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

Earl of Listowel Excerpts

Committee: 1st sitting (Hansard): House of Lords
Tuesday 10th July 2018 Lords Chamber

[Lord Pannick]

My Lords, I echo the words of the noble and learned Lord, Lord Judge. We are dealing here—at least potentially—with matters of significant constitutional concern. The power which the Secretary of State or Lord Chancellor is being given includes a power to make “consequential provision”. That is a very broad phrase: it is not merely transitional, or transitory or saving, it is consequential—something that is a consequence of that which is in the legislation. It is, therefore, entirely appropriate that this amendment should be approved by this House.

[The Earl of Listowel (CB)]

My Lords, on the matter of meeting the new challenge of litigants in person, particularly in the family courts, I highlight the value of the family, drug and alcohol court national unit. While the national unit supports these drug and alcohol courts for children in the public law system, the same judges—and I imagine the same clerks—also work in public family law. The wonderful thing about this unit is that it supports judges, clerks and the administration in family courts to become better at their job; better at managing these cases which are often very difficult and troubling.

So when the noble and learned Lord, Lord Keen of Elie, writes to me—I am grateful to him for his letter today on the matter of the Family Drug and Alcohol Court National Unit—and says that the responsibility is now passing down to local authorities, I hear what he says and understand why he says it. However, there is a distinct benefit to the judiciary and the courts in training them to be more effective in working with these families, particularly now that they are often litigants in person. I therefore hope that he may keep an open mind, and that perhaps he will be persuaded that some money should come from central government for this special national unit for supporting family drug and alcohol courts.

We have a challenge with regard to the many families in this country who are struggling to stay together or to manage amicably and effectively a separation with the least damage to their children. Having well-equipped judges and clerks in the courts to help this process is vital, and I suggest to the noble and learned Lord that this special national unit can help with that.

[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.

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The amendment sets a very low level of qualification for an authorised person and we do not see why the Government cannot accept it. I note that the Minister has pointed out, and will no doubt do so again, that three years’ post-qualification experience, which is what we seek, is a higher bar than that currently required of assistant justices’ clerks. However, such staff do not currently perform judicial functions, let alone the range of judicial functions that, under the Bill, might be performed in the future. Therefore, if there is to be uniformity in practice, we can surely set the bar for qualification at three years’ post-qualification experience, which is not a very high level. One has to ask whether the reluctance on the part of the Government to set minimum post-qualification periods is down to fiscal concerns about staff salaries. I look forward to hearing the Minister’s response to those concerns. I beg to move.

[The Earl of Listowel]

My Lords, I understand that the purpose of the amendment is to ease the burden on the courts. In a statement last year, the President of the Family Division highlighted the ever-increasing burden on the public side of the family courts as the number of children taken into local authority care accelerates. This is an area of the courts that is experiencing a lot of pressure, and I just want to highlight to the noble and learned Lord and to the Committee that problem-solving courts can also be a good solution to the pressures on our courts. The family drug and alcohol courts are a good solution to reducing the pressure on the courts and might help to limit the use of the innovation to which the Schedule refers.

The founder of the family drug and alcohol courts, District Judge Nicholas Crichton, highlights that the problem-solving courts are much less adversarial and more solution based. For instance, one often finds with children being taken into care that a young, teenage mother addicted to drugs and alcohol will have one child and that child will be removed. She will promptly have another child, and then another child, and each one will be removed. However, if one treats the mother’s addiction and gets her off alcohol and drugs, which the family drug and alcohol court is good at doing, she may well stick with the one child or the second child, and this eases the burden on the public family courts. I recognise that the Schedule seeks to deal with the heavy burden on our courts. I encourage the Minister to look carefully at developments in this area and to consider problem-solving courts as another way of dealing with this issue.

The family drug and alcohol courts highlight the value of the achievement of District Judge Nicholas Crichton in introducing them. The Government have generously funded them from the beginning, through both the Department for Education and the Ministry of Justice, and it is highly commendable that they have invested in this important new approach to keeping families together and stopping children from being removed into local authority care unnecessarily.

[Lord Neuberger of Abbotsbury]

My Lords, the noble Baroness is right to be concerned about the expertise and experience of the people who make decisions. My concern about the amendment is that it puts a potential straitjacket on the ability to appoint the appropriate people to make appropriate decisions. There will be many decisions where people with her requisite experience would be appropriate, but there will be others where less experience would be adequate for the decision-making.

Given that the rules which will set out the requirements will have to be laid before Parliament, and that many of the decisions outside the rules are made, effectively, by the Lord Chief Justice, while what the noble Baroness said has considerable force in some circumstances, it would unsatisfactorily reduce the flexibility of these proposals. They are largely not concerned with the problems of judicial recruitment which have been canvassed in the House today—which any self-respecting former judge, such as myself, is concerned about—but, none the less, the proposals in the amendment would unduly constrain the flexibility which the measures in the Schedule sensibly envisage.