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.

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

Lord Thomas of Cwmgiedd Excerpts

Report stage (Hansard): House of Lords
Tuesday 16th October 2018 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I support what the Government seek to do and urge a substantial degree of caution in respect of the proposal put forward by the noble Baroness. The Criminal Procedure Rule Committee and the other ones—the civil, family and tribunals committees—are independent bodies. They look at and scrutinise everything with a great deal of care. They are representative of all interests in litigation. For example, the Criminal Procedure Rule Committee has a number of defence lawyers and people from other aspects of the criminal justice system who proceed with great care to look at what is before them. It was suggested that they are unaccountable. I say on this amendment that the provisions for having to consider the right of reconsideration and then reporting that to the Lord Chancellor informing him of the decision and reasons is a traditional form of explanatory accountability.

Secondly, we ought to take into account the fact that, in our system of justice, 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. I urge the greatest caution in trying to put into primary legislation anything that restricts in this way the powers of the rule committees. For example, there are areas where it has proved difficult to modernise and to reform the system—for example, for extradition appeals, where provisions put into primary legislation made the system almost unworkable. Certainly what was in the primary legislation in relation to videolinks and the protection of vulnerable witnesses proved a great obstacle.

I therefore urge your Lordships to consider that this amendment, as my friend the noble Lord, Lord Marks, said, 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. It is always difficult to think of issues on the spur of the moment but, for example, one of the areas that troubles courts quite often is the short time limits if you have a recalcitrant party. It might be that, in very restricted circumstances, a rule committee would say, “This is the kind of area where a reconsideration is not necessary when a final extension has been given”. But the important point is that I urge your Lordships to trust the rule committees, particularly now that there is this additional safeguard.

[Lord Keen of Elie]

I am obliged to all noble Lords for their contributions. The Government’s position remains that the independent procedure rule committees, comprised of experts and practitioners from each jurisdiction, are best placed to decide whether a right of reconsideration is needed for each judicial function that staff are permitted to exercise. Similarly, they are best placed to determine what such a right should look like. In that context, I gratefully adopt the observations of the noble and learned Lord, Lord Thomas, the former Lord Chief Justice, and of the noble Lord, Lord Marks.

The approach taken in Amendments 8 and 11, tabled by the noble Baroness, Lady Chakrabarti, would impose a blanket right of reconsideration across all jurisdictions, with arbitrary deadlines. It simply would not work in practice. For example, the amendments would allow a person 14 days to apply for reconsideration. Why would a 14-day limit apply across all jurisdictions and for every judicial function that authorised persons are permitted to exercise, some of which are entirely straightforward case management and preparation duties? Indeed, the noble and learned Lord, Lord Thomas, referred to time limits. What happens if you have a request to adjourn a hearing due to take place the following day? If it is refused, you then have 14 days for reconsideration. In other words, it would automatically be successful because of this blanket provision. That is just one of many examples.

Each jurisdiction has its own ways of working and needs mechanisms for reviewing decisions that can respond to this. For example, the rule committees in the civil and tribunals jurisdictions have already built in a specific right to judicial reconsideration of decisions made by authorised staff. The magistrates’ courts and the family court have their own existing mechanisms for reviewing various decisions. These amendments, as proposed by the noble Baroness, would cut across all those existing provisions.

I mentioned an example in response to a query from the noble Lord, Lord Pannick. The magistrates’ courts issue something in excess of 2 million local authority summonses every year. If there were a right to reconsideration in every one of those cases, where would we begin and end with regard to the administration of such applications? Indeed, in the magistrates’ courts, there are already a number of ways for a defendant to challenge a case in which a summons has been issued. He or she can make an initial argument to the court hearing the case that the summons should not have been issued. You can contest the substantive application made by the local authority. There is even the possibility of judicial review. The matter is already covered.

Creating a mandatory right to apply for judicial reconsideration of the decision is not only unnecessary but would also be burdensome and ineffective. It is in these circumstances that I reiterate that it is appropriate, as other noble Lords have observed, that these matters should remain with the independent procedure rule committees and that I again commend Amendments 7, 9, 10 and 13. I invite the noble Baroness, Lady Chakrabarti, not to press her amendments in this group. I cannot commit to reflecting any further between now and Third Reading on these matters, so if the noble Baroness wishes to test the opinion of the House, she should do so now.