The Government introduced a Bill into the House of Lords in May 2018 to reform the Courts and Tribunals system in (predominantly) England and Wales. This paper sets out the key provisions and issues raised by the Courts and Tribunals (Judiciary and Functions of Staff) Bill [HL] 2017-19.
Download the full report
The Courts and Tribunals (Judiciary and Functions of Staff) Bill [HL] 2017-19 (Courts Bill) is a Public Bill, introduced by the Government pursuant to a commitment made in the Queen’s Speech. The Bill was introduced in the House of Lords on 23 May 2018 and completed its Lords stages with Third Reading on 13 November 2018. Commons First Reading took place that day, with Second Reading happening on 27 November 2018 and Committee Stage taking place on 4 December 2018. The Bill was largely unamended at Commons Committee stage with one technical, Government amendment to clause 4 passing without division. Commons Report Stage and Third Reading are scheduled for 12 December 2018.
The Bill affects the Courts and Tribunals system insofar as it relates to England and Wales and (to the extent that tribunals are reserved) to the United Kingdom as a whole.
What the Bill does
The Courts Bill as introduced is short, containing only four clauses and a Schedule. It makes three key changes:
- it makes it possible to deploy certain judicial office-holders with more flexibility throughout the courts and tribunals system than is presently allowed (clause 1);
- it renames the “Chief Bankruptcy Registrar” as the “Chief Insolvency and Companies Court Judge” and makes it easier for similar judicial titles to be changed by delegated legislation (clause 2); and
- it overhauls the regulatory underpinning for delegating court functions from judges to certain court staff, and extends the availability of this delegation to the Crown Court (clause 3).
The Government’s Impact Assessments (IAs) on the Bill refer to the Government’s broader assessment that its justice reform programme will save “£200 million per annum” by 2023-24. However, the provisions in this Bill are expected to account for only a modest proportion of those total savings. The IAs identified no monetised savings for the changes to the deployment of judges, but an expected net annual saving of £5.8 million for greater use of newly “authorised” court staff carrying out functions currently undertaken by judges. This represents less than 0.4% of the annual expenditure of HMCTS.
Prison and Courts Bill (2016-17)
Most, but not all, of the provisions in the Courts Bill were considered in the previous Parliamentary session. The Prisons and Courts Bill 2016-17 was much broader in terms of its scope and the scale of reform of the courts it sought to bring about, but it fell before the completion of Commons Committee stage because of the 2017 General Election.
Implications of a narrowly drafted Bill
This Bill is as notable for what it does not include, as for what it does. External commentators have noted that the narrow scope of this Bill likely prevents wider justice issues, such as legal aid, from being considered in any amendments to it. The Government has indicated that there will be further primary legislation brought forward in this Parliament to implement its longstanding proposals to create “online courts” and to digitise (and otherwise streamline) existing court processes.
Some of the provisions contained in the Prisons and Courts Bill have since been included in other proposed legislation. The Civil Liability Bill [HL] 2017-19, for instance, reintroduces the previous Bill’s proposed reform of personal injury law. The Government also carried out a consultation between March and May 2018 on a proposal to introduce legislation on domestic violence, which would likely include the previously proposed changes to cross-examination in family courts.
Reviews into reform of HMCTS
In the previous Parliamentary session, the Government commissioned two independent reports into court reform. Lord Justice Briggs published an Interim (December 2015) and Final (July 2016) report into Civil Court Structure, while Sir Brian Leveson conducted a Review of Efficiency of Criminal Proceedings, reporting in January 2015.
These two reviews provided the basis for a broad range of proposed reforms, culminating in the publication of a joint statement from the then Lord Chancellor and Lord Chief Justice and the current Senior President of Tribunals. “Transforming our Justice System”, published in September 2016, was consulted on between September and November 2016, with the Government publishing its responses in February 2017. At that point the Government indicated it would be proceeding with its reforms. The specific areas consulted on in late 2016 (use of technology and composition of tribunal panels) were included in the Prisons and Courts Bill but are absent from this Bill.
These changes come against a broader set of challenges for the Ministry of Justice and HM Courts and Tribunals Service (HMCTS). As an “unprotected” Government department, the Ministry of Justice is projected to face a 35% real terms decrease in managed expenditure from 2012-13 to 2019-20, compared with a rise in total cross-departmental managed expenditure of 8.6% over the same period.
The Government’s “Estates Reform Project” has involved the closure of a significant number of HMCTS buildings (including courts). This has placed greater pressure to use existing facilities more efficiently and to provide alternatives to them.
There are two particularly and directly relevant pressures on HMCTS connected to the reforms contained in this Bill. Firstly, the courts have accrued a substantial and rising backlog of cases. This is particularly notable in the Court of Appeal, where the Briggs Report identified a backlog of over 46,000 hours and at an annual deficit of more than 9,000 hours.
Secondly, and relatedly, HMCTS has faced recruitment challenges in relation to judicial offices. Many positions, but especially those in the lower courts, are currently vacant and urgently need filled. More than 300 vacancies for district judges are expected to be filled by February 2019 alone in what has been described as the Judicial Appointments Commission’s “biggest ever” recruitment exercise. These combined pressures partly explain why the Government is keen to deploy the existing pool of judges more flexibly and to transfer more of their routine functions to suitably qualified court staff.
 HL Deb 20 June 2018 Vol 791 c2030