Courts and Tribunals (Judiciary and Functions of Staff) Bill [Lords] — House of Commons, 2018-12-12
Topic: Law and Crime
Lucy Claire Leigh (Frazer) (Conservative, Centre-right): I hope that more will put in to speak on this important subject. I wish to pick up on what my hon. Friend was saying, because he cited a number of speeches from the other place, where senior members of the judiciary were highlighting the appropriateness of the Government’s position. Lord Neuberger, former President of the Supreme Court, warned that these amendments would place "a potential straitjacket on the ability to appoint the appropriate people to make appropriate decisions." He went on to reflect that there "will be many decisions" for which the experience set out in the amendments "would be appropriate, but there will be others where less experience would be adequate for the decision-making."—[Official Report, House of Lords, 10 July 2018; Vol. 792, c. 882.] Thirdly, I come to an important point that has not yet been mentioned in the House. The amendments would limit flexibility should new routes to legal qualifications emerge. For example, one key change that we have made in the draft regulations that we published alongside the Bill is to include fellows of the Chartered Institute of Legal Executives, or those who have passed the necessary examinations to be a CILEx fellow, among those who can give legal advice. That is a progressive step, but if we were to accept amendments 2 and 3, it would be much harder to respond to such changes in the future, as we would have to amend primary, rather than secondary, legislation. Furthermore, a legal qualification might not be the most relevant qualification for a particular judicial function. For example, it is more helpful for a registrar in the tax tribunal to be a tax professional by background, rather than a legal professional The hon. Member for Bolton South East raised a number of points on independence, and I wish to start by saying that I think the judiciary, whether sitting in court or in committee, has, as my hon. Friend the Member for Cheltenham (Alex Chalk) said when he was in his place, the highest level of independence and integrity The hon. Lady queried, both here and in Committee, the independence of authorised staff, implying that those with a legal qualification were more likely to be independent. Under the Bill, all court and tribunal staff who are authorised to exercise judicial functions will now be independent of the Lord Chancellor when doing so, and subject only to the direction of the Lord Chief Justice or their nominee, or the Senior President of Tribunals or their delegate The Bill also provides, for the first time, protections from legal proceedings and costs in legal proceedings and indemnities for all authorised staff when carrying out judicial functions, which will further safeguard their independence in decision making Finally, amendment 5 deals with the right of reconsideration of decisions taken by authorised staff in the courts. I wish to start by acknowledging that the hon. Lady and the Opposition have listened carefully to the points made in Committee; I note there is now no amendment dealing with decisions taken by staff in the tribunals, and I welcome that It is right that in some circumstances a party to proceedings may wish to have the decision reconsidered, but we remain opposed to the amendment for three reasons. First, the Bill already ensures that a right of reconsideration will be available when appropriate. We believe that the independent procedure rule committees—comprised, as I and others have said, of jurisdictional experts and experienced practitioners—are best placed to decide whether such a right of further reconsideration is needed and, if so, the form that that right should take Indeed, the procedure rule committees in the civil and tribunals jurisdictions have already included in their respective rules a specific right to judicial reconsideration for decisions made by authorised persons in appropriate cases. For example, the magistrates courts and the family court have their own existing mechanisms for reviewing various decisions, which amendment 5 would cut across Secondly, the right identified by the hon. Lady is too broad, even by her own admission. In speaking to amendments in Committee, she said that "we accept and acknowledge that one should not be able to ask for reconsideration simply because one disagrees with the decision of the authorised person; one must have a cogent reason. There must be proper grounds for requesting a reconsideration."—[Official Report, Courts and Tribunals (Judiciary and Functions of Staff) [Lords] Public Bill Committee, 4 December 2018; c. 17.] I was delighted to hear those words, because the Government have also been arguing, both here and in the other place, that a blanket right of reconsideration simply would not work in practice. Yet amendment 5 would give a party in a case an automatic right to request that any decision made by an authorised person exercising the functions of a court be reconsidered by a judge, irrespective of the merits Thirdly, the approach we put forward is fair and balanced. The Government listened to concerns about ensuring there were adequate safeguards in the Bill. For that reason, we moved amendments on the right of reconsideration that were accepted on Report in the other place. They effectively require the rule committee, when making rules, to allow authorised staff to exercise judicial functions to consider whether each of those functions should be subject to a right to judicial reconsideration. Where a rule committee decides against the creation of a right of reconsideration, it must inform the Lord Chancellor of its decision and the reasons for it The hon. Lady also referred to the Briggs report, and I would like to touch on that very briefly. The recommendations made by Lord Justice Briggs are taken from the report "Civil Courts Structure Review", the focus of which was the courts of the civil jurisdiction. While an unqualified right of reconsideration might have been appropriate to recommend for the civil courts, given their unique way of working it would be ineffective simply to transpose this recommendation on entirely different jurisdictions The civil procedure rule committee has built a right of reconsideration into its rules, but this will not necessarily be appropriate for other jurisdictions. It is for each jurisdiction, with the expertise it has within the rule committee, to decide what is right That approach has found favour in the other place. Lord Thomas, former Lord Chief Justice and former chair of the criminal procedure rule committee, said: "I support what the Government seek to do and urge a substantial degree of caution in respect of the proposals brought forward by the noble Baroness"— that is, Baroness Chakrabarti. He added that the Government’s approach provides the right balance: "It gives discretion to a body that knows and has a lot of experience, but it contains that degree of explanatory accountability that will make sure that it does not do anything—even if we were to worry that it might—that goes outside a proper and just delegation".—[Official Report, House of Lords, 16 October 2018; Vol. 793, c. 425-26.] The Bill strikes the right balance between ensuring appropriate safeguards and transparency of decision making, and leaving the jurisdictional rule committees the discretion to determine the most appropriate mechanism for reviewing decisions by authorised people Finally, I would like to respond to the very important points made by the hon. Member for Sheffield, Heeley (Louise Haigh). I was very pleased to meet her and Sammy Woodhouse a week or so ago. She raised issues that are outside the scope of the Bill, but none the less what Sammy went through was harrowing and the hon. Lady made some important points. As she knows, I committed to look very carefully at the issues she raised and I assure her that we are doing that As the hon. Lady mentioned, we have already taken some steps. We have, as she alluded to, asked the president of the family court to look at the practice directions and he has committed to doing that with the rule committee. My officials have spoken to the Association of Directors of Children’s Services about whether it is appropriate to send further guidance to councils on the circumstances in which they should apply to court not to give notice of hearings to parties, such as happened in the Sammy Woodhouse case. The Department will continue to look closely at those issues For all those reasons, this is an important Bill that will ensure that we can bring flexibility to our judges, deploy them in the most flexible way, use their resources where they are needed and not when they are not needed, and ensure that those who operate our court system do so effectively and fairly for the people they serve The Ministry of Justice is putting users of the court at the heart of our reforms and of our programme on court reform. The measures will not only save on cost—that is not the primary reason for them, although it is important—but ensure that cases go through the system fairly and well. For those reasons, I urge the hon. Lady to withdraw the amendment.