Courts and Tribunals (Online Procedure) Bill [HL]

Lord Woolf Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 10th June 2019 Lords Chamber

[Lord Keen of Elie]

There are circumstances in which the Minister may give directions to the committee—I accept that—and that reflects the current position with regard to the other rule committees already in existence, including the tribunal rules, the civil rules and the criminal rules. It exists by way of an executive direction and is there for good reason as a fallback. I understand that the power has been used only once with regard to the existing committees, to address a potential anomaly in the existing rules. It is an exceptional power but it is there because it reflects the existing power in the provisions for the other rule committees.

[Lord Woolf (CB)]

I apologise for not being at Second Reading but perhaps the Minister will indulge me by helping me with the purpose of Clause 1(1)(a), which states:

“For proceedings of a specified kind, there are to be procedural rules which … must require that kind of proceedings, or one or more aspects of that kind of proceedings, to be initiated by electronic means”.

--- Later in debate ---

[Lord Mackay of Clashfern]

Having had the honour of holding the office of Lord Chancellor when the Lord Chancellor was the head of the judiciary, I think it is right for me to say a word or two about the present position.

It is very important to remember that our constitution recognises three arms: the legislature, the Executive and the judiciary. The judiciary is a distinct arm from the Executive. The Executive have responsibilities in relation to the judiciary, and of course the judiciary has responsibilities in relation to the people of this country in a way that is unique. If somebody else is entitled to say, without getting the ultimate agreement of the Lord Chief Justice, “We’re going to alter your procedures in the court. We’ll tell you about it and we’ll consult you but, if you don’t like it, we’ll do it all the same”, that seems to subvert the idea that the Lord Chief Justice is the head of the judiciary. The judiciary must act according to procedures and, if you alter the rules or procedures without his agreement, it seems to me that you subvert his position as the head of the judiciary as distinct from the Executive and the legislature.

Incidentally, I cannot help remarking at this stage that the judiciary has been silenced from having any part in the legislature. I regard that as an extraordinarily retrograde step. I hope that some day it will be put right by a responsible Government and that we will have the very great advantage of hearing in the House of Lords not just all past Lord Chief Justices but the present one as well.

The Lord Chief Justice’s agreement seems to me absolutely essential. Indeed, I would like to feel that he would be the initiator of changes in procedure as a result of committee recommendations. His responsibilities will be encroached upon if these procedures do not work.

My only other remark is that the reference to the Secretary of State in Clause 6(2) is probably to the Secretary of States for Wales, the language of Wales being important in this connection.

[Lord Woolf]

My Lords, I hope it will not be inappropriate, in view of the elegant and powerful speeches already made, for me to say these few words. I was a party to the concordat, the importance of which was that it established the new relationship between the arms of government, to which the noble and learned Lord, Lord Mackay, referred, until the Constitutional Reform Act 2005. I hope it will suffice to say that everything said in support of this amendment seems four-square with what was said in the concordat, indicating when the consent of the Lord Chancellor or that of the Lord Chief Justice would be required. These were heavy burdens that my successors as Lord Chief Justice had to carry in consequence of, first, the concordat and then the Constitutional Reform Act. It would be so easy to allow legislation of this sort to undermine the spirit of the concordat and the provisions of that Act by creating a precedent, which could be pointed to subsequently, indicating that the clear distinctions of relevant situations where the consent of the Lord Chief Justice should be required are not as they were previously understood to be.

[Lord Beecham]

My Lords, I simply add that the crowded Benches behind me will support the amendment. We are entirely in sympathy with all that has been said.