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

James Cartlidge Excerpts

3rd reading: House of Commons & Report stage: House of Commons
Wednesday 12th December 2018 Commons Chamber

[Yasmin Qureshi]

These people will be performing judicial tasks and functions and so will need to be appropriately qualified, which is why we have tabled the amendments.

[James Cartlidge (South Suffolk) (Con)]

It is my understanding that these are mainly interlocutory functions, not actual judgments or significant judicial functions.

[Yasmin Qureshi]

No, as we understand it, although it is envisaged that some of these tasks will be procedural, others will be very important to people whose rights are affected. We might think, for example, that requests for adjournments are straightforward, but they are not. As practitioners and former practitioners will know, they can be complicated, because when a judge decides whether to grant one, they take into consideration a host of things, so it is important that the person be appropriately qualified.

We accept that the procedure rule committee will be able to iron out some of the questions about what are judicial and what are administrative functions, but the main thing is that these people will be carrying out judicial functions and deciding some difficult issues, and it is only appropriate that they be qualified and appropriately experienced.

--- Later in debate ---

[Robert Neill]

I hope I shall make a better stab at my speech than I did of being a Teller earlier.

I rise to oppose these amendments, tempted though I am by the way in which they were proposed by the shadow Minister, the hon. Member for Bolton South East (Yasmin Qureshi), whom I respect as a fellow lawyer. However, I do have to say that she seeks to go further than is appropriate and seeks to put a needless restriction on the ability of the procedure committee in particular to come to the appropriate balance. I have very great respect for the views of both the Law Society and the Bar Council—I say that with reference to my entry in the Register of Members’ Financial Interests as a non-practising barrister and a consultant to a law firm—but ultimately the scheme envisaged by the Government is a right and balanced one, and reflects in particular the views of the senior judiciary, which I think is important because ultimately it is the judges who are best placed to decide the appropriate level of delegation. They are the people who work day to day with these staff; they see day to day the nature of the boxwork—as it is sometimes called—and the other things that come in.

For these reasons, when the matter was debated in the other place, both Lord Thomas of Cwmgiedd, the recently retired Lord Chief Justice, to whom I have already referred, and Lord Neuberger of Abbotsbury, recently retired president of the Supreme Court, counselled against an undue restriction on the operation of the civil procedure rule committee, already a well established body of the kind the Opposition seek to bring in. I think they also broadly supported the overall thrust of the Bill.

The hon. Lady referred to austerity. That is not the objective of this Bill; there has been a long-standing proposal to modernise the civil justice system. She referred to the work done by Lord Justice Briggs, for whom I have the greatest respect. The Bill is a logical follow-on from the Briggs report, and it is necessary if we are to achieve modernisation and make the courts more accessible for litigants. This is an entirely sensible Bill; that is why the judiciary has pushed for these sorts of proposals, and why Lord Thomas said that he “warmly” welcomed it. It will save some £6 million; he regards that as a realistic figure. That is important in the context of the available resources for the courts system. We all accept that the courts are under pressure, and this is a sensible way forward that does not impede the basic requirements of access to justice or fairness.

Lord Thomas said two further things that we should bear in mind. He spoke about the developments in civil procedures; the rule committee has been an important part of that over the last 15 to 20 years, so it is not as though the committee were unused to dealing with these matters. The committees bring together representatives of the legal profession. As a former practitioner, I agree with his description of that committee as

“a highly representative body with many representatives of the legal profession. Certainly, the committee will always try to reach a view by consensus—when I was a member of it for more than six years there never was a division; we always managed to agree.”—[Official Report, House of Lords, 20 June 2018; Vol. 791, c. 2039.]

Most experienced practitioners will be aware of that. I think we can say the same of the criminal procedure rule committee; these are very well established bodies, and judges do not forget that they are judges when they are there.

It is a little unworthy, I say with respect, to suggest that the judiciary—we have talked about the senior judiciary chairing these bodies—would acquiesce in an inappropriate level of delegation for a purely financial consideration. They would be going against their judicial oaths. I do not think for one second that the hon. Lady really means to say that they would do that. The amendments would, however, put needless constraint on the committee’s work. That is why I quoted before and quote again Lord Thomas’s observation:

“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.]

In the other place, he gave a number of examples that I need not give here showing why that could be counterproductive.

It is also worth considering the speech of Lord Neuberger. He pointed out the following:

“There are two protected factors: one is that nothing can be done without it being in the rules, and the second is that the Lord Chief Justice needs to give his or her authorisation to the person who makes the decision.” .”—[Official Report, House of Lords, 20 July 2018; Vol. 792, c. 887.]

Those are important safeguards.

[James Cartlidge]

My hon. Friend speaks with great expertise. What he is saying goes back to the point raised earlier about the possibility of the functions that are delegated having legal significance. Presumably if that was the case, they would not be delegated to start with.

[Robert Neill]

That is precisely right. It is inconceivable that any Lord Chief Justice would give his or her consent to a delegation that was inappropriate or would put the interests of justice at risk. I never sat as a deputy district judge—they used to be called deputy registrars in my day, so long ago was it—in civil matters, but I have many friends who do, and a great deal of what is called boxwork, with which at least some on the Treasury Bench will be familiar, was of a very administrative kind. We expect the district judges in a busy county court to deal with that, whereas it seems perfectly reasonable for many of these matters, which are often of a very interlocutory nature, to be dealt with by an experienced member of court staff who has been in the service for many years. We are not talking about the ultimate determination of the case in any of these matters. That is why Lord Neuberger referred to that safeguard or protection, and the protection that that would be laid before Parliament.

Lord Neuberger made another important observation on the attempt, as it seems to me, to fetter the discretion of the committee. He posed a rhetorical question, as perhaps senior judges and other lawyers tend to do:

“Whether it is right to provide in such clear terms, and such uncompromising general terms, for the circumstances and requirements for”

appeals—which is what he was talking about—seems to him to be questionable. He was making this point:

“Having chaired the Civil Procedure Rule Committee for three years, I can say, as has been quoted in relation to its criminal equivalent by my noble and learned friend Lord Thomas, that considerable care is given to ensure that all the requirements of justice are met. It is very rare, if ever, that I can remember a decision being arrived at which was not arrived at by consensus.”

These questions are considered, not only by the judiciary but by practitioners, including members of the solicitors’ profession and members of the Bar. Plaintiffs’ and defendants’ interests are represented on these committees, as are both ends of the profession—solicitors and barristers—and all levels of the judiciary, from the High Court bench through the circuit bench to the district bench. This is a broad-based body and, as Lord Neuberger said, these

“details should be worked out…by the rule committee”.—[Official Report, House of Lords, 10 July 2018; Vol. 792, c. 890 to 891.]

I think that that is a forceful argument for leaving the proposals as the Government intended.

--- Later in debate ---

[Lucy Frazer]

I am happy to come on to the three reasons why amendments 2 to 4 cannot be accepted. First, the amendments are not necessary. The functions are already being carried out, and carried out well, by those with lesser qualifications than those sought by the hon. Member for Bolton South East. The qualification requirements for legal advisers in the magistrates court and family court are currently set out in regulations made by the Lord Chancellor, as they have been since 1979, and amendments 2 and 3 would raise the qualifications bar significantly higher than the current regulations and would rule out a large proportion of Her Majesty’s Courts and Tribunals Service staff from giving legal advice in future.

[James Cartlidge]

There are many people in the Chamber with huge legal expertise. All I can claim is spending my year off as a junior outdoor clerk, for which the only qualifications needed were a ponytail and a cockney accent, as far as I could see. From my short experience I discovered the huge number of staff who make up our courts and keep them ticking along. They might be administrative functions, but we should not be afraid of reforming our courts to give those people greater roles that help them to make more of their career.

[Lucy Frazer]

My hon. Friend makes an important point. Not only is it important to ensure that the qualifications match the role, but these reforms will ensure good career progression for competent and organised staff. Similarly, in relation to amendment 4, it is already the case that some staff can exercise judicial functions in almost every jurisdiction except the Crown court. The range of functions they can carry out varies enormously, as my hon. Friend the Member for Thirsk and Malton (Kevin Hollinrake) pointed out earlier, from legally qualified legal advisers in the county court setting aside default judgments to non-legally qualified caseworkers in the lower tribunal dealing with postponement requests and issuing strikeout warnings.

Accepting amendment 4 would rule out a large proportion of those staff, who are already exercising judicial functions and who may have been doing either or both for a number of years. Such a loss of expertise would be particularly damaging and would impact on the service that Her Majesty's Courts and Tribunals Service can provide. The hon. Member for Bolton South East suggested that introducing authorised staff was damaging to justice, but I did not hear any examples of inappropriate action by any of our current staff who do not currently have those qualifications and who are already carrying out these roles.