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

Lord Beith Excerpts

2nd reading (Hansard): House of Lords
Wednesday 20th June 2018 Lords Chamber

[Lord Beith (LD)]

My Lords, when the Bill was published, I described it as,

“a little mouse of a Bill”.—[Official Report, 6/6/18; col. 1306.]

I did so because it has been shorn of most of the provisions the Government had intended to include in legislation and is drafted in such a way as to try to discourage the addition of any of those provisions by way of amendments. That has to be set against the context of the Government’s very ambitious claims about what they were going to do to assist the justice system. In 2017, the government website stated that the then Prisons and Courts Bill would,

“transform the lives of offenders and put victims at the heart of the justice system, helping to create a safer and better society”.

But even if we look just at the briefing for the Queen’s Speech for this Parliament about the Government’s legislative intentions, it was a Bill that would,

“end the cross-examination of domestic violence victims”,

by those accused of perpetrating the violence. It was a Bill which would allow for fixed penalties for minor guilty pleas; it would allow fixed terms for some judicial leadership positions on the basis that some might be attracted to those posts if they could serve a shorter term in them; and it was in the context of the Government talking about wide reforms of procedure and practice, many of which required legislation, including avoiding the waste of time and money in unnecessary and entirely formal hearings.

When the Lord Chief Justice—the noble and learned Lord, Lord Burnett of Maldon—appeared before the Constitution Committee of your Lordships’ House on 25 April 2018, he said:

“At the heart of what is in contemplation is a change in procedures and practices, some of which will require enabling legislation, followed by rules and practice directions. Of course, the latter will be under judicial control. The question whether all but the most basic procedural hearings will be by telephone or videolink will, in the end, be for the judge to decide, having received representations if necessary.


We hope the legislation that fell at the last election will be back before Parliament fairly soon. Without it, some of the courts and tribunals, or at least some of what we do, will remain trapped in the mid-20th century. At a more prosaic level, modernisation will simply align the courts and tribunals with ways of operating which the outside world, and even Government, have long ago adopted”.


That phraseology was echoed in the opening remarks of the noble and learned Lord, Lord Keen, but does not seem to be greatly furthered by this Bill. What we have here, apart from a few changes of title for one or two judges and justices’ clerks, are some necessary and helpful provisions about the deployment of both judges and staff. Obviously they will have to be looked at in detail. Similarly, some of the issues raised by the noble Baroness will need to be looked at carefully. However, I think that there is generally a fair wind behind the belief that judges’ time and that of staff in the court system can be better used. It is these useful provisions which justify spending a little time on the Bill.

However, there are many other major issues around our courts. Not all of them can be dealt with through legislation, but many require legislative backing. If you talk to members of the judiciary, they will pretty soon mention the condition of the court estate, the working conditions of court staff and the impact all that has on recruitment. The recruitment problem in the senior judiciary is something that the Government will have to consider, and along with that go the issues around the retirement age. More widely, the growing pay gap between criminal practice and commercial practice makes it almost impossible to recruit young people to the criminal Bar for the future. The Times recently reported that 15 City law firms, all American-owned, offer newly qualified solicitors more than £100,000 a year. Against that background, it will be extraordinarily difficult to recruit the young people needed for the future of our courts both in advocacy and on the Bench. The development of problem-solving courts may need some more legislative encouragement.

I turn to a fundamental point which the Prisons and Courts Bill could have been used to improve: the fact that the courts can sentence only according to what is available. Prison is deemed always to be available, but non-custodial sentences are dependent on local services—whether they are in place at all, what their quality is, and what combination of services is required for a really serious non-custodial sentence. All those issues are uncertain. Moreover, commissioning is hopelessly divided. Prisons are commissioned nationally while these other services are commissioned largely on a local basis, so there is a mismatch that gives the courts fewer options for dealing with the offenders before them.

Some of these issues can be dealt with without legislation but some cannot. I hear Ministers such as the noble and learned Lord talk about bringing forward more legislation when parliamentary time allows. I look forward to the period that we are entering in Parliament, with 1,000 statutory instruments and four major Bills to do with exiting the European Union—I wonder how that phrase can be uttered seriously—supposedly coming our way. I believe that a further draft Bill is sitting somewhere in the Ministry of Justice, ready to be brought forward, but I do not see when the parliamentary time will come. It makes me wonder what has happened to the significance of the Ministry of Justice in the pecking order of the Government’s legislative programme. We have a two-year parliamentary Session, half of which we have used up. In that Session, the Ministry of Justice could not have a relatively uncontroversial Bill, which could have done considerable good; it had to be content with a totally shorn and reduced Bill and the vague hope of further measures when parliamentary time allows.

I will make one last point on the problem of parliamentary time. We know that it is a problem, although it does not seem so when you look at the agenda for these current weeks, dealing with the EU Bill; the pressures have not been so great but they will be pretty great in the year ahead. One thing that does not take up much parliamentary time is legislation by consolidation Bills. Law Commission Bills do not take up as much time as legislation that effects change in the law. The courts could be greatly assisted if the Government made more of the now rather neglected procedures of consolidation Bills; they would be greatly assisted if the current work being done on the consolidation of sentencing were achieved and brought forward by the Government in the more limited procedures that can be used when the law is simply being consolidated, not changed. The Government should look at that further and discuss giving it higher priority with the Law Commission. That can be done, at least, to assist the courts, even when parliamentary time is tightly rationed.

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

Lord Beith Excerpts

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

[Baroness Chakrabarti (Lab)]

My Lords, at Second Reading, it was widely acknowledged around the House that there were practical arguments for expanding the flexible deployment of judges, including some temporary judges appointed outside the usual Judicial Appointments Commission selection process, to a wider pool of courts and tribunals. However, the appointment of temporary judges as a principle should be approached with caution. Further, it is important to view flexible deployment in general through the prism of the Government’s wider programme of reforms and cuts. Given the planned savings on judicial salaries, we have to ask whether the provisions are at least in part a short cut to make up for a shortfall—even a crisis—in the recruitment of permanent judges that will become a de facto cost-saving measure. Any trend towards an increasing reliance on temporary judges would be worrying. Temporary judges, most likely seeking permanent appointment, are by their nature less independent than their permanent counterparts.

The Government should surely provide greater evidence of the need for these provisions, such as the detail of the changes in business demand referred to in the impact assessment and the reasoning for the proportionality of these measures. If introduced, it is surely a reasonable requirement on the Government to ensure that proper training is made available for these temporary appointments whose deployment will involve oversight of areas of law new to the personnel concerned. This is already a routine practice in the deployment of judges in the Crown Court: the paucity of Crown Court judges with a criminal law background is well acknowledged and, arguably, none the less regrettable. There is no argument against proper provision of support and training to those less practised, temporary judges or, indeed, permanent judges deployed in new areas. Given the backdrop of major cuts to the MoJ, the need for effective and proper training is all the more acute to ensure the quality of judicial practice. That is why I am probing with this amendment and I beg to move.

[Lord Beith (LD)]

This gives us an opportunity to look at whether the training is intended to embrace the increasing use of online and virtual court facilities. We cannot advance that cause in the context of the Bill, because it has been drafted to exclude some of the things that we all assumed were part of the modernisation programme. It would indeed be difficult to ensure that the training and deployment of judges meant that they were well equipped for these changes, because we do not know what the parliamentary underpinning would be, but this would be a useful moment for the Minister to indicate how far the well-declared and strongly supported plans that emerged from the Briggs and Leveson reports form part of the Government’s thinking on how judicial deployment and training should operate.

[Baroness McIntosh of Pickering (Con)]

My Lords, I take this opportunity to raise a question, in the confines of this amendment, about training. I know that my noble and learned friend has explained on a previous occasion that the role of justice clerks is changing and that that is the purpose of this. What stage are we at with consulting the justice clerks? I understand, looking at paragraph 10 of the impact assessment, on page 5, that currently the most senior lawyers in Her Majesty’s Courts & Tribunals Service are indeed justice clerks. To what extent are they agreeable to these changes? I want to be assured that we will not find ourselves in a situation in the autumn where perhaps they do not entirely agree to what we are asking of them. At the same time, I wonder if there is an expectation that those undertaking this new role will travel further to courts, particularly magistrates’ courts, given that in rural areas there are so few of them. We have seen an increase in cancellations of trials and cases not being heard, where witnesses have found it difficult to travel to and reach the court on time.

--- Later in debate ---

[Lord Judge]

My Lords, there should be an upgrade here, in accordance with the proposed amendment.

[Lord Beith]

My Lords, one of the things that might be reviewed is how the arrangements for delegating decisions work in the context—mentioned by my noble friend—of a large number of litigants in person. This number has increased since the withdrawal and limiting of legal aid. Court officials find themselves giving forms of advice to unrepresented litigants, if only to ensure that the court can proceed with the minimum of chaos and disruption. A clerk in a county court, for example, may simply remind the litigant of what the court needs to know in order to resolve a case and what would not be advantageous to spend lots of time on. That is a valuable function. Of course, legal advice can go far beyond that into areas on which it would be wholly inappropriate for a court official to give, or purport to give, advice. Wise officials make quite clear the limit of what they can say.

By whatever mechanism we review these provisions, whether it is that suggested in the amendment or the reasonably adequate existing ones offered by the Justice Select Committee and Constitution Committee, we should look at them in a context in which officials are being asked for advice or guidance by people who are not represented.

[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.