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

Lord Thomas of Cwmgiedd Excerpts

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

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I support what the Government seek to do and urge a substantial degree of caution in respect of the proposal put forward by the noble Baroness. The Criminal Procedure Rule Committee and the other ones—the civil, family and tribunals committees—are independent bodies. They look at and scrutinise everything with a great deal of care. They are representative of all interests in litigation. For example, the Criminal Procedure Rule Committee has a number of defence lawyers and people from other aspects of the criminal justice system who proceed with great care to look at what is before them. It was suggested that they are unaccountable. I say on this amendment that the provisions for having to consider the right of reconsideration and then reporting that to the Lord Chancellor informing him of the decision and reasons is a traditional form of explanatory accountability.

Secondly, we ought to take into account the fact that, in our system of justice, the operation of the criminal, civil, tribunals and family procedures rule committees has enabled us far more than any other state to keep our rules up to date. I urge the greatest caution in trying to put into primary legislation anything that restricts in this way the powers of the rule committees. For example, there are areas where it has proved difficult to modernise and to reform the system—for example, for extradition appeals, where provisions put into primary legislation made the system almost unworkable. Certainly what was in the primary legislation in relation to videolinks and the protection of vulnerable witnesses proved a great obstacle.

I therefore urge your Lordships to consider that this amendment, as my friend the noble Lord, Lord Marks, said, provides the right balance. It gives discretion to a body that knows and has a lot of experience, but it contains that degree of explanatory accountability that will make sure that it does not do anything—even if we were to worry that it might—that goes outside a proper and just delegation. It is always difficult to think of issues on the spur of the moment but, for example, one of the areas that troubles courts quite often is the short time limits if you have a recalcitrant party. It might be that, in very restricted circumstances, a rule committee would say, “This is the kind of area where a reconsideration is not necessary when a final extension has been given”. But the important point is that I urge your Lordships to trust the rule committees, particularly now that there is this additional safeguard.

[Lord Keen of Elie]

I am obliged to all noble Lords for their contributions. The Government’s position remains that the independent procedure rule committees, comprised of experts and practitioners from each jurisdiction, are best placed to decide whether a right of reconsideration is needed for each judicial function that staff are permitted to exercise. Similarly, they are best placed to determine what such a right should look like. In that context, I gratefully adopt the observations of the noble and learned Lord, Lord Thomas, the former Lord Chief Justice, and of the noble Lord, Lord Marks.

The approach taken in Amendments 8 and 11, tabled by the noble Baroness, Lady Chakrabarti, would impose a blanket right of reconsideration across all jurisdictions, with arbitrary deadlines. It simply would not work in practice. For example, the amendments would allow a person 14 days to apply for reconsideration. Why would a 14-day limit apply across all jurisdictions and for every judicial function that authorised persons are permitted to exercise, some of which are entirely straightforward case management and preparation duties? Indeed, the noble and learned Lord, Lord Thomas, referred to time limits. What happens if you have a request to adjourn a hearing due to take place the following day? If it is refused, you then have 14 days for reconsideration. In other words, it would automatically be successful because of this blanket provision. That is just one of many examples.

Each jurisdiction has its own ways of working and needs mechanisms for reviewing decisions that can respond to this. For example, the rule committees in the civil and tribunals jurisdictions have already built in a specific right to judicial reconsideration of decisions made by authorised staff. The magistrates’ courts and the family court have their own existing mechanisms for reviewing various decisions. These amendments, as proposed by the noble Baroness, would cut across all those existing provisions.

I mentioned an example in response to a query from the noble Lord, Lord Pannick. The magistrates’ courts issue something in excess of 2 million local authority summonses every year. If there were a right to reconsideration in every one of those cases, where would we begin and end with regard to the administration of such applications? Indeed, in the magistrates’ courts, there are already a number of ways for a defendant to challenge a case in which a summons has been issued. He or she can make an initial argument to the court hearing the case that the summons should not have been issued. You can contest the substantive application made by the local authority. There is even the possibility of judicial review. The matter is already covered.

Creating a mandatory right to apply for judicial reconsideration of the decision is not only unnecessary but would also be burdensome and ineffective. It is in these circumstances that I reiterate that it is appropriate, as other noble Lords have observed, that these matters should remain with the independent procedure rule committees and that I again commend Amendments 7, 9, 10 and 13. I invite the noble Baroness, Lady Chakrabarti, not to press her amendments in this group. I cannot commit to reflecting any further between now and Third Reading on these matters, so if the noble Baroness wishes to test the opinion of the House, she should do so now.

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

Lord Thomas of Cwmgiedd Excerpts

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

[Lord Thomas of Cwmgiedd (CB)]

Perhaps I may turn to the last point made by the noble and learned Lord about the titles of the courts of England and Wales. If it is within the scope of the Bill, there may be some advantage in that. Beyond that, I do not wish to say anything about titles, as it has generally been my experience that once you start the debate on judicial titles it can take a whole afternoon to resolve them, and I know that your Lordships have a huge number of other things that may or may not happen later this evening.

I want to say a little bit about the Bill. When I was Lord Chief Justice, I firmly supported the original comprehensive Bill that covered everything. Some of the matters which the noble Baroness, Lady Chakrabarti, has referred to on a wider scale—issues of legal aid and the like—I am currently looking at as they affect Wales as chairman of the commission appointed by the Government in Wales to examine the justice system there, but I do not want today to go outside the scope of this Bill and its title.

I warmly welcome the Bill, as I warmly welcomed the many other clauses in the other Bill that was lost in 2017. It is essential to modernise the court system. It is very important that, wherever possible, savings can be made to make sure that every bit of the system is proportionate and affordable. The Bill reckons to save some £6 million. Bearing in mind the huge analysis to which all these figures have been subjected by accountants, consultants and Her Majesty’s Treasury, I suspect that this is a realistic figure. That is not an insubstantial sum in the light of the current expenditure on justice. Therefore, although a lot could be said about other aspects of the justice system and about adding more things that need to be done, I hope that your Lordships’ House will be able to pass this Bill as rapidly as possible.

Having abjured saying anything about titles, perhaps I may deal with just two provisions of the Bill. The first concerns flexible deployment. This is a very important step to be taken. During the past 15 to 20 years, the procedures of the courts and tribunals have come much closer together. It seems inevitable that one needs to deploy the judiciary flexibly. For example, I would hope that, where you have overlapping jurisdictions such as occurs in relation to property and housing, one could use this Bill to go some way along the lines of a single court that deals with property. Those provisions are unarguably needed.

I can see that great concern might be expressed about the authorisation provisions, but it is important to stress the degree of control inherent in the Bill by the use of the rule committee. I was a member of and chaired, de jure and sometimes de facto, the Criminal Procedure Rule Committee, which I can assure you is a highly representative body with many representatives of the legal profession. Certainly, the committee will always try to reach a view by consensus—when I was a member of it for more than six years there never was a division; we always managed to agree.

It was suggested in the course of today’s speeches that we may want to put restrictions on delegations. For example, would we impose a restriction such as, “If the matter is opposed, it cannot be dealt with through delegation”? A simple example shows how careful one has to be. If, for example, someone wants an extension of 14 days and someone else says, “No, you can only have seven”, that is an opposed proceeding. Do we really want to put restrictions into this Bill? Experience has shown that detailed restrictions on procedure are a very real fetter on the administration of justice. For example, some of the impediments to improving the way in which witnesses can give evidence over a videolink have been caused by the detailed procedural provisions of some of the legislation of the late 1990s and early 2000s. When the Bill comes to Committee, I sincerely hope that serious consideration will be given to fettering the discretion in requiring matters to come to this House, or to impeding the ability of the Criminal Procedure Rules Committee to modernise, particularly as digitisation, artificial intelligence and smart codes for procedural regimes will be characteristics of the justice system within the next few years.

I therefore hope that the Bill can be subject to realistic scrutiny. This is a small part of what is essential. It is important to remind the House that there is no plan B for the modernisation of the system. If modernisation does not go through, the only prospect for our court system is significant decline. I therefore hope that the Bill will be given detailed scrutiny in Committee and that people will try to resist the temptation to hang too many other things within the scope of the Bill on it. I am anxious for the Government to realise they can put this through so they can get the other ones through and we can have a modernised justice system as soon as conceivably possible, because that is what we have to do to restore justice to the people at an affordable cost.

Civil Liability Bill [HL]

Lord Thomas of Cwmgiedd Excerpts

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

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I will address only Part 1 of the Bill, following on from the very eloquent remarks of the noble Baroness.

It seems to me that there are four problems that will have to be addressed, and I will briefly mention them and suggest some solutions. The first is the need for advice and who is to pay for it. This is a problem that runs right across the whole of the legal sector at the moment, and gets more difficult by the day. We need to deal with small claims— small areas where advice is needed—in a proportionate manner, but one that does not incentivise people to bring litigation for the sake of litigation.

Secondly, it cannot be right to categorise a claim as for the fast track or a small claim, simply to enable fees to be recovered. Those are different points: the point of a track is the difficulty of the case.

Thirdly, I welcome the principle of a tariff; this is a novel departure. We ought to look at this and I very much take the point made by the noble Baroness about why we are doing it in this one sphere, which could be met with the remark, “Well, you should pilot it”. There is much to be said for setting a simple tariff, for two reasons: one, it gives certainty and two, it enables claims to be settled more easily. I shall return in a moment to the way in which that should be set.

Fourthly, there is the problem of fraud. In my own experience, the insurance industry—not merely in large claims but in small ones—crusades or works very hard to suppress fraud. In the instance mentioned by the noble Lord, Lord Hodgson, what are commonly known as “cash for crash” cases, the insurance industry has instigated significant prosecutions and has made use of the contempt of court rules to seek the imprisonment of those who have brought false claims. It would be helpful to know what the issues and difficulties are, and the proportion of cases where the insurance industry feels there is a fraudulent claim but cannot prove it. It is important when setting the tariff to have some clear idea of why and how you are setting it. Are you setting it to stop fraud, or on the basis that people should be more stoic and should not be paid so much for a bit of pain? What is the basis?

I will return to each of those four points. First, on the provision of advice, it seems that we need to look at this issue more broadly and not separate out those who suffer this type of personal injury. It is wrong that the energies of claims managers and the legal profession should go into this kind of claim and not the much more important types of small claim. If resources are to be used, they should be used for the vindication of serious rights. It is, I think, the experience of everyone that many people have rights they cannot vindicate because they cannot get legal advice. I hope that the Government give serious consideration to funding the Courts & Tribunals Service or some other body to provide proper online advice in this area, in which a great deal can now be done. Last year, City university and others sponsored a hackathon where people tried to create this kind of legal advice online. I hope that efforts will be made to pursue that.

Secondly, on the allocation of tracks, whether a small claim or fast-track claim, it is essential that the courts have the right IT. If they are to have litigants in person, the IT must be designed to deal with those.

Thirdly, on setting the tariff, I listened with great interest to the noble and learned Lord, Lord Mackay of Clashfern, explain the task the Lord Chancellor would have in setting the discount rate. The task of setting the tariff rate, although dealing with much smaller sums, poses some difficulties. He is given no committee—although a committee is provided for in the other part of the Bill—and no guidance as to what he is to take into account. It would be helpful to look in Committee at assistance that could be given to the Lord Chancellor. Certainly, as has been suggested, maybe the judges could give advice, or the Lord Chief Justice could appoint people who can give advice. It is wholly wrong in principle that this should be set by a government Minister without proper legal advice and medical advice, because no doubt over the next few years, medical science will improve so that we have a much clearer idea of how you prove or show that such injuries have been sustained.

Finally, we must address a fundamental problem: what is this compensation level to be set at? Is it to be set to deter fraud, or is it a matter of compensation? If it is the latter, and assuming that an ordinary individual needs advice, who is to pay for the advice? Is that part of the compensation or not? That point must be addressed. You cannot say we are offering fair compensation unless you are clear about the various objectives. I warmly support this Part of the Bill—as I do the other Parts, on which I could not better the comments already made. It has the right principles, but a great deal needs to be done to improve it.

Legal System: Prosecutorial Policy

Lord Thomas of Cwmgiedd Excerpts

Thursday 18th January 2018 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

This is a timely debate, and I shall deal with only one of the questions posed, namely the one about disclosure. I do so because this problem ought to have been solved many years ago. It is the continuing failure to solve it that I shall concentrate on.

Essentially, the one point I wish to make is that the law in relation to disclosure is clear, simple and fair: fair to the defendant and to the complainant or victim. What has gone wrong, however, is the successive failure, over many years, in implementing the law and having proper procedures on the part of the CPS and, more particularly, the police, to ensure that the law is complied with.

I will elaborate a little on this. The law was set out in the 1996 Act and is clear, with its codes of practice and the Criminal Procedure Rules that have been made alongside it. There were, however, issues, and in 2011 the noble and learned Lord, Lord Judge, the then Lord Chief Justice, appointed Lord Justice Gross to look into the entire system. He looked at what happened in the United States and in continental countries to see if we could learn anything. He came back with a very clear recommendation that no legislative change was needed but that a great improvement was needed in how it was handled in this country. In particular, he recommended that there should be a proper recognition of the consequences of the electronic and digital age. In 1996, it is fair to say, the proliferation of documents could not have been anticipated. The focus of Lord Justice Gross’s excellent report was the problem that had arisen in serious fraud and similar cases. He was not concerned with the problem that has come to the fore recently.

As a result of Lord Justice Gross’s report, in December 2013 the then Attorney-General, Mr Dominic Grieve, issued a further guidance on disclosure. At the same time I, as the then Lord Chief Justice, issued, with him, an agreed protocol for dealing with unused material. We both emphasised that the proper disclosure of unused material, made through a rigorous and carefully considered application of the law, remains a crucial part of a fair trial and essential to avoiding miscarriages of justice.

We both realised that there was no point in these fine words and fine documents without putting in place a system of training and explaining what should happen. That was undertaken. However, as the noble and learned Lord, Lord Morris of Aberavon, has mentioned, it became apparent in 2015 that what had been hoped for was not being done. Part of the explanation may be a huge rise and change in the use of social media in sexual cases. In the old days you had very little by way of disclosure; now, you have massive amounts. From my experience of reading through it, what is exchanged on social media came as a great surprise to many of my age. It is, however, critical, because it shows how the relationship is and, in particular, what may have happened.

In the case to which the noble and learned Lord referred, it was clear—as the trial judge found—that there had been gross incompetence on the part of the police officer. As we caused inquiries to be made of the chief crown prosecutor and the chief constable, it was clear that the fault was systemic. At the end of the judgment we said, in the court, after referring to another 2015 case, that we hoped that that case, and this one, would receive the closest study by the chief crown prosecutors and the chief constables, as there should be no recurrence of failures of this kind by either the CPS or any police force. That was more than two and a half years ago.

We considered asking the Criminal Procedure Rule Committee to see if some kind of supervision could be imposed by the courts, in imposing sanctions for a failure to comply with the law. It was thought, however, and resolved by the Criminal Procedure Rule Committee that this would be impractical and have collateral consequences.

Two noble Lords who spoke earlier referred to the report of the Crown Prosecution Service Inspectorate and HM Inspectorate of Constabulary. It is an excellent report, conducted by two people of great experience. Their conclusion is so important that it is worth reading in full—it is a short paragraph:

“Non-compliance with the disclosure process is not new and has been common knowledge amongst those engaged within the criminal justice system for many years and it is difficult to justify why progress has not previously been made in volume crime cases. Until the police and CPS take their responsibilities in dealing with disclosure in volume cases more seriously, no improvement will result in the likelihood of a fair trial can be jeopardised”.


The report set out a number of recommendations. It was six months to the day that the report was published, and various things should have been done within six months.

I therefore very much hope that the Minister will obtain from each chief constable and each chief crown prosecutor what has been done. We can no longer continue this failure of accountability. There is a very broad issue to which the noble Lord, Lord Beith, referred about the accountability of the relationship. Time does not permit that but what we must surely do is to have concrete action on the accountability of chief constables, who really are not accountable for this matter, and much closer scrutiny of what is happening in the CPS. I very much hope that the Minister will undertake this task and put before the House the responses of the chief constables as to what they have done. It is a disgrace—I do not use that word lightly—that this problem has been left unresolved for so long.

Bach Commission: The Right to Justice

Lord Thomas of Cwmgiedd Excerpts

Thursday 14th December 2017 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

I too welcome and commend the report of the noble Lord, Lord Bach, and his commission, and in particular the detailed appendices produced by Sir Henry Brooke, which will well repay detailed analysis by Her Majesty’s Government. However, I must declare an interest in doing so as I am chairing a commission on justice in Wales, where one sees typical examples of social deprivation in industrial and agricultural societies, and serious problems with legal aid. I therefore warmly welcome the report and the ideas contained in it.

It is only fair, as the commission itself acknowledges, to acknowledge what the Government have done in their investment in digital technology. There is no doubt at all that we need continued and strong investment because artificial intelligence and the proper use of digitalisation in the courts can make an enormous difference. Sir Henry has seen this at first hand. It is also important to acknowledge that that investment must go forward because without it, I do not see how the finances will permit the investment in legal aid and advice that is absolutely essential. I therefore very much hope that the Government will bring forward the Bill on the courts, which was lost at the last election. The Bill is vital, and it is very disappointing that it has been delayed so long.

I wanted to acknowledge that contribution before saying that it is obvious what effects, which many have not made clear, the cuts on legal aid have had—not only on the disadvantage of which the noble Lord, Lord Low, has spoken but in the effect on the courts in the longer time that cases take. As my noble and learned friend Lord Phillips said, there is a huge recourse to judges becoming those expert in an inquisitorial rather than adversarial system. There are also the delays that have occurred right across the court system, up to the Court of Appeal. There is a serious problem that has to be grappled with.

The commission itself is a good idea but I agree with the noble Lord, Lord Faulks, that there is a political issue behind this because judges cannot become involved in the financing of the court system. It is very important that we address that fundamental problem. As was apparent from the questions this morning in the debate on issues relating to the probation service and the huge overcrowding of our prisons, justice has an integral budget. Certainly in the time that I was a judge and responsible for aspects of the administration of justice, financial pressures in another part of the justice Ministry always had a serious effect on other parts. I respectfully urge that we address the whole question of financing the justice system. How much should litigants pay and how much should the state pay? That question goes right across it and cannot be left to judges. Subject to that political issue being resolved where it should be, which is in this House, I warmly commend the proposals made. I very much hope that they can be taken forward and that we can have a proper integrated look at the whole of the justice system.