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

Lord Judge Excerpts

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

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

[Lord Judge (CB)]

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

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

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

[Lord Pannick (CB)]

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

“The Secretary of State or Lord Chancellor may, by regulations made by statutory instrument, make consequential … provision”—


that is the part that concerns me—

“in relation to the Schedule”.

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