Power to require rules to be made

Courts and Tribunals (Online Procedure) Bill [Lords] – in a Public Bill Committee at 10:15 am on 23rd July 2019.

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Photo of Paul Maynard Paul Maynard The Parliamentary Under-Secretary of State for Justice 10:15 am, 23rd July 2019

I beg to move amendment 9, in clause 9, page 8, line 32, leave out subsection (4)

Subsection (4) requires the appropriate Minister to obtain the concurrence of the Lord Chief Justice before giving notice to Online Procedure Rule Committee requiring it to make rules.

Photo of Gary Streeter Gary Streeter Conservative, South West Devon

With this it will be convenient to discuss the following:

Amendment 8, in clause 9, page 8, line 33, at end insert—

“(4A) The Committee may decline, with written notice, the appropriate Minister’s request to create Online Procedure Rules to achieve a purpose specified if deemed inappropriate or unnecessary by the Committee.”

This amendment would allow the Online Procedure Committee to decline a Minister’s request to create Online Procedure Rules.

Government amendments 10 to 12.

Photo of Paul Maynard Paul Maynard The Parliamentary Under-Secretary of State for Justice

It is a pleasure to go first for a change. On Third Reading, the other place voted to amend clauses 9 and 10 so that the Lord Chancellor and the Secretary of State for Business, Energy and Industrial Strategy must obtain the concurrence of the Lord Chief Justice when the Lord Chancellor or the BEIS Secretary gives notice requiring the committee to make rules to achieve a specified purpose, or the Lord Chancellor makes consequential amendments to existing legislation to ensure that the online procedure rules operate properly. Previously, the Lord Chancellor could use the powers without the need to obtain agreement from the Lord Chief Justice. The powers originally reflected the legislative procedures in place for the existing rule committees, which have worked well for many years, and which I believe should be retained.

The amendments in the other place have also altered the constitutional position. I do not consider it acceptable to use the Bill as a vehicle for significant constitutional reform. I also strongly believe that the amendments made to clause 9 in the other place fetter the Lord Chancellor’s power to give effect to Government policy through the online procedure rules. The clause now requires the Lord Chief Justice to take a decision on the implementation of that policy, which contradicts the traditional role of the independent judiciary and the concordat: a long-standing agreement between the judiciary and the Executive that specifically refers to the Lord Chancellor’s power to require committees to make rules to achieve a specified purpose.

The concordat also refers to the power to amend, repeal or revoke any enactments governing practice and procedure to facilitate the making of rules considered necessary or desirable following consultation with the Lord Chief Justice, as was originally provided for in clause 10. It is important that the Bill reflects the position in the concordat. The Lord Chancellor is directly accountable to Parliament for any rules that are made, so it is right that the responsibility lies with him alone. Therefore, with amendments 9 to 12, the Government seek to overturn the amendments made in the other place and to revert to the original wording. When these amendments are seen alongside Government amendments tabled in the other place, I hope Members will agree that there are sufficient safeguards in the Bill to allay concerns.

We amended the Bill in the other place so that before laying regulations to bring new types of proceedings online, the concurrence of the Lord Chief Justice and the senior president of tribunals is required. That is in addition to the requirement already in the Bill of an affirmative vote in each House agreeing to any such regulations. The regulations set out the framework in which the rules will operate, and the Lord Chief Justice must agree to that framework. The Lord Chancellor cannot direct the rule committee to make rules outside the framework that the Lord Chief Justice has agreed to, so the safeguards in clauses 2 and 3 provide the requisite assurances.

Furthermore, the power under clause 10 can be used only for changes that are consequential on the online rules, or that are necessary or desirable to facilitate online rules. We therefore consider that there are sufficient safeguards to ensure the appropriate use of the powers, and there is no need to provide for concurrence with the Lord Chief Justice and senior president of the tribunals in clauses 9 and 10 as well. We have actively engaged with the peers who had concerns and we will continue to discuss this part of the Bill with them ahead of its returning to the other place, where I am hopeful of achieving agreement to the changes.

Amendment 8, tabled by the hon. Member for Bolton South East, seeks to allow the committee to decline a ministerial direction to make rules on a specified topic. It is my position to ensure that lawful government policy can be given effect to and that the relevant Minister should be able to direct the Committee to make rules. The rules might be required to ensure that the online procedure is operable, and so might need to be made urgently, without additional procedure. Concern was raised about the clause on Second Reading, and I hope to be able to assure hon. Members that it is not a power grab by the Executive. The power already applies to existing rule committees and to other procedural rules not subject to the Bill.

Clause 9 reflects similar provisions agreed between the then Lord Chancellor and Lord Chief Justice under the concordat of 2004 and given effect in the Constitutional Reform Act 2005. In practice, the power is not frequently used—indeed, there is just one example of its having been used in the existing civil procedure rule committee. Nevertheless, it is an important power and reflects the established constitutional arrangement. The amendment could cause a problematic constitutional situation whereby a rule committee could refuse to draft rules following the written request of a Minister who sought to implement a specific policy. There would be democratic concerns if a committee was able to refuse to prepare rules on a policy that the Government had been elected to deliver. Such a situation would risk embroiling the judicial members of the committee in a political debate. We should all seek to avoid that.

The proposed amendment would also lead to a situation in which the new committee operates differently from other committees that deal with civil, family and tribunal proceedings. It would diminish the power of the appropriate Minister to respond rapidly to changing circumstances, and would effectively give the new committee a power of veto to make rules, which could lead to delays for users who are required to engage with the justice system or for HMCTS in delivering the reforms. As the Minister is the one who is answerable to Parliament, ultimate decisions on policy making should be in their hands, not in the hands of the committee. I urge the hon. Lady not to press amendment 8, and I commend amendments 9 to 12 to the Committee.

Photo of Yasmin Qureshi Yasmin Qureshi Shadow Minister (Justice)

We think amendment 8 is important to ensure that there is no control by the Executive. If it is asked by the Minister to change the rules, the committee that has been charged with the task of preparing the procedures should be able to decline the request. That is important because it ensures that the committee is independent of the Executive, the Lord Chancellor and the Ministry of Justice. The committee should be free to do as it wishes. The Opposition therefore believe that the amendment is an important safeguard for the OPRC to be able to determine the rules as it wishes. It will give written notice to the appropriate Ministers, and I am sure it will explain its rationale. We believe that it should ultimately be a procedure committee’s decision whether to change a procedure because of a request from a Minister; the Minister should not be able to take control of that. It is a power grab by the Executive, and we have to avoid that as far as possible.

Photo of Daniel Zeichner Daniel Zeichner Labour, Cambridge

I am one of the few people in the room who does not have a legal background. I have an IT background, and I used to spend a lot of my time trying to explain to people that IT cannot always do the magical things that they think it can. One of the flaws in this discussion is that there is nothing about the digital infrastructure that underpins the Bill. The proposed amendment is actually rather sensible, given that the only IT expertise in this process seems to sit with the OPRC. I would like reassurance from the Minister that some thought has been given to the processes that will underpin the Bill. Has he considered whether it would be sensible in some cases for the Committee to say, “Actually, this is not going to work.”?

Photo of Andrew Slaughter Andrew Slaughter Labour, Hammersmith

I strongly disagree with Government amendment 9. It is very common practice for there to be dual control—the Lord Chancellor and the Lord Chief Justice—in relation to a variety of matters. It seems sensible and is an important safeguard. Nowhere should that be more self-evident than when one is dealing with the practical operations of the courts and ensuring, as the Bill does, that new systems coming into operation have that practical guidance. Having perhaps accepted in principle the arguments that were very well made in the other place, particularly by Lord Judge, I cannot see that the Government now wish to weaken that by simply having consultation rather than concurrence. As the Minister often says to our Front Benchers, I would urge him to think about this again and see what he is gaining or has to be worried about in these provisions. It seems an unnecessary bit of control-freakery by the Government.

Photo of Paul Maynard Paul Maynard The Parliamentary Under-Secretary of State for Justice

The hon. Member for Hammersmith makes a valiant effort to ask why we should retain these clauses. For all the reasons I have set out, I beg to differ that this is not the place to attempt constitutional innovation. That is not how the other procedure committees function either.

The hon. Member for Cambridge makes a perfectly valid point, but this is not the place to achieve his objective. HMCTS, being in charge of a £1 billion court reform programme, is subject not just to the scrutiny of the Justice Committee, on which the hon. Member for Hammersmith sits, but that of the Public Accounts Committee and mine as Minister.

There are vast reams of evaluation, picking up what is and is not working. There are also vast reams on how to evaluate, to establish what is and is not working. There is no lack of scrutiny. The online procedure rule committee has had to look at what rules should govern the operation of the IT, but HMCTS has the ultimate responsibility of examining whether a particular online tool functions.

Question put, That the amendment be made.

Division number 8 Courts and Tribunals (Online Procedure) Bill [Lords] — Power to require rules to be made

Aye: 8 MPs

No: 7 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Committee divided: Ayes 8, Noes 7.

Question accordingly agreed to.

Amendment proposed: 8, in clause 9, page 8, line 33, at end insert—

‘(4A) The Committee may decline, with written notice, the appropriate Minister’s request to create Online Procedure Rules to achieve a purpose specified if deemed inappropriate or unnecessary by the Committee.”

This amendment would allow the Online Procedure Committee to decline a Minister’s request to create Online Procedure Rules.—(Yasmin Qureshi.)

Question put, That the amendment be made.

Division number 9 Courts and Tribunals (Online Procedure) Bill [Lords] — Power to require rules to be made

Aye: 7 MPs

No: 8 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Committee divided: Ayes 7, Noes 8.

Question accordingly negatived.

Clause 9, as amended, ordered to stand part of the Bill.