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

Robert Neill Excerpts

3rd reading: House of Commons & Report stage: House of Commons
Wednesday 12th December 2018 Commons Chamber

[Yasmin Qureshi]

I thank my hon. Friend, a former shadow Justice Minister, for his intervention, and I take his point.

We acknowledge that the relevant procedure rule committee will set out the procedural requirements for who can carry out the procedures, but we also know that these committees are predominantly made up of senior judges, so this will have implications for the independence of judicial decision making.

We also believe that such a shift will not match the expectations held by members of the public on the experience and independence of those making judicial decisions about their rights.

[Robert Neill (Bromley and Chislehurst) (Con)]

The hon. Lady referred to the independence of the judges. Is not the whole virtue of this proposal that the rules governing who should be delegated what functions will be made by judges, and should not be made by politicians in any circumstance? Lord Thomas of Cwmgiedd, the former Lord Chief Justice, observed:

“Experience has shown that detailed restrictions on procedure are a very real fetter on the administration of justice.”—[Official Report, House of Lords, 20 June 2018; Vol. 791, c. 2039.]

He counselled against too much restriction of the kind that is being proposed.

[Yasmin Qureshi]

The procedure rule committee obviously has a place in our judicial system, and we accept that judges and others are involved in it, but everyone knows that there are times when, because of financial pressures, services are cut to the bare minimum. We believe that, to protect our judicial system, the functions concerned should be clearly set out, and those that will have an effect on someone should be decided by an authorised person with a legal qualification.

[Yasmin Qureshi]

We are not suggesting that judges will somehow not be independent. As I have said, I have the highest regard for our judiciary in court, although from time to time we might disagree with the decisions that judges reach. In the real world, however, there are often targets to be met and financial constraints to be considered. We are saying that when the procedure rule committee is making rules, it should be guided by Parliament.

[Robert Neill]

rose—

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The Government must take notice of the clear limitations of this Bill. They should listen to those who seek to improve this Bill and accept our amendments to ensure that we protect our judicial system.

[Robert Neill]

I hope I shall make a better stab at my speech than I did of being a Teller earlier.

I rise to oppose these amendments, tempted though I am by the way in which they were proposed by the shadow Minister, the hon. Member for Bolton South East (Yasmin Qureshi), whom I respect as a fellow lawyer. However, I do have to say that she seeks to go further than is appropriate and seeks to put a needless restriction on the ability of the procedure committee in particular to come to the appropriate balance. I have very great respect for the views of both the Law Society and the Bar Council—I say that with reference to my entry in the Register of Members’ Financial Interests as a non-practising barrister and a consultant to a law firm—but ultimately the scheme envisaged by the Government is a right and balanced one, and reflects in particular the views of the senior judiciary, which I think is important because ultimately it is the judges who are best placed to decide the appropriate level of delegation. They are the people who work day to day with these staff; they see day to day the nature of the boxwork—as it is sometimes called—and the other things that come in.

For these reasons, when the matter was debated in the other place, both Lord Thomas of Cwmgiedd, the recently retired Lord Chief Justice, to whom I have already referred, and Lord Neuberger of Abbotsbury, recently retired president of the Supreme Court, counselled against an undue restriction on the operation of the civil procedure rule committee, already a well established body of the kind the Opposition seek to bring in. I think they also broadly supported the overall thrust of the Bill.

The hon. Lady referred to austerity. That is not the objective of this Bill; there has been a long-standing proposal to modernise the civil justice system. She referred to the work done by Lord Justice Briggs, for whom I have the greatest respect. The Bill is a logical follow-on from the Briggs report, and it is necessary if we are to achieve modernisation and make the courts more accessible for litigants. This is an entirely sensible Bill; that is why the judiciary has pushed for these sorts of proposals, and why Lord Thomas said that he “warmly” welcomed it. It will save some £6 million; he regards that as a realistic figure. That is important in the context of the available resources for the courts system. We all accept that the courts are under pressure, and this is a sensible way forward that does not impede the basic requirements of access to justice or fairness.

Lord Thomas said two further things that we should bear in mind. He spoke about the developments in civil procedures; the rule committee has been an important part of that over the last 15 to 20 years, so it is not as though the committee were unused to dealing with these matters. The committees bring together representatives of the legal profession. As a former practitioner, I agree with his description of that committee as

“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.”—[Official Report, House of Lords, 20 June 2018; Vol. 791, c. 2039.]

Most experienced practitioners will be aware of that. I think we can say the same of the criminal procedure rule committee; these are very well established bodies, and judges do not forget that they are judges when they are there.

It is a little unworthy, I say with respect, to suggest that the judiciary—we have talked about the senior judiciary chairing these bodies—would acquiesce in an inappropriate level of delegation for a purely financial consideration. They would be going against their judicial oaths. I do not think for one second that the hon. Lady really means to say that they would do that. The amendments would, however, put needless constraint on the committee’s work. That is why I quoted before and quote again Lord Thomas’s observation:

“Experience has shown that detailed restrictions on procedure are a very real fetter on the administration of justice”—[Official Report, House of Lords, 20 June 2018; Vol. 791, c. 2039.]

In the other place, he gave a number of examples that I need not give here showing why that could be counterproductive.

It is also worth considering the speech of Lord Neuberger. He pointed out the following:

“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.” .”—[Official Report, House of Lords, 20 July 2018; Vol. 792, c. 887.]

Those are important safeguards.

[James Cartlidge]

My hon. Friend speaks with great expertise. What he is saying goes back to the point raised earlier about the possibility of the functions that are delegated having legal significance. Presumably if that was the case, they would not be delegated to start with.

[Robert Neill]

That is precisely right. It is inconceivable that any Lord Chief Justice would give his or her consent to a delegation that was inappropriate or would put the interests of justice at risk. I never sat as a deputy district judge—they used to be called deputy registrars in my day, so long ago was it—in civil matters, but I have many friends who do, and a great deal of what is called boxwork, with which at least some on the Treasury Bench will be familiar, was of a very administrative kind. We expect the district judges in a busy county court to deal with that, whereas it seems perfectly reasonable for many of these matters, which are often of a very interlocutory nature, to be dealt with by an experienced member of court staff who has been in the service for many years. We are not talking about the ultimate determination of the case in any of these matters. That is why Lord Neuberger referred to that safeguard or protection, and the protection that that would be laid before Parliament.

Lord Neuberger made another important observation on the attempt, as it seems to me, to fetter the discretion of the committee. He posed a rhetorical question, as perhaps senior judges and other lawyers tend to do:

“Whether it is right to provide in such clear terms, and such uncompromising general terms, for the circumstances and requirements for”

appeals—which is what he was talking about—seems to him to be questionable. He was making this point:

“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.”

These questions are considered, not only by the judiciary but by practitioners, including members of the solicitors’ profession and members of the Bar. Plaintiffs’ and defendants’ interests are represented on these committees, as are both ends of the profession—solicitors and barristers—and all levels of the judiciary, from the High Court bench through the circuit bench to the district bench. This is a broad-based body and, as Lord Neuberger said, these

“details should be worked out…by the rule committee”.—[Official Report, House of Lords, 10 July 2018; Vol. 792, c. 890 to 891.]

I think that that is a forceful argument for leaving the proposals as the Government intended.

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[Lucy Frazer]

My hon. Friend makes an important point that has a number of aspects. First, my Department had to make cuts in 2010 because of the poor financial situation that we inherited from the Labour party. Secondly, it is important that we deliver justice fairly to those who are part of the justice system, but as he says, we also have a duty to the taxpayer. Overlaying those two points is a third point. Notwithstanding the position we inherited and notwithstanding our duty to taxpayers, my Department is undertaking a significant reform programme that is investing in our justice system. A couple of weeks ago, the Ministry of Justice held a conference at which more than 20 countries from around the world were represented. They talked about their own reform and modernisation programmes, but ours is one of the most ambitious. We are at the forefront of innovation, and we are investing in our justice system to bring it up to date in the 21st century.

[Robert Neill]

Is this not also important in the context of the speech by Lord Thomas of Cwmgiedd in the other place? He said that

“the operation of the criminal, civil, tribunals and family procedures rule committees has enabled us far more than any other state to keep our rules up to date.”

We need to continue to do that. That is why he stated:

“I urge the greatest caution in trying to put into primary legislation anything that restricts in this way the powers of the rule committees.”—[Official Report, House of Lords, 16 October 2018; Vol. 793, c. 425.]

[Lucy Frazer]

That is an important point. Our justice system is renowned throughout the world, thanks to its flexibility, which is enabled by the rules committees along with the other measures that allow us to develop our jurisdiction.

The hon. Member for Bolton South East finished by suggesting that we should listen and take the amendments on board, but we have listened and made amendments. We made amendments in the other place to include safeguards and improve the Bill.

[Lucy Frazer]

My hon. Friend and, indeed, Mr Deputy Speaker have campaigned hard about the closure of their local courts, and the dispensing of local justice is important in Northallerton, as it is in Chorley. My hon. Friend makes an important point, because, following campaigning by my hon. Friend and his constituency neighbour, my hon. Friend the Member for Richmond (Yorks) (Rishi Sunak), we committed not to close the court on the basis that we would do so only when the technology was in place to ensure that we could continue to deliver justice. We need to move with the times, but we must also ensure that people get fair procedures and justice in the tribunals.

[Robert Neill]

My hon. and learned Friend is being most generous in giving way. Does she also recognise that modernising and simplifying procedures saves money not only for the taxpayer, but for litigants? Part of access to justice is about reducing needless costs for litigants.

[Lucy Frazer]

That is an important point, because when we talk about what we have saved, we often mean what has been saved at the Ministry of Justice, but the reality is that ensuring that justice is served for the people who use it is at the heart of our reforms. Many of our changes have received positive feedback. In a recent trial at the tax tribunal, people were able to access justice from remote locations and not have to go to a physical court. That was well received, because people did not have to disrupt their day by physically entering court. Of course, that will not be appropriate for everyone, but we must ensure that we use the advantages of technology in the future.

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[Lucy Frazer]

That is an important point. Some people are already carrying out these functions and doing them well, and they will be able to see a future career progression for themselves. The legal and other qualifications they should have will be set out, but they will be set out by the committees, which are judicially led and independent of Government, and include representatives of the legal professions, and court and tribunal users. As my hon. Friend the Member for Bromley and Chislehurst said, the judges placed on those are leading the procedure rule committees and have significant expertise. It is they who are best placed to assess the appropriate level of qualification or experience for authorised staff, in the light of the functions they choose to allow those staff to exercise.

My hon. Friend rightly said that the member of staff will not be able to give legal advice or exercise judicial functions until they have been authorised to do so by the Lord Chief Justice or their nominee, or by the Senior President of Tribunals or their delegate. Authorisations are therefore ultimately the responsibility of the judiciary, and those people will not authorise staff unless they are satisfied as to their competence.

[Robert Neill]

My hon. and learned Friend will know, and perhaps she will confirm, that the way this works in practice is that either the Lord Chief Justice or the Senior President of Tribunals makes the authorisation. Alternatively, in the case of the civil jurisdiction, for example, this will invariably at least go to the senior presiding judge or the presiding judges of the circuit. We are talking about people who, in their administrative role, never mind their judicial capacity, will have visited and met these—

[Mr Deputy Speaker]

Order. Minister, come on. And you have had three speeches already, Bob, you don’t need to stretch the imagination of the Chamber.

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[Robert Neill]

It is a pleasure to follow the hon. Member for Bradford East (Imran Hussain). We have had a constructive and civilised debate on both sides. I do not agree with all his conclusions, but none the less it has been a good debate. I particularly congratulate my hon. and learned Friend the Minister on the stellar way in which she has taken the Bill through all its stages. I am sure that it will not be the last time she does that.

I support the Bill. I would have liked a bigger Bill, and I would like not to have lost the Prisons and Courts Bill in the 2017 Dissolution, but we are where we are, and this is a valuable step forward. I particularly welcome my hon. and learned Friend’s commitment to introducing further legislation. As she and the House know, this is part of the very important courts modernisation programme, particularly on the civil side, and builds on the work of Lord Briggs of Westbourne. I know that those involved in his review are most anxious that the remaining statutory underpinnings for the updating of procedure rules and other matters be introduced as a matter of urgency, and I urge her to do that as soon as the legislative timetable permits.

I think that the Bill strikes the right balance. I would take issue with the hon. Member for Bradford East over the suggestion that the judges, exercising their oath of office on the procedure rule committees, would allow themselves to be swayed by considerations of convenience or financial matters in deciding upon the appropriate scheme of delegation. There is not a shred of evidence in the history of our modern judiciary to suggest such a thing, and it does a disservice to the judiciary. We should trust the judges.

[Imran Hussain]

I want to make it absolutely clear that—as I am sure the hon. Gentleman, who is Chair of the Justice Committee, will accept—no one in the Opposition is challenging in any way, shape or form the good standing of the judiciary. The point, which has been made time and again, is that certain matters are within the remit of the procedure rule committees, but there are others that this House and the other place should have scrutiny of.

[Robert Neill]

I thank the hon. Gentleman for what he has said, and I entirely accept the intentions behind it. We will have to differ on the question where the line should be drawn between which decisions are appropriate for Parliament to decide and which are appropriate for the judiciary, but I am grateful for the sentiments that he has expressed, which I am sure have reassured us all.

I am happy to proceed on the basis of recent advice from senior judges who have been referred to in the debate and on the basis of what is in the Bill. It will make savings, and at this point perhaps I can put in a plug to the Minister. It might be appropriate, for example, to use that £6 million-plus to restore the funding for the Family Drug and Alcohol Court National Unit. I particularly regret that we have lost some of the emphasis on problem-solving courts following the loss of the Prisons and Courts Bill. Perhaps, given that we now have a unified planning court, we could also consider the Lord Flight’s suggestion in the other place for the establishment of a unified housing court.

Having made those suggestions for what might happen in future, I will end by saying that I welcome the Bill and will support it today.