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

Lord Hodgson of Astley Abbotts Excerpts

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

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I am most grateful to my noble and learned friend on the Front Bench for his introduction of the Bill, which I support, and in particular for his explanatory letter of 23 May, which laid out the background to it. As he knows only too well, I am not a lawyer, and speaking immediately behind a past Lord Chancellor and a past Lord Chief Justice on a technical Bill means that one needs to proceed with a certain degree of care.

More years ago than I care to remember, I attended a business school in the United States. The university used to arrange for distinguished visitors to come to lecture us. One such lecturer was a man called Peter Bauer who delivered a spellbinding piece of oratory. Peter Bauer’s name may not be familiar to all noble Lords. He was Jewish and was born in Hungary in 1915. He came to this country in the 1930s and taught for the rest of his life at Cambridge and the London School of Economics, and later became a Member of your Lordships’ House as Baron Bauer, of Market Ward in the City of Cambridge. His primary achievement was to revolutionise the way that foreign aid was distributed. He demonstrated how government-to-government aid, if it was not largely absorbed in corruption, often went on prestige projects such as national airlines or building dams, which did little for the average person in the country. He argued that it was more effective to give aid at a lower level, and the modern NGO structure is essentially a product of his thinking. In that spellbinding lecture, he pointed out that for such developments to take place successfully a degree of stability was needed, stability provided particularly by the rule of law and specifically by a respect for property rights. That is the relevance to our discussion today. His vision further required not just an effective legal system but, equally importantly, one that was understandable and accessible for the man in the street. He said that, without this, the critical ingredient of public trust and confidence would be missing. As he put it that afternoon all those years ago, “The law is too important to be left to lawyers alone”.

In my time in public life, one of my interests has therefore been to try to ensure that the law is kept up to date and is seen to be relevant by our fellow citizens. That lies behind my interest in the Bill today. As I say, it seems unobjectionable; nevertheless, I would like to raise a few points with my noble and learned friend. First, in his letter of 23 May, he wrote that one of the purposes of the Bill was to,

“make it easier for people to resolve disputes and secure justice”.

Amen to that, we all say, but—to touch on the point made by the noble Baroness, Lady Chakrabarti, in her opening remarks—to achieve that objective we need judges. To me as a lay man reading the newspapers, there appears to be a critical shortage of applicants for judicial posts. The reasons as I read them are pretty wide: they range from the financial, particularly the provision of pensions, to the physical state of our courts and indeed to the growing pressure being exerted on judges by social media. It will take time to resolve these challenges and some may not be resolvable at all. What could be done in the short term? One way would be to raise the retirement age. The compulsory retirement age of 70 makes appointments post 65 unlikely to be attractive either to the applicant or to the judicial system from the point of view of use of resources. With people living longer and healthier lives, many argue that ageism is a prejudice that we have yet to tackle successfully and properly. Why not kill two birds with one stone and increase the compulsory retirement age for judges to 75?

My second point concerns the point raised by the noble Lord, Lord Beith, about Law Commission Bills. In my view the Law Commission does incredibly valuable work updating the law in an entirely apolitical way, but too much of that work is shunted into a siding and left to rust. Surely we should be able to find sufficient parliamentary time for a couple of Law Commission Bills, given their uncontroversial nature, as he pointed out. Two in particular that stand shovel-ready, to use the modern parlance, are of special importance. One is on election law. What could be of greater importance than maintaining public trust and confidence in our electoral system? It is worth underlining that point with a short quote from the briefing by the Law Commission at the time of the launch of its recommendations:

“It is widely acknowledged by those involved in administering the electoral process that this body of laws has grown so large, fragmented, complex and outdated that it is no longer fit for purpose”.


Those are serious allegations that the Government should address by bringing forward this Bill. The other Bill concerns technical issues in charity law, in which I declare an interest because some of the recommendations arose from a report that I wrote for the Government as long ago as 2012 but which nevertheless the sector badly needs and would welcome. There have been endless—and I mean endless—promises about the intention to bring forward one or more Law Commission Bills. Perhaps my noble and learned friend can give me another endless promise when he winds up today.

The penultimate point is developments in the working practices of the tribunal system and some of the challenges that it now faces. For example, the Charity Tribunal, which arose from the Charities Act 2006, was designed to provide a quick, effective, user-friendly and economically attractive way for charities, many of which are quite small, as well as their regulator, the Charity Commission, to resolve differences.

I am not sure that our hopes during the passage of the Bill—cross-party hopes, I hasten to add—have been entirely fulfilled. Too many cases seem to have devolved to the familiar and expensive heavy artillery exchanges which take place in the courts. I do not suggest that individuals should be inhibited from employing legal representation, but the original vision was that the tribunal would provide surroundings—an atmosphere, if you like—in which interested parties could speak for themselves. This appears to be a diminishing hope. I fear that such developments are paralleled in other parts of the tribunal system. If you accept Peter Bauer’s contention that the law should be accessible and comprehensible, such developments are surely unwelcome.

Finally, I have a specific, technical point. The Charity Commission is the statutory regulator for the charity sector. It has a huge and important task, given that there are 160,000 regulated charities and probably as many again unregulated ones. Yet if the commission wishes to seek clarity on a point of law by taking a case to the Charity Tribunal—it might wish to do so to get general clarity for a number of charities which might otherwise have to pursue their own case—it has no power to do so, but can do so only with the permission of and through the Attorney-General. For the regulator of a sector, that cannot be a sensible state of affairs.

Worse than that, the Attorney-General can be exceptionally slow in responding to such requests. For example, in September 2016, the commission requested the Attorney-General to refer the issue of the Royal Albert Hall Corporation—a long-running charity saga—to the Charity Tribunal. On 4 January 2018—four months later—my noble and learned friend replied to a Parliamentary Question of mine, stating:

“The Attorney-General requested further information … He has now received that further information and expects to make a decision early in the year”.


Frankly, that is not good enough. This cumbersome and protracted procedure places the regulator of this important sector of our national life in an impossible position. We should surely move to a position where the Charity Commission is free to refer cases to the tribunal off its own back but must inform the Attorney-General that it is doing so.

The Bill has my support but, as other noble Lords have pointed out, we need to ensure that it represents more than just moving the furniture around if we are to keep pace with Peter Bauer’s belief in the importance of transparency and relevance in our judicial system.