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Schedule 2

Powers to give directions

Amendments made: No. 35, in page 58, line 30, leave out 'Minister' and insert 'Lord Chancellor'.

No. 36, in page 59, line 6, leave out 'Minister' and insert 'Lord Chancellor'.—[Mr. Leslie.]

Mr. Leslie: I beg to move amendment No. 371, in page 59, line 10, at end insert—

'(2A)   Sub-paragraph (1) does not apply to designated directions to the extent that they consist of criteria for determining which judges may be allocated to hear particular categories of case; but the directions may, to that extent, be made or given only after consulting the Lord Chancellor.'.

The First Deputy Chairman: With this we may take Government amendments Nos. 372 to 375.

Mr. Leslie: At present, schedule 2 provides a uniform mechanism for making practice directions across all jurisdictions and in all levels of court. It provides for the Lord Chief Justice to make practice directions with the concurrence of the Lord Chancellor, except, as I explained earlier, where those directions relate to the application and interpretation of the law or judicial decisions.

The exception to that general approach, agreed in the concordat, is where the practice directions relate to deciding the appropriate level of judge to hear particular classes of case. It was agreed that for those directions the Lord Chief Justice would be required only to consult with the Lord Chancellor rather than to seek his concurrence. Amendments Nos. 371 to 375, agreed with the Lord Chief Justice, qualify the existing practice direction-making mechanisms in schedule 2 in relation to that class of practice directions.

In cases where directions set out criteria for allocating judges to hear particular categories of case, the Lord Chancellor will be consulted rather than required to give consent. That is in recognition of the fact that such directions are essentially matters for the judiciary, after taking into account any ministerial views.

Mr. Grieve: I am mindful of what the Minister has said, but on reflection I wonder why it is felt that the Lord Chancellor needs to retain control over the allocation of judges to hear particular categories of case.

I appreciate that the role of the Lord Chancellor will be to continue to ensure the smooth overall administration of the courts process. Also, I am obviously reassured by what the Minister said about the fact that the Lord Chancellor will not have the power to allocate a particular judge to a particular case. That is important, because, given the Government's wish to ensure judicial independence or a move towards the separation of powers—I prefer the expression "judicial independence"—any suggestion that a tame judge is being appointed to deal with a case that might be controversial for the Government must be avoided.

Equally, however, I wonder to what extent it can be seen as part of administration, rather than simply the sensible working procedure of the courts, that the Lord Chancellor should be able to allocate particular categories of cases. Those who will know which judges
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are best suited to dealing with certain categories of cases are going to be the heads of division—or, indeed, the Lord Chief Justice. Why, then, the continuing need for the Lord Chancellor to make the decision, even if it is in consultation with the Lord Chief Justice?

The reality, as I understand, is that the Government are keen to move towards greater flexibility—that is, judges moving around more between different categories of case, if such cases are in their expertise and, I dare say, if those judges have received the proper training from the judicial studies board. In those circumstances, why not leave it to the Lord Chief Justice to make the decisions? Why involve the Lord Chancellor and give him a right of veto? After all, if the system is breaking down the Lord Chief Justice ought to be in a position to do something about it.

I am probing a little. It would be helpful if the Minister would amplify his remarks.

Mr. Leslie: I understand and in some ways agree with the hon. Gentleman that heads of division are often best placed to know about some of these matters, but that is the rationale behind some of our amendments. They move away from the consent requirement to a requirement for consultation. The hon. Gentleman seems to be suggesting that the consultation element itself is not necessary, although I think he must admit that there is a residual public policy interest in knowing the level of a judge who is to hear a particular class of case. We think that we are striking the right balance in moving away from the concurrence requirement, and I feel that in some respects that is in the spirit of the hon. Gentleman's argument.

Mr. Grieve: The Minister and the Government have been moving in what I regard as a very sensible direction. The question is, why have they not gone further?

I hope I have understood the position correctly. In the Crown court there are some judges who, as we barristers used to say, have their licence to kill: although they are Crown court judges, they are entitled to hear murder cases. The same applies to rape and other very serious offences. As I understand it, the Lord Chancellor will retain a determining direction over that category of cases. Why? The person who will actually make the decision is the Lord Chief Justice.

I must make a concession to the Minister, and accept that there is a logistics issue. One of the reasons for identifying judges who can hear particular categories of case is need. If there is a discussion between the Lord Chief Justice and the Lord Chancellor, the Lord Chief Justice may say "We need more judges on the south-eastern circuit who can try murder cases." I believe that there are three or four Crown court judges who are clearly capable of doing that, but in those circumstances why cannot the Lord Chief Justice do it on his own?

There may well be a large number of other categories that can be considered. A Crown court judge may be doing only general civil work, family law work or work on children's law. The list is endless. I also recognise that there is a lock-on effect. If—in, I suppose, a reversal of the process—the Lord Chief Justice were to say that a particular judge should no longer deal with a particular category of case, which does occasionally happen when
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it is felt that a judge does not show enough familiarity with a category, the Lord Chancellor may be required to say that the Judicial Appointments Commission should think of appointing another judge to boost the number.

I realise that a dialogue will be necessary, but I do not quite understand why the buck must stop with the Lord Chancellor. The Minister may be able to provide complete reassurance on that, however.

Mr. Leslie: I understand where the hon. Gentleman is coming from, but the buck would not stop with the Lord Chancellor. As I have said, the amendments move away from concurrence towards consultation, which ultimately gives the power to the Lord Chief Justice. I think that consultation is necessary simply for the smooth running of the courts, which are of course a partnership between the judiciary and the Executive when it comes to administrative, resourcing and staffing requirements. We need to know if the Lord Chief Justice feels that a different level of judge should hear a particular class of case. For information purposes as much as anything else, we feel that a consultative element is needed. I hope that that satisfies the hon. Gentleman.

Mr. Grieve: The Minister's argument was extremely cogent, and I am happy to accept it. I accept, of course, that the amendments move away from concurrence; but I hope that the Minister will forgive me if I say that I am always slightly hesitant when something can be done only after someone else is consulted. Although the amendments allow for the possibility of the Lord Chief Justice consulting the Lord Chancellor and, after the Lord Chancellor has said no, going ahead with his action, I suspect that in reality, considerable influence over the decision-making will remain with the Lord Chancellor. Nevertheless, I understand the Minister's point.

Amendment agreed to.

Amendments made: No. 372, page 59, line 11, after 'If', insert 'sub-paragraph (1) applies but'.

No. 37, page 59, line 11, leave out 'Minister' and insert 'Lord Chancellor'.

No. 38, page 59, line 12, leave out 'Minister' and insert 'Lord Chancellor'.

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