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

Lord Keen of Elie Excerpts

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

Moved by

[Lord Keen of Elie]

That the Bill be now read a second time.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, the Bill is a vital first step in delivering legislation to underpin our ambitious and far-reaching programme to create a modern, world-class courts and justice system that is swift and straightforward and that works for everyone. Our programme of reform will also foster innovation and cement our reputation for global legal excellence.

In our manifesto, and in last year’s Queen’s Speech, the Government committed to modernising our courts and tribunals so they are fit for the 21st century. The way justice is administered and delivered in our courts and tribunals cannot stand still while the world changes around them. The justice system must embrace new technologies and seize the opportunities of the digital revolution. It must work for, and fit in with, the way people live their lives today. But modernisation must also ensure that the judiciary and staff who work in our courts and tribunals are empowered to deliver smooth and efficient justice. We have a world-class judiciary, and through the Bill we want to enable it to continue to deploy its time and expertise where and when it is most needed.

The Bill will assist in a number of different ways. It will allow suitably qualified and experienced staff to be authorised to handle uncontroversial, straightforward matters under judicial supervision. This will free up judges’ time to focus on more complex matters and will improve the efficiency and effectiveness of the courts and tribunal system. The independent procedure rule committees will determine which functions staff may exercise in each jurisdiction. These judicially led committees are the right bodies to take these decisions, and this will ensure that the powers are properly scrutinised by judges, practitioners and other interested parties.

The Bill will make it possible for staff to carry out judicial functions in the Crown Court, where the activities of court officers are currently restricted to “formal and administrative matters” only. The Crown Court judiciary currently spends far too much time on routine tasks which could be delegated, such as changes to the starting time of a hearing, or changing the pretrial preparation hearing date, even if the parties are all in agreement about these matters. The Bill also removes the post of justices’ clerk, to enable the creation of a more flexible, cross-jurisdictional leadership role for authorised staff.

All this is subject to a robust framework of authorisation that affords the court and tribunal staff who exercise these functions the right protections and safeguards. Most significantly, the Bill makes such staff independent of the Lord Chancellor but accountable to the judiciary. Courts and tribunal staff will be able to exercise judicial functions only once authorised to do so by the Lord Chief Justice or his nominee, or the Senior President of Tribunals or his delegate. The judiciary will grant such authorisation only when satisfied that the relevant staff have the necessary competence and experience to exercise these functions. The Bill also applies to authorised staff the same protections that currently apply to justices’ clerks and assistants to justices’ clerks carrying out judicial functions in the magistrates’ and family courts. This includes protecting them from costs in legal proceedings and indemnification in respect of anything they do, or do not do, when exercising judicial functions in good faith.

Alongside these changes, the Bill includes measures to ensure that the system of judicial deployment is as flexible as possible. It will give the Lord Chief Justice and the Senior President of Tribunals greater flexibility to make the best use of our judges’ experience, expertise and time. The judicial measures in the Bill include enabling recorders to sit in the Upper Tribunal and senior employment judges to sit as judges in the First-tier Tribunal and Upper Tribunal. This will broaden the pool of expertise that the tribunals can draw from to help them meet business needs. They also include extending the range of High Court judges to act as arbitrators. This will help meet the growth in demand in recent years for arbitration—for example, to resolve cases in the Chancery Division of the High Court. They will also remove the restriction on a judge being the president of more than one chamber of the First-tier Tribunal or Upper Tribunal. This will give the Senior President of Tribunals greater flexibility to manage the leadership of the tribunals without having to recruit and appoint a new chamber president immediately that there is a vacancy. Taken together, these measures will enable the judiciary to respond to the changing demands of the case loads of different jurisdictions and will make the best use of the existing cohort of judges to benefit all users of our courts and tribunals.

We are delivering the court reform programme in partnership with the senior judiciary. I am pleased that the Lord Chief Justice and the Senior President of Tribunals have welcomed the Bill, commenting that its introduction is,

“a positive first step in legislation to deliver reform”.

Most of the measures have already been before Parliament as part of the Prisons and Courts Bill, which fell when the general election was called. The Courts and Tribunals (Judiciary and Functions of Staff) Bill is very much a first step, and we will bring forward further courts legislation as soon as parliamentary time allows.

We have not stood still waiting for this Bill; we have been pressing on with reform in areas where primary legislation is not required and we are making significant progress in enabling access to justice through online and digital means. In May, we rolled out nationally an online divorce service, allowing couples to apply for uncontested divorce digitally for the first time. People can also now make pleas online for low-level offences, such as traffic offences, and they can respond to jury summonses, track social security appeals, and issue and respond to civil money claims, all online. Over 16,000 people have already engaged with these pilots and are getting straightforward, digital access to the courts for the first time. The Bill supports that wider reform by making sure that we make best use of our judiciary and courts staff as we develop these new approaches to delivering justice.

The Bill, and our wider package of reforms, will ensure that our courts and tribunals system is fit for the 21st century and the digital age. It will help to ensure that both the judges and staff of our courts and tribunals are able to respond to the changing demands of a reformed system and, ultimately, to deliver better services for court users. The Bill marks an important first step in delivering a reformed courts and tribunals system and I commend it to the House. I beg to move.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, it is perhaps too late to bring our court system into the 20th century but this is the opportunity to take it into the 21st century. This may be a small step, but a small step on a long journey, when properly directed, will take us closer to our goal, and that is the intention of this legislation. To that extent it has been welcomed around the House. Let me address some of the points raised by noble Lords in the course of this helpful discussion.

First, we have seen the development of digital access, by way of pilots and its wider use, in conjunction with the issue of redundancy within physical court buildings. That means that there has to be a balance between the development of that digital provision and the closure of courts, as anticipated by the noble Lord, Lord Beecham. That will continue. However, it has to be a balancing act—we appreciate that—and judgments will have to be made. We should not allow one aspect of digitisation to run ahead of the necessary demands for physical court buildings, and we have that in mind.

The noble Baroness, Lady Chakrabarti, spoke of the need for legislation so that we could review what was happening with the digitisation process. However, with respect, the purpose of primary legislation is to implement law, not to review that which we can already do. Of course, there are means and methods by which we can keep in mind and review the progress of the changes that we are taking forward.

The noble Baroness also referred to Clause 3 of the Bill and the delegation of official functions. There are two aspects to this: the delegation of judicial functions and the provision for legal advice. The two are distinct and have to be understood as being so. One should not confuse the two or push them together.

On the question of legal advice, justices’ clerks and assistant justices’ clerks are highly qualified individuals who, for a long time, have been in a position of tendering legal advice within the magistrates’ courts and the family courts. That, essentially, will continue; there will be no fundamental changes. It is hoped that these senior and well-qualified individuals will be able to deploy their talents beyond the magistrates’ courts if necessary. That is one aspect of flexibility that is being considered. However, when determining their qualification and function in the provision of legal advice, it is intended that these provisions will be specified by the Lord Chancellor in regulations in order that we can maintain the present system with one or two developments to it.

The staff who will be authorised to carry out certain judicial functions—the “box work” of district and circuit judges—will be determined by the independent jurisdictional rule committees, which are the appropriate bodies to take these decisions and ensure that the powers are properly scrutinised by judges, practitioners and other interested parties. It will be part of the role of the rule committees in determining the functions to consider whether staff should be required to have particular experience or qualifications. That is the level at which this should be done.

The noble Baroness, Lady Chakrabarti, also referred to the use of temporary judges. We consider that there are appropriate safeguards in place with regard to the deployment of temporary judges. We have to remember that there are some highly experienced members of the legal profession who would prefer to maintain their position as temporary judges rather than go forward to a permanent appointment because of the flexibility it provides for them. That is an extremely useful resource and not one that we would wish to imperil.

The noble Lord, Lord Beith, reminded us that there were provisions in the Prisons and Courts Bill that went well beyond the provisions in this Bill. I fully accept that, and in particular the issue—also raised by my noble friend Lady Newlove, who is the Victims’ Commissioner—of the cross-examination of victims of domestic violence. It does not fall within the purview of this Bill but we have it at the forefront of our minds and are determined to take it forward. It is an issue of parliamentary time.

The noble Lord also referred to the use of consolidation Bills. My noble and learned friend Lord Mackay of Clashfern alluded to the difficulties that sometimes arise in ensuring that the Joint Committee on Consolidation Bills is quorate. That is not because of the availability of Members of this House but possibly because of the non-availability of Members of the other House, given that it is a Joint Committee. We see the usefulness of consolidation as a way forward with regard to sentencing. I am aware of the work that the Law Commission has been and is still doing on this matter, but it will be necessary for some primary legislation to be brought forward in order, as it were, to establish a pathway for such consolidation provisions. We are conscious of that and again, we have it in mind. It is to be hoped that we will see some further developments in this area. Reference was also made to the utility of the Law Commission procedure for its own Bills, and again we are conscious of that when parliamentary time is limited.

My noble and learned friend Lord Mackay of Clashfern also alluded to the fact that while Scotland very sensibly managed to retain a Supreme Court, England and Wales rather lost their way in that regard. I am not privy to how it came about, but they agreed to cease to be a supreme court and became a senior court instead. It may be that there is room to revisit that issue at some point, but whether in the context of this Bill or otherwise is a different matter.

The noble and learned Lord, Lord Thomas of Cwmgiedd, welcomed the Bill and I thank him for that. He referred to the importance of flexibility in the deployment of judicial availability, and the point made by the noble Lord, Lord Marks of Henley-on-Thames, is one I agree with entirely. While clearly wanting to have flexibility in the deployment of our judicial asset, we do not want to lose the benefit of the specialist expertise that has been built up in areas such as family law, mercantile law, and the example he gave us of the Technology and Construction Court. We and the Lord Chief Justice will be conscious of that when taking forward the powers here with regard to cross-ticketing, as I believe it is sometimes called.

My noble friend Lord Hodgson of Astley Abbotts raised the question of the judicial retirement age. What I would say at this stage is that we are awaiting the report of the Senior Salaries Review Body, which I think is due in the late autumn, with regard to judicial salaries and pension conditions. I am aware that there have been issues with the judicial pension situation in particular. Once we have the report, it may be possible to look again at the judicial retirement age. My understanding is that at present, the average judicial retirement age is 67 or 68, so it is not a case of the judiciary actually going as far as the existing ceiling. There may be other explanations for that, including the desire of some in judicial office to contemplate an alternative career structure when they cannot proceed beyond 70 on the judicial Bench. It is clear that that requires further consideration.

My noble friend Lord Flight raised the issue of a dedicated housing court. I am aware of the discussions that have taken place on this. Sir Geoffrey Vos recently alluded to the fact that property disputes can take place anywhere between the county court, the First-tier Tribunal Property Chamber, and the High Court. We intend to consult later in the year, I hope, on the provision of a housing court so that this issue can be addressed.

The noble Earl, Lord Listowel, referred to the Family Drug and Alcohol Court. I do not have up-to-date details on what is happening with the funding for that but I undertake to write to him in due course. I will place a copy of the letter in the Library.

On the points made by the noble Lord, Lord Beecham, particularly that we should engage and consult widely before taking further steps, the danger is that that will engender further delay in the implementation of a courts modernisation process, which should not be unduly delayed if possible. We consider that there is general consensus about the need to move towards a more effective, modern and efficient courts system, involving the digitisation of the courts process but remembering the risk that some people may somehow be excluded from access to justice unless their needs and requirements are catered for. We are conscious of that.

With that, I hope that noble Lords will accept that, as I said, this is a small step but a step in the right direction that takes us closer to our goal. I therefore ask the House to give the Bill a Second Reading.

Bill read a second time and committed to a Committee of the Whole House.