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.