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

Baroness Chakrabarti Excerpts

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

Moved by

[Baroness Chakrabarti]

1: 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 (Lab)]

My Lords, I believe we have some settled agreement in your Lordships’ House on the constitutional system we serve, which is still much admired around the world. In that system, notwithstanding the peculiarities of your Lordships’ revising House, accountable primary legislators make our laws and independent judges apply them.

I fear that we have been lulled into a false sense of security on this so-called mouse of a Bill. We have been encouraged to wave it through your Lordships’ House without much of a squeak, but I fear none the less that it breaches the crucial distinction I just attempted to set out. It attempts to sneak through principal changes that, in my view, constitute a double delegation of legislative powers to unaccountable judges by way of the procedure rule committee—and ultimately not even to judges because in my experience, government lawyers will draft those rules, which will pass on the rule committee without much by way of amendment.

Secondly, judicial powers are to be delegated to non-independent courts and tribunal staff. The procedure rule committee is primarily made up of senior judges. That would ensure relatively little external public scrutiny of this delegation of judicial functions to non-judicial staff, to employees of Her Majesty’s Courts and Tribunals Service. It is vital that Clause 3, which delegates judicial functions to authorised staff, is understood in the context of a much wider court reform agenda, and the significant austerity measures—because austerity is not quite over yet—that sit behind this.

Efficiencies generated by the proposed reforms will arise not only through the reduction of the court estate but through savings on judicial salaries. The Government’s Queen’s Speech promised a programme of reforms that would transform the way the United Kingdom justice system operates. Unlike last year’s Prisons and Courts Bill, which dealt with these proposed reforms head on, the courts and tribunals Bill is the beginning of a slower legislative drip-feed process. There has been no adequate parliamentary scrutiny of this broad programme of expensive modernising measures—even by the Justice Committee—nor indeed of the associated court closures and staff cuts.

The Bill currently provides that regulations under Clause 3 shall be made under a negative resolution procedure. This would allow for new rules of court stipulating which judicial functions may be delegated and to whom, and an authorised person’s requisite qualifications or experience to take on those judicial functions. As the Bill stands, this delegation will come into force without any real parliamentary scrutiny. By providing that the regulations in the Bill be made under the negative resolution procedure, the Government are once again seeking to avoid proper scrutiny by democratically mandated legislatures, principally the other place. This amendment, supported by the Bar Council, attempts to ensure more constitutionally appropriate accountability and scrutiny, through at least the affirmative resolution procedure, of the potentially sweeping regulations to be made under Clause 3. Those regulations concern powers to make rules stipulating which judicial functions may be delegated and to whom, alongside appropriate stipulations regarding the qualifications or experience required before this member of the administration—potentially quite a junior member of Whitehall staff—be given these judicial functions.

As the noble Lord, Lord Pannick, who I see in his place, pointed out in Committee:

“The power which the Secretary of State or Lord Chancellor is being given”,


under the clause,

“includes a power to make ‘consequential provision’”.—[Official Report, 10/7/18; col. 878.]

Despite the Government’s promise to give further consideration to the issue during the previous debate, they seem to have offered only the assurance that the power will be limited to changes to statutory instruments. If that is the assurance, why should it not appear in the primary legislation? As a legislator, that seems an assurance worth having.

At Second Reading, the Minister said in response to concerns expressed about the lack of consultation and scrutiny of this ambitious reform programme 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.]

I once more respectfully disagree with that constitutional analysis, for to my mind the role of the legislative process is most certainly in part to review government policy and to restrain executive action, particularly when that policy has the potential—just the potential—profoundly to impact on our justice system. Without careful scrutiny and additional safeguards, the Government’s drip-feed might erode some of our most fundamental institutions and our understanding of the rule of law. The safeguards that we are calling for on the powers created by this Bill are not unreasonable, or seeking to wreck the fundamental notion of reasonable delegation of non-contentious administrative functions. They are minimal if we consider that provisions in this so-called uncontroversial Bill have the potential profoundly to impact on our justice system. The relatively unrestrained double delegation of legislative and judicial powers that the Bill encourages is a slippery constitutional slope that we can, and ought to, resist.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, since Committee on 10 July there have been meetings and extensive correspondence with the noble and learned Lord’s department. The question arises on this amendment as to what is the ambit of the power. If it were as described by the noble Baroness, Lady Chakrabarti, one would have considerable sympathy with the amendment—indeed, I do have sympathy with it, but it needs a little more analysis.

When serving on the Delegated Powers and Regulatory Reform Committee, as I did for some years, we were astute always in not ruling out a negative resolution procedure in cases where the power was strictly limited, but insisting on an affirmative resolution where it was not. In the analysis that we have conducted I have been very grateful to the Bill team, and in particular to the Bill manager, Dominic Smales, for the careful and thorough way in which he in particular responded to my persistent and probably rather troubling questioning. What has concerned me is Clause 3(1), to which the noble Baroness referred, which states:

“The Schedule provides for authorised court and tribunal staff”—


it is subsection (b) that worries me—

“to exercise judicial functions where procedure rules so provide”.

The phrase,

“where procedure rules so provide”,

is important.

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[Baroness Chakrabarti]

I am grateful to the Minister for his answer and to other noble Lords for their interventions, particularly the comments of the noble and learned Lord, Lord Judge, and the noble Lord, Lord Pannick. I set out my broad concerns about the Bill, but I want to be distinct about this amendment in particular. I think that it was worth asking the Minister to set out in some detail not only the Government’s intentions in relation to this power but their view of the power, what they are able and not able to do and the fact that they are not able under this power to amend primary legislation. With that firm statement of belief on the law around this power and the intention, I am grateful to the Minister and happy to beg leave to withdraw the amendment.

Amendment 1 withdrawn.

Moved by

[Baroness Chakrabarti]

2: After Clause 3, insert the following new Clause—
“Review of the delegation of legal advice and judicial functions to authorised staff
(1) Within the period of three years from the coming into force of this Act, the Lord Chancellor must arrange for a review to be undertaken on the impact of the implementation of the provisions contained within section 3 and the Schedule to this Act.(2) A report setting out the findings of the review must be laid before both Houses of Parliament.”

[Baroness Chakrabarti]

My Lords, this amendment would ensure that within three years of the coming into force of the Act the Lord Chancellor must arrange for a review of the impact of the implementation of its provisions, including provisions within what would by then be Section 3 and the Schedule. The report would have to be laid before both Houses of Parliament. We should bear in mind the potential perils of justice reforms without sufficient research, consultation and subsequent evaluation.

I hope noble Lords will forgive me reminding your Lordships’ House of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The Public Accounts Committee made clear that, in bringing forward that legislation, the Ministry of Justice had not properly assessed the full impact of those reforms. That impact has proved devasting for some of the most vulnerable in our society who, as a result of that reform and those cuts, have almost been shut out altogether from the legal aid system of which we were once so very proud.

We are still awaiting the much-anticipated review of the operation of LASPO required after three to five years of implementation in 2013. The hope for the many thousands of people who have been locked out of our justice system due to the withdrawal of legal aid is that a sober assessment of LASPO might precipitate reform and recognition of the need to reverse some of the more destructive elements of that legislation. The Bach commission report—conducted by my noble friend Lord Bach—made many recommendations for reform, but we continue to wait for the Government to deliver on that statutory obligation to review and report.

The fact that the LASPO review has been delayed makes such mechanisms no less vital. For the same reasons of accountability and adequate evaluation of reform, we are seeking to ensure that this Government are obliged to assess and report on the impact of the reforms to our court system proposed by the Bill. The Bar Council has also expressed support for this amendment. I beg to move.

[Baroness Vere of Norbiton (Con)]

My Lords, this amendment would require the Lord Chancellor to arrange a review of the impact of the authorised staff provisions within a period of three years of the Act coming into force. As the impact assessment for these measures states, we will work closely with the rule committees and the senior judiciary to monitor the impact of any future assignment of functions and responsibilities to authorised staff. HM Courts & Tribunals Service is also committed to evaluating and testing the impacts of the reforms to courts and tribunals.

As noble Lords will be aware, the majority of the authorised staff provisions in the Bill are not new. Within the civil and tribunals jurisdictions, and in the magistrates’ courts and family court, staff can already be authorised to undertake a variety of judicial case management responsibilities. The exercise of judicial functions by staff is already kept under review. For example, earlier this year HMCTS conducted a review of the work of tribunal caseworkers two years after the role was created. We would expect the rule committees and the senior judiciary to continue to keep these provisions under review across the jurisdictions as they feel necessary, drawing on their relevant expertise to do so. We would expect the rule committee meeting minutes where authorised staff are discussed to be published where it is in the public interest to do so.

Where we are extending these provisions to a new jurisdiction—namely, the Crown Court—we expect the Criminal Procedure Rules Committee to conduct a review along the lines of those undertaken in other jurisdictions. It is right that the committee conducts the review; it is independent of government and its membership includes judges, lawyers who practise regularly in criminal courts and representatives of voluntary organisations with a direct interest in the work of the criminal courts. It is therefore very well placed.

The noble Baroness, Lady Chakrabarti, asked for more information about recent reforms. We are already committed to evaluating and testing the impact of our wider package of reforms to the courts and tribunals system. That evaluation will be published in due course.

The amendment is at best an unnecessary duplication of effort and resources. I hope I have been able to provide the noble Baroness with the appropriate assurance that the authorised staff provisions will continue to be kept under review in all jurisdictions. I trust that she will now feel able to withdraw her amendment.

[Baroness Chakrabarti]

I am grateful to the Minister for that. I am grateful that there is a continuing commitment to evaluate such reforms in future, notwithstanding the lack of evaluation of LASPO to date. Once more I feel that the fact that she has made that commitment in your Lordships’ House should give me and others some assurance, and we must make sure that we follow up on that assurance in due course. With that in mind, I beg leave to withdraw the amendment.

Amendment 2 withdrawn.

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Moved by

[Baroness Chakrabarti]

3: 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”

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[Baroness Chakrabarti]

My Lords, I shall also speak to Amendments 4 and 6, which are consequential. These amendments in aggregate stipulate that authorised persons must have the following bare minimum legal qualifications: that they be a qualified solicitor, barrister or chartered legal executive with more than three years’ experience post-qualification, as recommended and drafted by the Law Society and supported by the Bar Council. This is a very minimal ask of the Government in the circumstances. It is a lower qualification threshold than is currently required for pupil supervisors or for solicitors to supervise an office.

Authorised staff who are not subject to the training, experience, ethos and oaths of professional judges could be performing judicial functions and employed directly by HMCTS. Even the concept of such delegation, as I said earlier, raises questions of independence. There is legitimate concern that they would inevitably be subject to administrative pressures—for example, meeting targets in a very difficult fiscal climate—and potentially subject to political pressures as well. Without some reasonable limit on who can be authorised, this delegation has, as I said, the potential—perhaps just the potential, but the potential none the less—to change an essential aspect of our judicial system.

I acknowledge that the relevant procedure rules committee will set out procedural requirements about who is empowered to carry out those procedures, but, as we have heard, the committees are made up predominantly of senior judges. This marks a growing trend towards forcing a judiciary that is already bearing the brunt of cuts to the MoJ’s budget also to have to mark its own homework. This has implications for the rule of law and for the independence of judicial decision-making. We also argue that such a shift may well fall short of reasonable expectations held by members of the public about the level of experience and independence of those charged with making judicial decisions—not least about their fundamental rights.

The draft Authorised Court Staff Qualifications Regulations which have been offered in response to those concerns offer only that authorised persons are legally qualified solicitors or barristers. The Bill policy statement provided by the MoJ states:

“We do not expect legal qualifications to necessarily be required for all the different types of judicial functions that authorised staff will carry out”,


so that assurance does not go very far. The Opposition, along with key stakeholders—in this case, the Law Society and the Bar Council—are clear that further qualification is necessary for authorised persons adequately to take on judicial functions of whatever magnitude and that minimum requirements ought to be included in the Bill.

I note that the Minister previously pointed out that three years’ post-qualification experience sets the bar higher than that currently required of assistant justices’ clerks, who currently tend to legal advice within magistrates’ and family courts. However, assistant justices’ clerks are not currently performing judicial functions. If the object here is to provide uniformity to the practice of delegation across all courts and tribunals, surely we should set the bar at least three years PQE.

One has to ask whether the reluctance on the Government’s part to set minimum qualifications just a little higher than nowhere is not due to fiscal concerns about HMCTS staff salaries. Once again, the Government are asking the public—on this occasion, users of our courts and justice system—to bear the burden of austerity, which we have only just been told is over. I beg to move.

[Lord Marks of Henley-on-Thames]

My Lords, the noble Baroness has opened our debate on the amendment with considerable eloquence and a beguiling argument. We have approached the question of whether an authorised member of staff needs to be a qualified lawyer of stipulated experience with an eye on what the extent of the delegated powers of authorised persons would be. In particular, the concern that I expressed in Committee was that the delegated powers should not extend to taking away a person’s liberty, or to ejecting a person from his or her family home, or the family from that home, or to granting an injunction or an order for preserving evidence, which can have far-reaching consequences, or authorise searches of private premises.

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[Baroness Chakrabarti]

Once again, I am grateful to the Minister and other noble Lords for that interesting and illuminating discussion. I would like to take this opportunity to welcome the noble and learned Lord, Lord Garnier. He is a first-rate lawyer, judge and parliamentarian, and I have no doubt that he will make many important contributions in your Lordships’ House.

The noble Lord, Lord Marks, nailed the basic thrust of the objections to this group of amendments: they fly in the face of efficiency and cost savings. Less was offered, I am afraid, by way of reassurance as to the quality of justice that the public may look forward to as a result of this Bill.

As always, I am grateful to the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss, for pointing out the slight anomaly that legal advisers to the judiciary need not be qualified lawyers. That is perhaps a little strange, and points to the underlying motive behind this draft legislation.

Anyone who has spent any time in a magistrates’ court will realise that very serious decisions about people’s lives are made in that jurisdiction, under a great deal of pressure. Therefore, I do not share the relaxed approach to the training and qualifications required to be a legal adviser to lay magistrates or justices of the peace. None the less, I do not want to trouble your Lordships’ House with a Division that is doomed due to lack of support from the noble Lord, Lord Marks. So, with a somewhat heavy heart, I beg leave to withdraw my amendment.

Amendment 3 withdrawn.

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[Lord Marks of Henley-on-Thames]

My Lords, the noble and learned Lord has indicated that we support these amendments, and indeed they respond to concerns that I raised. I indicated in Committee, and in discussion and correspondence with the department since, that I did not see the need to restrict the ambit of delegated functions in a way that could prevent authorised officers extending time for the service of documents, or making consent orders of a procedural nature in substantial civil claims.

However, I was extremely concerned that an authorised officer should not have the power to: make orders taking away the liberty of the subject; make a possession order that would have the effect of depriving someone, or their family, of their home; take the serious steps and risk the far-reaching consequences of granting injunctions; or make orders to preserve evidence—which, as I said earlier, could involve searches of private premises.

I am very grateful to the noble and learned Lord, and to the Bill team, for their consideration and acceptance of the principles I have made. Amendments 5 and 12 respond fully to our concerns and we support them.

[Baroness Chakrabarti]

My Lords, as far as I am concerned, this is the good news in this afternoon’s proceedings. I am very grateful to the Government, assisted by the noble Lord, Lord Marks, for responding to some of the gravest concerns about the gravest decisions that ought not to be delegated to non-judicial persons. I have been trying to suggest that there is an ocean of difference between purely procedural decisions and those that could have, for example, the effect of depriving an individual of their freedom. Without limits on who can be authorised, and what powers can be delegated, measures such as those that we have been discussing could have a very profound effect on the nature of our judicial system. Such a profound change really requires proper scrutiny by parliamentarians.

The stated intention of the policy is to improve the efficiency of the Courts Service by diverting judges’ time from routine tasks, to allow them to focus their time and expertise on more complex matters. Matters of personal liberty and of people’s homes should surely be considered in that higher order of decision-making. That is why I am particularly grateful for having been heard by both the noble Lord, Lord Marks, and by the Government, in relation to concerns raised at earlier stages and in discussion.

While it is almost impossible to create a definitive or exhaustive list of appropriate judicial functions for delegation, covering each tribunal and eventuality—particularly as these roles cover a broad range from the administrative to the determinative, depending on the jurisdiction—we can surely all agree that functions that might deprive a person of their home or their liberty are never appropriate for this kind of delegation. These particular limitations really are the bare minimum. It is worth noting that, in his civil courts structure review, Lord Justice Briggs drew the line at caseworkers making any dispositive decisions, which he saw as being a purely judicial role.

All delegated functions in the civil jurisdiction are routine case-management functions, and are often confined only to cases where all parties consent. Legal advisers do not currently make decisions that represent a final determination, and a party may request a reconsideration of any decision of a legal adviser within 14 days of being served a notice of that decision. Are these not reasonable restrictions to have been placed on delegated functions in criminal proceedings? The MoJ’s own factsheet on delegation to staff says that delegated decisions are unlikely to involve contested matters. In addition to concerns around transparency, there is a danger that efficiencies gained by delegating case management decisions will be lost if the court has to reconsider these decisions at a later stage in the process.

I give the Government due credit for having gone some way towards addressing real concerns raised at the Lords Committee stage with an amendment that prohibits the delegation of decisions affecting people’s homes and personal liberty. We wholeheartedly support these government amendments, which are very welcome; none the less, they highlight the potential hidden dangers in an apparently benign Bill.

Amendment 5 agreed.

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[Lord Keen of Elie]

One obvious example is the issuing of a summons. Such persons issue about 2.5 million summonses at the instigation of public authorities each year. If every one of those applications for a summons was the subject of judicial reconsideration, with the kind of time limits alluded to in Amendments 8 and 11, the delays involved would be enormous. There are other means by which, in due course, a party may seek to challenge the issuance of such a summons. I take that as one clear example of where it would not be appropriate for there to be judicial reconsideration.

[Baroness Chakrabarti]

My Lords, I shall speak to Amendment 8 and to Amendment 11, which is consequential, both of which were drafted by the Bar Council.

Clause 3 and the Schedule to the Bill provide for judicial functions to be delegated to authorised staff across the criminal, civil and family courts and tribunals. This would allow decisions that are currently made by independent judges to now be made by employees of Her Majesty’s Courts & Tribunals Service. The Bill provides that authorised staff will be independent of the Lord Chancellor when carrying out these delegated judicial functions, but they will remain court staff and will not take the judicial oath of independence.

Amendments 8 and 11 would ensure that a party to any decision made by an authorised person in the execution of relevant judicial functions or of a tribunal—by virtue of Section 67B(1) or 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.

A statutory right of reconsideration allowing any party to a decision by an authorised person to have that decision reconsidered by a judge was recommended by Lord Justice Briggs in his 2016 report Civil Courts Structure Review: Final Report. That right is currently already provided for, for example, in the tribunal procedure rules. Lord Justice Briggs said:

“The creation of an extensive right to have the decisions of Case Officers considered 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 consideration has the benefit of freeing an authorised person from the obligation to produce detailed reasons for every decision, as would be the case if the right of appeal were, for example, created. It is important to point out that this consideration on the papers by a judge is not the same as a full right of appeal. It has the additional benefit of going further than a right of review, guaranteeing judicial oversight of a decision which a right of review would not ensure.

Crucially, this statutory right would also ensure compliance with Article 6 of the European Convention on Human Rights—the right to a fair trial—surrounding decisions affecting people’s rights by an independent and impartial person, which is not a member of court staff. It is a proportionate safeguard relevant to the new powers created by the Bill. Your Lordships are aware that Article 6 provides that the determination of a person’s civil rights and obligations or any criminal charge against them must be undertaken by an independent and impartial tribunal established by law.

The requirements of independence apply not only to the tribunal but also to any judge or other officer authorised by law to exercise judicial power. As the Ministry of Justice acknowledges in its memorandum on the Bill,

“In considering independence, … guarantees against outside pressures are relevant – as is the question whether the body presents an appearance of independence”.


In that human rights memorandum, the MoJ suggests that it is intended that,

“case management decisions which it is proposed these authorised members of staff will be able to take will be uncontentious and not of sufficient importance to engage Article 6”.

However, case management decisions can have a significant impact on shaping the issues, progress and ultimate outcome of the case. For example, a decision on the appropriate timescales within which a party should take a step in proceedings may be significant, as failures to comply with that timescale can subsequently lead to some or all of the party’s case being struck out.

Furthermore, the Ministry of Justice’s fact sheet on the delegation of functions to non-judicial staff states:

“In future, we expect that authorised staff will be able to carry out a range of functions and responsibilities, including case management powers and some mediation roles”.


This suggests that it is envisaged that such staff will have a role beyond merely making non-contentious decisions on purely procedural matters in future.

The Government’s welcome amendment excludes some functions from delegation, but there are still others that may be significant to the progress and outcome of an important case. Such functions—for example, the issuing of an arrest warrant to secure a person’s attendance in court—can still be delegated to non-judicial staff.

In Committee, the Minister argued that a blanket right to reconsideration across all jurisdictions will not work in practice, as it will add significant cost and delay to the process on the basis that a dissatisfied party will inevitably apply for reconsideration by a judge, thereby negating the benefits of delegating decisions to staff. However, this objection was dealt with by Lord Briggs in his Civil Courts Structure Review: Final Report. He accepted that,

“an unfettered right of reconsideration will be a necessary long-stop”.

He also cited evidence from real-life precedents, suggesting that where such a right exists elsewhere, the number of reconsideration applications is low. Surely that should continue to be the case, particularly if, as the Ministry of Justice suggests, the decisions being made by authorised staff are properly non-contentious.

The Government’s concession, placing an obligation on the relevant rule committee to consider a right to judicial reconsideration for delegated functions, does much less to satisfy our concerns than their concession on delegated functions themselves, such as the safeguard in relation to a person’s liberty in their home. In fact, the Government’s concession here replicates the fundamental problem with the effect of the Bill. Placing the obligation on the rules committee, which ultimately does not have the budget to fund the Courts Service, delegates a legislative duty to an unaccountable body.

We on this side of your Lordships’ House strongly believe that Parliament has a legitimate role in ensuring that the new system of delegation proposed in the Bill includes a backstop protection for the right to a fair trial. Consequently, I urge noble Lords to support our amendments, which have already been endorsed by the Law Society, the Bar Council and the Equality and Human Rights Commission. They propose a statutory right to judicial reconsideration for any party to a judicial decision made by an authorised person, or non-judge. This would afford stronger protection for the right to a fair trial and guarantee the independent and impartial determination required by Article 6.

[Lord Marks of Henley-on-Thames]

My Lords, in Committee I spoke in favour of a blanket right to judicial reconsideration of all delegated decisions of authorised persons, much along the lines suggested just now by the noble Baroness, Lady Chakrabarti. During the debate, and after I had spoken, I was gently chided—if I may put it that way—by the noble and learned Lord, Lord Neuberger of Abbotsbury. He said that he sympathised with my view, stating that,

“the idea of a decision being made by a non-judicial person and not being referable to a judicial figure is inconsistent with justice”.

However, he went on:

“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”.—[Official Report, 10/7/18; col. 890.]


I stress, as has been stressed before, that rules made by the rule committee have to be laid before Parliament, and are subject to annulment if Parliament so decides. The question is, then: how far do the amendments tabled by the Government in this group ensure that a right of judicial reconsideration will apply, when such a right ought to apply?

The noble and learned Lord, Lord Keen, suggested meeting the need to provide for judicial reconsideration by introducing requirements for the rule-making bodies to consider and work on the judicial reconsideration specific for each type of function. Amendments 7 and 13 reflect the Government’s thinking on that. The rule-making body will first have to consider and decide whether rules delegating functions should, in respect of each delegated function—that is important, because they are function-specific—include a right to judicial reconsideration. Secondly, if the rule-making body considers that the rules should include such a right, that body will be compelled to include it, so the right will stand. Thirdly, if the rule-making body considers that the rules should not include such a right, the body should be compelled to inform the Lord Chancellor of its decision and reasoning. Not only are these function-specific arrangements, but they meet the point that there would be no judicial reconsideration.

I was initially concerned when I saw these amendments that they would stop there, without providing for what the Lord Chancellor should do when informed of a decision by a rule-making body not to include a right to judicial reconsideration. But the Lord Chancellor has the power to require rules to be made. It seems to me that if the Lord Chancellor is of the view—being answerable to Parliament and having to lay rules before it—that a rule-making body is wrong in failing to provide for judicial reconsideration, he may be expected to require appropriate rules to be made. That is enhanced by the fact that, if he decides that they are right, he will have to come back to Parliament and say so. In my view, that meets the point made by the noble and learned Lord, Lord Neuberger, while providing for the introduction of rights to judicial reconsideration and delegated decisions where appropriate.

I do not see that there is a contravention of Article 6 simply because a judicial decision is delegated to an authorised officer. That would be a matter of consideration of the particular function and delegation and the presence of a right of appeal. A decision taken by someone who is not a judge is not necessarily a decision by a non-independent party. Indeed, in private litigation between parties, I can see no reason why a decision by an authorised officer should not be a decision by an independent party compliant with Article 6.

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Moved by

[Baroness Chakrabarti]

8: 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, once more I am grateful to all noble Lords who have contributed to the discussion, which once again highlighted the fundamental differences on the principles in this Bill between some of us on each side of this House. I have tried hard not to be completely disruptive to the idea that certain, non-contentious, administrative decisions might be delegated as part of modernising the justice system in the 21st century, but I have heard no satisfactory response to the recommendations by Lord Justice Briggs.

These judicial decisions that will be delegated will be uncontentious or contentious. If it is the latter, Article 6 rights are engaged and, with the greatest respect to the noble Lord, Lord Marks, I cannot see how junior members of court staff—potentially not even three years post-qualification in their legal experience, and employed by the Government—are going to be independent and impartial for the purposes of satisfying Article 6.

The assurance that I am given in response to this concern is that I should put trust in the rule committees to make judgments about which decisions that have been delegated to these junior staff should and should not be subject to reconsideration by a judge. My concern is that the rule committees will be under the same pressure that the judiciary is under in relation to all this. It is a pressure with which I sympathise and which has been reflected eloquently in contributions to this debate by noble Lords and noble and learned Lords in particular.

At the end of the day, the rule committees do not have the access to the budget that would make it possible to ensure reconsiderations where they are required. Therefore, it seems rather unfair to put the pressure on the committees. The committee may feel that it has no choice because it cannot fund a system of adequate judicial consideration, which is because it cannot fund an adequate justice system in this country. That is not a state of affairs that I believe your Lordships’ House would want to sanction. With that in mind, I beg to move and seek to test the mood of the House.