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

John Howell Excerpts

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

[Yasmin Qureshi]

I rise to speak in support of amendment 1 and the other amendments. We are being encouraged to wave through this wafer-thin Bill, which is both narrowly constrained and obscurely drafted. This is a Bill that sneaks through changes that will change unconstitutional double delegation—that is, of legislative power to unaccountable judges sitting on procedure rule committees and of judicial powers to non-independent courts and tribunal staff.

Let us begin with clause 3, which delegates judicial functions to authorised staff. This provision must be understood in the context of a wider court reform agenda and the austerity measures that seek to make significant cuts. These efficiencies, generated through the proposed reforms, arise not only from the reduction in the size of the courts estate, but from savings on judicial salaries. Ultimately, the Bill seeks more justice on the cheap.

The Bill will ensure that judicial powers are delegated to non-independent courts and tribunal staff. The procedure rule committee is primarily made up of senior judges, who would ensure relatively little external public scrutiny of this delegation of judicial functions to non-judicial employees of Her Majesty’s Courts and Tribunals Service. That is a really important point.

The Bill provides that regulations under clause 3 must be made under the negative resolution procedure. In effect, this will allow new rules of court stipulating which judicial functions can be delegated and to whom, and the requisite qualifications or experience that an authorised person must have to take on these judicial functions, but, as the Bill stands, such a delegation will come into force without any real parliamentary scrutiny. In essence, by providing that the regulations in the Bill are to be made under the negative resolution procedure, the Government are avoiding proper scrutiny by a democratically mandated legislature here in this place.

Our amendment, which is supported by the Bar Council, would ensure more constitutionally appropriate accountability and scrutiny, through the affirmative resolution procedure, of these sweeping regulations. These regulations concern powers to make rules stipulating which judicial functions can be delegated and to whom, and the qualifications and experience required before a member of the administration can be given these judicial functions. Without careful scrutiny and additional safeguards, the Government’s drip-feed approach to court reform will erode some of our most fundamental institutions and our understanding of the rule of law.

[John Howell (Henley) (Con)]

Will the hon. Lady comment on whether the qualification provision will raise the bar significantly above that in current regulations for such people and whether that will put at a disadvantage people already carrying out those functions?

[Yasmin Qureshi]

We are talking about two different things. The authorised persons are to have delegated to them many judicial functions, and it is only appropriate that they have some experience. In those circumstances, three years’ post-qualification experience is not a big ask, obligation or burden. We are asking for the minimum, and we are being very reasonable and practical about it. We are only surprised that the Government are not taking our concerns on board and changing the rules.

--- Later in debate ---

[John Howell]

I spoke on Second Reading and pointed out the extent to which the courts were undergoing reform. A number of Members have commented on that today and I will not go over what I said in that earlier debate again. It is understood that we are seeing a major reform process and the work of Lord Briggs on this is well understood, but to judge the effectiveness of those reforms and this Bill we must determine whether it passes two tests. First, does it make it easier and swifter to obtain justice? Secondly, does it provide better access to justice? The Bill passes both tests.

The Bill provides better access to justice by making sure that is quicker and swifter, and achieves that by freeing up judges’ time to focus on the most pressing cases. As I said on Second Reading, when I was on the Industry and Parliament Trust course I sat with judges and was able to see their enormous workload. Anything we can do to help free that up has to be a very good thing.

I echo, too, the comments of my hon. and learned Friend the Minister on the planning and housing courts. I have sat with a judge on a planning court, and I thought it achieved a tremendous amount in bringing things together. I take particular pleasure in the work Lord Thomas has done on this, as a former Lord Chief Justice and a reforming Lord Chief Justice. He went out of his way to help reform the system and I am glad he is still doing so. The comments of Lord Neuberger have also been excellent.

I assure the Minister that I support this Bill.