My Lords, I will also speak to Amendments 6 and 7. These amendments in aggregate stipulate that authorised persons must have the following minimum legal qualifications: to be,
“a qualified solicitor, barrister or chartered legal executive with more than three years’ experience post-qualification”,
as recommended by the Law Society. Clause 3 delegates judicial functions to authorised staff, which must be understood in the broader context of the wider reform agenda and the austerity measures behind it. The savings generated through the proposed reforms will arise only through the reduction of the court estate, together with savings in judicial salaries. Further proposals include the relocation to new off-site service centres of many case management functions, listings and scheduling, which currently take place within court buildings with the benefit of on-site judicial supervision. 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.
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The prospect of authorised staff performing judicial functions when they are not subject to the training, experience, ethos and oaths of professional judges but are employed directly by HMCTS raises questions of accountability and independence, and concerns that they might be subject to administrative pressures, such as meeting HMCTS targets. Without reasonable limits on who can be authorised, this delegation has the potential to change the essential nature of our judicial system. Transparent and public scrutiny by parliamentarians with a democratic mandate is necessary. Although I acknowledge that the remit of the relevant procedure rule committee is to set out
requirements, procedure is a different matter from this kind of delegation and the issue of setting out qualifications.
Procedure rule committees are of course made up predominantly of senior judges, who are under the pressures and financial constraints that we have addressed throughout our consideration of the Bill, so it is perhaps a little unfair to place them under those pressures and then require them to prescribe the delegation—in effect, marking their own homework. There are implications here for the rule of law and the independence of judicial decision-making, and we argue that such a shift would potentially fall short of the reasonable expectations held by members of the public of the appropriate level of experience and independence of those making judicial decisions about their fundamental rights.
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. Therefore, if there is to be uniformity in practice, we can surely set the bar for qualification at three years’ post-qualification experience, which is not a very high level. One has to ask whether the reluctance on the part of the Government to set minimum post-qualification periods is down to fiscal concerns about staff salaries. I look forward to hearing the Minister’s response to those concerns. I beg to move.