The shadow Attorney General has outlined concerns about legislation that will allow judges to delegate ‘box work’ to court staff.
Baroness Chakrabarti said that “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”.
Speaking during the second reading of the Courts and Tribunals (Judiciary and Functions of Staff) Bill in the House of Lords, the former barrister said it should be Parliament – by way of secondary legislation – that approves the limits of delegation, rather than the various rules committees, as proposed by the Ministry of Justice (MoJ).
The bill is a very short piece of legislation that will allow delegation and also the flexible deployment of judges across jurisdictions.
Announcing the bill last month, the MoJ said it expected authorised staff to carry out “some of the more straightforward judicial functions, which includes tasks like issuing a summons, taking a plea, extending time for service of applications, or considering applications for variations of directions made in private or public law cases”.
Baroness Chakrabarti said Labour would push for “a number of safeguards in the bill, the first of which is limits to the delegation of these judicial powers to non-judicial personnel”.
She continued: “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.”
The former Lord Chief Justice, Lord Thomas, welcomed the bill. “It is essential to modernise the court system,” he said. “It is very important that, wherever possible, savings can be made to make sure that every bit of the system is proportionate and affordable.
“The bill reckons to save some £6m. Bearing in mind the huge analysis to which all these figures have been subjected by accountants, consultants and Her Majesty’s Treasury, I suspect that this is a realistic figure. That is not an insubstantial sum in the light of the current expenditure on justice.”
He stressed “the degree of control inherent in the bill by the use of the rule committee”, and cautioned against putting restrictions on delegations in the bill.
“For example, would we impose a restriction such as, ‘If the matter is opposed, it cannot be dealt with through delegation’?
“A simple example shows how careful one has to be. If, for example, someone wants an extension of 14 days and someone else says, ‘No, you can only have seven’, that is an opposed proceeding.
“Do we really want to put restrictions into this bill? Experience has shown that detailed restrictions on procedure are a very real fetter on the administration of justice.”
In his opening remarks, the MoJ’s spokesman in the House of Lords, Lord Keen, argued that the “judicially led” rules committees were “the right bodies to take these decisions, and this will ensure that the powers are properly scrutinised by judges, practitioners and other interested parties”.
He added: “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.”