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.