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

Lord Marks of Henley-on-Thames Excerpts

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

Moved by

[Lord Marks of Henley-on-Thames]

2: After Clause 1, insert the following new Clause—
“Report on the impact of the provisions under section 1 on the diversity of the judiciary
(1) The Secretary of State must carry out an assessment of the impact of the provisions under section 1 of this Act on the diversity of the judiciary.(2) This assessment must make reference to whether increasing flexibility in the deployment of judges has had an impact on the diversity of the judiciary.(3) The Secretary of State must lay a report of the assessment before both Houses of Parliament within one year of this Act passing.”

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

My Lords, I said at Second Reading that I regarded the area of judicial diversity as a significant one for the improvement of the Bill. Amendment 2 is an attempt—drawn as widely as possible while keeping it within scope—to retain the Government’s focus on the need to have judicial diversity at the centre of their programme for the modernisation of the courts.

I am not one who believes that the Government do not understand the need for the judiciary to look, feel, seem and actually be more similar to and representative of the public at large, whose cases and disputes it is their job to determine and resolve. Often, such disputes involve very human problems. Only as recently as 24 April, the Lord Chancellor wrote jointly with the Lord Chief Justice and the noble Lord, Lord Kakkar, the chairman of the Judicial Appointments Commission, to your Lordships’ Constitution Committee to announce a funded programme to encourage applicants for judicial office, aimed partly at increasing the diversity of successful applicants by providing targeted support to underrepresented groups.

However, I emphasise that the importance of this issue has become all the greater as the number of unrepresented litigants in civil and criminal courts has increased. It was bad, but not so bad perhaps, when advocates looked and sounded like me and perhaps the noble Lord, Lord Pannick, and we addressed judges in court who looked and sounded like the former judges in this House, for whom we all have the greatest of respect and affection. But a great deal of modern litigation in courts and a great many cases in tribunals are not like that at all. Litigants are often representing themselves or are represented by informal McKenzie friends. It makes it no better that they are often opposed by more powerful parties represented by qualified lawyers whom they perceive, probably rightly, in part at least, as having an understanding with the judge or tribunal that leaves them at a serious disadvantage. I fear that, for too many unrepresented litigants, we lawyers, judges and tribunal members often sound as if we come from another planet.

Judicial diversity will not solve all these problems but it can do a lot to help. We have come a long way in securing better representation of women on the Bench. It is now somewhere between 20% and 25%, but that is nowhere near enough. The recent and frankly long-overdue appointment to the Supreme Court of Lady Arden has of course helped, but we need the appointment of more women at all levels of the judiciary. In 2010, the report of the advisory panel chaired by the noble Baroness, Lady Neuberger, on improving judicial diversity pointed out that there was no easy route to achieving a representative judiciary. It made a large number of important recommendations which were widely welcomed by the professions and the Bench but which, frankly, have not been addressed with the full-hearted commitment that they demanded.

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[Baroness Vere of Norbiton]

I think that the noble Baroness is perhaps not entirely understanding my comments. It is absolutely key that we get the best candidates into the job. The point of this is to make sure that the pool of possible candidates is as broad as possible. No candidate, whether they be from a BAME community, female or disabled, should be left out of the pool—and from that pool it is important that we select those candidates who are the best for that particular job.

I hope that, in the light of my comments, the noble Lord will be content to withdraw his amendment.

[Lord Marks of Henley-on-Thames]

My Lords, when the Minister started her response, I was tempted to accuse her of complacency. However, I now accept, after the length of her speech and what she said subsequently, that that was directed only to the limited ambit of the Bill.

On the subject of men’s caring responsibilities, I think she will find that Hansard will show that I specifically mentioned them—although I may have emphasised women’s. But as a father of seven, it would be wrong for me to omit mention of caring responsibilities myself. I should also perhaps have echoed the parental declaration of interest of the noble Lord, Lord Beecham, because one of my children is a solicitor.

I respond to the point that the Minister made about merit regardless of all. The whole point of the tipping amendment that we tabled to the courts Bill was to ensure that, where there were candidates of equal merit, it was permissible to choose a candidate who had a protected characteristic over an equally qualified candidate, in much the same way as happens in organisations across the land. That ought to be important.

Finally, I do not accuse the Minister of complacency. What she said plainly showed that the Government do care. However, I echo the words of the noble Lord, Lord Pannick, in attacking this Bill for its failure to address the very real problems and make good the promise of modernisation of the courts in a comprehensive fashion. I know that the noble and learned Lord has told us that other legislation will follow on the modernisation of the courts, but there are real issues to address, and judicial diversity is one of them. Saying that, I beg leave to withdraw the amendment.

Amendment 2 withdrawn.

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[Baroness Chakrabarti]

My Lords, in moving Amendment 8, I will speak to Amendment 10. Once more, these amendments would place restrictions in the Bill as to what type of function will be permitted to be delegated to authorised persons. The previous amendments were about who might be an authorised person. The restrictions this time include that no authorisation,

“shall include the power to … make an order of the court which is opposed by one or more party … make any order of the court in a civil claim with a value of more than £25,000 … make any order of the court with a penal notice or power of arrest”.

The stated intent of the policy of delegating judicial powers is to improve the efficiency of the courts service by diverting judges’ time from routine administrative tasks to allow them to focus their time and expertise on more complex and significant matters. However, there must be reasonable limits to what powers can be given to authorised persons who are not judges. Without those limits, we have a power that has the potential to change the essential nature of our judicial system. I am sure that this is not the Government’s intention, but we need to construct this power for future Governments of whatever stripe because significant judicial power should be exercised by judges.

While it is almost impossible to create a definitive or exhaustive list of appropriate judicial functions for the delegations that will cover every tribunal and eventuality, it is reasonable to expect some red lines and limits relating to the most significant decisions and exercise of power. It does not seem unreasonable to ask that Parliament have an opportunity to set out a framework for such delegation and to exclude decisions that deprive an individual of their liberty or of life-changing sums of money for most people, and decisions that parties have contested or those involving vulnerable witnesses or people lacking mental capacity.

Other provisions in the amendment provide a mop-up of what might provide a red line around a decision which could dispose of a matter altogether. Lord Briggs drew such a line in his civil court structure review, at caseworkers making dispositive decisions, which he saw essentially as a judicial role. All delegated functions in the civil jurisdiction are routine case management functions and are often confined to cases where all parties consent. Legal advisers do not currently make decisions that represent a final determination and a party may request reconsideration of any decision of a legal adviser within 14 days of being served notice of it. Are these not therefore reasonable restrictions to place on delegated functions in the context of criminal proceedings, where so much is potentially at stake? The MoJ’s own factsheet on delegation to staff says that delegated decisions are unlikely to involve contested matters. Why not put such a reasonable restriction in the Bill, given that many case management decisions are potentially important judicial functions that should not be delegated?

In addition to concerns about transparency, there is a danger that efficiencies gained by delegating case management decisions will be lost if the court then has to reconsider such decisions at a later stage in the process. Further, if one accepts the case for the limited delegation of some of the most straightforward decisions to such authorised staff, one has to raise concerns that these relatively low-paid staff—HMCTS staff being paid less than other government lawyers—are being used to save money without proper remuneration for their increased workload. I beg to move.

[Lord Marks of Henley-on-Thames]

My Lords, I have some sympathy with two of the new paragraphs proposed in the amendments. I have sympathy with those relating to orders of the tribunal or the court with a penal notice or power of arrest. I have some sympathy, too, with the restriction on the power of a court to make an order under Section 37 of the Senior Courts Act for an injunction, including any freezing order, and the corresponding power for the tribunal.

I am afraid that is as far as my support goes for the noble Baroness’s amendment, because all the other powers may be entirely trivial. In particular, the noble Baroness places reliance on the idea that a contested order should not be made. Some contested orders are unbelievably trivial. If I seek a 14-day extension for the service of my defence and the other side says that I should do it in seven, and the authorised person says, “Well, you can have 10”, the idea that he or she should not have the power to make that order is wrong.

One has to leave it to the good sense of the rule committees to decide where it is sensible that such restrictions should be drawn. Injunctions are in a different category and where the liberty of the individual is at stake we have a different category, but otherwise I am afraid I cannot support the amendments.

[Lord Neuberger of Abbotsbury]

My Lords, I applaud the noble Baroness’s concerns, which, as in the previous amendments, are directed towards ensuring that the high standards of justice in this country are maintained.

I echo to a considerable extent what was said by the noble Lord, Lord Marks. However, in the end, these are matters for the rule committee. There are two protected factors: one is that nothing can be done without it being in the rules, and the second is that the Lord Chief Justice needs to give his or her authorisation to the person who makes the decision. The other amendment concerns the Senior President of Tribunals. With the rules, there is the protection of them having to be laid before Parliament, and therefore any restrictions of the sort that the noble Baroness wishes to put forward would have to be considered by the rule committee. If they were not in the rules, and this House felt that they should be, this House would then have an opportunity to see what was said and why. I again suggest that these matters are best left to the rule committee. As the noble Lord has indicated, there is clearly room for disagreement over which items and categories should be included and what should not be included. That is best left to the rule committee and, in due course, to the Lord Chief Justice.

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[Lord Marks of Henley-on-Thames]

My Lords, I fully support the noble Baroness’s Amendments 9 and 11. It seems to me that the Bar Council is absolutely right to draw a distinction between the nature of rules specifying what decisions can be made by authorised persons and the question of whether such decisions made by authorised persons should be subject to a review.

The noble and learned Lord was good enough to circulate to us not only the draft statutory instrument that he mentioned but the policy statement in support of it. It is quite clear that the procedure rule committees will be responsible for making the decision as to what decisions should be made by authorised persons: that is, the Criminal Procedure Rule Committee, the Family Procedure Rule Committee and the Civil Procedure Rule Committee. Of course, the noble and learned Lord, Lord Neuberger, is right to point out that those rule committees make rules that are both subject to scrutiny by Parliament and subject to approval by the Lord Chief Justice. However, that does not have a bearing on the question of whether decisions, once made, should be reviewable.

I commend these two amendments because they set a simple and short time limit of 14 days for making the application for review, and a further 14 days only for the decision upon that review. Furthermore, I believe that there is some benefit to be gained from uniformity, so that all such decisions made by authorised persons are subject to the same time limits and the same procedure. It seems to me that to have different rules for different types of decisions would be a mistake.

I would of course expect that, in due course, the review provisions would be implemented by applying a test that the decision of an authorised person would be overturned only if it was outwith the range of reasonable responses to the question posed to the authorised person—the traditional appellate test, rather than a fundamental review test. Subject to that, it seems to me that to give an authorised person an unappealable, unreviewable power to make what will sometimes be very important decisions, even if they are sanctioned by the rules, would be going too far. So I support these amendments.

[Lord Neuberger of Abbotsbury]

My Lords, I have considerable sympathy with these amendments, in the sense that, as the noble Lord, Lord Marks, has said, the idea of a decision being made by a non-judicial person and not being referable to a judicial figure is inconsistent with justice. Whether it is right to provide in such clear terms, and such uncompromising general terms, for the circumstances and requirements for such an appeal seems to me, again, to be questionable. While I absolutely see the requirement for a right of appeal, I would have thought that, again, it would be better to leave it to the rule committee, which, as the noble Baroness has said, consists of experienced people from all aspects of the justice system.

Having chaired the Civil Procedure Rule Committee for three years, I can say, as has been quoted in relation to its criminal equivalent by my noble and learned friend Lord Thomas, that considerable care is given to ensure that all the requirements of justice are met. It is very rare, if ever, that I can remember a decision being arrived at which was not arrived at by consensus. To my mind, in those circumstances, while it is essential that there is this right, it is a right whose details should be worked out, at any rate, by the rule committee—the rules of which, as I have said, sounding like a scratched record, are put to the House.