The government has introduced restrictions on what judicial tasks can be delegated to court staff under legislation currently going through Parliament.
The House of Lords also voted down a Labour amendment that would have given all parties to a delegated decision the right to have it reconsidered by a judge.
The Courts and Tribunals (Judiciary and Functions of Staff) Bill allows judges both to be employed more flexibly across the jurisdictions and to delegate a range of work to court staff, such as issuing a summons, taking a plea or extending time for service.
Following concerns among peers during earlier debates – with Liberal Democrat justice spokesman Lord Marks of Henley QC chief among the critics – the government put forward amendments during the bill’s recent report stage that meant only judges would be able to exercise powers relating to the deprivation of liberty, repossession of residential property, granting an injunction or an order for preserving evidence, or authorising searches of private premises.
Lord Marks welcomed the amendment, and for Labour, shadow attorney-general Baroness Chakrabarti described it as “the good news in this afternoon’s proceedings”.
On the right to reconsideration, the government proposed that, when making any rules to allow authorised staff to exercise judicial functions, the individual procedure rule committees would have to decide whether to include a right to judicial reconsideration.
If the committee decided against doing so, it would have to inform the Lord Chancellor, who could then overturn this decision. If not, he or she agreed would have to report it to Parliament.
This had the support of Lord Marks and former Lord Chief Justice Lord Thomas, but Baroness Chakrabarti pointed to the Briggs report that led to the bill, in which the now Supreme Court justice said “an unfettered right of reconsideration will be a necessary long-stop”.
She was also concerned that “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”.
Lord Thomas argued that the government’s approach gave discretion “to a body that knows and has a lot of experience, but it contains that degree of explanatory accountability that will make sure that it does not do anything – even if we were to worry that it might – that goes outside a proper and just delegation”.
Baroness Chakrabarti put her amendment to a vote, but it was defeated by 236 to 146.
She had planned also to seek a vote on her amendment that any Courts Service staff to whom powers were delegated should be a qualified solicitor, barrister or chartered legal executive with more than three years’ experience post-qualification.
However, she withdrew it with “a somewhat heavy heart” after Lord Marks said the Liberal Democrats would abstain.
Citing support from the Law Society and Bar Council, Baroness Chakrabarti argued: “This is a very minimal ask of the government in the circumstances. It is a lower qualification threshold than is currently required for pupil supervisors or for solicitors to supervise an office.
“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.”
The government’s position was again that the procedure rules committees would set out who could carry out delegated powers, and that legal qualifications would not necessarily be required for all the different types of judicial functions that “authorised staff” would carry out.
Lord Marks said that, given the government concession to exempt certain work from being delegated, “we are not persuaded that it is necessary for the authorised person exercising the remaining powers – some of which are trivial, some minor and some of more substance – to be a qualified lawyer or one of particular experience.
“We have concluded that we are content to rely on rules of court and delegation by the Senior President of Tribunals to ensure that authorised persons have qualifications that are commensurate with the tasks they are to undertake under their delegated powers.”
Lord Neuberger, the former president of the Supreme Court, agreed with him.
Under the government’s plans, chartered legal executives will still join solicitors and barristers as lawyers eligible to give legal advice and taken on delegated roles; this marks new territory for that branch of the profession.