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

Lord Marks of Henley-on-Thames Excerpts

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

[Lord Marks of Henley-on-Thames (LD)]

My Lords, when my noble friend Lord Beith asked a Question on 6 June about the proposed modernisation of the courts, he described the Bill—and he repeated this today—as,

“a little mouse of a Bill”.

The Minister then contradicted him in response, saying that,

“this is a mouse that roared”.—[Official Report, 6/6/18; cols. 1305-06.]

I think there is consensus around the House today that, as it stands, the Bill is more of legislative squeak than anything approaching a roar. The Bill we all wanted to have would have covered the whole gamut of court modernisation and I fully endorse what the noble and learned Lord, Lord Thomas, said: the central point is that the alternative to comprehensive modernisation is significant decline.

I found Joshua Rozenberg’s description of the Bill in the Law Society Gazette as,

“a little too late and quite a lot too little”,

pretty accurate. In opening, the noble and learned Lord described the Bill as a positive first step in reforming the court system. Mr Rozenberg, however, criticised it as drip-feeding—a term also used by the noble Baroness, Lady Chakrabarti. The problem with drip-feeding is that you cannot see the entire flow, and the Bill gives little indication of the Government’s direction of travel.

There has been little substantive criticism today of the specific provisions that have found their way into the Bill. I shall, however, make a couple of points on those provisions. First, Clause 1 allows for the more flexible deployment of judges, which is generally sensible and to be welcomed, as the noble and learned Lord, Lord Thomas, explained. I would, however, caution against rowing back from our developing reliance on judges’ specialist expertise in centres across England and Wales, which has been uniformly beneficial. This was a theme pursued by the noble Lord, Lord Flight. It has been particularly true of specialist family judges, as forcefully argued by the noble Earl, Lord Listowel. It has been true also of mercantile judges, since last year called Circuit Commercial Court judges, which has ensured a spread of circuit judges with specialist commercial expertise in court centres across the country. It has been true also of judges of the Technology and Construction Court—the TCC—who handle difficult and lengthy cases in construction, engineering and IT disputes economically and efficiently in regional centres as well as in London. I also welcome the recently announced development of one overarching umbrella for specialist business and property courts across the country.

While there has been considerable cross-ticketing of judges, as it is inelegantly known, whereby judges from one specialism are deployed in a similar field, it is important that flexible deployment develops alongside and in sympathy with the continuing specialisation of judges where it is needed. I never again wish to argue a long and complicated matrimonial finance case, as I did some years ago, in front of a deputy High Court judge who was highly distinguished in his field as tax counsel but had entirely the wrong end of the stick—and, frankly, not a clue—about his task in a matrimonial context.

Secondly, I accept that, as proposed by Clause 3, suitably qualified staff should be able to make not only administrative decisions but some of the less significant case management judicial decisions. I agree that it is not a definitive criterion that such a decision should be unopposed. If that is to be the case, however, we need robust safeguards to ensure that decisions that should be taken by judges are indeed taken by judges and not delegated to too low a level. We must also guarantee that staff making judicial decisions are adequately qualified.

I am also concerned about the prospect of under- qualified court officers giving advice to judges in the family court—they are often lay magistrates, as the noble and learned Lord, Lord Mackay, pointed out—or the magistrates’ courts. I note that the Schedule will provide that qualifications will be determined by regulations to be made by the Lord Chancellor with the agreement of the Lord Chief Justice. It is vital that such regulations establish clearly that those advising magistrates and judges are completely qualified to do so.

We have heard in this debate much more about what the Bill does not do but should do than about what it in fact does. So, turning to what is not in the Bill, I note that the Long Title is relatively wide:

“To make provision about the judiciary and the functions of the staff of courts and tribunals”.


It is certainly wide enough, I suggest, to accommodate the campaign of the noble and learned Lord, Lord Mackay, to give England and Wales back its supreme court, but not—sadly, I think—wide enough to comprise the campaign by Women’s Aid to prevent victims of domestic abuse being cross-examined by the perpetrators of that abuse. Having listened to the speech of the noble Baroness, Lady Newlove, many of us would no doubt hope that the Government and the noble and learned Lord might see their way to extending the Long Title to encompass provision in that regard. Noble Lords may wish to explore the process of modernisation with inventive amendments within the Long Title, as it exists, in that context.

I suggest that there are three significant areas for improvement. The first area is judicial diversity. Since the report of the noble Baroness, Lady Neuberger, in 2010, we have made some considerable progress, particularly with the work done by the judicial diversity task force. However, we have a very long way to go. I would like to see this Bill require more action on judicial diversity, more women judges, more judges with BAME heritage and backgrounds and a more socially diverse bench generally, to make our court system look and in fact be more attuned to and more in touch with our society. We could start with taking on the recommendations of the organisation Justice in its excellent paper, Increasing Judicial Diversity. I am not sure that accepting the suggestion of the noble Lord, Lord Hodgson, that we increase the retirement age of judges, would help. Flexible, family-friendly hours and more job sharing for judges, on the other hand, almost certainly would.

The second area is accessibility. I suggested on 6 June that we need court staff, in person and over the phone, court documents and online resources all to be committed to helping court users, particularly litigants in person, to navigate their way through the litigation process. This would mean court officers changing their traditional position that they are not there to give advice. The noble and learned Lord, Lord Keen, gave me a very encouraging reply. He said that,

“there is no reason why reallocated court staff will not be in a position to provide advice”.

But he then added the words,

“as they have in the past”.—[Official Report, 6/6/17; col. 1307.]

I think that the added words were overoptimistic. Those of us who regularly attend court tend not to appreciate quite how daunting an experience going to court is for members of the public. Traditionally, court staff have taken the view that their job is to be detached, impartial and objective, giving the advice that is needed on procedure but leaving it to litigants to get advice from their solicitors and other advisers. However, more litigants in person and less legal aid make it essential that court staff are trained to give real assistance to all concerned, including advice not only on procedures but on completing documents and the evidence that people will need to prove a case. The noble Baroness, Lady Newlove, with her call for help for victims, adds to the point. That does not mean that court staff have to act as lawyers for individual parties, and they should not. But they should act as firm friends in court for those without lawyers—litigants in the civil courts and defendants in the criminal courts. That should be true whether the contact is face-to-face, over the phone, by email or through the court’s online resources.

Thirdly and finally, we must make progress with the development of a fully online system, to enable cases that can be dealt with online to be processed efficiently and quickly through digital technology, with users feeling informed and not at sea. I accept that there has been considerable progress in pilot projects in this area, as the noble and learned Lord mentioned in opening. Online divorce; applications for probate, on which I should add that we never want to see the reintroduction of the ridiculous proposal for hyperinflated probate fees; online pleas in minor criminal cases; and huge numbers of debt recovery cases—these are all areas where the court could be made user-friendly and efficient with digital technology.

I look forward to working with the noble and learned Lord and others, in the likely absence of parliamentary time for other justice Bills, to inject a little more ambition into this Bill. If we can give the mouse if not a full-throated roar then at least a bit of an increase in volume, that will be all to the good.