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BRIEFING PAPER

Number 08440, 16 November 2018

Courts and Tribunals (Judiciary and Functions of Staff) [HL] Bill (2018-19)

By Graeme Cowie and Previn Desai

Contents: 1. Introduction 2. Background 3. Judicial deployment

provisions 4. Judicial titles provisions 5. Functions of court staff

provisions 6. What’s not in the Bill? 7. Judicial diversity statistics 8. Further reading

2 Courts and Tribunals (Judiciary and Functions of Staff) [HL] Bill (2018-19)

Contents Summary 3

1. Introduction 5 1.1 The Bill 5 1.2 Territorial extent and application 5 1.3 Judicial deployment and titles (Clauses 1 and 2) 5 1.4 Functions of staff (Clause 3 and Schedule) 6 1.5 Commencement 6 1.6 Financial implications 7

2. Background 8 2.1 Revived proposals from the Prisons and Courts Bill 2016-17 8 2.2 Reviews into the Civil and Criminal Courts (2015-16) 9 2.3 Transforming our Justice System (2016) 9 2.4 Fiscal constraints on HMCTS 10 2.5 Broader challenges 10

3. Judicial deployment provisions 12 3.1 Government’s reasons for changes 12 3.2 Bill as introduced 14 3.3 Reaction in the Lords 17 3.4 Amendments considered in the Lords 18 3.5 Comment 19

4. Judicial titles provisions 20

5. Functions of court staff provisions 21 5.1 Existing role of court and tribunal staff 21 5.2 Government’s reasons for changes 23 5.3 Bill as introduced 24 5.4 Reaction in the Lords 25 5.5 External reviews and commentary 27 5.6 Policy Statement on Delegation (July 2018) 30 5.7 Amendments considered in the Lords 31

Regulation-making powers of the Lord Chancellor 31 Qualifications of authorised court staff 32 Restrictions on type of functions that can be delegated 34 Right to judicial reconsideration of decisions taken by authorised court staff 36 Review of delegation 38

6. What’s not in the Bill? 39 6.1 Notable omissions from Prisons and Courts Bill 39 6.2 Scope and amendability 42

7. Judicial diversity statistics 44

8. Further reading 45

Cover page image copyright Oxford County Court by Kaihsu Tai. Licensed under the Creative Commons Attribution-Share Alike 3.0 Unported license / image cropped.

3 Commons Library Briefing, 16 November 2018

Summary This Bill The Courts and Tribunals (Judiciary and Functions of Staff) [HL] Bill 2017-19 (Courts Bill) is a Public Bill, introduced by the Government pursuant to a commitment made in the Queen’s Speech. The Bill was introduced in the House of Lords on 23 May 2018 and completed its Lords stages with Third Reading on 13 November 2018. Commons First Reading took place that day, with Second Reading anticipated for 26 November 2018.

The Bill affects the Courts and Tribunals system insofar as it relates to England and Wales and (to the extent that tribunals are reserved) to the United Kingdom as a whole.

What the Bill does The Courts Bill as introduced is short, containing only four clauses and a Schedule. It makes three key changes:

• it makes it possible to deploy certain judicial office-holders with more flexibility throughout the courts and tribunals system than is presently allowed (clause 1);

• it renames the "Chief Bankruptcy Registrar" as the "Chief Insolvency and Companies Court Judge" and makes it easier for similar judicial titles to be changed by delegated legislation (clause 2); and

• it overhauls the regulatory underpinning for delegating court functions from judges to certain court staff, and extends the availability of this delegation to the Crown Court (clause 3).

Financial implications The Government’s Impact Assessments (IAs) on the Bill refer to the Government’s broader assessment that its justice reform programme will save “£200 million per annum” by 2023-24. However, the provisions in this Bill are expected to account for only a modest proportion of those total savings. The IAs identified no monetised savings for the changes to the deployment of judges, but an expected net annual saving of £5.8 million for greater use of newly “authorised” court staff carrying out functions currently undertaken by judges. This represents less than 0.4% of the annual expenditure of HMCTS.1

Prison and Courts Bill (2016-17) Most, but not all, of the provisions in the Courts Bill were considered in the previous Parliamentary session. The Prisons and Courts Bill 2016-17 was much broader in terms of its scope and the scale of reform of the courts it sought to bring about, but it fell before the completion of Commons Committee stage because of the 2017 General Election.

Implications of a narrowly drafted Bill This Bill is as notable for what it does not include, as for what it does. External commentators have noted that the narrow scope of this Bill likely prevents wider justice issues, such as legal aid, from being considered in any amendments to it.2 The Government has indicated that there will be further primary legislation brought forward in this Parliament to implement its longstanding proposals to create “online courts” and to digitise (and otherwise streamline) existing court processes.3

1 HM Courts and Tribunals Service, Annual Report and Accounts 2016-17, July 2017, p. 10 2 J. Rozenberg, Sitting in judgement on flexible courts, Law Society Gazette, 4 June 2018 3 HL Deb 20 June 2018 Vol 791 c2030

4 Courts and Tribunals (Judiciary and Functions of Staff) [HL] Bill (2018-19)

Some of the provisions contained in the Prisons and Courts Bill have since been included in other proposed legislation. The Civil Liability Bill [HL] 2017-19, for instance, reintroduces the previous Bill’s proposed reform of personal injury law. The Government also carried out a consultation between March and May 2018 on a proposal to introduce legislation on domestic violence, which would likely include the previously proposed changes to cross-examination in family courts.

Reviews into reform of HMCTS In the previous Parliamentary session, the Government commissioned two independent reports into court reform. Lord Justice Briggs published an Interim (December 2015) and Final (July 2016) report into Civil Court Structure, while Sir Brian Leveson conducted a Review of Efficiency of Criminal Proceedings, reporting in January 2015.

These two reviews provided the basis for a broad range of proposed reforms, culminating in the publication of a joint statement from the then Lord Chancellor and Lord Chief Justice and the current Senior President of Tribunals. “Transforming our Justice System”, published in September 2016, was consulted on between September and November 2016, with the Government publishing its responses in February 2017. At that point the Government indicated it would be proceeding with its reforms. The specific areas consulted on in late 2016 (use of technology and composition of tribunal panels) were included in the Prisons and Courts Bill but are absent from this Bill.

Policy background These changes come against a broader set of challenges for the Ministry of Justice and HM Courts and Tribunals Service (HMCTS). As an “unprotected” Government department, the Ministry of Justice is projected to face a 35% real terms decrease in managed expenditure from 2012-13 to 2019-20, compared with a rise in total cross-departmental managed expenditure of 8.6% over the same period.4

The Government’s “Estates Reform Project” has involved the closure of a significant number of HMCTS buildings (including courts).5 This has placed greater pressure to use existing facilities more efficiently and to provide alternatives to them.

There are two particularly and directly relevant pressures on HMCTS connected to the reforms contained in this Bill. Firstly, the courts have accrued a substantial and rising backlog of cases. This is particularly notable in the Court of Appeal, where the Briggs Report identified a backlog of over 46,000 hours and at an annual deficit of more than 9,000 hours.6

Secondly, and relatedly, HMCTS has faced recruitment challenges in relation to judicial offices. Many positions, but especially those in the lower courts, are currently vacant and urgently need filled. More than 300 vacancies for district judges are expected to be filled by February 2019 alone in what has been described as the Judicial Appointments Commission’s “biggest ever” recruitment exercise.7 These combined pressures partly explain why the Government is keen to deploy the existing pool of judges more flexibly and to transfer more of their routine functions to suitably qualified court staff.

4 HM Treasury, Public Expenditure Statistical Analyses 2017, table 1.13, July 2017; Ministry of Justice,

Annual Report and Accounts 2016-17, July 2017 5 See Commons Library Briefing Paper, Court and tribunal closures, 16/07346, 21 March 2016 6 Lord Justice Briggs, Civil Courts Structure Review: Final Report, July 2016, para 2.9 and Annex 4 7 Grania Langdon-Down, Missing Opportunities, Law Society Gazette, 18 June 2018

5 Commons Library Briefing, 16 November 2018

1. Introduction

Summary

In the 2017 Queen’s Speech, the Government committed to introduce legislation “to modernise the courts system”. To that end, the Courts and Tribunals (Judiciary and Functions of Staff) Bill was introduced in the House of Lords on 23 May 2018. It proposes to make changes in two areas of the courts and tribunals system, namely to:

• relax the rules concerning the deployment of judges and make it easier to change their titles; and • standardise, and make easier, the delegation of court functions from judges to authorised staff.

The Bill is predominantly concerned with the courts and tribunals system in England and Wales, but also affects Scotland and Northern Ireland with respect to tribunals (to the extent that they are reserved).

The Government expects that these changes, in aggregate, will save HMCTS £5.8 million per annum, or 0.4% of its budget.

1.1 The Bill The Courts and Tribunals (Judiciary and Functions of Staff) Bill is a public Bill, first introduced into the House of Lords on 23 May 2018. It received its Second Reading in the Lords on 20 June 2018 and completed its Lords Committee Stage on 10 July 2018, the Bill not having been amended. The Bill completed Report stage in the Lords on 16 October 2018 having been amended by the Government, then received its Third Reading on 13 November 2018. It was introduced in the Commons the same day, with Second Reading expected on 26 November. The Bill was introduced after a commitment in the Queen’s Speech to introduce legislation “to modernise the courts system”.

The Bill proposes to make changes to the courts and tribunals system in, broadly, two areas:

• judicial deployment; and

• the arrangements by which court functions, carried out by judges, can be delegated to certain court staff.

1.2 Territorial extent and application This Bill’s provisions are principally concerned with the courts and tribunals system as it operates in England and Wales. However, aspects of the judicial deployment provisions extend and apply to Scotland (insofar as they relate to employment tribunals) and, insofar as the provisions as a whole relate to the reserved tribunals system, they extend and apply to the United Kingdom as a whole (including Northern Ireland).

1.3 Judicial deployment and titles (Clauses 1 and 2)

Deployment Clause 1 relaxes several restrictions currently imposed on the deployment of judges. It allows:

6 Courts and Tribunals (Judiciary and Functions of Staff) [HL] Bill (2018-19)

• existing judges (both temporary and permanent appointees) to sit on a broader range of courts and tribunals to meet surges in demand;

• a broader range of judges to serve as judge-arbitrators (including in jurisdictions where there is an increased demand for arbitration); and

• existing tribunal chairs to be appointed to preside (without limitation) over multiple tribunal chambers (reducing the urgency to recruit replacements in the event of a vacancy).

Titles Clause 2 changes the title of the “Chief Bankruptcy Registrar” to “Chief Insolvency and Companies Court Judge” (CICCJ), to reflect other nomenclature changes already made in the relevant court. It would also make it easier for the Lord Chancellor to change the name of the CICCJ and four other senior judicial titles in the future: without having to resort to primary legislation.

1.4 Functions of staff (Clause 3 and Schedule) The most significant changes the Bill proposes to make concern the arrangements for delegating court functions from judges to court staff. This already happens under a series of different arrangements (on a jurisdiction by jurisdiction basis) in the civil, family and magistrates’ courts, but is not permitted in the Crown court. The proposals in Clause 3 and the Schedule would replace those existing schemes with something resembling a “unified” approach throughout HMCTS.

Under the new arrangements jurisdiction procedure rule committees would be responsible for deciding what functions, currently carried out by judges, could and should instead be able to be carried out by “authorised” court and/or tribunal staff. These procedure rules would also determine the limits of delegation and how it would be supervised.

In the magistrates’ and family courts, these new “authorised” staff would also assume the existing functions of justices’ clerks in relation to providing legal advice to justices of the peace (lay judges). Justices’ clerks will be abolished as part of this replacement scheme for delegating functions.

The Lord Chief Justice and Senior President of Tribunals would have overarching responsibility for delegation of functions in the courts and in the tribunals respectively. They would, however, be authorised to delegate oversight and management of authorised staff to other members of the judiciary.

1.5 Commencement Clause 4 provides for the commencement of the provisions in the Bill once enacted. As introduced, the Bill anticipates that changes to judicial deployment and nomenclature will be commenced two months after Royal Assent. Provisions relating to staff functions, however, would be

7 Commons Library Briefing, 16 November 2018

commenced on a date appointed by regulations made by the Secretary of State.

1.6 Financial implications The Government has published three Impact Assessments (IA) on the Bill. There is an overarching IA and one specific IA each for (a) judicial deployment and (b) court staff delegation. These IAs refer to the Government’s broader assessment that its justice reform programme will make savings of “£200 million per annum” by 2023-24.8

The Impact Assessments identified no or negligible monetary impact for changes to the deployment of judges. There is the possibility that some Recorders might need to be given additional training before sitting on the Upper Tribunal. The Government estimated that this training would attract a negligible cost, however: on the basis of 10 Recorders receiving this training per annum, the annual cost would be £6,575.9

There are expected monetary savings that would result from delegating more functions exercised by judges to authorised court staff. The Government quantifies this at £13.7 million per year. It expects salaries of authorised court staff to account for an additional £7.9 million per year of expenditure, producing an annualised “net benefit” of £5.8 million.10 This represents less than 0.4% of the annual expenditure of HMCTS.11

8 Ministry of Justice, Impact Assessment: Overarching Impact Assessment, 22 May

2018, p.1 9 Ministry of Justice, Impact Assessment: Courts and Tribunals (Judiciary and Functions

of Staff) Bill – Judiciary Measures, 22 May 2018, pp. 9-10 10 Ministry of Justice, Impact Assessment: Authorised Court and Tribunal Staff: Legal

Advice and Judicial Functions, 22 May 2018, pp. 12-13 11 HM Courts and Tribunals Service, Annual Report and Accounts 2016-17, July 2017,

p. 10

8 Courts and Tribunals (Judiciary and Functions of Staff) [HL] Bill (2018-19)

2. Background

Summary

The Courts and Tribunals (etc.) Bill is an attempt partially to implement a much broader range of proposals about which the Government had proposed to legislate in the previous Parliament. The Prisons and Courts Bill 2016-17 did not complete its Commons Committee stages because of the early General Election in 2017. The Government has since sought to implement parts of that programme of reform across several different Bills. Two judge-led reviews were conducted into the courts system between 2015 and 2016, the findings of which underpinned the Government’s proposals for reform. Lord Justice Briggs published two reports into Civil Courts Structure, while Sir Brian Leveson reviewed the Efficiency of Criminal Proceedings.12 The Government then published a joint report with the Lord Chief Justice and Senior President of Tribunals, Transforming our Justice System, which set out its key objectives for court and tribunal reform.13 Among those proposals were those now included in this Bill. Most of the changes in this Bill appear at first glance to be of a technical nature. However, the full implications of those changes are best understood in the context of wider pressures on the justice system in England and Wales and further legislation the Government says it will introduce later in this Parliament. Fiscal pressures, estates reform, the use of technology and judicial diversity are all likely to affect, and be affected by, changes brought about should this Bill be passed.

2.1 Revived proposals from the Prisons and Courts Bill 2016-17

The Government attempted to pass a major justice Bill (the Prisons and Courts Bill 2016-17 or PCB) in the previous Parliamentary session. The PCB did not complete its Committee Stage in the Commons because Parliament was dissolved for the 2017 General Election.

The Government has decided, in this Parliament, to implement some of the proposals contained in the PCB across several separate pieces of legislation rather than a single ‘omnibus’ justice Bill. Lord Keen of Elie, on introducing this Bill in the Lords, indicated that proposals concerning the use of technology in court procedures (which formed Part 2 of the PCB) will be legislated for at a later date “as soon as Parliamentary time allows”.14 Moreover, the proposals in Part 5 of the PCB (relating to personal injury law and whiplash claims) are in the process of being legislated for in the Civil Liability Bill [HL] 2017-19.

The current Courts (etc.) Bill is best understood as a partial implementation of Parts 3 and 4 of the PCB. There are a small number of additional changes, but this Bill essentially revives clauses 57 and 58 (on judicial deployment) and clause 50 and Schedule 11 (on staff functions) of the PCB.

This Bill does not include provisions about:

• abolishing local justice areas;

• broader issues connected with the composition of tribunals, and

12 Lord Justice Briggs, Civil Courts Structure Review: Interim Report, December 2015

and Civil Courts Structure Review: Final Report, July 2016; Sir Brian Leveson, Review of Efficiency in Criminal Proceedings, January 2015

13 Ministry of Justice and HM Courts and Tribunals Service, Transforming Our Justice System, September 2016

14 HL Deb 20 June 2018 Vol 791 c2030

9 Commons Library Briefing, 16 November 2018

• tenure of judicial leadership positions

all of which were included in Parts 3 and 4 of the original PCB.

2.2 Reviews into the Civil and Criminal Courts (2015-16)

These proposals are a culmination of two major judge-led reviews into the courts system in England and Wales. Lord Justice Briggs published two reports, in December 2015 and July 2016, as part of a review into Civil Court Structure, and Sir Brian Leveson published a report in January 2015 addressing the Efficiency of Criminal Proceedings. These reports highlighted several challenges faced by HMCTS and made a range of recommendations, some of which have led to the specific proposals contained in this Bill.

The major focus of those reviews, however, concerned court processes, structures and the use of technology as a means of becoming more efficient and accessible. With the exception of the related issue of the functions of court staff, none of these matters are contained in this Bill.

The Briggs Review did highlight potential options for reform in relation to the deployment of judges, but did not address the specific statutory changes the Government is now seeking to introduce.

It did, however, address directly the options available for delegating more court work from judges to staff. Lord Justice Briggs encouraged delegation as a means of reducing District Judges’ box work. However, he cautioned that a clear distinction must be drawn between “particular functions currently carried out by judges” which are “not inherently judicial” and “inherently judicial functions”. The latter, he insisted, should not be delegated.15

2.3 Transforming our Justice System (2016) In September 2016 the (then) Lord Chancellor, (then) Lord Chief Justice and (current) Senior President of Tribunals issued a joint statement of policy intent: Transforming our Justice System. As with the Briggs and Leveson reviews, its core focus was on the efficiency of court procedures and the use of technology. The Government’s proposals were brought forward, it said to “make sure that our justice system continues to lead the world”. The package of reforms it was bringing forward, it added:

will achieve that by combining our respected traditions with the enabling power of technology. The vision is to modernise and upgrade our justice system so that it works even better for everyone, from judges and legal professionals, to witnesses, litigants and the vulnerable victims of crime.16

15 Lord Justice Briggs, Civil Courts Structure Review: Interim Report, December 2015,

para 7.3 16 Ministry of Justice and HM Courts and Tribunals Service, Transforming Our Justice

System, September 2016, p. 3

10 Courts and Tribunals (Judiciary and Functions of Staff) [HL] Bill (2018-19)

Relatively little detail was set out in that document, however, about what has become the subject matter of this Bill. The statement did allude to the fact that:

[The Government was] also looking at how [it could] enable more flexible deployment of the judiciary across the different jurisdictions of the courts and tribunals.17

But it did not explain the options being considered. Similarly, it referred to proposals to give court staff more responsibility for “case management” functions, but did not set this out in any detail:

[The Government] will also use specially trained case officers to handle basic case management and case progression, to allow our judiciary to focus their time and expertise where it is really needed.18

2.4 Fiscal constraints on HMCTS These reforms originally came forward in the context of wider challenges in the justice system. One of the most notable of these is financial constraints and a need to find ways to meet demand with fewer resources. As an “unprotected” Government department, the Ministry of Justice is projected to have faced a 35% real terms decrease in managed expenditure from 2012-13 to 2019-20, compared with a rise in total cross-departmental managed expenditure of 8.5% over the same period.19 The Government has undertaken an “Estates Reform Project” involving the closure of a significant number of HMCTS buildings including courts.20

The Public Accounts Committee’s report into Transforming courts and tribunals was published on 16 July 2018. That Committee was critical of the Ministry of Justice’s reforms and the impact of reforms on core services given budgetary constraints:

We remain concerned that the Ministry of Justice is taking on significant amount of change, without a clear sense of its priorities, at a time when it is facing severe financial and demand pressures.21

2.5 Broader challenges There is also already understood to be a substantial and growing backlog of cases, particularly in the Court of Appeal, identified in the Briggs review to be more than 46,000 hours and runs at an annual deficit of more than 9,000 hours.22 The Government therefore saw as urgent the need to find ways of better meeting demand for court and

17 Ibid. p. 7 18 Ibid. p. 6 19 HM Treasury, Public Expenditure Statistical Analyses 2017, table 1.13, July 2017;

Ministry of Justice, Annual Report and Accounts 2016-17, July 2017 20 See Commons Library Briefing Paper, Court and tribunal closures, 16/07346, 21

March 2016 21 Public Accounts Committee, Transforming courts and tribunals, HC 976, 16 July

2018, para 6 22 Lord Briggs, Civil Courts Structure Review: Final Report, July 2016, 2.9 and Annex 4

11 Commons Library Briefing, 16 November 2018

judicial resources, including finding less expensive and time-consuming ways of settling disputes.

The Judicial Appointments Commission is also recruiting proactively to try to reduce pressures on the courts. It is currently undertaking its “biggest ever exercise” in recruitment of part-time, fee-paid deputy district judges. More than 300 such vacancies are expected to be filled by February 2019.23 A Recorder recruitment exercise has been launched to recruit 150 part-time judges. Following the Supreme Court’s ruling on employment tribunal fees in July 2017, there has also been a “surge in claims”.24 This has created an urgency to fill 54 judicial vacancies in the employment tribunals.

In evidence to the House of Lords Constitution Committee in April 2018, Lord Burnett, the Lord Chief Justice, expressed concerns about the lack of recruitment, and the consequential dependency that has built-up on retired judges in the Court of Appeal:

It is also possible for retired judges to sit as fee-paid judges in retirement. To be perfectly frank, we would struggle to dispose of the business in the Court of Appeal and the High Court at the moment if our retired colleagues were not willing to come back from time to time to do the work.25

He re-iterated these concerns in a keynote speech to judges in early July 2018:

It is well-known that there has been difficulty in attracting applicants with the right skills to fill a variety of vacancies in recent years. But let me dwell for a moment on the High Court. There is a statutory complement of 108 High Court judges. Historically there was no difficulty in filling that complement. That is no longer so. For the fourth year in a row the Judicial Appointments Commission, despite its best and impressive endeavours, has been unable to recommend for appointment the number of judges needed to maintain the statutory complement. We currently operate the High Court with only 93 judges, so 15 down. The recent High Court competition, the product of which will take up appointment from the Autumn, is expected to yield a small number of candidates of the highest quality – and I might add a socially diverse group with as many women as men, and including solicitors and serving judges as well as practising barristers. But we needed many more to make good the shortfall of recent years. That shortfall followed and largely resulted from the steady erosion of judicial terms and conditions. We face a real prospect next year of having to operate with about 80% of the complement.26

23 Grania Langdon-Down, Missing Opportunities, Law Society Gazette, 18 June 2018 24 R (UNISON) v Lord Chancellor [2017] UKSC 51 25 House of Lords Constitution Committee, Oral Evidence: Lord Burnett of Maldon,

Lord Chief Justice, 25 April 2018, Q5 26 Rt. Hon. Lord Burnett of Maldon, Keynote speech: Dinner for Her Majesty’s Judges

2018, 4 July 2018, para 13

12 Courts and Tribunals (Judiciary and Functions of Staff) [HL] Bill (2018-19)

3. Judicial deployment provisions

Summary

Clause 1 of the Bill is concerned with relaxing restrictions on the deployment of existing judges to other parts of the courts and tribunals system. In particular it:

• removes restrictions that currently prevent temporary Deputy High Court judges from sitting (on an urgent need basis) in the County Courts, family courts and two-tier tribunals;

• allows Recorders and certain employment judges to sit in both tiers of the two-tier tribunals;

• allows certain senior employment judges to sit on the Employment Appeals Tribunal;

• allows tribunal judges to preside over more than one chamber without limit; and

• broadens the range of senior judges that can be appointed as judge-arbitrators. These changes seek to maximise the availability of judges to dispose of cases throughout HMCTS, thereby reducing the existing backlog and preventing future demand from growing too quickly. Ultimately, it would be a matter for the Lord Chief Justice and the Senior President of Tribunals to decide how extensively to use the additional flexibility for which these changes would allow.

3.1 Government’s reasons for changes The Lord Chief Justice of England and Wales and the Senior President of Tribunals both have broad powers to deploy judges to courts and tribunals throughout England and Wales. However, the UK Government believes that there needs to be greater flexibility than is presently allowed by legislation.

Eligibility to sit as a judge or serve other judicial roles in any given court or tribunal is determined by primary legislation. The relevant Acts include the:

• Constitutional Reform Act 2005 (CRA);

• Tribunals, Courts and Enforcement Act 2007 (TCEA);

• Employment Tribunals Act 1996 (ETA); and

• Arbitration Act 1996 (AA).

The Government has identified several restrictions in these Acts, which make it more onerous to deploy judges of sufficient experience and authorisation to sit on courts or tribunals where there is an urgent demand.

At Lords Second reading, Lord Keen of Elie identified three main areas of further flexibility the Government feels is needed within HMCTS:

• to allow existing judges to sit on a broader range of courts and tribunals to meet surges in demand;

• to allow a broader range of judges to serve as arbitrators (especially in the Chancery Division); and

• to allow existing tribunal chairs to preside over multiple Chambers, thereby reducing the urgency to recruit a replacement in the event of a vacancy.27

27 HL Deb 20 June 2018 Vol 791 cc2029-30

13 Commons Library Briefing, 16 November 2018

Courts and Tribunals of England and Wales – Hierarchy and judges

N.B. Arrows indicate routes of appeal. Other tribunals outside of the unified two-tier structure have routes of appeal set out in their supporting legislation. Adapted from Judicial Office, Judicial System of England and Wales: A visitors’ guide, p. 5

14 Courts and Tribunals (Judiciary and Functions of Staff) [HL] Bill (2018-19)

3.2 Bill as introduced Pursuant to the Governments stated objectives, the Bill proposes to make several changes to the laws that currently restrict the deployment of judges in certain contexts.

Deployment of temporary Deputy High Court judges At the moment, the Lord Chief Justice can appoint Deputy High Court Judges without needing to go through the usual, lengthier, appointments process undertaken by the Judicial Appointments Commission. Under section 94AA Constitutional Reform Act, such an appointment can be made after consulting the Lord Chancellor where:

(a) there is an urgent need to take steps in order to facilitate the disposal of particular business in the High Court or Crown Court,

(b) it is expedient as a temporary measure to make the appointment in order to facilitate the disposal of the business, and

(c) there are no other reasonable steps that it is practicable to take within the time available in order to facilitate the disposal of the business.

The UK Government’s Impact Assessment and Factsheet on proposed judicial deployment changes both give the example of unexpected sickness absence as a justification for this existing fast-track power.28 It is designed to mitigate the risk of cases being disrupted or re-listed, and allows for backlogs to be cleared more easily.

Deputy High Court judges appointed otherwise than by the fast-track process can also sit on other courts and tribunals, not just the High Court and Crown Court. In practice, this extends to the County Courts, the family courts and the Upper and First-tier tribunals. Clause 1(1) of this Bill would allow judges appointed on the fast-track process to be deployed to the same range of courts as those individuals permanently appointed as a Deputy High Court judge.

Tribunal deployment Allowing Recorders to sit in the Upper Tribunal

Recordership is regarded as the first step on the judicial ladder towards becoming a Circuit judge. Recorders are typically expected to sit at least 30 days a year in either or both of the Crown and County Courts. At the moment, Recorders can also sit in the First-tier tribunal.29

Unlike High Court judges, District judges and Circuit judges, Recorders currently cannot sit on the Upper Tribunal. This is the appellate body for a wide range of First-tier tribunals. Its responsibilities include the judicial review of immigration and asylum decisions, a particularly high-demand area for resource and expertise.

The Government is dissatisfied with the fact that:

28 Ministry of Justice, Impact Assessment: Judicial, 22 May 2018, pp. 3, 5 and 8 and

Ministry of Justice, Factsheet: Judiciary Measures, 24 May 2018, para 4 29 s. 6A Tribunals, Courts and Enforcement Act 2007

15 Commons Library Briefing, 16 November 2018

there are currently judges who have the right experience and authorisation to deal with judicial review cases in the Immigration & Asylum Chamber, but cannot be deployed there because they are Recorders.30

Clause 1(2) of the Bill would amend section 6 of the Tribunals Courts and Enforcement Act to allow Recorders to sit on the Upper Tribunal.

Allowing employment judges to sit on the Upper and First-tier tribunals

Clause 1(2) would also allow the holders of four other types of office to sit on the Upper and First-tier tribunals, namely:

• the President of Employment Tribunals in England and Wales;

• the President and Vice President of Employment Tribunals in Scotland; and

• Regional Employment Judges.31

The Government argues the existing law prevents the full use of available judicial resources. This is because the Employment Tribunals across the UK are not integrated into the unified two-tier Tribunal Service and therefore employment judges are appointed separately. Allowing employment judges to sit on the Upper and First-tier tribunals would mean they could be deployed more flexibly in the wider tribunals system, rather than be siloed into the Employment Tribunals system.

The Ministry of Justice Impact Assessment also suggested that this change would allow for greater delegation of functions by the Senior President of Tribunals to the employment tribunals’ senior leadership.32 The delegation of those functions would be expanded by clause 3 and Schedule 1 of the Bill, on which see Section 5 of this briefing.

Allowing judges to preside over more than one Tribunal Chamber

At the moment, a judge cannot hold multiple concurrent Presidencies of Chambers in the same Tribunal, but may hold concurrently the Presidency of one Chamber of the First-tier Tribunal and one of the Upper Tribunal. The Prisons and Courts Bill did not propose to change this.

The Government has since indicated it believes this restriction is inflexible and should be removed. Clause 1(4) would allow any one person to preside over multiple chambers of either or both the First-tier and Upper Tribunals.

The Ministry of Justice argues this change would allow greater flexibility for the Senior President of Tribunals to maintain the “appropriate level of leadership” in the Upper Tribunal. It also believes that the role of chamber President could be more attractive to prospective applicants on a vacancy if there was a prospect of holding multiple presidencies

30 Ministry of Justice, Factsheet: Judiciary Measures, 24 May 2018, para 2 31 The changes that would be brought about by clause 1(2) were not included in the

original PCB. 32 Ministry of Justice, Impact Assessment: Judicial, 22 May 2018, p. 6

16 Courts and Tribunals (Judiciary and Functions of Staff) [HL] Bill (2018-19)

concurrently. This would “enable [potential applicants] to demonstrate cross-jurisdictional ability”.33

Enabling the Presidents of the Employment Tribunals to sit on the Employment Appeal Tribunal

The Government has described as an “anomaly” the fact that the Presidents of the two Employment Tribunals (for England and Wales and for Scotland) cannot sit on the Employment Appeals Tribunal.34 It believes this unduly restricts the efficient deployment of those senior judges. Section 58 of the Prisons and Courts Bill had proposed to change this.

In identical terms to the PCB, clause 1(5) of this Bill would enable both of those office-holders to sit on the Employment Appeals Tribunal by amending the list of eligible judges for tribunal membership in section 22(2A) of the Employment Tribunals Act 1996.

Appointment of judge-arbitrators The Arbitration Act 1996 provides that judges of the Commercial Court or an official referee can be appointed as “sole arbitrator or as an umpire” as a result of an “arbitration agreement” entered into by the parties to a dispute.35 These forms of arbitration are often contained in contracts between parties as an alternative form of dispute resolution to going through the courts. Judge-arbitrators aim to resolve disputes that would otherwise fall within the jurisdiction of the High Court. They can only be appointed with the Lord Chief Justice’s permission.

Clause 1(6) would make two key changes to this arrangement. Firstly, it would broaden the range of judges eligible to serve as a judge-arbitrator. Any “eligible High Court judge” will now be able to serve as one.36

The second change the clause proposes is concerned with the Lord Chief Justice’s role in approving appointments of judge-arbitrators. This Bill would allow the Lord Chief Justice to delegate his or her own responsibilities under section 93 of the Arbitration Act to any of the following judges:

• Master of the Rolls;

• President of the Queen’s Bench Division;

• President of the Family Division;

• Chancellor of the High Court;

• Senior President of Tribunals;

• President of Welsh Tribunals;

33 Ministry of Justice, Impact Assessment: Judicial, 22 May 2018, pp. 8-9 34 Ministry of Justice, Factsheet: Judiciary Measures, 24 May 2018, para 5 35 s. 93 Arbitration Act 1996; s. 6 of that Act defines an arbitration agreement as: “an

agreement to submit to arbitration present or future disputes (whether they are contractual or not)”.

36 An “eligible High Court judge” is defined as a puisne judge of the High Court or someone acting as a High Court judge by virtue of s. 9(1) of the Senior Courts Act 1981.

17 Commons Library Briefing, 16 November 2018

• Lord Justice of Appeal; or

• a puisne judge of the High Court.37

The Government pointed to the Chancery Division as a place where, in practice, judges would be likely to serve as judge-arbitrators. The Government said this was desirable because the Chancery Division “has seen a growth in demand for arbitration in recent years”.38

3.3 Reaction in the Lords Baroness Chakrabarti, Shadow Attorney General for England and Wales, raised concerns at Lords Second Reading about the wider implications of the changes to deployment of judges. She drew particular attention to the risk that using temporary judges too extensively could undermine judicial independence:

Given the planned savings on judicial salaries, we have to ask whether these provisions are a short cut to make up for a shortfall in the recruitment of permanent judges. Any move towards increasing reliance in the system on temporary judges— who will most likely seek a permanent appointment in the longer term—would be of concern because of independence, which is less likely when someone is a temporary judge. The Government must provide greater evidence of the need for such reliance on temporary judges and explain the proportionality of such measures.39

In response to this criticism, Lord Keen of Elie said the following for the Government:

We consider that there are appropriate safeguards in place with regard to the deployment of temporary judges. We have to remember that there are some highly experienced members of the legal profession who would prefer to maintain their position as temporary judges rather than go forward to a permanent appointment because of the flexibility it provides for them. That is an extremely useful resource and not one that we would wish to imperil.40

Lord Thomas of Cwmgiedd, former Lord Chief Justice, was more encouraged by these changes:

[Flexible deployment] 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.41

37 The definition of “senior judge” is borrowed from section 109(5) of the

Constitutional Reform Act 2005. 38 Ministry of Justice, Factsheet: Judiciary Measures, 24 May 2018, para 3 39 HL Deb 20 June 2018 Vol 791 cc2033-34 40 HL Deb 20 June 2018 Vol 791 c2054 41 HL Deb 20 June 2018 Vol 791 cc2038-39

18 Courts and Tribunals (Judiciary and Functions of Staff) [HL] Bill (2018-19)

The Earl of Listowel also welcomed the proposed changes, saying that they could improve the prospects of deploying better judges to the family courts:

The judges in the family courts have a very complex and difficult task; they need to be hugely empathetic and, to use that term, emotionally intelligent. It is a very specific requirement, so if this Bill allows an opportunity to encourage and find more appropriate judges in those courts, it would be most welcome.42

Lord Marks of Henley-on-Thames cautiously welcomed the deployment changes but warned about the possibility that it could de-emphasise subject expertise within the judiciary:

While there has been considerable cross-ticketing of judges, as it is inelegantly known, whereby judges from one specialism are deployed in a similar field, it is important that flexible deployment develops alongside and in sympathy with the continuing specialisation of judges where it is needed. I never again wish to argue a long and complicated matrimonial finance case, as I did some years ago, in front of a deputy High Court judge who was highly distinguished in his field as tax counsel but had entirely the wrong end of the stick—and, frankly, not a clue—about his task in a matrimonial context.43

3.4 Amendments considered in the Lords Committee Stage Two amendments were moved at Lords Committee Stage to supplement provisions in clause 1. Both were withdrawn in the expectation that the issues would be revisited on Report. No amendments were tabled on Report on clause 1.

Both of the Committee stage amendments would have required Government to publish reports into certain issues within a year of clause 1 coming into force.

Report on judicial training to support deployment Lords Amendment 1 was tabled by Baroness Chakrabarti. It would have required a report on the “availability of judicial training necessary to enable judges to be deployed more flexibly”.

This amendment was resisted by former Law Lords, who maintained this was not something for which the Lord Chancellor should be responsible. Lords Judge (former Lord Chief Justice) and Neuberger (former President of the UK Supreme Court) said this was something that should be addressed in the Annual Report of the Lord Chief Justice (which is in any case laid before Parliament) since judicial training was something for which the judiciary was itself responsible.44 The Government agreed with their assessment.

42 HL Deb 20 June 2018 Vol 791 c2044 43 HL Deb 20 June 2018 Vol 791 c2048 44 HL Deb 10 July 2018 Vol 792 cc869-70

19 Commons Library Briefing, 16 November 2018

Report on judicial diversity Lord Marks of Henley-on-Thames tabled Lords Amendment 2. It would have required the Government to report on the impact of its flexibility changes on judicial diversity after a year.

Baroness Vere of Norbiton responded for the Government, indicating that the changes to judicial deployment were expected to be relatively minor (and to supplement existing flexibility). The implication was that this would not have a direct bearing on judicial appointments, on which the Government had other initiatives to bring forward the policy objective.45

3.5 Comment Briggs Report conclusions about judicial deployment The proposals for flexible deployment of judges were not referred to directly in the Briggs Reports into Civil Court Structure. That report did identify underlying problems that might have motivated these changes, including a substantial and growing backlog of cases and a lack of resource to recruit permanent judges of sufficient expertise in certain regions outside of London.46 However, it did not specifically identify statutory restrictions on deployment as being part of the problem.

Lord Justice Briggs’ Final Report did identify several structural and cultural contributors towards backlogs and to judges being deployed sub-optimally. Firstly, it noted, in the High Court, the allocation of cases between divisions may be a contributory factor. He suggested “list sharing” between divisions may help in urgent cases.47

Secondly, his report pointed to a geographical problem in terms of where cases are heard and where judicial expertise is concentrated. Lord Justice Briggs identified a tendency for cases to be litigated in London: there was a need for regions to develop “regional centres of civil specialist excellence”.48

Other Reactions The Law Society of England and Wales welcomed moves to increase flexible deployment of judges, but, when the PCB was originally introduced, sought clarification on training and standards:

We would welcome more information about what additional training officeholders would be required to undertake before sitting outside of their primary jurisdiction to ensure quality and consistency of judgments.49

45 HL Deb 10 July 2018 Vol 792 c875 46 Lord Justice Briggs, Civil Courts Structure Review: Final Report, July 2016, paras 5.19

and 8.54 47 Lord Justice Briggs, Civil Courts Structure Review: Final Report, July 2016, paras

8.30-8.38 48 Lord Justice Briggs, Civil Courts Structure Review: Final Report, July 2016, paras

8.45-8.73 49 Written evidence by the Law Society of England and Wales to the Prisons and Courts

Public Bill Committee, 24 March 2017, para 35

20 Courts and Tribunals (Judiciary and Functions of Staff) [HL] Bill (2018-19)

4. Judicial titles provisions Clause 2 of the Bill makes minor changes to judicial titles. It changes the name of the “Chief Bankruptcy Registrar” to the “Chief Insolvency and Companies Court Judge”.

The internal organisation of the High Court was recently reformed. Part of that re-organisation involved the restyling of the Companies Court as the Insolvency and Companies Court. The Lord Chancellor can already restyle the titles of other judges in that court (the Registrars in Bankruptcy) by statutory instrument and did so in the Alteration of Judicial Titles (Registrar in Bankruptcy of the High Court) Order 2018.

Senior judicial titles, however, typically require primary legislation to change their names, and the Chief Bankruptcy Registrar was one such example. This explains why this provision is contained in this Bill.

To avoid having to resort to primary legislation in the event that there are further re-organisations of that nature, clause 2 also extends the list of judicial titles that the Lord Chancellor can alter by statutory instrument. This is achieved by adding five titles to the list in section 64(2) of the Courts Act 2003. Those titles added are:

• Chief Chancery Master;

• Chief Insolvency and Companies Court Judge;

• Chief Taxing Master;

• Senior District Judge of the Family Division; and

• Senior Master of the Queen’s Bench Division.

21 Commons Library Briefing, 16 November 2018

5. Functions of court staff provisions

Summary

Clause 3 and the Schedule of the Bill propose to provide a unified statutory basis for the delegation of court functions, ordinarily exercised by judges, to “authorised” courts and tribunals staff. At the moment, functions are delegated under several different schemes. The particulars vary between civil, criminal, family and other jurisdictions. The Crown Court has the most restrictive of arrangements: its court staff may only carry out “formal and administrative matters”. By contrast, the magistrates’ and family courts already have an established system of delegation in place, which delegates functions to justices’ clerks and their assistants. The new scheme envisaged by the Bill would abolish the existing schemes. Instead, Procedure Rule Committees of the respective jurisdictions within HMCTS would be given broad responsibility for deciding:

• who should be an “authorised” court or tribunal staff member;

• what functions (currently carried out by judges) should be able to be carried out by them; and

• to what extent decisions of “authorised” staff are able to be appealed/reviewed/reconsidered by a judge.

The Bill includes several safeguards as to authorised staff. Most notably, although they will be employed by HMCTS, the Lord Chancellor will not be allowed to direct an authorised staff member carrying out the functions of a judge. The Lord Chief Justice will have overarching responsibility for supervising and monitoring delegated activities.

5.1 Existing role of court and tribunal staff Delegation of functions from judges Several existing statutes make general provision for delegation of the functions of courts, tribunals or judges to court or tribunal staff. They allow delegation in the following circumstances:

• justices’ clerks and assistant clerks can be delegated the functions of a single justice of the peace (s.28 Courts Act 2003);

• justices’ clerks and assistant clerks can be delegated functions in the Family Court (s. 31O Matrimonial and Family Proceedings Act 1984);

• Civil Procedure Rules can delegate judicial functions to officers or other court staff for any court covered by those rules (paragraph 2 Schedule Civil Procedure Act 1997); and

• the Senior President of Tribunals can delegate functions in the tribunals system to its staff (s. 8 Tribunals, Courts and Enforcement Act 2007).

Almost all the courts and tribunals in England and Wales are governed by statutory provisions allowing this kind of delegation of functions to staff. The notable exception is the Crown Court. Staff under its jurisdiction are only permitted to carry out “formal and administrative matters”.50

50 s. 82 Senior Courts Act 1981

22 Courts and Tribunals (Judiciary and Functions of Staff) [HL] Bill (2018-19)

The manner and extent of delegation of functions has varied significantly between courts and has also varied between courts and tribunals. Where the Lord Chancellor has had the power to make rules or otherwise to provide for the delegation of functions, this normally requires the agreement of the Lord Chief Justice.51

In other cases, rules are made by judicial actors or other bodies independent of the Government. For example, the Senior President of Tribunals delegates functions of the two-tier tribunals by way of Practice Statements.52

Delegation in (the Civil Division of) the Court of Appeal, the High Court and County Courts is done under rules set by the Civil Procedure Rule Committee. This body operates at arm’s length from government, but the Lord Chancellor can instruct it to bring forward changes to the Civil Procedure Rules if he or she thinks it “expedient”.53

Legal advice given by justices’ clerks In addition to having certain judicial functions delegated to them, justices’ clerks are responsible for providing legal advice in certain instances to lay judges (justices of the peace) in magistrates’ and family courts. This power to advise is two-pronged: they can advise where asked and unprompted. Currently, section 31O(2) Matrimonial and Family Proceedings Act 1984, for example, states:

The functions of a justices' clerk include—

(a) giving advice to lay judges of the family court about matters of law (including procedure and practice) on questions arising in connection with the discharge by them of functions conferred on them or the court, including questions arising when the clerk is not personally attending on them, and

(b) power, at any time when the clerk thinks that the clerk should do so, to bring to the attention of lay judges of the family court any point of law (including procedure and practice) that is or may be involved in any question so arising…

Justices’ clerks are the most senior lawyers in the current HM Courts and Tribunals Service (HMCTS) structure. The existing system has sought to make available their expertise to lay judges sitting in lower courts. Although justices’ clerks are appointed by the Lord Chancellor, they are accountable first and foremost to the magistrates’ and family courts. They are not, however, subject to the direction of the Lord Chancellor when discharging functions delegated to them.54 The government has described the statutory role of justices’ clerks as:

tied … to the magistrates’ courts and without accountability to the judiciary.55

51 This is the case for both the magistrates’ courts and the family courts. 52 Ministry of Justice, Factsheet: Authorised Court and Tribunal Staff: Legal Advice and

Judicial Functions, 24 May 2018, para 7 53 ss. 2 and 3A Civil Procedure Act 1997 54 s. 29 Courts Act 2003 55 Ministry of Justice, Impact Assessment: Authorised Court and Tribunal Staff: Legal

Advice and Judicial Functions, 22 May 2018, p. 5

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5.2 Government’s reasons for changes The Government wishes both to make more coherent and accountable, and to make more extensive use of, delegation of functions to court staff across the entire courts and tribunals service. As Lord Keen of Elie explained in the Lords Second Reading debate:

[The Bill] will allow suitably qualified and experienced staff to be authorised to handle uncontroversial, straightforward matters under judicial supervision. This will free up judges’ time to focus on more complex matters and will improve the efficiency and effectiveness of the courts and tribunal system.56

The primary justification given by the Government for making these changes, then, is to reduce the workload on judges. Its view is that too much judicial time is being taken-up by routine and cumbersome case management responsibilities. It believes that court and tribunal staff of sufficient qualification and experience would be able to discharge many of these functions just as effectively while releasing judges to concentrate their time and expertise on other aspects of their role. As its Impact Assessment explained:

The measures in this Bill are intended to facilitate and encourage greater use of authorised staff to exercise judicial functions in the court and tribunals. This will help to progress cases more quickly, and ensure that case management and preparation issues are resolved at an appropriate and proportionate level, freeing up judicial time for more complex and contentious matters.57

The Government considered two possible paths for reform, which are outlined in its Impact Assessment into staff functions. It opted for the more expansive of the two approaches (“Option 2”) because:

Continuing gradual iterative reform of the justice system by individual jurisdiction will not be sufficient to deliver the level of change needed, either in terms of delivering the system-wide improvements needed by users or the reduced costs needed to ensure the system delivers justice in a proportionate and sustainable way.

Option 2… best meets the policy objective of freeing up judges’ time to focus on the most complex and contentious matters before them, and its cross-jurisdictional application allows full realisation of the benefits of enabling authorised staff to exercise judicial functions.58

The less expansive approach (“Option 1”) would have involved minor changes to the role of justices’ clerks and extending the power to delegate to the Crown Court. The more expansive proposal (Option 2) goes beyond those changes, creating a unified structure for “authorised” staff to carry out functions across the whole of HMCTS.

56 HL Deb 20 June 2018, Vol 791 c2029 57 Ministry of Justice, Impact Assessment: Authorised Court and Tribunal Staff: Legal

Advice and Judicial Functions, 22 May 2018, pp. 5-6 58 Ministry of Justice, Impact Assessment: Authorised Court and Tribunal Staff: Legal

Advice and Judicial Functions, 22 May 2018, p. 8

24 Courts and Tribunals (Judiciary and Functions of Staff) [HL] Bill (2018-19)

The Government’s justification for a unified approach to delegating judicial functions, rather than more piecemeal reform, is broadly threefold:

• to maximise the scope for, and to encourage, greater delegation to court and tribunal staff across HMCTS;

• to standardise safeguards of independence from the Lord Chancellor; and

• to enable a cross-jurisdictional leadership structure and consistent judicial oversight to monitor staff exercising delegated responsibilities.

In the Government’s justification for unifying the approach to delegation and safeguards, Lord Keen said at Lords Second Reading:

All this is subject to a robust framework of authorisation that affords the court and tribunal staff who exercise these functions the right protections and safeguards. Most significantly, the Bill makes such staff independent of the Lord Chancellor but accountable to the judiciary. Courts and tribunal staff will be able to exercise judicial functions only once authorised to do so by the Lord Chief Justice or his nominee, or the Senior President of Tribunals or his delegate. The judiciary will grant such authorisation only when satisfied that the relevant staff have the necessary competence and experience to exercise these functions. The Bill also applies to authorised staff the same protections that currently apply to justices’ clerks and assistants to justices’ clerks carrying out judicial functions in the magistrates’ and family courts. This includes protecting them from costs in legal proceedings and indemnification in respect of anything they do, or do not do, when exercising judicial functions in good faith.59

5.3 Bill as introduced Clause 3 and the Schedule to this Bill would consolidate the existing arrangements for delegating judicial functions into a more “unified” legal framework. Its notable features include:

• abolishing the statutory role of justices’ clerks and assistant clerks;60

• creating a new category of “authorised” court and tribunal staff to whom functions will instead be delegated;61

• extending the power to delegate functions to staff in the Crown Court;62

• extending the range of delegable judicial functions in the magistrates’ and family courts beyond those that could be exercised by a single justice;63

• granting jurisdiction procedure rule committees powers to set:

59 HL Deb 20 June 2018 Vol 791 c2029 60 Schedule generally 61 Schedule, paras 14, 26 and 32 and 41 62 Schedule, para 32 inserts new s. 67B Courts Act 2003 63 Ibid.;

25 Commons Library Briefing, 16 November 2018

─ which tasks can be exercised by authorised staff in the jurisdiction(s) within their purview; and

─ what qualifications authorised staff will need.64

• providing for oversight of authorised staff by the Lord Chief Justice and the Senior President of Tribunals;65

• allowing the Lord Chief Justice and Senior President of Tribunals to delegate their own functions with respect to these new arrangements to other judges or court staff;66 and

• safeguarding the independence of authorised HMCTS staff from the Lord Chancellor when carrying out delegated judicial functions.67

Box 1: Jurisdiction Procedure Rule Committees

The Criminal Procedure Rule Committee, Family Procedure Rule Committee and Civil Procedure Rule Committee make rules pertaining to their jurisdiction, independently from one another. Each is comprised of members who are representatives for their respective jurisdictions. Each Committee is independent of government. Each procedure rule committee has a statutory requirement to consult any persons it considers appropriate. Rules must be signed by a majority of the members of the Committee and submitted to the Lord Chancellor to allow or disallow the Rules. If the Lord Chancellor disallows the Rules then he must give written reasons to the Committee for doing so. Where he allows the amendments, the Rules are made by statutory instrument and subject to the negative resolution procedure in Parliament.

Clause 3(5) also gives the Lord Chancellor the power to make, by regulations, consequential, transitional, transitory or saving provision in relation to the Schedule. In practice, this would allow him or her to change secondary legislation, which might be affected by the introduction of this new scheme. The regulation-making power in question would be subject to the negative resolution procedure, meaning that any provision could be annulled by Parliament. However, Parliament’s active “approval” would not be needed for regulations to be made.

5.4 Reaction in the Lords Judicial delegation in the context of wider courts reform The proposals to delegate functions to staff attracted the most comment in the Lords debate on this Bill. The Shadow Attorney General, Baroness Chakrabarti, raised several concerns as to the wider context in which powers were to be delegated:

This seemingly sensible and uncontroversial provision must be understood in the broader context of the wider reform agenda and the austerity measures behind it, because the savings generated through proposed reforms will arise only through the reduction of the court estate and through savings on judicial salaries. Further proposals include the relocation of many case management functions—listing, scheduling and so on—which

64 clause 3(1)(b) 65 Schedule, paras 14, 26, 32 and 41 66 Ibid 67 Ibid.

26 Courts and Tribunals (Judiciary and Functions of Staff) [HL] Bill (2018-19)

currently take place within court buildings with the benefit of on-site judicial supervision.68

She cast doubt on the practical arrangements to provide supervision and accountability in the context of operational changes to the courts system. In particular, the implication was that safeguards of independence from the Lord Chancellor would be more apparent than real:

The implication is that these decisions will move to new off-site service centres—which I think we have all experienced with varying degrees of satisfaction in relation to other services. Given their off-site nature, the implication that these service centres will be supervised by authorised staff, not judges, is worrying. To have authorised staff who are not subject to the training, experience, ethos and oaths that a professional judge is, and who are performing judicial functions but employed directly by HMCTS, raises questions worth considering of accountability and independence. Concerns that they would be subject to administrative pressures, such as meeting targets, are also worth thinking about.69

Appropriate role of procedure rule committees Baroness Chakrabarti also called into question the justification for leaving much of the detail of delegation to procedure rule committees:

Without limits on who can be authorised and what powers can be given to authorised persons, this delegation has the potential, as currently drafted, to change the essential nature of our justice system. Transparent and public scrutiny by parliamentarians with a democratic mandate is necessary. While acknowledging the great work over many years and the existing remit of the procedure rule committee, I really would query whether delegation of judicial functions can be thought of as a simple procedural matter for a rules committee as opposed to something worthy of secondary legislation in both Houses of Parliament.70

One suggestion Baroness Chakrabarti made was to include some constraints on the face of the Bill, rather than to leave them to the discretion of procedure rule committees:

The MoJ’s own factsheet on delegation to staff says that delegated decisions are unlikely to involve contested matters; why should that not appear in the Bill itself? Most case management decisions are vital judicial functions and, therefore, should not necessarily be delegated. Decisions that impact on the fairness of the process itself are, and must remain, the remit of judges and involve carefully weighing submissions by parties. In addition to concerns around transparency, there is a danger that efficiencies gained by delegating case management decisions will be lost if the court has to reconsider many of these decisions at a later stage in the process. There ought, again, to be minimum qualifications for these authorised staff in the Bill.71

68 HL Deb 20 June 2018, Vol 791 c2032 69 Ibid. 70 Ibid. 71 HL Deb 20 June 2018, Vol 791 c2033

27 Commons Library Briefing, 16 November 2018

Ability to review decisions of staff At Lords Second Reading, Lord Marks of Henley-on-Thames raised the issue of the arrangements for challenging decisions made by authorised court staff, and the extent to which judges would retain overall supervision of decisions that the procedure rules allow to be delegated:

I accept that, as proposed by Clause 3, suitably qualified staff should be able to make not only administrative decisions but some of the less significant case management judicial decisions. I agree that it is not a definitive criterion that such a decision should be unopposed. If that is to be the case, however, we need robust safeguards to ensure that decisions that should be taken by judges are indeed taken by judges and not delegated to too low a level. We must also guarantee that staff making judicial decisions are adequately qualified.72

Legal advice to lay judges Lord Marks also sought assurances about the arrangements for court staff to provide legal advice to lay judges in magistrates’ and family courts. He noted that, with the abolition of justices’ clerks, delegated legislation would determine how qualified “authorised” court staff would have to be:

I am also concerned about the prospect of under-qualified court officers giving advice to judges in the family court—they are often lay magistrates, as the noble and learned Lord, Lord Mackay, pointed out—or the magistrates’ courts. I note that the Schedule will provide that qualifications will be determined by regulations to be made by the Lord Chancellor with the agreement of the Lord Chief Justice. It is vital that such regulations establish clearly that those advising magistrates and judges are completely qualified to do so.73

5.5 External reviews and commentary The proposals to give authorised staff or “case officers” more responsibility have been considered for several years now. Reform of these roles has been considered both by the Briggs Review into Civil Courts Structure and stakeholders concerned with the legal profession. The move to relieve the burden of (especially District) judges has been broadly welcomed. However, there are ongoing concerns about the safeguarding of litigants’ interests and ensuring that core judicial functions are not in fact delegated by jurisdiction rule procedure committees.

Briggs Report Giving court and tribunal staff more responsibility for routine functions currently exercised by judges was one of the recommendations made by Lord Briggs in his review into Civil Courts Structure. These changes are ones towards which the judiciary is expected to be sympathetic:

there is simply too much routine box work currently dealt with by [District Judges], which could properly be given to Case Officers.

72 HL Deb 20 June 2018, Vol 791 cc2048-49 73 HL Deb 20 June 2018, Vol 791 c2049

28 Courts and Tribunals (Judiciary and Functions of Staff) [HL] Bill (2018-19)

This is a weakness which it is a main objective of the Reform Programme to correct.74

He also suggested that, if District Judges were relieved of enough routine functions, it would have the knock-on effect of helping relieve pressures elsewhere within the judiciary:

the liberation of DJs from a large proportion of box work which could satisfactorily be carried out by Case Officers could unlock a log-jam which currently inhibits the passing of work downwards for the purpose of freeing up senior judicial capacity to assist in alleviating the excessive burdens on the Court of Appeal.75

However, Lord Briggs was keen to emphasise, especially in his Interim Report, that there should be a distinction between “particular functions currently carried out by judges” which are “not inherently judicial” and “functions assigned to judges and delegated to staff”.76 His Interim Report stressed there would need to be a clear understanding of which functions are appropriate for delegation or assignation, and which functions should never be so delegated or assigned to what are ultimately still civil servants employed by HMCTS rather than members of the judiciary. He gave examples of what he thought unsuitable matters for court staff to handle:

Determining disputes about substantive rights and duties, and approving settlements on behalf of children and other protected parties are in my view inherently judicial functions, and these should continue to be performed only by judges.77

The final Briggs Report attempted to respond to the issue of the boundary between decisions that should be taken by judges and those that can reasonably be delegated. It said, rather than prescribe functions too precisely in procedure rules, that there should be:

a working relationship under which Case Officers could, on a case by case basis, seek the guidance of their supervising judge where less than straightforward decisions, or decisions outside that Case Officer’s experience, had to be made. In some incidences a steer from the judge would be sufficient to enable the Case Officer to make the decision. In other cases the file could simply be passed to the judge for decision. This is in my view likely to be a far better solution than attempts to form complete lists of types of decision suitable, or unsuitable, to be made by Case Officers.78

Legal commentators One of the complicating factors of these proposed reforms is the extent to which the new “authorised staff” scheme relies on decisions being taken by the jurisdiction procedure rule committees. They would be

74 Lord Justice Briggs, Civil Courts Structure Review: Interim Report, December 2015,

para 5.89 75 Lord Justice Briggs, Civil Courts Structure Review: Interim Report, December 2015,

para 5.111 76 Lord Justice Briggs, Civil Courts Structure Review: Interim Report, December 2015,

para 7.3 77 Lord Justice Briggs, Civil Courts Structure Review: Interim Report, December 2015,

paras 7.3 and 7.12-13 78 Lord Justice Briggs, Civil Courts Structure Review: Final Report, July 2016, para 7.6

29 Commons Library Briefing, 16 November 2018

responsible for providing the detail on exactly what functions should be delegated, to whom, and on what terms.

The Civil Procedure Rule Committee already has considerable power to make provision in relation to delegation of functions to staff. Its rules can then be supplemented by Practice Directions from the Lord Chief Justice.79 The Civil Procedure Rules require the approval of the Lord Chancellor and are set out in statutory instruments. Those statutory instruments are subject to annulment by a negative resolution of either House.80

This process provides limited opportunities for Parliamentary scrutiny of Civil Procedure Rules. Post-legislative scrutiny to monitor what is delegated to court staff (and subject to what safeguards or limits) will therefore be particularly important as and when these provisions are commenced.

Reconsideration or rehearing of decisions made by authorised staff

Legal commentator Joshua Rozenberg QC noted of clause 3 of the Bill in June that it was not yet clear the extent to which decisions taken by staff will be able to be challenged or otherwise reconsidered a judge:

We need to be vigilant whenever judicial powers are exercised by those who are not members of the judiciary. But senior judges have insisted that there will always be a right to challenge decisions taken by court staff. I hope the rules will provide a rehearing rather than an appeal.81

Legal profession The Bar Council, in its response to Lord Briggs’ Interim Report, raised concerns about how a reconsideration or rehearing rule would work in practice. In relation to any future proposals for staff exercising functions in relation to a new “online court” (OC) especially, they said:

We do not see how typical users of the OC are going to be able to understand any subtle rule-based distinction between decisions of Case Officers that can be reconsidered and those that cannot. Either all decisions have to be capable of being reconsidered, which we suspect is untenable, or the decision itself has to indicate that it is immutable. The inherent difficulty is that the aim of relieving judges of responsibility is only likely to be achieved by a significant downward shift of decision making but to do so in circumstances where those decisions will then be incapable of challenge would not be acceptable. We are concerned that challenges to Case Officer decisions could end up as an area of satellite litigation, in fact increasing cost and time.82

79 A recent example of which is the 89th update to the Civil Procedure Rules. This

update came into effect by way of a Practice Direction in August 2017. It made provision for delegation of tasks to legal advisors in the County Courts under a pilot scheme.

80 s. 3(2) Civil Procedure Act 1997 81 J. Rozenberg, Sitting in judgement on flexible courts, Law Society Gazette, 4 June

2018 82 Bar Council response to the Civil Courts Structure Review: Interim Report, January

2016, pp. 12-13

30 Courts and Tribunals (Judiciary and Functions of Staff) [HL] Bill (2018-19)

The Law Society, in its written evidence to the Prison and Courts Public Bill Committee (in the previous Parliamentary session) also called for minimum qualifications to be set to restrict the range of court staff to whom functions could be delegated:

We recommend that judicial tasks and required qualifications of 'authorised persons' are defined in the Bill. We also recommend that requirements for authorised persons in terms of qualifications, training, and experiences should be a three year postqualification experienced solicitor, barrister or chartered legal executive for all types of judicial function and this approach should be consistent across all courts and tribunals.83

5.6 Policy Statement on Delegation (July 2018)

On 9 July 2018, the Government published a policy statement on the expected approach to the delegation of functions to courts and tribunals staff.84 It also published a set of draft regulations, which gave an indication as to the qualifications that “authorised” staff would need to possess before they could exercise the legal advice powers currently exercised by justices’ clerks and their assistants.85 These regulations, in order to be made, would have to be approved by both the Lord Chancellor and the Lord Chief Justice.86

In Lords Committee, Lord Keen of Elie explained that the draft regulations:

broadly reflect the legal qualifications currently required by assistant clerks, with the important addition of fellows of the Chartered Institute of Legal Executives or those who have passed the necessary examinations to be a CILEx fellow.87

He referred in detail to these proposals when resisting Lords Amendments 5-7 at Committee stage, on which see Section 5.7 below.

83 Written evidence by the Law Society of England and Wales to the Prisons and Courts

Public Bill Committee, 24 March 2017, para 33 84 Courts and Tribunals (Judiciary and Functions of Staff) Bill Policy Statement, 9 July

2018 85 Draft Authorised Court Staff Qualifications Regulations, 9 July 2018 86 They would be made under powers conferred by paras 14 and 26 of the Schedule to

this Bill. Those paragraphs would insert new provisions into the Matrimonial and Family Proceedings Act 1984 and the Courts Act 2003.

87 HL Deb 10 July 2018 Vol 792 c883

31 Commons Library Briefing, 16 November 2018

5.7 Amendments considered in the Lords

Box 2: Summary of amendments considered to clause 3 and the Schedule during Lords Committee and Report stages

The Lords considered a series of amendments to clause 3 and the Schedule at both Committee and Report Stages, on 10 July 2018 and 16 October 2018 respectively. No amendments were made in Committee, but a series of Government amendments were made at Report stage. The concerns raised by Opposition Peers in Committee and Report Stage amendments covered, broadly, four areas. They concerned whether:

• regulations made by the Lord Chancellor under clause 3 should be subject to the affirmative procedure (rather than the negative);88

• the statute itself should restrict the type of staff to whom functions and legal advice powers can be delegated;89

• the statute itself should restrict the type of function that can be delegated to approved staff;90 and

• there should be a statutory right to have a delegated decision reconsidered by a judge.91 The Government moved a series of amendments on Report concerning the third and fourth of these areas, which were approved by the Lords. These amendments prevent certain types of decision from being able to be delegated by procedure rule committees. They would also require the procedure rule committees to justify any decision not to include a right of reconsideration when proposing to allow for the delegation of a function from judges to staff under their relevant procedure rules. On Report, Peers additionally debated an amendment (also tabled but not moved at Committee stage) to require a statutory review of the impact of delegating functions to court and tribunal staff.92 The amendment in question was withdrawn after assurances given by the Government.

Regulation-making powers of the Lord Chancellor Lords Amendment 3 at Committee Stage, reintroduced as Lords Amendment 1 on Report, was moved on both occasions by Baroness Chakrabarti, the Shadow Attorney General. This amendment would have required any consequential, transitional or saving regulations – made by the Lord Chancellor under clause 3 of the Bill – to be subject to the “affirmative procedure” instead of the “negative procedure”. Both Houses of Parliament would therefore have to approve these regulations, rather than simply have the opportunity to annul them.

The Government argued in Committee that the negative procedure was sufficient, pointing out that clause 3 is not a ‘Henry VIII clause’ so cannot be used to modify primary legislation. Lord Keen indicated that any changes to primary legislation were already on the face of the Bill’s Schedule.93

When revisiting the matter at Lords Report Stage, Baroness Chakrabarti called for the Government to:

set out in some detail…what they are able and not able to do and the fact that they are not able under this power to amend primary legislation.94

88 LA 3 in Committee; LA 1 on Report 89 LA 5-7 in Committee; LA 3,4 and 6 on Report 90 LA 8 and 10 in Committee; LA 5 and 12 on Report 91 LA 9 and 11 in Committee; LA 7, 8, 11 and 13 on Report 92 LA 4 in Committee; LA 2 on Report 93 HL Deb 10 July 2018 Vol 792 c883 94 HL Deb 16 October 2018 Vol 793 c410

32 Courts and Tribunals (Judiciary and Functions of Staff) [HL] Bill (2018-19)

She was critical of the fact that the delegation of judicial functions prescribed in the Bill would come into effect under a negative resolution and therefore without significant further Parliamentary scrutiny.

In response, Lord Keen said “We do not need, or seek, any further power to amend primary legislation in the Bill.”95 He added:

I am happy to give noble Lords an undertaking in Hansard that the power in the Bill will not be used to amend primary legislation. If a future Government attempted to do so, I would expect the Joint Committee on Statutory Instruments to bring this to the attention of Members of both Houses. I am content to give that undertaking without qualification, for the purposes of Hansard.96

In light of that undertaking, Baroness Chakrabarti withdrew the amendment. As a consequence, the Bill (as introduced into the Commons) would subject the Lord Chancellor’s regulation-making power under clause 3 only to the negative procedure rather than the affirmative procedure.

Qualifications of authorised court staff Baroness Chakrabarti tabled three amendments concerning the qualifications of approved court staff, both in Committee and then on Report. On both occasions, the three amendments were either withdrawn or not formally moved, but were debated together.97

Two of these amendments concerned the prerequisite qualifications of court staff eligible to give legal advice to either lay magistrates or family court judges.98 Those functions are currently exercised by justices’ clerks and their assistants. The third of the amendments concerned the qualifications of court or tribunal staff to whom judicial functions could be delegated under any rules made by a procedure rule committee.99

The amendments would have required the “authorised” staff in question to be:

a qualified solicitor, barrister or chartered legal executive with more than three years’ experience postqualification.

The Government resisted this proposal. In Committee Lord Keen maintained this statutory constraint would have been more restrictive than that currently imposed on those providing legal advice in the magistrates’ and family courts:

Some of our legal advisers qualified through a scheme which has not been available since 1999, which did not result in qualification as solicitors, barristers or fellows of the Chartered Institute of Legal Executives. In addition, those who have completed the necessary examinations to become barristers in England and Wales or solicitors may become assistant clerks. The current practice works well and demonstrates that assistant clerks are appropriately qualified and experienced for the role they undertake, and we intend to retain these provisions in the new

95 HL Deb 16 October 2018 Vol 793 c409 96 HL Deb 16 October 2018 Vol 793 c410 97 LA 5-7 in Committee; LA 3,4 and 6 on Report 98 LA 5-6 in Committee; LA 3-4 on Report 99 LA 7 in Committee; LA 6 on Report

33 Commons Library Briefing, 16 November 2018

regulations. However, the approach taken by Amendments 5 and 6 would exclude some of our best and most experienced legal advisers. That, I would suggest, cannot be right.100

In relation to the delegation of functions, he similarly resisted putting a restriction in primary legislation. He pointed to the arrangements that currently exist for delegation within the Upper and First-tier Tribunals, in which some, but not all, relevant court staff have legal qualifications:

The most basic functions, such as issuing standard directions at the commencement of a case, can be carried out in some tribunal jurisdictions by authorised staff with no legal qualifications. Slightly more complex functions, such as applications for postponements of hearings, extensions of time, withdrawals and reinstatements, can be undertaken by caseworkers who have legal qualifications. The most complex of the delegated functions, such as the consideration of late appeals, are generally reserved to registrars who are legally qualified and have legal experience. It is not necessary for all authorised staff exercising judicial functions to possess legal qualifications, as many will be carrying out routine, straightforward tasks. Where powers currently exist, rule committees are already used to determining the qualifications needed for staff to exercise particular functions, and this works well.101

Lord Keen specifically drew attention to the safeguards that already exist for any changes a procedure rule committee might seek to make as regards delegation of functions:

The committees are best placed to assess these requirements for their jurisdictions in light of the functions that they are authorising staff to exercise. As a further safeguard, a member of staff will not be able to exercise judicial functions until they have been authorised to do so by the Lord Chief Justice or his nominee, or by the Senior President of Tribunals or his delegate. Authorisations are therefore ultimately the responsibility of the judiciary, and they will not authorise staff unless satisfied as regards their competence.102

When the matter was returned to on Report, Baroness Chakrabarti re-iterated her concerns:

Authorised staff who are not subject to the training, experience, ethos and oaths of professional judges could be performing judicial functions and employed directly by HMCTS. Even the concept of such delegation, as I said earlier, raises questions of independence. There is legitimate concern that they would inevitably be subject to administrative pressures—for example, meeting targets in a very difficult fiscal climate—and potentially subject to political pressures as well. Without some reasonable limit on who can be authorised, this delegation has, as I said, the potential—perhaps just the potential, but the potential none the less—to change an essential aspect of our judicial system…

I acknowledge that the relevant procedure rules committee will set out procedural requirements about who is empowered to carry out those procedures, but, as we have heard, the committees are made up predominantly of senior judges. This marks a growing trend towards forcing a judiciary that is already

100 HL Deb 10 July 2018 Vol 792 c883 101 HL Deb 10 July 2018 Vol 792 cc883-84 102 HL Deb 10 July 2018 Vol 792 c884

34 Courts and Tribunals (Judiciary and Functions of Staff) [HL] Bill (2018-19)

bearing the brunt of cuts to the MoJ’s budget also to have to mark its own homework. This has implications for the rule of law and for the independence of judicial decision-making. We also argue that such a shift may well fall short of reasonable expectations held by members of the public about the level of experience and independence of those charged with making judicial decisions—not least about their fundamental rights.103

In response, Baroness Vere of Norbitorn said on behalf of the Government:

The level of qualification that staff need should vary according to the work they do. The Bill allows the procedure rule committees to set the requirements as to the qualifications or experience of authorised staff exercising judicial functions. This is the right approach. The committees are best placed to assess the requirements for their jurisdictions in light of the functions that they permit authorised staff to carry out…

Allowing qualifications to be set out in regulations has not resulted in a lowering or lessening of this bar. Amendments 3 and 4 would, however, raise it to a height that is unnecessary and could adversely impact on the diversity of legal experience in our courts.”104

The amendments in this area were all either withdrawn or not formally moved in Lords proceedings. As a result, the Bill as introduced in the Commons does not include a qualifications requirement for “authorised” court or tribunal staff. The Government is instead expected to impose any restrictions of that nature through regulations, in line with its Policy Statement of July 2018 (on which see Section 5.6 above).

Restrictions on type of functions that can be delegated Lords Committee Stage Amendments 8 and 10 were tabled by Baroness Chakrabarti. They would have placed restrictions in primary legislation on the type of functions that can be delegated to authorised staff. Amendment 8 concerned delegation in courts, whereas Amendment 10 concerned delegation in tribunals. There were eleven proposed restrictions on delegation by courts in Amendment 8. It would have prohibited the delegation of powers to:

(a) make an order of the court which is opposed by one or more party,

(b) make any order of the court in a civil claim with a value of more than £25,000,

(c) make any order of the court with a penal notice or power of arrest,

(d) make any order of the court in a matter in which one or more parties lack capacity as defined in section 2(1) of the Mental Capacity Act 2005,

103 HL Deb 16 October 2018 Vol 793 c413 104 HL Deb 16 October 2018 Vol 793 c417

35 Commons Library Briefing, 16 November 2018

(e) make any order of the court in a matter in which one or more witnesses are a vulnerable witness as defined in section 16(1) of the Youth Justice and Criminal Evidence Act 1999,

(f) make any order of the court under section 37 of the Senior Courts Act 1981 for an injunction, including any freezing order,

(g) make any order of the court, referred to as a “search order”, under section 7 of the Civil Procedure Act 1997,

(h) make any order of the court as to costs,

(i) make any order of the court concerning expert evidence,

(j) take a plea from a defendant in criminal proceedings, or

(k) make any other determination which is dispositive of the cause.

Several Opposition and Crossbench Lords resisted the notion that restrictions of this sort should be included in primary legislation. Lord Marks said a general exclusion of “contested” orders (for instance) would prevent the delegation of “unbelievably trivial” decision-making.105 Lord Neuberger further maintained that the Lord Chief Justice’s existing oversight of the procedure rule committees, and the ability of Parliament to annul proposed changes to the procedure rules, provided adequate protection against unduly wide delegation.106 The Government agreed with this assessment.

Seeking to address some of the Opposition’s concerns, this issue was revisited by the Government on Report. Lord Keen moved Amendments 5 and 12. Amendment 5, for instance, proposed to amend the Bill to prohibit the delegation of any function where its exercise would involve:

• authorising the committal of an individual to prison;

• authorising a person’s arrest;107

• making an order for recovery of a domestic dwelling occupied by the person against whom the order is made, their spouse or civil partner, or a dependent child aged under 18;108

• granting an injunction under section 37 of the Senior Courts Act 1981; or

• making an order under section 7 of the Civil Procedure Act 1997 (“search orders” for the preservation of evidence).

Insofar as functions would not be covered by those exclusions, Lord Keen said that it should continue to be a “for the independent rule committees to decide” and not the statute.109

These proposals were welcomed by Lord Marks of Henley-on-Thames and Baroness Chakrabarti. The former had been “extremely concerned” with the power authorised staff could have.110 The latter added that 105 HL Deb 16 October 2018 Vol 793 c886 106 HL Deb 16 October 2018 Vol 793 c887 107 This would not prevent authorised staff from issuing uncontested judicial warrants

to secure the attendance in court of someone accused or convicted of a crime. 108 This would not prevent authorised staff from making such an order if the application

is uncontested. 109 HL Deb 16 October 2018 Vol 793 c419 110 HL Deb 16 October 2018 Vol 793 c419

36 Courts and Tribunals (Judiciary and Functions of Staff) [HL] Bill (2018-19)

“without limits on who can be authorised, and what powers can be delegated” the judicial system could be “profoundly” affected. 111 Both Amendments 5 and 12 were agreed to without division.

This means that the Bill – as introduced in the Commons – includes statutory restrictions on the type of functions that can be delegated to court staff, but those restrictions are not as extensive as those originally called for by the Opposition in the Lords.

Right to judicial reconsideration of decisions taken by authorised court staff Lords Committee Stage Amendments 9 and 11, tabled by Baroness Chakrabarti, were drafted by the Bar Council. They would have imposed, in primary legislation, a procedure by which decisions of an “authorised” member of court staff could be reconsidered by a judge. A written application would have had to have been made within 14 days of the decision being made.

At Lords Committee Stage, Baroness Chakrabarti said that she was sceptical of reassurances that procedure rule committees provide adequate safeguards in this situation because:

the rule committees cannot provide the funding that would avoid pressure to overdelegate to underqualified people in the future.112

She added:

my second concern is that the public have a real and reasonable expectation that significant contested decisions in a court will be made by a judge; or, if not, at least that there would be a right of appeal or review before a judge.

The Government urged against imposing these constraints in primary legislation. In agreement with remarks of Lords Marks and Neuberger, it maintained that the procedure rule committees could and would impose similar safeguards in any rules they produced. If they did not, they re-iterated, Parliament could choose to annul those rules.113

On Report, Baroness Chakrabarti returned to this matter, with Amendments 8 and 11. She re-iterated her doubts as to whether “authorised staff” would satisfy the requirement under Article 6 of the European Convention on Human Rights to an “independent and impartial” arbiter of legal rights.114

Lord Marks challenged the notion that – just because a judicial decision is delegated to an authorised officer – there has necessarily been a contravention of Article 6. Consideration would need to be given on a case-by-case basis, he maintained, as to whether Article 6 was satisfied in the round. A court would look, among other things, to the context: the availability of judicial review or other rights of appeal and the type of decision being delegated.115

111 HL Deb 16 October 2018 Vol 793 c420 112 HL Deb 10 July 2018 Vol 792 c892 113 HL Deb 10 July 2018 Vol 792 cc890-92 114 HL Deb 16 October 2018 Vol 793 c423 115 HL Deb 16 October 2018 Vol 793 c425

37 Commons Library Briefing, 16 November 2018

On Report, the Government attempted to meet the concerns raised by Baroness Chakrabarti. Amendments 7, 9, 10 and 13 combined to provide an additional level of scrutiny within procedural rule committees. As Lord Keen explained:

The purpose of the amendments is to require the committees, when making any rules to allow authorised staff to exercise judicial functions, to consider whether the rules should include a right to judicial reconsideration of decisions made by authorised staff exercising those functions. This means that the rule committees would have to consider whether each judicial function should be subject to a right to reconsideration. Furthermore, the amendments require that, if a rule committee decides against the creation of such a right in the rules that it makes, it will have to inform the Lord Chancellor of its decision and the reasons for it.116

Our amendments would ensure that the jurisdictional rule committees continued to play a full part in determining the most appropriate mechanism for reviewing decisions by authorised persons.117

Despite welcoming those amendments, Baroness Chakrabarti maintained that the compromise did not go far enough:

The Government’s concession, placing an obligation on the relevant rule committee to consider a right to judicial reconsideration for delegated functions, does much less to satisfy our concerns than their concession on delegated functions themselves, such as the safeguard in relation to a person’s liberty in their home. In fact, the Government’s concession here replicates the fundamental problem with the effect of the Bill. Placing the obligation on the rules committee, which ultimately does not have the budget to fund the Courts Service, delegates a legislative duty to an unaccountable body.

…[we] strongly believe that Parliament has a legitimate role in ensuring that the new system of delegation proposed in the Bill includes a backstop protection for the right to a fair trial.118

In resisting Opposition Amendments 8 and 11, Lord Keen said they would “impose a blanket right of reconsideration across all jurisdictions, with arbitrary deadlines. It simply would not work in practice.”119 He said that implementing a mandatory right to apply for the reconsideration of a judicial decision “[would] not only [be] unnecessary but would also be burdensome and ineffective” particularly in light of the courts’ current workload.120 He added:

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.121

116 HL Deb 16 October 2018 Vol 793 c421 117 HL Deb 16 October 2018 Vol 793 c421 118 HL Deb 16 October 2018 Vol 793 c424 119 HL Deb 16 October 2018 Vol 793 c423 120 HL Deb 16 October 2018 Vol 793 c427 121 HL Deb 16 October 2018 Vol 793 c426

38 Courts and Tribunals (Judiciary and Functions of Staff) [HL] Bill (2018-19)

The Government’s proposals in Amendments 7, 9, 10 and 13 were agreed to without a division, Opposition Amendment 8 having been rejected on a division (146 content to 236 not content). Amendment 11, although debated with Amendment 8, was therefore not moved.

This means that the review mechanism preferred by the Government is in the Bill as introduced to the Commons. The Bill does not currently include a general right to a fresh consideration or to a statutory review of a delegated decision taken by a member of “authorised staff”.

Review of delegation On Report, Baroness Chakrabarti moved (but then withdrew) Amendment 2 which called for a review of the impact of the delegation of legal advice and judicial functions to authorised staff.122 She said:

[it must be] ensured that within three years of the coming into force of the Act the Lord Chancellor must arrange for a review of the impact of the implementation of its provisions, including provisions within what would by then be Section 3 and the Schedule. The report would have to be laid before both Houses of Parliament.123

Baroness Vere of Norbiton said, in response, that much of the likely forms of delegation already take place now. The Government simply sought to expand the use of it:

Where we are extending these provisions to a new jurisdiction—namely, the Crown Court—we expect the Criminal Procedure Rules Committee to conduct a review along the lines of those undertaken in other jurisdictions… “amendment [2] is at best an unnecessary duplication of effort and resources”.124

As a result of the assurances that reviews would take place for the areas where “new” delegation was likely, Baroness Chakrabarti withdrew the amendment.

122 Previously tabled as LA 4 in Committee but not (then) moved. 123 HL Deb 16 October 2018 Vol 793 c411 124 HL Deb 16 October 2018 Vol 793 c412

39 Commons Library Briefing, 16 November 2018

6. What’s not in the Bill?

Summary

This Bill has attracted comment as much for what it does not contain as what it does. This is relevant on two levels:

• the fact that it has not sought to implement certain parts of the abandoned Prisons and Courts Bill; and

• that the Bill’s narrow drafting potentially precludes amendments addressing wider issues within the justice system.

Omissions from the Prisons and Courts Bill

Dividing-up of the original PCB presents challenges for Parliament in its scrutiny of justice reform. The powers in the current Bill will have a bearing on the role of court staff in case management for “online courts” as and when they are introduced by further legislation. The original purposes of flexible judicial deployment and delegation to court staff extended beyond relieving pressure on judges and courts’ time. Part of the objective was also to extend opportunities and demand for leadership experience in the judiciary. Some of the PCB’s provisions (not included in this Bill as introduced) more explicitly reflected those objectives. The most notable example of this was the proposal to allow senior judicial appointments to be made on a “fixed-term” basis. It is not known whether (and if so when) the Government intends to revisit those proposals. Narrow drafting of the Bill and its long title

This Bill has been very narrowly drafted. Its long title (unless itself amended) is likely to preclude amendments considering broader justice issues, both those originally in the PCB and beyond. In the Lords, there were calls to find a way to revive provisions prohibiting the cross-examination of domestic abuse survivors. It was acknowledged that the long title may be an obstacle to amendments of that nature. Independent commentator Joshua Rozenberg has observed that amendments concerning legal aid would likely fall outwith the scope of the Bill.

6.1 Notable omissions from Prisons and Courts Bill

This Bill represents an attempt only partially to implement the court and judiciary reforms contained in the previous session’s Prisons and Courts Bill. As introduced, the Bill makes no attempt to implement the broad range of proposals in Part 2 of the PCB. These would have:

• allowed more proceedings (especially criminal and preliminary) to be conducted on the papers, rather than requiring a full hearing;

• expanded the availability of video technology for a broad range of hearings;

• introduced mechanisms for automatic online conviction for certain offences with a standard statutory penalty;

• created a statutory underpinning for online proceedings (i.e. to create so-called “online courts”) for certain classes of legal dispute;

• allowed Crown court cases to be remitted Magistrates courts in certain cases for sentencing; and

40 Courts and Tribunals (Judiciary and Functions of Staff) [HL] Bill (2018-19)

• prohibited cross-examination of (alleged) victims of certain crimes by the charged or guilty party in family court proceedings.125

The Commons Library Briefing Paper on the Prisons and Courts Bill explains these proposals in more detail.126

Two proposals in particular from that original Bill are notable in relation to the current Bill for different reasons. Those concern the introduction of “online courts” and proposals to subject judicial leadership roles to fixed-term, rather than permanent, appointments.

Online courts and other uses of technology The Government has indicated that it will revisit its proposals (originally contained in Part 2 of the PCB) to make greater use of technology in the courts and tribunals service.127 It intends to create more “online” and potentially even “online-only” forms of dispute resolution to reduce the existing burden on physical courts. This would have a particularly notable impact in the civil courts, family courts, and in tribunals.

The Library’s Briefing Paper on the Prisons and Courts Bill explores these provisions at length in its Section 4. In brief, however, the proposal developed from the Briggs Review and the government policy document Transforming our Justice System. The expectation was that significant elements of court procedure would be able to be conducted through an online process. The Social Security and Child Support Tribunal was anticipated to be one of the first:

to be moved entirely online, with an end-to-end digital process that will be faster and easier to use for people that use it.128

The Government has not included these proposals in this legislation as introduced. However, Susan Acland-Hood, the HMCTS Chief Executive, indicated in late May 2018 at a reform roadshow event for the legal profession, that there would be further legislation “to underpin the online court” as soon as parliamentary time allows.129 The Government has also been undertaking pilots to move certain court processes towards fully-online alternatives. A pilot for online divorce applications was announced in January 2018, for instance, which the Government claims has reduced the number of forms returned for errors.130

If these proposals are brought forward separately, changes made by this Bill will take on an added importance. Jurisdiction rule procedure committees, for instance, will be able to decide the extent to which court staff exercise the functions of a future “online court”. There

125 In a speech to the Family Justice Young People’s Board on 24 July 2018, retiring

President of the Family Division of the High Court, Sir James Munby, criticised the omission of these reforms from the Bill.

126 Commons Library Briefing Paper, The Prisons and Courts Bill, 17/7907, 15 March 2017

127 HL Deb 20 June 2018 Vol 791 c2030 128 Ministry of Justice, Transforming our justice system: summary of reforms and

consultation, September 2016, p. 10 129 J. Rozenberg, Sitting in judgement on flexible courts, Law Society Gazette, 4 June

2018 130 HMCTS, HM Courts and Tribunals Service tests fully digital divorce application, 30

January 2018

41 Commons Library Briefing, 16 November 2018

would be limited opportunities for Parliament to scrutinise the setting of those rules, and the impact of delegation could be different for online proceedings than it necessarily would be for more conventional court and tribunal proceedings.

Testing of “robot judges”

The Centre for Justice Innovation published a report called Just technology: emergent technologies and the justice system on 5 July 2018. That report argues that the MoJ should explicitly commit to investing in the trial of online legal advice services and to trial the “shadow” use of Artificial Intelligence in key justice decisions. The objective of the latter in particular would be to find out whether AI can more accurately predict the outcomes of those decisions than human decision-makers. The report also pointed to majority public support for the use of online processes for low-level criminal matters.131

Judicial leadership reform Part of the stated objectives for the PCB had been to free up judges to participate in leadership roles, and to make more such roles available within the judiciary. Delegating judicial functions to staff, it followed, would:

• free up judges to take on leadership responsibilities; and

• create a demand for (and by extension opportunities for) judges to supervise those staff, developing leadership experience.

Two particularly notable proposals were included in the PCB to advance these objectives, but they have not been revived in the current Courts Bill. These changes would have introduced the option of fixed-term appointments for senior judicial leadership roles, and reformed headcount rules for appointments to the Court of Appeal.

Fixed-term judicial leadership roles

Clause 56 and Schedule 15 of the PCB had proposed to amend, among other provisions, sections 10 and 11 of the Senior Courts Act 1981. The changes would have allowed the appointments to Lord Chief Justice and Heads of Division in the High Court to be made on a fixed-term basis rather than as lifetime appointments. This change, the Government maintained, would:

allow leaders of the future to plan ahead and develop skills, knowing that development opportunities will become available.132

Court of Appeal reappointments and headcount reform

Additionally, the changes in the PCB would have allowed senior judges stepping-down from a fixed term leadership role to assume (or in most cases, resume) the role of a regular Court of Appeal judge. Moreover, these post-leadership judges would be disregarded for headcount purposes in determining whether there was a vacancy to be filled in the

131 Michael Cross, Landmark study calls on MoJ to test robots and self-service advice,

Law Society Gazette, 9 July 2018 132 Explanatory Notes, Prisons and Courts Bill (2016-17), 23 February 2017

42 Courts and Tribunals (Judiciary and Functions of Staff) [HL] Bill (2018-19)

Court of Appeal.133 This proposed arrangement was intended to ensure that long-standing judges did not “crowd out” opportunities in the senior judiciary.

Similar arrangements were included in Schedule 15 PCB to allow the Senior President of Tribunals to assume (or resume) a position in the Court of Appeal once a fixed-term appointment ended.

The current Bill is likely to increase the need for leadership activities from those occupying senior judicial roles. In the absence of these provisions from the PCB, however, it may be the case that not as many of those senior roles will become vacant as frequently. Opportunities to develop judicial leadership experience may therefore prove (comparatively) more limited.

6.2 Scope and amendability Long title If a Bill’s provisions are drafted narrowly, and its long title stipulates a narrow range of purposes, it is more difficult to introduce amendments. New clauses are impermissible if they would broaden the scope of the Bill.

The long title of this Bill is a typical example of narrow drafting. It states the Bill is intended to:

Make provision about the judiciary and the functions of the staff of courts and tribunals.

Reactions to scope The legal commentator Joshua Rozenberg QC has suggested that the narrowly drafted long title in this instance was deliberate and because of Government concerns about the possibility of opposition amendments. Narrow drafting, he said, would prevent certain aspects of reform of the justice system being included in the Bill against the Government’s wishes:

Why the legislative drip-feed? It is because a narrowly constrained and obscurely drafted bill is more difficult for the opposition to wreck. Any amendments would have to relate to the judiciary or to staff working for courts and tribunals, making it much harder for MPs or peers to raise contentious issues such as legal aid.134

This view was shared by the Official Opposition. At Second Reading, Baroness Chakrabarti said:

Today of all days, we are conscious of the challenges and complexities of minority government. Clearly, one approach is the very skilful drafting of the scope of this Bill, with its very tight Long Title, perhaps to avoid controversy, amendment and so on.135

133 The number of ordinary judges in the Court of Appeal is limited to 38 by s. 2 Senior

Courts Act 1981. 134 J. Rozenberg, Sitting in judgement on flexible courts, Law Society Gazette, 4 June

2018 135 HL Deb 20 June 2018 Vol 791 c2031

43 Commons Library Briefing, 16 November 2018

At Second Reading, Lord Marks of Henley-on-Thames spoke approvingly of calls to revive proposals that would prohibit domestic violence survivors from being cross-examined by those charged with or convicted of having abused them. He noted, however, that the long title may make it difficult to amend the Bill to include provisions of that nature:

[The long title is] not—sadly, I think—wide enough to comprise the campaign by Women’s Aid to prevent victims of domestic abuse being cross-examined by the perpetrators of that abuse. Having listened to the speech of the noble Baroness, Lady Newlove, many of us would no doubt hope that the Government and the noble and learned Lord might see their way to extending the Long Title to encompass provision in that regard. Noble Lords may wish to explore the process of modernisation with inventive amendments within the Long Title, as it exists, in that context.136

136 HL Deb 20 June 2018, Vol 791 c2049

44 Courts and Tribunals (Judiciary and Functions of Staff) [HL] Bill (2018-19)

7. Judicial diversity statistics The Lord Chief Justice and the Senior President of Tribunals jointly publish judicial diversity statistics (for the courts and tribunals administered by HMCTS) on an annual basis. The most recent set of figures were published on 12 July 2018 and relate to the composition of the judiciary as at 1 April 2018. The key findings from that report are shown in the box below.

Box 3: Key findings from 2018 Judicial Diversity Statistics

Gender diversity

• 29% of court judges and 46% of tribunal judges were female.

• Among court judges, senior roles showed lower representation of female judges than in less senior roles. This was less evident among tribunal judges, with more variation in female representation across tribunal appointments.

• Around half of court judges aged under 50 were female. Females outnumber males among tribunal judges at all age groups under 60.

• Since 2014, female representation has increased by 5 percentage points among court judges, and 3 percentage points among tribunal judges.

BAME representation

• 7% of court and 11% of tribunal judges were BAME; non-legal tribunal members 17%

• BAME representation among court judges aged 40 or over (98% of judges) was only slightly below that of the working age general population in each age band.

• BAME representation among tribunal judges was higher than that of the working age general population at all age bands from 40 and over.

• Non-legal members have considerably higher BAME representation than that of the working age general population at all age groups.

• Since 2014, BAME representation has increased 1 percentage point for court judges and 2 percentage points for tribunal judges.

Appointment of non-barristers

• A third of court judges and two thirds of tribunal judges were from non-barrister backgrounds

• Representation of those with a non-barrister background varied by appointment for both courts and tribunals, with higher proportions of judges in lower courts from a non-barrister background.

• Non-barrister representation has fallen by 3 percentage points since 2014 for court judges, and by 1 percentage point since 2015 for tribunal judges.

• Virtually all declaring their background as non-barristers were formerly solicitors.

Regional variation in diversity

• Considerable regional variation in gender and ethnicity representation

• The percentage of female court judges was highest in the South East (39%), with the lowest female representation in the South West (21%).

• London and the Midlands had the highest representation of BAME court judges (9% and 8% respectively), with the lowest in Wales at 1%.

45 Commons Library Briefing, 16 November 2018

8. Further reading Documents and publications accompanying the Bill Parliamentary

• Courts and Tribunals (Judiciary and Functions of Staff) Bill as introduced in the House of Lords, 23 May 2018

• Lords Explanatory Notes, 23 May 2018

• Delegated Powers Memorandum, 23 May 2018

Ministry of Justice

• European Convention on Human Rights Memorandum, 24 May 2018

• Equalities Statement: Authorised Staff: Legal Advice and Judicial Functions, 24 May 2018

• Equalities Statement: Flexible Deployment of the Judiciary and Judicial Titles Measures, 24 May 2018

• Impact Assessment: Authorised Court and Tribunal Staff: Legal Advice and Judicial Functions, 22 May 2018

• Impact Assessment: Judicial, 22 May 2018

• Impact Assessment: Overarching Impact Assessment, 22 May 2018

• Factsheet: Authorised Court and Tribunal Staff: Legal Advice and Judicial Functions, 24 May 2018

• Factsheet: Judiciary Measures, 24 May 2018

Ministry of Justice and HM Courts and Tribunals Service

• Joint Press Release, New Legislation Will Modernise the Courts, 23 May 2018

Press coverage • The Times (£), Court Officials Take on ‘Routine Tasks’ To Free

Judges’ Time, 24 May 2018

• John Hyde, “We’re not Replacing Judges”, says HMCTS, as Reform Cost-Benefit Published, Law Society Gazette, 25 May 2018

• Joshua Rozenberg, Sitting in Judgment on Flexible Courts, Law Society Gazette, 5 June 2018

• Grania Langdon-Down, Missing Opportunities, Law Society Gazette, 18 June 2018

• Michael Cross, Landmark study calls on MoJ to test robots and self-service advice, Law Society Gazette, 9 July 2018

• Monidipa Fouzder, Four solicitors named among 32 new deputy High Court judges, Law Society Gazette, 10 September 2018

46 Courts and Tribunals (Judiciary and Functions of Staff) [HL] Bill (2018-19)

HM Courts and Tribunals Reform Programme Joint Publications by Ministry of Justice and HM Courts and Tribunals Service

• Joint Letter on Court Reform Programme, 28 March 2014

• Transforming Our Justice System, September 2016

• Transforming Our Justice System: Assisted Digital Strategy, Automatic Online Conviction and Statutory Standard Penalty, and Panel Composition in Tribunals: Government Response, February 2017, Cm 9391

Ministry of Justice

• Transforming our Justice System: Summary of Reforms and Consultation, September 2016, Cm9321

• Modernising Judicial Terms and Conditions: Government Response, 8 February 2017

Independent Reviews

• Lord Justice Briggs, Civil Courts Structure Review: Interim Report, December 2015

• Lord Justice Briggs, Civil Courts Structure Review: Final Report, July 2016

• Sir Brian Leveson, Review of Efficiency in Criminal Proceedings, January 2015

National Audit Office

• Early Progress in Transforming Courts and Tribunals, HC 1001, 9 May 2018

Parliamentary Committees • Public Accounts Committee, Transforming our courts and

tribunals, HC 976, 16 July 2018

Prisons and Courts Bill 2016-17 • Commons Library Briefing Paper, Prisons and Courts Bill: Court

Reform, 15 March 2017

• John Hyde, Prisons and Courts Bill: Reforms Will Create ‘User-Friendly’ Courts, Minister Insists, Law Society Gazette, 20 March 2017

HM Courts and Tribunals System statistics • HM Courts and Tribunals Service, Judicial Diversity Statistics 2018,

12 July 2018

Other resources • Equality and Human Rights Commission, Briefing on Report Stage,

16 October 2018

• Phil Bowen and Blair Gibbs, Centre for Justice Innovation, Just technology: emergent technologies and the justice system, 5 July 2018

BRIEFING PAPER Number 08440 16 November 2018

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