Neuberger urges peers not to impose “straightjacket” on judicial delegation

Neuberger: It would unsatisfactorily reduce the flexibility of these proposals

Lord Neuberger, former president of the Supreme Court, has called on peers to reject restrictions on the ability of judges to delegate work under the Courts and Tribunals Bill.

He was responding to renewed attacks on the bill by Baroness Chakrabarti, the shadow Attorney General, during its committee stage in the House of Lords last week.

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 expressed during the second reading, Baroness Chakrabarti proposed in a set of amendments that authorised staff must be qualified solicitors, barristers or chartered legal executives with more than three years post-qualification experience – as recommended by the Law Society.

She said the delegation of judicial functions “must be understood in the broader context” of court closures and the relocation of work to new offsite service centres.

“The implication has to be that these off-site service centres will be supervised by authorised staff and not by judges.

“Concerns about that eventuality are hardly assuaged by the assurance in the related policy note that authorised staff will remain under the supervision of the judiciary if the judiciary are not on site.”

The baroness said it was “perhaps a little unfair” to ask senior judges on the rule committees, already under various pressures and financial constraints, to prescribe delegation to court staff – “in effect, marking their own homework”.

She went on: “The amendment sets a very low level of qualification for an authorised person and we do not see why the government cannot accept it.

“I note that the minister has pointed out, and will no doubt do so again, that three years’ post-qualification experience, which is what we seek, is a higher bar than that currently required of assistant justices’ clerks.

“However, such staff do not currently perform judicial functions, let alone the range of judicial functions that, under the bill, might be performed in the future.”

However, Lord Neuberger said the amendments put a “potential straitjacket on the ability to appoint the appropriate people to make appropriate decisions”.

He said: “There will be many decisions where people with her requisite experience would be appropriate, but there will be others where less experience would be adequate for the decision-making.

“Given that the rules which will set out the requirements will have to be laid before Parliament, and that many of the decisions outside the rules are made, effectively, by the Lord Chief Justice, while what the noble Baroness said has considerable force in some circumstances, it would unsatisfactorily reduce the flexibility of these proposals.”

Lord Keen, the government’s justice spokesman in the Lords, said: “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.”

In other probing amendments, all of which were withdrawn or not moved, Baroness Chakrabarti called for a report on judicial training from the Lord Chancellor within 12 months of the bill becoming an Act, limits on the type of work which could be delegated and a right to judicial reconsideration of decisions by court staff.

On one amendment, that regulations about delegation of powers to authorised court and tribunal staff should be approved by Parliament under the positive, rather than the negative resolution procedure, Lord Keen promised to give the matter “further thought”.

The bill progressed to its report stage without amendment.

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