Queen’s Speech

Lord Judge Excerpts

Monday 21st October 2019 Lords Chamber

[Lord Judge (CB)]

My Lords, in the gracious Speech there is a reference to the integrity of democracy. I will address the simple principle that the integrity of democracy in this country depends on the survival of the constitution. We have a great number of problems. We are not providing the constitution with the protection it needs, if I may say so, from Parliament. We never have time to examine these issues as a whole. We examine them piecemeal and do not appreciate that each part of the problem adds up to one problem overall, so I will pick four examples.

First, there is the obvious one. To avoid a political difficulty, Mr Cameron, with a great deal of support in Parliament, and, let us not forget, with its certain concurrence, gave us the Brexit referendum. The public were led to believe that their decision in the referendum would be binding on Parliament. They did not choose the questions that they had to answer; the questions were chosen for them. We now know what answer was given. It did not coincide with the views of the majority of people in either of our two Houses. Simply because a referendum has no real place in our constitution, the constitution did not provide and could not be expected to provide an answer to a simple question.

In such a clash, who wins? Those who support Brexit assert—it has been asserted in this Chamber time and again—that a democratic mandate was given to the people and that this overrides Parliament. The same has been frequently asserted in this House the other way around: the ancient principle that ultimate sovereignty rests with Parliament. What a constitutional shambles! It is a salutary lesson to all politicians on all sides that if you mess about with the constitution it will bite back, and it is the public and nation who suffer the consequent injury.

Secondly, as part of a deal to create a coalition Government—in other words, to deal with a political difficulty—the then Prime Minister, Deputy Prime Minister and Parliament enacted a new principle: the five-year Parliament. The result is that, although the Prime Minister of the day failed more than once to obtain parliamentary agreement to the deal she had agreed with the EU, an absolutely central part of her legislative programme, the country was deprived of the only constitutional way to resolve the problem: a general election. There should have been one, but there could not be. I am not saying that we need a general election now—I keep off general elections or referenda in the present context—but I am reflecting that what I am sure was an unintended consequence of this enactment is that an important constitutional principle was undermined. Before the constitutional change was made, did anyone give thought to how it might impact on that constitutional principle? I regret to say that I doubt it.

I come to my third point. All parties are involved in this. Until recently, the Lord Chancellor held office as a major member of the Cabinet, among other things, and as head of the judiciary, with special responsibility for safeguarding the constitution, the independence of the judiciary and the rule of law. That office has now been downgraded. It is no longer the pinnacle of a political career. In truth, it is a relatively minor ministerial appointment, in Cabinet terms. It will be remembered that this important constitutional change was simply announced to the public, before any discussion with Parliament.

So far as the constitutional responsibilities of the Lord Chancellor are concerned, we now have a Minister for the Constitution; I wonder how many Members of this House know that. However, that Minister is not a member of the Cabinet. Like the Lord Chancellor, the Minister does not have to be a lawyer. Therefore, the Minister for the Constitution is not a member of the Cabinet and, like the Lord Chancellor, he or she may never even have read the Ladybird book on the constitution. I am not forgetting the Attorney-General, but he or she is not a Cabinet member either and, in any event, the basic responsibility of the holder of that office is to give independent-minded advice to the Government when the Government are his or her client.

I would love to enter into the Prorogation question in this debate, but I will not. For today’s purposes, I should love to know whether the Minister for the Constitution was consulted in any way, shape or form about the proposal that there should be a Prorogation in September. If not, what is he or she doing? Why do we have such a role? I would argue that in the interests of our democracy and the importance of our constitutional arrangements to preserve that democracy, the Minister for the Constitution should at least be in the Cabinet. I do not expect that we will ever get back to the old-fashioned influence and responsibility of the former office of the Lord Chancellor, but this story is a very serious indication of whether we are at all bothered about the constitution. As things stand, the constitution has been relegated in the government structure and the Cabinet hierarchy. Do we think that is a good idea?

I will make one last point before this turns into a lecture. I want to highlight an issue which may not have crossed all your desks. I am very grateful to the Delegated Powers and Regulatory Reform Committee report of January 2018. Your Lordships’ House had nothing much to do with the Taxation (Cross-border Trade) Bill, as it was a supply Bill and therefore not for this House. Nevertheless, our committee reported in very troubled terms on the delegated powers in the Bill, which involved a massive transfer of power from the Commons to Ministers, with over 150 separate powers to make tax law affecting individuals and businesses, running to thousands of pages. Can we bear in mind that the essential foundation of all our constitutional arrangements and the ultimate sovereignty of Parliament depends on the principle which literally goes back to Magna Carta, Clause 12—that there should be “no scutage nor aid” without consent? That moved across the Atlantic in the principle which the Americans took from this country and summarised as “no taxation without representation”.

The report is utterly courteous, but it is damning about the powers that the Bill—now the Act—gives to the Executive. One example will do. Section 32 creates a regulation-making power, subject to not affirmative but negative procedure. It relates to regulations of the widest possible impact, including those on VAT and customs and excise duty, and of course includes all the ability to disapply primary legislation and so on. This is all on the basis of a “public notice” published by the Minister or HMRC commissioners.

The Public Law Project, a national charity, drew my attention to a new statutory instrument made in purported compliance with these powers. It also made a legal argument that the regulations were ultra vires the parent Act and threatened a judicial review. It has now been conceded that, in law, it was right. But that is a temporary victory. The Act remains in force and so do the wide regulation-making powers. We are not even aware of it. This is a return to rule by proclamation, but because nowadays we all know that we dislike that and are very aware of Henry VIII and the Statute of Proclamations, what do we do? We have a “public notice”—a notice that the Treasury, not the Commons, considers appropriate. This is taxation by proclamation. The mind boggles.

I have said this frequently before, so forgive me, but I simply want to highlight that, as Parliament, we vest vast powers in Ministers, the Treasury, HMRC or any other government department, to create laws and change laws. The constitutional framework is shifting. We are building our constitution on softer sand; not loudly or so anybody notices, but it is happening.

For those noble Lords who are disturbed, let us not forget that criticism should be directed to Parliament. It is up to us. It is very simple: if we want to guard our democracy and its integrity, we must guard our constitution against temporary political advantage or expediency. We must be alert to it and we must fight it. Our constitution is wonderfully flexible, but even a wonderfully flexible constitution can be tested to destruction. That is what we must avoid.

[Lord Framlingham (Con)]

Would the noble and learned Lord agree that in times such as this, it is so important that we rely on our tried parliamentary machinery, and that in recent times we have altered that parliamentary machinery without giving due thought to the consequences?

[Lord Judge]

My short answer is “yes”, but it would be a very long answer if I explained why and what my reservations are about my “yes”.

Sentencing (Pre-consolidation Amendments) Bill [HL]

Lord Judge Excerpts

Tuesday 23rd July 2019 Other Business

Debate on whether Clause 5 should stand part of the Bill.

[Lord Judge (CB)]

My Lords, before we get to Clause 5, I wonder whether this might be a convenient moment, this being a special Public Bill Committee, for me to say something about the way in which the committee has worked and the issues that we have resolved, so that they are a matter of public record given the unusual circumstances of the Bill.

The committee has met and taken oral evidence from Professor David Ormerod of the Law Commission and from the noble and learned Lord, Lord Keen of Elie, the Minister responsible for the Bill. We also received evidence from the Criminal Appeal Office and the Prison Reform Trust, and from Professor Andrew Ashworth and Professor Nicola Padfield, both of whom are acknowledged experts in sentencing law. We received supplementary written evidence from Professor Ormerod and the noble and learned Lord, Lord Keen, which addressed the issues raised during the committee’s oral hearing. The committee agreed that this written evidence should be accepted and indeed published. Beyond that, the committee had before it the sentencing code summary, the detailed sentencing code report and the sentencing code itself—all very substantial documents. This enabled us to examine the wide breadth of the consultation programme in which the Law Commission had engaged, and the responses to that process.

It is beyond controversy that the law relating to the sentencing powers of the courts is in desperate need of clarification. The adoption of this sentencing code is an imperative. The Bill, however, is mechanical. It does not, and is not intended to, address sentencing policy problems, nor is it a Bill intended to reform the law of sentencing. For example, one current policy question is whether there are any circumstances, and if so what, in which a short prison sentence may be imposed, or whether such sentences should be abolished. I suspect that if the members of the committee—some of whom are here today—had sought to address this single question, we might have been discussing and receiving evidence about it for many months.

There are many other outstanding questions, such as the continued detention, well beyond the normal sentencing tariff, of those ordered to be subject to imprisonment for public protection. There is a whole raft of policy questions. Therefore, it is important to emphasise not only that the Bill is not intended to address complex policy questions but that, if the Bill is enacted and the sentencing code comes into force, the policy questions will remain open for further public discussion and parliamentary decision.

Beyond the policy question, we also recognise that the consolidation provisions in the Bill do not cover every single aspect of every single sentencing enactment that might apply to conviction of a particular crime in particular circumstances by a particular offender. For example, the complexity of the confiscation provisions vested in the court after conviction is notorious. That issue is addressed in a separate further proposal.

Without wanting to suggest that they are not difficult, at the other end, there are also what may be described as the fiddly bits of a sentencing decision; for example, where and in what circumstances jurisdiction to make a protection order would arise. I am speaking for myself, although I think I speak for the committee also, when I say that I am satisfied that it would be contrary to the public interest to postpone the implementation of the code in its present form—it is a massive project, which has taken literally several years to bring before Parliament—until after the remaining questions have been addressed. At the moment, the code provides opportunity to improve and make the sentencing process much more straightforward and less prone to error; it is urgently needed.

Again, I emphasise that the enactment of the Bill and the coming into force of the sentencing code should not be seen as the end of the process but as a very large and important step in it. We were invited by Professor Padfield to treat the Bill as an interim measure; she made a powerful argument. As and when the further consolidation proposals are received from the Law Commission, I urge that the Government of the day see it as a matter of obligation to bring them to Parliament, not “as soon as practicable”—those are slightly weasel words—but forthwith. It is not a difficult process and we have not found it particularly time-consuming in Parliament, though the reading has been substantial.

The issue with which every member of the committee, and indeed many of those who responded to the consultation, was concerned can be summarised in a single word: “retrospectivity”, or perhaps in two words, “no retrospectivity”. If I may, I shall adopt Professor Ashworth’s identification of the principle at common law and embodied in Article 7 of the European convention: the defendant should not be subjected to a heavier penalty than the one that was applicable at the time the offence was committed. It is a simple and clear definition. The particular importance of applying this principle to this code and enactment is that, over the years, Parliament has steadily increased the maximum penalties for a number of offences including, for example, indecent assault. Many cases of sexual assault are now prosecuted and tried as historical cases, going back very many years. For such an offence committed in, say, 1988 or 1998, the sentence available then—not that available now—binds and limits the sentencing court.

We are satisfied that the retrospectivity issue has been properly addressed in what has been described as the “clean sweep” approach, in particular Clause 1(4). Beyond that, we did not find a single observation in the evidence which suggested or implied that there could be any doubt that the retrospectivity issue had been properly addressed. Yet further beyond that, my personal view is that if a sentence which infringed this principle were imposed, it would, at common law and under Article 7 of the convention, be corrected as an error. But importantly, the statute leaves the question beyond doubt.

Some concern was expressed in the committee about the possible extent of the regulation-making powers granted to the Secretary of State, in particular whether the Bill granted powers that would enable him or her, by regulation, to alter sentencing levels—especially, of course, to increase them. As Governments of different hues have developed what I describe as an unfortunate tendency, although that is rather polite, to try to create criminal offences punishable with imprisonment by the exercise of regulation-making powers, this concern obviously required careful analysis. I suspect that any court faced with any alteration to sentencing levels said to be derived from powers created in the Bill would be extremely dubious about construing the Bill in this way. Beyond that, however, in his recent written evidence the Minister pointed out that the regulation-making power in Clause 2(2) applies only to any potential amendments that facilitate, or are otherwise desirable in connection with, the consolidation process; and that Clause 5(3)(a) restricts the amending power to pre-consolidation amendments. In my view, the regulation-making powers in the Bill, which are concerned exclusively with the consolidation of legislative provisions currently in force, is not open to potential misuse by the Secretary of State.

We were also troubled by a problem over which we have no control and which I wish to highlight. It has nothing to do with the statutory provisions with which we are concerned, but with the danger that, unless great care is taken with the enactment of criminal legislation, particularly sentencing provisions—and, if I may say so, taken with infinitely greater care than in past enactments, which has caused all the problems—the code itself will be out of date within a major criminal justice statute or two. Given the rate at which such statutes are enacted, that would not be very long—possibly before the consolidating process of what I have described as the fiddly bits has been completed.

This code is pre-eminently a provision to which the words “living instrument”—my words—should be applied. It must be capable of adaptation and development as sentencing provisions and, in due course, policies change. The whole purpose of the code would otherwise have been lost. It would have been built, in the word used by one member during our discussions, on dust. That makes it imperative that when sentencing provisions are introduced, amended or repealed, express provision should be made in that primary legislation for the incorporation of those new provisions, as I shall now call them, into the sentencing code. We, and more importantly the Law Commission, given the extraordinary burden it has carried for several years now, will otherwise have been wasting our time.

Before long, sentencing courts will be struggling with the difficult problem of deciding what the sentence should be. If I may pause there, I think many judges would say to the Minister that, with the possible exception of deciding where children should live when there are problems at home, a decision about what sentence should be imposed on an individual is one of the most difficult problems that any judge can face anyway. They would be faced not only with the difficult problem of deciding what the sentence should be but with the ludicrous task of examining complicated legislation to ascertain what the court’s lawful sentencing powers are.

I have said all that I wish to say on this beyond thanking our team, led by John Turner, very much for their help and their immediate response to a Bill that has come through the House very rapidly and needed close attention from all those involved behind the scenes.

[Lord Keen of Elie]

My Lords, I want to make one or two observations for the record in response to the comments made by the noble and learned Lord as chairman of the committee.

Clearly, as was observed, the clean sweep mechanism is subject to exceptions to ensure that no offender is subject to a greater maximum penalty than was available or subject to a minimum or mandatory sentence that did not apply at the time that the offence was committed. Of course, a clean sweep allows for a different sentencing disposal than would have been imposed had the code not been enacted. The guideline judgment in R and H v UK in 2011 sets out that sentencing exercises should be conducted on the basis of current sentencing law by measured reference to any definitive and relevant sentencing guidelines, and that while sentences must be limited to the maximum available at the time of the offence, it would be unrealistic to try to assess what the sentence would have been had the case been heard years, or even decades, earlier.

My only additional comment is that the clean sweep will extend the duty of the courts to follow sentencing guidelines, thereby removing the previous duty to have regard to sentencing guidelines in relation to offences committed before 6 April 2010. Accordingly, the code will extend the current duty to follow sentencing guidelines to all convictions that follow the enactment of the code.

Northern Ireland (Executive Formation) Bill

Lord Judge Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 15th July 2019 Lords Chamber

[Lord Browne of Belmont]

I thank the noble Lord for his intervention, but I understand that that was on a very narrow case of fatal foetal abnormality. I will address that matter shortly, which should answer his question.

The chief commissioner of the Northern Ireland Human Rights Commission recognised that the recommendations were non-binding in oral evidence to the Women and Equalities Select Committee in the other place when it was reviewing the law in Northern Ireland. Professor Mark Hill QC wrote an opinion about the CEDAW report, in which he stated:

“The Committee does not have the capacity or standing to give a binding adjudication on the United Kingdom’s obligations under CEDAW or on the proper interpretation of CEDAW”,


made the point that the International Court of Justice had not interpreted CEDAW as providing a right to abortion, and said:

“The interpretative function under the CEDAW is reserved, not to the Committee, but to the International Court of Justice.”


If this is not enough to convince your Lordships that the authority being given to this Committee is flawed, I shall quote from a Supreme Court judgment —R (A and B) v Secretary of State for Health—in which Lord Justice Wilson said:

“The conventions and the covenant to which the UK is a party carefully stop short of calling upon national authorities to make abortion services generally available. Some of the committees go further down that path. But, as a matter of international law, the authority of their recommendations is slight”.


Here we come to the case that the noble Lord, Lord Bruce, referred to. The judgment in that case stated:

“If the Supreme Court rules in the case of Sarah Ewart that there is a right in relation to fatal fetal abnormality, then that would create a very strong case for a small but important change to the law. It would not, however, create anything resembling a general right to abortion”.


Indeed, the basis for thinking that the court might support a right in relation to fatal foetal abnormality is what was said in relation to a case last year, in which the plaintiff did not have standing, so no rule was made. The court also gave another indication, to the effect that there is no human right to abortion on the basis of disability generally—something permitted in Great Britain.

Secondly, the medium of human rights is normally expressed as a check on the majority expressed through constitutional due process. This is highly ironic, given that the only reason we are here is the complete disregard of constitutional due process manifested last week in the other place, where we saw: dispensing with scope; debate being permitted in relation to out-of-scope issues that should have been the subject of their own Bill, even though the Bill before the House was being fast-tracked; and the imposition of a change on the part of the UK with the smallest population, and thus the smallest number of MPs, by MPs from outside Northern Ireland

The ethic that the end justifies the means is the kind of thing that constitutional checks are supposed to guard against, not encourage. If the proponents of Clause 9 press their case on the basis of the end justifying the means, as at present, that will cast a great shadow over the integrity of their human rights pretensions. If we want to live in a functioning union, by all means let us talk about human rights, but do not use them wrongly to suggest that there is a general right to abortion when no such right exists, and do not use them to dispense with the respect for constitutional due process, the presence of which can facilitate a functioning union, whereas disrespect for it will bring about its demise.

[Lord Judge (CB)]

My Lords, I wonder whether I may be allowed two minutes to look at the provision that we are considering, which is Clause 3(6). What is proposed is,

“a review of the current legal framework on abortion in Northern Ireland with an analysis of how that … could be amended by Parliament … when there is no Executive”,

followed by these very important words, which I have not heard this afternoon,

“subject to a sunset clause to respect devolution”.

I read that to mean that whatever we may do, when there is an Assembly in Northern Ireland, it will be up to the Assembly to decide what the law should be in that country. It may revert to the law as it is now—but we hope that it will not.

[Baroness Boycott (CB)]

My Lords, I find this debate really shocking, and I support my noble friend Lady Deech and the other noble Baronesses. I have campaigned for women’s rights all my life, and the one word I have not heard tonight is “kindness”. I do not think any woman has ever wanted to have an abortion, and I am shocked by a lot of the attitudes coming through, which imply that women go for abortions in a willy-nilly, uncaring fashion. In fact, this is a terrible decision for any woman; it is not undertaken lightly, or without thought, worry and anxiety. Women have abortions because they do not feel that they can bring that child into this world and give it the care, love and family life it is due. This is something that has been absent from the debate, and I am shocked to stand here listening to men—as my noble friend Lady Deech says, it is men who are saying this. If it were men in those shoes, things would be different. They are entitled to stay overnight and then go off and leave a woman with the consequences. This is a human right; it is about kindness and decency. It is astonishing what is happening, 50 years on. I have been in this House for one year and two days, and I am shaking as I listen to all this again. We have had this argument. This is a human right and human decency, and we should not stand in the way of the women of Northern Ireland, who deserve it.

Courts and Tribunals (Online Procedure) Bill [HL]

Lord Judge Excerpts

3rd reading (Hansard): House of Lords
Tuesday 2nd July 2019 Lords Chamber

[Lord Beith (LD)]

I think we are in danger of slight confusion, with too many amendments moved at the same time. This is obviously a mark of the Minister’s enthusiasm for his amendments, which is actually shared by Members around the Chamber, because they are the fruit of the discussions to which he referred. I simply want to say, before it all becomes water under the bridge, how very much I welcome the Minister’s Amendment 3, which fully achieves what I have been trying to do in amendments both in Committee and on Report. This is, as the noble and learned Lord indicated, to ensure that someone who does not feel comfortable with or able to use the online system can participate in the same process using paper, can receive any documents they have to receive and can put in any subsequent documents, not just the initiating documents, on paper, because the Courts Service will scan the documents and provide the necessary copies as well.

I suspect that this is a minority and even a generational thing. When people like me have ceased even to think of engaging with court cases, or are lying beneath the ground, everybody will be online—but that is certainly not the situation at the moment. We do not want the law to be blind to the concerns of those for whom this is a very new kind of proceeding, and one for which they do not have the necessary skills or experience, particularly when dealing with something as difficult as a legal case. So I am very grateful to the Minister for all he has done in this respect and I support this—and indeed his other amendments.

[Lord Judge (CB)]

My Lords, I support not only the amendments to which my name is attached but all the amendments proposed today. Taken with the earlier amendments which the House considered and which the Government have added, this makes for a much better Bill than ever it was. The particular point I wish to emphasise is that, as a result of these changes, the House, and in particular the Government, have recognised the impact of the constitutional reforms of 2005. The emphasis ought now to be recollected whenever there are any proposals to address the way in which the courts system works. Beyond that, I thank the noble and learned Lord, Lord Keen, for his personal contribution to the discussions and improvements—and, through him, I thank his team.

[Lord Beecham (Lab)]

My Lords, I join noble Lords who have spoken in this very short debate in thanking the noble and learned Lord for the way he has approached the Bill. He has sought very clearly to achieve consensus; he has been open to discussion; and he has obviously been persuaded to make important changes. It is something he might like to have a word with other ministerial colleagues about, because it has not always been the case that Ministers have responded so constructively to debates in the Chamber. On this occasion, I am sure that the House will unanimously agree these amendments. Certainly we on these Benches—such as we are this afternoon—will do so.

Courts and Tribunals (Online Procedure) Bill [HL]

Lord Judge Excerpts

Report stage (Hansard): House of Lords
Monday 24th June 2019 Lords Chamber

[Lord Pannick (CB)]

My Lords, I thank the Minister and the Bill team for their very positive response to the concerns expressed around the House in Committee. I agree with all the points made by the noble Lords, Lord Marks and Lord Beith, and I support their amendments. I am particularly concerned about government Amendment 4 for the reasons that the noble Lord, Lord Beith, indicated. It is expressly confined to the initiation of proceedings and does not in terms cover, as it must, the right to submit further paper documents and to receive paper documents if the litigant so elects. I very much look forward to the Minister confirming what the noble Lord, Lord Marks, indicated—that the Minister intends to address this point at Third Reading.

I much prefer the solutions offered in the various amendments to which the Minister and the noble Lords, Lord Marks and Lord Beith, have spoken, to Amendment 7 tabled by the noble Lord, Lord Beecham, with all due respect to him. As I understand it, his amendment would allow for regulations, under which the party bringing proceedings could choose whether proceedings are under the Online Procedure Rules or the standard rules. I can see no justification, particularly if the other amendments are agreed, for allowing people to choose which rules apply, especially if paper documents can be fed in and received under the Online Procedure Rules. Such an amendment would, I fear, damage the whole purpose of the Bill. It would give litigants an option as to which rules apply and benefit no one other than those who wish to make a simple claim subject to a more complex and more expensive procedure as, for example, a negotiating tactic.

[Lord Judge (CB)]

My Lords, I shall say just a word or two in support of these amendments. Amendment 2, by adding the two words “providing for”, and Amendment 3, by removing the one word “technical”, would rather improve the clause. Amendment 5 improves government Amendment 4, which itself was an improvement. If I may, I will paraphrase how I understand Amendment 5 would work: if you are not digitally educated and you would prefer to use paper you may do so, and if you do your papers will be incorporated into the electronic system. The amendment would provide that you are entitled to continue to use your own paper and your own paper system because the electronic system would be perfectly well able to provide you with all the paper you need. There should be no difficulty about it at all.

Amendment 5 is consistent with Amendment 18 to Clause 7, which has the interest of those who require technical support to be protected. It also, for the reasons given by the noble Lord, Lord Pannick, effectively makes Amendment 7 in the name of the noble Lord, Lord Beecham, to Clause 3 redundant because the paper user would then not be at any disadvantage. For the reasons he has given, the idea of having two systems running side by side would, among other things, be a recipe for those who do not want justice to be done and who want to confuse and to avoid getting the system to court for a hearing.

[Baroness Drake (Lab)]

My Lords, I too will speak to Amendments 3, 5 and 9A. In their Amendment 1, the Government accept that to secure accessible and fair court online practice and procedures, regard must be had for the needs of those who require support to initiate, conduct, progress or participate in electronic proceedings. Their Amendment 4 would allow a person to initiate proceedings by non-electronic means—that is, in paper form—but they are silent on allowing people the same facility at other stages, even though they recognise that regard must be had to those who will need support throughout all stages of the proceedings. That non sequitur is addressed by Amendment 5, which allows for further documents in all stages of proceedings to be submitted in paper form.

In Committee, noble Lords debated at great length the potential impact on access to justice for court users with limited digital means, digital literacy, or capacity to engage digitally. The Minister has accepted that some people find it difficult to engage with such digital procedure, but the Bill contains no general duty on the provision of such support, which Amendment 9A would provide. It is therefore a welcome amendment.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, the amendments in this group deal with the issue of concurrence. Again, I thank noble Lords for their contributions on this topic at Second Reading and in Committee, and for their continued engagement on the matter outside the Chamber. We listened to the points made in these discussions and sought to address some of the concerns raised. I have tabled a range of amendments which I hope will provide suitable assurances for noble Lords. The amendments in this group deal specifically with the matter of concurrence in Clauses 2, 3 and 12. That is because I am now persuaded that the question of which proceedings fall under the auspices of the new Online Procedure Rule Committee should be a matter for agreement between the Lord Chancellor and the Lord Chief Justice. Therefore, these amendments make the necessary changes to Clauses 2, 3 and 12 to provide for this.

The amendment to Clause 12 also allows the Lord Chief Justice to delegate agreement to other members of the senior judiciary, which is purely a matter of practicality. I hope the amendments will be welcomed by noble Lords. They provide an important safeguard for the operation of the new committee. In particular, they address the concerns expressed by noble Lords at previous stages that the future expansion of the role of the committee should be subject to appropriate scrutiny and that in such matters the right relationship with the Lord Chief Justice and Senior President of Tribunals is one of concurrence. On reflection, this is a position which the Government now accept, and in these circumstances, I beg to move.

[Lord Judge]

My Lords, the Government have come a long way and I am now addressing not only the amendments put forward by the Government but Amendments 22 and 23. I begin by thanking the noble and learned Lord, Lord Keen, for kindly listening to what we had to say and for acting on it, and the Bill team for helping him get the wording right. It means that the Government have come a long way towards understanding the implications of the constitutional changes in 2005, which changed the relationship between the Lord Chancellor and the Lord Chief Justice and placed on the Lord Chief Justice responsibilities that once attached to the Lord Chancellor. The Lord Chief Justice now has personal responsibility for the arrangements by which litigation is conducted. To the extent that this relates to tribunals, the Senior President of Tribunals has the same responsibility. I welcome Amendment 12 and government Amendments 6, 8, 25, 26, 27 and 28, and shall welcome government Amendments 10 and 15 in the next group.

The difference between being consulted and requiring concurrence needs no emphasis. If you are consulted, what you say can be totally disregarded; concurrence means what it says. Despite all that I have said, I am sad to say that although the noble and learned Lord, Lord Keen, has taken his car a long way down the road of logic and constitutional sense, his vehicle has run out of fuel and failed to reach its logical conclusion.

The position can be summarised very briefly. Amendments 22 and 23 to Clauses 8 and 9, respectively, concern two clauses which, as drafted, give exceptionally wide powers to a Minister. Indeed, Clauses 8 and 9, I am afraid, are in the sadly standard form of donating, handing over or retaining power to the Executive which we now find in just about every Bill that comes before us.

The first six clauses, whatever other comments may be made about them, recognise that the government amendments in group three address the constitutional responsibilities. That is fine. Clause 7(3) gives the Minister an unconditional power to,

“allow or disallow Online Procedure Rules made by the Committee”,

provided that written reasons are given for doing so. In other words, he does not have to consult the Lord Chief Justice if he thinks that the rules put forward are not sensible or appropriate, or that they would cost too much money. That prevents the committee going off on a frolic of its own—or, indeed, putting forward rules with the concurrence of the Lord Chief Justice which, for example, involve unreasonable expenditure. That is very sensible. I do not cavil at the idea incorporated in Clause 7(3) and the individual responsibility of the Lord Chancellor in that regard.

However, taken together, Clauses 8 and 9 unbalance the relationship. The Lord Chief Justice falls out of Clause 8 altogether—he does not get a mention. He is reduced or left to the consultation process in Clause 9, which is entirely inconsistent with the provisions in the Bill that the Government amended to allow for concurrence rather than consultation. Under Clause 8, the Minister has power to direct that the rule committee shall include provisions to achieve the Minister’s purposes and that, when such a direction is given, the committee has no option but to comply within a reasonable time. It is that stark; the power is vested directly in the Minister.

It is one thing—and perfectly sensible—to protect the Lord Chancellor from some wild or absurd rule committee proposal. It is, with great respect, quite another for him to have an unconstrained power to give it directions: in effect, to tell it what to do. The Minister may, by Clause 9(2), also don the tarnished crown of King Henry VIII, who is not, of course, King Henry VIII to the noble and learned Lord, Lord Keen; I am not sure what he is to Scottish history—probably nothing. Would it not be wonderful to have a history in which Henry VIII counted for nothing? It would certainly be a convenience to this House if he did not count for very much.

So, if he wishes, the Minister may don this tarnished crown if he considers it necessary or desirable to facilitate the making of the rules. On closer examination, if you put these two clauses together, this arguably means that the Minister may overrule the very rules which were made with the concurrence of the Lord Chief Justice or his predecessor.

The Bill should be logical. The Lord Chief Justice’s concurrence to the exercise of these powers is elementary. The Bill and the government amendments now recognise it; the Minister has his safeguards in Clause 7(3); Amendments 22 and 23 make similar safeguards available to the Lord Chief Justice. I invite the Minister to refuel his car and keep right on to the end of the road.

[Lord Pannick]

My Lords, I declare my interest as a practising barrister. I too thank the noble and learned Lord, Lord Keen, for the important amendments which he has tabled, which will ensure that the concurrence of the Lord Chief Justice is required under Clauses 2 and 3. However, I have added my name to the amendments tabled by the noble and learned Lord, Lord Judge—in particular, Amendments 22 and 23—similarly to require the concurrence of the Lord Chief Justice for the exercise of the powers being conferred on the Minister under Clauses 8 and 9.

Clause 8 is an extraordinary clause. It would confer power on the Minister to require the committee to include a specified provision if the Minister thinks it is “expedient” to do so, and if the committee were to be so required, it would have a legal duty to comply. “Expedient” is the broadest possible word to define the scope of such a power. If Clause 8 is enacted as drafted, the requirement for the concurrence of the Lord Chief Justice under Clauses 2 and 3, which we all agree is necessary, would be rendered pointless. The Minister could simply override the views of the Lord Chief Justice in relation to any relevant matter under Clauses 2 and 3. I know that the noble and learned Lord, Lord Keen, does not share that view, and I look forward to him explaining why there is a limitation on what appears to be, and indeed is, the broadest possible drafting in the language of Clause 8. It contains no express limitation, and it seems very difficult to argue that there is an implied limitation that would prevent the Minister rendering pointless what is in Clauses 2 and 3 when the very purpose of Clause 8 is to give the broadest possible discretion to the Minister to give directions to the committee with which it must comply. Since the Minister has rightly accepted that, in the context of provisions about access to justice—which is what we are talking about—it is necessary for the provisions to require the concurrence of both the Minister and the Lord Chief Justice, there can nevertheless be no justification for conferring on the Minister by Clause 8 a power to override the views of the Lord Chief Justice on these important matters.

Clause 9 confers, as the noble and learned Lord, Lord Judge, said, a broad Henry VIII power on the Lord Chancellor to amend, repeal and revoke other legislative provisions whenever the Lord Chancellor considers it “necessary or desirable” in consequence of the Online Procedure Rules or to facilitate the making of Online Procedure Rules. Again, these are exceptionally broad powers, touching centrally on access to justice. For the same reasons that require the concurrence of the Lord Chief Justice for the exercise of powers under Clauses 2 and 3, it is necessary to require the concurrence of the Lord Chief Justice for the exercise of powers under Clause 9.

--- Later in debate ---

Moved by

[Lord Judge]

22: Clause 8, page 8, line 13, at end insert—
“( ) The appropriate Minister may only give written notice under this section with the concurrence of the Lord Chief Justice.”

[Lord Judge]

My Lords, I understand the difficulty raised in our earlier debate by the noble and learned Lord, Lord Mackay: that other committees work on a different basis. However, all those committees were created before the constitutional change. What is more, the committee we are envisaging in the Bill will actually have power to decide how the other committees will operate—at any rate, in relation to the digital world. That makes it different, but the fact is that we have had a change to the constitution and the Bill should recognise it.

I have looked at Clause 8 and I would love a debate with the noble and learned Lord, Lord Keen, about what,

“achieve a purpose specified in the notice”,

might mean, and about the provision that the committee must do what is,

“necessary to achieve the specified purpose”.

It would be a wonderful debate. The difference between us is that he says that means the same thing as what it says in Clause 2. However, that is not what it says in Clause 2. Clause 2 relates to “specified kinds”, which is a completely different consideration. What in the end we have here is the ability under Clauses 8 and 9, taken together, of the Executive to decide how litigation shall be conducted. That is what is objectionable about it and I seek the views of the House.

--- Later in debate ---

Moved by

[Lord Judge]

23: Clause 9, page 8, line 25, at end insert—
“( ) Regulations may only be made under this section with the concurrence of the Lord Chief Justice.”

[Lord Judge]

I am afraid I must ask for the opinion of the House on this amendment as well.

Division to Amendment 23 called. Tellers for the Not-Contents were not appointed, so the Division could not proceed.

--- Later in debate ---

Moved by

[Lord Judge]

24: Clause 9, page 8, line 26, leave out “the Lord Chief Justice and

Sentencing (Pre-consolidation Amendments) Bill [HL]

Lord Judge Excerpts

Second reading committee (Hansard): House of Lords
Wednesday 12th June 2019 Grand Committee

[Lord Judge (CB)]

My Lords, I shall mentioned just a few facts. When I retired as Lord Chief Justice, it was already a matter of urgent necessity that we should have a sentencing code. The various difficulties have already been analysed, but I want to add one: that, from time to time, men and women were detained in custody in prison for longer than they should have been because, just as judges found difficulty understanding the criminal justice system, so indeed did the Prison Service. What does this sentence mean? Does this mean that he or she can be given a date of release for x, y or z? From time to time individuals were detained for longer than they should have been.

I have personal experience of a case—it still troubles me hugely—of a young man who was 17 when he committed a relatively minor indecent assault and was put on probation. It seemed a very sensible decision. He broke the probation order and then ran into difficulties, so he was more or less in and out of the courts for some time. By November 2004, he was arrested because by then he had not notified his change of address on a number of occasions. The issue before the court was whether he complied with the notification provisions. This is not major stuff, but there is a provision which requires sex offenders to notify their changes of address. It is a perfectly sensible piece of legislation. When he was hauled before the Crown Court on an indictment alleging this failure, the poor judge who had to decide the case reserved his judgment and decided that the man was guilty of the offence. He sentenced him to three months’ imprisonment.

There was an appeal, because the issue was obviously arguable, and it came before a court on which I presided. Slocombe was the case. What did we have to look at to decide whether he should have notified a change of address? There was the Sex Offenders Act 1997 and the Criminal Justice and Public Order Act 1994—I put them that way round, apparently strangely, because the relevant provisions had come into force in March 1998; that is, after the Sex Offenders Act had come into force. Before the judge it was assumed that there was nothing in the Sex Offenders Act 1997 which had any relevance to the issue, but then it emerged that there had been an amendment to Section 4(1)(a) of the 1997 Act in paragraph 144 of Schedule 8 to a 1998 Act. That came into force on 1 April 2000 and—would you believe it?—four months later the provision was repealed, but the time mattered because May 2000 was when the young man was being sentenced.

After the relevant provisions had been in force for four months, they were repealed when the Powers of Criminal Courts (Sentencing) Act was introduced. My recollection is that we could not find the four months in which those particular powers applied when we looked on a computer. I was not looking on a computer, but people who could use one were looking for them. Eventually, we found the text by ploughing through the old library. No one at the Crown Court could be blamed because, in the end, we had to look at Section 81 of the Sexual Offences Act 2003. That resolved the difficulty, and we decided that the man had not been obliged to notify his change of address. He had pleaded guilty on the basis of a misruling by the judge and had served a three-month sentence for something that he had not committed. That was shocking.

May I add that the account I have given the Committee does not tell your Lordships what notification requirements mean? They involved us looking at these differences in definition: you had to decide between words such as “imprisonment for a term for more than six months but less than 30 months” and “a person sentenced to imprisonment for a term of six months or less”, or, in the case of a young offender “the equivalent sentence of imprisonment”. We had to look at the difference between a period that a person is “liable to serve under a secure training order”—notice “liable to serve”—with the phrase “shall be subject to a period of detention in a secure training centre”, all as part of the legislation which bore on the question of when this young man had finally cleared himself of his notification obligations.

As to where the current law stands on sentencing, in 2015 there was a total of 1,300 typed pages. That was only the current sentencing law because it did not cover the older cases: for example, death by dangerous driving. When I started at the Bar, the sentence for that was two years; then it went to five years, then to 10 years and then to 14 years. There were 14 major pieces of primary legislation, starting with the Criminal Justice Act 1991, followed by—if you want to hear it—the Criminal Justice Act 1993, the Crime (Sentences) Act 1997, and then other Acts in 1998, 2000, 2002, 2003, 2005, 2007, 2008, 2009, 2012, 2014 and 2015, ending, as at this time, with the Assaults on Emergency Workers (Offences) Act 2018. Lord Chief Justices do not beg, but as Lord Chief Justice, I pointed out to the then Government that a significant reduction in sentencing laws would be a good idea. I failed. I ask noble Lords to look at the facts and decide whether this is a well-justified Bill.

Courts and Tribunals (Online Procedure) Bill [HL]

Lord Judge Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 10th June 2019 Lords Chamber

Moved by

[Lord Judge]

9: Clause 2, page 3, line 17, at end insert—
“( ) Regulations may only be made under this section with the concurrence of the Lord Chief Justice.”

[Lord Judge (CB)]

My Lords, since Second Reading, when I argued in support of these amendments, I have had a meeting with the Minister and, notwithstanding his customary courtesy, I was unable to persuade him of the good sense of these amendments. Listening to his response to today’s debate, it is quite obvious that we cannot expect a Damascene conversion on his part, but did I detect the tiniest shining light—the dawning of a better understanding of why these amendments should be made? If I detected a light, it was only a faint one and I shall certainly not turn the lights off. If we are talking about dawns, nor shall I allow any clouds to obscure my meaning.

We have discussed the issues and I shall not go over those that have already been ventilated in our debate. Lord Justice Briggs’s report is admirable and I continue to support it, but it was a report directed to a small feature of the system of litigation. The Bill, as has been said but is worth repeating, has the potential to cover every single aspect of the administration of civil justice, every single aspect of the administration of family justice and the entire tribunal system. It is difficult to exaggerate the level of interference with the administration of justice in all the areas that the Bill would give to the Lord Chancellor. As I say, the issues have been addressed and I shall not repeat them, but I have heard the Minister say on a number of occasions, “It’s all right because there is the committee with a judicial involvement”. Indeed, in answer to an earlier debate, he pointed out the happy differences between this committee and the Family Procedure Rule Committee, the Civil Procedure Rule Committee and so on. But there are two that he did not grasp and they are the ones that matter.

This is a committee on which the judiciary will be in a minority and it is the first such committee. It will be a committee of which the majority of the members will be appointed by the Lord Chancellor. Let us pause and think about that. The majority will be appointed by the Lord Chancellor and presumably it will be for him to dismiss them if he disagrees with them. That is consistent with the pernicious modern tendency, which I have go on about before, of our being asked to vest greater powers in the Executive—in this case in one Minister. We have become inured to it and it is particularly incongruous in the context of the administration of justice, where, as a matter of constitutional necessity, everyone accepts that the powers should be separate.

Since the constitutional reforms made in the early 2000s, ultimate responsibility for the administration of justice is vested not in the Lord Chancellor or in any other Minister of the Crown, but in the office of the Lord Chief Justice, an office I had the privilege to hold. At the time, none of the judges was urging any such change; we did not want to get rid of the Lord Chancellor. The noble and learned Lord, Lord Mackay, was not the Lord Chancellor at that time, but we were very happy with who we had had and did have. It came as a complete surprise to the judiciary, therefore, but it has come, and the consequence is this: a reduction in the responsibilities of the Lord Chancellor for the administration of justice, and a significantly enhanced responsibility of the Lord Chief Justice. He is responsible for what happens in the court system, and that must be understood when we are contemplating this Bill.

With one important exception—important for a reason to which I shall come—under the Bill in its present form, in the discharge of his responsibility for the day-to-day running of the family courts, the civil courts and, to the extent that he has responsibility over the tribunal system, the tribunal courts, the Lord Chief Justice is granted what is pushed as a “privilege” to be consulted by the Lord Chancellor if the Lord Chancellor and his committee have any proposals for change. However much the noble and learned Lord, Lord Keen, may be frightened of what the Lord Chief Justice may say, a political Lord Chancellor disagreeing with the Lord Chief Justice can simply disregard whatever he may say. It would for years, no doubt, be done with appropriate courtesy—and I hope that, in years to come, it will always be done with appropriate courtesy—but there is no guarantee even of that. But pause here because, after these changes have been implemented, the responsibility if they fail to work will fall not on the Lord Chancellor but on the Lord Chief Justice—even if, when consulted, he or his predecessor argued against them. In those circumstances, limiting the role of the Lord Chief Justice to consultation is absurd.

The change in the relative responsibilities of the Lord Chancellor and the Lord Chief Justice has been understood and acknowledged in earlier arrangements. Thus, for example, when the question arises of whether court proceedings in England and Wales may be televised—and, if so, which part of such proceedings may be televised and what damage there may be, if any, to the administration of justice depending on what proceedings are televised, or how the administration of justice may be advanced if part of the proceedings are televised—that decision is not vested exclusively in the Minister, who may after all have political reasons for his decision; it requires the concurrence of the Lord Chief Justice. On disciplinary proceedings, if a judge has misbehaved or misconducted himself or herself, there is a requirement for concurrence between the holders of the two offices. What is more, the Bill itself, in Clause 6(2), recognises circumstances in which concurrence is appropriate. The amendments proposed to this and the remaining clauses are therefore entirely consistent with a provision in the Bill and with other provisions outside it.

Concurrence of the Lord Chief Justice, and where appropriate the Senior President of Tribunals, is necessary surely when an issue affects the administration of justice on a day-to-day basis. That is what the Bill is about: the administration of justice, day to day. Questions of how proceedings in whichever area of law may be conducted and how they may not; whether, and if so in what circumstances, they must be conducted digitally or on paper; whether and how the interests of litigants who are not proficient are upheld, as we discussed earlier—that is all part of the day-to-day requirement of what goes on in our courts. There is one final consideration, which always seems to me to matter hugely: whether the unsuccessful litigant leaves court satisfied, not of course with the result but with the idea and conviction that he or she has been heard and understood. “Even if the judge got it wrong, he listened to me”, seems a very important part of the administration of justice. These are all questions for the day-to-day search for justice.

In the context of the Bill, which proposes at some stage along the line of history to give wide powers to a Minister, consultation alone is a meaningless handout from the Executive to the judiciary. More importantly, alone it offers no sufficient protection to the citizen against inappropriate Executive interference with the administration of justice. I beg to move.

[Lord Garnier]

My Lords, in agreeing with the noble and learned Lord, Lord Judge, given his anticipation of beneficial light emerging from the Front Bench, I caution him that, as so often happens in these matters—particularly when the Government are giving something away, such as consultation—the light at the end of the tunnel ends up being the light of the approaching train. I urge that we temper our enthusiasm for any blandishments from the Government—not that my noble and learned friend on the Front Bench would ever be guilty of offering anything as vulgar as a blandishment.

The noble and learned Lord, Lord Judge, has made all the points that need to be made and has made them better than I possibly could. However, if one strips away the words “the Lord Chancellor” and replaces them with the words “Secretary of State”—and Clause 6(2) condescends to do that, because clearly the Lord Chancellor cannot agree with himself and has to agree with his schizophrenic self, the Secretary of State—and if one strips away the ancient legal title and office of Lord Chancellor, one finds that one is in fact dealing with a political Minister in a spending department at the Ministry of Justice and that he or she will be placed under all the pressures of both self-interest and Cabinet responsibility that go with being in a spending department. If it is inconvenient for the Chancellor of the Exchequer to allow the Secretary of State to agree with the Lord Chief Justice, he will disagree with the Lord Chief Justice. We should not be under any misunderstanding about that.

In the what must now be 20 years since the removal of the office of Lord Chancellor as head of the judiciary—and I am standing behind one of the finest exemplars of that office—with that position having now gone to the Lord Chief Justice, the metaphorical gap and indeed the actual distance between the law and Parliament has grown immeasurably. The understanding between the law and those who administer it and politicians has grown immeasurably. One only has to look at the record of some Secretaries of State for Justice who have succeeded my noble and learned friend and who do not have that intimate knowledge of the administration of justice to understand the difficulties and dangers that the noble and learned Lord, Lord Judge, anticipates—and have happened already.

While I support the sensible policy behind the Bill, all kinds of little niggles pop up from time to time which will destroy its purpose. They will make it less beneficial for the public good than it would otherwise be, were the suggestions made in the previous debate by the noble Lord, Lord Marks, and in this current debate by the noble and learned Lord, Lord Judge, taken into account. As a supporter of the Bill and the Government, I urge them not to allow themselves to be swept down the river of consultation when the river of agreement is a much safer journey to take.

--- Later in debate ---

Amendments 9 and 12 would require the Lord Chancellor or Secretary of State to seek the concurrence of the Lord Chief Justice when specifying proceedings which are to be subject to the Online Procedure Rules. I would go so far as to say that I am sympathetic to concerns from your Lordships about the nature of the proceedings which may become subject to the online procedure and the consequences that may have for the administration of justice. Therefore, I see there are grounds for distinguishing that case from those I have just mentioned. It is in these circumstances that, as I indicated earlier, I would be happy to discuss this matter further with noble Lords before Report. I appreciate the level of concern expressed about that point and wish to address it further with noble Lords with regard to the issue raised in the context of Amendments 9 and 12. However, I hope noble Lords will appreciate that I cannot go further on that matter at the Dispatch Box at this stage. In the present circumstances, I do not know whether that counts as a train, a nuclear explosion or a light at the end of the tunnel, but whatever analogy might be drawn, I invite noble Lords not to press their amendments at this stage.

[Lord Judge]

My Lords, I thank everyone who has taken part in this debate. It has been short, but it matters. Perhaps I may answer two points made by the Minister. First, the difference between this committee and the committees to which he referred is that there is a majority of judicial members on all of them, whereas this committee has a majority appointed by the Lord Chancellor. That is a huge difference.

Secondly, although Section 5 of the Constitutional Reform Act 2005 gives the Lord Chief Justice the right to send a letter to Parliament expressing his concerns, I am willing to tell the Committee that there were occasions when I felt like writing such a letter, but it seemed to me that the first thing such a letter would do was to enmesh the Lord Chief Justice in a political quarrel. If nothing else, I could have seen the Government looking after the Lord Chancellor’s interests and therefore objecting to the Lord Chief Justice’s letter. I could see some Oppositions trying to twist the Government’s tail, thinking that they would support the Lord Chief Justice. The whole idea of that was a sop, because the reality is that if you use your nuclear option, you do not just blow up everybody else; you blow up yourself and your own case.

Subject to those two matters, and to further discussion with the Minister, for the time being I beg leave to withdraw the amendment.

Amendment 9 withdrawn.

--- Later in debate ---

[Lord Beecham]

My Lords, this amendment would extend somewhat the involvement in the committee that the Lord Chancellor will appoint across the relevant professions and service. It seems sensible to reflect the breadth of the legal service and the legal community. It would not be hugely burdensome in numbers. It seems to make sense. I hope the Minister will feel able, if not today then subsequently, to accept that this would be desirable.

I do not think I need to elaborate. The amendments are clear enough about the intention and the numbers to be involved. I hope the Minister will at least look at this again and recognise that it is in the interests of the changes that are about to be made to accept these suggestions. I beg to move.

[Lord Judge]

I will make just one small comment. If the appointments of these additional people are in the hands of the Lord Chancellor, he will end up with a majority of six to two on the committee. If the amendments are to be pursued, I respectfully ask that the concurrence of the Lord Chief Justice to the appointment should be required.

[Lord Thomas of Cwmgiedd]

With the utmost respect to my predecessor, it would be usual for a magistrate to be appointed by the Lord Chief Justice rather than the Lord Chancellor. That would slightly affect the majority, but otherwise I agree with the points made.

Courts and Tribunals (Online Procedure) Bill [HL]

Lord Judge Excerpts

Tuesday 14th May 2019 Lords Chamber

[Lord Judge (CB)]

My Lords, I too welcome proposals which will improve the administration of justice by using digital or modern technology. That said, I share the reservations that have already been expressed by the noble Lords, Lord Ponsonby and Lord Beith. I was going to say more on that subject, but this is Second Reading and I propose to be brief, so perhaps I may respectfully adopt what they have said as if I had said it for myself. I shall confine my remarks today to the way in which excessive powers have been vested exclusively in the Ministry of Justice or the Lord Chancellor.

Dear old Henry VIII does not lurk around the corner in this Bill; as is the custom nowadays, that ogreish sight is there in full vision—you cannot miss him. What the Bill seems to have overlooked is that, since the Constitutional Reform Act, it is not the Lord Chancellor but the Lord Chief Justice who is the head of the judiciary. This Bill relates closely to how justice will be administered. As I have had the honour to hold the office of Lord Chief Justice, I underline that I have no wish to impose on my successor the additional burdens that what I shall now suggest would create.

Let us go back a little. These proposals followed an investigation by Lord Briggs, as he now is, addressed to small, low-value civil claims. Effectively, this Bill covers all non-criminal proceedings: every single case in the Family Division or the family courts, or the magistrates’ court doing family cases; every single employment case; every single tribunal case, and every single civil case whatever its value. That suggests, and it is easy to overlook because the Bill is modest and short, that this is a serious, wide-ranging Bill with wide-ranging consequences. All this is achieved by the creation of an Online Procedure Rule Committee. A number of aspects have already been addressed. We need to consider whether the Bill when it becomes an Act should not include an express provision relating to access to justice, but we will come to that at a later stage.

Perhaps I may I illustrate my concerns in a simple way, by reference to the membership of the committee. At present, there is a Civil Procedure Rule Committee. A majority of its members are from the judiciary and all levels of the judiciary, including magistrates, are represented on it. There is a tiny number of nominees made by the Lord Chancellor. It has worked well and nobody has suggested otherwise. Similar principles apply to the Family Procedure Rule Committee. Again, it works well. Let us contrast this new committee, which is vested with these vast powers. It will have five members, two of them nominated by the Lord Chief Justice and three appointed by the Lord Chancellor, empowered to look at all these issues. At the end of their consideration of the issues and what regulations should be introduced, the recommendations of three members of the committee will be sufficient to enable the Lord Chancellor to introduce the relevant regulations.

This is rather strange: three nominees by the Lord Chancellor and three needed to justify and support the regulations. Where does the Lord Chief Justice stand in this? Save in one respect, on these issues he is entitled to be consulted, but his “concurrence” is not required. As a matter of reality—good heavens, as a matter of plain English—and as a matter of constitutional principle, there is a chasm between consultation and concurrence. Concurrence requires approval, agreement. Consultation means that if I, the Lord Chancellor, do not agree, with you, the Lord Chief Justice, I can still go ahead; the regulations will still be lawful. Given the breadth of proceedings which are to be covered by this new rules committee, and the Henry VIII powers—I have not overlooked them—this is rather astonishing. After all, not only is the Lord Chief Justice the head of the judiciary, and ultimately responsible for the delivery of justice, but he also has the widest possible access to information about how these new systems are or are not working, where they could be improved and where there are concerns. That access is not available to the Lord Chancellor.

There is one aspect of the Bill which does require the concurrence of the Lord Chief Justice, and that arises under Clause 6(1) relating to amendments to the numbers and members of the committee itself. I venture to suggest that there is absolutely no legislative complication in amending every reference to “consultation” in the Bill to “concurrence”. That might help to put Henry VIII back into the naughty corner. If the Lord Chancellor considers that the concurrence of the Lord Chief Justice is being unreasonably withheld, and to the public disadvantage, it would of course be open to him to come back to Parliament to have the matter looked at here.

Judicial Pensions and Fee-Paid Judges’ Pension Schemes (Amendment) Regulations 2019

Lord Judge Excerpts

Wednesday 20th February 2019 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, in a crowded and noisy political landscape, it is easy to overlook the importance of protecting our judiciary and making adequate pensions provisions for our people. Forgive me for suggesting this, but this House is perhaps uniquely qualified to value the importance of both.

I begin by politely disagreeing with the concerns expressed by my noble friend Lord Adonis a moment ago. I have no concerns about the Supreme Court’s ability to deal with any disputes relating to judicial pensions. Of course, the Opposition do not seek to divide the House on the interim provision set out by the Minister but I want to take this opportunity to urge him not to kick the can down the road into next year and beyond. It is concerning that the Government have recently had a number of disputes of this kind with judges, including the defeat referred to earlier. I agree with a number of the points made by the noble Lord, Lord Beith, about the importance of a confident and, frankly, happy judiciary to which we can adequately recruit to protect our reputation as a rule-of-law nation, whether we are inside or outside the EU. We need to boost our judiciary’s morale now and for some years to come.

I agree with the one-year extension of this scheme but concerns over judicial pensions need to be considered in the broader context of the austerity measures that hit the Ministry of Justice particularly hard, including budget cuts of a third since 2010. Savings made in the revised pensions schemes are just one area where spending has been seriously squeezed. Devastating reductions to the court estate, further proposals for the relocation of case management functions, listings and scheduling, new off-site service centres and service centres supervised by authorised staff, not judges, are some of the issues we discussed last year in the context of the then courts and tribunals Bill.

We on these Benches are concerned about the judgment to which the Minister referred. A finding against the Government relating to unlawful age discrimination is very concerning. Going forward, I urge the Government, in as friendly a manner as possible, to consider the acute shortage of High Court judges. As I imagine many people in the Chamber will be aware, senior lawyers and practitioners are not putting themselves forward for High Court appointment—including some highly qualified people who would be keen to complete their prestigious careers in what is a vital public service in this country. Too many positions have been left vacant for years with the very slight prospect of them being filled in the next few years. Time and again one hears that this recruitment crisis is in no small way affected by the change in judicial pensions.

We must ensure confidence in our legal system, perhaps more than ever in the times we are all attempting to navigate now. We need our judicial Benches—the entire judiciary, whether tribunal panel members, chairs, district judges, county court judges or circuit judges—to be made up of exceptional individuals. Those stressful and expert roles need to be properly remunerated for that to continue. I urge the Minister and the rest of the Government to sit down promptly with judges and have a serious discussion about how to fund that vital part of our constitution going forward, and how to boost morale and recruitment to our judiciary. With that plea to the Government, there will be no objection from these Benches to this interim measure.

[Lord Judge (CB)]

My Lords, I had not intended to speak but perhaps I should. I declare an interest as having been Lord Chief Justice when the shocking new arrangements for the judicial pension were imposed on the judiciary unilaterally by the Government. There was consultation—of the kind that enables the Government to do exactly what they like—but it was imposed on the judiciary. There was a unilateral change to the pension arrangements under which a significant proportion of the judiciary were working if they were below a certain age and had not given so many years’ service. The basis on which they joined the judiciary, which was clearly understood, was changed. That represented a betrayal. It greatly damaged confidence in the whole idea of a successful practitioner—a barrister or solicitor—seeking judicial appointment. If the Government could unilaterally change the arrangements, there was no point. We still suffer the consequences of that. There is nothing wrong with the present measure we are considering, but the consequences of what happened between 2010 and 2014 are with us still.

If I may answer the point made by the noble Lord, Lord Adonis, about the arrangements that are currently before and have been before the courts, the judges trying those cases are not those who will have been affected by these dramatic changes. The various matters raised by the noble Lord, Lord Beith, and the noble Baroness, Lady Chakrabarti, are well known. There is no point using this opportunity to stand on a hobby-horse to repeat them, but they do not go away. That is an issue the ministry has to grapple with as soon as practicable.

[Lord Keen of Elie]

My Lords, I am obliged for the contributions that have been made. I note the points made by the noble Lord, Lord Beith, and the noble and learned Lord, Lord Judge, and I acknowledge that pension issues have created very real issues about recruitment, particularly to the High Court Bench. That is something of which we are conscious and have in mind and under consideration going forward. The whole question of the terms and conditions on which we seek to appoint the judiciary is critical, and I acknowledge the need to ensure that we maintain a judiciary whose expertise and integrity are regarded as pre-eminent. The noble Lord, Lord Beith, touched on the value—if you can put it that way—of legal services in an export sense. It is estimated to be in the region of £4.5 billion, so it is a significant matter in that context alone; but of course, it has a much wider resonance and importance than that.

As the noble and learned Lord, Lord Judge, observed, those hearing this matter in the Supreme Court are not impacted by the transitional provisions we are concerned with in the McCloud case and the related Miller case, which is still to be heard. In any event, I remind the noble Lord, Lord Adonis, of the judicial oath and the confidence maintained in the integrity of our judiciary, which is entirely justified.

Regarding the potential cost of the McCloud decision, it is a matter of speculation. It does not refer just to judicial pensions; it is also relevant to firefighters.

Non-Contentious Probate (Fees) Order 2018

Lord Judge Excerpts

Tuesday 18th December 2018 Lords Chamber

He is not, and we should not let him. I urge the House to reject this instrument.

[Lord Judge (CB)]

My Lords, I want to say just a little since the noble Lord, Lord Pannick, has dealt with the law and I happen to agree with him. As your Lordships all know, I frequently disagreed with him in a previous existence. Whenever I did, he appealed to a higher court and was always right. This time I agree with him because I happen to agree with him. I will not repeat the reasons.

I will take a slightly different stance. The debate we have had, assuming that the noble Lord, Lord Pannick, is right—as I say, I agree with him—is whether section whatever it was of some 235 sections produced the power the Lord Chancellor now seeks to exercise. If it did, the problem is not with this statutory instrument, which we are all attacking and which the noble Lord, Lord Marks, has indicted ferociously and accurately, but with the primary legislation, which, I am sorry to say, we probably did not analyse with sufficient care. I was not here at the time, so I do not bear any personal responsibility.

I am sorry to say this, but we were vesting in statute after statute vast powers in the Executive. We do it and we let it happen. We cannot complain if the Executive, having been vested with these powers, choose to exercise them. We vest powers in not just this Executive, but the next one, the one after and the one after that. That seems an aspect arising from the present order that we really should not overlook. We should be more alert when powers are being vested in the Executive to do almost anything by secondary legislation.

That has got that off my chest. Now I declare an interest. Because of the office I once held, I am perfectly well aware of the fact that our civil courts system is in a shambles. It needs funding. It needs much more funding than this funding would provide. If the Lord Chancellor has the powers—as I said, I agree with the noble Lord, Lord Pannick, that he has—this seems a sensible use of them to achieve a very important societal purpose.

[Lord Faulks (Con)]

My Lords, the 2014 Act was passed by Parliament when there was a coalition Government in power. I had the privilege of bringing in enhanced fees that, it has been suggested, should be viewed in rather a favourable light compared with the probate fees that are the subject of this statutory instrument. I certainly do not remember that being the response at the time, although the arguments—namely cross-subsidy—were the same. Indeed, I specifically remember making the point that it was always an option whether you chose to litigate. That has been raised as a favourable point in support of this statutory instrument, where obviously there is no question of choice.

The reality is that both these provisions were there to subsidise the much-needed court system. The noble Lord, Lord Marks, will remember that the coalition Government came to power facing an economic crisis and that a number of cuts had to be made, particularly to the Ministry of Justice budget, which the Liberal Democrats went along with happily, as did the Conservative Party, as a result of which the courts have been feeling the strain and are continuing to in a way that a number of noble Lords have pointed out. This is an attempt to at least alleviate some of that strain.

My noble friend Lord Hunt mentioned the case for cross-subsidisation. I respectfully suggest that he is right. He mentioned a number of areas. I could mention more: non-molestation orders, occupation orders, forced marriage protection orders and female genital mutilation protection orders. There are all sorts of tribunals involving family immigration and asylum that do not pay for themselves but need cross-subsidisation.

Crude though it may be, this order will be a valuable addition to our beleaguered legal system, about which I am sure the noble Lord, Lord Marks, and all in your Lordships’ House share concern. The Government have responded to the initial outcry, if I might describe it as such, about the amounts involved. They have been lowered. I respectfully suggest that the Minister has made out the case.