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

Lord Thomas of Cwmgiedd Excerpts

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

[Lord Thomas of Cwmgiedd (CB)]

Perhaps I may turn to the last point made by the noble and learned Lord about the titles of the courts of England and Wales. If it is within the scope of the Bill, there may be some advantage in that. Beyond that, I do not wish to say anything about titles, as it has generally been my experience that once you start the debate on judicial titles it can take a whole afternoon to resolve them, and I know that your Lordships have a huge number of other things that may or may not happen later this evening.

I want to say a little bit about the Bill. When I was Lord Chief Justice, I firmly supported the original comprehensive Bill that covered everything. Some of the matters which the noble Baroness, Lady Chakrabarti, has referred to on a wider scale—issues of legal aid and the like—I am currently looking at as they affect Wales as chairman of the commission appointed by the Government in Wales to examine the justice system there, but I do not want today to go outside the scope of this Bill and its title.

I warmly welcome the Bill, as I warmly welcomed the many other clauses in the other Bill that was lost in 2017. It is essential to modernise the court system. It is very important that, wherever possible, savings can be made to make sure that every bit of the system is proportionate and affordable. The Bill reckons to save some £6 million. Bearing in mind the huge analysis to which all these figures have been subjected by accountants, consultants and Her Majesty’s Treasury, I suspect that this is a realistic figure. That is not an insubstantial sum in the light of the current expenditure on justice. Therefore, although a lot could be said about other aspects of the justice system and about adding more things that need to be done, I hope that your Lordships’ House will be able to pass this Bill as rapidly as possible.

Having abjured saying anything about titles, perhaps I may deal with just two provisions of the Bill. The first concerns flexible deployment. This is a very important step to be taken. During the past 15 to 20 years, the procedures of the courts and tribunals have come much closer together. It seems inevitable that one needs to deploy the judiciary flexibly. For example, I would hope that, where you have overlapping jurisdictions such as occurs in relation to property and housing, one could use this Bill to go some way along the lines of a single court that deals with property. Those provisions are unarguably needed.

I can see that great concern might be expressed about the authorisation provisions, but it is important to stress the degree of control inherent in the Bill by the use of the rule committee. I was a member of and chaired, de jure and sometimes de facto, the Criminal Procedure Rule Committee, which I can assure you is a highly representative body with many representatives of the legal profession. Certainly, the committee will always try to reach a view by consensus—when I was a member of it for more than six years there never was a division; we always managed to agree.

It was suggested in the course of today’s speeches that we may want to put restrictions on delegations. For example, would we impose a restriction such as, “If the matter is opposed, it cannot be dealt with through delegation”? A simple example shows how careful one has to be. If, for example, someone wants an extension of 14 days and someone else says, “No, you can only have seven”, that is an opposed proceeding. Do we really want to put restrictions into this Bill? Experience has shown that detailed restrictions on procedure are a very real fetter on the administration of justice. For example, some of the impediments to improving the way in which witnesses can give evidence over a videolink have been caused by the detailed procedural provisions of some of the legislation of the late 1990s and early 2000s. When the Bill comes to Committee, I sincerely hope that serious consideration will be given to fettering the discretion in requiring matters to come to this House, or to impeding the ability of the Criminal Procedure Rules Committee to modernise, particularly as digitisation, artificial intelligence and smart codes for procedural regimes will be characteristics of the justice system within the next few years.

I therefore hope that the Bill can be subject to realistic scrutiny. This is a small part of what is essential. It is important to remind the House that there is no plan B for the modernisation of the system. If modernisation does not go through, the only prospect for our court system is significant decline. I therefore hope that the Bill will be given detailed scrutiny in Committee and that people will try to resist the temptation to hang too many other things within the scope of the Bill on it. I am anxious for the Government to realise they can put this through so they can get the other ones through and we can have a modernised justice system as soon as conceivably possible, because that is what we have to do to restore justice to the people at an affordable cost.