Criminal Justice System: Women

Lord Ponsonby of Shulbrede Excerpts

Thursday 25th July 2019 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I, too, welcome this debate and the report of the noble Lord Farmer. It was a full and sensible report, with many practical recommendations for supporting female offenders as they pass through the criminal justice system. I remind the House that I sit as a magistrate in adult, youth and family jurisdictions, and it is a great pleasure to follow the noble Baroness, Lady Sater, as we sat on the same youth panel for a number of years.

I shall concentrate on the purpose and utility of short sentences for women—I am talking about sentences of six months or less. The current position will be well known to participants in today’s debate, but I shall briefly set out some of the statistics, many of which other noble Lords have referred to.

There are 78,000 men in prison in England and Wales and 4,000 women. Shoplifting is the most common offence for which women are imprisoned. Statistics from the Revolving Doors Agency indicate that three in five women report drug or alcohol dependency when arriving in prison—that is a higher proportion than for men; one in four are homeless when they are released; seven in 10 reoffend within one year of release; and eight in 10 of those convicted of theft reoffend within one year of release. Many agencies agree on the common factors among women prisoners. They are more likely than men to self-harm when in prison; custodial sentences increase the risk that dependent children will also fall into a life of crime; and more than half of women prisoners have experienced domestic abuse.

In a speech earlier this year, David Gauke said—I think quite frankly—that the impact on women of short custodial sentences was “particularly significant” and that they often caused,

“huge disruption to the lives of their families”.

He said that he believed there was a strong case for abolishing short sentences.

My response to that advocacy—if I may put it like that—is that I still think that short sentences have a place. One hundred per cent of the women whom I have put in custody have been through multiple community orders and, for one reason or another, have either reoffended or failed to comply with the elements of the order. In my experience—I agree on this with the noble Baroness, Lady Sater—magistrates are acutely aware of the impact. Although it may not be a statutory requirement, it is certainly common practice for there to be a full report, and one would see the impact of putting a woman in custody. However, sometimes, where there are multiple failures of community sentences, that is really the only option available to a sentencing magistrate.

There could be unfortunate side-effects if, for example, sentences of six months or less for women were banned. One would be to undermine community orders themselves if women knew that there was no way they would be sent into custody if they did not comply with the provisions of the order. Another unintended consequence could be—I am not saying this would happen—that women’s sentences would be increased to get to the minimum threshold. That would be an undesirable effect of a minimum sentence.

The whole purpose of the supervision element in the Offender Rehabilitation Act 2014—12 months supervision after a short sentence—was to reduce reoffending: men or women who got short sentences would be supported by the probation services for 12 months. It would be easy to make comments about the Government’s approach to probation and the car crash of the reform the probation service. However, the problems of non-compliance with community orders have always been present, as long as there have been such orders. They were certainly present in the previous probation regimes that I was aware of. The particular vulnerabilities of women in this group have also been well understood—although the importance of domestic abuse is more apparent now than perhaps it was in the past.

I support all the elements of the Government’s female offender strategy to reduce the women’s prison population and to recognise women’s distinct needs. However, it is important that this is properly funded, so that the strategy has a full opportunity to take effect. The noble Baroness, Lady Sater, talked about the importance of women’s centres. I wholly agree with her. My own area of Hammersmith, in London, has the Minerva women’s centre. I have visited it a number of times and, as far as I can see, it is very effective in dealing with women, on both a voluntary and a statutory basis, to try to reduce reoffending. Will there be a commitment on the part of the Government that each of the 11 new probation areas will have specialist women’s support and that that will be a requirement when putting together support packages in those areas?

On one point I differ from the noble Lord, Lord Farmer, and the noble Baroness, Lady Sater. It is a note of caution on the role of video or Skype links for mothers with children, based on my experience in the family courts. I absolutely understand and support the point that this is, or can be, a good way of maintaining family relationships. However, I deal with this type of arrangement for people in prison and for families where the parents have split up and, unfortunately, the arrangements can lead to further conflict if not sensitively handled. They can undermine the person who is actively caring for the child. From what I have been told, the children can find doing these regular Skype conferences a burdensome obligation. So they are desirable but they need to be managed in a sensitive way. This certainly happens in the family courts system; there are programmes to allow children to either maintain or restart relationships. But beyond that, I support the recommendations of the noble Lord.

Feltham Young Offender Institution

Lord Ponsonby of Shulbrede Excerpts

Wednesday 24th July 2019 Lords Chamber

[Lord Keen of Elie]

My Lords, Feltham A has had a progressive regime in place since early May to account for the fact that the prison is able to deploy only about 100 staff against a target of 151, due to temporary absences. Given the limited staff available, the progressive regime is designed to provide young people with greater consistency and predictability by laying down a weekly timetable whereby they are facilitated with a scheduled day and evening each week with a guaranteed minimum commitment from staff to them—that is, time out. However, it is fair to say that the regime has been disrupted, and we are now moving away from the progressive regime, with an increased use of other means of delivering out-of-cell time. I cannot give precise figures because it is in flux at present.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I visited Feltham just over a year ago. At that time, I was told by the prison officers who showed me around that the police unit based at Feltham had been withdrawn; as I understand it, the unit was looking at gangs within Feltham and how they relate to the wider community. Was what I was told correct? Was the police unit withdrawn, and might this have had an impact on the deterioration in behaviour that we have seen in recent months?

[Lord Keen of Elie]

My Lords, I am not aware of the withdrawal of a police unit from Feltham and therefore cannot comment on that point. But I undertake to write to the noble Lord and I will place a copy of the letter in the Library.

Courts and Tribunals (Online Procedure) Bill [HL]

Lord Ponsonby of Shulbrede Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 10th June 2019 Lords Chamber

Moved by

[Lord Ponsonby of Shulbrede]

1: Clause 1, page 1, line 9, leave out “or require”

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I shall speak also to Amendment 6, which is in the first grouping. On Amendment 1, HMCTS has acknowledged that its assisted digital programme will not be sufficient to support everybody to engage with online processes and has therefore made a commitment that digital services will not be mandated. In relation to the reform agenda, it has been stated that HMCTS will continue to make provision for litigants to continue to use paper documents in accessing family court proceedings. It is therefore concerning that Clause 1(1)(a) would allow the Online Procedure Rule Committee to make rules requiring certain proceedings to be initiated electronically, and that Clause 1(1)(c) would allow rules requiring parties to participate electronically.

The purpose of this amendment is to make it crystal clear that people with particular vulnerabilities will not be required to participate in court proceedings, particularly family proceedings, in a digital way. I think the Government have been too optimistic when looking at the proportion of the population that is digitally excluded. The figure they have is that 18% of the population do not use computing equipment, but I would argue that that number is far too low. When one looks, for example, at the population using internet banking or similar sensitive issues, it is only 56%. I believe it would be helpful if it were clearly stated in the Bill that there will not be an expectation for parties to engage with any family court proceedings online and that paper channels will always be available to anyone who chooses to use them.

Amendment 6 is also part of this group. Clause 1(6) would allow the Online Procedure Rule Committee to set out circumstances under which proceedings should be transferred to a full court hearing, and therefore no longer come under the OPR. Although it may be useful to provide some clarity as to when cases can be transferred, I would be concerned if this resulted in any restriction of judicial discretion, and that any individual case could be transferred to a court hearing if it was required. The purpose of Amendment 6 is to make this point explicit in the Bill. I beg to move.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, Amendment 3 is in my name and in the names of my noble friend Lord Beith and the noble and learned Lord, Lord Judge. This amendment seeks to have the Bill offer a choice to parties between filing forms and other documents under the Online Procedure Rules by electronic means or submitting them on paper. At Second Reading, the Minister said that the Government recognised,

“that not all court and tribunal users will be able to engage online and so paper routes will continue to be available for those who need them”.—[Official Report, 14/5/19; col. 1506.]

The noble and learned Lord has repeatedly said that litigants will have a choice between filing documents electronically and filing paper documents, the intention being that paper documents will be scanned into the online file and available thereafter to be accessed online if desired. That promises a perfectly acceptable arrangement, but I suggest that we need a guarantee that it is going to happen.

For many, this is a matter of considerable importance. While no doubt the electronically literate with access to computers and the internet will choose to produce and file documents online, Lord Justice Briggs, as he then was, recognised in his review the difficulties that would face litigants who are unable to use or access computers. Such difficulties are compounded by the facts that for many there are serious financial challenges in accessing online resources, and that in many areas of the country access to acceptably fast broadband is unavailable. In spite of some progress in this area, I interpose that our inability to guarantee fast broadband across the United Kingdom is shocking.

If the Government intend to ensure a choice for parties between online and paper documents, there can be no good reason for them failing to spell that out in this legislation. Whatever the Government’s good intentions may be, there is no guarantee that a future Government will honour a commitment that is not on the face of the statute. This is not a matter where a statement of intent by the Minister will satisfactorily safeguard future litigants. There can be no downside to incorporating the choice in the Bill.

--- Later in debate ---

[Lord Keen of Elie]

With respect to my noble and learned friend, my understanding of the position is that the rules will require that certain forms of action—for example, small debt action—should be commenced under the simplified Online Procedure Rules by way of the digital portal, whether you go through electronically or, as I mentioned before, by way of a paper application. However, once that process is in train, there will be a retained judicial discretion to decide whether the case should remain under the simplified online procedure or whether it would be more appropriate for it to be removed from that procedure and to proceed under the ordinary Civil Procedure Rules to an oral hearing.

[Lord Ponsonby of Shulbrede]

My Lords, I thank all noble Lords who took part in this short debate, which has covered quite a wide area. I understand the point made by the Minister about these being civil actions for relatively small amounts of money, and not having the discretion as regards initiating proceedings on paper if that were the case. Although this is the main focus of the Bill now, it has wider connotations—a point made by the noble Earl, Lord Listowel. Some of us, including myself, are thinking about this from other perspectives such as the family jurisdiction.

When addressing Amendment 4, the noble Lord, Lord Marks, made an interesting point, asking what happens when both parties agree to proceed with online proceedings. I thought he intimated that there should be an expectation that they would indeed go ahead with online proceedings. Certainly, from the perspective of somebody who sits in the family jurisdiction, I would say that that would not be appropriate. Whether matters go ahead either online or otherwise should be retained as a judicial decision because it is not unusual for parties to agree to something that is inappropriate in the family courts; the court needs to take a separate view.

Having said that, I thank the Minister for addressing the points; I suspect we will return to them at a later stage. I beg leave to withdraw my amendment.

Amendment 1 withdrawn.

Moved by

[Lord Ponsonby of Shulbrede]

2: Clause 1, page 1, line 14, at end insert—
“( ) Civil Procedure Rules, Family Procedure Rules, Tribunal Procedure Rules, employment tribunal procedure regulations and EAT procedure rules must determine for the relevant jurisdiction which proceedings can be governed by the Online Procedure Rules Committee.”

[Lord Ponsonby of Shulbrede]

My Lords, Amendment 2 addresses Schedule 2 on the Online Procedure Rule Committee, how it relates to proceedings under the standard civil, family and tribunal procedures rules, and when these do not apply. Although I appreciate the importance of a clear process indicating which rules govern proceedings—and giving precedence to one committee does achieve that—I am concerned that the result will be the OPRC being able to make decisions about the appropriateness of online procedures for cases without input from the Family Procedure Rule Committee or other relevant jurisdictional committees. Amendment 2 could resolve this issue by clarifying under Clause 1 that the relevant jurisdictional rule committee must determine which proceedings can be governed by Online Procedure Rule Committee.

On Amendment 8, Clause 1(1)(b) would allow the OPRC to designate any family proceedings to be dealt with online. While I appreciate that the aim of the legislation is to be permissive, with the details to be delegated to the OPRC, I am concerned that no limits are set out in the primary legislation in relation to the appropriateness of online processes within the family court. At Second Reading, I raised concerns about the appropriateness of full video hearings in the family court. The president of the Family Division has said that, in the vast majority of cases, face-to-face hearings would normally be required for contested cases involving oral evidence, multiparty cases concerning litigants in person, or any cases concerning children. It can be the case that not all participants have to be present in court. I know that is fairly common practice in other parts of the country, depending on the distance to be travelled, when turning to the family court. But the general expectation should be that anything to do with the family jurisdiction—any contested matter—should be held in person and not online.

I beg to move.

[Lord Beecham]

My Lords, I refer to Amendments 7 and 8 in this group. I suspect that the inclusion of a reference to criminal justice proceedings is otiose; I hope so. No doubt the Minister will confirm that, in which case I will not press the issue; it would be entirely unnecessary, as indeed it should be.

There is a concern about possession claims for homes. We in your Lordships’ House are all aware of the great pressure on the housing sector and the vulnerability of a great many people in private rented accommodation in particular. It seems sensible that they should not be included in the general proposition of reverting to digital processes, because I suspect they are the least likely to be able to cope with that way of proceeding. I hope the noble and learned Lord will give that some further consideration, although he may not necessarily respond one way or the other today. Given the state of the housing market and the well-known difficulties experienced by so many tenants—and the difficulties they would have in proceeding under the provisions of the Bill, particularly in the absence of legal aid and advice in so many parts of the country—it would be wrong to include them in a system which would effectively give them no recourse to advice and support.

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[Lord Keen of Elie]

To clarify, I believe I said that many housing issues are currently governed by the Civil Procedure Act 1997. They are therefore subject to civil procedural rules and could, in turn, be subject to rules introduced by the OPRC for digital access. There is no present intention to address that in the context of housing. I went on to add that, at present, there is an online procedure for some forms of housing claim, such as possession claims, which can be made through the relevant website. I emphasise that housing cases fall within the wide remit of this legislation, but there is no present intention to embrace them within the OPRC.

[Lord Ponsonby of Shulbrede]

My Lords, I thank noble Lords who have spoken in this short debate. I understand the central point made by the Minister: that he does not want any statutory limitations on the relationship between the various committees. My Amendment 2 gave one model of a relationship between the two committees. I shall withdraw the amendment, but there is no statutory relationship between any of the committees at the moment. That may have to be developed over time. It may not be for this Bill, but all the committees will have to have a close working relationship which will have to be developed one way or the other. Nevertheless, I beg leave to withdraw the amendment.

Amendment 2 withdrawn.

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Tabled by

[Lord Ponsonby of Shulbrede]

20: Clause 7, page 7, line 24, leave out “at least three” and insert “a majority of”

[Lord Ponsonby of Shulbrede]

My Lords, if I may say a word out of turn, I am grateful to the Minister for what he said about my Amendment 20 and for saying that he will consult about agreeing something along its lines. I also want to make a point about Amendment 15, which we have also passed, which is that magistrates are represented under statute, under the other rule-based committees.

[Lord Keen of Elie]

I will briefly clarify the position for the noble Lord, Lord Ponsonby. I was not undertaking to consult to agree, but to give further consideration to the matter before Report.

Courts and Tribunals (Online Procedure) Bill [HL]

Lord Ponsonby of Shulbrede Excerpts

Tuesday 14th May 2019 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I remind the House that I sit as a magistrate in London; I sit in the adult, youth and family jurisdictions. I welcome the underlying aim of the reform agenda and its aim to improve the efficiency of the justice system, while ensuring equal access and fair process within our courts.

First, I will talk in some detail about the family jurisdiction. My first concern is that the Online Procedure Rules Committee, the OPRC, should not require certain proceedings to be initiated electronically. The Government are too optimistic when they look at the figures for members of the public who are digitally included. The Government’s figures that I have seen quoted are that 82% of the population are comfortable using the internet. However, if one looks further, one sees that only 56% of the population use the internet for sensitive issues such as banking or shopping. Older people and people with disabilities and vulnerabilities are more likely to be digitally excluded. The people I see in court are very often disadvantaged in some way. It should be clearly stated in the Bill that parties will be able to engage in proceedings using paper if they so choose.

I turn to particular aspects of the Bill. Section 1(6) allows the OPRC to set out the circumstances in which proceedings should be transferred to a full hearing. I am concerned that there should be no restriction on judicial discretion to respond to specific circumstances and order that a court hearing is required.

On designation, Section 2(1)(b) allows the OPRC to designate that any family proceeding can be dealt with online. I understand that the aim of the legislation is to be permissive. Nevertheless, it will be the case that the vast majority of family cases will not be appropriate for an online hearing. The president of the Family Division has said that,

“for contested cases involving the giving of oral evidence, multi-party cases, cases concerning Litigants in person, and/or cases concerning children”,

a face-to-face hearing would normally be required. I believe that that, too, should be reflected in the Bill.

Section 4 deals with the membership of the OPRC. At present there is no requirement for any representative member of the committee at all, let alone from the family jurisdiction—no requirement for either a judge or a magistrate. Maybe this should be looked at—although I noted what the Minister said about being able to consult and change the membership as different issues are raised. Nevertheless, the lay magistracy is the largest judicial cohort in the country and it is currently represented on the Criminal Procedure Rule Committee and the Family Procedure Rule Committee.

I will make some more general points about the road that we are travelling down with regard to the reform agenda and the attempts to digitise the courts process. Last week I was reading an article in the freesheet City A.M., which is a business paper. There was an article by a journalist, who is also an economist, called Paul Ormerod. He was writing about the pitfalls of the constant push to introduce new technologies. The example he used in his article was of poor technologies—“so-so technologies”, he called them—being introduced. They can have the effect of automating customer service, be it in banking or supermarkets, and putting more obligations on the receivers of those services—the customers.

In our banks and supermarkets, we have seen a big reduction in jobs, but we have not seen a noticeable reduction in costs. As far as I am concerned, the service I receive as a customer in my bank or supermarket is not as good as it was. Of course, there are parallels with this in the courts service. As the Minister said, quite a few systems have already been introduced over a number of years, and I think it is fair to point out to noble Lords where the systems have been falling short of expectations.

The first example is magistrates’ courts, which use digital technology extensively at the moment. A survey of HMCTS staff who work in magistrates’ courts found that 85% of respondents said that this was having a negative impact on the timeliness of their work. Perhaps more worryingly, 81% said that it was interfering with their ability to give proper legal advice and ensure that those who attend court had a fair hearing. That is of concern.

The second example is applying for a divorce online. The regional divorce centre at Bury St Edmunds had unprecedented delays last year. Freedom of information figures showed a 9% increase in the time taken to issue a decree absolute and a 17% increase in the time taken to issue a decree nisi. Those were the figures for 2017-18.

I am aware that this is a difficult thing to do. In my own working life I have introduced computing systems; it is not straightforward and it requires persistence. But there also needs to be honesty about whether we will actually deliver a better service for people using these technologies, and whether we will have procedures that will review the services and will be frank about the benefits to the people supplying them and receiving them. Staff need to be supported as these technologies are introduced. Ultimately, there is really only one consideration, which trumps all others: are we delivering improved access to justice? One role of this committee should be to find a way of measuring whether access to justice is being improved.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, on the last point, I am not aware of any proposal to attempt to replicate the ability of our judiciary with artificial intelligence. I am obliged to the noble Lord, Lord Beith, for his acknowledgement that the Government are seeking to leap into a gap rather than an abyss.

I will begin by making a number of general observations before I respond to the particular points raised by noble Lords—at this stage in the process we are listening and will consider the points made. First, there is concern that powers under the Bill will enable the Lord Chancellor to take extraordinary steps with regard to the judicial system; for example, by requiring rules that dispose of rights to an oral hearing across the board, perhaps, rather than just in particular cases. Let us be clear, those powers already exist. They are not exercised in that fashion and there is no intention to do so. That is not the purpose of this legislation.

The overarching powers of the Lord Chancellor with regard to the rules and the rules committee already exist with respect to the civil, family and criminal rules committees. This simply reflects that fact. There has been no suggestion in the past that the Lord Chancellor, who ultimately would always be answerable to this Parliament, would seek to abuse any powers he might have in that respect.

Furthermore, the Bill is intended to introduce the opportunity for additional, but simplified, court processes. It is not replacing the existing processes. At the prompting of Lord Justice Briggs’ report, it introduces the idea of a far simpler and more accessible system of disposal with regard to civil courts, family courts and tribunals. It is intended that it should be implemented in the first instance in the area of financial claims, where we already have some digitisation—a digital portal—and extend, in due course, to family law claims. I do not understand there to be any intention to extend it to the Court of Protection. I am not aware of any intention to extend it to housing claims but I will take further soundings on that point and respond to the noble Lord, Lord Beecham, when I have done so.

I emphasise again—and this is partly in response to the points made by the noble Lord, Lord Ponsonby—that we are intending to introduce an additional, much-simplified procedure that people can employ. Of course, we recognise that not everyone will wish to engage in that procedure, although why they would want to pursue a more complex and less accessible procedure might be difficult to fathom. We understand that some people will find it difficult to engage with such a digital procedure and that is why we intend to take steps to make assistance available to people, whether by telephone, other electronic means or face to face. As the noble Lord, Lord Marks, indicated, provisions are already in place for such face-to-face advice to be given.

Some people may want to engage in the simplified procedure but to do so in writing. There will be scope to do that. Somebody may put their claim in writing, rather than online, and that written claim may then by scanned on to the system. Somebody may respond to a claim in writing. Whether it is then appropriate for the claim to remain on the online system will be a matter of judgment at the time, depending on how parties respond to the system. As I understand it, there will be the ability to engage in the simplified process even if there is difficulty in actually entering the online system itself. However, there may come a point where there is really nothing to be gained from having people pursue such written forms along the lines of this new set of rules, and they may then revert to the existing civil procedures. That remains to be seen.

The noble Lord, Lord Ponsonby, talked about consultation and the potential for pitfalls with new technology. We are very conscious of that. The intention is to pilot the schemes and reflect what has already been done with regard to small financial claims by extending the limits for those claims. Overall, though, I emphasise in response to the noble Lord that we intend to introduce a simplified process that does not replace the existing process but will provide the means by which people without recourse to legal advice and guidance will be able to pursue a claim; in other words, as Lord Justice Briggs observed, a process that is designed not by lawyers for lawyers but for the use of the lay person.

[Lord Ponsonby of Shulbrede]

My Lords, the Minister has made that point twice. Does that mean that we will see two systems operating within the family jurisdiction: the simplified online system, to which the Minister has referred, and the existing paper-based system, which the Minister is saying is more complex? Will there be two systems operating in parallel?

[Lord Keen of Elie]

I do not suggest that there will be two systems operating in parallel, although it is perhaps the use of that word that I am concerned with. This will be the staged introduction of a simplified process that will cover simplified claims and, in due course, family law claims. It will not replace the family rules that already exist; it will be an additional, simplified process that people can engage in through a digital portal.

As I say, those wishing to use the simplified process may begin in writing and then see that written claim scanned into the system. They will still be using the simplified system of rules that it is intended should be introduced. There may be cases—this is where judicial discretion will come into it—where it is determined that it is not appropriate for a case to continue in that simplified process. There could be any number of reasons for that to occur and I would not seek to speculate on what they might be. That will be the outturn of the application of these processes once the relevant rules have been made and applied to particular types of claim.

The noble Lord, Lord Beith, asked what would happen when one party wanted to use the online process and another did not. As I have sought to explain, it will be essentially a situation in which a claim will be made using the simplified process. If it is not made online, it may be made in writing and then scanned into the process. Whether it is feasible for it to continue in the digitised process, we will have to wait and see. However, the idea is certainly to give the claimant the option as to where he begins with the claim. At the end of the day, there is an element of flexibility, I hope.

I turn to the observations of the noble and learned Lord, Lord Judge. He touched first upon the membership of the rules committee. The intention is that the rules committee should be kept relatively small and flexible. There is of course provision in the Bill for changes to be made in the constitution of the committee depending upon our experience, but this is going to be the starting point to see how easily it can work. Regarding the membership of the committee, with two appointed directly by the Lord Chief Justice and three by the Lord Chancellor after consultation with the Lord Chief Justice, the noble and learned Lord brought out the idea that where we have consultation within the Bill, we should replace it with concurrence. I question whether that would be appropriate. I hear what has been said on that point by number of noble Lords, but there is a balance to be struck here. For example, within the provisions of the Bill itself, where there is a need for regulation to be made subject to the affirmative procedure, noble Lords will see that there is to be consultation with the Lord Chief Justice.

Examples can be found in Clause 2, which addresses “‘Specified kinds’ of proceedings”. Regulations there are,

“subject to the consultation requirement”,

with the Lord Chief Justice, among others, and,

“subject to affirmative resolution procedure”.

The same applies to Clause 3. However, in circumstances such as those in Clause 6, where there is to be consultation, there is also a provision for the negative resolution procedure.

At the end of the day, it is the Lord Chancellor who will be answerable to Parliament. It strikes us as unattractive to have a situation in which the public, the Executive and Parliament wish to see a change in procedures and process, but the Lord Chief Justice can effectively veto any such change because he is not prepared to give his concurrence. The Lord Chief Justice is not answerable to Parliament but the Lord Chancellor is. In those circumstances, it would be for the Lord Chancellor to answer to Parliament after consulting the Lord Chief Justice.

Before I go on to a contrasting situation, the noble and learned Lord, Lord Judge, said that of course the Lord Chancellor can always come back to Parliament if the Lord Chief Justice will not give concurrence. Yes, he could, to try to seek primary legislation to overcome that issue and amend the existing Act. Given the legislative process, it might take years to address a situation in which changes are desired, if the issue is one of concurrence not consultation. Therefore, I do not believe that that is an answer to our concern on this point.

I will mention a contrast. Parts 1, 2 and 3 of Schedule 1 to the Bill deal with practice directions, which are given by the Lord Chief Justice to the judiciary. Those are very much the responsibility of the Lord Chief Justice, and in these circumstances, his obligation goes only so far as to consult the Lord Chancellor. I suggest that there is an element of balance here. When a matter falls very directly within the responsibility of the Lord Chief Justice, as with practice directions, he is required only to consult the Lord Chancellor, and when a matter falls very much within the responsibility of the Lord Chancellor, because he is answerable to Parliament, he is required only to consult the Lord Chief Justice. That is the balance that the Bill seeks to achieve in this context. It may not be a balance that is acceptable to everyone, including the noble and learned Lord, Lord Judge. I hear what he said on this point and it is something I will consider before Committee. Nevertheless, that is how I would explain the present position.

I turn to a number of points made by my noble and learned friend Lord Mackay of Clashfern. He mentioned the dangers of any electronic system and what he termed “leakage” therefrom. That is a perennial problem for us all, but it is one we are conscious of and will seek to guard against. I see no reason why there should be any greater problem there than there is with the present judiciary.

My noble and learned friend Lord Mackay also asked whether the Court of Protection would be covered. Strictly, one could argue that the proceedings of that court are civil proceedings, but there is no intention to make them subject to this simplified procedure. As I understand it, we are concerned in the first instance with financial claims, and thereafter with developing this in respect of family law claims. Each step of the way will involve a process of consultation, not only with the relevant committee but with the Lord Chief Justice, the Secretary of State—in so far as it deals with employment tribunals and employment appeal tribunals—and the Senior President of Tribunals.

My noble and learned friend Lord also raised an issue about the quality of justice being attributable to the judiciary—with which I entirely concur—and concerns about such matters as pensions, which are currently being considered and addressed by us. I do not take that matter further.

He also raised the question of Scotland, because, in respect of the employment tribunals and employment appeal tribunals, these provisions extend to Scotland. Of course, at present, these are UK-wide jurisdictions, which is why the provisions with regard to appointment to the committee are set out as they are. There will be developments there because, under the amended Scotland Act, the Scottish Government will, in due course, be able to take up responsibility for employment tribunals and employment appeal tribunals. As and when that happens, the whole process will be handed to them and will come under their own tribunal legislation. In the meantime, we have consulted, not only with officials but with Ministers in the Scottish Government, who have expressed themselves content with the way the present provisions are formulated. I hope that brings some relief to my noble and learned friend.

The noble and learned Lord, Lord Thomas of Cwmgiedd, also welcomed the Bill. He raised a number of questions about how it would operate in practice. He emphasised a point made by Lord Justice Briggs: the whole point of this process is to bring forward a set of rules—a system of justice—that is not only accessible to lay people but understood by lay people. That is what lies behind much of what we propose in this legislation. We will ensure that those lay persons are given assistance in accessing these digital portals. I do not consider it necessary to place that in the Bill, and I question the way in which that might be done. I suggest that it is better that we have sufficient flexibility to ensure that, as technology develops, we can respond to those developments and make the appropriate provision available for those lay persons who wish to employ these processes.

My noble friend Lord Faulks and other noble Lords referred to the programme of court closures. There is no direct link between these proposals and court closures, but if this digital process is successful, we may see a reduction in the demand for physical court structures. However, that is an incidental point and not the intent behind this legislation, which is to improve access to justice for all. On that last point, I am reminded that my noble and learned friend Lord Mackay also raised the question of small businesses being anxious about fees and related matters. Of course, if we can develop this digital process successfully, the cost of litigation should be reduced. I hope that gives some reassurance to parties such as small businesses.

The noble Lord, Lord Beecham, raised a number of issues—including housing, on which I will write to him—about the powers available to the Lord Chancellor. He referred in particular to Clause 9. The Lord Chancellor’s power there is subject to the affirmative procedure. That is expressly provided for already. There are a number of instances in which there is provision for the negative procedure, but the power in that clause requires the affirmative procedure.

The noble Lord referred to Clause 8 and asked what would be a “reasonable period”. I have to respond: how long is a piece of string? That would be addressed in the facts and circumstances of any case, but it is not something we could anticipate at this stage. The purpose of these provisions is to provide the maximum flexibility for the provision of a simple and accessible set of rules for disposing of civil claims, family claims and tribunal matters. To achieve that flexibility, we have somewhat wide-ranging provisions, but they are no greater or wider than those for the existing Civil Procedure Rules and Family Procedure Rules. They will be exercised subject to consultation or concurrence with the judiciary and disposed of by an independent committee, with the Lord Chancellor being answerable ultimately to Parliament not only for their terms but for their effects.

Finally, on review, it is intended that we will have an interim review in about 2021 and a completed review in about 2023 or 2024. It would not be sensible to seek a review any earlier than that because we need to see how these processes will work in practice and evaluate feedback from those who engage with them.

In these circumstances, and having regard to the reminder I keep getting from my Whip about the amount of time I have, or do not have, left, I commend the Bill to the House.

Probation Service

Lord Ponsonby of Shulbrede Excerpts

Thursday 14th December 2017 Lords Chamber

[Lord Keen of Elie]

We do not accept that it is necessary to go back to the drawing board. It is, however, necessary to address the shortcomings in the delivery by CRCs. That is what we are in the course of doing.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, is the Minister satisfied that the CRCs are properly breaching people, given that they are not fulfilling the requirement of their orders? Does he accept that it is extremely important that the judiciary and the magistracy retain their faith in community sentences? If the orders are not properly administered and people are not properly breached, it will undermine faith in those sentences.

[Lord Keen of Elie]

My Lords, I endorse entirely the observations made by the noble Lord. It is for the courts to impose programme requirements as part of the community or suspended sentences orders that they make. Clearly, we have to ensure that they continue to have faith in the system when they are making those orders.

Bach Commission: The Right to Justice

Lord Ponsonby of Shulbrede Excerpts

Thursday 14th December 2017 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, first, I declare an interest: I sit as a magistrate in London. I congratulate my noble friend on his report. I will concentrate primarily on part 2 but will say just a word or two about part 1 and the proposed right to justice Act. If it works, I am in favour of it. My only observation, as someone who sits at the bottom of the judicial pile, is that I regularly see defendants and victims who have difficulty accessing justice. They lack advice, they are confused by the procedures they are dealing with and they have no assistance to better understand the position they are in.

Magistrates’ courts deal with 95% of all criminal cases in England and Wales, so it follows that for the vast majority of individuals who come into contact with the criminal justice system, it is their experience in magistrates’ courts which will give them their faith—or otherwise—in the country’s criminal justice system. There are many wider questions about access to justice. The noble and learned Lord, Lord Thomas, talked about moving to online justice and how there are ever fewer magistrates’ courts in the country, but I shall not talk about that now. For today’s debate, I shall talk about part 2 and the urgent policy changes advocated by my noble friend.

As my noble friend’s report says, the greatest change in civil legal aid brought about by LASPO was the change in support for family law. When I started as a lay family magistrate about five years ago, about half of my sittings were on public law matters and about half on private law matters. Now, it is about 20% public law and 80% private law. Of the private law applications I see, a very large proportion are from litigants in person. All the cases I see would have been considered for mediation. That mediation may have been deemed unsuitable, usually because there are allegations of domestic violence. It is very common to see allegations of and convictions for domestic abuse in the courts in which I sit and if so, there is an availability of legal advice, although the parties sitting in court may not necessarily be aware of that. It is quite common for them to turn up not knowing that they are entitled to legal advice. It is also very common for drugs and alcohol to have played a part in the couple’s relationship, although this factor in itself would not entitle either party to legal aid. A further factor that is very common is mental capacity—either historic or current—in its widest sense. Again, this is not an issue that would entitle either party to legal aid, although it plays a central role in the sorts of cases I hear.

In court appearances there is the applicant and the respondent, and a variety of possible representation. For example, there is the litigant in person, whom the noble and learned Lord, Lord Judge, spoke about. Applicants and respondents may be represented by a lawyer, either privately funded or legally aided. They may be accompanied by a McKenzie friend; we do not know how expert that McKenzie friend is. They may be accompanied by a friend or a family member just to give them moral support. They may be represented by a student lawyer—student lawyers do have a right to speak; in my experience, they are often very good—or they may be accompanied by a volunteer from a personal support unit, if available. This is just in London, where there is a patchwork of provision. It is uneven. I have a list of six possible people who could sit in court with either the applicant or the respondent.

When we sit in court as magistrates—this is echoing the point made by the noble and learned Lord, Lord Judge—we do not know the advice that the parties have received. Sometimes I feel moved to ask them what advice they have been given. I have to say that I am reluctant to do this because it is very easy to give a perception of bias to one party over the other. On the other hand, if one party is completely unaware of the advice that is available—if they were to go to the personal support unit, or something—it would be an unfair outcome anyway. This puts the magistrates—in my case—in a difficult and sensitive position in trying to resolve these cases.

My noble friend has made six specific recommendations and I want to concentrate briefly on one of them: to have the funding of expertise in court. Expertise in private family matters is often the key to resolving the issue. A common scenario is where there is a history of drug and alcohol abuse, where the mother would be happy for the father to have access to his children if she could be persuaded that her concerns about drug and alcohol use could be allayed. Of course, this is not legally aided, so very often these issues are not resolved and there is no court order giving the children access to their father in the example that I am giving here.

This is an unsatisfactory situation and one in which the court is failing the children who are at the heart of the family system. I very much hope that the Minister will respond to some of the specific recommendations made by my noble friend.