Courts and Tribunals (Online Procedure) Bill [HL] — House of Lords, 2019-06-10
Topic: Law and Crime
Igor Judge (Crossbench, Unknown): My Lords, since Second Reading, when I argued in support of these amendments, I have had a meeting with the Minister and, notwithstanding his customary courtesy, I was unable to persuade him of the good sense of these amendments. Listening to his response to today’s debate, it is quite obvious that we cannot expect a Damascene conversion on his part, but did I detect the tiniest shining light—the dawning of a better understanding of why these amendments should be made? If I detected a light, it was only a faint one and I shall certainly not turn the lights off. If we are talking about dawns, nor shall I allow any clouds to obscure my meaning We have discussed the issues and I shall not go over those that have already been ventilated in our debate. Lord Justice Briggs’s report is admirable and I continue to support it, but it was a report directed to a small feature of the system of litigation. The Bill, as has been said but is worth repeating, has the potential to cover every single aspect of the administration of civil justice, every single aspect of the administration of family justice and the entire tribunal system. It is difficult to exaggerate the level of interference with the administration of justice in all the areas that the Bill would give to the Lord Chancellor. As I say, the issues have been addressed and I shall not repeat them, but I have heard the Minister say on a number of occasions, "It’s all right because there is the committee with a judicial involvement". Indeed, in answer to an earlier debate, he pointed out the happy differences between this committee and the Family Procedure Rule Committee, the Civil Procedure Rule Committee and so on. But there are two that he did not grasp and they are the ones that matter This is a committee on which the judiciary will be in a minority and it is the first such committee. It will be a committee of which the majority of the members will be appointed by the Lord Chancellor. Let us pause and think about that. The majority will be appointed by the Lord Chancellor and presumably it will be for him to dismiss them if he disagrees with them. That is consistent with the pernicious modern tendency, which I have go on about before, of our being asked to vest greater powers in the Executive—in this case in one Minister. We have become inured to it and it is particularly incongruous in the context of the administration of justice, where, as a matter of constitutional necessity, everyone accepts that the powers should be separate Since the constitutional reforms made in the early 2000s, ultimate responsibility for the administration of justice is vested not in the Lord Chancellor or in any other Minister of the Crown, but in the office of the Lord Chief Justice, an office I had the privilege to hold. At the time, none of the judges was urging any such change; we did not want to get rid of the Lord Chancellor. The noble and learned Lord, Lord Mackay, was not the Lord Chancellor at that time, but we were very happy with who we had had and did have. It came as a complete surprise to the judiciary, therefore, but it has come, and the consequence is this: a reduction in the responsibilities of the Lord Chancellor for the administration of justice, and a significantly enhanced responsibility of the Lord Chief Justice. He is responsible for what happens in the court system, and that must be understood when we are contemplating this Bill With one important exception—important for a reason to which I shall come—under the Bill in its present form, in the discharge of his responsibility for the day-to-day running of the family courts, the civil courts and, to the extent that he has responsibility over the tribunal system, the tribunal courts, the Lord Chief Justice is granted what is pushed as a "privilege" to be consulted by the Lord Chancellor if the Lord Chancellor and his committee have any proposals for change. However much the noble and learned Lord, Lord Keen, may be frightened of what the Lord Chief Justice may say, a political Lord Chancellor disagreeing with the Lord Chief Justice can simply disregard whatever he may say. It would for years, no doubt, be done with appropriate courtesy—and I hope that, in years to come, it will always be done with appropriate courtesy—but there is no guarantee even of that. But pause here because, after these changes have been implemented, the responsibility if they fail to work will fall not on the Lord Chancellor but on the Lord Chief Justice—even if, when consulted, he or his predecessor argued against them. In those circumstances, limiting the role of the Lord Chief Justice to consultation is absurd The change in the relative responsibilities of the Lord Chancellor and the Lord Chief Justice has been understood and acknowledged in earlier arrangements. Thus, for example, when the question arises of whether court proceedings in England and Wales may be televised—and, if so, which part of such proceedings may be televised and what damage there may be, if any, to the administration of justice depending on what proceedings are televised, or how the administration of justice may be advanced if part of the proceedings are televised—that decision is not vested exclusively in the Minister, who may after all have political reasons for his decision; it requires the concurrence of the Lord Chief Justice. On disciplinary proceedings, if a judge has misbehaved or misconducted himself or herself, there is a requirement for concurrence between the holders of the two offices. What is more, the Bill itself, in Clause 6(2), recognises circumstances in which concurrence is appropriate. The amendments proposed to this and the remaining clauses are therefore entirely consistent with a provision in the Bill and with other provisions outside it Concurrence of the Lord Chief Justice, and where appropriate the Senior President of Tribunals, is necessary surely when an issue affects the administration of justice on a day-to-day basis. That is what the Bill is about: the administration of justice, day to day. Questions of how proceedings in whichever area of law may be conducted and how they may not; whether, and if so in what circumstances, they must be conducted digitally or on paper; whether and how the interests of litigants who are not proficient are upheld, as we discussed earlier—that is all part of the day-to-day requirement of what goes on in our courts. There is one final consideration, which always seems to me to matter hugely: whether the unsuccessful litigant leaves court satisfied, not of course with the result but with the idea and conviction that he or she has been heard and understood. "Even if the judge got it wrong, he listened to me", seems a very important part of the administration of justice. These are all questions for the day-to-day search for justice In the context of the Bill, which proposes at some stage along the line of history to give wide powers to a Minister, consultation alone is a meaningless handout from the Executive to the judiciary. More importantly, alone it offers no sufficient protection to the citizen against inappropriate Executive interference with the administration of justice. I beg to move.