Procedure for Appointing Judges

Robert Neill Excerpts

Tuesday 8th October 2019 Westminster Hall

[Robert Neill (Bromley and Chislehurst) (Con)]

It is a pleasure to serve under your chairmanship, Mr Sharma.

I warmly congratulate the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) on securing this debate. I agreed with virtually every word he said, and I hope we can establish a consensus in Westminster Hall. Like him, I was heartened to hear the very clear statement of the Government’s position from the Lord Chancellor in Justice questions today. The hon. Gentleman is right to say that were we to embark on an American-style system of political selection for our Supreme Court or any other court, we would indeed be the poorer for it. Anyone who has seen the farrago that passes for confirmation hearings before the Senate in the United States—a process that diminishes the quality of law and, frankly, if anything, undermines the integrity of its judiciary—would never wish to see that in the United Kingdom. I think the debate is useful, because it perhaps enables us to put a hare that has been set running by one or two people firmly to rest, where it belongs and where it should stay.

[John Howell]

Would my hon. Friend make a distinction between the sort of confirmation hearings that we hold as members of the Select Committee on Justice and those in the United States? The ones we hold are very much part of the establishment and are a way of looking at the process, rather than being a way of generating political attacks on the individual.

[Robert Neill]

My hon. Friend is right. There are two misnomers in this sense. Confirmation, in the strict sense of the word, is not really what we are doing. We are scrutinising the integrity of the appointments process, which is an altogether different matter and entirely consistent with our tradition. In the same way, I wonder, were the legislation for the Supreme Court being drafted now, would we call it a Supreme Court, as opposed to a Court of Final Appeal? That has rather unfortunate implications, but that is really what it is. It is not quite like the Supreme Court in the United States, and the name sometimes gives people the wrong idea about its function.

The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East is absolutely right to say that in the recent cases that have attracted press attention, the courts—both at first instance the High Court or the Court of Session and then the Supreme Court—were asked to answer legal questions, and they gave legal answers. It is as simple as that. The judges did their job as lawyers. The attacks on our senior judiciary by some of the press are an outright disgrace and a shame upon this country. They should be called out for what they are: gutter journalism. Would to God that we had a press in this country that had anything like the quality and integrity of our judiciary. We would be the better place for it.

We are fortunate in the quality of our judiciary in all parts of the United Kingdom. We have a rigorous selection process. I am particularly aware of the work of the Judicial Appointments Commission in England and Wales, but I am cognisant of the like work that is done in Scotland and Northern Ireland by their appointments boards. I pay tribute to the work of Lord Kakkar and his colleagues on the Judicial Appointments Commission for England and Wales. The Justice Committee has had the opportunity to observe and scrutinise its work, and it is accountable to us and to Parliament for the process it engages in. Recently it published its report for the year just gone; it is a substantial document that clearly sets out the methodology by which it works and the consequences.

[Keith Vaz]

I am most grateful to the Chair of the Select Committee for giving way. May I declare my interest, which I forgot to do earlier, as a non-practising barrister? My wife is a part-time judge. I put this to the hon. Gentleman: with the system we have now—as opposed to the old system, where the Lord Chancellor made the decision himself, and it was only men who were Lord Chancellor in those days—what does he think about laypersons being able to appoint judges to the highest judicial offices when they themselves are not legally qualified? I think the system is working well, apart from the diversity angle, but what does he think, not only as Chair of the Committee but as a lawyer, about people who are not legally qualified being able to opine on giving posts to those who are the most legally qualified?

[Robert Neill]

The right hon. Gentleman reminds me to refer Members to my entries in the Register of Members’ Financial Interests. I think I would approach the matter he raises in this way: for transparency and because the judiciary needs the confidence not only of the profession but of the wider population and the society it serves, there is a proper role for a lay element in the selection process. The set-up we have in England and Wales with the Judicial Appointments Commission, which has lay members together with experienced practitioners and members of the judiciary, is probably a pretty fair balance as far as that is concerned.

[Keith Vaz]

I am most grateful to the hon. Gentleman for giving way for a second time and enabling me to tempt him a little further. The cut-off age has deprived us of some pretty distinguished judges. Does he think we should go that step further and raise the limit from 70 to 75? Can I tempt him down that road?

[Robert Neill]

The right hon. Gentleman tempts me and I fall into the trap willingly: I entirely agree with him. It is a great shame that we have seen the retirement recently of very distinguished and able judges simply by effluxion of time. Lord Thomas of Cwmgiedd, Sir Brian Leveson, Lady Hallett—I was delighted to see her gain a peerage—and others still have much to offer the bench. When we have real difficulty with the recruitment and retention of the highest quality judges, it seems absurd to me to set 70, which most of us would regard as the new 50—certainly those of us who are getting nearer to it—as the limit. We are cutting people off at the height of their professional powers. They have much more to offer and, interestingly, will very often be found, perfectly legitimately and properly, exercising their skills as arbitrators or mediators in commercial jurisdictions, when they would be very happy to continue exercising those skills in high public office as members of the judiciary.

I earnestly hope that one message the Minister takes back to the Lord Chancellor, who I know is apprised of the matter, is that if we have a legislative opportunity in the new Session, we should tack on a clause to increase the judicial retirement age to 75. That would be warmly welcomed. There is more that we need to do at the other end in terms of diversity. There have been improvements, but the right hon. Member for Leicester East (Keith Vaz) is right that we need in particular to improve black, Asian and minority ethnic representation in the judiciary. There are signs of improvement, but there is much more to do.

We have made improvements in relation to gender diversity, but ethnic diversity is something that we still need to work on, as well as perhaps social background more generally. As a member of the Bar, I recognise the potential value of recruiting solicitor judges in broadening the social background base of the profession. There are now some very good and able solicitor judges, and I hope that we can encourage that too.

In a short speech, I wanted to reinforce what the Lord Chancellor, who is admirably playing his role in defending the independence of the judiciary, has said, and to recognise the point fairly made by my hon. Friend the Member for Henley (John Howell) that the independence of the judiciary is not just important in terms of the checks and balances of our own constitution, which are critical, but wholly consistent with our international obligations. My hon. Friend serves as a distinguished member of the Parliamentary Assembly of the Council of Europe, which is something that I have had the pleasure of doing, as have you, Mr Sharma. We all know that Britain is looked up to by our colleagues because of the independence of our judiciary. How would we be able to exercise restraint on some of the emerging democracies in eastern and central Europe, where such independence is not always to be found, were we to do anything that diluted our judicial independence?

It is important that we maintain judicial independence to meet our obligations under article 6 of the European convention, never mind article 14 of the international covenant on civil and political rights and, of course, the UN basic principles on the independence of the judiciary. If we want Britain to remain a world leader in high esteem, maintaining the independence of the judiciary is critical. I hope that the debate will enable us to send a message to all at large that we recognise the checks and balances that are implicit in, and that underpin, our constitution, and that the separation of powers, the independence of the judiciary, and the acceptance of its independence by all, whether we agree with an individual decision or not, are crucial to our national wellbeing.

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[The Parliamentary Under-Secretary of State for Justice (Chris Philp)]

It is a great pleasure to serve under your chairmanship, Mr Sharma, in my first appearance as Minister in a Westminster Hall debate. I add my congratulations and thanks to those that other Members have offered to the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald), who secured this timely debate.

I will begin by directly addressing the hon. Gentleman’s question about the independence of the process we have adopted to appoint members of the judiciary. I and the Government as a whole fully support the position articulated by the Lord Chancellor, that judicial appointments should be wholly independent and separate from any interference by politicians of any kind, including any form of parliamentary oversight. Speakers in the debate, including, of course, the Chair of the Select Committee on Justice, my hon. Friend the Member for Bromley and Chislehurst (Robert Neill), have powerfully and eloquently made the case for that approach. If judges are to act impartially as interpreters of the law that Parliament enacts, they cannot be subject to any form of political interference, including at the moment of their appointment. I join the Lord Chancellor and other Members who have spoken in stating clearly that the American system of Supreme Court confirmation hearings, and even elections for some judicial positions, would be wholly inappropriate in this country. It would undermine the principle of judicial impartiality that has prevailed in all four corners of the United Kingdom for so long. I hope that straight away I can give Members reassurance on the critical question in the debate.

The Lord Chancellor has been extremely clear in his comments, both those he made by the modern means of communication, Twitter, in the immediate aftermath of the various judgments that we have discussed, and those he made on the opening of the English and Welsh legal year last Tuesday. I attended that event in Westminster Hall, a few feet from where we are, and in his opening remarks the Lord Chancellor made it clear to the entire assembled judiciary that he would stand in defence of their independence and impartiality. That message was heard loud and clear. As the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East has acknowledged, a couple of hours ago in the main Chamber, in response to a question from the Chair of the Justice Committee, the Lord Chancellor reiterated his and the Government’s unequivocal support for the principle of judicial independence and the independence of the judicial appointments process.

That process was established and put on a statutory footing in the Constitutional Reform Act 2005. As has been said, prior to that the Lord Chancellor exercised the power on advice from civil servants, but since the Act was passed the Judicial Appointments Commission has made recommendations, which the Lord Chancellor and the Lord Chief Justice and Senior President of Tribunals approve. However, the Judicial Appointments Commission is essentially the body that makes the recommendations and whose voice is decisive. I join the Chair of the Justice Committee in thanking Lord Kakkar, the commission chairman, for his work and that of his fellow commissioners—both lay and lawyers.

On at least two occasions in recent years the work of the Judicial Appointments Commission has been examined. A House of Lords Committee scrutinised the process in 2012, and during the passage of the Crime and Courts Act 2013 a great deal of work was done, looking at the process by which the judiciary are appointed. Recommendations were made and they were enacted in the 2013 Act, which amended the Constitutional Reform Act 2005. They included transferring responsibility for the selection of deputy High Court judges to the JAC. JAC lay commissioners were also allowed greater involvement in more senior judicial appointments above the High Court, including chairmanship of the panel to select the Lord Chief Justice and the President of the Supreme Court. The latter is done in rotation with their counterparts in Scotland and Northern Ireland, the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East and the hon. and learned Member for Edinburgh South West (Joanna Cherry) will be pleased to hear. The process under which the JAC currently operates is a good and effective one. It received significant scrutiny in 2012 and 2013 and I can confirm that the Government have no intention of altering the process.

The shadow Minister, the hon. Member for Bolton South East (Yasmin Qureshi), drew attention to the fact that England and Wales is an international jurisdiction of choice for many litigants whose cases do not directly relate to the United Kingdom. I know less about Scotland in that respect, and would be happy to hear about it. Such litigants choose to use our courts because of their reputation for impartiality, effectiveness and sound decision making. There could be no greater vote of confidence in our courts system than the fact that so many people from around the world choose it. I add my thanks to those that the hon. Lady expressed to all the judiciary, from the magistracy to the Supreme Court, for the work they do to uphold the rule of law and for being a beacon of impartiality and sound judgment around the world.

Some hon. Members raised the topic of the composition of the judiciary, including the retirement age. That is currently 70, but it was older in the past. The Chair of the Justice Committee drew attention to the fact that many capable members of the bench, at all levels, retire while still exercising their functions at a high level and with the benefit of many years’ experience. I saw that at my local Crown court in Croydon. The chairman of the bench there had retired at the age of 70 a year or so ago—in his prime, I would say. The Government and the Ministry of Justice have heard the message from several quarters this afternoon and have listened carefully. We are considering the comments carefully and I suspect that we will consult on the matter before too long.

[Robert Neill]

I welcome what the Minister says, which gives me the opportunity to pay a personal tribute to His Honour Judge Warwick McKinnon, an old professional and personal friend who retired as resident judge at Croydon. I am also glad that the Minister mentioned the magistracy. Constituents of mine who were fine, experienced bench chairs had to retire at 70 when they still had much to offer.

[Chris Philp]

I concur with both comments. I would also like to thank Judge McKinnon, who is a constituent of mine as well as a former chair of the bench. I agree that my comments on age apply as much to the magistracy as to the judiciary more generally—the court judges. As I said, I think my hon. Friend can look forward to a consultation on the topic before too long.

Several hon. Members raised the matter of the gender balance and ethnic composition of the bench, and I entirely understand why those points were raised. The proportion of newly appointed court judges from BME backgrounds is 11%, which compares to slightly over 15% of the population as a whole. Currently 7% of court judges and 11% of tribunal judges are, as the hon. Member for Bolton South East said, from BME backgrounds.

As for gender balance, as the hon. Lady said, 27% of High Court judges are female, and that figure rises to 32% across the courts more generally and 46% in tribunals. Also 56% of the magistracy are female and about 50% of court judges under 50 are female; that is an encouraging sign. Qualifying those remarks, I would say that we rightly expect more senior court judges to have decades of experience at the Bar, so appointments today reflect the Bar 30 or 40 years ago, when diversity was not what we would like, and there is a measure of unavoidable time lag. That does not mean that we should not take proactive and active steps—we should. We should encourage the JAC and work generally to improve diversity in the magistracy and the courts. The figures are moving in the right direction and improving, but I am sure we can do more. As a newly appointed Minister I will certainly consider what active steps can be taken in that area.

I am grateful for the opportunity to respond to this debate, to the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East for securing it, and to other hon. Members for attending. Those include the now very famous hon. and learned Member for Edinburgh South West—

Oral Answers to Questions

Robert Neill Excerpts

Tuesday 8th October 2019 Commons Chamber

[Robert Buckland]

I think that everybody—whichever part of Government or our country they might come from—will probably be aware of my public pronouncements about this matter. I will keep saying it again and again and again, as long as it is necessary to do so.

[Robert Neill (Bromley and Chislehurst) (Con)]

Consistent with the Lord Chancellor’s speech at the opening of legal year, will he confirm that there is no place for political involvement in the appointment of judges and no question but that the rulings of the courts must be observed by all?

[Robert Buckland]

I am more than happy to confirm all those points, made so ably by the Chair of the Justice Committee.

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[Mr Speaker]

Might I reasonably hope that the Chair of the Justice Select Committee can ask a single-sentence question?

[Robert Neill (Bromley and Chislehurst) (Con)]

Will the Lord Chancellor confirm that the Government have no plans to change the right to trial by jury in serious criminal cases?

[Robert Buckland]

I am happy to confirm that.

Ministry of Justice Spending

Robert Neill Excerpts

Thursday 3rd October 2019 Commons Chamber

[Robert Neill (Bromley and Chislehurst) (Con)]

I beg to move,

That this House has considered the spending of the Ministry of Justice.

It is a pleasure to open this debate. I thank the Backbench Business Committee for facilitating it, and my colleagues on the Justice Select Committee who are in attendance today. May I welcome the Under-Secretary of State for Justice, my hon. Friend the Member for Croydon South (Chris Philp), to his place on the Front Bench for the first time? It was good to see him at the opening of the legal year, although I hope there was not too much information overload from the practitioners he met. He is a fairly close London MP neighbour of mine, as well as a good friend, and I hope that this is the start of a long career on the Treasury Bench for him.

The Ministry of Justice has a portfolio that is varied, frequently overlooked and frequently under-appreciated. It employs—directly or indirectly—some immensely dedicated, talented and brave people, who frequently do not get the credit they deserve, but the work that it does is fundamental to any civilised society. The tests of a civilised society include how we deal with those who break the rules and offend; how we try constructively to prevent that; how we protect the public from further harm; and how, whenever possible, we seek to rehabilitate and turn around those who have transgressed, to make their life better.

That key part of the Ministry’s work largely relates to the criminal justice system, but the Ministry also deals with another part of the justice system and of our court system: access to justice in matters of civil and family litigation, and the myriad types of cases that go through the tribunals. All those are a key part of our social infrastructure, too. There is no point having rights if we cannot access them. Providing the means of accessing those rights, and of seeking redress when wrong is done, is equally important. That is sometimes overlooked a little in these debates.

The difficulty that the Ministry and all Ministers contend with is that it is a downstream Department: it inherits the consequences of things that started to go wrong much earlier in an individual’s life or career, and of things that went wrong under the remit of agencies outside the control of the Ministry. It therefore has greater pressures on it, and in many ways it cannot control those pressures.

Also, the Ministry is an unprotected Department. For a number of years, our Select Committee’s concern has been that the Department runs the risk of being in a near-perfect storm in that regard. I therefore welcome the Chancellor’s statement only the other week, which added significant sums of money back into the justice system. That is much needed. As we are able to open up spending a little in a careful and targeted way in areas where it can make a difference, we will bang the drum loudly for the justice system getting its fair share of that. I hope it will be recognised that spending should not be used as a sticking plaster: there should be opportunity for significant reform so that we spend the money more effectively and more cleverly. The most obvious example of that is the situation in our prisons.

On Monday nights when we are not in a packed Chamber, as we have been for the past couple of weeks, Members will I hope have had the opportunity to watch the Channel 4 documentary “Crime and Punishment”; if they have not, they can find it on Catch Up. It is a profoundly disturbing but very effective documentary by highly experienced journalists. What it found did not come as a surprise to any of us on the Select Committee, who have visited prisons over a number of years and seen the conditions there. The documentary focuses on HMP Winchester, which ended up in special measures quite early on in the series.

In the documentary, we see brave, dedicated prison officers struggling in almost impossible circumstances, in a crumbling Victorian building. They try to deal with people with a background of serious issues—violence; addiction or abuse of drugs, particularly new psychoactive substances; and real issues of mental ill health and self-harm. These are people who have committed crimes and are a threat to themselves as well as to the staff who are tasked by the state with keeping them in custody. They deserve better. We have a real concern that spend at the moment does not enable prisons to offer the safe environment that they ought to, as a basic. The previous Minister with responsibility for prisons, the right hon. Member for Penrith and The Border (Rory Stewart), very much recognised that, as does the current one, my hon. and learned Friend the Member for South East Cambridgeshire (Lucy Frazer), and the Secretary of State.

We need to get out of the vicious circle whereby we imprison more people than any other country in western Europe, but also have some of the worst reoffending rates. We are unable to turn lives around as much as we should, and, as a result, reoffending costs the economy about £18.1 billion, through direct economic, and indirect social and then economic, costs; we ought not to forget that. That is not a wise use of money. We need to get things safe, first of all.

I am glad to see that money has been put into the recruitment of more prison officers, which is critical. Of course, we must remember that getting experienced prison officers takes some time, and one of the really worrying things in the documentary was the number of dedicated young people who came into the service—a young prison officer called Ellie has been referred to quite a lot on Twitter—who do their level best and then leave. One young lad gets “potted” on more than one occasion, which means that the contents of the slopping-out pot—faeces and urine—are thrown over him. He is probably getting paid less than a barista in some parts of the south-east. What concerned me was that there did not even appear to be a proper exit interview for those people. We need a much more systematic strategy, as our Select Committee has suggested, for not only the recruitment but the retention of prison staff and experienced people. Money is part of that, but joining things up is critical.

While there has been a significant increase in the resource departmental expenditure limit budget, we also need significant capital spending. The estate has deteriorated appallingly, and the prison maintenance backlog now runs to many hundreds of millions of pounds. That cannot be sustainable, so I hope that the Government will, in addition to this year’s initial money, set out a greater programme both for the human side of prison assets and for the estate side. Many of us regret that the disposal programme has stalled somewhat, and that also needs to be looked at again.

I understand the reasons behind the Government’s desire to spend more money on catching criminals, recruiting more police officers and recruiting more staff in the justice system, but all those things flow down. The more we spend on policing, the more criminals we catch, which may not be a bad thing in itself, but that will have a knock-on effect on the court system that has to try those criminals, and then in due course on the probation service, which has suffered difficulties over recent years. I welcome the bold, radical changes that the previous Justice Secretary, the right hon. Member for South West Hertfordshire (Mr Gauke), initiated in grasping the nettle of some failed contracts, and I welcome the changes to the prisons themselves. The money that has been offered this year is worth while, but it needs to be part of a much more holistic plan. The money is unprotected, so we have seen a major reduction since 2010 to about 40% of the Department’s budget. That is not sustainable, and it must start growing back as the economic circumstances permit, thanks to the success of our coming out of the economic mess that we inherited.

As for the courts budget, Her Majesty’s Courts and Tribunals Service has virtually staked the house on an ambitious programme of modernisation and on the introduction of technology. That is not a bad or undesirable thing in and of itself, but I am worried that too much reliance is being placed on the introduction of technology, because it is ambitious and, frankly, Governments of all shades do not have the best of track records on grand technological projects. I do not want it to be seen as the silver bullet, because it does not deal with the question of physical access to courts. Some 256 court facilities have closed over recent years. In some cases, that is understandable and legitimate, but we have to think very hard about how that enables vulnerable court users in particular to get to court.

Again, this is not just about criminals, victims and witnesses, because it applies to the civil side, where people may be party to stressful family litigation, for example, and may be going through bad times in their lives. For someone who has to go to court to deal with a possession hearing because they have got into debt and are about to lose their home, having actual physical access is important to them. We also must ensure that we have decent facilities where the hearing can take place.

As you and others may know, Madam Deputy Speaker, I practised for some 25-plus years in the criminal courts in the south-east of England. When I have visited the courts that I knew and was fond of in those days, I have found pretty shocking conditions. For years—literally years—a corridor in the judge’s area of one of our major London Crown courts had a bucket to catch the drips from the ceiling. In the robing room at Southwark, the wall had not been repainted for so long that the telephone number scrawled up by the telephone—when people used those rather than mobiles—was still an old-fashioned number from before we had 0207 and 0208. That shows the lack of investment in our courts.

We cannot expect to recruit quality people to serve in our judiciary if they have to work in those conditions. A number of surveys have indicated concern about judicial morale. The principal issue is that judges often do not feel valued, and the working conditions are part of that. Neither is it fair to expect practitioners to be able to advise people properly if they do not have proper facilities to have a conference and instead have to try to find a corner in what might be a crowded room. We need much more significant investment in the day-to-day bricks and mortar of our Courts Service. The National Audit Office expressed concerns about the operation of the reform programme and noted the concerns about the growing maintenance backlog. We need to look at investment. We are prepared—I am glad to say that this is my party’s slogan—to “invest, invest, invest”. Investment in the structure and fabric of the system is massively important.

There are also places where a small amount of money would make a real difference. For example—this is the final thing I will say about courts—I welcome the work by the Criminal Bar Association to expose rather shocking statistics about the underuse of the court facilities we have. I used to practise quite a lot at places such as Chelmsford and Basildon. As of two days ago, only two out of five courts at Basildon, and only three out of six at Chelmsford, were sitting. The same applied not far away at St Albans, where two out of six courts were sitting. This is not the summer recess; this is the autumn, when our courts are normally at their busiest. At the same time, cases are being listed for trial in 2020 in relation to allegations from 2018. That is not just. There is truth in the old saying that justice delayed is justice denied. It is not fair on defendants or witnesses.

I regret to say that that is happening because of the arbitrary measures taken by Her Majesty’s Courts and Tribunals Service to limit the number of sitting days. We used to make up the slack in sitting days by having recorders—part-time, fee-paid judges—come and sit. Now, many recorders are not being asked to sit even the minimum number of days they are required to sit under their contracts. To my mind, that is pretty serious mismanagement by Her Majesty’s Courts and Tribunals Service, and I suspect our Committee may wish to look at that further. That cannot be right. That is not big money; it is just about clever use of the assets and resources we already have.

There are small things that would make a difference in other areas. Jurors are expected to come to court. A constituent of mine—one of my councillors—did jury service recently. The allowances we pay to jurors have not been updated in years. They actually end up out of pocket by the time they have forked out for their lunches. We cannot expect people to do a public duty and treat them in that way. That small change in a budget that, after all, is only 1% of total spend would make a difference to the quality of the outcome. The same applies to magistrates’ expenses. Magistrates are sometimes deterred from sitting in court centres distant from their homes because of the poor rates of expenses they get.

Putting more money into the legal aid system to ensure early access to legal advice in criminal, civil and family matters would not be a great cost in the overall scheme of things either. The Government have already shown a willingness to put more into the system. I urge them to continue with that, because access to legal aid often leads to the swifter resolution of cases: represented defendants’ cases are dealt with more swiftly, sounder advice is given, unmeritorious claims are not pursued, and meritorious ones are often resolved sooner. That would be investment to save in the long term.

I have given an overview, and I know other Members of the Committee will touch on general issues. Although this often is not the politically sexiest of topics, it is very important; it is as fundamental a part of our social services and our social fabric as anything else. That is why this chance to debate it and to hear the Minister’s response to some of the issues we raise is most welcome.

[Several hon. Members rose—]

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[Robert Neill]

This has been a valuable debate. I thank all Members who participated in it. Some powerful messages have been sent. I recognise the Minister’s good intentions and good will on this topic, and I know he will take those messages away. I hope they are taken away beyond the House too, because we need a better public debate about the importance of our justice system and how it is integral to the way we see ourselves as a society. I hope that, in the future, that makes the climate and the task easier for those who want to see funding used in the right way—effectively and efficiently—and given the right priorities. I welcome the Minister to his role on his debut at the Dispatch Box. We have probably given him a fair bit to think about, and I am sure he knows that it comes with the health warning that we are likely to return to these topics before too long.

Question put and agreed to.

Resolved,

That this House has considered the spending of the Ministry of Justice.

Domestic Abuse Bill

Robert Neill Excerpts

Wednesday 2nd October 2019 Commons Chamber

[Robert Buckland]

I give way to the Chair of the Select Committee on Justice.

[Robert Neill (Bromley and Chislehurst) (Con)]

I thank my right hon. and learned Friend for giving way. I, too, have seen examples like the one that he quoted, and I particularly welcome the provisions in clause 75 relating to the prohibition of cross-examination by the abusive party. As the Bill goes forward, will he and his colleagues particularly bear in mind the legitimate improvements proposed by the Law Society and others in this field? They include a proposal for the proper remuneration of, and a proper system for instructing, the representatives instructed to carry out the cross-examination, in the interests of justice. Will he also consider whether examination in chief could be included in certain circumstances—for example, when the alleged abusive party seeks to call the child of the relationship in support of their case? That, too, can cause real distress.

[Robert Buckland]

My hon. Friend is absolutely right to talk about his experience, the issues that we can tease out in Committee and how far we need to go.

Courts and Tribunals (Online Procedure) Bill [Lords]

Robert Neill Excerpts

2nd reading: House of Commons & Money resolution: House of Commons
Tuesday 16th July 2019 Commons Chamber

[Robert Neill (Bromley and Chislehurst) (Con)]

I welcome the principle behind the Bill. In setting out the enabling nature of the measure, will the Minister bear in mind that there is an underlying principle, consistent with the Briggs report, which the Lord Chief Justice, Lord Burnett, made clear in giving evidence to the Justice Committee? It is that while professional users will be obliged to use the online procedure, it is not the intention that litigants in person will be. Lord Burnett’s evidence clearly was that a paper alternative will be available as a safeguard for litigants in person. That is an important measure for vulnerable court users. Will the Minister confirm that?

[Paul Maynard]

My hon. Friend makes an important point with which I wholeheartedly agree. I always agree with the Lord Chief Justice in everything he says and does, and I would never dream of disagreeing with him. The fact that an online process is available makes it in no way obligatory for people to use it. There is still a case for physical hearings and very much still a case that people who wish to use a paper system should be able to do so.

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[Robert Neill (Bromley and Chislehurst) (Con)]

I welcome the thrust of the Bill, which is an important, if modest, piece of legislation. The Minister is right to say that it is an enabling Bill. It is welcomed by the judiciary and that should weigh heavily with us, because this legislation is necessary to put in place the rule committee, which, in turn, is required to set up the online procedure in a practical form.

It is worth remembering that this has been talked about and largely initiated by the judiciary from a very early stage. The Briggs report in 2016 by Sir Michael Briggs, as he was then—he is now Lord Briggs of Westbourne—was the first important step in that and largely dealt with online civil money claims. Sir Michael made it very clear to me and many others he spoke to that it was a source of frustration that that sensible and practical measure had been delayed for so long. Since then, that was expanded on by the White Paper in 2016—the joint vision that was set out on transforming our justice system. Although the Opposition have made some criticisms of the Bill, it is worth remembering precisely that that was a joint vision, endorsed by the senior judiciary in England and Wales every bit as much as by the Government. It is an unusual example in our constitution of joint ownership of a project.

The Justice Committee took evidence from the Lord Chief Justice, the Master of the Rolls and the Senior President of Tribunals only last Wednesday. We had a detailed session with them, which was a very valuable insight into this issue. It was clear that they strongly endorse and welcome the principle of the programme and that they see it as one—if it is delivered correctly—that can enhance access to justice from where we are at the moment. Our Committee was impressed with that evidence. That does not mean that questions will not need to be answered in the Public Bill Committee and, in particular, as the rules are drawn up. I understand the points from the Opposition Front Benchers and elsewhere about the technical nature of how the rule committee is to be constructed, but the overall thrust of the proposal is clearly welcome.

[Wera Hobhouse]

Does the hon. Gentleman agree that the diversity of the online procedure rule committee should be looked at, so that we make the courts as diverse as they can be?

[Robert Neill]

That certainly can be looked at as the Bill proceeds in Committee and, no doubt, when the online procedure rule committee is adopted. It is worth looking at the transcript of the evidence from the three most senior members of the judiciary—I think that was the first time that they have appeared jointly before any parliamentary Committee. There is, in fact, a far greater wealth of diversity of views and experience from our senior judiciary and the members of the judiciary who serve on these tribunals than some commentators give credit for. I think that there is a real understanding from the judiciary, but that does not mean that it is not possible to supplement that. I would not want to think that simply because there are three members of the judiciary, as well as other members, that is not in itself enough. They are very alert to the issues that people face, but I think we can think about broadening this.

I have sympathy with the shadow Minister’s point about perhaps making it easier to expand the committee to include practitioners from more than one jurisdiction. In the past, rules committees have often dealt with discrete areas—High Court rules, county court rules and criminal procedure rules. We are dealing with a multiplicity of jurisdictions, particularly in relation to the tribunals, and it is unlikely that we will find one or two practitioners who have the breadth of practical experience in all those different types of jurisdictions. The Law Society refers to the advisability or usefulness of including a member of the Chartered Institute of Legal Executives. That is a sensible point, because a lot of the interlocutory work—the pre-hearing work—will be done by legal executives rather than necessarily by solicitors or barristers, so I hope that the Minister will keep an open mind on that as we go forward.

My other message to the Minister is: please learn the lessons of transforming rehabilitation, which had worthy objectives and could have succeeded in joining up probation and prison in a better way, but it was rushed. It was not piloted properly and was taken at too great a speed. There is an argument that considerations of finance and expediency were allowed to weigh more heavily in the outworking of the process than questions of access to justice and outcomes, and for that reason it did not achieve either of those desired objectives.

I think that the current ministerial team have learned those lessons—the Lord Chancellor has made that very clear—and we have the opportunity to do this in a different, better way. I am confident that the Minister and his colleagues will do it differently, but it is worth bearing in mind that back in 2016, Lord Briggs said that

“it would be entirely unsatisfactory…to make recourse to the [Online Court] compulsory until a proven structure of assistance for those who need it was designed, tested and put into full operation”.

That still holds good. Nothing in the Bill prevents that being done, but it is a question of the political will and the resource being put into it by the Government to achieve that.

Subject to that being done, it seemed to us from the evidence that we received that the House ought to support this modest measure in its current form. That does not mean that there are not broader issues that need to be looked at on the advice that people using our legal system get and the way they can access justice, not only in a nominal sense but practically, through informed decisions about how they use the system. A great deal of work is being done with the Ministry of Justice and the senior judiciary through the various judicial and practitioner working groups that have been set up, but it is really important that we stress the need to get this right, not rush and get absolutely everything nailed in place before we move on. Obviously, it is difficult to rectify injustice, which can include a potential litigant not bringing a meritorious claim, as well as people being led into bringing unmeritorious claims. It is important to get that right. Done properly, this could be a great advantage and in itself is worthwhile, but there is a good deal of devil in the detail that will come further down the track.

--- Later in debate ---

[Paul Maynard]

With the leave of the House, I will do my best to respond to the points raised as speedily as I can, because I know that many are now gathering for the next debate. It is interesting that we started off the debate with a bit of a spiel about ideology and cuts. I found that intriguing, given that we are talking about the £1 billion Government investment in our Courts and Tribunals Service and its modernisation. I am grateful to the Chairman of the Select Committee, my hon. Friend the Member for Bromley and Chislehurst (Robert Neill), for reminding everyone in the House that these proposals have the support of our senior judiciary.

A number of concerns were raised about what was termed digitisation by default. Let me make it clear that innovation is crucial to delivering modernisation, but we should never introduce more complexity or technological innovation merely because we can. We should do so because that innovation satisfies our requirements for proportionality and accessibility within the justice system. We always need to work with the grain of human nature, as our law is essentially a human contract in and of itself. Changes should never result in less justice or in people being incentivised not to behave in their own best interests. I have said at least twice in the debate already that the alternative methods must be protected at all times. People can seek telephone advice, for example. We are also piloting face-to-face advice in at least 25 areas. At any point, people can opt out of the online procedure, and the paper-based alternative will always be available. Either side in a case can opt out of an online procedure to ensure that it does not occur online.

Concerns were also expressed about piloting. I hear the point that there is no need to rush, and we are starting by focusing on civil claims under £25,000 being conducted online. Evaluation is important, and I have made it clear that I do not want Her Majesty’s Courts and Tribunals Service to mark its own homework. There will be an independent evaluation, and the panel has already met. It will have academic input in particular to look at the outcomes in relation to access to justice and the cost to users.

The membership of the committee was raised on a number of occasions. Let me be clear that the committee needs to be sufficiently agile to deal with a changing environment in which numerous online procedures will appear from time to time. Nothing in the Bill prevents the Lord Chancellor from utilising clause 7 to expand the membership of the committee when he sees fit to do so. At the same time, the committee can at any point choose to set up sub-committees or to bring in any wider expertise that it needs to draw up the procedures that it thinks appropriate.

[Robert Neill]

I believe that that will be welcomed by a number of practitioners. Can the Minister ensure that, in practice, no bureaucratic impediments will be put in the way of that happening? This intervention also gives me the chance to draw Members’ attention to my entry in the Register of Members’ Financial Interests, which I omitted to do in my speech. I apologise for that, Madam Deputy Speaker. Doing it this way is quicker than making a point of order.

[Paul Maynard]

That is an innovative way to facilitate that speediness.

The shadow Minister, the hon. Member for Bolton South East (Yasmin Qureshi), mentioned parliamentary scrutiny. We are keen to ensure that accountability is maintained, and I continue to believe that it is right for these powers to reside with the Lord Chancellor, who is directly accountable to Parliament, whereas the committee is not. We are not trying to shift the constitutional balance within the Bill. We are looking to maintain that balance, which is why we have sought to ensure that the Bill mirrors the long-standing arrangements for the existing rule committees.

The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald), who spoke for the Scottish National party, rightly raised Scottish representation, and I am very sympathetic to the points that he made. Obviously, I am as keen as he is to devolve tribunals. Not many Ministers stand at this Dispatch Box encouraging devolution, but in this case I am in concurrence with him, to use the word of the day. I am sure that we will continue to discuss that matter, but I hear the point he made about Scottish representation. He also raised the intriguing question why we have only one committee for online procedures, and he asked why the other three committees were not given the task of setting up their own online procedure rules. Essentially, the answer to that lies in the fact that we need the procedure rules to be the same across each of the civil, family and tribunal divisions of our courts. The decision was taken, with the support of the judiciary, to go down that route.

The hon. Gentleman also rightly raised the point that not every type of case is suitable for online procedures. He cited the welfare of children, and that is a good example. We will not bring anything online without seeking the concurrence of the Lord Chief Justice and without laying an statutory instrument that will be debated in both Houses, but I hear what he says. There are many types of cases where physical hearings are the most appropriate path to go down, and I certainly agree with him on that.

On that basis, I commend the Bill to the House.

Question put and agreed to.

Bill accordingly read a Second time.

Courts and Tribunals (Online Procedure) Bill [Lords] (Programme)

Motion made, and Question put forthwith (Standing Order No. 83A(7)),

That the following provisions shall apply to the Courts and Tribunals (Online Procedure) Bill [Lords]:

Committal

(1) The Bill shall be committed to a Public Bill Committee.

Proceedings in Public Bill Committee

(2) Proceedings in the Public Bill Committee shall (so far as not previously concluded) be brought to a conclusion on Thursday 25 July 2019.

(3) The Public Bill Committee shall have leave to sit twice on the first day on which it meets.

Proceedings on Consideration and up to and including Third Reading

(4) Proceedings on Consideration and any proceedings in legislative grand committee shall (so far as not previously concluded) be brought to a conclusion one hour before the moment of interruption on the day on which proceedings on Consideration are commenced.

(5) Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion at the moment of interruption on that day.

(6) Standing Order No. 83B (Programming committees) shall not apply to proceedings on Consideration and up to and including Third Reading.

Other proceedings

(7) Any other proceedings on the Bill may be programmed.—(Matt Warman.)

Question agreed to.

Courts and Tribunals (Online Procedure) Bill [Lords] (Money)

Queen’s recommendation signified.

Motion made, and Question put forthwith (Standing Order No. 52(1)(a)),

That, for the purposes of any Act resulting from the Courts and Tribunals (Online Procedure) Bill [Lords], it is expedient to authorise the payment out of money provided by Parliament of any expenditure incurred under or by virtue of the Act by the Lord Chancellor.—(Matt Warman.)

Question agreed to.

Oral Answers to Questions

Robert Neill Excerpts

Tuesday 9th July 2019 Commons Chamber

[Mr Gauke]

“Shortly” means “shortly”. [Laughter.] I am not going to elaborate on that, but I will say that in considering sentencing reform it is necessary also to look more broadly at the probation system. That is why I recently announced proposals to reform probation that will inform offender management and strengthen confidence in probation. However, I advise the hon. Gentleman to watch this space.

[Robert Neill (Bromley and Chislehurst) (Con)]

I welcome the link that my right hon. Friend has made between sentencing and probation. Does he agree that one of the compelling arguments in favour of reform is that the vast majority of people who are given short sentences tend to be repeat petty offenders whose behaviour is often driven by a number of factors such as drug addiction, debt, alcoholism and mental health issues—which are not and cannot best be treated in a custodial setting—and that we ought to invest far more in treating those people effectively outside, in the interests of public protection as much as anything else?

[Mr Gauke]

I entirely agree with the Chairman of the Justice Committee. If we put people inside for a short time—for instance, prolific shoplifters—we want to address that criminality, but all that we actually do is make them more likely to reoffend and continue to be prolific criminals. Evidence shows that when it comes to reoffending rates, community sentences work better, but we need to do everything we can to ensure that they can be improved.

--- Later in debate ---

[Mr Gauke]

I thank the hon. Gentleman for his kind words. Let me look at that particular issue and, if I may, I will write to him.

[Robert Neill (Bromley and Chislehurst) (Con)]

In his speech at the Mansion House last week, the Secretary of State rightly and powerfully paid tribute to the integrity and value of an independent judiciary to this country. Will he make it possible for that speech to be disseminated to all Members of this House, so that everyone here recognises the responsibility that sits upon us to treat the judiciary with respect and support its independence from political or other attacks at all times?

[Mr Gauke]

I thank my hon. Friend for those remarks. I believe it is very important to this country that we respect the independence of the judiciary, and the rule of law is at the heart of what we are about as a country. I can tell him that my speech is available on the gov.uk website—I hope that this announcement will not result in that website crashing, but I assure the House that it can be found there.

Divorce, Dissolution and Separation Bill

Robert Neill Excerpts

2nd reading: House of Commons & Money resolution: House of Commons & Programme motion: House of Commons
Tuesday 25th June 2019 Commons Chamber

[Mr Gauke]

My right hon. Friend makes a good point, and it is worth bearing in mind that, where children are involved, it is all the more important that we minimise the conflict. The current requirement incentivises that sense of attribution of fault, which does nothing to ensure that the relationship between the two parents can be as strong as possible, and it is the children who lose out in those circumstances.

[Robert Neill (Bromley and Chislehurst) (Con)]

I have thought about this with care. Obviously, to practising Christians and those of other faiths, the end of a marriage is not to be taken lightly, but I am glad the Secretary of State has accepted the proposition put by my right hon. Friend the Member for New Forest West (Sir Desmond Swayne) that causing more conflict at the end does not help.

Will the Secretary of State confirm that in no other respects any of the protections for often the more vulnerable party to a marriage, the woman, will be affected by this measure, particularly in relation to financial arrangements and the custody of children, and that it simply removes the evidentiary requirement for a fault to be attributed to one side or the other?

[Mr Gauke]

My hon. Friend, the Chair of the Select Committee on Justice, is right. This is about the attribution of blame and fault, and no more than that. Indeed, the protections in place for the vulnerable party remain just as they are. It is often the vulnerable party who suffers most from the need to attribute blame, because that can be difficult. In the context of domestic abuse, for example, it is striking how the likes of Women’s Aid have been very supportive of these measures because of their concern that there might be women trapped in marriages who do not want to attribute blame because they feel that may result in a further deterioration in the relationship.

The truth is that when a marriage or indeed a civil partnership has sadly broken down and is beyond repair, it stops benefiting society and the people involved. At worst, continuing in a legal relationship that is no longer functioning can be destructive to families, and the law ought to deal with the reality of marriage breakdown as constructively as possible. The current law does not do that. The requirements of the divorce process at present can often give rise to a confrontational position, even if the decision to divorce is mutual. The incentive to make allegations at the outset, to avoid otherwise waiting for two years’ separation, becomes ingrained. Divorce is traumatic, and children are inevitably affected when their parents separate—that goes without saying. I agree that marriage has long proved its worth for bringing up children, but the reality is that not all marriages last. The law should deal with that reality as sensibly as it can. When a marriage has failed, we have to take a serious look at how to reduce conflict for everyone involved, not least for children. Research shows that it is conflict between the parents that has been linked to greater social and behavioural problems among children, rather than necessarily the separation and divorce itself.

--- Later in debate ---

[Robert Neill (Bromley and Chislehurst) (Con)]

Thank you, Mr Speaker—Mr Deputy Speaker. That was, perhaps, a Freudian slip.

[Mr Deputy Speaker (Sir Lindsay Hoyle)]

Move on!

[Robert Neill]

It is a pleasure, as always, to follow my hon. Friend the Member for Congleton (Fiona Bruce). She made a heartfelt speech. I know that this is a matter on which she feels very strongly. It is an issue to which I myself have given considerable thought. It is sensitive and important, particularly for those who have a faith and regard marriage as a sacrament as well as a legal contract.

I look at this issue from the point of view of someone who happens to be a practising Anglican, as someone who has for 25 or 30 years been a practising lawyer—not predominantly in the field of family law, although I did practise family law to some degree in my earlier days—as someone who served as a councillor in a local authority, and as someone who has the honour of serving as Chair of the Justice Committee. I have had the chance to see the issue from a number of points of view and I have come to a different conclusion from my hon. Friend. I do not say that with any disrespect for the strength or genuineness of her feeling; I am just persuaded, on balance, that the Secretary of State is right and that the evidence points quite clearly to this being an appropriate and necessary reform.

As Chair of the Justice Committee, I have had the opportunity to engage with leading members of the judiciary, particularly, in this context, with those of the family division. It is the overwhelming view of family practitioners, including solicitors, barristers and senior judges, that the current arrangements, which require fault to be used as a proof of irretrievable breakdown, do not work satisfactorily and do not achieve what is ultimately the necessary objective of enabling people whose marriage has sadly broken down irretrievably—I suspect that none of us want that to happen when we embark on a marriage, but it does happen in some cases—to leave their marriage with a measure of dignity and to do so in a way that enables the important issue of financial fairness to be resolved, and, in the case of children, to enable civilised and caring arrangements to be made for them and their children. That, ultimately, must be the chief and principal objective.

[Julian Knight]

My hon. Friend gets to the heart of the matter: the fault aspect. What persuades me is that the requirement to assign fault can itself be a polluting element within the divorce or separation process. It may actually make what could be a more amicable separation more poisonous and more difficult when it comes to discussing other matters such as finance.

[Robert Neill]

I agree and that was certainly my experience as a lawyer. That is the experience of the majority of practitioners and the majority of the judiciary to whom I have spoken. When I started my practice at the Bar, the Divorce Reform Act 1969 was comparatively recent and the law was developing. There was an issue then and it has remained a constant. There is an underlying risk of tension and antagonism in the course of family proceedings, which spill on from the divorce itself into the proceedings thereafter, which, for the future, are very often much more important. I very much take on board the point my hon. Friend the Member for Congleton makes about the value to society of stable marriages—indeed, the value to society of stable relationships of any kind. If I thought that the Bill would seriously harm that, I would take a different view towards it, but I do not think that and the evidence does not suggest that that is the case either.

[Ian C. Lucas (Wrexham) (Lab)]

I strongly support the thrust of the hon. Gentleman’s argument and I strongly support the Bill. I am very sorry I was not here for the earlier speeches. All the representations I have received from the legal profession support the Bill. I was a practising solicitor, but I did not do matrimonial law. My daughter does and she strongly supports the Bill. I think it is overdue and I will be strongly supporting it today.

[Robert Neill]

I entirely agree with the hon. Gentleman. I have to say that from my own limited experience and from speaking to those who continue to practise, no area of law is perhaps more sensitive or more emotionally draining—not just for the parties, but for the practitioners who seek to advise them and the judiciary who sit on these cases—than family work. It is inevitably stressful and we ought to have a system that reduces stress, rather than makes it greater.

The evidence from other comparators also shows that the Bill is an advantage to the overall social objective and that some concerns are not justified. It is suggested that the Bill imports into law a concept of unilateral no-fault divorce. That is not strictly correct. It is currently the case that after two years of separation with consent or five years without consent, divorce can be granted without any allegation of misconduct. The truth is, as I will refer to later and as Sir Paul Coleridge, the chairman of the Marriage Foundation and a former High Court judge of the family division himself observed, that that does not keep up to date with the way people now change and move on with their lives. It certainly does not reflect my experience, and the experience of most people, that the divorce petition comes at the end of the breakdown of a relationship, not the beginning. Time and again, I have seen that with people who come to my surgery, with court cases I have been involved in or observed, and, as most of us have, with friends and acquaintances—people we know—where it has been the end of a sad and painful process that ultimately leads to the conclusion that the marriage is no longer sustainable and they want to move on. We ought to help them to be able to do that. My experience has certainly been that divorce is not undertaken lightly and I think the Secretary of State is right to recognise that.

[Stephen Pound (Ealing North) (Lab)]

Does the hon. Gentleman feel that the sacrament of marriage is made stronger or weaker by the passing of the Bill?

[Robert Neill]

As an Anglo-Catholic, I take the hon. Gentleman’s point about the sacrament strongly, but I do not believe, in societal terms, that it makes very much difference. In truth, many marriages are not in entered into in a religious context. The weight that is placed on the sacrament, even with those of faith, may vary. Perhaps it should not, but I think that is the reality. For those for whom it is important, it will be a difficult personal decision, as it has been for friends of mine for whom the end of their marriage was very difficult indeed. None the less, they thought it was appropriate to recognise what had happened and to make a break. It is a profound point for those of faith, but I do not think it is an argument against the Bill, as I think the hon. Gentleman agrees.

We also have to bear in mind the suggestion that there might be manipulation of a vulnerable party. I take that seriously and it has been raised by a couple of constituents of mine who think carefully and closely about these matters. However, my experience and all the evidence seem to suggest that the greatest risk of manipulation and pressure being put on a vulnerable party is during the period when the marriage has broken down and people have to wait perhaps for two or five years, especially if, as hon. Members have observed, they are obliged for financial or childcare reasons—or a mixture of both—to continue to live under the same roof. That is the point at which the vulnerable party is often most at risk.

It is perhaps significant that the study, “Finding Fault?”, points out that, at the moment, the system is to some degree “manipulated” by fault being used as a ground to speed up divorce. It is not that the marriage has not broken down, but that it is quicker for someone to get divorced if they allege fault than if they wait two or five years. That can have perverse consequences: people have to say hurtful things against the party with whom they are still living and attempting to bring up their children, so that they can speed up the divorce that they both know is inevitable. I cannot see how that benefits society or, for those of us to whom this is important, a Christian ethos for that family.

[Julian Knight]

My hon. Friend is absolutely correct and makes another persuasive point, because it means that a divorce is based on a lie. Frankly, we should not have any lies in a legal process. Years ago, I remember reading Evelyn Waugh’s “A Handful of Dust”, in which a character has to abscond to Brighton, seemingly with a woman, to provide the grounds for a divorce. This stuff is from 40 or 50 years ago and is nonsense. We need a bit more honesty in the process.

[Robert Neill]

I take my hon. Friend’s point. My pupil master, when I started at the Bar, had practised in divorce work under precisely those arrangements prior to the 1969 Act. They used to get what was called “ordinary hotel evidence”, which was an affidavit from the chambermaid or the waiter, who happened to have taken breakfast in bed to a couple. That was a pretty demeaning way of having to go through a legal process and it was rightly got rid of, but at the time, people genuinely thought that that might undermine marriage. It did not, of course, but that is the sort of thing that we have all recognised we need to move on from, and this is just a further adjustment.

There is another serious point about the inability of a party who feels aggrieved by the behaviour of their husband or spouse, who might have left them, to have the ground on the record. With respect, that misunderstands the legal test, which has always been, and continues to be, that the marriage has irretrievably broken down. That is not changed by the Bill. The question of behaviour and conduct is relevant only as one of the facts that is relied upon to support the ground for divorce, which is the irretrievable breakdown of the marriage. Moving to a single approach to that—the service of the petition, or the application—simplifies that and does not change the legal test.

Although it is tempting to think that an aggrieved party can get their hurt and concern on the record, it is not relevant as a matter of law because there is no causal connection between the conduct and the ground for the dissolution of marriage, and there never has been since the 1969 Act came into force. It also has the detrimental effect of creating a much more antagonistic attitude, because, first, there is good evidence that people game the system and will exaggerate behaviour to speed up the divorce, and secondly, this clouds the subsequent relationship as parties work out the consequences of the breakdown for finance and families.

It is important that the financial protections for a vulnerable party are specifically preserved under paragraph 10 of the schedule to the Bill, which maintains the existing arrangements. For those concerned about this, it is worth noting that in making a determination on financial arrangements,

“the court must consider all the circumstances including…the age, health, conduct, earning capacity, financial resources and financial obligations of each of the parties to the marriage”.

The suggestion that the change in any way undermines the protection for a vulnerable spouse during a divorce is simply not borne out by that measure, which preserves in the Bill exactly the same test that we have in the current law. I hope that that reassures people who are understandably concerned about that point.

That leads me to my final point, which my hon. Friend the Member for Solihull (Julian Knight) rightly raised: we cannot really justify a legal process that encourages people to be untruthful. That is what is happening and what has been attested to by the judiciary at the highest level. The late, much missed Sir Nicholas Wall, the former president of the family division, spoke on this during his tenure in office. His successor, Sir James Munby, one of the most experienced family division judges of his time, has spoken very bluntly about a system that involved hypocrisy and a “lack of intellectual honesty”. To go back to my hon. Friend’s point, Sir James referred to the “‘hotel divorce’ charades” that had been played out in the past. If there is collusion, it is the collusion that is sometimes needed by parties to invent conduct to speed up the divorce rather than waiting two or five years. Somebody may, for whatever reason—because the marriage has been breaking down for a long time—already have a new partner and there may be a new family on the way. One may or may not approve of that, but it is a reality of the world, and we have to have a justice system that recognises it and enables the best outcomes for that world rather than creating an obstacle.

Lady Hale, the president of the Supreme Court, said that the system is misleading because, as she put it, the

“fact used as the peg on which to hang the divorce petition may not bear any relationship to the real reason why the marriage broke down”.

If we are going to tackle marriage breakdown, as I believe we should, we should put the emphasis and resource into intervening much earlier to prevent the breakdown and not to involve a charade, in some cases, at the end of the divorce arrangements. I agree very much with the observations on that from my hon. Friend the Member for Newton Abbot (Anne Marie Morris), who is not in her place. I would also make the case that if there is an area where funding can be made available to restore elements of legal aid, compelling evidence to the Justice Committee has suggested that early advice on family matters should perhaps be the highest priority for its use. I know that the Secretary of State is someone who will be driven by the evidence when he considers those matters.

The person who perhaps clinches it for me—this is important because of his background—is Sir Paul Coleridge, to whom I have already referred. For many years, he was a family division judge, who practised throughout his professional career in family division work. He is also a practising Christian. Against that dual background, he has come to the view that the law requires reform and that the removal of the fault requirement would be a positive benefit and an advantage. He supports the change on that basis. He said that nowadays, most regard the delays under the current system as

“an intolerable block on their ability to move on with their lives. So to get around the delay they invent allegations to satisfy the court and enable it to turn a blind eye to what is really going on.”

Sir Paul also tackles the issue of divorce rates. He says:

“Since 1970 the divorce rate has fluctuated”—

he practised for a great deal of that time—

“For some periods it has gone up and for other periods, including now, it has dropped. There is simply no discernible connection between the type of divorce process and the rate of family breakdown. The two are unconnected.”

I have been driven by the evidence to agree with him. I hope that we make much more effort to deal with family breakdown, but changing the process is not going alter that situation.

Sir Paul also says:

“We now have a system that drives people to lie to the court if they are not prepared to wait for two years or longer. That is wrong.”

That must be right. He ended what I think was a very thoughtful piece with the following remark:

“An intelligent process to end unsustainable marriage is good for the reinvigoration of the most important social arrangement yet devised for mankind.”

That is a broad and Christian view of the matter, and a socially and legally informed one, and I commend it to the House. It is the reason I support the Bill.

Court Closures: Access to Justice

Robert Neill Excerpts

Thursday 20th June 2019 Commons Chamber

[Bambos Charalambous]

The hon. Lady is absolutely right. Many people do not obtain the legal advice that they need to make such informed decisions, and that, too, is part of the problem.

[Robert Neill (Bromley and Chislehurst) (Con)]

The hon. Gentleman made a wrong career move at some point. [Laughter.] At the risk of attempting to cross-examine him, may I suggest that the answer to that point might be that, while it is perfectly true that the acquitted defendants will be entitled to apply for the return of their costs, there is a broader public interest in bringing the guilty defendants to court so that they can be convicted and justice can thereby be done?

[Bambos Charalambous]

The hon. Gentleman has made an excellent point. He is quite right: that is indeed the case.

Women’s Aid has highlighted that fact that, in rural areas in particular, survivors of domestic abuse must travel long distances to reach family courts. Apart from the question of childcare arrangements and the cost of travel, there is a serious safety concern, as the perpetrators of the abuse may be travelling on the same route at the same time, owing to the infrequency of public transport services in those areas. That has the potential to make an already stressful and harrowing experience even worse. I note that Her Majesty’s Courts and Tribunals Service has confirmed that it is considering whether to pay for taxis to ferry defendants and witnesses from the most remote parts of the country to hearings. This just goes to demonstrate that little or no consideration has been given to the impact of court closures on court users.

As alluded to by my hon. Friend the Member for Oldham East and Saddleworth (Debbie Abrahams), there is a court modernisation programme and most people are broadly supportive of this £1.2 billion programme and making best use of technology to help alleviate the pressures on courts and tribunals, but this is not the panacea for court closures. There are those who will be digitally excluded due to difficulty in reading or writing, but even those who can navigate their way through the technology will still need proper advice.

Many litigants in person do not understand the legalities in their case. This can lead to unintended consequences such as pleading guilty to something they have a defence to, or choosing a path that may lead to them being penalised with costs. The cuts to legal aid funding and the lack of access to legal advice leads to a raw deal for some. They should be getting justice. The Public Accounts Committee said in its report “Transforming courts and tribunals” that

“without sufficient access to legal advice, people could make uninformed and inappropriate decisions about how to plead, and that the roll-out of virtual hearings could introduce bias and lead to unfair outcomes.”

Video hearings are not suitable for all cases because the informality of giving evidence by video could result in adverse inferences being taken about a person’s demeanour, which would not be the case if that evidence was being given face to face.

Some courts are not even ready to deal with court modernisation. Court No. 1 in Taunton only has one plug socket on the lawyers’ bench, making it impossible for all lawyers present to charge their laptops. Wi-fi is also poor or non-existent in some courts.

The reality is that HMCTS has no overarching vision of what it expects courts and tribunals to look like in the future. Unless it provides data to make it possible to make a robust assessment of the equality impacts of current court closures, it should cease closing courts.

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[Robert Neill (Bromley and Chislehurst) (Con)]

It is a pleasure to follow the hon. Member for Enfield, Southgate (Bambos Charalambous), my fellow Justice Committee member, and I congratulate him on securing this debate on a very important topic. I was happy to have been a supporter of his application for the debate, and I am grateful to the Backbench Business Committee for giving us this opportunity.

Access to justice is a fundamental issue. It is not just a transaction issue between the parties to a case; it is fundamental to the running of a civilised society. It ought to be regarded as not just a transactional matter between individuals either, but as something that is the warp and woof of the checks and balances that make our society work. Therefore, the right to have access to justice is a fundamental civic right of every individual and it is important that we aim to produce a system that achieves that without unreasonable obstacles.

Of course, we are obliged to garner public funds with care and make sure they are spent wisely, but it is equally important that the state has an obligation to provide an accessible justice system as part of its duties to protect its citizens. Therefore, we perhaps need to take a step back and look at what we do in relation to courts and other justice issues in the context of that overarching principle.

The issue of court closures has been of real concern to Members in all parts of the House, and for legitimate reasons. I do not say that every court closure is an unreasonable step, and I do not say that every court that was in existence when I started at the Bar is viable now. I appeared in some pretty unsatisfactory old magistrates courts and county courts up and down the country, where there was no means of separating witnesses from defendants for example. In some cases there might have been victims of crime present, and the facilities for having a conference with a client in any sort of confidentiality were non-existent. I actually had a conference in a lavatory once in an old magistrates court in East Anglia because there was nowhere else where we could not be heard by either the prosecutor or prosecution witnesses. It was pouring with rain outside so that seemed to be the easiest way to do it—I did not charge any extra, not even a penny. Courts like that should not be in use.

So there are good examples of where it was right to have got rid of old and inappropriate stock, because people who go to court as witnesses and as parties to civil proceedings are entitled to a basic level of service. Therefore, some rationalisation is legitimate and sensible but it must be balanced against the need for proper accessibility and to maintain, particularly in criminal, but also in family and civil, proceedings, a sense of local justice. I will return to that.

The courts rationalisation programme is often seen as part of a broader programme of court modernisation and rationalisation. As I have said, I do not have a problem with the overall thrust of that programme, which was endorsed by the Lord Chancellor, the Lord Chief Justice and the Senior President of Tribunals. It is based upon sound principles. It stems from two significant reports by distinguished judges: Lord Briggs’s report into civil procedure, and the report of Lord Justice Leveson—Sir Brian Leveson—in relation to criminal procedure. May I say in passing that both of those judges have given very great service to our judiciary? Lord Briggs later went to the Supreme Court and Sir Brian Leveson retires tomorrow as president of the Queen’s Bench Division. I pay tribute to the work he did; he has been one of the exceptional criminal jurists and criminal judges and practitioners of our generation, and the country as a whole owes Sir Brian a very great debt for his public service.

So these were well-founded principles and they had good judicial input into their design. The problem is that, as many witnesses have told the Justice Committee in the course of inquiries into the programme and related topics, there is concern that the outworking of that programme places more emphasis than it should on costs and savings rather than on improving services for parties to the hearing and the court user.

The chairman of the Magistrates Association, Mr John Bache, gave evidence to our Committee only a few weeks ago to the effect that, of course, there is always a balance to be struck—we want both fairness and efficiency in a justice system; nobody wants only one or the other. However, he and his members are concerned that in some cases at present the balance tips too far towards efficiency at the cost of fairness, and that cannot be the right way around.

[Alex Chalk]

My hon. Friend is making an excellent speech. In the course of this debate we have talked about convenience for defendants and witnesses, but ought we not also to consider convenience for magistrates? Magistrates give of their time to help in the community and perform an invaluable role, but if they have to travel huge distances that will inevitably provide a disincentive. The Government should be very alive to that in making these changes.

[Robert Neill]

My hon. Friend is absolutely right, and as he will know the Committee, of which he was for a time a distinguished member and for whose work I am very grateful, recently published a report into the magistracy that deals with a number of challenges facing the magistracy. It is convenient that I refer to this point, given that 90-odd% of criminal cases are dealt with by magistrates, who, as he says, are unpaid—they are volunteers; they are the bedrock of the criminal justice system. The point of a magistrates system is that they are lay people—mini juries, in effect—delivering local justice. Defendants are thereby judged by one’s peers, not only in the sense of one’s status in society, but in the sense that they come broadly from the community from which they themselves come.

That has always been fundamental to our system in criminal work. The difficulty has been the number of pressures on the recruitment of magistrates, and one, which was identified to us by the Magistrates Association and other witnesses, is the effect of court closures. Where they become as drastic as they have in some cases, they act as a disincentive to magistrates to continue on the bench, as travel times are much longer than they were. They can also skewer recruitment patterns for new magistrates. A number of studies indicate that the drop-out rate for magistrates in rural areas, where courts often sit only in the county town, is more marked and that there is a tendency in areas where the court has moved to an urban centre for magistrates to be recruited predominantly from the surrounding town areas rather than the rural areas.

[Victoria Prentis (Banbury) (Con)]

I wonder if my hon. Friend remembers, as I do, the very powerful evidence we heard from Welsh magistrates in our work on the Justice Select Committee about the difficulties they are having recruiting magistrates in rural parts of Wales.

[Robert Neill]

My hon. Friend is absolutely right. The evidence from the Welsh magistrates was particularly marked. They have the additional issue that they often need to recruit magistrates who are bilingual, since the Welsh language is usable in court proceedings. Rural areas of Wales suffer greatly from the dearth of magistrates, we are told, as well as from the difficulty of defendants, witnesses, police officers and lawyers having to travel long distances to get to court. The balance there has to be kept permanently under review.

There are other challenges as well. I know that the Minister will respond in full to a magistrates report, and I hope he will take that on board. One of the things we say is that we should have a holistic approach to the recruitment of magistrates—a workforce strategy—and that must include looking at what is reasonable in terms of the travel times that they are expected to undergo.

Other unintended consequences can stem from that. The hon. Member for Enfield, Southgate referred to the closure of four youth courts in London and the amalgamation in Bromley magistrates court, which, as he says, creates difficulties. Even though the geographic distances within London—some of us here are London MPs—might not be great, travel is not necessarily easy, particularly if one is using public transport, and even more so if defendants or other parties to proceedings have chaotic lifestyles. In civil and family cases, they may be people undergoing real stress—because of relationship breakdown, debt problems in civil proceedings, and so on—and the greater the travel burden put on them, the greater the risk that they do not attend and the hearing is ineffective or that those with a legitimate claim in such proceedings are deterred from taking their case forward.

Much progress has been made to make it easier to initiate things such as money claims and divorce proceedings online, which is welcome, but as the former Lord Chief Justice, Lord Thomas of Cwmgiedd, observed wisely in the other place recently, there is a difference between an online process to deal with transactional matters and online proceedings. As the president of the family division, Sir Andrew McFarlane, observed that video or virtual evidence is unlikely to be as appropriate in family cases as in other cases. For example, it can be easier to resolve things such as straightforward claims for damages—money claims—online. It seems important to us that we find that balance and ensure greater nuance and sensitivity in where we reduce our court facilities.

There is also the issue of travel times. The suggestion seems to be that it is reasonable for someone to leave home at 7.30 am to get to a court hearing and then to get home two hours after it finishes, which might be at 5.30 pm. I did a lot of that when I was practising at the Bar, but I understood that, having chosen that job. It is not the same for someone who is a witness in proceedings or who has been summoned to assist the public good by giving evidence about an incident they witnessed. It does not seem reasonable to expect those people to put up with long journey times. Legal aid lawyers are not well remunerated, and their having to travel long hours on modest fees while also preparing their cases properly does not always ensure that justice is fully served.

I hope that we will be cautious in how far we go. It is perfectly fair to point out that the volume of work going through courts—magistrates, Crown and county—has declined and that that fact will obviously be reflected in the court estate to some extent, but I would be happier if I thought that the money being saved was being immediately spent on the upkeep of the retained estate. I regret to say, however, that that is manifestly not the case. The Criminal Bar Association recently posted online a photograph of the wall in the robing room at Southwark Crown court. As well as various stains and cracks—it is a 1970s building—a number of phone numbers had been written on the wall next to the telephone. The phone numbers were so old they predated the 0207 and 0208 numbers, which shows how long it has been since the place was painted. In Snaresbrook Crown court, I have seen buckets in the judge’s corridor and so on. We are not recycling the money even to maintain the estate we have. We have to get that right somehow.

[Victoria Prentis]

I wonder if I could draw my hon. Friend’s attention, and perhaps by proxy the Minister’s attention, to the excellent and important evidence given by Ian Burnett to the House of Lords Constitution Committee about the quality of repairs to court buildings and the effect it has on judicial morale.

[Robert Neill]

The evidence of Lord Burnett of Maldon, the Lord Chief Justice, was most compelling, and I know that the Minister, who is a diligent Minister and who I welcome to his place in the Ministry of Justice, will want to take that heavily on board. We pride ourselves on having a Rolls-Royce system of justice in this country, and in terms of the intellect and integrity of our judiciary, that is absolutely right, but sometimes the buildings in which they operate—

[Victoria Prentis]

They are more like a Škoda.

[Robert Neill]

As my hon. Friend says, they are much more like a Škoda.

Having drawn those matters to the House’s attention, as well as my entry in the Register of Members’ Financial Interests, which I should have done at the beginning, I hope that the Minister will take the opportunity to reflect on the voluminous evidence that our Committee and others have amassed not about how we should abandon the reform program—absolutely not—but about how we can take it forward efficiently and effectively. We must strike that balance. We must achieve efficiency but never at the expense of justice and fairness in what is a fundamental civic right.

[Ellie Reeves (Lewisham West and Penge) (Lab)]

It is a pleasure to speak in this important debate, and I congratulate my hon. Friend the Member for Enfield, Southgate (Bambos Charalambous) on securing it. It is also a pleasure to follow the hon. Member for Bromley and Chislehurst (Robert Neill), the Chair of the Justice Committee. The £1 billion pound modernisation programme undertaken by Her Majesty’s Courts and Tribunals Service was designed to move cases online and to increase the use of digital methods to improve the speed and efficiency of our court system. However, as the Public Accounts Committee’s report into transforming courts and tribunals made clear, the pressure to deliver quickly and make savings is limiting HMCTS’s ability to consult meaningfully with stakeholders and risks it driving forward changes before it fully understands their impact on users and on the justice system more widely, particularly in regard to access to justice.

As a member of the Justice Committee, I am pleased that we are currently undertaking an inquiry into the courts and tribunal reforms. It is clear that the implications are going to be significant. As we have seen in countless other examples from welfare to healthcare, the digitisation and modernisation of Government systems invariably leads to delays and operational issues. Sufficient time is never committed for proper testing and evaluation to ensure that the technology and methods implemented are actually fit for purpose.

On current predictions, HMCTS expects 2.4 million cases a year to be dealt with outside physical courtrooms by 2023, leading it to employ 5,000 fewer staff. While many organisations, including the Law Society and the Magistrates Association have welcomed the increased use of technology, they continue to express concern that the Government’s desire to increase efficiency is coming at the cost of accessibility. I have concerns that by switching to a “digital by default” approach, we are in danger of excluding many people from being able to fully interact with the justice system, given that vulnerable people such as those with learning difficulties, mental health conditions, addictions, disabilities and English as a second language are often disproportionately represented among court users. By assuming that everyone is able to adjust to digital-only platforms, we risk denying people the ability to seek and access justice. The Government’s desire to save money by moving to digital solutions while failing to recognise the impact of their introduction may cost more in the long run, not just financially but by reducing access to justice for many.

While the Government have accelerated the roll-out of digital portals, they have also presided over the dismantling of our court system. Between 2010 and 2019, we have seen 295 court facilities close their doors for good, including more than 50% of the magistrates courts in England and Wales. The combination of this and increased digital-only processes is another example of trying to do too much too quickly, and the results will always have negative consequences on access to justice.

Resolution, the family law group, recently ran a survey of its members following the roll-out of some of the reforms. On access to justice, 87% strongly disagree or disagree that a more accessible service is being delivered, and 94% disagree or strongly disagree that faster processing times are being delivered. Not only is access to justice being denied but the reform agenda is making an already difficult process harder still. Many cases that end up going through the court system will involve vulnerable people in difficult circumstances, such as cases involving children going into care. By limiting the processes by which people interact with the court system, along with the continued closure of the estate, we are setting up barriers that will in turn prevent full access to justice, and particularly the ability of many to access their nearest court.

Following the Lord Chancellor’s recent response to the “Fit for the future: transforming the court and tribunal estate” consultation, I share the concerns of groups such as the Law Society that have drawn specific attention to the accessibility of our future court system. I am disappointed that the response categorised a reasonable journey as one that allowed court attendees to leave home no earlier than 7.30 am to attend a hearing and return home by 7.30 pm the same day, using public transport where necessary. For those who have caring responsibilities, family or childcare arrangements and for disabled people and the elderly, a 12-hour window is far from accessible. Some may have access to a car, but those who rely on public transport could have numerous legs to their journey and, given that thousands of bus routes have faced being cut under this Government, it is inevitable that there will be a detrimental impact on the ability of many to get to court in a reasonable time. This could affect their ability to access justice.

[Robert Neill]

The hon. Lady is making a powerful case. Does she agree that there is another issue that can arise as a result of court closures? She and I know that the four youth courts that have been amalgamated now sit at Bromley, and that many of the youngsters who appear in front of those courts are involved in gang culture. This creates real listing difficulties for the court staff, who have to try to ensure that they do not list cases involving rival gangs from different areas of that part of south London at the same time, given the potential for disorder that can genuinely occur. This is a matter of concern for the police in our shared borough.

[Ellie Reeves]

The hon. Gentleman makes an excellent point. I, too, know the difficulties that this is creating for the police and the court service locally. These complex considerations have to be taken into account, but they are sometimes not thought about when introducing these sorts of reforms.

The current outline for a reasonable journey assumes that everything in court that day runs to time and to plan. Court listings are usually oversubscribed under the current set-up, so many people often make their way to court, which often takes several hours, in anticipation of a hearing that never takes place. Not only does that have negative consequences for victims, witnesses and defendants and inevitably cost more, given that solicitors’ fees must still be paid, but it is quite possible that the combination of more difficult journeys and the continued floating or warned-list system will lead to the unintended consequence of people just not turning up at all. Research has shown that those effects, combined with court closures, have led to an increase in no-shows and an increase in warrants of arrest for defendants in locations where magistrates courts have closed.

--- Later in debate ---

[Andy Slaughter (Hammersmith) (Lab)]

I declare my interests as a non-practising barrister and the fifth member of the Justice Committee to speak in the debate, albeit the most junior and recently elevated to that position.

I am sure it is a coincidence, but like me other Members will have found in their inboxes this morning a press release from the Ministry of Justice telling them that £15 million of extra Government funding will be spent to improve more than 200 courts. I am sure the fact that that came out on the morning of this debate is just happenstance. When I read it in more detail and found that revolutionary things are being done such as a new roof on Chester Crown court, a new lift at Swansea civil justice centre and plumbing upgrades in Newton Abbot, I wondered whether it was really something that needs to feature in the popular press at the moment. Is it really so revolutionary that these things are happening? It is £15 million for what is actually basic maintenance.

Perhaps I can contrast all that with the £43 million that the Department made from the sale of Hammersmith magistrates court last year—that is three times the entire budget that the Department has committed to the repairs. If the tales of toilets and buckets from the Chair of the Justice Committee are to be believed, it may be that even that £15 million will be inadequate for the task. The sad thing is that at the time Hammersmith court was closed, it was a fully functioning, well-used, fully accessible building in a convenient location. It had the first ever domestic violence court in the country. Sadly, as nothing has yet happened to it, it is now used only for the filming of crime dramas. The most recent time I was there, I was down in a cell with an entire film crew.

I do not want to share private grief, but I shall briefly outline our experience in west London, because it is emblematic of what is happening across the board. The modern court in Hammersmith was built around 20 years ago, and our old, lovely but ageing Victorian magistrates court later moved into it, followed later by our lovely but ageing Edwardian county court. So be it. Over the past 10 years, the county court work was moved over to Wandsworth to allow work from other closed magistrates courts in London to move into the building. We were then told that all the magistrates court work would go to places as convenient to my constituents as Hendon. Then, last year, we were told that Wandsworth county court was to close and that the county court work would go across London to Clerkenwell. It is difficult to keep up with this: there have been four changes in respect of county court work over a period of around 10 years.

The farce then turns to tragedy. This information has been given to me by court users, and not just users of our own courts. My hon. Friend the Member for Enfield, Southgate (Bambos Charalambous) referred to what is happening at Clerkenwell and Shoreditch county court. I am told that files are being lost there, hearings have not taken place more than a year after work was transferred, telephones are not answered, paperwork has been lost, and bailiffs warrants are being executed despite warrants being suspended. My source says:

“The court is essentially in chaos”,

with 70% of staff being agency workers. This is the court, right on the other side of London, that my constituents are being directed to.

Possession work now forms a substantial part of county courts’ work, because without early legal advice people can often end up homeless when they should have received it at an earlier stage. Most cases relate to benefit problems and defects in the benefits system and therefore involve very poor people. Lots of people now walk to court. My excellent law centre, under director Sue James, co-locates its advice services with food banks and will now have to travel across London to provide those emergency services. This is a very unsatisfactory state of affairs, particularly as nearby Brentford county court has five courtrooms, only two of which are used because only two judges sit there. That in turn makes me suspicious about the utilisation figures that we are given.

[Robert Neill]

The hon. Gentleman makes a fair point. He will have heard, as I have, the concerning reports on a number of occasions from the Criminal Bar Association about under-utilisation sometimes being caused by courtrooms left sitting empty while recorders—part-time judges who classically could be used to fill out the slack—are not offered enough slots in which to sit by the Ministry of Justice. It seems a completely false economy.

[Andy Slaughter]

That is absolutely right. It is the combination of cuts in service that is causing the problems, and one problem is being referenced to another. Under-utilisation is a problem of not having judges to sit in court rather than a problem of not having the cases to refer to that court, as in the example that I have given. That makes me suspicious about the longer hours—the 7.30 to 7.30 window and the flexibility, with warned lists, that means that advocates and clients could be there all day. If there are not enough judges to sit in the courts in the first place, what is the point of courts sitting from early in the morning until late at night? To put it mildly, this has not been very well thought through.

To turn from the particular to the general, it has been mentioned that half the magistrates courts in the country have closed since 2010. One of the first things I did when I was appointed shadow Justice Minister back in 2010 was to respond to that first statement. Little did I know where we were going—that there would be perhaps one cull a year of courts across the country from then onwards. There must come a point when matters have gone too far. One reason for the wholesale, untrammelled closure of courts was obviously austerity. We are not just talking about capital receipts for closed buildings; we are also talking about thousands of staff going—I think another 5,000 staff are due to go over the next two years.

There is no denying that, but the justification given was the now more than £1 billion digitisation programme that was being introduced. The Association of Her Majesty’s District Judges says that half the money has been spent but only a limited benefit has yet been seen or realised. We have seen the sale and closure of courts and the restriction of access to justice before any of the benefits. We are taking a leap in the dark and being asked to trust that the Government have got it right. Frankly, judging by most Governments’ IT programmes and success, I always think we ought to be very sceptical about whether they have got it right. The only consistent thing is the amount spent on management consultants—I see that about £61 million has been spent on them as part of this programme. None of this bodes well.

Some people will say that we can get too attached to our local courts, but local justice is important. It is a cumulative process. The cuts to legal aid, the introduction of fees and the closure of courts are having a detrimental effect on people’s rights to access justice, and to do so speedily, conveniently and fairly. It therefore seems entirely reasonable to ask, as the Labour party does, for a moratorium on closures. It is also reasonable to ask for more evidence of the justifications for any closures and of the benefits that are allegedly going to be gained from the money released by those closures. There is a new Minister in post, who I am sure is looking at the issue with a fresh pair of eyes. I hope we are going to hear very shortly that he will look at these matters again and perhaps come to some different conclusions from those of his predecessors.

--- Later in debate ---

[The Parliamentary Under-Secretary of State for Justice (Paul Maynard)]

It is a pleasure to take part in this debate, or should I call it a Justice Committee reunion? I feel rather inadequate in never having been part of this fantastic Committee, with such wonderful people. However, this debate also brings together at least three people in the Chamber who have seen their courts close in the last round of cuts: my hon. Friend the Member for Banbury (Victoria Prentis); you, Mr Deputy Speaker, have seen Chorley go; and me. I have seen Fleetwood close, which was just outside my boundary but served many of my constituents, so I have seen this issue from both sides of the fence.

The ability to access justice is a fundamental right in our society. That is why the Government are investing £1 billion in the most ambitious programme of its kind in the world. It will create a system that works better for those who need it. It will be easier to run and it will provide better value for taxpayers. Access to justice matters because everyone should have a stake in our legal system. None of our plans replaces the need for traditional courts or for people to travel to those buildings. It will not exclude people who do not have access to a computer or the internet. However, it will transform the way people use our courts and tribunals, opening up new ways to access justice.

To undertake a radical modernisation of the operation of our courts and tribunals with the same estate that was in place in the era of carbon paper, manual typewriters and fax machines—yes, there are still some fax machines left in our court estate—would be wasteful and dilute the benefits of reform. As we modernise, it would be inappropriate to define access to justice merely in terms of proximity to our nearest court building.

However, no one should deny the challenges we have in our court estate. Many of our buildings have been underused. In the financial year ending in 2017, 41% of courts and tribunals were used for less than half their available time. Keeping these buildings open costs us money that we could spend on making justice more accessible in other ways. As it stands, the court and tribunal estate is a patchwork that has developed over time and a legacy from many predecessor organisations. This has meant a concentration of buildings in some locations. Of the 337 operational court and tribunal buildings, 245 are within five miles of another court or tribunal, so this should be kept under review. We should test whether buildings are really needed or suitable for the uses to which we put them.

The closure of a court is not a decision taken lightly, and we consult widely and think carefully about the responses we receive before making a final decision. We have changed our minds following a consultation, and retained courts because of the responses received—Northallerton magistrates court being one example. Only when convinced that effective access to justice can be maintained has the Lord Chancellor agreed to the closure of a court. In some cases, we have moderated the impact of a closure by continuing to provide local access through a supplementary provision, such as a video link, or by holding hearings in a different public building.

I take great interest in the potential that so-called “supplementary provision” can offer, although I have a certain nervousness about pubs. I know that inquests were once held in pubs, and witnesses gathered in them back in the Victorian era. I am not sure, however, that current concern for the dignity and gravitas of the court can be met by our local Wetherspoons, but I look forward to hearing what my hon. Friend the Member for Banbury proposes for her home town.

I do not accept the characterisation of this programme as being just about cutting costs without any regard for those who use our courts, and neither do I recognise the stories of inconsistency and chaos set out by the hon. Member for Enfield, Southgate (Bambos Charalambous). At the start of last year we engaged widely on our future strategy, and many Members have referred to the document, “Fit for the future: transforming the court and tribunal estate”, which underpins much of our decision making. I urge a further reading of paragraph 2.5, which lists the issues that must be considered. Those include the length of a journey, and the timeframe of between 7.30 am and 7.30 pm,

“the difficulty of the journey, including frequency of public transport and the number of changes required; the cost of potential journeys; the type of cases heard at the court or tribunal; the opening hours of the court or tribunal; the needs of vulnerable users; and whether there are available mitigations to reduce the impact on users with longer journey times, if the numbers of such users are small.”

We also consider supplementary provision where that is appropriate to the nature of the case, the court’s workload, and the agreement of the judiciary. Our assessment therefore goes much deeper than whether to tick off two particular times of the day.

I heard about the study that has taken place in Suffolk, and I look forward to meeting my hon. Friend the Member for Bury St Edmunds (Jo Churchill), who has been particularly affected by that issue. We have set out a clearer definition of what we consider to be a reasonable journey, but in my view the issue has not affected the failure to attend rate. Indeed, since about 2013, studies show the numbers of those affected by this issue to be in the low to mid 90,000s, which has declined since 2010. We wish to take into account a range of factors. Compared with December 2010, the proportion of the population now within the stated distance for reaching a magistrates’ court has declined by just 1.6%, so people are not being affected to the extent that many are concerned about.

I urge anyone with an interest in the future of our courts and tribunals to read our response to the consultation, and our new “Court and Tribunal Design guide”, which I fear has not received the same level of attention, despite being just as interesting. It sets out how we will make our courtrooms more flexible, enhance security standards, and provide for the needs of vulnerable victims and witnesses. Those things are just as important for access to justice as the other issues raised today.

As a former Minister for transport accessibility, who is also sitting next to the current Minister responsible for that, I am all too aware of the importance of inclusive public transport. I tried to introduce the idea of the inclusive court to my Department, and the work done by my hon. Friend and I focuses particularly on the needs of those with hidden disabilities. Accessibility is not just about the wheelchair ramp into court; it is about understanding those who have speech, language and communication difficulties, so that when they are in court they understand what is occurring.

I referred to the “Fit for the Future” document, but there is no Government document that cannot be refreshed when evidence changes. We are working hard to improve the quality of the court and tribunal estate. Her Majesty’s Courts and Tribunals Service was formed from a diverse range of earlier organisations. No one wants to see buckets in the court, or ripped seats, soggy walls, and chipped paintwork. Since 2016 we have invested more than £148 million in capital improvements, including the £15 million from the Treasury that so underwhelmed the hon. Member for Hammersmith (Andy Slaughter) at the start of his speech. I agree that that would not solve every problem in the estate, but I think of it as a down payment in our initial efforts to make a difference. If anyone wishes to visit Blackpool court just outside my constituency boundary they will see another court that is in serious need of investment, although we are hoping to move site very shortly. I am all too familiar with the need to ensure that we have a dignified court network and I recognise the role it plays in maintaining judicial morale.

The hon. Member for Lewisham West and Penge (Ellie Reeves) mentioned digital services. The principal aim is not to close off routes to justice, but to open new ones. We will continue to support paper processes for those who need them. For some, that will still be the best route into our courts and tribunals, but for those who want to use digital services but have trouble doing so, we are providing a range of support to help to ensure the process is accessible to all through telephone support, webchat, or, when required, face-to-face support. We have seen an improvement with online applications for divorce. When it was paper-based, 40% of forms were being returned and that is now down to 2%. That makes life easier for those engaging with the process. Online pleas are possible for traffic offences and a significant number of online civil money claims are now taking place with significant support for those participating in them. However, as she mentioned, evaluation does matter. Merely because we can do something online does not mean that we should do it in each and every case, so it is right to interrogate the overall reform programme.

Court reform is just one way to deliver the inclusive court that I personally want to see. There is no location in the public realm where the vulnerability of the individual can place their liberty at greater risk than in our justice system. If justice is truly to be done, it is vital that all sides, whether as a defendant or as someone bringing a case, understand how justice is being done to them.

[Robert Neill]

Will the Minister give way?

[Paul Maynard]

I will always give way to the Chairman of the Select Committee.

[Robert Neill]

I am grateful to the Minister and I appreciate what he says. He raises a specific point about the justice system being seen to be available. One concern arising in evidence given to the Justice Committee about the use of online procedure is that we must be careful that it does not develop into a situation where justice is not done in public and is therefore not seen to be done. This is another case where it could be a good idea, but we have to be careful to get the balance right.

[Paul Maynard]

I have heard many of those concerns, not least from judges themselves, about the role of video hearings. I recognise that there is a particular sensitivity here, which I am exploring carefully.

I was going to mention the Select Committee’s report on magistracy—that is a complicated word for me to get out—which I thought was fantastic and chimed with much I have encountered already in my short time in the role. I met a young magistrate called Luke Rigg a couple of weeks ago. He is a shining example of those we wish to see taking up the role of magistrate. Magistrates are the glue that holds our justice system together and they often go unrecognised. I urge anyone watching this debate to seriously consider becoming a magistrate. It is a fantastic way to get under the skin of a local community and I hope that far more people will do it.

On that note, I thank all Members for their participation. They have given me plenty of food for thought in my early days. I look forward to being grilled more heavily when the Select Committee drags me before it.

Imprisonment for Public Protection

Robert Neill Excerpts

Tuesday 11th June 2019 Westminster Hall

[Robert Neill (Bromley and Chislehurst) (Con)]

As always, Sir Edward, it is a pleasure to see you in the Chair. I congratulate the hon. Member for Slough (Mr Dhesi) on securing an important debate on an important subject.

I am delighted to see the Minister in his place. He has had a long and distinguished career at the criminal Bar, so he will know, as well as any of us who have seen this type of sentencing in practice, that this is an unconscionable situation, which is the result of a policy in the past that was well intended but, frankly, an error. That error was corrected, but not corrected retrospectively, hence the decision reached by the High Court and the Supreme Court that they could not interfere with sentences that, at the time they were issued, had been lawfully given, as the then Lord Chief Justice, Lord Thomas, said. However, that does not remove the political and moral conundrum that faces us.

The right hon. Member for Delyn (David Hanson), a fellow member of the Select Committee, very fairly points out, as we accept in our Select Committee report, “Prison population 2022”, that there will indeed be a number—perhaps a significant number, but I suspect not a majority—of IPP prisoners who are unlikely to be safe to be released in any significant period of time and perhaps never. I suspect they are a minority, but there will be some. Nobody has an issue with that, but certainty is important for them and for the victims of their grave crimes, so that they know that that will be the case.

[Alex Chalk]

In those circumstances, the defendants probably ought not to have been sentenced to an IPP in the first place, but to a life sentence. If that is the case, the correct thing is to put that right rather than continue with the fiction that they are on an IPP with a tariff that they have long since superseded.

[Robert Neill]

My hon. Friend is absolutely right. His experience at the criminal Bar leads him to the same conclusion as mine leads me to. Given that the situation is unacceptable for the reasons that have been highlighted by the right hon. Member for Delyn, and highlighted in detail by my hon. Friend the Member for Banbury (Victoria Prentis), my fellow Select Committee member, it is unacceptable that we should leave a situation in which some people are in limbo.

One such case was illustrated in our Select Committee report in evidence from the sister of an IPP prisoner who died after a self-harm incident in prison. That individual

“often found himself in prisons that did not offer the specific type of rehabilitation he needed with no support or guidance on how to move to a prison that offered them. If there ever was a ray of hope with regards to this it was often lost owing to the lack of feedback on progress, the resource being changed or even closed down.”

That leads me to conclude, first, that we need to ensure that the prison regime offers proper rehabilitative and therapeutic offender management courses to those in a position to benefit from them. That requires a steady and stable regime within the prisons, which is not yet always the case in many institutions. Secondly, it implies a greater degree of monitoring of the specific needs of IPP prisoners to make sure that they are moved to establishments where courses are available. Thirdly, it means moving away from the current practice whereby IPP prisoners are very often not allowed to seek transfer to open institutions, which gives the Parole Board the difficulty of not having been able to test their behaviour and therefore the risk of reoffending in open conditions. The board has to take the difficult risk, in public perception terms, of either keeping those prisoners locked up perhaps needlessly or releasing them immediately without their having experienced open conditions. All that needs to be addressed.

The Parole Board gave evidence to us that certain mechanisms currently available to it could be made more use of. I urge the Minister to speak urgently to the chair of the Parole Board about speeding up, for example, the ability to prevent needless recall for technical reasons by, as has been pointed out, suspending the period of supervision after four years of good behaviour on licence—a specific and sensible proposal—and removing the cancellation of the licence after 10 years on licence. In many cases, that would be significantly more than the minimum term that they were sentenced to by quite a multiple. Those are sensible things that could be done.

Also, we have to grasp the nettle that, as Lord Thomas of Cwmgiedd rightly said, Parliament needs to grasp. We must either make resources available so that proper rehabilitation can take place or change the test for release. That would certainly need to be consulted upon, but it is something we need to set out because it has been very highly set at the moment. And/or we could change the statutory provision, as my hon. Friend the Member for Cheltenham (Alex Chalk) said, so that people can be re-sentenced under the current sentencing practice and procedures to a determinate sentence. In the worst cases, that will no doubt be life, or sometimes significant and at other times less significant determinate sentences, but the IPP prisoners, their families and the victims of the offenders will know precisely what the regime is and what the rules are that relate to the release.

That ought not to be too difficult to achieve. I cannot think for one moment that there would be opposition to that in any quarter of this House, were the Government to seek to find a legislative opportunity to introduce that. I earnestly urge my hon. and learned Friend the Minister—I know he is a reformer at heart and recognises the need to move these matters on—to make the case as strongly as he can within Government to find the time to take the fairly modest steps that would rectify an injustice that is a needless blot upon our system.

--- Later in debate ---

[Robert Buckland]

My hon. Friend has considerable experience of criminal practice, and he has dealt with many cases of great seriousness. He is right to draw to my attention the specific case of his constituent. We can deal with this problem in other ways, and I will outline those to the House as I develop my remarks. Indeed, I hope specifically to answer the queries that have properly been raised by right hon. and hon. Members.

[Robert Neill]

May I supplement the intervention from my hon. Friend the Member for Cheltenham (Alex Chalk)? The Minister refers to the difficulties of putting oneself in the position of the sentencing judge, but no one is likely to have been better placed to understand those difficulties than the former Lord Chief Justice, when he made his observations in the course of a judgment in the Court of Appeal. We know that there are circumstances—for example, when a sentence is reviewed for other reasons—when the court will, for reasons of good public policy, embark on that difficult exercise. Although this issue must be borne in mind, there is precedent for demonstrating that it is not an insuperable obstacle.

[Robert Buckland]

I agree that in the appellant procedure there will often be that check and balance, but this is slightly different. This would be a change in the law and legal framework to alter the position from the one that applied when the offender was sentenced, to the position now. Whether we like it or not that is a departure, and we must be careful to avoid setting inadvertent precedents.

We must be able fully to reflect on the assessment of risk that was made by the learned judge at the time of sentencing. In other words, how does a court properly assess the length of a determinate sentence—that, presumably, is the aim of right hon. and hon. Members—and decide whether or not to take the further step of imposing a life sentence, which might be appropriate in some very serious cases? I do not pretend that these issues are easy, but neither is it a matter that the Government should do nothing about. Other measures we are taking are already yielding significant results, not just in reducing the number of prisoners held under this regime, but by ensuring that more eligible prisoners can be considered as quickly as possible.

My hon. Friend the Member for Bromley and Chislehurst (Robert Neill), Chair of the Justice Committee, mentioned the remarks of the then Lord Chief Justice, Lord Thomas of Cwmgiedd, who spoke not just about changing the statutory provision, but about changing the test for release, which is important. I think he would concede that the test for the release of prisoners held under this sort of regime must be as consistent as possible, bearing in mind the different classes of prisoners who are held in custody either on minimum terms or subject to parole.

We must take great care not to create too many different tests that could mean that one group of prisoners could be treated in a different or more favourable way than another group. I do not say that the argument has no merit, but there are difficulties in creating potential inconsistencies. It is beholden on me, both as a lawyer and now in this position of great responsibility, to ensure that the unforeseen consequences that occurred with this policy making do not repeat themselves thanks to any change we may make.

Let me develop the point about the ways we can best support prisoners to show that they can safely be released—that is the solution that stares us in the face regarding so many people in that position. As the hon. Member for Ashfield (Gloria De Piero) laid out well, ensuring public protection from violent and sexual crime must be paramount, and our continuing efforts to rehabilitate prisoners subject to this regime are bearing fruit. We have seen a dramatic fall in the IPP prison population over the past years, and the figures cited by the hon. Member for Lewisham West and Penge (Ellie Reeves), and others, are correct. It is a dramatic fall, although I accept that there is still a significant cohort, and we must also not forget that a number of IPP prisoners have been recalled—I will come to that in a moment. However, progress is being made in the right direction.

In January 2016, more than three years ago, a joint HM Prison and Probation Service and Parole Board action plan was drawn up to deal with IPPs. Initially it was primarily focused on improving the efficiency of the parole process, because at that time there was a significant backlog in listing oral hearings for IPP and life-sentence prisoners. As a result of receiving additional resources and changing some of its processes, the Parole Board and the public protection casework section of the Ministry of Justice made progress, and their combined effect was to eliminate that backlog. Simply having a more efficient system resulted in a significant improvement to the pace with which IPP prisoners were released. Following those improvements, the plan was expanded to include a greater focus on those prisoners who, even with a much more efficient parole system, needed additional support to reduce their own risk and secure a release decision from the board.

What was done? A central case file review, by senior psychologists, of IPP prisoners who had not made the anticipated progress achieved considerable success. Out of 1,365 completed reviews, 233 prisoners in these most challenging cases achieved release, with a further 401 achieving a progressive move to open conditions. We have put in place enhanced case management for the most complex cases, so that a multidisciplinary team can work together to remove barriers to progression.

The joint IPP action plan has also overseen further improvements to the process and, perhaps most significantly, we have opened three new progression regimes, building on the success and the outstanding reputation of the first such regime, which was established at Warren Hill. Those sites operate a staged regime of increasing freedom and responsibility, allowing evidence to build on offenders’ ability to manage their own risks. The rate of release from a progression regime is higher than the average release rate across all Parole Board hearings, which is something that, I think, all right hon. and hon. Members will welcome.

As comprehensive as the plan and the opportunities it provides to IPP prisoners is, the decision actively to engage with efforts that promote rehabilitation, and so demonstrate that there can be safe release back into the community, must ultimately be for each individual prisoner. In my view, that is why Her Majesty’s Prison and Probation Service change programme, in delivering a new offender management model, is fundamental, not only for IPP prisoners but for all offenders. With increased staffing, and the introduction of the key worker role in all prisons, staff will be better equipped, and given more time, to work with individuals who may not be engaging in the way they need to do to reduce their risk.

We are aware that some prisoners may well have become demoralised, with no fixed date of release and the prospect of a further parole hearing currently not holding much hope for them. Here, the key worker will need to get alongside the prisoner and build hope from the foundation of a strong relationship, encouraging them to grasp the opportunities that are available.

Rehabilitation of Offenders

Robert Neill Excerpts

Wednesday 5th June 2019 Commons Chamber

[The Minister of State, Ministry of Justice (Robert Buckland)]

I beg to move,

That the draft Rehabilitation of Offenders Act (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2019, which was laid before this House on 1 April, be approved.

The purpose of this draft instrument is to include inquiries established under the Inquiries Act 2005 as “excepted proceedings” in the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975. That will enable those types of inquiry to consider the spent convictions of individuals. This legislative change was requested initially by Sir John Mitting, chair of the undercover policing inquiry, and I will pause now to pay tribute to his predecessor as chair, the late Sir Christopher Pitchford. Sir Christopher was a distinguished member of the Bar, a High Court judge and Lord Justice of Appeal, who sadly died in the middle of this inquiry. He is much missed by all of us who knew and respected him as an outstanding lawyer of his generation.

Sir John stepped into the breach and is conducting this lengthy and serious inquiry. The reason for the request he has made is that information on individuals’ spent convictions is important for the purposes of the terms of reference of the inquiry.

The inquiry is examining undercover police operations conducted by English and Welsh police forces from 1968 onwards, including whether the police were justified in launching undercover operations against a group. To give full consideration to this, the inquiry needs to be able to consider the convictions of members of the groups; however, given the historical nature of the inquiry, many of these convictions will be spent, and therefore not disclosable under the Rehabilitation of Offenders Act 1974.

The statutory instrument will give Sir John’s inquiry the ability to consider spent convictions. The change is vital for the inquiry to successfully fulfil its remit, and hon. Members will be aware that there is a high and appropriate level of public interest in this inquiry. Although the undercover policing inquiry is a particularly clear case of an inquiry where spent convictions are relevant, the amendment will allow any inquiry under the Inquiries Act 2005 to admit evidence of spent convictions and cautions, but—this is important—limited only to where that is necessary to fulfil the terms of reference of that inquiry. It is likely that other inquiries may in future need to consider spent criminal records.

[Robert Neill (Bromley and Chislehurst) (Con)]

I am grateful to the Minister for giving way, and I appreciate his reassurance that the test is of necessity. Can he assure me that the same approach is intended to be taken by the chairman of the inquiry, as, for example, will be taken by a judge in determining the test of necessity and also relevance to the topic matter of an inquiry? Relevance is the normal test in court. Can he assure us that necessity will include that as well?

[Robert Buckland]

I am grateful to my hon. Friend, who is the Chair of the Justice Committee and a barrister of long standing at the criminal Bar. He is absolutely right to talk about the test of relevance. It is not the purport of any inquiry ambit or the function of any inquiry chair to adopt a floodgates approach to the disclosure and use of spent convictions. In the other place, the noble Baroness Barran put it very well when she set out to their lordships a flowchart of the way in which a particular decision about the use of spent convictions would be taken. She said:

“The first question is: does the individual have spent convictions, yes or no? If the answer is yes, are they relevant? Will they be treated anonymously? If they apply for anonymity, will that be agreed to? Further, even if it is not anonymous, is the hearing held in private or in public? If it is held in private, could the information then be published?”—[Official Report, House of Lords, 20 May 2019; Vol. 797, c. 1792.]

I thought that that was a clear exposition of the framework within which a decision maker would carry out their function when it comes to spent convictions. In other words, that is the sort of filter that I think meets the concerns not only of Members in the other place but of Members in this House.

I was talking about future inquiries, and was saying it is likely that other inquiries may need to consider spent criminal records, as these can be key to determining whether authorities have acted reasonably in assessing and responding to risk. The Rehabilitation of Offenders Act 1974 affords offenders protection from having to disclose their convictions and cautions, once those convictions and cautions have become what is termed “spent” under the Act. That is the point at which the offender has become rehabilitated. The exceptions order to that Act lists activities or categories of jobs where those protections are lifted so that offenders, if asked, need to disclose their spent convictions.

The primary rationale behind the exceptions order is that there are certain jobs—positions of public trust, for example, or those involving unsupervised work with children—where more complete or relevant disclosure of an individual’s criminal record may be appropriate to mitigate risks to public safety. The exceptions order is not limited to employment purposes, although that is its primary use. The amendment proposed here is not employment-related, but related only to the consideration of evidence of spent convictions and cautions in inquiries that are caused to be held under the Inquiries Act 2005.

--- Later in debate ---

[Robert Buckland]

I am looking again at paragraph 7.6, and I think its purpose is to illustrate other examples of inquiries that have been set up pursuant to the Inquiries Act 2005. I will go on to explain that, because that does not cover every public inquiry. I will give the House a few examples as I develop my argument. In this case, the ongoing independent inquiry into child sexual abuse is used as an example of a 2005 Act statutory inquiry that may need to consider criminal records in the course of its deliberations. It is therefore a useful illustration of another inquiry that was set up because there was a strong public interest to be served and one would benefit from not having to undergo what would otherwise be a rather cumbersome and lengthy process of looking at the admission of evidence on a case-by-case basis.

As we know, the independent inquiry is taking considerable time, and it would be in the wider public interest for its work to be sped up in this way.

The hon. Member for Stroud (Dr Drew) talked about the register; as he knows, sex offenders are required to sign that on conviction. That public document is recorded and kept just as a conviction would be. From memory, how long an offender has to stay on the register will depend on the seriousness of the offence. Some very serious child sexual offences will, of course, rightly require life registration, so the matter will remain on public record.

The hon. Gentleman was a Member when that Act was passed; he might have a better institutional memory than mine when it comes to the debates that led up to that. My experience of it was as a practitioner and recorder, having to make sure that defendants complied with the requirement. The sex offenders register is not a court order but a statutory obligation that follows automatically on conviction.

I come back to the exceptions order, whose primary use is for employment purposes. The amendment that we are discussing is not, of course, employment related: it relates only to the consideration of evidence of spent convictions in inquiries caused to be held under the Inquiries Act 2005. Although a number of judicial proceedings are exempt from the protections of disclosure—in those proceedings, there is no restriction on considering or basing conclusions on spent conviction information—inquiries made under the 2005 Act are not currently exempt.

Examples of proceedings that are exempt include circumstances ranging from solicitor and police disciplinary proceedings, to proceedings relating to taxi driver and security licences. We feel that the work of inquiries set up under the 2005 Act is necessarily of such public interest and importance that they must have the ability to consider all the evidence relevant to their work. To extend that ability to these inquiries, we must amend the exceptions order.

The draft instrument is necessary to amend the order to enable inquiries caused to be held under the 2005 Act to admit and consider evidence of convictions and cautions that have become spent under the Rehabilitation of Offenders Act 1974, where it is necessary to fulfil the terms of reference of that inquiry; the word “relevance” again comes very much into play.

We recognise the importance of the 1974 Act, which offers vital protections to people with convictions. We improved those protections in 2014, reducing the amount of time that most people with convictions had to wait before their convictions became spent. As I mentioned in responding to the intervention made by the right hon. Member for Delyn (David Hanson), we are considering proposals for further reform to the 1974 Act following the recommendations made by various reviews in recent years, including those carried out by the Justice Committee, on which the right hon. Gentleman serves.

There are demanding criteria for inclusion on the exceptions order. Our proposed inclusion would be the first addition to the order in three years. As I said, the amendment proposed here is not about employment; it relates only to the consideration of evidence of spent convictions and cautions in judicial proceedings—namely, before inquiries caused to be held under the Inquiries Act 2005.

Understandably, their lordships raised concerns in the other place about granting all inquiries the right to consider spent convictions and the effect that would have on individual rights. I want to make it crystal clear that we have proposed to extend this power only to a limited number of inquiries; as I said, we are talking only about inquiries set up under the 2005 Act, so non-statutory inquiries, such as both the Butler and Chilcot inquiries on the Iraq war, would not be covered by this legislation.

This legislation applies only to inquiries where considering spent convictions is necessary to fulfil their terms of reference. An inquiry’s terms of reference are set by the Minister, in consultation with the chairman of the inquiry. That provides an element of individual consideration of whether the exception should apply to each inquiry that ensures that this will not apply indiscriminately. Frankly, considering spent convictions will not be necessary for the vast majority of inquiries. In other words, the measure already has a limited application.

Our view is that sufficient safeguards are in place to ensure that individual rights—the issue that concerned their lordships—are preserved as far as is necessary. Under section 1 of the Inquiries Act 2005, inquiries are caused to be held by a Minister when particular events have caused, or are capable of causing, public concern, or there is public concern that particular events have occurred. As such, inquiries by design are held only where they are in the public interest, so any limited interference with an offender’s article 8 right to private life under the European convention on human rights would be necessary and proportionate.

Article 8 enshrines the right to respect for private life, but that is a qualified right. Subsection (2) provides that there shall be no interference with that right except such as is in accordance with the law and necessary in a democratic society in the interests of national security, public safety, or the economic wellbeing of the country, or else for the prevention of disorder or crime, the protection of health or morals or the protection of the rights and freedoms of others. Section 19 of the 2005 Act has specific regard to these rights, in as far as they ought be protected, but it does so in a way that enables the inquiry to fulfil its terms of reference and consider matters necessary in the public interest. In that way, the 2005 Act directly reflects the qualified nature of the right to privacy.

[Robert Neill]

The Minister is being most generous, but will he help me? He asserts, in terms, that if the inquiry is set up under the Act, it automatically triggers some of the exemptions to article 8. What is the remedy, however, if a person who is to be called as a witness by the inquiry is aggrieved and wishes to challenge the finding of the inquiry chair to admit the evidence of a spent conviction? Would there be a judicial review in the ordinary way?

[Robert Buckland]

There would be a judicial review. That point was considered carefully in the other place. I readily accept and deal full on with the potentially onerous nature of having to bring a judicial review to challenge proceedings. But as I have said, the filter system that any chair would have to operate is considerable. There are safeguards and guarantees in respect of anonymity and publication that provide the sort of safeguard that, if misapplied, would quickly and obviously attract criticism when a higher court came to scrutinise the decision process.

--- Later in debate ---

[Robert Neill (Bromley and Chislehurst) (Con)]

I am always wary of extending powers that can trespass upon the convention rights of citizens and generally wary of giving blanket powers to organs of the state. I am very much in favour of the rehabilitation of offenders legislation and spent convictions. As the right hon. Member for Delyn (David Hanson) observed, the Justice Committee recently published a report that urges the Government to consider reducing the amount of disclosure that is required, particularly in relation to spent convictions that occurred when the person concerned was a child or young person. There is no doubt that that is a desirable course of action, because the inappropriate and unnecessary disclosure of spent convictions can be a serious bar to rehabilitation—I think we would all be as one on that.

That is why I looked twice when I saw this statutory instrument; I looked at it with some care and at what was said about it in the other place. On balance, having listened to the Minister’s careful and thoughtful explanation, and with all respect to the hon. Member for Bolton South East (Yasmin Qureshi), who spoke from the Opposition Front Bench and for whom I have great regard, I find that the objection to it is ill-founded. This is enabling legislation, in the sense that, I understand, it makes provision for spent convictions to be admitted in particular classes of statutory inquiry where they are relevant—it is not general legislation insisting that this should happen. As the Minister rightly said, the relevance test has to be met in any event.

One or two questions are raised that we could helpfully think about. First, it is asserted that there may be a risk of people being dissuaded from becoming witnesses at an inquiry if the provision is in force. With respect to the Opposition Front Bencher, I am not convinced by that, because the same would happen under the ad hocery arrangement that is suggested. If someone were likely to be a witness in a particular inquiry, they would be put off as much by ad hoc secondary legislation as by the generally enabling provision before the House.

[Victoria Prentis]

Does my hon. Friend agree that as statutory inquiries have the ability to summons witnesses, as much as many courts do, that would deal with the issue?

[Robert Neill]

That is precisely right. Someone summoned to give evidence to a statutory inquiry would be obliged to come forward. With all due respect, it seems to me that it is a false point that should not weigh on us.

The second point is that even when people are summoned there is still a safeguard. It seems to me that the safeguard of the application of the test of relevance, in what is after all an inquisitorial process, as opposed to the criminal, adversarial one, is proper and appropriate. I am concerned about the potential cost of somebody having to seek a judicial review, because that process is lengthy and difficult.

[Robert Buckland]

One of the great functions of this debate is to tease out some of the issues. Before public inquiries are published, is there not a Maxwellisation process whereby individuals who might be referred to in a way that is potentially adverse to their interests are notified? Is that not another safeguard?

[Robert Neill]

It is indeed; my hon. and learned Friend anticipates the point I was about to move on to. A series of steps and procedures have to be gone through in relation to a statutory inquiry, and that puts the person concerned on clear notice that the issue may become relevant and may be raised. They then have the opportunity to make representations before the chair of the inquiry. Should the ruling go against them, there is then the fall-back position of a judicial review.

Out of a sense of fairness, and taking an approach of equality of arms, if someone is summoned to give evidence before a statutory inquiry and it is likely that a spent conviction is going to be considered as being admissible and argument is going to take place on those grounds, that person, if they are not otherwise legally represented already, ought to have the ability to be legally represented. I urge my hon. and learned Friend to consider, where appropriate, with those in his Department who deal with matters of legal aid, that that person, if they are not represented either as part of a class or group or because of their own means, should have access to legal aid to argue before the inquiry whether the spent conviction should be admitted. It involves a very small sum of money because in practice it is likely to happen only on a limited number of occasions.

That would be an appropriate additional safeguard from the point of view of equality of arms. I hope that my hon. and learned Friend will take that point away. Subject to that request, it seems to me that the safeguards are met. It is better to deal with this matter with one piece of legislation rather than to come back on an ad hoc basis.

I hope that this discussion also reminds us all of the advantage of having legally qualified inquiry chairs. Non-statutory inquiries that do not have legally qualified chairs have sometimes spiralled out of control because the chairs are not adept at dealing with, for example, the admissibility of evidence or case management generally, in the same way as a judge is able to. Perhaps that lesson can be taken away, too, but that should not stand in the way of our supporting a useful and proportionate statutory instrument, having weighed up all the pros and cons, as we have in this debate.