Courts Bill: judges will decide what powers they farm out, says Gauke

The independence of the judiciary will be retained despite some of their functions being delegated to court staff without legal qualifications, the government has promised MPs. 

Speaking yesterday during the second reading of the Courts and Tribunals (Judiciary and Functions of Staff) Bill, justice secretary David Gauke said measures will provide the flexibility and responsiveness needed within the court system.

The legislation was criticised in the house for lacking detail about what tasks would be farmed out, and for not including wider reform of the courts.

Gauke said measures were deliberately not prescriptive, and his instinct was that ‘as much as possible’ should be left for rule committees to decide, with protections in place to ensure politicians did not dictate what changes could be made.

‘Clearly, the delegation of certain judicial powers to court and tribunal staff needs to be done sensitively and sensibly, and with appropriate safeguards,’ said Gauke.

‘Independent, judiciary-led procedure rule committees, which govern the rules within courts and tribunals, will determine which functions court staff may exercise in each jurisdiction and what qualifications and experience they will need. Those rules will then be subject to parliamentary scrutiny.’

The Ministry of Justice has stated that judicial powers will be delegated to ‘appropriately qualified and experienced’ court staff who will be authorised and supervised by judges.

Authorised staff could carry out tasks such as issuing a summons, taking a plea, extending time for applications, or considering applications for variations of directions made in private or public law cases.

Gauke said the government had listened to concerns about the extent of powers being delegated, with amendments tabled to prevent specific judicial functions from being undertaken by staff. Powers denied to non-judicial staff will include authorising a person’s committal to prison; in most cases, authorising a person’s arrest; granting certain injunctions; making orders for repossession of residential property, where the orders are contested; and making search orders.

Gauke said lawyer members of the House of Lords had warned against setting too high a bar on the qualifications of court and tribunal staff exercising judicial functions.

Shadow justice minister Yasmin Qureshi said her party retained concerns about the minimum qualification for authorised staff, and she asked the government to heed the Law Society’s suggestion of requiring three years’ experience post-qualification as a solicitor, barrister or chartered legal executive.

Labour backbencher Thangam Debbonaire added: ‘I am concerned that the bill could be an attempt, in places, to cut corners and weaken safeguards, and I am concerned about delegating powers to possibly underqualified court staff without adequate training.’

Justice minister Lucy Frazer QC said that qualifications for staff giving legal advice have been set out in regulations for almost 40 years. ‘Qualifications ought to depend on the functions involved, and many of the functions that staff currently exercise are straightforward and routine and do not require a legal qualification,’ she added.