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

Baroness Chakrabarti Excerpts

Report stage (Hansard): House of Lords
Tuesday 16th October 2018 Lords Chamber

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.”

[Baroness Chakrabarti (Lab)]

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.

[Lord Marks of Henley-on-Thames (LD)]

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.

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[Baroness Chakrabarti]

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 on 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.

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.”

[Baroness Chakrabarti]

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.

[Baroness Vere of Norbiton (Con)]

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 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.

[Baroness Chakrabarti]

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.

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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”

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[Baroness Chakrabarti]

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.

[Lord Marks of Henley-on-Thames]

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.

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[Baroness Chakrabarti]

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.

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[Lord Marks of Henley-on-Thames]

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.

[Baroness Chakrabarti]

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.

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[Lord Keen of Elie]

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.

[Baroness Chakrabarti]

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.

[Lord Marks of Henley-on-Thames]

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.

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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.”

[Baroness Chakrabarti]

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.

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

Baroness Chakrabarti Excerpts

Committee: 1st sitting (Hansard): House of Lords
Tuesday 10th July 2018 Lords Chamber

Moved by

[Baroness Chakrabarti]

1: After Clause 1, insert the following new Clause—
“Report on availability of judicial training to support deployment
(1) Within twelve months of the coming into force of section 1, the Lord Chancellor must publish a report on the availability of the judicial training necessary to enable judges to be deployed more flexibly.(2) The report under subsection (1) must be laid before each House of Parliament.”

[Baroness Chakrabarti (Lab)]

My Lords, at Second Reading, it was widely acknowledged around the House that there were practical arguments for expanding the flexible deployment of judges, including some temporary judges appointed outside the usual Judicial Appointments Commission selection process, to a wider pool of courts and tribunals. However, the appointment of temporary judges as a principle should be approached with caution. Further, it is important to view flexible deployment in general through the prism of the Government’s wider programme of reforms and cuts. Given the planned savings on judicial salaries, we have to ask whether the provisions are at least in part a short cut to make up for a shortfall—even a crisis—in the recruitment of permanent judges that will become a de facto cost-saving measure. Any trend towards an increasing reliance on temporary judges would be worrying. Temporary judges, most likely seeking permanent appointment, are by their nature less independent than their permanent counterparts.

The Government should surely provide greater evidence of the need for these provisions, such as the detail of the changes in business demand referred to in the impact assessment and the reasoning for the proportionality of these measures. If introduced, it is surely a reasonable requirement on the Government to ensure that proper training is made available for these temporary appointments whose deployment will involve oversight of areas of law new to the personnel concerned. This is already a routine practice in the deployment of judges in the Crown Court: the paucity of Crown Court judges with a criminal law background is well acknowledged and, arguably, none the less regrettable. There is no argument against proper provision of support and training to those less practised, temporary judges or, indeed, permanent judges deployed in new areas. Given the backdrop of major cuts to the MoJ, the need for effective and proper training is all the more acute to ensure the quality of judicial practice. That is why I am probing with this amendment and I beg to move.

[Lord Beith (LD)]

This gives us an opportunity to look at whether the training is intended to embrace the increasing use of online and virtual court facilities. We cannot advance that cause in the context of the Bill, because it has been drafted to exclude some of the things that we all assumed were part of the modernisation programme. It would indeed be difficult to ensure that the training and deployment of judges meant that they were well equipped for these changes, because we do not know what the parliamentary underpinning would be, but this would be a useful moment for the Minister to indicate how far the well-declared and strongly supported plans that emerged from the Briggs and Leveson reports form part of the Government’s thinking on how judicial deployment and training should operate.

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[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, as the noble Baroness said, this amendment would require the Lord Chancellor to publish, within 12 months of Clause 1 coming into force, a report on the availability of training for judges that will enable them to be flexibly deployed.

As has been noted, the Lord Chief Justice and indeed the Senior President of Tribunals already have far-reaching powers of deployment. The measures in the Bill seek to amend and build on existing powers in legislation. Of course, it is the Lord Chief Justice and the Senior President of Tribunals who are responsible for arrangements for the training of the judiciary. As the noble and learned Lords, Lord Judge and Lord Neuberger, observed, it will be for the Lord Chief Justice, who is responsible for training, to report on these matters, as he seeks to do in his annual report. It would not be appropriate in these circumstances for that responsibility to pass to the Lord Chancellor.

With regard to funding for training, the Lord Chancellor is committed to providing suitable funding for the judiciary; that includes funding in the area of training, particularly by the Judicial College. I add only that that is in accordance with the arrangements that have to be made for resourcing under the Constitutional Reform Act 2005. As I indicated, the Senior President of Tribunals has an equivalent responsibility in relation to judges and members of the tribunals within the scope of the Tribunals, Courts and Enforcement Act 2007. Those responsibilities are exercised through the Judicial College.

The report that the Lord Chief Justice provides with regard to judicial training is a report to Parliament, so it will be available to Parliament in due course. Therefore, it would be inappropriate for the Lord Chancellor to report to Parliament on the availability of judicial training, a matter that is properly for the senior judiciary.

In these circumstances, I venture that the amendment is unnecessary. We can be confident that all our judges are recommended for appointment by the Judicial Appointments Commission following a rigorous process. At a minimum, they will have met the statutory eligibility criteria for the relevant office. In relation to the offices in Clause 1, in many cases the judges will have already met the statutory eligibility criteria. In addition, when it is required, they will have also demonstrated specialist expertise—for example, where judges are appointed or authorised to specific jurisdictions, such as the Commercial Court, the Media and Communications List and the Technology and Construction Court or TCC.

The Judicial College strategy for 2018-20, published in December last year, states:

“All newly appointed and newly assigned judicial office holders will receive induction training”.


It says that, over this period:

“The College expects to deliver more induction training to support increasing flexibility of judicial deployment across courts and tribunals when workload fluctuates”.


The Judicial College has also been devising more cross-jurisdictional training in skills required for all jurisdictions because of the flexibility in deployment that will be available.

On whether or not the provisions in Clause 1 will make a significant contribution to what has been referred to as the recruitment crisis, I cannot say that on its own it will make a significant contribution to recruitment, but certainly the flexibility that is being introduced into the system may assist in that regard. We recognise that more needs to be done with regard to that matter. The noble Lord, Lord Pannick, will be aware that the terms and conditions of the senior judiciary will be the subject of a report later this year. I look forward to that so that we can consider how the matter can be taken forward.

The noble Lord, Lord Beith, raised the rollout of digitisation with regard to the court process. Of course, we hope eventually to bring all these developments together. They are complementary to each other. I acknowledge that we have not yet been able to introduce further provision within the narrow confines of this Bill, but it is our intention that the provisions anticipated by the Queen’s Speech, and indeed laid out in the original Prison and Courts Bill, will be brought forward when legislative time allows.

I hope that I have gone some way to reassuring the noble Baroness, Lady Chakrabarti, that the appropriate training arrangements are in place to support flexible deployment of the judiciary and that she will see fit to withdraw her amendment. I pause to observe that the points raised by the noble Baroness, Lady McIntosh, arise in respect of later groups. Perhaps I may address them at that time.

[Baroness Chakrabarti]

I am grateful to the Minister for that reassurance as to process and to other noble and learned Lords for their exposition of the responsibilities on the Lord Chief Justice, the Judicial College and so on. I have yet to be reassured, however, about the adequacy of funding for this training or the adequacy of funding to the MoJ to deal with, among other things, this recruitment crisis. I fear that we may have to return to this matter but, for the moment at least, I beg leave to withdraw Amendment 1.

Amendment 1 withdrawn.

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[Baroness Vere of Norbiton (Con)]

My Lords, this amendment would require the Secretary of State to assess and report on the impact on judicial diversity of the measures before noble Lords today.

The judiciary already has wide powers to deploy judges between jurisdictions in our courts and tribunals. The judicial deployment measures in the Bill are intended to amend existing legislation in specific areas to enhance these powers to ensure that judges continue to be deployed where needed and appropriate. Being able to make the best use of judges’ time and expertise to react to changes in case loads of different jurisdictions has benefits for all court and tribunal users.

The measures are targeted to specified judicial roles and are intended to fill gaps in existing deployment measures. They are therefore limited in scope. As the measures are about how our existing judiciary may be deployed, they do not impact directly on new appointments to the judiciary.

Implementing these measures will largely follow existing processes by which the senior judiciary authorise judges to sit in additional courts or tribunals. In the interests of fairness and transparency, where it is appropriate in accordance with the circumstances of each case, deployment decisions will be taken following an expression of interest exercise across the eligible pool of judges.

Increases in flexible deployment may enable individuals to gain valuable experience in sitting in other jurisdictions. For example, the measure which provides for the 14 senior employment judges also to be judges of the unified tribunals may enable them to demonstrate their competencies across a broader range of case types. This may in future result in more diverse appointments to higher courts and tribunals.

I am sure that all Members of your Lordships’ House would agree with many or most of the remarks of the noble Lord, Lord Marks. I, too, have a long-standing interest in this area. However, I was struck by the assumption he sometimes seems to hold that only women have caring responsibilities. I hope he will agree that men should care, too.

I am happy to place on record this Government’s commitment to working with the judiciary and the Judicial Appointments Commission to increase judicial diversity. We have seen gradual improvements in gender and ethnic diversity since 2014, but we know that there is more to do to improve judicial diversity at all levels. For example, the representation of men and women from BAME communities has increased from 6% to 7% in the courts and from 9% to 10% in tribunals, and the first BAME judge was appointed to the Court of Appeal in 2017. The judiciary publishes annual judicial diversity statistics, and this year’s publication will take place on Thursday.

It is important for the quality, independence and impartiality of our judges that we always appoint the most talented candidates on merit. We know that there are many talented potential candidates from a diverse range of backgrounds and we want to encourage and support even more of them to apply for judicial office. That is why the Ministry of Justice strongly supports the work of the Judicial Diversity Forum and works as part of the forum alongside legal professional bodies, judicial representatives and the Judicial Appointments Commission to co-ordinate action to increase judicial diversity.

In April we announced funding for a pre-application judicial education programme, PAJE, which will provide information and support to those considering a judicial role, and will be targeted in particular at those from underrepresented groups. This is very much a partnership project, and the Ministry of Justice is working closely with the Judicial College, members of the judiciary, the Bar Council, the Law Society and the Chartered Institute of Legal Executives to finalise the programme content. We anticipate that the first candidates will be able to participate in PAJE in early 2019.

There are several other initiatives and support schemes for potential candidates from diverse groups that are run by the Judicial Office and the legal professions, and supported by the Judicial Appointments Commission. These include outreach events, judicial-run workshops and mentoring schemes.

The Lord Chancellor is personally committed to working with the Lord Chief Justice and the chair of the Judicial Appointments Commission to consider all practical actions that would impact positively on diversity, assess the impact of our existing activities and measure progress. The Lord Chancellor appears regularly before the Justice Select Committee and the Lords Constitution Committee on matters relating to the judiciary, including diversity. We think that this is the appropriate and proportionate way of advising noble Lords on actions that we are taking to improve judicial diversity.

I hope that what I have said has reassured the noble Lord of our commitment to improving judicial diversity—

[Baroness Chakrabarti]

I apologise for intervening. Before the noble Baroness sits down—I love this convention—I was just thinking about her comments on meritocracy and the importance of having merit. Surely she is not suggesting an inherent tension between merit and diversity. I was a little concerned that she might be satisfied with the current pace of change. Have I misunderstood that? Is she not impatient for a greater speed of change in this area, in the light of the constitutional and public concerns aired by the noble Lord, Lord Marks?

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Moved by

[Baroness Chakrabarti]

3: 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.”

[Baroness Chakrabarti]

My Lords, currently the Bill provides that regulations under Clause 3 shall be made under the negative resolution procedure and then interact with rules of court to be made and come into force without the need for parliamentary scrutiny altogether. This stipulation of which judicial functions may be delegated and to whom, and an authorised person’s requisite qualifications or experience, is to be provided with quite light parliamentary scrutiny. I would be grateful to the noble and learned Lord or the noble Baroness if they would say a little more in their reply about the relationship between the regulations and the rules for those purposes.

Since the fall of the Prisons and Courts Bill last year, there has been no parliamentary scrutiny, even by the Justice Committee, of the Government’s ambitious programme of expensive modernisation measures or the associated court closures and staff cuts. By providing that regulations in the Bill be made under the negative resolution procedure, the Government seem once more to be seeking to avoid proper parliamentary scrutiny, even in relation to quite significant changes to our justice system.

At Second Reading, in response to similar concerns, the Minister said 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.]

On reflection, I respectfully disagree with that constitutional analysis. To my mind, the legislative process is to create law and certainly, at times, to review, direct and even constrain government policy, particularly when it has the potential profoundly to impact on our justice system. Without careful scrutiny and additional safeguards, this governmental drip feed may be capable of eroding some of our most fundamental institutions. I beg to move.

[Lord Judge]

My Lords, there should be an upgrade here, in accordance with the proposed amendment.

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[Lord Keen of Elie]

My Lords, Amendment 3 relates to the power in Clause 3 for the Secretary of State to make consequential, transitional, transitory or saving provisions in relation to the authorised staff provisions by way of regulations. It provides that they are subject to a process of negative resolution by Parliament, while the amendment seeks to apply the affirmative resolution procedure.

We believe that it is necessary to take the power in Clause 3(2) to avoid any implementation difficulties or legislative inconsistencies that could arise from changing the law. We have already identified consequential amendments to primary legislation and have made provision for them in the Schedule to the Bill. The necessary changes to secondary legislation may not become apparent until after the provisions in the Bill are implemented; therefore, this power is needed so that the authorised staff provisions can be given full effect. However, I emphasise that it is not concerned with making consequential amendments to primary legislation, for which provision is already made in the Schedule, and so this is a narrow power. As I indicated, the power cannot be used to amend primary legislation, so in these circumstances we considered that the negative resolution procedure is entirely appropriate.

I hear what noble Lords and noble and learned Lords have said about moving from the negative to the affirmative procedure, and I will give further thought to that. However, at this stage I invite the noble Baroness, Lady Chakrabarti, to withdraw her amendment.

[Baroness Chakrabarti]

My Lords, I am grateful to the Minister, and in particular to the noble and learned Lord, Lord Judge, and the noble Lord, Lord Pannick, for their kind encouragement. In the light of all that, I am happy at this stage to beg leave to withdraw the amendment.

Amendment 3 withdrawn.

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Moved by

[Baroness Chakrabarti]

5: 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”

[Baroness Chakrabarti]

My Lords, I will also speak to Amendments 6 and 7. These amendments in aggregate stipulate that authorised persons must have the following minimum legal qualifications: to be,

“a qualified solicitor, barrister or chartered legal executive with more than three years’ experience post-qualification”,

as recommended by the Law Society. Clause 3 delegates judicial functions to authorised staff, which must be understood in the broader context of the wider reform agenda and the austerity measures behind it. The savings generated through the proposed reforms will arise only through the reduction of the court estate, together with savings in judicial salaries. Further proposals include the relocation to new off-site service centres of many case management functions, listings and scheduling, which currently take place within court buildings with the benefit of on-site judicial supervision. The implication has to be that these off-site service centres will be supervised by authorised staff and not by judges. Concerns about that eventuality are hardly assuaged by the assurance in the related policy note that authorised staff will remain under the supervision of the judiciary if the judiciary are not on site.

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A further question was raised by my noble friend Lady McIntosh, who is no longer in the Chamber, on consultation with justices’ clerks regarding these proposals. The Government consulted on the role of justices’ clerks in 2016, and justices’ clerks responded to that consultation. There is nothing in the reforms touching on justices’ clerks in this context that will directly lead to staff having to travel further for the purposes of their engagement in these matters. With that explanation, and having regard to the fact we have now published the draft regulations, I again invite the noble Baroness, Lady Chakrabarti, not to press her amendments.

[Baroness Chakrabarti]

My Lords, I am grateful to the Minister for that. I certainly do not seek to place a straitjacket on reasonable management of the court system, but I am still concerned about the breadth of this power to delegate judicial functions in particular. These amendments, which are probing at this stage, are all of a piece. In the light of the further debate to come, for the time being I beg leave to withdraw the amendment.

Amendment 5 withdrawn.

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Moved by

[Baroness Chakrabarti]

8: The Schedule, page 10, line 33, at end insert—
“( ) No authorisation under subsection (2) shall include the power to—(a) make an order of the court which is opposed by one or more party,(b) make any order of the court in a civil claim with a value of more than £25,000,(c) make any order of the court with a penal notice or power of arrest,(d) make any order of the court in a matter in which one or more parties lack capacity as defined in section 2(1) of the Mental Capacity Act 2005,(e) make any order of the court in a matter in which one or more witnesses are a vulnerable witness as defined in section 16(1) of the Youth Justice and Criminal Evidence Act 1999,(f) make any order of the court under section 37 of the Senior Courts Act 1981 for an injunction, including any freezing order,(g) make any order of the court, referred to as a “search order”, under section 7 of the Civil Procedure Act 1997,(h) make any order of the court as to costs,(i) make any order of the court concerning expert evidence,(j) take a plea from a defendant in criminal proceedings, or(k) make any other determination which is dispositive of the cause.”

[Baroness Chakrabarti]

My Lords, in moving Amendment 8, I will speak to Amendment 10. Once more, these amendments would place restrictions in the Bill as to what type of function will be permitted to be delegated to authorised persons. The previous amendments were about who might be an authorised person. The restrictions this time include that no authorisation,

“shall include the power to … make an order of the court which is opposed by one or more party … make any order of the court in a civil claim with a value of more than £25,000 … make any order of the court with a penal notice or power of arrest”.

The stated intent of the policy of delegating judicial powers is to improve the efficiency of the courts service by diverting judges’ time from routine administrative tasks to allow them to focus their time and expertise on more complex and significant matters. However, there must be reasonable limits to what powers can be given to authorised persons who are not judges. Without those limits, we have a power that has the potential to change the essential nature of our judicial system. I am sure that this is not the Government’s intention, but we need to construct this power for future Governments of whatever stripe because significant judicial power should be exercised by judges.

While it is almost impossible to create a definitive or exhaustive list of appropriate judicial functions for the delegations that will cover every tribunal and eventuality, it is reasonable to expect some red lines and limits relating to the most significant decisions and exercise of power. It does not seem unreasonable to ask that Parliament have an opportunity to set out a framework for such delegation and to exclude decisions that deprive an individual of their liberty or of life-changing sums of money for most people, and decisions that parties have contested or those involving vulnerable witnesses or people lacking mental capacity.

Other provisions in the amendment provide a mop-up of what might provide a red line around a decision which could dispose of a matter altogether. Lord Briggs drew such a line in his civil court structure review, at caseworkers making dispositive decisions, which he saw essentially as a judicial role. All delegated functions in the civil jurisdiction are routine case management functions and are often confined to cases where all parties consent. Legal advisers do not currently make decisions that represent a final determination and a party may request reconsideration of any decision of a legal adviser within 14 days of being served notice of it. Are these not therefore reasonable restrictions to place on delegated functions in the context of criminal proceedings, where so much is potentially at stake? The MoJ’s own factsheet on delegation to staff says that delegated decisions are unlikely to involve contested matters. Why not put such a reasonable restriction in the Bill, given that many case management decisions are potentially important judicial functions that should not be delegated?

In addition to concerns about transparency, there is a danger that efficiencies gained by delegating case management decisions will be lost if the court then has to reconsider such decisions at a later stage in the process. Further, if one accepts the case for the limited delegation of some of the most straightforward decisions to such authorised staff, one has to raise concerns that these relatively low-paid staff—HMCTS staff being paid less than other government lawyers—are being used to save money without proper remuneration for their increased workload. I beg to move.

[Lord Marks of Henley-on-Thames]

My Lords, I have some sympathy with two of the new paragraphs proposed in the amendments. I have sympathy with those relating to orders of the tribunal or the court with a penal notice or power of arrest. I have some sympathy, too, with the restriction on the power of a court to make an order under Section 37 of the Senior Courts Act for an injunction, including any freezing order, and the corresponding power for the tribunal.

I am afraid that is as far as my support goes for the noble Baroness’s amendment, because all the other powers may be entirely trivial. In particular, the noble Baroness places reliance on the idea that a contested order should not be made. Some contested orders are unbelievably trivial. If I seek a 14-day extension for the service of my defence and the other side says that I should do it in seven, and the authorised person says, “Well, you can have 10”, the idea that he or she should not have the power to make that order is wrong.

One has to leave it to the good sense of the rule committees to decide where it is sensible that such restrictions should be drawn. Injunctions are in a different category and where the liberty of the individual is at stake we have a different category, but otherwise I am afraid I cannot support the amendments.

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[Baroness Chakrabarti]

My Lords, I am once again grateful to the Minister and to other noble Lords for engaging in the argument for the amendments. I fully understand that this is all about efficiency, but that is not completely reassuring in the context of the biggest cuts to any department, even in a time of significant austerity.

I fear that the public outside this Palace think of the adjudication of contested matters in a court as a judicial function. That is the general perception of the public of what happens when there is a dispute between parties in the courts. It does not seem unreasonable to suggest, for example, that only a judge should be responsible in court for depriving someone of their liberty, or indeed, for making orders involving large sums of money. Noble Lords will forgive me for saying that even some of the more trivial decisions referred to by the noble Lord, Lord Marks, could be far less than trivial in a given context. I am being offered the reassurance of the procedure rule committee, but delegating judicial functions to non-judges is not a matter of mere procedure.

I am afraid that I feel this is a question of principle, to which we may have to return again on Report. But for the time being, at least, I beg leave to withdraw the amendment.

Amendment 8 withdrawn.

Moved by

[Baroness Chakrabarti]

9: 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.”

[Baroness Chakrabarti]

My Lords, in moving Amendment 9, I shall also speak to Amendment 11, both of which have been drafted by the Bar Council. The amendments will ensure that a,

“party to any decision made by an authorised person in the execution of … a relevant judicial function”,

or, “of a tribunal”,

“by virtue of section 67B(1)”,

or,

“by virtue of 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”.

The statutory right of reconsideration sits alongside the other amendments we have been discussing to create some constraint on this delegation of judicial function to non-judges. That approach would allow any,

“party to a decision made by an authorised person … to have the decision reconsidered by a judge”,

as recommended by Lord Justice Briggs in his 2016 report, Civil Courts Structure Review. He said:

“The creation of an extensive right to have the decisions of Case Officers reconsidered 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 reconsideration has the benefit of freeing an authorised person from the obligation to produce detailed reasons for every decision, as would be the case if a right of appeal were created. It has the additional benefit of going further than a right of review, guaranteeing judicial oversight of the decision, which a right of review would not ensure.

The statutory right would also ensure compliance with Article 6 of the Convention on Human Rights, which requires decisions by an independent and impartial person. I beg to move.

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[Lord Keen of Elie]

Again, I am obliged to the noble Baroness, Lady Chakrabarti, the noble and learned Lord, Lord Neuberger, and other noble Lords for their contributions on this matter. Of course, the purpose of the amendments is to give a party in a case the right to request in writing that any decision of an authorised person exercising the functions of a court or tribunal be considered afresh by a judge.

The Schedule to the Bill ensures that the functions of a court or judge that authorised staff may exercise will be determined, and be given appropriate scrutiny, by experts in the form of the independent procedure rule committees. The purpose of these provisions is to enable authorised staff to undertake straightforward case management and preparation duties, thereby freeing up judges to focus on more complex and contentious matters. We are not proposing that these officeholders will undertake, for example, the determination of the final outcome in a contested case. It is our view that a statutory right set out in the Bill to have any decision made by an authorised person considered afresh by a judge would be inappropriate and disproportionate.

I have some sympathy with the intention behind the amendments and the desire to provide protections for court users. Our view, which I believe is reflected in the observations of the noble and learned Lord, Lord Neuberger, is that a decision about whether a right to reconsideration is needed should be left to the experts on the rule committees who are best placed to understand the circumstances in which a review mechanism may be required in their particular jurisdictions. It is not a case of one size fits all. To that extent, I would take issue with the observations of the noble Lord, Lord Marks. The committees should also consider any appropriate time limits for review and the way in which any application should be made. Again, that is essentially a matter for the committees.

These provisions already exist in our procedure rules. Practice Direction 2E of the Civil Procedure Rules makes express provision for review in civil money claims of a decision by a legal adviser. Under the tribunals procedure, in accordance with Rule 4(3) of the Tribunal Procedure (Upper Tribunal) Rules 2008, there may be a review of a decision made by a caseworker. In the magistrates’ court, there is provision for an application to be renewed before the magistrates where it has been dealt with previously by a caseworker. In the Crown Court, there is an inherent jurisdiction to hear such applications at the time of an appropriate hearing. I seek to emphasise that there is a diversity of approaches, all of which generally apply their mind to the question of the review of the decision of a caseworker, and those reflect the views of the relevant rule committee as to what is appropriate for the particular tribunal, court or level of court. That is what we feel should be left open and which would be lost by this amendment.

I go back to an observation that was made earlier, quoting the noble and learned Lord, Lord Thomas, at Second Reading, that,

“detailed restrictions on procedure are a very real fetter on the administration of justice”.—[Official Report, 20/6/18; col. 2039.]

That is what we want to free up here. It is appropriate that these decisions should be made by the procedure rule committees. I hope that in the light of those observations, the noble Baroness, Lady Chakrabarti, will see fit to withdraw her amendment.

[Baroness Chakrabarti]

Once more, I am grateful to the Minister and other noble Lords for engaging with this argument. I do not wish to bore your Lordships’ with this, but there are some really serious concerns at play. I am told to be reassured by the rule committees, and of course I hold the rule committees in enormous esteem, but the rule committees cannot provide the funding that would avoid pressure to overdelegate to underqualified people in the future. When I raise these concerns, I am told that I must not worry because of the rule committees.

My second concern is that the public have a real and reasonable expectation that significant contested decisions in a court will be made by a judge; or, if not, at least that there would be a right of appeal or review before a judge. In the light of the repeated reassurances in the context of different attempts to constrain delegation in the Bill, we will have to return to this issue on Report. For the time being, I beg leave to withdraw the amendment.

Amendment 9 withdrawn.

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

Baroness Chakrabarti Excerpts

2nd reading (Hansard): House of Lords
Wednesday 20th June 2018 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, like many in your Lordships’ House, I have spent much of my life critiquing, seeking to improve and sometimes downright opposing legislation that I have seen as flamboyantly intrusive and therefore unjust. Clearly, this Bill is not in that category. However, legislation can also be deficient for what it does not contain, as that might lead to injustice as well.

As the noble and learned Lord said, the Government’s Queen’s Speech promised a programme of reforms that would transform the way in which the UK justice system operates. He referred to that reform as “ambitious”. Unlike last year’s Prisons and Courts Bill, which dealt head-on with those proposed reforms, this Bill is, by contrast, perhaps the beginning of a legislative drip feed.

Today of all days, we are conscious of the challenges and complexities of minority government. Clearly, one approach is the very skilful drafting of the scope of this Bill, with its very tight Long Title, perhaps to avoid controversy, amendment and so on. However, another approach in challenging times of minority government might be to be a little more ambitious and out in the open, and to pursue that ambition by consent. My hope would be that, during the passage and conduct of the Bill, the Government might consider moving from the more cautious to the more open approach to debating these matters—these ambitions—and subjecting them to appropriate parliamentary scrutiny. As the Minister just said, the reform programme is moving ahead in any event, in the absence of primary legislation, and one might query the appropriateness of that.

The reform programme cost of £1.2 billion to the taxpayer seeks to “modernise” the courts service by transferring more court hearings online or operating them through remote video links. Digital hearings will have implications worth considering for the principles of open justice and for public confidence in the justice system. The Equality and Human Rights Commission has raised concerns about the potentially detrimental impact on people with certain challenges and protected characteristics, who are more likely to be excluded by digital processes. My noble friend Lord Beecham will deal with this in more detail a little later.

There has been no real parliamentary scrutiny of this programme—this expensive modernising series of measures—or of the associated court closures and staff cuts, even by the Justice Committee. Since 2010 the Government have closed literally hundreds of courts and cut thousands of vital staff, with the Ministry of Justice launching a new consultation on further court closures in January. Opposition research suggests that 80% of the courts sold so far have raised on average little more than the average UK house price. This raises concerns over long-term damage to access to justice for civil litigants and indeed victims of crime.

Reductions in the number of local courts pile further pressure on those remaining courts, which are already creaking under the weight of budget and staff cuts over many years. So we on this side of your Lordships’ House ask and implore the Government not to proceed with any further court closures until legislation for this ambitious digitisation of courts programme is published and reforms can be subjected to full parliamentary and public scrutiny.

In May, the National Audit Office released a report on the Government’s ambitious reforms and it is pretty damning. Again, my noble friend Lord Beecham will consider this in more detail later. We already have precedent, however, of reforms to the justice system conducted without sufficient research and consultation. That precedent—not a great one—is LASPO.

LASPO has been an unmitigated disaster, widely criticised by expert stakeholders including the Bar Council, the Justice Committee and the Law Society. The Public Accounts Committee made it clear that in bringing forward that legislation the Ministry of Justice had,

“not properly assessed the full impact of the reforms”.

That impact has proved devastating for some of the most vulnerable people in our society, who as a result of those cuts have been shut out altogether from the legal aid system that we were once so proud of in this country.

The year before the relevant provisions of LASPO came into force, legal aid was granted in 925,000 cases. According to Amnesty, the year after it came into force assistance was given in fewer than 500,000 cases—a drop of 46% in legal assistance. This is not just a comparator. Drastic cuts to legal aid will and do have a direct relationship to pressures on judges and those who work in the court system when ill-advised and unassisted members of public turn up to seek justice.

Clause 3, as we have heard from the Minister, delegates judicial functions to authorised staff. This seemingly sensible and uncontroversial provision must be understood in the broader context of the wider reform agenda and the austerity measures behind it, because the savings generated through proposed reforms will arise only through the reduction of the court estate and through savings on judicial salaries. Further proposals include the relocation of many case management functions—listing, scheduling and so on—which currently take place within court buildings with the benefit of on-site judicial supervision. The implication is that these decisions will move to new off-site service centres—which I think we have all experienced with varying degrees of satisfaction in relation to other services. Given their off-site nature, the implication that these service centres will be supervised by authorised staff, not judges, is worrying. To have authorised staff who are not subject to the training, experience, ethos and oaths that a professional judge is, and who are performing judicial functions but employed directly by HMCTS, raises questions worth considering of accountability and independence. Concerns that they would be subject to administrative pressures, such as meeting targets, are also worth thinking about.

The devil will, therefore, be in the detail of how these provisions might operate. Without limits on who can be authorised and what powers can be given to authorised persons, this delegation has the potential, as currently drafted, to change the essential nature of our justice system. Transparent and public scrutiny by parliamentarians with a democratic mandate is necessary. While acknowledging the great work over many years and the existing remit of the procedure rule committee, I really would query whether delegation of judicial functions can be thought of as a simple procedural matter for a rules committee as opposed to something worthy of secondary legislation in both Houses of Parliament. If one accepts the case for the limited delegation of some of the most straightforward decisions to authorised staff, it is then potentially objectionable that these relatively low-paid staff—quite possibly paid less than lawyers in other government departments and who have already been hit by the public sector pay caps—are being used to save money, if they are not to be offered proper remuneration for this new, more challenging and increased workload.

On this side of your Lordships’ House, we will be seeking to probe the Government during the passage of this Bill and to push for a number of safeguards in the Bill, the first of which is limits to the delegation of these judicial powers to non-judicial personnel. The MoJ’s own factsheet on delegation to staff says that delegated decisions are unlikely to involve contested matters; why should that not appear in the Bill itself? Most case management decisions are vital judicial functions and, therefore, should not necessarily be delegated. Decisions that impact on the fairness of the process itself are, and must remain, the remit of judges and involve carefully weighing submissions by parties. 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 many of these decisions at a later stage in the process. There ought, again, to be minimum qualifications for these authorised staff in the Bill. The Law Society has suggested, for example, that no one with less than three years post-qualification legal practice—that is, a barrister or solicitor—should be delegated any judicial function under this Bill. That is a suggestion worth considering. Three years of post-qualification practice is not a high bar when you consider who may or may not take on a pupil or a trainee solicitor, for example, for supervision.

As your Lordships will have read, other interested parties have called for a statutory right of reconsideration allowing any party to a decision by an authorised person to have that decision reconsidered by a judge, as recommended by Lord Justice Briggs in his 2016 report. That statutory right would further assist in assuring compliance with Article 6 of the Convention on Human Rights, which requires decisions by an independent and impartial person.

Further, the Bar Council has called for key questions to be asked by your Lordships’ House on the nature and extent of the suggested powers of authorised staff. First, will the staff members have the power to determine the outcome of any matter which is contested by the parties? Secondly, if so, what rights of reconsideration would there be and to whom, and will this be consistent across all jurisdictions? Thirdly, will there be a right of reconsideration, not just a review or appeal? Fourthly, will staff be legally trained and, if so, to what level of qualification? Fifthly, in order to achieve the savings required, what is the number of judicial posts that the Government would expect to lose; and what number of additional authorised staff will the Government need to recruit? Sixthly, what are the limits to the functions that case officers should perform, and should not these be in the Bill to allow them to be subject to proper scrutiny?

Other provisions about the flexible deployment of judges are clearly of far less concern in this Bill but, none the less, the further and increased deployment of temporary judges to any court or tribunal on which a deputy judge of the High Court is able to sit is still worth thinking about. Given the planned savings on judicial salaries, we have to ask whether these provisions are a short cut to make up for a shortfall in the recruitment of permanent judges. Any move towards increasing reliance in the system on temporary judges— who will most likely seek a permanent appointment in the longer term—would be of concern because of independence, which is less likely when someone is a temporary judge. The Government must provide greater evidence of the need for such reliance on temporary judges and explain the proportionality of such measures.

A further omission from the Bill—a point well made by Women’s Aid—is the provisions prohibiting the cross- examination of victims of domestic violence which we all looked forward to in the abortive Bill of last year. We should be concerned that those provisions are not in this Bill and ask for further assurances on them.

This is a wafer-thin Bill which, on its face, is apparently uncontroversial. However, as the Minister said, it is the beginning of the fulfilment of a further ambitious programme. The Government appear to be testing the waters for more controversial court reforms and it is vital that we understand the limited provisions in the Bill in the context of that broader agenda of reforms and devastating cuts. Nor should we be completely persuaded that the Bill in itself does not have the potential, as currently drafted and unamended, to profoundly impact upon our justice system as we have all understood and loved it. Without further careful scrutiny and additional safeguards, this governmental drip-feed approach has the potential to erode some of our most fundamental institutions.

Belhaj and Boudchar: Litigation Update

Baroness Chakrabarti Excerpts

Thursday 10th May 2018 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I am grateful to the Minister for repeating the Statement and am especially grateful to Jeremy Wright, the Attorney-General, for advance sight of it yesterday and, in particular, for his humane handling of this matter.

Mrs Boudchar has been in the Public Gallery of the other place today, and I am sure that the whole of both Houses of Parliament will sympathise with her and Mr Belhaj for having suffered such appalling treatment at the hands of others. What happened to them both is deeply disturbing, not least as Mrs Boudchar was pregnant at the time. I only hope that the settlement of the legal case allows some closure to a terrible set of events in their lives.

The Prime Minister has written to Mr Belhaj and Mrs Boudchar, who is in the Palace today, to apologise for this terrible treatment. She is entirely right to have done so, and to accept—unequivocally and unreservedly—the failings on the part of the UK Government at that time.

I of course agree with the Minister and with the Attorney-General that our security and intelligence services carry out vital work in helping to keep us all safe. But the rule of law must always be respected and must always be the guide of the actions of government. Our security and intelligence services must be properly overseen. When things do go wrong, it is right to acknowledge that in very clear terms, to do what can be done to make recompense, and to learn lessons for the future.

The Attorney-General rightly raised in his Statement problems regarding information sharing, more actions being required to reduce the risk of mistreatment and missed opportunities to alleviate human suffering. We must do all we can to stop this ever happening again.

The relationship between our intelligence and security services and government is now subject to a different framework. That is a welcome step in the right direction. The statutory right of the Intelligence and Security Committee, independent of government, to review past intelligence operations and its direct access to agency papers are important. That Ministers must be consulted whenever UK personnel are involved in a planned operation in which they believe a detainee is at serious risk of mistreatment by another state is absolutely crucial. I appreciate that the Minister is, understandably, limited in what he can say openly today, but I would ask for an assurance that such ministerial consultation will be detailed, considered and informed by as much information as can reasonably be made available to Ministers at the time.

In addition, might the Minister assure your Lordships’ House that we will always be vigilant in ensuring that the framework within which our intelligence and security services operate is robust and is always shaped by our core values: the rule of law, liberty and human rights? After all, it is only behaving to those standards ourselves that allows us to stand up for those values around the world.

[Lord Thomas of Gresford (LD)]

My Lords, I too am grateful to the Minister for repeating the Attorney-General’s Statement.

On 21 February 2008, this House was concerned with the use of UK facilities and UK airspace by the United States for the purposes of extraordinary rendition. In answer to a Written Question from my right honourable friend Menzies Campbell, now my noble friend Lord Campbell of Pittenweem, assurances had been given by Mr Jack Straw in 2005, and later assurances were given by Mr Blair, the Prime Minister, in 2007, that these events had never occurred—that there had been no extraordinary rendition. A Statement in February 2008 was made by the noble Lord, Lord Malloch-Brown, in this House to the effect that this was incorrect and that extraordinary rendition had taken place through the British territory of Diego Garcia. Perhaps I may crave the House’s indulgence for quoting myself. I said on that occasion:

“We look for a public inquiry, as we have called for several times, which will investigate what extraordinary renditions have taken place not just to European countries but to places where we know that torture takes place—places such as Syria, Egypt, Morocco and Jordan, where it is thought that there are secret holes where United States detainees are held. We cannot be satisfied by assurances given by the Government today on this matter”.—[Official Report, 21/02/08; col. 351.]


Nothing was said in 2008 about the events of 2004—the abduction, detention and rendition to Libya of Mr Belhaj and Mrs Boudchar, who were opponents of the Gaddafi regime and could expect torture and imprisonment.

Today, the Prime Minister’s apology, as we have heard, contains the following:

“The UK Government’s actions contributed to your detention, rendition and suffering”.


We are entitled to know in what specific way. Mr Belhaj’s claim was that MI6 provided information to the CIA which led to his capture in Kuala Lumpur in 2004 and rendition via Bangkok to a Libyan jail. He further claimed that he was interrogated by British intelligence officers during his six years’ imprisonment and during the period of torture that he endured. All this was denied at the time. The Prime Minister says in her letter:

“The UK Government believes your accounts”.


Therefore, I take it that what Mr Belhaj said in his statement of claim is admitted, despite the fact that liability in the case is not admitted.

Another phrase used by the Prime Minister was that she was,

“profoundly sorry for the ordeal”,

of Mr Belhaj and Mrs Boudchar. If that is so, why did this Government try to quash these proceedings and argue a defence of state immunity and “foreign act of state” immunity all the way up to the Supreme Court as recently as January of last year? Do the Government now recognise that these defences must be subject to exceptions where there are violations of fundamental norms of international law and basic human rights, such as the prohibition of torture, which has been recognised in this country since Felton’s case in 1628?

A further point is that the costs of such a series of applications and appeals, which were unsuccessful, have no doubt fallen upon the public purse. What were those costs?

Non-Disclosure Agreements

Baroness Chakrabarti Excerpts

Tuesday 1st May 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, in circumstances where a person accepts a sum of money which is beyond reasonable indemnity for any loss they have suffered on the grounds that they will not disclose wrongdoing or a criminal offence, they themselves are liable to commit a criminal offence.

[Baroness Chakrabarti (Lab)]

My Lords, the Minister will remember, I think, a very similar Question being asked on 22 January. It is now a glorious May Day. Given the complexities and competing public concerns around this issue, might the Government not consider setting out a clear timetable for clarity in policy and potential legislation in this area?

[Lord Keen of Elie]

My Lords, the House of Commons Women and Equalities Select Committee is currently conducting an inquiry into sexual harassment in the workplace and has taken evidence about the misuse of NDAs in that context. The Government want to see what the committee has to say about that before reaching their own conclusions. In other words, we will make an informed decision on the matter.

Civil Liability Bill [HL]

Baroness Chakrabarti Excerpts

2nd reading (Hansard): House of Lords
Tuesday 24th April 2018 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, one noble Lord’s declared interest is perhaps another’s experience and expertise, or perhaps even better put, interests and experience can sit simultaneously with a noble Lord. Perhaps uniquely, in what has been an incredibly thought-provoking debate, I seem to be without interest or expertise. However, I have listened with enormous care to the wonderful tutorial that noble Lords have given me. I have read, as have so many other noble Lords, many submissions to which we have had access in this House. Just as I respect the interests and experience of those debating inside this Chamber, I do not think it is completely fair to suggest that everything from outside is, as one noble Lord suggested, noise.

The noble Lord, Lord Faulks, said that there are some real polycentric issues at stake and important, occasionally competing, concerns. I do not accept that all insurers are unscrupulous, nor do I accept that all claims are fraudulent or indeed, that all professional legal practitioners who are trying to do their best for their clients in this area are ambulance chasers. Further, I too have had the benefit of meeting the Minister, so nor do I believe that Her Majesty’s Government are somehow completely captured by the insurance industry in what they are trying to do in this Bill. However, to improve it requires listening to some of the concerns that have been expressed both inside and outside the Chamber.

The Bill addresses its purported targets by—how can I put it?—circuitous routes. It is concerned with, at worst, fraud and, at best, inflation of, for example, whiplash claims. I agree with, I believe, the majority of noble Lords, that compulsory medical reports before settlement must be a good idea. It would be good to see clear provision in the Bill for the cost of such reports to be met by insurers where settlements are made. That seems completely fair, and might be something we could look to. But, essentially, the Bill does not directly deal with fraud.

Another stated target is unscrupulous claims managers and McKenzie friends. Again, there is nothing in the Bill about that public policy problem and social evil. These problems have been pointed out by a number of noble Lords, including the noble Lords, Lord McNally and Lord Hodgson, the noble Earl, Lord Kinnoull, my noble friend Lord Monks and the noble Lord, Lord Faulks. We know that there is some level of problem here; I do not think anyone doubts that.

Another target is the unfairness of overly high insurance premiums. Again, the Bill does not directly regulate insurance premiums. We are told that industry leaders have made a public pledge to pass on the benefits of limiting claims to insured persons, but there is nothing in the Bill at the moment to give teeth to that promise. It would be helpful to so many people to hear from the Minister about the teeth in that promise.

Finally, a target of the Bill is said to be devastating pressures on the NHS, and perhaps on social care, too. Again, this is a very indirect approach towards the devastating pressures on the NHS and on social care in this country at this time. I echo the sentiments of my noble friend Lord Beecham—perhaps other discussions need to be had about the 1948 Act and so on—that that devastating pressure has ultimately to be met with a more honest conversation about taxation with a country that loves its NHS.

Those are the targets. But, instead of the direct approach, the Bill approaches these problems somewhat indirectly. First, in relation to whiplash injuries in Part 1, it does this by limiting damages in a particular class of claims. I have to say that, on a day when there have been very special celebrations in Parliament Square, I was a little sad to notice that I was to be just one of two noble Baronesses speaking in this Second Reading debate. But that disappointment began to fall away when I heard the extraordinary, eloquent and principled speech from the noble Baroness, Lady Berridge. She spoke of the need to hear the voice not of lawyers, insurers or any other professionals and experts but of victims. I can only tell her that we heard that channelled through her voice today, and I am sure that people outside will be very grateful for that. She pointed out with particular clarity the problem of principle in singling out one class of victims—not even a whole class of victims but a class within a class of victims—and saying that they must have their damages limited by the Bill and by regulations under it, as opposed to other victims, who may also be inflating or misstating their claims.

That is a matter of principle and will be a concern for people on the outside who are looking to understand what is behind this legislation. It is important to address that principle if we are to retain the public’s trust in the legislative process and in public policy making. I moved closer and closer to the noble Baroness’s devastating logic when she spoke about the role of the Judicial College and her concerns about why these particular damages should be set by the Lord Chancellor, not by the judges, as with all other tortious damages in our law. The Minister will, no doubt, address her concerns.

The second circuitous route, and a matter of enormous concern expressed on all sides of the House, is the incredibly broad delegation granted to the Lord Chancellor in defining whiplash and then setting the level of damages. The Delegated Powers Committee’s findings on this cannot be easily ignored. We listened to the concerns and I hope we can take them on board in amendments as the Bill progresses. The noble and learned Lords, Lord Hope and Lord Thomas, the noble Lord, Lord Sharkey, and many other noble Lords pointed out that to give the Lord Chancellor the defining power over the problem and then the further power to set the damages is a step to far. It is a precedent that we do not want to set in any Bill. It is a wider constitutional point that applies to this Bill and we do not want to be doing it in future. It is a problem in relation both to the rule of law—and clarity and certainty in law—and to parliamentary sovereignty as opposed to ministerial fiat. I hope that the Minister will take that on board and that there can be further clarity and definition on the face of the Bill.

The third concern that has been expressed is about inequality of arms and, in particular, the effect of combining measures in this Bill with the increase in the small claims jurisdiction. As the noble Baroness, Lady Berridge, pointed out, in practice even amounts of money which are small to the ears of those of us in this Chamber are incredibly important to a lot of people who will hear about, and perhaps read about, this debate. Small amounts of money can be life changing for people. To leave a greater number of people who have been the victims of even relatively minor injuries unrepresented, with no means of recovering costs and, therefore, no means of getting proper representation, is an affront to access to justice. In the civil sphere in particular, that has already been diluted, if not positively undermined, in recent years.

The Bill attempts to nudge victims, even those with quite serious injuries, into becoming slightly higher-risk investors. Some on the outside have suggested that they are to become stockbrokers and have the confidence and expertise to become more adept at investing and managing single lump-sum payments. Noble Lords will have read the argument against that. Equally, the noble Lords, Lord Hodgson and Lord Faulks, and others have pointed to the inescapable logic of the preference for periodical payment orders. Yet there is nothing explicit in the Bill to incentivise those orders, as opposed to encouraging slightly higher-risk investments or discouraging playing it safe. In the case of an ordinary lay person who is not used to managing investments, particularly if they have had a serious personal injury, one can understand the instinct for playing it safe. Again, that was pointed out by several noble Lords. The point about lack of representation was mentioned particularly by my noble friend Lord Monks and the noble Lord, Lord Marks. I agreed with so much of what he said.

It is always worth listening very carefully to the noble and learned Lord, Lord Mackay of Clashfern, on matters of this kind. As I heard references to the discount, the complex nature of this decision, what is being asked of the Lord Chancellor in Part 2 and the prophet-like powers that the noble and learned Lord described, echoed by the noble Lord, Lord Marks, and others, I really thought that we might give further thought to how we could achieve greater clarity, transparency and accountability in the Bill for this incredibly complex decision over which so much might turn for victims and claimants on the one hand, but also, as the noble Lord, Lord Ribeiro, and others pointed out, for the NHS. I hope that on that matter, as well as on so many others in this Bill, there will be real room for the kind of thoughtful debate and constructive collaboration to improve what I believe to be a genuine attempt to balance a number of important societal interests.

Worboys Case and the Parole Board

Baroness Chakrabarti Excerpts

Wednesday 28th March 2018 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I am most grateful to the Minister for that Statement about today’s High Court decision. I hope that he will agree that the ruling was possible only because of the Human Rights Act and the victims’ rights contained in it. But today’s decision clearly highlights the deep flaws in the initial Parole Board decision, which caused enormous anguish for victims—those whose cases had been dealt with but also those who have not yet had justice. There is also deep concern among women and the public more widely.

Of course, the head of the Parole Board has decided to stand down—although I am sure that all noble Lords will be concerned to preserve the independence of the board going forward. So what is needed is surely a change in the way that the Parole Board and perhaps the wider justice system function. As the Minister said, the current legal restrictions on the Parole Board mean that we still do not know exactly why the initial decision was taken. That led to rumours about where Worboys would be released and even whispers that he might be released without a tag. It is not good for victims or public confidence.

It cannot be right that victims had to resort to a crowdfunded judicial review—not a legally aided one—before any whiff of the reasons for the release of John Worboys became available. Judges in the judicial review said that there was too much secrecy about Parole Board decisions under Rule 25, which presents any reasons for decisions made by the board. The case underlines, once and for all, that we need urgent measures to achieve greater transparency in Parole Board decisions. I am sure noble Lords will agree that if the public are entitled to be informed about court judgments, it makes sense that they should also be informed about at least the rationale of Parole Board decisions. This is not about undermining the board’s independence. I am sure that all Members of your Lordships’ House can unite in defence of the independence of both the board and the judiciary. It is right that action is being taken. The Government have committed to taking action to improve transparency, but it seems that we need not just transparency but a clear mechanism to allow victims to challenge decisions when they feel aggrieved. Can the Minister commit to the review he discussed being concluded by this summer? It is inevitable in government, with so many pressures, that such reviews sometimes slip. Can we have some assurance that that will not happen in this case?

A lawyer for Worboys’s victims has said that the Ministry of Justice was responsible for preparing the dossier of evidence on which the Parole Board made its decision to release. Can the Minister explain why information about the “rape kit” used by John Worboys was not included in this dossier? Can he also explain why the sentencing remarks of the judge in the Worboys criminal trial were not included in that dossier? Why did the dossier contain nothing about the new information that had come to light during the proceedings brought by victims against the Metropolitan Police? It must be possible that the failures in the Worboys case go much wider than the rules governing the Parole Board or the board’s function.

It is clear from today’s ruling that judicial review is a key tool for every citizen to be able to challenge unjust or unlawful decisions by the state or other public bodies. Deep cuts to legal aid have undermined the ability of too many people in our country to pursue judicial review. I repeat: I do not think it is right that victims should have to resort to crowdfunding to access justice. Justice cannot be dependent on the depth of your pockets. Will the Government commit to using their review of legal aid to look in particular at how we might better support the basic right to judicial review of administrative action?

It seems that there have been widespread failings in this case from the very outset. In 2009, John Worboys was convicted of 19 offences against 12 women, but the police have also linked Worboys to about 100 other cases. Many of the victims have raised concerns about the police handling of the case. Others have raised concerns about the CPS decision not to prosecute in other cases. We have discussed at length the complaints about the Parole Board, particularly its failure to properly notify victims of proceedings. It is clear that we need a thorough examination of the end-to-end handling of this case, from the first attack reported to a police officer right through to the Parole Board hearings that were under review in today’s decision. Those of us on this side of the House have asked the Government to consider such an end-to-end review before. I hope, in the light of today’s decision, that the Minister might commit at least to considering that request.

Finally, for most people most of the time the justice system is out of sight and out of mind until a case such as this comes to public view. Yet, the justice department has in recent times faced 40% cuts—the deepest of any department. Is it not time to reconsider the effect of those cuts and whether they are sustainable? If I might be so bold or cheeky, I ask the Minister to consider lobbying the Lord Chancellor to get extra investment into a justice system that is at least strained, if not quite broken.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I join the noble Baroness in welcoming the Statement from the Secretary of State and the noble and learned Lord’s repetition of it in this Chamber. The High Court’s decision is a signal victory for the victims. I join the noble and learned Lord in congratulating them on bringing this case.

The High Court’s decision and the Statement mark a real endorsement of three important principles. First, the interests of victims should be given significant weight in the Parole Board’s decision-making at every stage. Secondly, the Parole Board should operate with far greater transparency and its secrecy hitherto has acted against the interests of justice. Thirdly, a much wider range of evidence, including evidence of past offending, which was so very relevant to the Worboys case, should be fully considered by the board.

I welcome the many steps announced by the Secretary of State in the Statement. I also endorse the points made by the noble Baroness about how important judicial review is and the importance of resisting any attacks on it, direct or indirect, through its funding by Governments in future. However, I have a number of questions for the noble and learned Lord. I appreciate that the answers will necessarily to some extent be preliminary at this stage, but I make two points about that. First, the answers will be relevant to the reconsideration to be given by the Parole Board pursuant to the decision of the High Court in the Worboys case. Secondly, as the noble and learned Lord stated, this work has been going on for two and half months already.

My first question is: what thought has yet been given as to how evidence of past offending will be heard, tested and then weighed up by the Parole Board? In that context, how is it proposed that the voices of victims will be heard?

Secondly, one of the problems has been that the victims were notified of the decision after it had been taken and made public. That cannot be right. I appreciate the commitment in the Statement to giving a summary of reasons, but can we be assured that victims of past crimes by offenders who are about to be released will be notified in advance of a decision to release?

Thirdly, how is it intended that the role of the Secretary of State’s representative at Parole Board hearings, which was mentioned in the Statement, will be enhanced?

Fourthly, on training, the Statement commits to further specialist training of Parole Board members. How is it that the training of Parole Board members has been allowed in the past to be of a standard that the Government now accept was deficient?

Finally, how, in general terms as well as, as far as possible, in the particularity, is it proposed, given the abolition of Rule 25, that greater transparency for Parole Board proceedings will be implemented?

Crown Prosecution Service: Disclosure Procedures

Baroness Chakrabarti Excerpts

Monday 29th January 2018 Lords Chamber

[Lord Keen of Elie]

My Lords, clearly the development of digital media has increased the demands made on both the police and the prosecution service in the investigation of crime. Indeed, in their most recent report, National Disclosure Improvement Plan, the National Police Chiefs’ Council, the College of Policing and the Crown Prosecution Service indicated that they will develop a joint protocol by March 2018 for the examination of digital media.

[Baroness Chakrabarti (Lab)]

My Lords, on the one hand we have urgent crisis reviews of pending prosecutions for fear of potential non-disclosure and unsafe trials and, on the other hand, we have various women’s groups telling us that the existing law designed to protect women from degrading questioning about their sexual histories is not being applied, and that causes fear as well. To add insult to injury, a notorious sex offender will be released on parole without rhyme or reason and without a voice for the victims of crime. Will the Minister please agree that it is time for the Government to give urgent attention, if not resources, to restoring faith, trust and confidence in our criminal justice system?

[Lord Keen of Elie]

My Lords, what is necessary is that a responsible Government should not arm wave but, instead, respect the rule of law.

Non-Disclosure Provisions

Baroness Chakrabarti Excerpts

Monday 22nd January 2018 Lords Chamber

[Lord Keen of Elie]

The Government are conscious of the importance of confidentiality clauses, particularly between employers and departing employees. It may, for example, be important to protect confidential information material to a business. But we are equally concerned to ensure that the limitations are legitimate and that it is not possible to exploit such clauses in order to turn them into what are sometimes termed gagging clauses.

[Baroness Chakrabarti (Lab)]

My Lords, I think all of us, including the Minister, can agree that there are certain clear examples of cases where no court or tribunal should attempt to enforce one of these clauses, because it would be contrary to public policy. For example, the victim of a sex offence should be able to go to the police without anyone enforcing a clause against her. But it gets more complex beyond that. Does the Minister agree that if there are victims who are, de facto, chilled from coming forward, the Government have a role in clarifying and possibly legislating in this area?

[Lord Keen of Elie]

My Lords, the Government have committed to consider the report of the committee that is looking into this issue, and will then determine what further steps should be taken. We would prefer to react to the outcome of that report rather than anticipating it.

Transparency of the Parole Board and Victim Support

Baroness Chakrabarti Excerpts

Tuesday 9th January 2018 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I am grateful to the Minister for repeating the Statement and for giving me advance sight of it. Our criminal justice system must of course have the interests of victims of crime at its heart. It is all too clear that victims of the vile crimes committed by John Worboys feel that the process has failed them. Such failings risk undermining public trust in our wider justice system and the rule of law. Many women, both victims and others more widely, will understandably be anxious about Mr Worboys’ release. The current legal restrictions on the Parole Board mean that we do not know why and how the decision was taken. So while I thank the Minister for repeating the Statement, do we really need to debate whether there is a case for greater transparency? Surely, the Worboys case has underlined that there is, and the chair of the Parole Board has already called for it. So does the new Secretary of State for Justice intend that this review should be about how to achieve greater transparency and not whether it is needed?

The failures go much wider than the rules governing the Parole Board. In fact, the whole matter has been dogged by failures in the system from the outset. In 2009 John Worboys was convicted of 19 offences against 12 women, but it has been suggested that the police have linked Worboys to around 100 other cases. The public are asking questions about the failings in the police handling of the case; about why there were no further prosecutions; and about failures of the victim contact scheme properly to notify victims of the parole hearing. The Worboys case raises so many serious questions that anything less than an independent, end-to-end review of the handling of the case, from the first reporting of an attack to the police right through to the Parole Board hearing, would let down victims and the wider public.

The previous Secretary of State did not take up the Opposition’s request to undertake such an inquiry, but the new Secretary of State can bring a fresh perspective. He also has an opportunity to reassure the victims and wider public by going further than his predecessor and agreeing to the kind of independent, end-to-end review that I have described. That would be the right thing to do and if the new Secretary of State does so, I will be the first to congratulate him. Will the Minister agree to at least take that suggestion back today?

There is also a question about whether wider problems in the justice system—a sector that has been subject to the greatest level of cuts to any department—may have impinged on this specific case. The failure to allow women victims the opportunity to participate in the parole hearing through written and oral statements, or properly to notify them of the hearing, was a significant breach of their rights. The National Probation Service manages the victim contact scheme; your Lordships’ House is all too familiar with the deep problems caused to probation by the chaotic reforms undertaken by the Government. Does the Minister believe those changes to the probation service have left the victim contact scheme more effective or less effective? Will he spell out today what the Government are doing to ensure that this scheme is functioning as it should and that we see no repeat of the failings witnessed last week? At the very least, will he consider amending the scheme so that victims opt out rather than opt in to the contact system?

Likewise, what is the Government’s assessment of the effectiveness of the current sex offender treatment programmes in prison? Last year, the ministry found that its core programme actually increased reoffending among sex offenders. Does the Minister know whether Worboys was on one of those core programmes that was subsequently withdrawn? Will the Minister take the opportunity to clarify the current procedure for prioritising which IPP cases are dealt with most pressingly? Are those on the shortest tariffs dealt with first?

Finally, I am glad that the Government are now focusing on victims’ rights but in 2014, the High Court found that the Metropolitan Police had breached the rights of the victims of Worboys under the Human Rights Act by failing properly to investigate many of the crimes he was linked to. This decision was later upheld by the Court of Appeal. So I think many of your Lordships will be surprised and disappointed that the Government, through the current Home Secretary and her predecessor, then backed taking Worboys’ victims to the Supreme Court last year. Will the Minister take this opportunity to express regret for treating those victims in this way?