Considered in Grand Committee
My Lords, these regulations form part of the Government's implementation of the Courts and Tribunals (Judiciary and Functions of Staff) Act 2018. In accordance with the requirements of that Act, the Lord Chief Justice and Senior President of Tribunals have been consulted, and both have indicated approval of the regulations. The regulations have also been discussed and debated in the other place and passed.
The regulations are rather technical, but they have the important purpose of underpinning the protection which the Act gives to authorised court and tribunal officers, so that they can work effectively. That protection takes the form of indemnity against liability for actions carried out in good faith in the performance of judicial functions. These regulations ensure that, where legal proceedings are brought against an authorised officer in respect of any such action, there is a functioning and regulated procedure for costs to be paid to the litigant, without the individual authorised officer being liable to pay them.
I will briefly draw out the main points of the instrument. The Courts and Tribunals (Judiciary and Functions of Staff) Act 2018 provides for staff in the courts and tribunals to be authorised by the Lord Chief Justice or the Senior President of Tribunals, or somebody nominated by them, to exercise judicial functions. The specific functions that these staff may exercise, and any qualifications they must have in order to be authorised to exercise them, will be set out in procedure rules. The Act also grants these officers protections akin to those that are currently in place for justices of the peace, justices’ clerks and legal advisers, to ensure that they have the necessary independence to carry out these functions.
The Act protects the independence of authorised officers by indemnifying them against liability for anything that they do, or omit to do, when carrying out judicial functions in good faith. It also protects such officers from costs arising from any proceedings brought against them in respect of acts or omissions made in the course of exercising judicial functions in good faith. These protections mirror those which are currently afforded to justices of the peace—whose role and protections are unaffected by the Act except in a rather technical way which I will explain in due course—and to justices’ clerks, whose office is abolished by the Act and replaced by the role of authorised officers.
If legal proceedings are brought against an authorised officer in respect of action taken by that officer in the exercise of judicial functions, and those proceedings are successful, costs may still need to be paid to the successful litigant. The 2018 Act provides that the Lord Chancellor, and not an individual authorised officer, would be ordered to make that payment. These regulations outline the procedure to be followed when an order for costs is sought, and the scope of such an order. They specify the circumstances in which a court may order the Lord Chancellor to pay costs in proceedings, when such an order can or cannot be made, and how the amount to be paid will be determined. The regulations maintain the protection that the Act gives to authorised officers from having to pay costs, while at the same time ensuring there is a mechanism by which the legal costs of a successful litigant may be paid.
There are long-established provisions in relation to costs in any court proceedings brought against justices’ clerks and legal advisers, or against justices of the peace, which have been working effectively over the past 18 years.
The 2018 Act abolishes the offices of justices’ clerk and justices’ clerk’s assistant and replaces them with provision for appropriately qualified court or tribunal staff to be authorised to perform certain judicial functions. Because the provisions now cover staff in tribunals, they also extend to staff authorised to exercise judicial functions in reserved tribunals in Northern Ireland and Scotland. The existing regulations, which apply to justices’ clerks, therefore need to be replaced with regulations that instead cover all staff who may be authorised to exercise judicial functions.
The regulations therefore have three parts, with different extent. The first part extends to the whole United Kingdom, but is merely introductory. The second part, which extends to England and Wales only, makes provision covering costs in proceedings in relation to actions of justices of the peace and authorised court staff. The third part, which extends to the whole United Kingdom, makes provision covering costs in proceedings in relation to actions of authorised tribunal staff. The second part of the regulations is to all intents and purposes identical to the provision for justices of the peace and justices’ clerks which it replaces. The third part of the regulations differs slightly, because it has to make different provision for the way that any costs paid by the Lord Chancellor are assessed for Northern Ireland and for Scotland, corresponding to the way costs—or, in Scotland, expenses—are assessed.
I said that I would briefly explain how the regulations apply to justices of the peace. Although the Act does not affect the role of justices of the peace, the way the powers to make regulations are structured means that the existing regulations cease to have effect. It is therefore necessary to re-enact the provisions of the existing regulations as they apply to justices of the peace, as well as making the new provision, mirroring the existing provision, for authorised court and tribunal staff. I reiterate that the new regulations largely maintain the status quo and simply extend to all authorised officers the same provisions that currently apply to just justices’ clerks and assistant clerks and reproduce those provisions for justices of the peace.
These regulations will ensure consistency on how courts approach costs in these rare cases and guard against excessive, or indeed insufficient, orders being made in courts across England, Wales, Scotland and Northern Ireland. The regulations have no impact in terms of cost to the public sector because they substantially replicate what is provided for currently.
The purpose of these regulations is simply to provide certainty, to ensure there is a functioning and regulated procedure for the payment of costs to litigants in proceedings against authorised officers, and to provide clarity for the courts and tribunals on how costs should be managed in such cases. I commend this instrument to the House and beg to move.
My Lords, I thank the noble Lord for again introducing the SI so comprehensively. It just shows how remote lawyers in other fields sometimes are that I did not notice that the justices’ clerk had been abolished; I confess that it was only when I read this SI that I realised that this very long-standing, almost Dickensian pedigree was no longer with us.
Obviously it is extremely desirable that authorised courts or tribunal staff are supported in this way. My only question is about the use of the word “mirroring”, a word that occurs all the way through the Explanatory Notes. Does that mean effectively that the right to costs is identical between the previous justices’ clerks and the current appropriately qualified court or tribunal staff who are authorised to perform certain judicial functions, or has some difference crept in that is either more or less generous?
I echo the thanks of the noble Lord, Lord Clement-Jones, to the Minister for his detailed introduction. As he said, these are technical rules. I congratulate the noble Lord, Lord Clement Jones, because in reading through the SI over the weekend I was struggling to find a question within it. I welcome the intent to indemnify the authorised officers against any actions that they carry out in good faith.
I have a question about numbers. I noticed that the impact assessment said there was no change from the previous impact assessment carried out in 2018. Does the Minister know how many individuals had to be indemnified and had cases brought against them? Again, if he does not have that information to hand, I am more than happy for him to drop me a note.
In the interests of speed and accuracy, it might be more helpful if I write to the noble Lords to provide that information. The noble Lord, Lord Clement Jones, is right that this is a moment for us to pay tribute to the soon-to-disappear office of justices’ clerk, though their work will continue in this new form and broadly contribute to the efficiency of our courts and tribunals.
The noble Lord, Lord Clement-Jones, asked about “mirroring”. I confirm that the content of the new regulation is identical; it is mirrored exactly.
I said in my opening comments that the regulations will do what we consider they must to implement the Courts and Tribunals (Judiciary and Functions of Staff) Act 2018. They supplement the protections that authorised officers need and ensure that there is a functioning and regulated procedure for any payment of costs to litigants in proceedings against such officers. I hope I have been clear that the Government have done what we can in these regulations to retain clarity by replicating the protections currently afforded to justices’ clerks to ensure that we cause minimum disruption to courts’ business in maintaining the status quo by mirroring what are already well-established procedures.
The Government’s aim is to set out how costs should be treated in any proceedings that may be brought against authorised staff in future. I believe these regulations provide clarity, certainty and consistency for courts managing payments of these costs in future, so I commend this instrument to the House.