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

Lord Neuberger of Abbotsbury Excerpts

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

[Lord Garnier (Con)]

My Lords, I do not wish to be impertinent. This is my first intervention and exchange with the Government Front Bench on any legislation. My diffidence is reinforced by the fact that I was not a functioning Member of the House in the earlier stages of this Bill. I note what the noble Lord, Lord Marks, said in relation to the minimum qualifications required, and quite correctly, he points out in anticipation of what the Government seek in Amendment 5 what an authorised person may not do. It is probably my fault, but I am not entirely clear what an authorised person may do. Once one knows what an authorised person may do, it might be possible to reach an intelligent conclusion on what the proper level of qualifications should be.

[Lord Neuberger of Abbotsbury (CB)]

My Lords, as has been said, the purpose of this part of the Bill is to introduce a degree of flexibility and take the pressure off serving judges who are under considerable pressure at the moment, as we all know. It is right and proper that the officers who are appointed to carry out these very low-level judicial functions—and the principle is accepted—should have appropriate qualifications. However, echoing what the noble Lord, Lord Marks, said, the qualifications will be determined either by regulations or rules set down by the rules committee, which have to be put before this House, and approved by the Lord Chief Justice. Given the large number of low-level decisions which will be involved in this case, rather than fettering either of those bodies by legislating on the sort of people who can do this job, why not leave it to the Lord Chief Justice and the rules committee or the regulations? Our minds in this House cannot cater for these circumstances because, as the noble Lord said, we do not know all the types of orders which these people might be expected to make. We will have the regulations and we will trust the Lord Chief Justice and the Senior President of Tribunals.

[Lord Pannick]

My Lords, I am all in favour of flexibility and entirely understand the argument, in relation to the exercise of judicial functions, that we should be careful not to prescribe conditions that are more appropriately left to the rules committee and the Lord Chief Justice. I have more difficulty with Amendment 3, which concerns the function of giving legal advice to judges. We are concerned here with paragraph 14 of the Schedule. As I understand it, Amendment 3 seeks to impose a minimum standard for those who perform the function of giving legal advice to judges. I have some difficulty in understanding how that function can appropriately be performed by someone who does not have at least the minimum qualification of three years’ experience post qualification as a solicitor, barrister, or chartered legal executive. Unless the Government are able to say that they envisage this function being performed by someone who does not have that minimum qualification, I see great force in Amendment 3.

Amendment 4 is slightly more difficult, as it is concerned with the same function—giving legal advice—but in relation to justices of the peace. It may be that that minimum standard is not appropriate to that function. I will listen carefully to what the Minister says about that. Amendment 6 is concerned with a different question: the function of actually performing relevant judicial functions, which the noble and learned Lord, Lord Neuberger, has spoken about. I am most troubled by the issue raised by Amendment 3.

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

Lord Neuberger of Abbotsbury Excerpts

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

[Lord Pannick (CB)]

Can the Minister say whether he thinks that Clause 1 of the Bill will make any significant contribution to resolving what the Lord Chief Justice has described as the unsustainable recruitment crisis that is facing the Bench?

[Lord Neuberger of Abbotsbury (CB)]

My Lords, I will just add a footnote to what the noble and learned Lord, Lord Judge, has said. The Lord Chief Justice’s annual report is laid before Parliament, so the information about judicial training will be laid before Parliament in so far as the Lord Chief Justice considers it appropriate, he being responsible for training.

[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.

--- Later in debate ---

[The Earl of Listowel]

My Lords, I understand that the purpose of the amendment is to ease the burden on the courts. In a statement last year, the President of the Family Division highlighted the ever-increasing burden on the public side of the family courts as the number of children taken into local authority care accelerates. This is an area of the courts that is experiencing a lot of pressure, and I just want to highlight to the noble and learned Lord and to the Committee that problem-solving courts can also be a good solution to the pressures on our courts. The family drug and alcohol courts are a good solution to reducing the pressure on the courts and might help to limit the use of the innovation to which the Schedule refers.

The founder of the family drug and alcohol courts, District Judge Nicholas Crichton, highlights that the problem-solving courts are much less adversarial and more solution based. For instance, one often finds with children being taken into care that a young, teenage mother addicted to drugs and alcohol will have one child and that child will be removed. She will promptly have another child, and then another child, and each one will be removed. However, if one treats the mother’s addiction and gets her off alcohol and drugs, which the family drug and alcohol court is good at doing, she may well stick with the one child or the second child, and this eases the burden on the public family courts. I recognise that the Schedule seeks to deal with the heavy burden on our courts. I encourage the Minister to look carefully at developments in this area and to consider problem-solving courts as another way of dealing with this issue.

The family drug and alcohol courts highlight the value of the achievement of District Judge Nicholas Crichton in introducing them. The Government have generously funded them from the beginning, through both the Department for Education and the Ministry of Justice, and it is highly commendable that they have invested in this important new approach to keeping families together and stopping children from being removed into local authority care unnecessarily.

[Lord Neuberger of Abbotsbury]

My Lords, the noble Baroness is right to be concerned about the expertise and experience of the people who make decisions. My concern about the amendment is that it puts a potential straitjacket on the ability to appoint the appropriate people to make appropriate decisions. There will be many decisions where people with her requisite experience would be appropriate, but there will be others where less experience would be adequate for the decision-making.

Given that the rules which will set out the requirements will have to be laid before Parliament, and that many of the decisions outside the rules are made, effectively, by the Lord Chief Justice, while what the noble Baroness said has considerable force in some circumstances, it would unsatisfactorily reduce the flexibility of these proposals. They are largely not concerned with the problems of judicial recruitment which have been canvassed in the House today—which any self-respecting former judge, such as myself, is concerned about—but, none the less, the proposals in the amendment would unduly constrain the flexibility which the measures in the Schedule sensibly envisage.

[Lord Keen of Elie]

I am obliged to the noble Baroness, Lady Chakrabarti, the noble Earl and the noble and learned Lord for their contributions.

There are two strands to this group of amendments, and it is important to differentiate between them at the outset. Amendments 5 and 6 relate to the qualifications for staff providing legal advice; Amendment 7 relates to the qualifications for staff exercising judicial functions. For those staff authorised to provide legal advice to judges at the family court and magistrates, the measures in this Bill replace existing statutory provision for legal advice to be provided by justices’ clerks and assistant clerks. In future, the function of giving legal advice will be exercised by a member of court or tribunal staff authorised by the Lord Chief Justice, or at least a party nominated by him.

Currently, there are different provisions governing the qualifications required of justices’ clerks and assistant clerks. The qualifications required of justices’ clerks are set out in statute. Those for assistant clerks, however, are provided in regulations made by the Lord Chancellor under the powers in Section 27 of the Courts Act 2003. Broadly, an assistant clerk must be a barrister in England and Wales, or a solicitor of the senior courts of England and Wales, or have passed the necessary exams for either of those professions, or have qualified as a legal adviser under historical rules that were in place prior to 1999. The vast majority of legal advice is currently provided by assistant justices’ clerks.

The position in the Bill is that the qualifications required for staff to be authorised to provide legal advice to justices of the peace and family court judges will also be specified by the Lord Chancellor in regulations, and the regulations must be made with the agreement of the Lord Chief Justice, which provides a further important check on this power. The Government take the view that regulations will provide a flexible and proportionate approach to establishing the right qualifications for those authorised staff providing legal advice to judges of the family court and magistrates. I note the point made by the noble and learned Lord, Lord Neuberger, about avoiding a straitjacket so far as these matters are concerned.

I understand the desire of the noble Baroness to see more detail of how our proposals will work in practice. In order to assist the debate on this matter, yesterday we published a draft of the regulations setting out the qualifications for those authorised staff giving legal advice. These regulations broadly reflect the legal qualifications currently required by assistant clerks, with the important addition of fellows of the Chartered Institute of Legal Executives or those who have passed the necessary examinations to be a CILEx fellow. While the Government do not envisage that the regulation-making power will need to be exercised regularly, it would allow us to reflect any developments in the legal profession as to qualifications required to practise. The addition of CILEx fellows is an example of where this flexibility might well be needed.

I should add that Amendments 5 and 6 would impose a much stricter requirement than the current arrangements. Some of our legal advisers qualified through a scheme which has not been available since 1999 and which did not result in qualification as solicitors, barristers or fellows of the Chartered Institute of Legal Executives. In addition, those who have completed the necessary examinations to become barristers in England and Wales or solicitors may become assistant clerks. The current practice works well and demonstrates that assistant clerks are appropriately qualified and experienced for the role they undertake, and we intend to retain these provisions in the new regulations. However, the approach taken by Amendments 5 and 6 would exclude some of our best and most experienced legal advisers. That, I would suggest, cannot be right. I want to be very clear about the Government’s intention. Legal advice will continue to be provided by authorised court and tribunal staff with appropriate legal qualifications as it is now. The draft regulations, which we have published, seek to confirm this.

Turning now to Amendment 7, as I have said, the powers in Clause 3 and the Schedule are not entirely new. For example, in the First-tier Tribunal and Upper Tribunal there is already a power for rules to provide for the exercise of judicial functions by staff. The most basic functions, such as issuing standard directions at the commencement of a case, can be carried out in some tribunal jurisdictions by authorised staff with no legal qualifications. Slightly more complex functions, such as applications for postponements of hearings, extensions of time, withdrawals and reinstatements, can be undertaken by caseworkers who have legal qualifications. The most complex of the delegated functions, such as the consideration of late appeals, are generally reserved to registrars who are legally qualified and have legal experience. It is not necessary for all authorised staff exercising judicial functions to possess legal qualifications, as many will be carrying out routine, straightforward tasks. Where powers currently exist, rule committees are already used to determining the qualifications needed for staff to exercise particular functions, and this works well. Again I note the observations of the noble and learned Lord, Lord Neuberger, about not placing these matters into an unnecessary straitjacket.

The Bill will allow the relevant procedure rule committees to set requirements relating to the necessary qualifications or experience of such staff. The committees are best placed to assess these requirements for their jurisdictions in light of the functions that they are authorising staff to exercise. As a further safeguard, a member of staff will not be able to exercise judicial functions until they have been authorised to do so by the Lord Chief Justice or his nominee, or by the Senior President of Tribunals or his delegate. Authorisations are therefore ultimately the responsibility of the judiciary, and they will not authorise staff unless satisfied as regards their competence.

As with Amendments 5 and 6, setting the qualifications bar as high as in Amendment 7 would rule out a large proportion of courts staff from exercising judicial functions, even though they might have been doing so for a number of years. Such a loss of expertise would render the provisions in Clause 3 and in the Schedule essentially unworkable. Based on that explanation, I hope that the noble Baroness, Lady Chakrabarti, will feel able not to press her amendment.

--- Later in debate ---

[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.

[Lord Neuberger of Abbotsbury]

My Lords, I applaud the noble Baroness’s concerns, which, as in the previous amendments, are directed towards ensuring that the high standards of justice in this country are maintained.

I echo to a considerable extent what was said by the noble Lord, Lord Marks. However, in the end, these are matters for the rule committee. There are two protected factors: one is that nothing can be done without it being in the rules, and the second is that the Lord Chief Justice needs to give his or her authorisation to the person who makes the decision. The other amendment concerns the Senior President of Tribunals. With the rules, there is the protection of them having to be laid before Parliament, and therefore any restrictions of the sort that the noble Baroness wishes to put forward would have to be considered by the rule committee. If they were not in the rules, and this House felt that they should be, this House would then have an opportunity to see what was said and why. I again suggest that these matters are best left to the rule committee. As the noble Lord has indicated, there is clearly room for disagreement over which items and categories should be included and what should not be included. That is best left to the rule committee and, in due course, to the Lord Chief Justice.

[Baroness Vere of Norbiton]

My Lords, I thank all contributors to this short debate. These amendments seek to place in the Bill a list of functions that authorised staff would not be permitted to undertake. I ask the same question that the noble and learned Lord, Lord Thomas of Cwmgiedd, asked at Second Reading: do we really want to put such restrictions—which he described as a fetter on the administration of justice—in this Bill? An example would be the proposal to prevent authorised officers making orders that are opposed by one or more party. I accept that there will be circumstances in which it could be inappropriate for an authorised member of staff to adjudicate on such a matter. However, as the noble and learned Lord, Lord Thomas, and the noble Lord, Lord Marks, pointed out, where, for example, the parties to a case are simply disagreeing about a date on which a hearing should be set, should it not be possible for an authorised member of staff to deal with this under the supervision of a judge?

I fully understand the intention behind these amendments and recognise the importance of ensuring that adequate safeguards are in place. Our provisions ensure that the judicial functions that authorised staff may or may not exercise will be subject to appropriate scrutiny by experts, generally in the form of the procedure rule committees. The Bill will also ensure that, where staff are authorised to provide legal advice or to exercise judicial functions, they are suitably experienced and qualified. It is important to recognise that the concept of authorised staff performing judicial functions is not a new one for courts and tribunals. Her Majesty’s Courts and Tribunals Service staff can already be authorised to exercise the jurisdiction of almost every court or tribunal, up to and including the High Court and Upper Tribunal. Rule committees already have experience in deciding the functions that such staff may exercise.

I remind noble Lords that the purpose of these provisions is to increase the efficiency of our courts by allowing authorised staff to undertake a wider range of functions under the supervision of judges, so that judges themselves are free to deal with the more complex matters before them. This amendment would not only place unnecessary limitations on what we could achieve in this area but undermine the progress that we have already made. For example, justices’ clerks and assistant justices’ clerks currently make cost orders and search orders in appropriate cases. They also make orders for special measures for vulnerable defendants, victims and witnesses giving evidence, such as the use of video links and screens. They carry out these tasks efficiently and effectively.

The Bill provisions build on the existing process for assignment of judicial responsibilities in a sensible and proportionate way, and will allow authorised staff to carry out judicial functions in the Crown Court for the first time. Staff will be authorised by the Lord Chief Justice or his nominee and will work under the supervision of the judiciary. The Bill puts decision-making as to which functions may or may not be exercised by authorised staff in the right hands: the procedure rule committees. Here, the powers can be properly scrutinised by judges, practitioners and other interested parties. The noble and learned Lord, Lord Thomas, spoke powerfully about his own experience of chairing the Criminal Procedure Rule Committee, the expertise of the committee and the fact that it always managed to reach consensus. The judiciary is ultimately responsible for authorising court and tribunal staff to exercise such functions and, as is currently the case, it will do so only if satisfied as to their competence. As pointed out by the noble and learned Lord, Lord Neuberger, procedure rules are also subject to parliamentary scrutiny via the negative resolution procedure, which provides an additional check on these provisions. In the light of the reasons I have set out, I hope the noble Baroness, Lady Chakrabarti, will withdraw her amendment.

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[Lord Marks of Henley-on-Thames]

My Lords, I fully support the noble Baroness’s Amendments 9 and 11. It seems to me that the Bar Council is absolutely right to draw a distinction between the nature of rules specifying what decisions can be made by authorised persons and the question of whether such decisions made by authorised persons should be subject to a review.

The noble and learned Lord was good enough to circulate to us not only the draft statutory instrument that he mentioned but the policy statement in support of it. It is quite clear that the procedure rule committees will be responsible for making the decision as to what decisions should be made by authorised persons: that is, the Criminal Procedure Rule Committee, the Family Procedure Rule Committee and the Civil Procedure Rule Committee. Of course, the noble and learned Lord, Lord Neuberger, is right to point out that those rule committees make rules that are both subject to scrutiny by Parliament and subject to approval by the Lord Chief Justice. However, that does not have a bearing on the question of whether decisions, once made, should be reviewable.

I commend these two amendments because they set a simple and short time limit of 14 days for making the application for review, and a further 14 days only for the decision upon that review. Furthermore, I believe that there is some benefit to be gained from uniformity, so that all such decisions made by authorised persons are subject to the same time limits and the same procedure. It seems to me that to have different rules for different types of decisions would be a mistake.

I would of course expect that, in due course, the review provisions would be implemented by applying a test that the decision of an authorised person would be overturned only if it was outwith the range of reasonable responses to the question posed to the authorised person—the traditional appellate test, rather than a fundamental review test. Subject to that, it seems to me that to give an authorised person an unappealable, unreviewable power to make what will sometimes be very important decisions, even if they are sanctioned by the rules, would be going too far. So I support these amendments.

[Lord Neuberger of Abbotsbury]

My Lords, I have considerable sympathy with these amendments, in the sense that, as the noble Lord, Lord Marks, has said, the idea of a decision being made by a non-judicial person and not being referable to a judicial figure is inconsistent with justice. 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, which, as the noble Baroness has said, consists of experienced people from all aspects of the justice system.

Having chaired the Civil Procedure Rule Committee for three years, I can say, as has been quoted in relation to its criminal equivalent by my noble and learned friend Lord Thomas, that considerable care is given to ensure that all the requirements of justice are met. It is very rare, if ever, that I can remember a decision being arrived at which was not arrived at by consensus. To my mind, in those circumstances, while it is essential that there is this right, it is a right whose details should be worked out, at any rate, by the rule committee—the rules of which, as I have said, sounding like a scratched record, are put to the House.

[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.

European Union (Withdrawal) Bill

Lord Neuberger of Abbotsbury Excerpts

Committee: 5th sitting (Hansard): House of Lords
Wednesday 7th March 2018 Lords Chamber

[Lord Neuberger of Abbotsbury (CB)]

My Lords, Clause 6 is concerned with the issue of how the large body of retained EU law is to be interpreted by judges. It is an important issue because it is a fundamental principle that the law should be clear and consistent, but also because the topic could lead to ill-informed political and media attacks on the judges, to which the noble Lord, Lord Pannick, has referred, which would undermine the rule of law at home, the reputation of English law abroad and the consequential attraction of London as a global dispute resolution centre. Your Lordships will no doubt recall one such Brexit-related attack on the judiciary that received worldwide publicity. Clause 6 should be worded with a view to clarifying the law and minimising the risk of such attacks. Quite apart from that, I suggest that we need to think through the implications for the UK legal system and its attraction to others when it comes to developing our own system of retained EU law. I cannot pretend that this issue is easy to resolve but it is an appropriate opportunity to explain the context from a judicial perspective.

At the moment, at any rate, the Government envisage that post-Brexit the UK courts will, at least in general, no longer be subject to the jurisdiction of the ECJ and so will be free to interpret EU law as they see fit. This gives rise to two closely related problems. The first is: what principles of interpretation are to be applied to that retained EU law? Secondly, what use can be made of ECJ case law when carrying out that interpretation exercise?

On the first problem, unlike normal UK legislation, which is generally tightly drawn, EU legislation is relatively loosely drafted, leaving the judges to resolve ambiguities and fill gaps. Some EU legislation is of course drafted on the basis that it will be interpreted to give effect to fundamental EU aims, such as ever closer union and the strengthening of the internal market, which may well be no longer relevant to the UK after Brexit. In providing that general principles of interpretation set out in pre-Brexit ECJ decisions will be applied by UK judges after Brexit, Clause 6(3) in its present form none the less has the effect of maintaining all those interpretive principles, although by virtue of Clause 6(5) it would be open to the Supreme Court to depart from such decisions.

The second, related problem is the use of ECJ case law. In her speech last week, the Prime Minister said that,

“where appropriate, our courts will continue to look at the ECJ’s judgments, as they do for the appropriate jurisprudence of other countries’ courts”,

and added that,

“if, as part of our future partnership, Parliament passes an identical law to an EU law, it may make sense for our courts to look at the appropriate ECJ judgments so that we both interpret those laws consistently”.

That sounds fine but things are not quite so straightforward. The Bill sensibly provides that the UK courts must follow the pre-Brexit decisions of the ECJ although, as I have said, Clause 6(4) states that the Supreme Court can depart from those decisions in the same circumstances as it can depart from its own decisions. By contrast, where there is a post-Brexit ECJ decision, as the noble Lord, Lord Pannick, has explained, Clause 6(2) provides that a court,

“need not have regard to”,

such a decision,

“but may do so if it considers it appropriate”.

That gives precious little guidance to a judge—indeed, as I will mention later, possibly unhelpful guidance from the point of view of the judiciary’s reputation—as to how to approach post-Brexit ECJ decisions.

It has been suggested that a judge could be assisted by the approach that courts have taken when looking for guidance from decisions of courts in other jurisdictions. However, courts in this country normally do this when looking for general principles or when considering the scope of human rights conventions. That is not really a sound analogy because Clause 6(2) would normally apply to a case where a judge was looking at an ECJ decision on the interpretation of specific legislation. It has also been suggested that a judge could get help from cases that have stressed the desirability of UK courts taking account of decisions of overseas courts so as to reach a uniform interpretation, but that does not provide a real analogy either because EU law is unlike those conventions: it is a law of a union from which the UK will have departed because it does not want to have such uniformity, although accepting that it may be desirable in some cases.

As the noble Lord, Lord Pannick, has said, Clause 6(2) in its present form appears to indicate that there is a presumption against following decisions of the ECJ but that judges can follow such judgments in this country if they think it appropriate. That would suggest, as again he says, that judges would be expected to make decisions that were essentially political—in particular, whether to align the UK with an ECJ interpretation against the statutory presumption for policy-type reasons, or to depart from the ECJ interpretation.

Given that pre-Brexit decisions of the ECJ are, sensibly, to be determinative on questions of interpretation, both consistency of approach and the experience of the ECJ as interpreters of EU law support the notion that post-Brexit ECJ decisions should be given the same effect, at least where the retained legislation has not been changed. However, if this is not to be the policy, rather than leaving any new policy to be worked out by the courts, which is the effect of Clause 6(2), there is obvious force in the notion that Parliament should clearly state what the new policy is. Similarly, Clause 6(4) is questionable in providing that the Supreme Court should decide whether to adhere to pre-Brexit ECJ decisions or whether new principles of interpretation should apply, because principles to sustain ever closer union or single market freedoms are no longer relevant interpretative considerations in the UK.

There are various possible solutions that need careful consideration, given that this issue is so important, and I shall present some examples. First, the interpretative approach should follow a policy decision set out either in the amendments to be made to EU legislation under powers granted in the Bill or in the final agreement reached between the UK and the EU, and given formal parliamentary approval. In relation to issues not covered by such arrangements, it could be provided that retained EU law was to be interpreted without any departure from existing principles of interpretation. If that were not an acceptable solution, the courts could be given more specific assistance as to how to interpret legislation, in particular whether or not to continue alignment.

Secondly, as some amendments before your Lordships’ House today indicate, including those that were moved just now, post-Brexit decisions of the ECJ could be regarded as persuasive or it could be provided that UK courts must have regard to them if relevant, and that in determining relevance the court should have regard to any relevant agreement between the EU and the UK. Such formulations would probably be better than the present Clause 6(2) but they do not address all the perceived problems.

Thirdly, Clause 6(2) could be omitted altogether. At the moment, it seems to me that, with respect, the present clause is worse than nothing from the judicial perspective. First, it creates the presumption to which the noble Lord, Lord Pannick, has referred, and secondly it uses the word “appropriate”, which suggests a policy role for the judges. That would leave them more exposed in both what they do and what they may be perceived to be doing.

Fourthly, more specific interpretative guidance could be given, bearing in mind the particular circumstances of Brexit and the particular way in which EU legislation is crafted, so that decisions on differing political issues are not left to the judges. The argument that telling judges how to interpret the law could be a precedent for ordinary parliamentary legislation can arguably at least be met by the point that this is a unique circumstance. It would also have the advantage of providing clarity for the UK’s relationship, including its trading relationship, with the other states of Europe and elsewhere.

I hope these issues and the choices they reflect will be subject to proper scrutiny and discussion. The right solution will not only protect the independence of the judiciary but will demonstrate that decisions of a political nature should not be left to judges, and it will help to achieve the legal clarity that is so important to the rule of law and to the future of this country’s trading and other relationships with the EU and other states.

As I hope I have indicated, I accept that there are no perfect answers. That is unsurprising. The incorporation of pre-Brexit—but only pre-Brexit—EU law into UK law requires a sort of multidimensional Procrustean solution. In so far as the Bill requires the judges to perform the role of Procrustes, Parliament should do all that it can to ensure that the judges do not suffer the fate of Procrustes.

[Lord Adonis]

The noble and learned Lord has made a number of strong statements to the Committee about the impact, as he regards it, of Clause 6(2) on judicial independence and the reputation of the judiciary. In particular he objects, as did the noble Lord, Lord Pannick, to giving the courts the discretion to reach a judgment on whether it is appropriate to have regard to the European court. Proposed subsection (2B) in Amendment 56 in the name of the noble Lord, Lord Pannick, states:

“In determining the significance of any judgment … the court or tribunal must have regard to the terms of any agreement between the United Kingdom and the EU which it considers relevant”.


To a layman, this clearly involves an exercise of judicial discretion. So why is the judicial discretion in subsection (2B) set out in Amendment 56 potentially any less damaging and likely to be conducive to controversy than the existing Clause 6(2)?

[Lord Neuberger of Abbotsbury]

I suspect that the noble Lord, Lord Pannick, whose amendment it is, is better placed to answer. My answer would be twofold. First, it specifically tells the judge what to have regard to; it does not leave it completely open. Secondly, it uses a rather more familiar expression, “relevant”. A judge will be able to say, “When construing this, I have looked at the document”—namely, the agreement referred to in subsection (2B)—“to which I am required to have regard. In my view, it tells me to do this or that”. It is specific guidance, albeit indirect specific guidance, through the agreement referred to in subsection (2B), whereas the term “appropriate” leaves it completely open for the judge to decide whether it is appropriate, if I may use that word, to consider matters that he or she is not specifically told to take into account. The judge has to make the decision, “Do I think about x; do I take that into account?” Here, the judge knows what he or she has to take into account because it is spelled out; namely, the agreement.