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

Baroness Vere of Norbiton Excerpts

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

[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.

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[Baroness Butler-Sloss (CB)]

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

[Baroness Vere of Norbiton]

My Lords, these amendments relate to two elements of the Bill. Amendments 3 and 4 require that any authorised person who gives legal advice to lay judges or judges of the family court must be legally qualified and have more than three years’ experience post-qualification. Amendment 6 makes the same requirement of staff carrying out judicial functions.

The qualifications for staff giving legal advice have been set out in regulations since 1979. They remain substantively the same today: broadly, one must be a barrister or solicitor or have passed the necessary exams to become one. The qualifications will continue to be set out in regulations and subject to parliamentary scrutiny. We are not proposing any changes to that process. Allowing qualifications to be set out in regulations has not resulted in a lowering or lessening of this bar. Amendments 3 and 4 would, however, raise it to a height that is unnecessary and could adversely impact on the diversity of legal experience in our courts.

In our draft regulations, which we published ahead of Committee stage, we are proposing to take the opportunity to modernise the qualifications required for legal advisers by adding to those eligible to give legal advice fellows of the Chartered Institute of Legal Executives—CILEx—and those who have passed the necessary exams to be fellows. The addition of CILEx fellows highlights the danger of all three of these amendments. Prescribing qualifications on the face of the Bill means that, should an alternative route to legal qualification emerge, adding this qualification to these provisions could only be achieved through primary legislation.

I turn to the point raised by the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss, about Amendment 3. One might be in a circumstance where a judge would need advice from somebody with less than three years’ qualification. It may be exceptional—for example, a judge might reasonably ask for advice on procedure. Legal advisers must know, understand and apply the law, and advise judges and magistrates accordingly. The bar we have had in place for almost 40 years has worked perfectly well, and our current legal advisers are providing an excellent service.

Requiring three years’ post-qualification experience would restrict the avenues through which people can qualify as lawyers and would also exclude experienced legal advisers. Amendment 6 takes a similarly one-size-fits-all approach, but for the qualifications needed for staff to exercise judicial functions. The difficulty with this is that it does not allow for a variety of qualifications to mirror the variety of tasks that staff may carry out. I stress that the exercise of judicial functions by authorised staff is not new anywhere but in the Crown Court. Courts and tribunals staff already carry out judicial functions in the Court of Appeal, magistrates’ courts and family courts, as do registrars and caseworkers in the tribunals. Some of these staff are legally qualified; others are not. For example, there are specialist registrars in some of the tribunals, such as the tax tribunal, where tax specialists are not legally qualified. Their qualifications depend on the work they are carrying out—as in any job—and many of them already exercise the jurisdiction of our courts on a daily basis.

As my noble and learned friend Lord Keen said in Committee, the kinds of tasks authorised staff already carry out—and could undertake more of in future—are largely preparatory or interlocutory. These staff support the progression of cases: getting things ready for court and working out what the court should do. Their work will ensure that hearings and trials are as effective as they can be and that our courts, tribunals and resources are put to best use.

Perhaps that goes some way to answering the question from my noble and learned friend Lord Garnier about the sorts of roles these authorised members of staff will undertake. It is right that we have sought to carve out those roles that we feel they should not undertake. However, the number of roles they could undertake is extremely broad. The level of qualification that staff need should vary according to the work they do. The Bill allows the procedure rule committees to set the requirements as to the qualifications or experience of authorised staff exercising judicial functions. This is the right approach. The committees are best placed to assess the requirements for their jurisdictions in light of the functions that they permit authorised staff to carry out.

Amendment 6 would require that someone carrying out the simplest of tasks, such as changing the start time of a hearing, must be a qualified and experienced lawyer. This is plainly unnecessary. The judiciary is ultimately responsible for authorising court and tribunal staff to exercise judicial functions, and will do so only if satisfied of their competence. An applicant’s formal qualifications will be checked before appointment, and their judgment, skills and knowledge assessed by a supervising judge or senior lawyer before any authorisation can take place.

For the reasons that I have set out, I hope that the noble Baroness, Lady Chakrabarti, will feel able to withdraw her amendment.