Courts: Resourcing and Staffing

Lord Beecham Excerpts

Thursday 14th July 2016 Lords Chamber

[Lord Beecham (Lab)]

My Lords, I refer to my interests as an unpaid consultant with my former legal practice, as well as a paternal interest as my daughter is a practising barrister and sits as a part-time deputy district judge. I congratulate the noble and learned Lord, Lord Saville, on his long-awaited maiden speech. We look forward very much to hearing more from him; on the basis of what we heard today, it should be illuminating. I was saddened to learn from the Minister that he has decided not to continue as a member of the Government. We have enjoyed our exchanges over the Dispatch Box for some considerable time and he is regarded with great esteem and affection throughout your Lordships’ House. We will miss him very much indeed. We look forward to whoever takes his place emulating his knowledge, wisdom and good humour.

I also echo the thanks extended to the noble and learned Lord, Lord Woolf, by other speakers for initiating this timely and important debate on a major aspect of what appears to be an unending programme of change in our legal system. Access to justice, the foundation of the rule of law, has been and is being effectively undermined in a variety of ways, notably by the curtailment of legal aid and the ever-rising costs imposed upon those who seek justice. The noble Lord, Lord Trevethin and Oaksey, referred to this aspect, and as he said, next week we will debate a regret Motion on the latest increase in court and tribunal fees, designed to generate still more than full-cost recovery, despite the palpable impact such increases have already wrought on, for example, employment tribunal applications.

The judiciary has repeatedly voiced concerns about the problems caused by unrepresented litigants across the whole system, perhaps occasioning particular concern in the area of family law, where as we heard from the noble and learned Lord, Lord Woolf, there are unrepresented parties in 30% of cases, and perhaps even more worryingly, 22% of child contact cases are in the same category. The delays in this area are particularly reprehensible given the sensitivity of the subject matter, but they are to be found across the whole system, civil and criminal law alike.

It is of course reasonable both to seek to reduce the costs of the system and to make use of modern technology, but not at the expense of justice itself. As we have heard, the pressures engendered by government policy reach to the highest level. Lord Dyson, in the report on appeals to the Court of Appeal, which marked the end of his distinguished tenure as Master of the Rolls, referred to the almost 60% increase in workload in the last five years, which other noble Lords referred to, with the trend still rising, no increase in judicial resources, a concomitant lack of judicial time, a growing backlog and ever longer delays. As he pointed out—and the noble and learned Lord, Lord Woolf, quoted—justice delayed is justice denied.

His report suggests changes in the Civil Procedure Rules, but it is disturbing that he also reports, following discussions with the Ministry of Justice, that there is no prospect of increasing the number of judges in the court. I had thought it possible that if Mr Gove had remained in office as Lord Chancellor, he might have undergone a Damascene conversion on this issue, as he did over the suitability of his erstwhile friend Boris Johnson to be Prime Minister. Let us hope that his successor will respond constructively. However, even if that were to prove the case, there are real doubts about whether it would be possible to recruit the most able potential judges, and these doubts apparently extend through the whole system. As we have heard, salaries and pension provision appear to have had an impact on the number of suitable applications for appointment, especially to senior positions. Can the Minister enlighten us as to the position at the moment and on whether, and in what way, current policy is addressing the recruitment issue?

The chairman of the Bar Council, quoted by the noble Lord, Lord Lester, echoes the concerns expressed in relation to pensions by the Lord Chief Justice in his annual review and cites the observation by the noble and learned Lord, Lord Thomas, to the Select Committee on the Constitution in April, that a new High Court judge will receive a significantly smaller pension than that of a district judge and in general, judges of the age of 58 or over will be excluded. Do the Government not realise the disincentive that has been created by this state of affairs?

A distinguished QC of my acquaintance illustrated the current position by reference to his own experience in the Court of Appeal. He referred to delays, which Lord Dyson made much of, but also to other issues. These include inappropriate listing. For example, a family property appeal was heard and rejected by a court comprising three members, whose expertise lay entirely in the realm of commercial law, leading to a further appeal. He complains of rushed hearings, even citing instances where the judgment appears to have been written in advance of the hearing, and he expresses concern over the proposal to abandon the right to renew orally a paper application seeking permission to appeal, having himself succeeded in such an application to a single Lord Justice after the initial application was dismissed—again, without reasons.

He raised another issue, which is that of diversity, suggesting that recruiting judges, especially in the higher courts, is made more difficult by the timing and timetabling of cases, which can seriously impact on family life and commitments.

The Government make much of the opportunities to generate savings through court closures and an increasing reliance on online solutions. In respect of the former, there is continuing concern, especially in relation to the magistrates’ courts, about the difficulties occasioned to parties and witnesses where long travelling times are involved—the noble Lord, Lord Thomas, referred to that.

There are also doubts about whether conducting cases online or by video is necessarily a satisfactory alternative. The Public Accounts Committee expressed concerns on this point, noting that Governments do not have a good track record in the realm of information technology. Of course, IT has a part to play, but in relation to civil claims, there is an assumption that we are all computer-literate, whereas this is palpably not the case—and I speak as someone who is at best semi-literate in these matters. The UK Association of Part-Time Judges also refers to the cost to parties of using the internet and accessing the equipment.

The association also drew attention to the problems that might be faced in eviction cases by people on benefit unable to access IT or attend court—concerns echoed by the Law Society. If, given the absence of legal aid and an inability to pay for legal advice, people seek to conduct their own cases, the support—which is often currently available on an informal basis—will be sorely missed. Justice, in its document, What is a Court?, published in May, referred to the need for diversely skilled, trained and empathic court staff, with IT support staff providing assistance in person. It also called for a more customer-focused approach, treating court users as clients, but it warned that the reduction in staff numbers, believed to have taken place and contemplated for the future, militates against this desirable aim.

So what is the Government’s target for staffing numbers and qualifications, and what is their assessment of the capacity of the system to cope with current demand and change? How do they respond to Justice’s claim that a wide range of court users have consistently highlighted the negative impact on the system, and on their morale, of reduced staff? I hope that the noble Lord will reply to the important questions raised by the noble Baroness, Lady Coussins, about interpreters.

It seems to me, and many others, that under this Government the road to access to justice is being paved with ill-thought-out and clumsy interventions. I hope that the noble Lord’s successor will enjoy some success in persuading the new Lord Chancellor to revisit this whole area and to change the direction of government policy. I hope also that he will continue to use his influence, which ought to be significant, from the Back Benches in your Lordships’ House to ensure that what he has tried to do from the Front Bench will be realised in practice.