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

David Gauke Excerpts

2nd reading: House of Commons
Tuesday 27th November 2018 Commons Chamber

[The Lord Chancellor and Secretary of State for Justice (Mr David Gauke)]

I beg to move, That the Bill be now read a Second time.

It is a great pleasure to move the Second Reading motion. It is possible that in Westminster at the moment other matters are catching Members’ attention and that the focus of the House has not been sufficiently on the Bill, but I am delighted to have the opportunity to move the motion. The Bill has already been considered in the other place and takes an important step forward for our courts system.

Our judiciary, together with our courts and tribunal service, are rightly regarded as among the finest and most independent in the world. However, the way our courts and tribunals work cannot stand still. They must be able to meet the demands of delivering modern-day justice, meet the needs of the society they serve, and administer justice in the most effective and efficient way.

The justice system must work for all those who use it, as well as for the judges and legal professionals who work in it. That means realising the huge potential of new technology and the law tech revolution to improve people’s experience of and access to the justice system and to open up new routes to justice. It is certainly my determination that the UK should be seen as being at the forefront of adopting new technology, whether in our courts and tribunal system, which is the issue before us today, or more widely, with legal professionals making use of technology. That is one of the reasons that we have instituted a law tech committee, led by Christina Blacklaws of the Law Society, which is designed to take us forward in that area. It is an important part of what we need to do.

[John Howell (Henley) (Con)]

My right hon. Friend may be aware that I did an Industry and Parliament Trust fellowship in the law with judges, and my experience of the different courts I went to showed the enormous gap between the commercial courts, which were technologically very superior, and the tribunal system, where we might as well have been using a quill pen. Is this reform going to solve that problem?

[Mr Gauke]

Our court reform programme as a whole, which I will come on to, will ensure that we use technology wherever possible. It is right that we embrace that. The Bill is part of the process—it is not all of the process—that will ensure that we modernise. I have cited in the past ways in which artificial intelligence, for example, is being used within the legal profession. An example I have given is a case where AI was used to check a number of contracts to spot potential errors. The rate of success of the AI was somewhat better than that of the experienced lawyers, and if I remember rightly the task was done in 26 seconds rather than 92 minutes. I make that point to illustrate the opportunities in terms of technology and the law.

[Alex Chalk (Cheltenham) (Con)]

Innovation and modernisation are vital, but will the Secretary of State take this opportunity to recognise that the single most important strength of our judicial system is the judiciary who work in it and that everything must be done to ensure that we have a broad pipeline of talent so that they continue to be the best in the world?

[Mr Gauke]

I very much agree. We have a judicial system that is widely respected around the world for its independence and excellence, and that must long continue. I suspect that my hon. Friend is hinting at the question of how we can get more outstanding candidates to apply to the judiciary. It is right that we should address that challenge. He is right to suggest that this is one of our strengths as a country. It will be important in the years ahead as we leave the European Union that our legal system should continue to be widely respected. I believe that there are great opportunities for the UK to become even stronger as a legal centre, and I am keen for that to happen.

[Robert Neill (Bromley and Chislehurst) (Con)]

Will the Secretary of State give way?

[Mr Gauke]

I will certainly give way to the Chair of the Justice Committee.

[Robert Neill]

The Secretary of State makes an important point about the balance that needs to be struck in these areas. He has given an example of the use of artificial intelligence being appropriate for the checking of documents, and work on dealing with disclosure parameters has already been successfully piloted by the Serious Fraud Office. Would he concede that there is a distinction to be drawn between those essentially transactional but important operations, such as disclosure searches, and the application of human judgment that should be brought to, for example, a charging decision by the SFO? Does he agree that any determination of the facts or issues of a case should clearly be done by a human judge, having heard the arguments, and that their workload could be slimmed down but not replaced by the use of AI?

[Mr Gauke]

I agree. I note that my hon. Friends are all quick to make the case for the importance of the skilled human being in these circumstances, and rightly so. We must remember that technology is our servant and not our master.

I make these points because our court reform programme is being undertaken in the context of an embracive technology and the Bill is an aspect of that programme. I will digress no further because it is not essentially a technology-based Bill. However, to follow up on the point made by my hon. Friend the Member for Bromley and Chislehurst (Robert Neill), the importance of skilled individuals will continue to be key, and the Bill will ensure that the time of our most skilled individuals—our judges—is deployed as efficiently as possible.

[Nigel Huddleston (Mid Worcestershire) (Con)]

I have to say that innovation and modernisation are not normally things that we associate with our courts. Given the feedback that has already come in on things such as making responses on juries online, does my right hon. Friend agree that this is not only useful to the courts but makes life easier for the public?

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[Mr Gauke]

Absolutely; that is a key point. Perhaps my hon. Friend has set my Department the challenge of ensuring that people associate the modernisation of technology with the court system. We will know that we have succeeded when he tells us that that is the case. He makes the strong point that this is ultimately about delivering justice. We need to have strong support for the process involved and ensure the satisfaction of those who need to resolve a dispute or to undertake a process. The early signs from our work with online divorce processes are encouraging, and the feedback has been very positive.

[Liz Saville Roberts (Dwyfor Meirionnydd) (PC)]

I rise as the co-chair of the Justice Unions Parliamentary Group. I am interested in what the Secretary of State is saying about artificial intelligence, but it seems to me that one of the driving forces behind the Bill is not necessarily to improve the administration of justice but to cut costs by pushing workloads down the grades so that staff will be taking on additional work above their current grade without additional remuneration. Surely he should recognise that making savings in the application of justice comes at a cost to staff and to the public’s experience of justice.

[Mr Gauke]

I do not think that the hon. Lady is correct in the association that she makes. The reality is that we have to ensure that our resources are deployed as efficiently as possible. That is to the benefit of the system as a whole. I will make the case in more detail as to why the steps taken in the Bill to give authorised staff greater responsibility to undertake some roles that they are currently unable to undertake will be to the benefit of the system as a whole. I make no apology for wanting to find efficiencies within the system, but this is in the context of a £1 billion court reform programme. Those efficiencies can improve the experience of the users of the system, and could also ensure that judges will be able to use their time in the areas that are most useful to them. Indeed, the experience of authorised Courts and Tribunals Service staff will be a more positive one, as they will be able to make a greater contribution to the efficient running of the court system.

[Simon Hoare (North Dorset) (Con)]

Setting aside the whys and wherefores of the Bill, may I invite my right hon. Friend to confirm from the Dispatch Box that the independence of the judiciary and the separation of powers between the judiciary and Parliament will be absolutely sacrosanct and at the heart of everything that he, his ministerial colleagues and the Department will do? This is an issue of great concern to many people, irrespective of the Bill, and people always need to have faith that this central pillar of how we are governed in this country will remain intact, protected and preserved.

[Mr Gauke]

I am grateful to my hon. Friend for giving me the opportunity to respond to that point. The independence of the judiciary is at the heart of our system and a long-standing part of it. It is as important, if not more important, than it has ever been that we reiterate that and support those institutions. As I was saying a moment ago, this is a big part of what our nation is about, and in the years ahead, after we have left the European Union, one of the most important institutions to us will be our independent judiciary. It is a large part of what the UK is about and of how we should project ourselves around the rest of the world.

[Jeremy Lefroy (Stafford) (Con)]

My right hon. Friend is making a strong case. Perhaps this is for another time, but in the context of having a strong, independent judiciary, will he look again at the rather arbitrary cap of the age of 70 for magistrates? We have many really qualified people who wish to contribute to the independent justice system of this country but who are prevented from doing so simply because of their age.

[Mr Gauke]

I am grateful to my hon. Friend for making that point, although he takes me away a little from the terms of the Bill. I realise that there is a debate about that matter, and there are arguments either way about the current age limit. I have certainly received representations calling for an increase on the current age of 70, and we continue to look closely at those arguments. I believe that there has to be an age limit, and it is a question of judgment as to what it should be. I would be delighted to discuss this with my hon. Friend in the Tea Room if the opportunity to do so should arise.

[Alex Chalk]

Building on the point that was well made by my hon. Friend the Member for North Dorset (Simon Hoare) about independence, may we have an assurance that under the Bill the procedure rule committees that decide what the authorised staff can do will be able to exercise that discretion free from any interference from the centre, so that they can ensure that only those jobs that ought properly to be delegated to those staff are so delegated, and that extraneous considerations such as cost need not be forced upon them when they make their decisions?

[Mr Gauke]

My hon. Friend brings me back to the Bill and makes a good point—one which came up on several occasions during the deliberations in the other place about the extent to which we should be prescriptive, or whether powers should be left with the rule committees. I share his instinct that as much as possible should be left to the rule committees, because they are best placed to make such assessments. Indeed, that leads to points made by distinguished retired judges in the other place about not being over-prescriptive. Such matters may be a point of discussion this afternoon or at the Bill’s later stages.

I now turn to the Bill in greater detail. The measures will help to provide the greater flexibility and responsiveness that we need within our court system. That includes freeing up judges’ time from the most routine tasks associated with court cases. The Bill will build on existing powers that already enable staff in most courts and tribunals to be authorised to exercise some of the functions of judges. It will continue to allow appropriately qualified and experienced staff in the civil, family and magistrates courts, the High Court, the Court of Appeal, the Court of Protection and tribunals to be authorised to carry out uncontroversial and straightforward judicial functions under judicial supervision. The Bill will enable those arrangements to be extended for the first time to the Crown court, where court officers can only currently undertake formal and administrative matters. Allowing court and tribunal staff to exercise a wider range of judicial functions will potentially free judges up from undertaking more regular tasks, such as changing the start time of a hearing or changing a pre-trial preparation hearing date, so that they can focus on the more substantive matters of the case.

[Sir Edward Davey (Kingston and Surbiton) (LD)]

I welcome the Government’s amendments in the other place to paragraphs 32 and 44 of the schedule, which were secured by my noble Friend Lord Marks, because they ensure that only a judge will have the power to deprive people of their liberty or eject them from their family home. As we give court staff some more powers, it is important that we set down some markers for the types of decisions that should be reserved for trained professional judges.

[Mr Gauke]

Indeed, and I will turn to that point in a moment. I hope that the clarification provided by those amendments will be widely welcomed in this House. The passage of this Bill in the other place was characterised by a constructive and co-operative approach from both sides, and I hope that that will continue to be the case—I suspect it will, but we shall see—because the point of those amendments was to provide particular protections. Other issues debated in the other place included suggestions about being more prescriptive. As I said to my hon. Friend the Member for Cheltenham (Alex Chalk), it is right that we use the judicially led rule committees in many of those areas, but the right hon. Member for Kingston and Surbiton (Sir Edward Davey) makes a perfectly fair point.

[Luke Hall (Thornbury and Yate) (Con)]

My right hon. Friend is being generous in giving way. He is talking about the use of judicial time, so will he explain in a bit more detail how the measures will address the problem of the backlog of cases and what effect the Bill is likely to have on improving the current situation?

[Mr Gauke]

My hon. Friend raises a good point that comes back to how we ensure that judges’ time is used most effectively, freeing them up from the most routine tasks, such as changing the start time of the hearing, and enabling them to focus on more complex matters. They could then ensure that case preparation and management was resolved proportionately and at an appropriate level. That could also help to improve the overall efficiency and effectiveness of the court tribunal system. There is an opportunity to ensure greater consistency in the current arrangements, and it is right that we strengthen safeguards, as has already been touched upon.

It is important to guarantee the independence of all authorised staff when they are exercising judicial functions. Clause 3 will bring authorised staff under the leadership of senior lawyers. Although we are removing the post of justices’ clerk from the statute, the functions that such clerks undertake will continue to be carried out by heads of legal operations, who have a much greater leadership role across all jurisdictions. The change will ensure that we make all authorised staff ultimately accountable and subject to the direction of the Lord Chief Justice and the Senior President of Tribunals.

[John Howell]

My right hon. Friend is being generous with his time. The place where these changes can have the most effect is in the tribunal system. I have sat through tribunals that have lasted for days for no good reason, tying up three independent assessors. Surely, it is there that the changes he proposes can have the biggest effect.

[Mr Gauke]

My hon. Friend may well be right. The Bill of course relates to courts and tribunals, and it is important to bear in mind the impact on tribunals. Tribunals perhaps do not always attract the attention that they might, but they play a vital role within our justice system. If we can find ways to improve their efficiency, we should all welcome that. That is a key part of what this Bill is about.

[Kevin Hollinrake (Thirsk and Malton) (Con)]

My right hon. Friend mentioned the start times of hearings. As he will know, Northallerton magistrates court, which serves many of my constituents, is due to close under these reforms. It is important that people can get to a hearing on time, so will requiring people to travel further to a more distant court be taken into account? Will there be mitigation, such as video links, and will those things be in place and operating before the court closes?

[Mr Gauke]

Journey times are taken into account. I am conscious that substantial issues can arise in rural areas, but journey times are considered. As for technology, if I remember correctly, the change at Northallerton magistrates court is conditional upon ensuring that the technology is properly in place. In the context of this Bill, authorised staff will be able to play a bigger role in determining start times, for example, and one hopes that that might enable the process to run as smoothly as possible and ensure that people’s concerns about when they can get to court can be properly considered.

[Bambos Charalambous (Enfield, Southgate) (Lab)]

With the distance between courts being a factor not just for claimants and defendants but for witnesses, does the right hon. Gentleman agree that witnesses may sometimes choose not to go to a court if it is too far away, which can cause hearings to be cancelled?

[Mr Gauke]

The hon. Gentleman takes me further in the direction of the debate about the court closure plan, but we need to ensure that our resources are deployed as efficiently and effectively as possible. In that context, we have reduced the number of courts, but that money makes a contribution to our overall finances and can be reinvested as part of the court reform programme. We have to take every opportunity to make use of new technology to ensure that the experience of the justice system—the hon. Gentleman rightly highlights that witnesses are important in many cases—is as positive as possible.

I have touched on this already, but safeguards are important. Clearly, the delegation of certain judicial powers to court and tribunal staff needs to be done sensitively and sensibly, and with appropriate safeguards. Independent, judiciary-led procedure rule committees, which govern the rules within courts and tribunals, will determine which functions court staff may exercise in each jurisdiction and what qualifications and experience they will need. Those rules will then be subject to parliamentary scrutiny. All staff authorised to exercise judicial functions will ultimately be accountable to, and subject to, the direction of the Lord Chief Justice or the Senior President of Tribunals.

I am grateful for the valuable insight that Members of the other place brought to debating and scrutinising the measures in the Bill, particularly in relation to the exercise of judicial functions. Many of them drew on their own wealth of judicial experience and expertise in considering the practical issues of implementation.

Concerns were raised in the other place about the safeguards in delegating judicial functions to authorised staff. For example, concerns were raised that certain powers, particularly those that affect the rights and freedoms of citizens, should only ever be directly discharged by the judiciary. Indeed, the right hon. Member for Kingston and Surbiton raised that point.

We have listened to those concerns, and we tabled amendments in the other place that will prevent specific judicial functions from being undertaken by authorised staff, including authorising a person’s committal to prison; in most cases, authorising a person’s arrest; granting certain injunctions; making orders for repossession of residential property, where the orders are contested; and making search orders.

We tabled amendments that will require the procedure rule committees, when making rules to allow authorised staff to exercise judicial functions, to consider whether the rules should include a right to judicial reconsideration of decisions made by such staff. The amendments will also require that, if a procedure rule committee decides against the creation of such a right, the committee will have to inform the Lord Chancellor of its decision and of the reasons for it. This will ensure much greater transparency and accountability.

The measures in the Bill strike the right balance between creating a framework for the delegation of judicial functions to authorised staff, with appropriate safeguards, and giving discretion to procedure rule committees and the senior judiciary to make the arrangements work in practice.

[Alex Chalk]

Does my right hon. Friend agree that the principle of delegating functions to authorised staff is not, of itself, new? There has been a successful history, particularly in the magistrates courts, of delegating powers to justices’ clerks to carry out a number of functions, which even include such matters as issuing summonses or requesting pre-sentence reports. The principle is in place but, of course, the execution is vital.

[Mr Gauke]

My hon. Friend is right, and his experience is a benefit to the House. He knows of what he speaks. This principle is not new, but it is one where we think we can go further, to the benefit of the courts and tribunals system and of the users of that system. He is absolutely right.

A balance needs to be struck on the safeguards, and we believe we have found the right balance. Indeed, the position was strongly supported in the other place by Lord Thomas, the former Lord Chief Justice, and Lord Neuberger, a former President of the Supreme Court, both of whom have a wealth of experience in this area, having chaired procedure rule committees. The combination of Lord Thomas, Lord Neuberger and my hon. Friend the Member for Cheltenham, very distinguished lawyers all, is one that should reassure the House.

Lord Thomas warned on Second Reading against putting too much detail into the Bill:

“Experience has shown that detailed restrictions on procedure are a very real fetter on the administration of justice.”—[Official Report, House of Lords, 20 June 2018; Vol. 791, c. 2039.]

Similarly, Lord Neuberger warned in Committee of placing

“a potential straitjacket on the ability to appoint the appropriate people to make appropriate decisions.”—[Official Report, House of Lords, 10 July 2018; Vol. 792, c. 882.]

Lord Marks also warned against setting too high a bar on the qualifications of court and tribunal staff exercising judicial functions:

“It seems…that the purpose of this part of the legislation is to increase efficiency and…to everybody’s advantage…the speed of decision-making… Having a legislative requirement that all delegated decisions must be taken by qualified lawyers with a minimum experience requirement runs the risk of frustrating this objective.”—[Official Report, House of Lords, 16 October 2018; Vol. 793, c. 414.]

I make those points in anticipation that this may be an issue that we debate further this afternoon, but I think the case is persuasive.

[Kevin Hollinrake]

Will the Bill make it easier to set up a new tribunal? I speak in the context of my role as chair of the all-party parliamentary group on fair business banking and finance, which has the idea of setting up a financial services tribunal. We are not seeing a level playing field in our courts between banks and small businesses, and we feel such a tribunal may be a solution. Will the Bill make it easier to establish such a tribunal, or will it not have any relevance in that area?

[Mr Gauke]

As it stands, and I do not want to encourage my hon. Friend to table amendments, the Bill will not necessarily do that. He has taken a great interest in this issue, and he has been speaking to my hon. Friend the Economic Secretary to the Treasury. I know my hon. Friend the Member for Thirsk and Malton (Kevin Hollinrake) will pursue the matter with his customary tenacity, and I do not wish to discourage him from doing so, unless he considers that the best way to manifest it is by tabling amendments to the Bill, in which case I would urge him to look elsewhere. I thank him for his intervention.

I draw the House’s attention to additional important safeguards in the Bill. It will provide a guarantee of the independence of staff and their decision making, by applying the statutory independence and immunities that currently apply to justices’ clerks to all authorised staff when exercising judicial functions. A member of staff will be able to exercise judicial functions only once authorised to do so: by the Lord Chief Justice or his nominee, for the courts; or by the Senior President of Tribunals or his delegate, for the tribunals. The Bill includes protections for authorised persons from legal proceedings, costs in legal proceedings and indemnification in respect of anything they do or do not do when exercising judicial functions in good faith.

The Bill also includes measures to enable greater flexibility in the deployment of judges across our family and county courts, the first-tier tribunal and the upper tribunal. For example, it will permit recorders to sit in the upper tribunal, enable senior employment judges to sit in the first-tier tribunal and upper tribunal and enable presidents of the employment tribunals for England, Wales and Scotland to sit in the employment appeal tribunal. This will make best use of the experience and skills of serving judges, and it will give the senior judiciary more flexibility to respond to sudden changes in demand and to manage case backlogs in particular jurisdictions. It will also allow judges to gain experience of different types of cases, which will help with career progression. The Bill also contains provisions relating to the amendment of judicial titles, which will ensure consistency and will help to avoid confusion for court users.

The measures in the Bill are an important part of our wider £1 billion reform programme, which will see our courts and tribunals modernised for the 21st century and our digital age. New online services are already providing new routes to justice for many. For example, of all applications for divorce from unrepresented citizens, more than six out of 10 are now made online, after the new service was launched in May. That amounts to more than 20,000 people in just over six months. It has saved time, cost and effort for them and the system. Reforms in the criminal justice system—from making pleas online for low-level offences, to the piloting of a new digital system to allow the police, Crown Prosecution Service, courts, judiciary and defence to have a single shared view of case information online—are making it work better for everyone, too.

The Bill is an important part of our wider reforms to make our justice system work better for those who use it and those who work in it. It also makes an important first step in the legislation that will underpin our reforms. We will introduce further courts legislation as soon as parliamentary time allows. With the appropriate safeguards in place, the Bill will allow our judiciary, courts and tribunals to operate more flexibly, responsibility and efficiently, and it will ultimately improve people’s experience of justice and put our courts and tribunals on a sound footing for the future. I commend the Bill to the House.

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[Mr Gauke]

The hon. Lady is right to raise the importance of our judiciary, but I hope that we can reach a consensus on that. Does she not recognise that the Bill has the support of the judiciary? Senior retired judges have spoken in support of it in the other place, and it has been welcomed by the senior judiciary.

[Yasmin Qureshi]

I accept that the senior judiciary, some of whom are in the House of Lords, have said that the Bill is a good thing. However, practising lawyers, barristers, solicitors, the Bar Council and the Law Society have said that it is not right, and that the amendments that we will propose should be considered.

There is disagreement in the judicial community about the Bill. [Interruption.] I will just wait until the Lord Chancellor has dealt with his question. The Lord Chancellor and the practitioners here must be aware that, when judges are involved in delegated functions or non-court sitting judgments, they are making judgments on difficult issues and complex matters of law—for example, a case management hearing, or even something such as asking for an adjournment. We do not know, but, at the moment, the Bill suggests that such work could be done by delegated staff.

When someone asks for an adjournment, all kinds of complications could be involved; there could be issues relating to failure of disclosure and so on. According to the Bill as it stands, many issues would be given to a delegated person. That is one reason why we are asking for clarification about who those people will be, what powers they will be given, and, more specifically, what training they will be given. Although some senior members of the judiciary in the other place have said that the Bill is a positive development, the practitioners on the ground, at the moment, do not agree.