Courts and Tribunals (Online Procedure) Bill [HL]

Lord Mackay of Clashfern Excerpts

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

I have a more technical point to put to the Minister, which is about the position of the Senior President of Tribunals. There are one or two places where he or she is specified as requiring concurrence but others where there is no reference. Is it the assumption that in all cases the Lord Chief Justice will—as I am sure they will—have proper regard to the position of the Senior President of Tribunals in relation to a tribunal matter, or have I failed to spot that in some instances that position is not relevant? He or she carries responsibility for the fair administration of justice in the tribunal sector and we may have to look to that sector to address any problems that arise if we have not got the definitions right.

[Lord Mackay of Clashfern (Con)]

My Lords, I took some part in previous discussions of these matters in relation to the powers of the Lord Chief Justice and the fact that he—or she, if it happens to be so—is now the head of the judiciary and the Lord Chancellor is not. I am inclined to remember—I may be wrong, and I hope that my noble and learned friend will correct me if I am—that a provision of exactly this type was made in relation to the other procedural committees that currently exist. It is a considerable time since that provision was made, and as far as I know, no trouble has emerged. That is because I would expect the Minister to exercise great care in this matter. I think I am right in saying that that was not altered in the Constitutional Reform Act, as it is called, which changed the responsibility of head of the judiciary.

I am therefore inclined to want to hear a bit more about this before we come to a decision. When so much agreement has been reached, it is a pity if we fall from agreement at the last minute, particularly if to do so would produce a very strange anomaly between the existing law relating to either of the other procedural committees and this rather more technical committee.

I do not think Clause 9 has to do with the procedure rules. It has to do with the possible obstruction to those rules which may exist in legislation already passed as part of our law. The Lord Chancellor is entitled to make regulations to amend the Acts of Parliament which interfere with the proposals being accepted as Online Procedure Rules. The rules may well have an impact on old statutory provisions—for example, those which have an impact on whether or not you can have online procedures—most of which, I imagine, did not envisage that. It may be that they can be interpreted to include considerations of that kind, but that is the nature of the problem in relation to Clause 9.

After thinking this through as best I can, I would not care for the Lord Chief Justice to have to be involved in the regulation-making aspect of this business. If regulations are required, they should be made by the person with the appropriate political responsibility. I therefore have doubts about the relevance of the rules in relation to Clause 9.

As to Clause 8, as far as I know, existing law was left unchanged by the Constitutional Reform Act. As to Clause 9, I wonder whether it is appropriate for the Lord Chief Justice to get himself involved in the nitty-gritty of political regulation.

[Lord Pannick]

The noble and learned Lord says that it is not appropriate for the Lord Chief Justice to be involved in Clause 9 matters—that he is not relevant to that—but the clause makes him involved. It gives him a role because he has to be consulted, so he is not irrelevant at all.

[Lord Mackay of Clashfern]

Exactly. He is doing exactly what I think is required. If the person who has the responsibility finds out that it is okay with the Lord Chief Justice—at least that is what I hope would happen—that person then goes on and does it. Therefore, consultation is probably the right balance at that stage. I am rather against the idea of involving the Lord Chief Justice in any form of political work. I thought the Constitutional Reform Act sought to achieve separation between the judiciary and the legislature, so that the acting judiciary were no longer part of the legislature.

[Lord Garnier (Con)]

My Lords, I do not want to spread dissension where none is required or even helpful, but I am persuaded by the first three noble—and noble and learned—Lords who have spoken in this debate. I am always persuaded by what my noble and learned friend Lord Mackay says, and we need clarification. Although I fully accept what my noble and learned friend has just said in relation to the political angle, there are provisions in Clause 9 which, although they refer to amending, revoking or repealing an Act, or a provision made under an Act, at heart deal with the mechanics of the procedure to be operated under the Online Procedure Rule.

We need to think more carefully before rushing into this. I take my noble and learned friend’s point about the possible inconsistency between this legislation, if it is to be amended, and earlier provisions. However, sometimes consistency runs in the wrong way. If the current amendment points out something that would then become inconsistent, it may be that the earlier provision also needs to be amended. In any event, I am utterly convinced that my noble and learned friend on the Front Bench will be able to persuade me that what the noble and learned Lord, Lord Judge, has said, supported as he is by the noble Lords, Lord Pannick and Lord Beith, will enable us to move forward in a spirit of complete concurrence.

--- Later in debate ---

[Lord Marks of Henley-on-Thames]

My Lords, the noble and learned Lord, Lord Garnier, has reminded me that perhaps I should make the same declaration—so I do so now.

We support Amendments 22 to 24, not only for the reasons given by my noble friend Lord Beith but for those given earlier in the debate, in particular by the noble and learned Lord, Lord Judge, and the noble Lord, Lord Pannick. We regard it as very important that these rules should ensure a proper balance between the Lord Chancellor and the Lord Chief Justice: between the Executive and the legislature. I also take the two points made by the noble and learned Lord, Lord Mackay. First, there are of course equivalent provisions in the existing rules, but I agree entirely with the noble and learned Lord, Lord Garnier, who pointed out that that should not be treated as a precedent, and that if there is anything wrong with the earlier rules, perhaps they should be changed. If the 2005 Act overlooked those changes, perhaps it should not have done so, because that was the point at which the changes should have been made; that is, when the balance between the Lord Chancellor and the administration of justice changed.

I also suggest that what the noble and learned Lord, Lord Mackay, said was telling. He said that the difference between consultation and concurrence is that where you have consultation, the Lord Chancellor will go to the Lord Chief Justice and check that the change in the rules is okay with him—or that is what he hopes he would do—and then he would go back to make the rule. However, it seems to me that the need for concurrence in these rules is dependent on the Lord Chancellor finding out that the rules are okay with the Lord Chief Justice and the requirement for concurrence is to determine the position where they are not okay with the Lord Chief Justice, and that is why we have the concurrence requirement. I will give way to the noble and learned Lord.

[Lord Mackay of Clashfern]

We are talking about Clause 9, which is to do with regulations, not the making of the rules. It is the effect of existing law in relation to the rules that has to be dealt with.