation. For example, the Criminal Procedure Rule Committee has a number of defence lawyers and people from other aspects of the criminal justice system who proceed with great care to look at what is before them. It was suggested that they are unaccountable. I say on this amendment that the provisions for having to consider the right of reconsideration and then reporting that to the Lord Chancellor informing him of the decision and reasons is a traditional form of explanatory accountability.

Secondly, we ought to take into account the fact that, in our system of justice, the operation of the criminal, civil, tribunals and family procedures rule committees has enabled us far more than any other state to keep our rules up to date. I urge the greatest caution in trying to put into primary legislation anything that restricts in this way the powers of the rule committees. For example, there are areas where it has proved difficult to modernise and to reform the system—for example, for extradition appeals, where provisions put into primary legislation made the system almost unworkable. Certainly what was in the primary legislation in relation to videolinks and the protection of vulnerable witnesses proved a great obstacle.

I therefore urge your Lordships to consider that this amendment, as my friend the noble Lord, Lord Marks, said, provides the right balance. It gives discretion to a body that knows and has a lot of experience, but it contains that degree of explanatory accountability that will make sure that it does not do anything—even if we were to worry that it might—that goes outside a proper and just delegation. It is always difficult to think of issues on the spur of the moment but, for example, one of the areas that troubles courts quite often is the short time limits if you have a recalcitrant party. It might be that, in very restricted circumstances, a rule committee would say, “This is the kind of area where a reconsideration is not necessary when a final extension has been given”. But the important point is that I urge your Lordships to trust the rule committees, particularly now that there is this additional safeguard.

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

I am obliged to all noble Lords for their contributions. The Government’s position remains that the independent procedure rule committees, comprised of experts and practitioners from each jurisdiction, are best placed to decide whether a right of reconsideration is needed for each judicial function that staff are permitted to exercise. Similarly, they are best placed to determine what such a right should look like. In that context, I gratefully adopt the observations of the noble and learned Lord, Lord Thomas, the former Lord Chief Justice, and of the noble Lord, Lord Marks.

The approach taken in Amendments 8 and 11, tabled by the noble Baroness, Lady Chakrabarti, would impose a blanket right of reconsideration across all jurisdictions, with arbitrary deadlines. It simply would not work in practice. For example, the amendments would allow a person 14 days to apply for reconsideration. Why would a 14-day limit apply across all jurisdictions and for every judicial function that authorised persons are permitted to exercise, some of which are entirely straightforward case management and preparation duties? Indeed, the noble and learned Lord, Lord Thomas, referred to time limits. What happens if you have a request to adjourn a hearing due to take place the following day? If it is refused, you then have 14 days for reconsideration. In other words, it would automatically be successful because of this blanket provision. That is just one of many examples.

Each jurisdiction has its own ways of working and needs mechanisms for reviewing decisions that can respond to this. For example, the rule committees in the civil and tribunals jurisdictions have already built in a specific right to judicial reconsideration of decisions made by authorised staff. The magistrates’ courts and the family court have their own existing mechanisms for reviewing various decisions. These amendments, as proposed by the noble Baroness, would cut across all those existing provisions.

I mentioned an example in response to a query from the noble Lord, Lord Pannick. The magistrates’ courts issue something in excess of 2 million local authority summonses every year. If there were a right to reconsideration in every one of those cases, where would we begin and end with regard to the administration of such applications? Indeed, in the magistrates’ courts, there are already a number of ways for a defendant to challenge a case in which a summons has been issued. He or she can make an initial argument to the court hearing the case that the summons should not have been issued. You can contest the substantive application made by the local authority. There is even the possibility of judicial review. The matter is already covered.

Creating a mandatory right to apply for judicial reconsideration of the decision is not only unnecessary but would also be burdensome and ineffective. It is in these circumstances that I reiterate that it is appropriate, as other noble Lords have observed, that these matters should remain with the independent procedure rule committees and that I again commend Amendments 7, 9, 10 and 13. I invite the noble Baroness, Lady Chakrabarti, not to press her amendments in this group. I cannot commit to reflecting any further between now and Third Reading on these matters, so if the noble Baroness wishes to test the opinion of the House, she should do so now.

Amendment 7 agreed.

Amendment 8

Moved by Baroness Chakrabarti

8: The Schedule, page 11, line 8, at end insert—“67BA Right to judicial reconsideration of decision made by an authorised personA party to any decision made by an authorised person in the execution of the person’s duty as an authorised person exercising a relevant judicial function, by virtue of section 67B(1), may apply in writing, within 14 days of the service of the order, to have the decision reconsidered by a judge of the relevant court within 14 days from the date of application.”

Photo of Baroness Chakrabarti Baroness Chakrabarti Shadow Attorney General

My Lords, once more I am grateful to all noble Lords who have contributed to the discussion, which once again highlighted the fundamental differences on the principles in this Bill between some of us on each side of this House. I have tried hard not to be completely disruptive to the idea that certain, non-contentious, administrative decisions might be delegated as part of modernising the justice system in the 21st century, but I have heard no satisfactory response to the recommendations by Lord Justice Briggs.

These judicial decisions that will be delegated will be uncontentious or contentious. If it is the latter, Article 6 rights are engaged and, with the greatest respect to the noble Lord, Lord Marks, I cannot see how junior members of court staff—potentially not even three years post-qualification in their legal experience, and employed by the Government—are going to be independent and impartial for the purposes of satisfying Article 6.

The assurance that I am given in response to this concern is that I should put trust in the rule committees to make judgments about which decisions that have been delegated to these junior staff should and should not be subject to reconsideration by a judge. My concern is that the rule committees will be under the same pressure that the judiciary is under in relation to all this. It is a pressure with which I sympathise and which has been reflected eloquently in contributions to this debate by noble Lords and noble and learned Lords in particular.

At the end of the day, the rule committees do not have the access to the budget that would make it possible to ensure reconsiderations where they are required. Therefore, it seems rather unfair to put the pressure on the committees. The committee may feel that it has no choice because it cannot fund a system of adequate judicial consideration, which is because it cannot fund an adequate justice system in this country. That is not a state of affairs that I believe your Lordships’ House would want to sanction. With that in mind, I beg to move and seek to test the mood of the House.

Ayes 146, Noes 236.

Division number 1

See full list of votes (From The Public Whip)

Content

Not-content

Amendment 8 disagreed.

Amendments 9 and 10

Moved by Lord Keen of Elie

9: The Schedule, page 17, line 43, at end insert—“Schedule 5 (Tribunal Procedure Rules) is amended as follows.”

10: The Schedule, page 17, line 44, leave out “In Schedule 5 (Tribunal Procedure Rules),”

Amendments 9 and 10 agreed.

Amendment 11 not moved.

Amendments 12 and 13

Moved by Lord Keen of Elie

12: The Schedule, page 18, line 27, after “paragraph” insert—““function” does not include—(a) any function so far as its exercise involves authorising a person’s committal to prison or arrest;(b) any function of granting an injunction;”

13: The Schedule, page 18, line 28, at end insert—“After paragraph 28 insert—“Delegation of functions to staff: reconsideration of decisions28A(1) Before making Rules that provide for the exercise of functions of the First-tier Tribunal or Upper Tribunal by authorised persons by virtue of paragraph 3, the Committee must take the following steps in relation to each of the functions in question.(2) The Committee must consider whether the Rules should include a right for the parties to proceedings in which a decision is made by an authorised person exercising the function to have the decision reconsidered by a judicial office holder.(3) If the Committee considers that the rules should include such a right, it must include provision to that effect when it makes the Rules.(4) If the Committee does not consider that the rules should include such a right, it must inform the Lord Chancellor of—(a) its decision, and(b) its reasons for reaching that decision.(5) In this paragraph “authorised person” and “judicial office holder” have the same meanings as in Chapter 2A of Part 1 of this Act (see section 29A).””

Amendments 12 and 13 agreed.