Amendment 6

Courts and Tribunals (Online Procedure) Bill [HL] - Report – in the House of Lords at 3:45 pm on 24 June 2019.

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Lord Keen of Elie:

Moved by Lord Keen of Elie

6: Clause 2, page 3, line 20, leave out “consultation” and insert “concurrence”

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

My Lords, the amendments in this group deal with the issue of concurrence. Again, I thank noble Lords for their contributions on this topic at Second Reading and in Committee, and for their continued engagement on the matter outside the Chamber. We listened to the points made in these discussions and sought to address some of the concerns raised. I have tabled a range of amendments which I hope will provide suitable assurances for noble Lords. The amendments in this group deal specifically with the matter of concurrence in Clauses 2, 3 and 12. That is because I am now persuaded that the question of which proceedings fall under the auspices of the new Online Procedure Rule Committee should be a matter for agreement between the Lord Chancellor and the Lord Chief Justice. Therefore, these amendments make the necessary changes to Clauses 2, 3 and 12 to provide for this.

The amendment to Clause 12 also allows the Lord Chief Justice to delegate agreement to other members of the senior judiciary, which is purely a matter of practicality. I hope the amendments will be welcomed by noble Lords. They provide an important safeguard for the operation of the new committee. In particular, they address the concerns expressed by noble Lords at previous stages that the future expansion of the role of the committee should be subject to appropriate scrutiny and that in such matters the right relationship with the Lord Chief Justice and Senior President of Tribunals is one of concurrence. On reflection, this is a position which the Government now accept, and in these circumstances, I beg to move.

Photo of Lord Judge Lord Judge Chair, Sentencing (Pre-consolidation Amendments) Bill [HL] Special Public Bill Committee, Chair, Sentencing (Pre-consolidation Amendments) Bill [HL] Special Public Bill Committee

My Lords, the Government have come a long way and I am now addressing not only the amendments put forward by the Government but Amendments 22 and 23. I begin by thanking the noble and learned Lord, Lord Keen, for kindly listening to what we had to say and for acting on it, and the Bill team for helping him get the wording right. It means that the Government have come a long way towards understanding the implications of the constitutional changes in 2005, which changed the relationship between the Lord Chancellor and the Lord Chief Justice and placed on the Lord Chief Justice responsibilities that once attached to the Lord Chancellor. The Lord Chief Justice now has personal responsibility for the arrangements by which litigation is conducted. To the extent that this relates to tribunals, the Senior President of Tribunals has the same responsibility. I welcome Amendment 12 and government Amendments 6, 8, 25, 26, 27 and 28, and shall welcome government Amendments 10 and 15 in the next group.

The difference between being consulted and requiring concurrence needs no emphasis. If you are consulted, what you say can be totally disregarded; concurrence means what it says. Despite all that I have said, I am sad to say that although the noble and learned Lord, Lord Keen, has taken his car a long way down the road of logic and constitutional sense, his vehicle has run out of fuel and failed to reach its logical conclusion.

The position can be summarised very briefly. Amendments 22 and 23 to Clauses 8 and 9, respectively, concern two clauses which, as drafted, give exceptionally wide powers to a Minister. Indeed, Clauses 8 and 9, I am afraid, are in the sadly standard form of donating, handing over or retaining power to the Executive which we now find in just about every Bill that comes before us.

The first six clauses, whatever other comments may be made about them, recognise that the government amendments in group three address the constitutional responsibilities. That is fine. Clause 7(3) gives the Minister an unconditional power to,

“allow or disallow Online Procedure Rules made by the Committee”, provided that written reasons are given for doing so. In other words, he does not have to consult the Lord Chief Justice if he thinks that the rules put forward are not sensible or appropriate, or that they would cost too much money. That prevents the committee going off on a frolic of its own—or, indeed, putting forward rules with the concurrence of the Lord Chief Justice which, for example, involve unreasonable expenditure. That is very sensible. I do not cavil at the idea incorporated in Clause 7(3) and the individual responsibility of the Lord Chancellor in that regard.

However, taken together, Clauses 8 and 9 unbalance the relationship. The Lord Chief Justice falls out of Clause 8 altogether—he does not get a mention. He is reduced or left to the consultation process in Clause 9, which is entirely inconsistent with the provisions in the Bill that the Government amended to allow for concurrence rather than consultation. Under Clause 8, the Minister has power to direct that the rule committee shall include provisions to achieve the Minister’s purposes and that, when such a direction is given, the committee has no option but to comply within a reasonable time. It is that stark; the power is vested directly in the Minister.

It is one thing—and perfectly sensible—to protect the Lord Chancellor from some wild or absurd rule committee proposal. It is, with great respect, quite another for him to have an unconstrained power to give it directions: in effect, to tell it what to do. The Minister may, by Clause 9(2), also don the tarnished crown of King Henry VIII, who is not, of course, King Henry VIII to the noble and learned Lord, Lord Keen; I am not sure what he is to Scottish history—probably nothing. Would it not be wonderful to have a history in which Henry VIII counted for nothing? It would certainly be a convenience to this House if he did not count for very much.

So, if he wishes, the Minister may don this tarnished crown if he considers it necessary or desirable to facilitate the making of the rules. On closer examination, if you put these two clauses together, this arguably means that the Minister may overrule the very rules which were made with the concurrence of the Lord Chief Justice or his predecessor.

The Bill should be logical. The Lord Chief Justice’s concurrence to the exercise of these powers is elementary. The Bill and the government amendments now recognise it; the Minister has his safeguards in Clause 7(3); Amendments 22 and 23 make similar safeguards available to the Lord Chief Justice. I invite the Minister to refuel his car and keep right on to the end of the road.

Photo of Lord Pannick Lord Pannick Crossbench

My Lords, I declare my interest as a practising barrister. I too thank the noble and learned Lord, Lord Keen, for the important amendments which he has tabled, which will ensure that the concurrence of the Lord Chief Justice is required under Clauses 2 and 3. However, I have added my name to the amendments tabled by the noble and learned Lord, Lord Judge—in particular, Amendments 22 and 23—similarly to require the concurrence of the Lord Chief Justice for the exercise of the powers being conferred on the Minister under Clauses 8 and 9.

Clause 8 is an extraordinary clause. It would confer power on the Minister to require the committee to include a specified provision if the Minister thinks it is “expedient” to do so, and if the committee were to be so required, it would have a legal duty to comply. “Expedient” is the broadest possible word to define the scope of such a power. If Clause 8 is enacted as drafted, the requirement for the concurrence of the Lord Chief Justice under Clauses 2 and 3, which we all agree is necessary, would be rendered pointless. The Minister could simply override the views of the Lord Chief Justice in relation to any relevant matter under Clauses 2 and 3. I know that the noble and learned Lord, Lord Keen, does not share that view, and I look forward to him explaining why there is a limitation on what appears to be, and indeed is, the broadest possible drafting in the language of Clause 8. It contains no express limitation, and it seems very difficult to argue that there is an implied limitation that would prevent the Minister rendering pointless what is in Clauses 2 and 3 when the very purpose of Clause 8 is to give the broadest possible discretion to the Minister to give directions to the committee with which it must comply. Since the Minister has rightly accepted that, in the context of provisions about access to justice—which is what we are talking about—it is necessary for the provisions to require the concurrence of both the Minister and the Lord Chief Justice, there can nevertheless be no justification for conferring on the Minister by Clause 8 a power to override the views of the Lord Chief Justice on these important matters.

Clause 9 confers, as the noble and learned Lord, Lord Judge, said, a broad Henry VIII power on the Lord Chancellor to amend, repeal and revoke other legislative provisions whenever the Lord Chancellor considers it “necessary or desirable” in consequence of the Online Procedure Rules or to facilitate the making of Online Procedure Rules. Again, these are exceptionally broad powers, touching centrally on access to justice. For the same reasons that require the concurrence of the Lord Chief Justice for the exercise of powers under Clauses 2 and 3, it is necessary to require the concurrence of the Lord Chief Justice for the exercise of powers under Clause 9.

Photo of Lord Beith Lord Beith Liberal Democrat

My Lords, I do not know what answer the Minister will give to the pertinent question asked by the noble Lord, Lord Pannick, about the Clause 8 powers. The Lord Chief Justice might in some cases exercise the Clauses 2 and 3 powers to defy what the Lord Chancellor had asked the rule committee to do—which it had gone on to do at waste of time and expense and which he would not then agree to. However, that would apply to only some of the powers that the Minister would have in these circumstances; for example, extending into an area which the Lord Chief Justice did not think appropriate for the use of online procedure. But there are other things that the Lord Chancellor might direct the committee to do, such as shortening the notice period for various stages in the process or reducing in one way or another the rights of people engaged in the process, which could then be an obligation on the committee. If its members did not then resign, they would be required to produce rules which the Lord Chief Justice did not have a protective power to veto. The Clause 8 powers are worrying, and I do not recall at any stage in our amicable discussion any explanation why they are necessary and why, if any power is needed in this area, it cannot be much more narrowly defined.

One can make a similar point about Clause 9 in relation to Henry VIII powers, but it is a point that we have made so often that we risk becoming tired of making it. Thank goodness that the noble and learned Lord, Lord Judge, never ceases to make it in every circumstance in which it is appropriate.

I remain particularly worried about the absence of concurrence in relation to Clause 8. The concurrence issue turns on what was done when the position of Lord Chancellor was so radically changed. It is entirely appropriate that we should seek to police the line between the powers that the Lord Chief Justice now exercises over the management of the judiciary and the responsibility for issues such as resources and genuinely political questions, which rests with the Lord Chancellor. That is a very important line and we could stray over it from either point of view—by giving inappropriate powers to the Lord Chief Justice or unnecessary powers to the Lord Chancellor. Care is needed in this area. Here, retaining the purpose of all the amendments we made to those reforms to secure the independence of the judiciary calls for a fresh look at the Clause 8 powers.

I have a more technical point to put to the Minister, which is about the position of the Senior President of Tribunals. There are one or two places where he or she is specified as requiring concurrence but others where there is no reference. Is it the assumption that in all cases the Lord Chief Justice will—as I am sure they will—have proper regard to the position of the Senior President of Tribunals in relation to a tribunal matter, or have I failed to spot that in some instances that position is not relevant? He or she carries responsibility for the fair administration of justice in the tribunal sector and we may have to look to that sector to address any problems that arise if we have not got the definitions right.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative 4:00, 24 June 2019

My Lords, I took some part in previous discussions of these matters in relation to the powers of the Lord Chief Justice and the fact that he—or she, if it happens to be so—is now the head of the judiciary and the Lord Chancellor is not. I am inclined to remember—I may be wrong, and I hope that my noble and learned friend will correct me if I am—that a provision of exactly this type was made in relation to the other procedural committees that currently exist. It is a considerable time since that provision was made, and as far as I know, no trouble has emerged. That is because I would expect the Minister to exercise great care in this matter. I think I am right in saying that that was not altered in the Constitutional Reform Act, as it is called, which changed the responsibility of head of the judiciary.

I am therefore inclined to want to hear a bit more about this before we come to a decision. When so much agreement has been reached, it is a pity if we fall from agreement at the last minute, particularly if to do so would produce a very strange anomaly between the existing law relating to either of the other procedural committees and this rather more technical committee.

I do not think Clause 9 has to do with the procedure rules. It has to do with the possible obstruction to those rules which may exist in legislation already passed as part of our law. The Lord Chancellor is entitled to make regulations to amend the Acts of Parliament which interfere with the proposals being accepted as Online Procedure Rules. The rules may well have an impact on old statutory provisions—for example, those which have an impact on whether or not you can have online procedures—most of which, I imagine, did not envisage that. It may be that they can be interpreted to include considerations of that kind, but that is the nature of the problem in relation to Clause 9.

After thinking this through as best I can, I would not care for the Lord Chief Justice to have to be involved in the regulation-making aspect of this business. If regulations are required, they should be made by the person with the appropriate political responsibility. I therefore have doubts about the relevance of the rules in relation to Clause 9.

As to Clause 8, as far as I know, existing law was left unchanged by the Constitutional Reform Act. As to Clause 9, I wonder whether it is appropriate for the Lord Chief Justice to get himself involved in the nitty-gritty of political regulation.

Photo of Lord Pannick Lord Pannick Crossbench

The noble and learned Lord says that it is not appropriate for the Lord Chief Justice to be involved in Clause 9 matters—that he is not relevant to that—but the clause makes him involved. It gives him a role because he has to be consulted, so he is not irrelevant at all.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

Exactly. He is doing exactly what I think is required. If the person who has the responsibility finds out that it is okay with the Lord Chief Justice—at least that is what I hope would happen—that person then goes on and does it. Therefore, consultation is probably the right balance at that stage. I am rather against the idea of involving the Lord Chief Justice in any form of political work. I thought the Constitutional Reform Act sought to achieve separation between the judiciary and the legislature, so that the acting judiciary were no longer part of the legislature.

Photo of Lord Garnier Lord Garnier Conservative

My Lords, I do not want to spread dissension where none is required or even helpful, but I am persuaded by the first three noble—and noble and learned—Lords who have spoken in this debate. I am always persuaded by what my noble and learned friend Lord Mackay says, and we need clarification. Although I fully accept what my noble and learned friend has just said in relation to the political angle, there are provisions in Clause 9 which, although they refer to amending, revoking or repealing an Act, or a provision made under an Act, at heart deal with the mechanics of the procedure to be operated under the Online Procedure Rule.

We need to think more carefully before rushing into this. I take my noble and learned friend’s point about the possible inconsistency between this legislation, if it is to be amended, and earlier provisions. However, sometimes consistency runs in the wrong way. If the current amendment points out something that would then become inconsistent, it may be that the earlier provision also needs to be amended. In any event, I am utterly convinced that my noble and learned friend on the Front Bench will be able to persuade me that what the noble and learned Lord, Lord Judge, has said, supported as he is by the noble Lords, Lord Pannick and Lord Beith, will enable us to move forward in a spirit of complete concurrence.

Photo of Lord Faulks Lord Faulks Conservative

My Lords, I repeat the declaration I made at Second Reading that I am a practising barrister. The balance of powers between the Executive and the Lord Chief Justice is a delicate matter, and I too will listen with care to what my noble and learned friend says about it. However, I wonder whether the powers are quite as wide as the noble Lord, Lord Pannick, says they are. Clause 8 admittedly gives a power to the appropriate Minister to do what they think is expedient for the Online Procedure Rules, and the committee must make Online Procedure Rules. But that throws the matter back to the committee to make the rules and, in doing so, once again the committee has to go through the procedure that itself involves getting the agreement of the Lord Chief Justice—so there is a safeguard at that level.

As far as Clause 9 is concerned, there is consultation in relation to the Lord Chief Justice, as my noble and learned friend Lord Mackay said, and the powers are limited to making such changes by getting rid of impediments and tidying up, as is necessary or desirable, as a consequence of Online Procedural Rules. I wonder whether we are not putting up a rather alarming prospect of a Minister, as it were, riding roughshod when in reality these are necessary provisions for the Executive to use—subject of course to the actual making of the relevant rules which do themselves provide safeguards.

I of course endorse what has already been said: if these additional amendments are incorporated into the Bill, it would make it more restrictive to make these rules in relation to online procedure than is the case under the current Civil Procedure Rules. That would be odd, although I take the point made by my noble and learned friend Lord Garnier that if there is something wrong with it, there is no reason simply to rely on precedent. None the less, this has not been criticised so far and I wonder whether we are wise to do it now.

Photo of Lord Garnier Lord Garnier Conservative

My noble friend has reminded me that I should have declared an interest as a practising barrister, given that that may not always be clear.

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, Lord Garnier, has reminded me that perhaps I should make the same declaration—so I do so now.

We support Amendments 22 to 24, not only for the reasons given by my noble friend Lord Beith but for those given earlier in the debate, in particular by the noble and learned Lord, Lord Judge, and the noble Lord, Lord Pannick. We regard it as very important that these rules should ensure a proper balance between the Lord Chancellor and the Lord Chief Justice: between the Executive and the legislature. I also take the two points made by the noble and learned Lord, Lord Mackay. First, there are of course equivalent provisions in the existing rules, but I agree entirely with the noble and learned Lord, Lord Garnier, who pointed out that that should not be treated as a precedent, and that if there is anything wrong with the earlier rules, perhaps they should be changed. If the 2005 Act overlooked those changes, perhaps it should not have done so, because that was the point at which the changes should have been made; that is, when the balance between the Lord Chancellor and the administration of justice changed.

I also suggest that what the noble and learned Lord, Lord Mackay, said was telling. He said that the difference between consultation and concurrence is that where you have consultation, the Lord Chancellor will go to the Lord Chief Justice and check that the change in the rules is okay with him—or that is what he hopes he would do—and then he would go back to make the rule. However, it seems to me that the need for concurrence in these rules is dependent on the Lord Chancellor finding out that the rules are okay with the Lord Chief Justice and the requirement for concurrence is to determine the position where they are not okay with the Lord Chief Justice, and that is why we have the concurrence requirement. I will give way to the noble and learned Lord.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

We are talking about Clause 9, which is to do with regulations, not the making of the rules. It is the effect of existing law in relation to the rules that has to be dealt with.

Photo of Lord Marks of Henley-on-Thames Lord Marks of Henley-on-Thames Liberal Democrat Lords Spokesperson (Justice) 4:15, 24 June 2019

Again, I am not sure about that. I do not accept what I understand to be the Government’s argument against the amendments.

Clause 8 includes a rule-requiring power, and Clause 9 allows for the amendment or revocation of provisions made under an Act, which include the rules. Overall, it seems that Clauses 8 and 9 give the Government a rule-making or rule-requiring power. As I understand it, the Government’s argument is that Amendment 6 to Clause 2 and Amendment 8 to Clause 3 remove the need for a concurrence requirement in respect of Clauses 8 and 9; they also argue that, through those amendments, the concurrence requirement will govern the designation of proceedings of a specified kind and, similarly, will govern whether the Online Procedure Rules or conventional rules will govern proceedings which are of a specified kind. They go on to argue that, therefore, Clauses 8 and 9 will operate within that framework, and the concurrence requirement is therefore unnecessary in relation to the powers requiring rules to be made or requiring amendments to the rules. I disagree; I simply do not see the nexus.

Under Clauses 8 and 9, any number of rules—or changes or amendments to existing rules—might be made or required within the framework of the Online Procedure Rules. Such rules or amendments might well offend against the principles that the Lord Chief Justice would wish to impose on them. That could occur even in the context of existing designated specified proceedings. It follows that the concurrence requirement should be applicable to the rule-requiring, rule-amending or rule-repealing powers under Clauses 8 and 9—perhaps only as a safeguard and possibly in the hope that they will not be needed—and that the consultation preceding the concurrence requirement should be effective but, against the danger that it is not, I suggest that the amendments are required. We support them.

Photo of Baroness Drake Baroness Drake Labour

My Lords, I support Amendment 22 to Clause 8. I will steer clear of debate on Clause 9, being neither a judge nor a barrister or solicitor.

In Committee, deep concerns were expressed about the extent of the ministerial powers in the Bill, which could result in rules that set digital engagement and participation in online courts as compulsory conditions for access to justice in civil proceedings. In effect, the ministerial powers in the Bill have the potential to require people to choose between online proceedings or not pursuing legal claims. The Constitution Committee shared those concerns. The Minister sought to mitigate those concerns by giving assurances as to the Government’s intentions. In Committee, in response to my noble friend Lady Corston, the Minister commented:

“We intend to appoint a committee of experts to formulate these rules, including judicial members. They will have regard to the need for access to justice. Certainly, we have confidence in the ability of such a committee to formulate rules that reflect the need for all members of the community to have access, not only those who are perhaps more digitally alert and astute than the minority. We lay our confidence in the fact that there will be such a committee, that it will make regulations and that it will do it under the aegis of not only the Executive but the judiciary, and the Lord Chief Justice in particular”.

However, Clause 8 explicitly allows Ministers to both instruct and overrule that committee of experts.

On a further occasion, the Minister gave an assurance that,

“judicial discretion … ultimately, is paramount, and nothing in the Bill or that we would anticipate in the regulations to be made pursuant to the powers under the Bill would undermine that judicial discretion, which ultimately has be exercised in the interests of justice”.

However, as the noble and learned Lord, Lord Mackay, so acutely observed in Committee:

“It is not judicial discretion but rules that may require the parties to participate in the hearing by means of electronic devices. Therefore, it is not a question of the judge in charge of the case making that decision; the preliminary rules will require it, and the judge will be bound by that”.—[Official Report, 10/6/19; cols. 287-89.]

In summary, notwithstanding ministerial assurances, Clause 8 confers powers on Ministers to require specific provisions to be included in the Online Procedure Rules which the Online Procedure Rule Committee must comply with. Clause 8 also requires that the rules that the committee is required to make must be in accordance with Clause 7, but that clause gives the Minister explicit powers to disallow rules made by the Online Procedure Rule Committee of experts. Clause 8 gives Ministers considerable scope but fails to frame those powers in a way that ensures access to justice and does not give rise to the potential of a person having to choose between online court proceedings or not pursuing their case.

There are real concerns across the House about the potential of the powers given to Ministers in Clause 7, and I will not replay them here, but the case for Amendment 22, which introduces a degree of control over the exercise of those powers by requiring the Minister to secure the concurrence of the Lord Chief Justice, who is the head of the judiciary and is ultimately responsible for the delivery of justice, is, I believe, compelling.

Photo of Lord Beecham Lord Beecham Shadow Spokesperson (Justice), Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Housing)

My Lords, I welcome the Minister’s acceptance of the need for the Lord Chief Justice to concur with the creation of rules rather than merely to be consulted. However, Amendments 16 and 19 look to enhance parliamentary scrutiny by requiring the affirmative process. The increasing reliance on the negative procedure has already roused concern in your Lordships’ House, and many Members are further concerned about its application to this sensitive area. The Law Society strongly endorses the amendments prescribing the affirmative procedure on the basis that it would secure further parliamentary scrutiny of the regulations.

Amendments 20 and 21, which are in my name, would empower the committee to decline a government request—in effect, an instruction—to create certain rules, which is really the issue that my noble friend Lady Drake has just referred to. If there is to be a really meaningful role for that committee, to my mind we need an amendment along the lines of Amendments 20 and 21.

Finally, we will certainly support the noble and learned Lord, Lord Judge, if he seeks to take the opinion of the House on the two amendments in his name.

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

My Lords, I begin with two general observations. First, I am not conscious of having run out of fuel, but I leave that to others to judge. Secondly, it occurs to me that the Henrician view of executive power does not differ in any practical respect from the Stuart view of the divine right of kings.

Perhaps I should begin by making this point. Under the structure of the Bill, it will be necessary, pursuant to Clauses 2 and 3, to identify proceedings of a specified kind that may be subject to the Online Procedure Rules. In the light of the Government’s amendments, that can be done only with the concurrence of the Lord Chief Justice, as indicated, and subject to the affirmative procedure.

It is not open to the Online Procedure Rule Committee to make Online Procedure Rules in respect of procedures that are not of a specified kind—that would simply be ultra vires. There is scope the other way, for the Online Procedure Rule Committee to provide that certain proceedings that are of a specified kind are not to be governed by the rules; that is pursuant to Clause 1(6). So the point I seek to emphasise at the outset is that the definition of specified procedures—the specified kind of procedures—sets out the framework within which the Online Procedure Rule Committee can operate. If the Minister were at any time to direct the Online Procedure Rule Committee, pursuant to Clause 8, to make rules in respect of proceedings that were not of a specified kind, that would be ultra vires; that is quite clear. He can direct them to make rules only in respect of proceedings of a specified kind pursuant to Clauses 2 and 3.

It is not possible to utilise the Clause 8 power in order to run roughshod over the provisions in Clauses 2 and 3, which clearly set out the need for the Lord Chief Justice to give concurrence to the proceedings that will be subject to the rules. Perhaps I am stating the obvious, but it occurred to me that one or two observations made in the course of this debate were inclined to suggest otherwise. I do not accept that. One has to look at the entire structure of the Bill and have proper regard to the way in which Clauses 2 and 3 will operate in that respect.

Photo of Lord Pannick Lord Pannick Crossbench

I am grateful to the Minister for giving way. It may be obvious to him, but not necessarily to others, that there is this implied limitation in what appears a very broad power being conferred on Clause 8. I suggest to him that a possible way forward would be for him to introduce at Third Reading an amendment to Clause 8 that makes it clear in the Bill that it has the limitation that he tells the House it has.

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

With great respect to the noble Lord, I do not consider that I am dealing with an implied limitation. If one construes the Bill as a whole, one begins with Clauses 2 and 3, which set out the framework within which the Online Procedure Rule Committee will be able to operate. That framework is subject to the concurrence of the Lord Chief Justice; that is quite clear. To read Clause 8 as though it stands entirely alone and independently of the rest of the Bill is not, I submit, at all appropriate. The circumstances in which Clause 8 directions may be given clearly apply to the rule-making power of the committee. The committee has no rule-making power except in respect of proceedings of a specified kind as provided for by Clauses 2 and 3. I do not suggest that an implication is necessary there; it is simply a matter of statutory construction. I hear what the noble Lord says and will give further consideration to the point he makes in light of it, but that is my position at present.

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

Accepting what the Minister says about the framework, there is nothing in Clause 8 as I read it—he will no doubt correct me if I am wrong—that prevents the Lord Chancellor giving a Clause 8 direction in the context of rules already within specified proceedings, where the rules required to be made by the Lord Chancellor’s direction are offensive to the Lord Chief Justice.

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

If they were offensive to the Lord Chief Justice, that would emerge in the course of consultation. I am glad that the noble Lord accepts my point about the proper construction of the statutory provisions as between Clauses 2 and 3 and Clause 8. What he is concerned about is an entirely distinct issue: that the Minister gives a direction for the making of rules in respect of proceedings of a specified kind, pursuant to Clauses 2 and 3, which the Lord Chief Justice might not like. If he does not like it, he can express that view during the consultation. If he is deeply disturbed by what is proposed, he can have recourse to Section 5(2) of the Constitutional Reform Act 2005 to make a report to Parliament, but that will not arise. One has to see these powers in their proper context.

I would add that, in the course of looking at the proposed amendments to the Bill, we have engaged with the Judicial Office to try to ensure that the Bill reflects constitutional arrangements consistent with those of the existing civil committees. That is precisely what Clauses 8 and 9 do and I am not aware of any objection from that source to the way in which those committees already operate, and in which it is intended that this committee should operate in respect of the same matter. I will come on to explain why, constitutionally as well as with reference to precedent, we consider that appropriate. I underline the point that the existing proposal in Clause 8 in no way takes away from or abrogates the provisions in Clauses 2 and 3, which establish quite clearly those proceedings, and only those proceedings, in respect of which the committee itself can make rules. It cannot make rules for something else entirely.

As I mentioned, that reflects a long-standing arrangement with the existing civil rule committees that has operated for many years. It is consistent with the notion that where, for example, the Executive have a policy about particular matters that is approved by Parliament and they wish to direct that rules should be made pursuant to it, that should of course be subject to consultation with the Lord Chief Justice but should not be subject to any form of veto from the Lord Chief Justice as that would not be appropriate. Indeed, it would be to draw the Lord Chief Justice into the political arena in circumstances where I am sure he would not wish that to happen. That is why we have the existing provisions relating to this matter in the existing civil rules, and why we seek to reflect that. My understanding is that this arrangement reflects the agreement between the Lord Chancellor and the Lord Chief Justice under the 2004 concordat given effect to under the Constitutional Reform Act 2005.

The effect of this amendment, if implemented, would be to change the relationship between Ministers and the judiciary—an arrangement that appears to have worked well for the last 20 years. Indeed, I would add that the powers we are dealing with are rarely, if ever, used. As I understand it, the Civil Procedure Rule Committee provision has been used only once in the past 20 years. However, as I indicated, it reflects an important constitutional balance, which is why we consider it appropriate that we should have Clause 8 in its present form. It is a matter of precedent and of constitutional propriety, and it is appropriate because it does not take away in any sense from the protections provided for in Clauses 2 and 3.

Amendments 23 and 24 deal with Clause 9, seeking to add a concurrent requirement before the Minister can amend legislation in consequence of or to facilitate the making of online rules. Again, this power as currently expressed in Clause 9 expresses very similar provisions governing the civil, family and tribunal procedure rules. It allows the Lord Chancellor to make consequential amendments to other legislation, or to amend other legislation, to facilitate the making of Online Procedure Rules. Its intended use is primarily to correct minor issues in legislation—for example, to update references to things in legislation to match and be consistent with references to those matters in the online rules. That power in the equivalent Civil Procedure Rules has, I understand, been used on only seven occasions over the past 20 years, the last time about 14 years ago. Various examples can be given of where it has been necessary to make such regulations to correct inconsistencies in primary legislation, but I have no hesitation in saying for the purposes of Hansard that it is employed for that purpose and that it is intended under the Bill for such a purpose. I hope that helps to clarify why Clauses 8 and 9 are expressed in their present form.

I will touch on a point raised by the noble Lord, Lord Beith, regarding the reference to the Senior President of Tribunals. It is because there is a division of responsibility between the senior president, in respect of matters concerning tribunals, and the Lord Chief Justice, in respect of matters regarding the courts. There is a similar division between the Lord Chancellor and the Secretary of State for BEIS, who has responsibility for employment tribunals. The Bill is intended to reflect those divisions of responsibility and not to amalgamate this. In these circumstances, I invite noble Lords to reconsider and not to move Amendments 22, 23 and 24 at this stage, as not required.

I will touch on Amendments 16 and 19, tabled by the noble Lord, Lord Beecham, which require that regulations made under Clause 6 be subject to the affirmative rather than the negative procedure. This clause is where the Minister may make changes to the composition of the rule committee. As I explained, we envisage that the new committee will be agile, focused and flexible in how it conducts its business. Over time, as the scope of the online procedure widens, the Lord Chancellor may wish to make changes to both the number and expertise of committee members.

We consider that moving this to the affirmative procedure would hamper the committee’s ability to adapt quickly and effectively to new developments. If the committee was asked to draft rules in a new area, following consultation with the Lord Chief Justice, it may decide that additional expertise is needed on the committee. These amendments would mean that a debate in both Houses of Parliament would be needed before any such appointment could take place. We consider that that would be an inappropriate use of parliamentary time and would certainly reduce the efficiency of the committee, which is counter to one of the underlying purposes of the Bill. With respect, it appears to us that the negative resolution procedure strikes the right balance between the extent of parliamentary scrutiny and ensuring that the Lord Chancellor will be able to implement the rules effectively and efficiently.

Amendment 19, tabled by the noble Lord, Lord Beecham, changes the negative procedure to the affirmative for the making of rules of court. We certainly do not consider that appropriate; it is not the position for the other civil rules committees. It would place a burden on the committees and on Parliament if the procedure was slowed down by such a measure. The existing committees often make rules at least twice a year and the cumulative impact on parliamentary time of a move towards affirmative debates on statutory instruments of this kind would be entirely disproportionate. In these circumstances, I invite the noble Lord not to move Amendments 16 and 19.

Amendments 20 and 21, tabled by the noble Lord, Lord Beecham, seek to remove the requirement for the Online Procedure Rule Committee to make rules at the direction of the Lord Chancellor and the requirement that the committee make such rules within a reasonable period. As I sought to underline in my response to Amendment 22, there are very strong arguments for retaining a power of direction consistent with the other civil rule committees. I will not repeat those here, but it appears that the amendment proposed by the noble Lord would also diminish the effectiveness of the committee and would be inappropriate in the circumstances. Therefore, I also invite him not to move Amendment 20. I beg to move Amendment 6.

Amendment 6 agreed.

Clause 3: Provision supplementing section 1

Amendment 7 not moved.