My Lords, these amendments relate to two elements of the Bill. Amendments 3 and 4 require that any authorised person who gives legal advice to lay judges or judges of the family court must be legally qualified and have more than three years’ experience post-qualification. Amendment 6 makes the same requirement of staff carrying out judicial functions.
The qualifications for staff giving legal advice have been set out in regulations since 1979. They remain substantively the same today: broadly, one must be a barrister or solicitor or have passed the necessary exams to become one. The qualifications will continue to be set out in regulations and subject to parliamentary scrutiny. We are not proposing any changes to that process. Allowing qualifications to be set out in regulations has not resulted in a lowering or lessening of this bar. Amendments 3 and 4 would, however, raise it to a height that is unnecessary and could adversely impact on the diversity of legal experience in our courts.
In our draft regulations, which we published ahead of Committee stage, we are proposing to take the opportunity to modernise the qualifications required for legal advisers by adding to those eligible to give legal advice fellows of the Chartered Institute of Legal Executives—CILEx—and those who have passed the necessary exams to be fellows. The addition of CILEx fellows highlights the danger of all three of these amendments. Prescribing qualifications on the face of the Bill means that, should an alternative route to legal qualification emerge, adding this qualification to these provisions could only be achieved through primary legislation.
I turn to the point raised by the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss, about Amendment 3. One might be in a circumstance where a judge would need advice from somebody with less than three years’ qualification. It may be exceptional—for example, a judge might reasonably ask for advice on procedure. Legal advisers must know, understand and apply the law, and advise judges and magistrates accordingly. The bar we have had in place for almost 40 years has worked perfectly well, and our current legal advisers are providing an excellent service.
Requiring three years’ post-qualification experience would restrict the avenues through which people can qualify as lawyers and would also exclude experienced legal advisers. Amendment 6 takes a similarly one-size-fits-all approach, but for the qualifications needed for staff to exercise judicial functions. The difficulty with this is that it does not allow for a variety of qualifications to mirror the variety of tasks that staff may carry out. I stress that the exercise of judicial functions by authorised staff is not new anywhere but in the Crown Court. Courts and tribunals staff already carry out judicial functions in the Court of Appeal, magistrates’ courts and family courts, as do registrars and caseworkers in the tribunals. Some of these staff are legally qualified; others are not. For example, there are specialist registrars in some of the tribunals, such as the tax tribunal, where tax specialists are not legally qualified. Their qualifications depend on the work they are carrying out—as in any job—and many of them already exercise the jurisdiction of our courts on a daily basis.
As my noble and learned friend Lord Keen said in Committee, the kinds of tasks authorised staff already carry out—and could undertake more of in future—are largely preparatory or interlocutory. These staff support the progression of cases: getting things ready for court and working out what the court should do. Their work will ensure that hearings and trials are as effective as they can be and that our courts, tribunals and resources are put to best use.
Perhaps that goes some way to answering the question from my noble and learned friend Lord Garnier about the sorts of roles these authorised members of staff will undertake. It is right that we have sought to carve out those roles that we feel they should not undertake. However, the number of roles they could undertake is extremely broad. The level of qualification that staff need should vary according to the work they do. The Bill allows the procedure rule committees to set the requirements as to the qualifications or experience of authorised staff exercising judicial functions. This is the right approach. The committees are best placed to assess the requirements for their jurisdictions in light of the functions that they permit authorised staff to carry out.
Amendment 6 would require that someone carrying out the simplest of tasks, such as changing the start time of a hearing, must be a qualified and experienced lawyer. This is plainly unnecessary. The judiciary is ultimately responsible for authorising court and tribunal staff to exercise judicial functions, and will do so only if satisfied of their competence. An applicant’s formal qualifications will be checked before appointment, and their judgment, skills and knowledge assessed by a supervising judge or senior lawyer before any authorisation can take place.
For the reasons that I have set out, I hope that the noble Baroness, Lady Chakrabarti, will feel able to withdraw her amendment.
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