Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) Order 2014
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The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, I beg to move that the Committee do consider the draft Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) Order 2014, the Justices’ Clerks and Assistants Rules 2014 and the Crime and Courts Act 2013 (Family Court: Consequential Provision) Order 2014.
As your Lordships may be aware, these statutory instruments are a significant part of a package of secondary legislation required to bring into being the new family court. Section 17 of the Crime and Courts Act 2013 provides for the creation of a single family court for England and Wales. This will replace the three separate tiers of court that deal with family proceedings. The High Court will still hear family proceedings, but the intention is that in practice it will hear only those matters reserved exclusively to the High Court.
The Committee will recall that the independent Family Justice Review recommended the setting up of a single family court as the current three-tier structure is complicated, inflexible and difficult for families and other court users to navigate. Parliament then passed a law creating such a single family court in the Crime and Courts Act 2013.
The new family court will be able to sit anywhere in England and Wales and all levels of magistrates and judges will be able to sit. This includes lay magistrates, district judges, circuit judges, High Court judges and above. This should enable more effective and efficient use of judicial resources and of court staff and buildings. These instruments will go a long way in ensuring that family proceedings, particularly those involving children, will be dealt with more efficiently, with delay being the exception.
When the new family court is implemented, the family proceedings courts will no longer exist and magistrates’ courts and the new single county court will not be able to hear family proceedings. However, as the family court can sit anywhere, it can sit in the county court or magistrates’ court buildings.
I turn to the destination of appeals order. The Matrimonial and Family Proceedings Act 1984 provides that if any party to proceedings in the family court is dissatisfied with the decision of the court, that party may appeal to the Court of Appeal. The Administration of Justice Act 1960 provides that if any party to proceedings in the family court is dissatisfied with a decision relating to contempt of court, that party may appeal to the Court of Appeal. The destination of appeals order aims to route appeals against the decisions of certain judges of the family court away from the Court of Appeal to the family court.
I will speak first about appeals against decisions in the family court, except those relating to contempt. The objective of this order is largely to enable replication of the current position whereby appeals from magistrates and of district judges do not go to the Court of Appeal. Rerouting appeals away from the Court of Appeal is not new. It is a well established principle that appeals should normally be heard at a lower level than the Court of Appeal. In the family court the intention is that they will be heard by a higher level of judge than the one who made the decision being appealed.
So the intention is that generally, for the single family court, the same judges will be hearing appeals as now, but they will be sitting as a family court judge, rather than as a county court judge or in the High Court. Subject to your Lordships’ approval, the effect of this instrument will be that appeals from a decision or order of the judges or officeholders listed in the order are routed away from the Court of Appeal to the family court.
For example, where there is an appeal against a decision of a bench of lay justices, or a district judge sitting in the family court, about which parent a child should live with, or whether a care order should be made in relation to a child, that appeal will be heard in the family court not the Court of Appeal. As I said earlier, this is not new. At present an appeal from the decision in family proceedings of lay justices or a district judge sitting in the magistrates’ court, or of a district judge sitting in a county court, is heard in a county court.
The level of judge that can deal with appeals routed to the family court by the destination order will be set out in a different statutory instrument under Section 31D of the Matrimonial and Family Proceedings Act 1984. It will be made by the Lord Chief Justice, or his nominated officer, after consultation with the Family Procedure Rule Committee and with the agreement of the Lord Chancellor. That instrument is not yet before Parliament, but I can reassure noble Lords that the plan is for appeals in the family court to be heard by a circuit judge, as now. However, there will be greater flexibility to ensure that judicial resources are used more efficiently and that the appeal is heard at an appropriate level. For example, there will be provision for a judge of High Court level sitting in the family court to be able to hear an appeal which would otherwise be heard by a circuit judge, where a designated family judge or a judge of High Court level considers that the appeal would raise an important point of principle or practice.
Noble Lords may have also noted that this order makes provision for decisions of certain tribunal judges and court martial judges to be routed away from the Court of Appeal. I should explain that this provision seeks to future-proof the legislation. These judges cannot currently hear family proceedings, but the Crime and Courts Act 2013 provides for more flexible deployment of the judiciary to make efficient use of resources. It provides for tribunal and court martial judges to be judges in the criminal, civil and family courts and for the judges of those courts to be tribunal judges. Although there is no immediate intention to deploy these judges in the family court, they are in fact judges of the family court. It would not be appropriate for appeals against the decisions of those tribunal and court martial judges listed in the draft destination order to go to the Court of Appeal, so this order routes appeals against any decision which they may make in the family court away from the Court of Appeal to the family court.
In addition, appeals against decisions by deputy district judges and justices’ clerks will be routed away from the Court of Appeal to the family court and be dealt with by a circuit judge sitting in the family court. Appeals from decisions of judges of the family court which are not listed in the destination order will go to the Court of Appeal. For example, an appeal from the decision of a circuit judge, or of a High Court judge sitting in the family court, will go to the Court of Appeal.
The provisions of the Destination of Appeals Order 2011 which relate to routes of appeal to a judge of a county court or to decisions of the Principal Registry of the Family Division when it is treated as a county court or care centre are revoked. The remaining provisions of the 2011 order are needed for the High Court hearing family proceedings.
I turn briefly to appeals against decisions relating to contempt. Currently the route of appeal for decisions concerning contempt of court is complex. The draft order we are considering today simplifies the routes of appeal so that appeals against such decisions will follow the same route as appeals against other decisions of the family court. The Crime and Courts Act 2013 enabled us to do this so that the process is streamlined and more transparent.
I now turn to the draft Justices’ Clerks and Assistants Rules, known together as the Justices’ Clerks Rules. The Crime and Courts Act 2013 provides for justices’ clerks and their assistants to give legal advice to lay judges of the family court—as they currently do in family proceedings courts—and allows for rules to set out where they may perform functions of the family court or of a judge of the court.
Primary legislation already exists that allows for justices’ clerks and their assistants to provide legal advice and assistance in the magistrates’ courts for criminal and family proceedings, and to perform functions of the court. Existing rules made under that legislation specify which functions they can perform. For the new family court, new rules are needed to specify the functions of the family court or of judges of the court which justices’ clerks and their assistants will be authorised to carry out.
During the passage of the Bill this House expressed some concern about which functions justices’ clerks would be able to perform in the new family court. I think that the noble Lord, Lord Beecham, put down an amendment at some stage which concerned this issue. I reassure the Committee that the draft rules being considered today have been agreed by the President of the Family Division as the Lord Chief Justice’s nominee, and were developed in close consultation with the Family Procedure Rule Committee. My noble friend Lord McNally gave an indication of our plans to the House on Report, and these draft rules reflect those plans. Therefore the draft rules allow justices’ clerks to continue to perform broadly the same functions as they currently do in family proceedings courts.
However, as previously explained to the House, they will be able to perform those functions in cases allocated to any level of judge of the family court rather than just when a case is allocated to lay magistrates, which provides greater flexibility. Therefore justices’ clerks will be able to assist in progressing cases, freeing up judges to deal with the more complex parts of the case. This should increase the efficiency of the family court and help reduce delay—something that we know can adversely affect cases with children involved.
These rules will also allow justices’ clerks to perform some functions for the first time. For example, these rules will allow a justices’ clerk to perform certain functions in undefended divorce or separation cases. These cases are relatively straightforward, but because of the volume of applications they take up a significant amount of district judges’ time. Allowing justices’ clerks to perform these functions will allow judges more time to deal with more complex matters. However, I stress that justices’ clerks will not be able to deal with any case where the application for divorce or other order is defended. These will continue to be dealt with by judges of the family court.
The draft rules also provide for assistant justices’ clerks, as now, to be able to perform functions when authorised by a justices’ clerk. In all cases, justices’ clerks and their assistants are subject to a duty to refer matters back to the court if, when considering carrying out an authorised function, they consider that it would be inappropriate for them to carry out that function. This is a duty to which justices’ clerks and their assistants are currently subject in the existing rules, so it is replicated in these draft rules.
I emphasise that although justices’ clerks and assistant justices’ clerks are employed by Her Majesty’s Courts and Tribunals Service, they are not subject to the direction of the Lord Chancellor or any other person when carrying out the functions set out in these rules or when giving legal advice or assistance to lay judges of the family court. They act independently, just as a judge would.
These rules largely replicate the functions that justices’ clerks can currently carry out for the court. They have been carefully considered by the members of the Family Procedure Rule Committee, and the president of the Family Division, who has agreed them. The rules will allow the extensive knowledge, skills and experience of justices’ clerks to be used, over time, to free up judges to deal with more complex cases and to improve the efficiency of the courts. I would further expect this to reduce delay and provide an improved service for families who need to use the new family court.
Finally, I will consider the Crime and Courts Act 2013 (Family Court: Consequential Provision) Order which makes amendments to primary legislation required because of the creation of the new family court. Already a number of changes to primary legislation in the Crime and Courts Act 2013 are required because of the creation of the new family court. However, as is often the case with a change as complex as the creation of the family court, further changes to primary legislation are required to ensure the family court can operate effectively. Section 59 of the 2013 Act gives a power to make provision in consequence of the 2013 Act. This order will be made under that power and provides for various amendments to primary legislation which are needed as a consequence of the setting up of the single family court. It mainly replaces references in primary legislation to magistrates’ courts and county courts with references to the family court, as the magistrates' courts and county courts will no longer be able to hear family proceedings when the new family court is commenced.
The amendments to primary legislation set out in the order are required to ensure that the family court can deal with matters such as the enforcement of maintenance orders, which currently are often dealt with in magistrates’ courts but in future will be dealt with in the family court. The order also removes references to matters which will no longer be dealt with in magistrates’ courts. It will enable legal aid payments to be paid for advocacy in the family court, in circumstances to be specified in legal aid legislation. It also makes other amendments to primary legislation to ensure that the family court can deal with all the matters that it needs to, such as an application from a creditor in relation to a judgment debt, for information about what enforcement action to take to recover that debt.
The instruments presented today will enable the creation of a new family court that will be able to operate more effectively and efficiently, and provide an improved service to the families who need to use the court. The creation of a simpler court structure should make it easier for those who need to use the courts to do so. They will no longer have to work out to which tier of court to submit their application. Instead they will just submit it to the family court in their area and it will be allocated to the appropriate level of judge. Cases will no longer need to be transferred between the old tiers of court. Court users should experience a more streamlined and efficient service with a significant reduction in delays. These measures, together with others, will give the judiciary, working together with Her Majesty’s Courts and Tribunals Service, greater flexibility and allow it to respond to differences in demand to ensure the most efficient use of judicial and court resources.
I hope that noble Lords will feel able to approve these draft instruments so that the benefits of the single family court can be achieved. I therefore commend these draft orders to the Committee and I beg to move.
Lord Jones (Lab)
My Lords, I thank the Minister for his pithy and customarily helpful remarks. My questions stem from the most honourable tradition of asking questions in a Parliament to a Minister. Will he give specific reasons why the Government have resolved to end the interests of magistrates’ courts and county courts in these courts? That question is linked to another: shall we truly have more flexible and more efficient family courts? What were the magistrates’ courts doing wrong and what were their shortcomings? Why has it been resolved to end the historic relevance of the magistrates’ court with its three citizens? What insights have informed these decisions? Can we be absolutely assured that in the new arrangements the primacy of the interests of the child will be always borne in mind? Is that a reason for this large change? Surely we can raise this matter in this Committee and surely it has always informed Ministers and those who advise them.
Lord Beecham (Lab)
My Lords, I begin by breaking the habits of my three and a half year parliamentary career and not only thanking the Minister for the clarity of his exposition—to which we are accustomed—but also confirming that most of what is in these instruments is agreed by the Opposition.
I reassure my noble friend, who has just spoken, about some of his concerns. The family court concept does not exclude the magistrates’ court and lay justices; it includes them. They become part of a virtually seamless provision for dealing with family court matters. Therefore, the magistracy will remain involved. With regard to my noble friend’s last question to the Minister, the Minister may or may not be able to answer it but I can, because I have put the same question to the Magistrates’ Association. It is content with this afternoon’s legislation and has no objections to any of the proposals.
Lord Beecham
I can report to the Committee only what I have heard directly from the Magistrates’ Association. I have not heard from the Justices’ Clerks’ Society because I did not contact it. The Magistrates’ Association has no reservations about these matters.
Lord Jones
But is my noble friend speaking on behalf of the Magistrates’ Association and is he giving guarantees?
Lord Beecham
No, I cannot speak on behalf of the association. I am not, as it were, briefed by it or retained by it, unfortunately, but I assure my noble friend that it has communicated with me in the sense that I have just described. However, other reservations that my noble friend has expressed, which are not, strictly speaking, germane to the matters that we are debating this afternoon, raise concerns which I share and which, indeed, I have raised from time to time. They are also concerns which the Magistrates’ Association shares—that is, the current size of Benches that have been amalgamated and the position now occupied by the justices’ clerks on those Benches. The clerks are no longer responsible to magistrates but are responsible upwards, as it were, to the Ministry of Justice.
My noble friend rightly refers to the accessibility of courts and the closure of court buildings. However, one matter to which he has not referred but which has caused concern, which I have voiced previously, is the apparent growth in the role of full-time or part-time professional district judges as opposed to lay magistrates. There is concern about the imbalance that that is creating. Nowadays, some cases are dealt with virtually exclusively by district judges and the lay judges have a diminished role in consequence. These are genuine concerns which I think we need to explore further, but not for the purposes of the legislation today.
I have in the course of my 40-odd years—some of them rather odd indeed—practised as a solicitor and have spent much time briefing counsel. I am experiencing something of a role reversal today, because I have benefited from briefing from a distinguished family law practitioner, Michael Horton. I do not know whether he is somebody with whom the Minister is acquainted but he is an experienced counsel dealing with family matters. He raises a number of issues which do not undermine the thrust of the regulations that we are discussing but in some instances suggest that a little further clarification is required.
The first issue relates to the appeal to the family court. Where, within the family court, does the appeal lie? In other words, who in the family court will deal with the appeal? The Civil Procedure Rules lay out a definition of who will hear appeals. At the moment, it appears that a new practice direction to the Family Procedure Rules will identify the destination of appeals—that is, not just the broad destination of the family court, which, as I have just emphasised, reaches from the magistracy right through, ultimately, to the Court of Appeal—but what tier of the judiciary will deal with it? I understood the Minister to say that that either has happened or is about to happen—that the rules will be promulgated. They are to come into force in six or seven weeks’ time. I take it that they have been the subject of consultation and I should be grateful if the Minister could confirm that. If, by any chance, they have not yet been the subject of consultation, I strongly urge that they be made so.
Another issue raised is not a criticism at all but it arises from a welcome change to which I do not think the Minister specifically referred. It is the possibility of funding emerging from the change in rules which will allow payments to be made to charities, to be ordered by the family court. I am not quite clear of the intention here. but one hopes that such payments could cover the advice services provided by voluntary organisations to those engaged in family disputes. It would be helpful to have clarification of whether that is in fact the intention. It could make a significant difference in facilitating support for litigants who are not able to pay for or obtain legal aid for advice, as would be the case in a number of instances, if voluntary organisations could be the recipients of money as the result of such an order.
Lord Faulks
I am very grateful to the noble Lord, Lord Jones, for his contribution to the debate, and to the noble Lord, Lord Beecham, for his observations.
The central question behind the speech given by the noble Lord, Lord Jones, was, “Why do we need this reorganisation of a family court, and why ignore the experience there was in the magistrates’ court?”, and that we should take into account in particular the convenience for local people to use their magistrates’ court. I quite understand that concern. However, as the noble Lord, Lord Beecham, quite rightly said, we will not lose that expertise. Magistrates will still deal with family proceedings, but within the overall context of a family court. Previously we had these various tiers, but now we have a unified court. However, they will all be the family court, albeit some will sit in magistrates’ courts, some in county courts and others will physically sit in the High Court, depending on the allocation and the level of the dispute. So that much-valued expertise will not be lost. What is intended, as I indicated in my opening remarks, is that there should be increased flexibility and a better use of appropriate judicial resources. I am not sure that those qualified lawyers who act as justices’ clerks would welcome being described as a lower level of judge, as the noble Lord, Lord Beecham, described them. They are very often qualified and, if not qualified, have a considerable amount of relevant experience, and they will not be given any tasks that they are performing now and will perform in future unless it is clear that they have relevant experience and expertise.
The creation of the family court was recommended by the family justice review. It was considered that the new structure would limit delays and simplify the whole question of people who go to their local area with a particular issue, which will then be allocated to the appropriate level of court. It will not be the enemy of localism, which I think was the concern expressed by the noble Lord, Lord Jones.
Lord Jones
Will the Minister write on those questions that he may not be able to field, such as the ones that I have posed?
Lord Faulks
Yes, I will certainly write in so far as I do not answer all the issues raised by the noble Lords, Lord Jones and Lord Beecham. I fear that I will not be able to answer all the points, but I hope that I can at least reassure the noble Lord that the magistracy will still be involved in the matter, as it was before, and will not lose its expertise—it will simply be called something different. There is some reallocation of its tasks, but not a loss of its important role.
The closure of courts generally is a different issue from that which we are considering. There are always difficult arguments on the cost of having a court that is infrequently used as against the convenience for local people. We are of course anxious that the quality of decision-making should be high and that there should be convenience, and we do not anticipate that there will be a radical change in individual cases. The noble Lord mentioned the position in Llanelli, where he feared that there would not be enough local expertise. I am assured that there would not be a radical transfer unless the court service was satisfied that there was the appropriate level of expertise in a local area.
I turn to issues raised by the noble Lord, Lord Beecham. He said that he was concerned that there had not yet been a specific route for the appeals identified. I indicated in the course of my remarks that they would be set out in a statutory instrument under Section 31D of the Matrimonial and Family Proceedings Act 1984, which would be made by the Lord Chief Justice or his nominated officer after consultation with the Family Procedure Rule Committee and with the agreement of the Lord Chancellor. The rules are made with the consultation of the committee, which includes expert practitioners, justices’ clerks and judges. It also includes a representative of the court users, so it should be possible before the appropriate tier of appeal is finalised for all interested parties to have an opportunity to have their views reflected in the designation. Although I understand the noble Lord’s anxiety, it is unlikely that he will find the organisation of appeals in any sense out of sync with the construction of appeals that exist generally in civil procedure—that is, there will be an appeal from a court to a higher level of court and, depending on where the initial allocation begins, a superior court will then come to consider the relevant appeal.
The noble Lord, Lord Jones, asked a question about the consultation with the Magistrates’ Association, which was very helpfully answered by the noble Lord, Lord Beecham, who was able to confirm that it had been consulted. The statutory obligation was to consult the family practitioners’ rules committee, which comprises representatives of the lay magistracy, justices’ clerks and a number of judges, so it would have been included in any event in that consultation.
The noble Lord, Lord Beecham, asked about payments to charity. I am told that the amendment to Section 194 of the Legal Services Act 2007 will mean that the family court will be able to order a party to make a payment to a charity. This mirrors the current position in the civil courts and applies where a party has been represented free of charge. It will be for the court in the individual case to determine to which charity the payment should be made. I hope that that answers that point. The noble Lord also made a point about the increase in costs and the fees for divorce going up. Yes, if it is dealt with at a lower level then I understand his point about that. A final decision has not yet been made on whether to increase the fees for divorce, although this matter was consulted on. I will certainly take back his observations.
Perhaps I have not quite sufficiently answered the question about the general sufficiency of the numbers of justices’ clerks. It is actually the case that the assistant justices’ clerks will be doing most of the work in courts. There are about 1,400 of them and the justices’ clerks are managers, so there is one in each area. There are 26. Her Majesty’s Courts and Tribunals Service has assured Ministers that there will be sufficient justices’ clerks to perform the various functions which they are able to do as a result of this designation.
I think that I have answered most of the questions—no, I have not.
Judicial Appointments Commission Regulations 2013
Lord Jones Excerpts(10 years, 9 months ago)
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Lord Jones
My Lords, I thank the Minister for his pithy exposition of the Supreme Court (Judicial Appointments) Regulations 2013. I have been in this Parliament for only four decades. Notwithstanding that, I know that a Member without any legal insight is entitled to take part in the proceedings of your Lordships’ Committee and ask a question of the resourceful Minister who is taking forward the business. By coincidence, a new Lord Chief Justice—a distinguished Welshman—was appointed very recently, and I noted in the correspondence column of the Times today that my compatriot, Mr Winston Roddick QC, a former Counsel General to the Welsh Assembly Government, has strongly supported his appointment. I think the Lord Chief Justice is being warmly welcomed throughout the Principality; he has the reputation of being a very charming and knowledgeable Welshman.
At this point, I will hurry on to ask whether the Minister is able to say in what way, if at all, there is any prospect of what one might call ordinary people being consulted on this enormously important post of Lord Chief Justice. Does he have a point of view on that? Does a point of view exist regarding widespread consultation or has it been resolved that such a course would not be wise? How was the First Minister of Wales consulted? I see at Regulation 19 that the First Ministers in Scotland and Wales are down for consultation. Would it be reasonable to assume that the First Minister of Wales was consulted on this recent appointment of the new Lord Chief Justice? I am not in any way asking what the result of the consultation was, or about the detail of what was said or written, but it is reasonable to ask in what way he was consulted, when he was consulted, and how, by whom and how recently his opinions were received.
The Minister mentioned diversity. Is he able, in all this, regarding this regulation and this appointment, to give to the Committee instances of diversity in these senior appointments of crucial importance to all the people in Britain? I note, too, that references are made to the Judicial Appointments Commission. Does he have to hand the current membership of that commission? I again thank him for his pithy exposition at the beginning of our debate.
Lord Hardie
My Lords, in relation to the Judicial Appointments Commission Regulations 2013, I seek some guidance and some information from the Minister. In terms of the composition of the commission, to which the Minister referred in his remarks, Regulation 4(5) includes as a legally qualified member of the commission a,
“fellow of the Chartered Institute of Legal Executives”.
What particular judicial appointments would the commission comprising such a member be involved in? Perhaps the Minister can assist me. I may have something further to say once I know the answer to that.
Legal Services Act 2007 (Appeals from Licensing Authority Decisions) (No. 2) Order 2011
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The Minister of State, Ministry of Justice (Lord McNally)
My Lords, for the convenience of the Committee I intend to speak to the two orders together.
On the appeals order, noble Lords may be aware that the licensing regime for alternative business structures contained in the Legal Services Act 2007 became operational on 6 October. In relation to that regime, the Law Society has had its application to become a licensing authority approved by the Legal Services Board. In accordance with the 2007 Act, before the Law Society can be designated as a licensing authority by order of the Lord Chancellor, it is necessary for there to be an appellate body with the power to hear appeals against its decisions made in relation to alternative business structures.
The purpose of this order is to modify the functions of the Solicitors Disciplinary Tribunal—known as the SDT—so that it can perform that function, subject to its designation as a licensing authority. As required by the 2007 Act, this order is made on the recommendation of the Legal Services Board following wide consultation and with the consent of the SDT and the Law Society.
In summary, the order makes provision for the SDT to hear and determine: decisions which are appealable under Part 5 of the 2007 Act and under the Law Society’s own licensing rules; the orders which the SDT may make, where that is not already provided by the Act itself; the orders for costs in relation to those appeals; and onward appeals from the SDT to the High Court. The set-up and operating costs of this SDT appeal mechanism will be funded by the Law Society and met by the licence fee payable by licensed bodies.
The Law Society has elected to use the SDT rather than the First-tier Tribunal as its appellate body because it wanted a consistent approach to appeals by all the firms which it regulates—both alternative business structures and traditional firms—and because the SDT has a wider discretion than the First-tier Tribunal to award costs. During a previous debate in the summer, noble Lords expressed concern about different licensing authorities using different appellate bodies to determine appeals from their licensing decisions. I think that point was made by the noble Baroness, Lady Hayter. I can see merit in using one appellate body for all appeals relating to alternative business structures, and that has also been the Legal Services Board’s preference. However, the structure of the 2007 Act means that the Legal Services Board can only recommend appeal routes to which the prospective licensing authority and the proposed appeal body consent. Therefore, licensing authorities cannot be forced to use a particular appeal route.
The Legal Services Board made its recommendation on the Law Society’s appeal route to the Lord Chancellor in August, and this order has been brought before the Committee at the earliest opportunity. As I have already said, the Legal Services Board originally consulted on a proposal that there should be a single appellate body to hear decisions of all licensing authorities and proposed the First-tier Tribunal for that role. However, the Law Society did not consent to that proposal and elected to use the SDT as its appeal body. The consequences of this decision impacted on the timing of the Law Society’s designation as a licensing authority and were explained to the parties concerned at the time.
Following the Law Society’s decision a new draft order was prepared and, in accordance with the statutory requirement, the consultation on the order was undertaken by the Legal Services Board. That consultation was completed in June and the order was finalised shortly after, but not in time for consideration by this House before the Summer Recess. Without the appeal arrangements being in place, it was not possible to designate the Law Society before the commencement of the alternative business structures regime in October. If approved, the order will provide the individuals and businesses affected by the Law Society’s licensing decisions with an opportunity to challenge these decisions through an independent and impartial appellate body.
I will now turn to the exceptions order. This is the second exceptions order to be laid this year. The purpose of this amendment is to extend the exceptions to the Rehabilitation of Offenders Act 1974 to include non-authorised persons with a restricted interest in alternative business structures—a point originally raised when we last discussed this by—
Lord Jones
The Minister has already referred several times to consultation. Perhaps now, or in his summing up, he will give any instances of consultation in Wales and with whom consultations may have been taking place.
Lord McNally
My Lords, I thank the noble Lord, Lord Bach, for that response. He is always very kind about how clear and thorough I am in explaining statutory instruments. He knows as well as I do that it is only because of the hard work of the people who sit behind me. I am very pleased that the noble Baroness, Lady Hayter, and my noble friend Lord Dholakia thanked the Ministry of Justice and the LSB for their work on this. It is exciting. I pay tribute to the previous Government. The alternative business structures will produce changes which, I suspect, will be mainly to the benefit of the consumer in the provision of legal services. What we are trying to do with these orders is to put the last pieces in place to allow them to function.
The noble Lord, Lord Bach, and the noble Baroness, Lady Hayter, both expressed the concerns that were reflected during the last debate—that we have not got a single route here, in that the solicitors have decided to have their separate body. Whether it will cause the problems of a lack of consistency, we will have to see. What I can assure noble Lords is that the LSB will be carrying out further work, and looking at appeal arrangements, and the MoJ will be working closely with the LSB in relation to this. I also understand the question put by the noble Lord, Lord Bach: have we gone too narrow in this extension? As I explained, I do not think we have. However, let us see. The concern expressed last time was that the alternative business structures may allow criminal elements in that would corrupt the new structures. We listened in this Committee and have brought forward extensions, and now think that we have got things right. Again, the LSB will follow the new structures as they go in. So far, only one new alternative business structure has been announced. The Co-op has beaten Tesco; perhaps it should now be called Co-op law rather than Tesco law.
This is an exciting development for which the previous Administration can take credit and which we have been pleased to help bring into being. We will discuss legal services in general in more detail when we get to the Legal Aid, Sentencing and Punishment of Offenders Bill in a short while. However, as the noble Lord, Lord Bach, and I have discussed before, legal services in general are in flux. The ABSs will provide an exciting new dimension to them.
On the question asked by the noble Lord, Lord Jones, I can only draw his attention to the fact that the consultations were carried out by the Legal Services Board for England and Wales and the Law Society of England and Wales. I am sure that both bodies carried out their consultations across the geographic areas of their responsibility. If he can draw to my attention the case for them not doing that, I will be happy to follow it up. However, since they are both bodies that have an England and Wales dimension and were both charged with wide consultation, my understanding is that they will have consulted in Wales.
Lord Jones
I am grateful to the Minister for fielding my query. I content myself with the reminder to him: he is the Minister and he will do the work.
Representation of the People (Electoral Registration Data Schemes) Regulations 2011
Lord Jones Excerpts(12 years, 10 months ago)
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Lord Jones
My Lords, I thank the noble Lord, Lord Tyler, and my noble friend on the Electoral Commission. I also thank the Minister for the clarity of his introduction. It is clear how, over the years, the register has ceased to be the reference source—the local bible—that it once was. That may be the reason for these regulations and the order. I have also noticed how, in parallel, turnout at elections has plummeted and how the ugly head of fraud has recently been so frequently in the news. Therefore, perhaps necessarily, these proposals must be and are bureaucratic. We have commissioners, commissions, the Cabinet Office, Secretaries of State, the Lord President and local authorities—all evidence of complications.
The ballot is a hard-won right. It is a secret ballot and it remains, I hope, a clean and fool-proof ballot. That is the bedrock of British liberty—the liberty of a free Parliament and of our perception of liberty, equality and justice. In that sense, what is before us is very important. It was right and proper that the Minister declared himself clearly in introducing the legislation and no doubt will do so in replying. We are all equal in the ballot and therefore I see these measures as an enhancement. They have to be good. I assume that every effort is being made by the coalition Government to protect the integrity of the ballot box. That signal needs to be sent out to the nation and to the whole electorate and I trust this Minister to do that. I appreciate the reference made by the deputy commissioner and director of data protection to inherent risks in security. David Smith makes a veiled promise of what seems to me a retribution. I do not cavil with his discretion there.
What of Wales in terms of a national ballot? The city of Cardiff and the county is a good place to go, as the schedule presages, but can the Minister indicate whether there were consultations and other bids? We have but one pilot in Wales. Why not in Northern Ireland? It may be that there is a simple answer that the Minister will give to your Lordships.
I have a question that arises from a recent contretemps. Are electoral registration officers subject to ministerial direction? I know that the Minister does not answer for Wales, but I put the question generally. I recently noticed that Wales Assembly Government Ministers were unable to persuade—I use the word advisedly— an electoral registration officer in the Wales Assembly election to do as they wished. I refer to the day and the time of a count. The Minister may say to me that that is way out, but I put the question to him also in a general sense across Britain—or perhaps it applies only to England. Can he give an answer now? If he cannot, will he please give me a detailed answer by letter? I wish the Minister well in attempting, on this important matter, to make this a better place.
Lord Wills
My Lords, it is a pleasure to follow my noble friend and all noble Lords who have made important contributions to an important debate. I do not intend to delay the proceedings for long, not least because the Minister made such a compelling case for these statutory instruments that there is little to add. I agree with almost everything that I heard him say. However, I have a few questions. Of course, if he is unable to answer them directly today, I should be grateful if he would write to me in due course.
I agree with the noble Lord, Lord Tyler, that it is crucial with this sort of legislation to strike the balance correctly between the efficient discharge of achieving desirable public objectives and protecting the liberty of the individual. As far as I can see, the Government, in this careful approach, have struck that balance well. The House and Parliament owe the Minister and his colleagues a debt of gratitude on the way in which they have approached the matter.
These statutory instruments can play an important part, as we have heard, in tackling the continuing and serious problem of under-registration. Until now, there has been general agreement that the figure of between 3 million and 3.5 million, based on work by the Electoral Commission some years ago, represents the number of people who are eligible to vote but cannot do so because they are not on the register. First, is the Minister aware of the report in the Guardian today that is based on the work carried out by Chris Ruane MP and suggests that the figure may not be between 3 million and 3.5 million but closer to 6 million? Will he commission his officials to contact Mr Ruane to investigate the validity of that figure and report back to Parliament on the findings?
Secondly, the previous Government, as I am sure the Minister is aware, felt that the power in the Political Parties and Elections Act to make such statutory instruments was necessary but was not sufficient. Had we been re-elected, we would certainly have brought forward further measures to improve registration rates. I should therefore be grateful if the Minister could tell us what measures this Government have considered to improve the electoral register over and above those brought in or presaged by the previous Government. Which of those measures that this Government have so considered are they planning to bring forward and when will they do so? If the Minister is unable to answer now, I should be grateful if he could write to me.
Will the Minister also explain why it has taken more than a year to bring forward these statutory instruments? I concede straightaway that, as I am sure he will immediately point out, the PPE Act received Royal Assent in July 2009 and that the statutory instruments that were necessary suffered in what is always the inevitable traffic jam of statutory instruments at the end of a Parliament. The Minister does not need to dwell on that point in his reply. However, this Government do not have that excuse. Given that when they came to power the cupboard was almost inevitably pretty well bare of such a logjam of statutory instruments, and given the importance that everyone who has spoken attaches to improving the electoral register, especially in the context of all the other constitutional reforms that this Government are bringing forward—the noble Lord, Lord Tyler, referred to our extensive debate on these matters in which the question of electoral registration has come up time and again on all sides of the House— please can the Minister tell us why it has taken quite so long to bring forward these statutory instruments? I am quite sure that I will not be alone in hoping for some sort of explanation.
I note that these statutory instruments have been coupled elsewhere with the Government’s intention to rush forward with the introduction of individual registration. I should like to put on record and conclude with my strong objections to this attempt to justify the unjustifiable. The previous Government put in place measures for the implementation of individual registration. That is undoubtedly desirable; there is now agreement, certainly among everyone who has spoken, about that. However, the previous Government tied individual registration to the achievement as far as reasonably practicable—I am again grateful to the noble Lord, Lord Tyler, for quoting the exact words—of a comprehensive and accurate register. This is crucial. All the analyses agree—I do not think that there is any serious disagreement about this—that the introduction of individual registration runs a serious risk of damaging rates of registration. Desirable as it is, that is a perverse consequence of bringing it in.
To rush forward before the register is complete, comprehensive and accurate, as the Government are proposing, risks rendering an already flawed system deeply more flawed. That would be bad enough, but such damage would have a partisan effect. Although the Minister may try to deny this, most analysts agree that the voters most likely to fall off the register in these circumstances would be more disposed to vote Labour.
Lord McNally
Yes. However, I refer to one of the points that my noble friend Lord Tyler made in the most enjoyable exchange that he had with the noble Lord, Lord Wills. The trouble with my noble friend Lord Tyler is that not only does he know the facts but he knows the dates as well; he is a difficult man to grapple with. He made the point that voter registration is not only a mechanical issue but a political one. We all have to get out and knock on doors and convince people. I freely accept that in some areas it is more difficult to obtain registration.
I make no apologies for pushing ahead with individual registration because, although there may be problems initially in the transition—and we are trying to put in place measures that will mitigate some of the problems—we are convinced that individual registration is a way to both avoid fraud and encourage individual participation in our democratic process.
Lord Jones
I am grateful that the Minister is grappling. First, can a Minister direct the electoral registration officer? Secondly, was he confirming that the city of Cardiff has pulled out of the pilot? If he was, I should tell him that I did not know and that I have relied on the documents that he presented to your Lordships saying that it was part of the scheme. He may wish to answer those two questions.
Lord McNally
I shall write to the noble Lord on his first question. As I understand it, Cardiff withdrew but, again, I shall write to clarify the situation.
Lord Jones
The Minister will concede that we needed to be told in proceedings that the schedule was inaccurate.
Lord McNally
I will check, but I think that I said that in my opening remarks.
Lord McNally
This has been a useful and question-filled debate, although we will have to wait for Hansard to find out whether it has been fact-filled. It is important that we have respect for the electoral register and for our democratic process. On balance, I have always been in favour of the stubby pencil inside a voting booth as a sign of the citizen’s commitment to making democracy work. These days, if you ever go checking numbers outside a polling station, it is sad to see elderly people struggling to make it to exercise that right and young people walking past. It is part of our task as politicians to reverse that process. We have to make democracy work and I hope that these instruments will make some contribution towards that. I sincerely thank all those who have contributed to a very well informed debate.
Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) Order 2011
Lord Jones Excerpts(13 years, 1 month ago)
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Lord Jones
My Lords, I support the instruments wholeheartedly. I thank the Minister for his succinct introduction, but I have several queries.
Paragraph 4, “Legislative Context”, of the helpful Explanatory Memorandum to the Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) Order 2011 states:
“appeals in non-adoption cases from the decisions of a district judge of the High Court and from a district judge of a county court would be to the Court of Appeal”.
Is the Minister able to define these differences? Is there a district judge of a magistrates’ court that would be separate from those instances on which I have asked for clarification?
Paragraph 8, “Consultation outcome”, of the Explanatory Memorandum states:
“A total of 45 responses were received to this consultation”.
I thought this query worthy of being raised because, when one considers the vast number of magistrates’ courts, 45 seems rather a small number. In the spirit of debate, one is perhaps entitled to query and to seek reassurance that the consultation process has been widespread, comprehensive and effective. I presume that, of those 45 responses, the Magistrates’ Association of England and Wales put in its views and was consulted. It is reasonable to ask what form of consultation existed with that very distinguished body. Included in the 45 responses, is it reasonable to assume that the association for magistrates' clerks and executives—whatever name it now has—made a major submission? I would be surprised if it did not. Perhaps answers can be given in these proceedings.