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

Lord Pannick Excerpts

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

[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.

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

My Lords, I am obliged for all the contributions that have been made with regard to this matter. Your Lordships will be aware that the power in Clause 3 allows the Secretary of State to make consequential, transitional, transitory or saving provisions in relation to certain provisions for staff by way of regulations.

I say immediately that I am most obliged to the noble Lord, Lord Marks, because it would appear that we are being briefed by the same Bill team. That is hardly a surprise, but I am in a position to say that he has eloquently and clearly expounded the rationale for these provisions being in the Bill. I accept his point about how they are intended to operate as set out between Clause 3 and the schedule.

The power that we are talking about is constructed narrowly, both in regard to the nature of the amendments that it provides for and being in respect only of secondary, rather than primary, legislation. However, there seems to be some confusion about the extent of the provision. Perhaps noble Lords will allow me briefly to explain the interaction between the substantive power in paragraph 32 of the schedule and the consequential power in Clause 3(2).

The key substantive power in paragraph 32 is that the rules of court may provide for the exercise of judicial functions by authorised court and tribunal staff. It will therefore be the procedure rules that set out the details of which functions authorised staff may exercise, the qualifications and experience that they may require and any specific right of reconsideration should the relevant rule committee consider that one is needed. Rules are made by independent committees to govern procedure within courts and tribunals. All rules are made by statutory instrument subject to negative resolution in Parliament.

However, the procedure rules cannot be used to make all the necessary amendments to other secondary legislation, such as consequential changes to remove references within existing secondary legislation—I take as an example those to “justices’ clerks”, which will become redundant once these provisions are in force. For that, we will use regulations under Clause 3(2), which will in turn be subject to the negative resolution procedure. We could not use this consequential power to make substantive provision in relation to judicial functions.

Further, I refer to the width of the provision itself. The concept of an amendment that is consequential, transitional, transitory or saving is well understood, with many precedents. I should note that these terms are construed strictly by the courts. The power in Clause 3 is a narrow power so, although the rules may provide for a wide variety of functions to be exercised by authorised staff, it does not follow that the consequential power has wide application. In our case, this power is needed principally, as I say, to amend references in secondary legislation from, for example, “justices’ clerk” to “authorised officer”. So far, I think that we have identified about 200 references in over 60 pieces of secondary legislation that would need amendment; there may be more.

I come to the point raised by the noble Lord, Lord Pannick, as to which legislation may be amended. It is normal practice in legislation to say expressly when a power is to be used to amend primary legislation. The Government have no intention of using this power to amend primary legislation, so there is no express provision for such amendments in Clause 3. We have identified consequential amendments to primary legislation for these provisions, which are provided for in the schedule. We do not need, or seek, any further power to amend primary legislation in the Bill.

In drafting the Bill, we thought carefully about the extent of the power in Clause 3(2). The Prisons and Courts Bill, from which the clauses originated, included powers to make consequential provision and for such powers to be able to be used to amend primary as well as secondary legislation. As we have now identified the consequential changes needed, as I say, we do not intend to make any further changes to primary legislation. In drafting Clause 3, there was therefore no inclusion of the express provision to make such changes to primary legislation.

I am happy to give noble Lords an undertaking in Hansard that the power in the Bill will not be used to amend primary legislation. If a future Government attempted to do so, I would expect the Joint Committee on Statutory Instruments to bring this to the attention of Members of both Houses. I am content to give that undertaking without qualification, for the purposes of Hansard.

[Lord Pannick]

Can the noble and learned Lord not merely give the House an assurance that the Government do not intend to use the power to amend primary legislation but also tell the House that the Government’s intention and understanding is that the scope of this power in Clause 3 is such that it could not validly be used for that purpose?

[Lord Keen of Elie]

I endeavoured to set that point out in my previous observations, but I am happy to repeat them. If the Government’s intention had been to seek the power to amend primary legislation then, in accordance with precedent and court decisions on interpretation, they would have included the express power to do so in Clause 3, as they did in the Prisons and Courts Bill. There is no intention of doing that and they have not included that power. I do not consider that such a power is available to the Government, in light of the way in which Clause 3 is carefully framed, so I have no difficulty with that.

The provisions that we have now made within the Bill for dealing with this by way of the negative procedure found approval with the Delegated Powers and Regulatory Reform Committee, which is of course charged with reporting on such provisions. It noted in its 29th report that there was nothing in the Bill to which it wished to draw the attention of the House. I am aware that in the past the Magistrates’ Association raised a point similar to that raised by the noble Baroness, Lady Chakrabarti, but I understand that once we—by which I mean the Bill managers—had explained the position, as they did to the noble Lord, Lord Marks, it withdrew its concerns because it appreciated the narrow scope of this provision. With that explanation, I hope that the noble Baroness will see fit to withdraw the amendment.

--- Later in debate ---

[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.

[Baroness Butler-Sloss (CB)]

My Lords, as a former judge of the family court, I wonder in what circumstances such judges—district judges, circuit judges or even possibly High Court judges—might need the advice of those who were not themselves qualified lawyers. I find that difficult. I see no difficulty with justices of the peace—that is perfectly obvious—but at the moment I cannot see how any family court judge, at any level, should be advised on legal issues by someone who is not legally qualified. I would be grateful to the noble and learned Lord for explaining what he sees this applying to, and in what circumstances.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, as well as moving Amendment 7, I shall speak also to Amendments 9, 10 and 13, which stand in my name. When the Bill was in Committee, there was a general desire to see more safeguards on the face of the Bill and greater transparency around the process of making court and tribunal procedure rules. The Government have listened to these concerns and, after further discussion, we have tabled these amendments.

The purpose of the amendments is to require the committees, when making any rules to allow authorised staff to exercise judicial functions, to consider whether the rules should include a right to judicial reconsideration of decisions made by authorised staff exercising those functions. This means that the rule committees would have to consider whether each judicial function should be subject to a right to reconsideration. Furthermore, the amendments require that, if a rule committee decides against the creation of such a right in the rules that it makes, it will have to inform the Lord Chancellor of its decision and the reasons for it.

The amendments should be read alongside existing statutory provisions relating to the making of court and tribunal rules. The committees are under a statutory obligation to,

“consult such persons as they consider appropriate”,

before making rules. If, following consultation, a rule committee chose not to include a right to reconsideration in its rules, it would have to inform the Lord Chancellor of this and, as I indicated, it would also have to give reasons for the decision. The Lord Chancellor would then have two options: either to ask the committee to reconsider its decision, as he has the power to ask the rule committees to make rules, or, if he agrees with the committee, to lay the rules in Parliament. In doing so, we would expect the Lord Chancellor to set out, in the Explanatory Memorandum to accompany the statutory instrument containing the rules, the committee’s rationale for not including a right to reconsideration. The amendments would therefore ensure much greater transparency in the decision-making process.

Our amendments would ensure that the jurisdictional rule committees continued to play a full part in determining the most appropriate mechanism for reviewing decisions by authorised persons. I hope that in the light of these amendments the noble Baroness, Lady Chakrabarti, will consider her position with regard to her Amendments 8 and 11, which fall within this group, but perhaps I can defer that and allow her to state her position with regard to those amendments.

[Lord Pannick]

Before the Minister sits down, can he give the House a practical example of the exercise of relevant judicial functions by someone who is not a judge in respect of which it would not be appropriate to allow for a review by someone who is a judge?