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

Lord Judge Excerpts

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

[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.

[Lord Judge (CB)]

My Lords, one issue that arises is that, if we are to require more judicial training, it will have to be funded. The second point is that the Lord Chief Justice is responsible for the organisation of judicial training and a report from the Lord Chancellor—if I may say so, with respect—is completely unnecessary. These issues can be addressed by the Lord Chief Justice in his annual report.

[Lord Pannick (CB)]

Can the Minister say whether he thinks that Clause 1 of the Bill will make any significant contribution to resolving what the Lord Chief Justice has described as the unsustainable recruitment crisis that is facing the Bench?

--- Later in debate ---

[Baroness Chakrabarti]

My Lords, currently the Bill provides that regulations under Clause 3 shall be made under the negative resolution procedure and then interact with rules of court to be made and come into force without the need for parliamentary scrutiny altogether. This stipulation of which judicial functions may be delegated and to whom, and an authorised person’s requisite qualifications or experience, is to be provided with quite light parliamentary scrutiny. I would be grateful to the noble and learned Lord or the noble Baroness if they would say a little more in their reply about the relationship between the regulations and the rules for those purposes.

Since the fall of the Prisons and Courts Bill last year, there has been no parliamentary scrutiny, even by the Justice Committee, of the Government’s ambitious programme of expensive modernisation measures or the associated court closures and staff cuts. By providing that regulations in the Bill be made under the negative resolution procedure, the Government seem once more to be seeking to avoid proper parliamentary scrutiny, even in relation to quite significant changes to our justice system.

At Second Reading, in response to similar concerns, the Minister said that,

“the purpose of primary legislation is to implement law, not to review that which we can already do”.—[Official Report, 20/6/18; col. 2053.]

On reflection, I respectfully disagree with that constitutional analysis. To my mind, the legislative process is to create law and certainly, at times, to review, direct and even constrain government policy, particularly when it has the potential profoundly to impact on our justice system. Without careful scrutiny and additional safeguards, this governmental drip feed may be capable of eroding some of our most fundamental institutions. I beg to move.

[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.