The Courts and Tribunals (Judiciary and Functions of Staff) Bill enters its committee stage in the House of Commons today, with Labour putting forward amendments to ensure greater “oversight and accountability”.
The 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.
Labour’s amendments would give people subject to decisions under delegated powers a statutory right to judicial reconsideration – the current plan is to leave it to the discretion of the various procedural rule committees to decide.
Labour also wants authorised staff using the powers to be solicitors, barristers or chartered legal executives with at least three years’ post-qualification experience.
Further amendments would require statutory instruments delegating powers to authorised staff to be subject to the affirmative procedure in Parliament, and for the impact of the delegation of judicial functions to be reviewed within three years.
Speaking during last week’s second reading of the bill, Labour MP and barrister Yasmin Qureshi said it was “deeply problematic” for the Labour that the bill would move decisions from courts to “new, off-site service centres”, supervised by staff rather than judges.
Ms Qureshi said this would lead to scenarios in which authorised staff “who were not subject to the training, experience, ethos and oaths that a member of the judiciary is, would be performing direct judicial functions” while being employed directly by HMCTS.
“The issue raises obvious questions about accountability and independence. It is also worth noting concerns that the people involved may be subject to administrative pressures that require the meeting of targets.
“Given the ideological cuts agenda driving this reform, it is vital that the bill makes provision for safeguards to protect the standard of decision making by authorised staff, to ensure that the quality of the judicial process and the experience of those who use the court are maintained.”
Ms Qureshi accepted that the senior judiciary have welcomed the bill.
“However, practising lawyers, barristers, solicitors, the Bar Council and the Law Society have said that it is not right, and that the amendments that we will propose should be considered.”
Bob Neill, Conservative chair of the justice select committee, said he hoped the government would look seriously at the right of reconsideration.
He continued: “Some of the matters that it is proposed be delegated are almost entirely procedural in nature.
“We should distinguish between delegating to a court official a procedural matter, such as granting an extension in time, which many of us probably think is not the sort of thing where the fundamental rights of a party are so affected that it requires reconsideration, and something that goes to the issue of the case, such as a summary judgment.
“The way forward is to give the rules committees the ability to reflect those distinctions, rather than to try to spell things out too much in statute.”
Mr Neill said “a form of benchmark”, against which rules and procedures could be tested, may also be “worthy of consideration”, without “falling into the trap that Lord Thomas, Lord Judge and Lord Neuberger counselled against, of overly restricting, over-legislating and tying the hands of the judges”.
Introducing the debate, justice secretary David Gauke said the government had tabled amendments requiring procedural rule committees, when making rules allowing authorised staff to exercise judicial functions, to consider whether they should include a right to judicial reconsideration.
“The measures in the bill strike the right balance between creating a framework for the delegation of judicial functions to authorised staff, with appropriate safeguards, and giving discretion to procedure rule committees and the senior judiciary to make the arrangements work in practice.”