I am obliged to the noble Baroness, Lady Chakrabarti, the noble Earl and the noble and learned Lord for their contributions.
There are two strands to this group of amendments, and it is important to differentiate between them at the outset. Amendments 5 and 6 relate to the qualifications for staff providing legal advice; Amendment 7 relates to the qualifications for staff exercising judicial functions. For those staff authorised to provide legal advice to judges at the family court and magistrates, the measures in this Bill replace existing statutory provision for legal advice to be provided by justices’ clerks and assistant clerks. In future, the function of giving legal advice will be exercised by a member of court or tribunal staff authorised by the Lord Chief Justice, or at least a party nominated by him.
Currently, there are different provisions governing the qualifications required of justices’ clerks and assistant clerks. The qualifications required of justices’ clerks are set out in statute. Those for assistant clerks, however, are provided in regulations made by the Lord Chancellor under the powers in Section 27 of the Courts Act 2003. Broadly, an assistant clerk must be a barrister in England and Wales, or a solicitor of the senior courts of England and Wales, or have passed the necessary exams for either of those professions, or have qualified
as a legal adviser under historical rules that were in place prior to 1999. The vast majority of legal advice is currently provided by assistant justices’ clerks.
The position in the Bill is that the qualifications required for staff to be authorised to provide legal advice to justices of the peace and family court judges will also be specified by the Lord Chancellor in regulations, and the regulations must be made with the agreement of the Lord Chief Justice, which provides a further important check on this power. The Government take the view that regulations will provide a flexible and proportionate approach to establishing the right qualifications for those authorised staff providing legal advice to judges of the family court and magistrates. I note the point made by the noble and learned Lord, Lord Neuberger, about avoiding a straitjacket so far as these matters are concerned.
I understand the desire of the noble Baroness to see more detail of how our proposals will work in practice. In order to assist the debate on this matter, yesterday we published a draft of the regulations setting out the qualifications for those authorised staff giving legal advice. These regulations broadly reflect the legal qualifications currently required by assistant clerks, with the important addition of fellows of the Chartered Institute of Legal Executives or those who have passed the necessary examinations to be a CILEx fellow. While the Government do not envisage that the regulation-making power will need to be exercised regularly, it would allow us to reflect any developments in the legal profession as to qualifications required to practise. The addition of CILEx fellows is an example of where this flexibility might well be needed.
I should add that Amendments 5 and 6 would impose a much stricter requirement than the current arrangements. Some of our legal advisers qualified through a scheme which has not been available since 1999, which did not result in qualification as solicitors, barristers or fellows of the Chartered Institute of Legal Executives. In addition, those who have completed the necessary examinations to become barristers in England and Wales or solicitors may become assistant clerks. The current practice works well and demonstrates that assistant clerks are appropriately qualified and experienced for the role they undertake, and we intend to retain these provisions in the new regulations. However, the approach taken by Amendments 5 and 6 would exclude some of our best and most experienced legal advisers. That, I would suggest, cannot be right. I want to be very clear about the Government’s intention. Legal advice will continue to be provided by authorised court and tribunal staff with appropriate legal qualifications as it is now. The draft regulations, which we have published, seek to confirm this.
Turning now to Amendment 7, as I have said, the powers in Clause 3 and the Schedule are not entirely new. For example, in the First-tier Tribunal and Upper Tribunal there is already a power for rules to provide for the exercise of judicial functions by staff. The most basic functions, such as issuing standard directions at the commencement of a case, can be carried out in some tribunal jurisdictions by authorised staff with no legal qualifications. Slightly more complex functions, such as applications for postponements of hearings, extensions of time, withdrawals and reinstatements,
can be undertaken by caseworkers who have legal qualifications. The most complex of the delegated functions, such as the consideration of late appeals, are generally reserved to registrars who are legally qualified and have legal experience. 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. Again I note the observations of the noble and learned Lord, Lord Neuberger, about not placing these matters into an unnecessary straitjacket.
The Bill will allow the relevant procedure rule committees to set requirements relating to the necessary qualifications or experience of such staff. The committees are best placed to assess these requirements for their jurisdictions in light of the functions that they are authorising staff to exercise. As a further safeguard, a member of staff will not be able to exercise judicial functions until they have been authorised to do so by the Lord Chief Justice or his nominee, or by the Senior President of Tribunals or his delegate. Authorisations are therefore ultimately the responsibility of the judiciary, and they will not authorise staff unless satisfied as regards their competence.
As with Amendments 5 and 6, setting the qualifications bar as high as in Amendment 7 would rule out a large proportion of courts staff from exercising judicial functions, even though they might have been doing so for a number of years. Such a loss of expertise would render the provisions in Clause 3 and in the Schedule essentially unworkable. Based on that explanation, I hope that the noble Baroness, Lady Chakrabarti, will feel able not to press her amendment.
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I add only two further points. I note what the noble Earl, Lord Listowel, said about the family drug and alcohol courts. I have written to him on this subject and he is not one to give it up. I understand the importance of these courts and the point that he seeks to make, albeit it does not impact directly on these amendments.
A further question was raised by my noble friend Lady McIntosh, who is no longer in the Chamber, on consultation with justices’ clerks regarding these proposals. The Government consulted on the role of justices’ clerks in 2016, and justices’ clerks responded to that consultation. There is nothing in the reforms touching on justices’ clerks in this context that will directly lead to staff having to travel further for the purposes of their engagement in these matters. With that explanation, and having regard to the fact we have now published the draft regulations, I again invite the noble Baroness, Lady Chakrabarti, not to press her amendments.