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

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

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Photo of Lord Marks of Henley-on-Thames Lord Marks of Henley-on-Thames Liberal Democrat Lords Spokesperson (Justice) 3:18, 16 October 2018

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.