Lucy Frazer contributions to the Courts and Tribunals (Judiciary and Functions of Staff) Act 2018


Wed 12th December 2018 Courts and Tribunals (Judiciary and Functions of Staff) Bill [Lords] (Commons Chamber)
3rd reading: House of Commons
Report stage: House of Commons
50 interactions (4,152 words)
Tue 4th December 2018 Courts and Tribunals (Judiciary and Functions of Staff) Bill [ Lords ] (First sitting) (Public Bill Committees)
Committee Debate: 1st sitting: House of Commons
37 interactions (5,032 words)
Tue 27th November 2018 Courts and Tribunals (Judiciary and Functions of Staff) Bill [Lords] (Commons Chamber)
2nd reading: House of Commons
3 interactions (1,621 words)

Courts and Tribunals (Judiciary and Functions of Staff) Bill [Lords]

(3rd reading: House of Commons)
(Report stage: House of Commons)
Lucy Frazer Excerpts
Wednesday 12th December 2018

(1 year, 8 months ago)

Commons Chamber
Read Full debate Bill Main Page
Ministry of Justice
Louise Haigh Portrait Louise Haigh (Sheffield, Heeley) (Lab) - Hansard
12 Dec 2018, 2:31 p.m.

I rise briefly to speak in favour of the amendments tabled by my Front-Bench colleagues. I believe that safeguards need to be in place to ensure that people are properly qualified to make decisions and particularly that contentious decisions should be reviewed by a qualified judge. I want explicitly to address concerns about how this might transpire in the family courts. Several of my hon. Friends raised the concern in Committee that the family courts could be the most affected by potential delays and the perverse consequences of the measures in the Bill.

This is particularly relevant given the recent exposure of the case of Sammy Woodhouse. I am sure that colleagues will be well aware of her case. I know that the Minister is, and I am grateful to her for meeting Sammy and me last week. Mr Speaker also welcomed Sammy to Prime Minister’s questions last week. Her bravery in putting herself forward, in risking being held in contempt of the family court and in waiving her anonymity to speak about her experiences, so that we in this place can drive change, is inspiring. We owe it to her and to the many other survivors to ensure that we drive change and ensure that what happened to her and to too many other young women and girls never happens again.

Those young women and girls were failed by the state. They were failed by our legal system, by the police, by the Crown Prosecution Service, by local authorities and by government at every level, and now they are being failed yet again by our legal system. Our entirely permissive system, which allows anyone to make an application through the family courts, means that men who have been convicted of rape—in Sammy’s case, the father of her child, Arshid Hussain, is serving a 35-year prison sentence—can apply to the courts for access or visitation rights. Sammy’s case shocked the nation, but unfortunately it was not unique. Just yesterday, I spoke to another woman who had to respond and attend court after the man who was convicted of raping her and fathering her child had applied through the family courts from prison.

This could be prevented through a simple ban on any man convicted of fathering a child through rape applying to the family courts. I know that the Government are reluctant to bring this forward, out of concern for the convicted rapist’s article 8 right to a family life, but I am afraid that that simply is not good enough. I will always defend our human rights as enshrined in the Human Rights Act 1998 and the European convention on human rights—I say this on the day of the 70th anniversary of the universal declaration of human rights—but article 8 is a qualified right and not one that should override the rights of women and children and their safety. Surely, we should be starting from the presumption that if a child has been conceived through rape, the man should have no parental rights to that child and that we should allow such rights only in exceptional circumstances, not the other way round.

When I speak to victims of rape and survivors of child sexual exploitation in situations such as Sammy’s—women who have an almost uniformly terrible experience of the family courts—their feeling is one of betrayal and despair that every day is a battle in which they have to fight for their most basic rights. They are often forced to relive their traumatic experiences and justify themselves over and over, yet they are so often told about the rights of the men who have abused them and who can now click their fingers and drag their victims back through the courts to traumatise them all over again. Women such as Sammy, who have already given evidence, spoken out in criminal trials and been to hell and back, should not then live the rest of their lives trying to bring their children up in horrendously difficult circumstances with the threat of being dragged back through the courts once again to face the man who raped them. It may be the case that no judge would allow such access in any circumstances, but it is surely intolerable for women in this situation to have to face the man in court all over again, and I believe that we as a Parliament should make that crystal clear.

The family procedure rule committee met earlier this week to discuss the consequences of Sammy’s case and to consider amending practice direction 12C. I hope that the committee will be able to bring much greater clarity, but this is likely to be in relation to local authorities’ duty to notify in the case of a care order. That will not solve the problem, and I worry that, combined with the measures introduced in the Bill, it could bring greater uncertainty to the process and leave victims with even greater uncertainty and fear that their abusers might be able to weaponise the courts against them. As I have said, I am grateful to the Minister for meeting Sammy and me last week, but we were both really disappointed that the Government were not willing to take more immediate action to address this thoroughly intolerable situation. I hope that the Minister will be able to update the House on what action they have now considered and on the implications of the Bill for this important issue.

Lucy Frazer Portrait The Parliamentary Under-Secretary of State for Justice (Lucy Frazer) - Parliament Live - Hansard
12 Dec 2018, 2:36 p.m.

It is an honour to take this Bill through its final stages. I should like to start by addressing some of the key points raised today by the hon. Member for Bolton South East (Yasmin Qureshi). She suggested that we were sneaking the Bill through the House. However, it was introduced seven months ago. Not only that, but it forms part of the Prisons and Courts Bill, which was introduced in this House in 2017 and which fell at the general election. The provisions in this Bill have been well known for some time. They have been debated in this House, and they are not being sneaked anywhere at all. The thrust of the hon. Lady’s speech was that this is a Bill about cuts, but it is certainly not. The Bill is part of our £1 billion court reform programme.

Neil O'Brien Portrait Neil O’Brien (Harborough) (Con) - Parliament Live - Hansard
12 Dec 2018, 2:37 p.m.

My hon. and learned Friend is making an important point. In 2010, this country faced its largest budget deficit since the second world war, and all that my constituents want is value for money from the Government. The measures that we are taking forward today may not be the most exciting or sexy things that we will do this House, but they are a key part of value-for-money government.

Lucy Frazer Portrait Lucy Frazer - Hansard
12 Dec 2018, 2:37 p.m.

My hon. Friend makes an important point that has a number of aspects. First, my Department had to make cuts in 2010 because of the poor financial situation that we inherited from the Labour party. Secondly, it is important that we deliver justice fairly to those who are part of the justice system, but as he says, we also have a duty to the taxpayer. Overlaying those two points is a third point. Notwithstanding the position we inherited and notwithstanding our duty to taxpayers, my Department is undertaking a significant reform programme that is investing in our justice system. A couple of weeks ago, the Ministry of Justice held a conference at which more than 20 countries from around the world were represented. They talked about their own reform and modernisation programmes, but ours is one of the most ambitious. We are at the forefront of innovation, and we are investing in our justice system to bring it up to date in the 21st century.

Sir Robert Neill Portrait Robert Neill - Hansard
12 Dec 2018, 2:39 p.m.

Is this not also important in the context of the speech by Lord Thomas of Cwmgiedd in the other place? He said that

“the operation of the criminal, civil, tribunals and family procedures rule committees has enabled us far more than any other state to keep our rules up to date.”

We need to continue to do that. That is why he stated:

“I urge the greatest caution in trying to put into primary legislation anything that restricts in this way the powers of the rule committees.”—[Official Report, House of Lords, 16 October 2018; Vol. 793, c. 425.]

Lucy Frazer Portrait Lucy Frazer - Hansard
12 Dec 2018, 2:39 p.m.

That is an important point. Our justice system is renowned throughout the world, thanks to its flexibility, which is enabled by the rules committees along with the other measures that allow us to develop our jurisdiction.

The hon. Member for Bolton South East finished by suggesting that we should listen and take the amendments on board, but we have listened and made amendments. We made amendments in the other place to include safeguards and improve the Bill.

Kevin Hollinrake Portrait Kevin Hollinrake - Hansard

The Minister makes a good point about our duty to the taxpayer. Irrespective of this nation’s financial situation, we always have a responsibility to spend the taxpayers’ money wisely. As she knows, Northallerton magistrates court in my constituency will close. She has put in place some mitigation measures to help people to continue to have access to justice, but will she ensure that those measures are in place before the closure of that court?

Lucy Frazer Portrait Lucy Frazer - Hansard
12 Dec 2018, 2:41 p.m.

My hon. Friend and, indeed, Mr Deputy Speaker have campaigned hard about the closure of their local courts, and the dispensing of local justice is important in Northallerton, as it is in Chorley. My hon. Friend makes an important point, because, following campaigning by my hon. Friend and his constituency neighbour, my hon. Friend the Member for Richmond (Yorks) (Rishi Sunak), we committed not to close the court on the basis that we would do so only when the technology was in place to ensure that we could continue to deliver justice. We need to move with the times, but we must also ensure that people get fair procedures and justice in the tribunals.

Sir Robert Neill Portrait Robert Neill - Hansard

My hon. and learned Friend is being most generous in giving way. Does she also recognise that modernising and simplifying procedures saves money not only for the taxpayer, but for litigants? Part of access to justice is about reducing needless costs for litigants.

Lucy Frazer Portrait Lucy Frazer - Hansard

That is an important point, because when we talk about what we have saved, we often mean what has been saved at the Ministry of Justice, but the reality is that ensuring that justice is served for the people who use it is at the heart of our reforms. Many of our changes have received positive feedback. In a recent trial at the tax tribunal, people were able to access justice from remote locations and not have to go to a physical court. That was well received, because people did not have to disrupt their day by physically entering court. Of course, that will not be appropriate for everyone, but we must ensure that we use the advantages of technology in the future.

Simon Hoare Portrait Simon Hoare (North Dorset) (Con) - Hansard
12 Dec 2018, 2:43 p.m.

I am grateful to my hon. and learned Friend the Parliamentary Under-Secretary of State for Justice for giving way—[Laughter.] That bought us 32 seconds. I am interested in what she has said. Is she able to dilate—preferably at some considerable length—on the benefits that might accrue from people not having to go to court in rural areas, such as North Dorset, where public transport is scarce and where not everybody has access to a motor car? The changes could be of huge benefit to large, sparsely populated rural areas such as mine.

Lucy Frazer Portrait Lucy Frazer - Hansard

My hon. Friend makes an important point, and I also represent a rural area. Interestingly, some of the greatest and most interesting innovations at our conference were from Australia, where the geography is an issue, and we can learn a lot from its procedures. Over recent years, 300,000 people have started engaging with our online services, which have been well received.

Simon Hoare Portrait Simon Hoare - Hansard
12 Dec 2018, 2:44 p.m.

Will the Minister give way on that point?

Lucy Frazer Portrait Lucy Frazer - Hansard
12 Dec 2018, 2:44 p.m.

I will take one intervention and then address the amendments.

Simon Hoare Portrait Simon Hoare - Hansard

I am grateful. Can we read across from what my hon. and learned Friend says that she is making strong representations to ministerial colleagues at the Department for Digital, Culture, Media and Sport, to BT and to other providers to ensure that hotspots, blackspots, notspots—call them what you will—in rural areas that are poorly served by a reliable, speedy, robust internet will be filled to allow all our citizens to access justice and make representations using technology? With the best will in the world, if the technology is not there—I know that my hon. and learned Friend knows this—people will not be able to use it.

Lucy Frazer Portrait Lucy Frazer - Hansard
12 Dec 2018, 2:45 p.m.

My hon. Friend makes a second important point, which is that we cannot roll out and continue to use technology unless the technology actually works. I regularly talk to Her Majesty’s Courts and Tribunals Service and others about the importance of ensuring that the systems that we already have in place work well, so that the technology does not fail us when we are trying to hold court hearings.

Neil O'Brien Portrait Neil O'Brien - Parliament Live - Hansard
12 Dec 2018, 2:45 p.m.

Further to the important point made by my hon. Friend the Member for North Dorset (Simon Hoare) about virtual and online courts and creating hassle-free access to courts for all constituents, can the Minister give us figures for the extent to which the change has helped to unclog our courts? One of the benefits of the Bill for my constituents is not just hassle-free access for them, but the fact that our courts will not be clogged up by the traffic cases and small beer that lead my constituents to wonder why serious criminals take years to be processed. Will the Minister give us some stats about the growth of virtual and online courts and what this Bill will do to those stats?

Lucy Frazer Portrait Lucy Frazer - Parliament Live - Hansard
12 Dec 2018, 2:39 p.m.

I mentioned earlier that 300,000 people have already started engaging with our services online. They can apply for probate or divorce online, and many people are doing that. We also have our new online civil moneys claim court, which enables people to apply online and defend online. In one case in the first week after its launch, we had a settlement without people going to court at all. Technology will not only enable us to unclog our courts and get quicker hearing times, but give our constituents better access to justice because more people will be engaging with it. It will be cheaper for them to engage, and therefore more people will be able to access fairness and justice in the resolution of their claims.

I turn to the essence of the Bill and the Opposition amendments. Amendment 1 relates to clause 3(3), which provides for the use of the negative resolution procedure, which the hon. Member for Bolton South East suggested is not appropriate when dealing with the judicial functions of staff. However, the Government think that the amendment is inappropriate for several reasons. First, clause 3(3), which provides for the use of the negative resolution procedure, is not actually concerned with judicial functions. Clause 3(3) is in fact cross-referring to clause 3(2), which allows the Secretary of State to make

“consequential, transitional, transitory or saving”

provisions relating to authorised staff by way of regulations.

In reality, clause 3(3) allows us to amend references in secondary legislation to, for example, justices’ clerk—a post abolished by the Bill—to authorised officer. So far, we have identified over 200 references and over 60 pieces of secondary legislation that would need amendment, and there may be more. It is a standard clause for this type of provision. We know that that is the correct reading of the measure because the power to enable staff to carry out the judicial functions that the hon. Member for Bolton South East is concerned about is actually set out in the procedural rules made by the independent rules committees. This is clear from clause 3(1), which refers not to regulations but to procedure rules. The procedure by which the procedure rules are enacted is set out not in this Bill but in other legislation, namely the Courts Act 2003, the Civil Procedure Act 1997 and the Tribunals, Courts and Enforcement Act 2007.

Amendments 2 to 4 relate to the qualifications of those undertaking advice or judicial functions under the Bill. Amendments 2 and 3 require that any staff member who gives legal advice to lay justices or judges of the family court must be legally qualified and have more than three years’ experience post-qualification. Amendment 4 requires the same qualifications for any staff carrying out judicial functions.

The Government absolutely agree it is important that those who undertake functions in our courts are suitably qualified. As my hon. Friend the Member for Bromley and Chislehurst (Robert Neill) said, and as he has said on many occasions, our justice system is renowned throughout the world, and much of that is down to the experience and quality of our judiciary. Ensuring that those who work within our justice system have the right skills is fundamental to justice.

Neil O'Brien Portrait Neil O'Brien - Hansard
12 Dec 2018, 2:52 p.m.

Members on both sides of the House would agree that we have a world-renowned judiciary. In fact, Members are profoundly nervous when we see headlines in our papers calling judges, “Enemies of the People,” which we would all disavow. These are people who, day in and day out, do things in court that could cause them to be threatened. They are taking risks on behalf of the rest of us, and it is a high-quality system. With that in mind, and given the respect in which the judiciary are held by this House, does my hon. and learned Friend agree it is important that we do not accidentally do them down in this debate? Does she agree it is not right for the shadow Attorney General to suggest, I think unintentionally, that temporary judges may be less impartial than permanent judges? All our judiciary are high quality.

Lucy Frazer Portrait Lucy Frazer - Hansard
12 Dec 2018, 2:52 p.m.

That is absolutely right. As a former barrister, I appeared regularly before experienced judges, all of whom were full of integrity, undertaking important roles.

The hon. Member for Bolton South East suggested that all judges need qualifications of some kind. Of course, we have magistrates across the country who are doing outstanding jobs in our justice system. As my hon. Friend the Member for Harborough (Neil O'Brien) mentions, temporary judges, just like full-time judges and judges who operate on a permanent basis, are recruited because of their expertise and skill. They are trained, and they carry out their roles as they should.

Kevin Hollinrake Portrait Kevin Hollinrake - Hansard
12 Dec 2018, 2:53 p.m.

My hon. and learned Friend mentioned the fine work done by magistrates. Is there any way we could relax the requirements in order to increase the number of cases that may be considered by magistrates? I understand that magistrates are the most cost-effective part of the justice system.

Lucy Frazer Portrait Lucy Frazer - Hansard
12 Dec 2018, 2:53 p.m.

Magistrates undertake a significant number of roles, and they have vital responsibilities. In fact, they deal with over 95% of all criminal cases, the majority of which are less serious criminal cases, but they are very important. I am pleased recently to have attended the Magistrates Association conference, where I met a number of magistrates who are doing vital work across the country.

James Cleverly Portrait James Cleverly (Braintree) (Con) - Hansard
12 Dec 2018, 2:54 p.m.

I declare an interest, as my wife is currently going through the process to become a magistrate. I am struck by how the role of magistrates is so little understood. There are a number of people in my professional and personal circles who might make good magistrates, but they are unaware of the process or of the importance of the role. What more could be done to highlight the significant role that magistrates play in the criminal justice system?

Lucy Frazer Portrait Lucy Frazer - Hansard
12 Dec 2018, 2:54 p.m.

I am pleased to hear that Mrs Cleverly is undertaking this important role. My hon. Friend is right that it is important, and employers do understand. The Lloyds banking group recently won an award for encouraging staff to take time off to undertake this important role, and we need to do more to encourage employers to encourage their staff to take part in this important function.

Simon Hoare Portrait Simon Hoare - Hansard

rose—

Break in Debate

Sir Lindsay Hoyle Portrait Mr Deputy Speaker - Hansard
12 Dec 2018, 2:55 p.m.

Order. We need to move on now. I was very generous before, but magistrates have absolutely nothing to do with the Bill, as the Minister well knows.

Lucy Frazer Portrait Lucy Frazer - Hansard
12 Dec 2018, 2:56 p.m.

I am happy to come on to the three reasons why amendments 2 to 4 cannot be accepted. First, the amendments are not necessary. The functions are already being carried out, and carried out well, by those with lesser qualifications than those sought by the hon. Member for Bolton South East. The qualification requirements for legal advisers in the magistrates court and family court are currently set out in regulations made by the Lord Chancellor, as they have been since 1979, and amendments 2 and 3 would raise the qualifications bar significantly higher than the current regulations and would rule out a large proportion of Her Majesty’s Courts and Tribunals Service staff from giving legal advice in future.

James Cartlidge Portrait James Cartlidge - Hansard
12 Dec 2018, 2:56 p.m.

There are many people in the Chamber with huge legal expertise. All I can claim is spending my year off as a junior outdoor clerk, for which the only qualifications needed were a ponytail and a cockney accent, as far as I could see. From my short experience I discovered the huge number of staff who make up our courts and keep them ticking along. They might be administrative functions, but we should not be afraid of reforming our courts to give those people greater roles that help them to make more of their career.

Lucy Frazer Portrait Lucy Frazer - Hansard
12 Dec 2018, 2:57 p.m.

My hon. Friend makes an important point. Not only is it important to ensure that the qualifications match the role, but these reforms will ensure good career progression for competent and organised staff. Similarly, in relation to amendment 4, it is already the case that some staff can exercise judicial functions in almost every jurisdiction except the Crown court. The range of functions they can carry out varies enormously, as my hon. Friend the Member for Thirsk and Malton (Kevin Hollinrake) pointed out earlier, from legally qualified legal advisers in the county court setting aside default judgments to non-legally qualified caseworkers in the lower tribunal dealing with postponement requests and issuing strikeout warnings.

Accepting amendment 4 would rule out a large proportion of those staff, who are already exercising judicial functions and who may have been doing either or both for a number of years. Such a loss of expertise would be particularly damaging and would impact on the service that Her Majesty's Courts and Tribunals Service can provide. The hon. Member for Bolton South East suggested that introducing authorised staff was damaging to justice, but I did not hear any examples of inappropriate action by any of our current staff who do not currently have those qualifications and who are already carrying out these roles.

Kevin Foster Portrait Kevin Foster (Torbay) (Con) - Parliament Live - Hansard
12 Dec 2018, 2:58 p.m.

The Minister is outlining well the position under the current regulations. Does she agree, therefore, that specifying the needed qualifications in primary legislation would be unwelcome when we already have a perfectly effective system that does not require such qualifications, which could then in future be changed by further primary legislation?

Lucy Frazer Portrait Lucy Frazer - Parliament Live - Hansard
12 Dec 2018, 2:59 p.m.

That is the heart of the Government’s position, and it takes me neatly on to my second point. The Bill, as drafted, already ensures appropriate procedures are in place to ensure that parties are protected. Those points were clearly put by my hon. Friends the Members for Torbay (Kevin Foster) and for Bromley and Chislehurst—the Chair of the Select Committee on Justice always puts things clearly and cogently. The Bill rightly allows the relevant procedure rule committees to set the requirements relating to the necessary qualifications or experience of these staff in the future, depending on the functions they permit staff to carry out.

Kevin Hollinrake Portrait Kevin Hollinrake - Hansard
12 Dec 2018, 3 p.m.

This is an important point. Will my hon. and learned Friend come on to address not only the human cost if these amendments are accepted, with the potential for people in these roles at the moment to lose those jobs, but the financial costs of making those people redundant and replacing them with qualified people?

Lucy Frazer Portrait Lucy Frazer - Hansard
12 Dec 2018, 3 p.m.

Yes, those are important points. A large number of people already carry out these important roles and do so very well, and we would like to retain them.

Both the judicial functions that may be carried out by staff and the accompanying qualification requirements will be set out—it is just that they will be set out in the procedure rules, which are made by way of secondary legislation and are therefore subject to parliamentary scrutiny.

Neil O'Brien Portrait Neil O'Brien - Hansard
12 Dec 2018, 3:01 p.m.

Progressive politicians on both sides of the House believe in labour market progression; they believe people should be able to act up, do more, learn more, take their career further and earn more. By putting in primary legislation artificial demarcations that stop skilled people doing things they are capable of doing, we would be doing people down; we would be putting a limit on their aspirations. That is why we must reject these amendments.

Lucy Frazer Portrait Lucy Frazer - Hansard
12 Dec 2018, 3:01 p.m.

That is an important point. Some people are already carrying out these functions and doing them well, and they will be able to see a future career progression for themselves. The legal and other qualifications they should have will be set out, but they will be set out by the committees, which are judicially led and independent of Government, and include representatives of the legal professions, and court and tribunal users. As my hon. Friend the Member for Bromley and Chislehurst said, the judges placed on those are leading the procedure rule committees and have significant expertise. It is they who are best placed to assess the appropriate level of qualification or experience for authorised staff, in the light of the functions they choose to allow those staff to exercise.

My hon. Friend rightly said that the member of staff will not be able to give legal advice or exercise judicial functions until they have been authorised to do so by the Lord Chief Justice or their nominee, or by the Senior President of Tribunals or their delegate. Authorisations are therefore ultimately the responsibility of the judiciary, and those people will not authorise staff unless they are satisfied as to their competence.

Sir Robert Neill Portrait Robert Neill - Hansard

My hon. and learned Friend will know, and perhaps she will confirm, that the way this works in practice is that either the Lord Chief Justice or the Senior President of Tribunals makes the authorisation. Alternatively, in the case of the civil jurisdiction, for example, this will invariably at least go to the senior presiding judge or the presiding judges of the circuit. We are talking about people who, in their administrative role, never mind their judicial capacity, will have visited and met these—

Sir Lindsay Hoyle Portrait Mr Deputy Speaker - Hansard
12 Dec 2018, 3:03 p.m.

Order. Minister, come on. And you have had three speeches already, Bob, you don’t need to stretch the imagination of the Chamber.

Lucy Frazer Portrait Lucy Frazer - Hansard

My hon. Friend, the Chair of the Select Committee, was making an important point. The rule committees are—

Sir Lindsay Hoyle Portrait Mr Deputy Speaker - Hansard
12 Dec 2018, 3:03 p.m.

Order. Some might think it is very important—[Interruption.] Order. Would the Minister like to sit down for a moment? In fairness, I am beginning to get a little frustrated with the people who were not here for all the speeches; we had no speakers in, and now everyone wants to come in with interventions. I have only got one Member now down to speak on Third Reading, so if people really want to make a contribution, they know what to do.

Lucy Frazer Portrait Lucy Frazer - Hansard
12 Dec 2018, 3:04 p.m.

I hope that more will put in to speak on this important subject. I wish to pick up on what my hon. Friend was saying, because he cited a number of speeches from the other place, where senior members of the judiciary were highlighting the appropriateness of the Government’s position. Lord Neuberger, former President of the Supreme Court, warned that these amendments would place

“a potential straitjacket on the ability to appoint the appropriate people to make appropriate decisions.”

He went on to reflect that there “will be many decisions” for which the experience set out in the amendments

“would be appropriate, but there will be others where less experience would be adequate for the decision-making.”—[Official Report, House of Lords, 10 July 2018; Vol. 792, c. 882.]

Thirdly, I come to an important point that has not yet been mentioned in the House. The amendments would limit flexibility should new routes to legal qualifications emerge. For example, one key change that we have made in the draft regulations that we published alongside the Bill is to include fellows of the Chartered Institute of Legal Executives, or those who have passed the necessary examinations to be a CILEx fellow, among those who can give legal advice. That is a progressive step, but if we were to accept amendments 2 and 3, it would be much harder to respond to such changes in the future, as we would have to amend primary, rather than secondary, legislation.

Furthermore, a legal qualification might not be the most relevant qualification for a particular judicial function. For example, it is more helpful for a registrar in the tax tribunal to be a tax professional by background, rather than a legal professional.

The hon. Member for Bolton South East raised a number of points on independence, and I wish to start by saying that I think the judiciary, whether sitting in court or in committee, has, as my hon. Friend the Member for Cheltenham (Alex Chalk) said when he was in his place, the highest level of independence and integrity.

The hon. Lady queried, both here and in Committee, the independence of authorised staff, implying that those with a legal qualification were more likely to be independent. Under the Bill, all court and tribunal staff who are authorised to exercise judicial functions will now be independent of the Lord Chancellor when doing so, and subject only to the direction of the Lord Chief Justice or their nominee, or the Senior President of Tribunals or their delegate.

The Bill also provides, for the first time, protections from legal proceedings and costs in legal proceedings and indemnities for all authorised staff when carrying out judicial functions, which will further safeguard their independence in decision making.

Finally, amendment 5 deals with the right of reconsideration of decisions taken by authorised staff in the courts. I wish to start by acknowledging that the hon. Lady and the Opposition have listened carefully to the points made in Committee; I note there is now no amendment dealing with decisions taken by staff in the tribunals, and I welcome that.

It is right that in some circumstances a party to proceedings may wish to have the decision reconsidered, but we remain opposed to the amendment for three reasons. First, the Bill already ensures that a right of reconsideration will be available when appropriate. We believe that the independent procedure rule committees—comprised, as I and others have said, of jurisdictional experts and experienced practitioners—are best placed to decide whether such a right of further reconsideration is needed and, if so, the form that that right should take.

Indeed, the procedure rule committees in the civil and tribunals jurisdictions have already included in their respective rules a specific right to judicial reconsideration for decisions made by authorised persons in appropriate cases. For example, the magistrates courts and the family court have their own existing mechanisms for reviewing various decisions, which amendment 5 would cut across.

Secondly, the right identified by the hon. Lady is too broad, even by her own admission. In speaking to amendments in Committee, she said that

“we accept and acknowledge that one should not be able to ask for reconsideration simply because one disagrees with the decision of the authorised person; one must have a cogent reason. There must be proper grounds for requesting a reconsideration.”—[Official Report, Courts and Tribunals (Judiciary and Functions of Staff) [Lords] Public Bill Committee, 4 December 2018; c. 17.]

I was delighted to hear those words, because the Government have also been arguing, both here and in the other place, that a blanket right of reconsideration simply would not work in practice. Yet amendment 5 would give a party in a case an automatic right to request that any decision made by an authorised person exercising the functions of a court be reconsidered by a judge, irrespective of the merits.

Thirdly, the approach we put forward is fair and balanced. The Government listened to concerns about ensuring there were adequate safeguards in the Bill. For that reason, we moved amendments on the right of reconsideration that were accepted on Report in the other place. They effectively require the rule committee, when making rules, to allow authorised staff to exercise judicial functions to consider whether each of those functions should be subject to a right to judicial reconsideration. Where a rule committee decides against the creation of a right of reconsideration, it must inform the Lord Chancellor of its decision and the reasons for it.

The hon. Lady also referred to the Briggs report, and I would like to touch on that very briefly. The recommendations made by Lord Justice Briggs are taken from the report “Civil Courts Structure Review”, the focus of which was the courts of the civil jurisdiction. While an unqualified right of reconsideration might have been appropriate to recommend for the civil courts, given their unique way of working it would be ineffective simply to transpose this recommendation on entirely different jurisdictions.

The civil procedure rule committee has built a right of reconsideration into its rules, but this will not necessarily be appropriate for other jurisdictions. It is for each jurisdiction, with the expertise it has within the rule committee, to decide what is right.

That approach has found favour in the other place. Lord Thomas, former Lord Chief Justice and former chair of the criminal procedure rule committee, said:

“I support what the Government seek to do and urge a substantial degree of caution in respect of the proposals brought forward by the noble Baroness”—

that is, Baroness Chakrabarti. He added that the Government’s approach provides the right balance:

“It gives discretion to a body that knows and has a lot of experience, but it contains that degree of explanatory accountability that will make sure that it does not do anything—even if we were to worry that it might—that goes outside a proper and just delegation”.—[Official Report, House of Lords, 16 October 2018; Vol. 793, c. 425-26.]

The Bill strikes the right balance between ensuring appropriate safeguards and transparency of decision making, and leaving the jurisdictional rule committees the discretion to determine the most appropriate mechanism for reviewing decisions by authorised people.

Finally, I would like to respond to the very important points made by the hon. Member for Sheffield, Heeley (Louise Haigh). I was very pleased to meet her and Sammy Woodhouse a week or so ago. She raised issues that are outside the scope of the Bill, but none the less what Sammy went through was harrowing and the hon. Lady made some important points. As she knows, I committed to look very carefully at the issues she raised and I assure her that we are doing that.

As the hon. Lady mentioned, we have already taken some steps. We have, as she alluded to, asked the president of the family court to look at the practice directions and he has committed to doing that with the rule committee. My officials have spoken to the Association of Directors of Children’s Services about whether it is appropriate to send further guidance to councils on the circumstances in which they should apply to court not to give notice of hearings to parties, such as happened in the Sammy Woodhouse case. The Department will continue to look closely at those issues.

For all those reasons, this is an important Bill that will ensure that we can bring flexibility to our judges, deploy them in the most flexible way, use their resources where they are needed and not when they are not needed, and ensure that those who operate our court system do so effectively and fairly for the people they serve.

The Ministry of Justice is putting users of the court at the heart of our reforms and of our programme on court reform. The measures will not only save on cost—that is not the primary reason for them, although it is important—but ensure that cases go through the system fairly and well. For those reasons, I urge the hon. Lady to withdraw the amendment.

Yasmin Qureshi Portrait Yasmin Qureshi - Parliament Live - Hansard
12 Dec 2018, 3 p.m.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: 2, in the schedule, page 6, line 36, at end insert—

“(aa) is a qualified solicitor, barrister or chartered legal executive with more than three years’ experience post-qualification, and”.—(Yasmin Qureshi.)

This amendment would stipulate that the minimum legal qualifications for authorised persons should be three years’ experience post-qualification.

Question put, That the amendment be made.

Break in Debate

Dame Rosie Winterton Portrait Madam Deputy Speaker - Hansard
27 Nov 2018, 4:34 p.m.

I can now inform the House that I have completed certification of the Bill, as required by the Standing Order. I have confirmed the view expressed in Mr Speaker’s provisional certificate issued earlier today. Copies of my final certificate will be made available in the Vote Office and on the parliamentary website.

Under Standing Order No. 83M, a consent motion is therefore required for the Bill to proceed. Copies of the motion are available in the Vote Office and on the parliamentary website, and have been made available to Members in the Chamber. Does the Minister intend to move the consent motion?

Lucy Frazer Portrait Lucy Frazer - Hansard

indicated assent.

The House forthwith resolved itself into the Legislative Grand Committee (England and Wales) (Standing Order No. 83M).

[Dame Rosie Winterton in the Chair]

David Linden Portrait David Linden (Glasgow East) (SNP) - Parliament Live - Hansard

I beg to move, That the Committee sit in private.

Break in Debate

Dame Rosie Winterton Portrait Madam Deputy Speaker - Hansard
12 Dec 2018, 3:55 p.m.

No, I am afraid you did not. I am very sorry.

Third Reading

Lucy Frazer Portrait Lucy Frazer - Hansard
12 Dec 2018, 3:55 p.m.

I beg to move, That the Bill be now read the Third time.

This is a small and technical Bill, but it is a key component of our £1 billion programme of reform that will see our courts and tribunals modernised for the 21st century and, importantly, make access to justice quicker and easier for all. It is also the first step in the legislation that will underpin these reforms, as we will introduce further courts legislation as soon as parliamentary time allows.

The judicial measures in the Bill will enable greater flexibility in the deployment of judges. They will allow the senior judiciary to respond more effectively to changes in demand and to make better use of the skills and experience of the existing cohort of judges. This Bill will free up judges from the most routine tasks by enabling appropriately qualified and experienced staff in courts and tribunals to carry out a wider range of judicial functions than they can at present. Through these measures, the Bill will improve the overall effectiveness and efficiency of courts and tribunals and, importantly, it will reduce delays. This will ensure that we deliver a speedier resolution of matters, which is important in benefiting those who use our courts and tribunals system.

As I have said, this is a short Bill, so I will be brief, but I would not want to finish without thanking the hon. Member for Bolton South East (Yasmin Qureshi) and other Members of this House for the constructive way in which they have engaged on these issues. I pay tribute to the noble and learned Lord Thomas, the former Lord Chief Justice, and the noble and learned Lord Neuberger, the former President of the Supreme Court—they have been widely quoted in this House—for their wise counsel in the other place and for sharing their expertise on how the measures in the Bill will operate in practice.

I thank the Clerks and other parliamentary staff for helping the proceedings on the Bill to run so smoothly, and I extend my thanks to our hard-working Bill team, our private offices, our Parliamentary Private Secretaries and the Whips. It has been an honour to take the Bill through the House, and I look forward to seeing the important measures it contains being implemented in the coming months. On that basis, I commend the Bill to the House.

Imran Hussain (Bradford East) (Lab) - Parliament Live - Hansard
12 Dec 2018, 3:58 p.m.

I, too, thank all hon. Members who have participated in the proceedings on the Bill today and throughout its passage for the considered and learned contributions they have made. I also thank the Public Bill Office, as well as organisations such as the Law Society, the Bar Council and Justice for the expertise and support that they have provided throughout these proceedings.

From the outset, we have made clear our reservations about the measures contained in the Bill: the fact that there is no proper parliamentary scrutiny of the delegation of powers to non-judicial staff; the fact that there are no minimum qualifications and experience for staff to whom powers are delegated; and the fact that there is no statutory right to reconsideration by a judge of the decisions made by authorised staff. We have been clear that we are not opposed to the principle of reform and change to our courts system. However, we cannot support the changes in this Bill without the protections that we, the Bar Council and the Law Society, among other organisations, and legal professionals have called for. Unfortunately, on these matters, we feel that we have been ignored, and therefore we will oppose the Bill on Third Reading today.

Judges hold considerable power in our courts system. They have the power to commit individuals to prison, to detain, to repossess, to grant injunctions and to issue search orders, among many others, and it takes judges years to develop the experience and qualifications necessary to wield these powers. That is why we should not take the handling of powers given to them lightly, yet that is precisely what the Government are doing in this Bill. They are passing powers currently exercised by the judiciary to authorised court staff and, most crucially, they are doing so without sufficient scrutiny. The delegation of powers exercised by the procedure rule committees will be done under delegated legislation, with no more safeguards than using a motion under the negative procedure. This is not simply a procedural matter, as the Government have stated today, but one that has the potential to change the nature of our justice system.

Under the Bill, authorised staff will find themselves able to wield considerable power. Although some decisions might seem insignificant, no court decision is small or inconsequential. The smallest decision’s implications can reach far beyond the here and now, well into the advanced stages of a case. We can easily see authorised staff making decisions that are contested because the procedure rule committees, not Parliament, are granting them the power and functions. The Government should have accepted our amendment today to require that when statutory instruments delegating judicial functions to authorised persons are introduced, they are subject to the affirmative procedure, allowing Parliament the necessary scrutiny, but they chose not to do so.

The lack of scrutiny of delegated powers and functions is even more worrying considering the lack of qualifications and experience that the Bill requires to wield them. We rightly expect a minimum standard of our judges, and so do the public. We expect that decisions in our courts are made by those with experience and the necessary qualifications, which is why we have restrictions and a thorough vetting process for those who wish to become members of our judiciary. Justices of the peace—magistrates who do not hold a legal qualification—nevertheless have considerable life experience and are still advised by trained, experienced and qualified legal staff. The Government, however, have imposed none of these requirements of experience and qualification on authorised staff.

In the Public Bill Committee in the Lords, the Minister responsible stated that the minimum standards we sought to impose then, and sought to impose in the Public Bill Committee in this House and again earlier today, would be more restrictive than those that are currently imposed on people providing legal advice in magistrates and family courts. However, that is no excuse and there is no reason why, when authorised staff are making decisions that were previously made by trained and experienced judges, we should not be upholding a higher standard. The Government counter that the decisions being made by authorised staff will be limited and that they will not be contested, but they cannot give that guarantee here today, for even the most basic decisions—extending time for service and taking pleas—may give rise to contention.

Even if we were to provide tight restrictions in the Bill for decisions that were delegated to ensure that they were not contested, that would not alter the fact that even non-contested elements of cases require experience—a view supported by Sir Brian Leveson in his review of the efficiency of criminal proceedings. Furthermore, if staff were legally trained and qualified, they would still be without the benefit of the experience that our judges hold through their many years of service in our legal system. That is why experience is just as crucial here as qualifications, as shown by our amendments and by the support that they received from the Bar Council. There was no reason why the Government could not accept the amendments on this issue, and no reason for them not to hold authorised staff to a higher standard when they are granted the power to make decisions. Clearly, however, the Government thought otherwise of the Bar Council’s expertise.

Our final point is that the Bill fails to provide sufficient safeguards for the decisions that are made by authorised staff, with no statutory right to judicial reconsideration. Clearly, the Government have not taken heed of the warning to be vigilant when judicial powers are being exercised by non-members of the judiciary. The explanations that they have provided in their factsheets—that delegated decisions will not be contested—are insufficient, as are the safeguards provided by the procedure rule committees, which are too open to pressure to reduce the right to reconsideration to ease pressures and backlogs in the courts.

Any legal decision made in our courts must be open to review and appeal. It is a fundamental principle of the rule of law, and the decisions made by authorised staff should be no different, yet the Bill does not uphold that spirit by failing to make available a statutory right to reconsideration. In failing to provide that statutory right, the Government have undermined the expectation of the public that legal decisions will be made by a judge or can be reviewed by a judge, and they have undermined our courts and judicial system in the process.

The Bill is a poor replacement for what should have been a thorough Bill filled with real courts reform. We are disappointed that the Government have failed to take up the baton of reform and to change their punitive legal aid cuts, which have left thousands unable to exercise their right to access to justice, created barren legal aid deserts and allowed legal rights to degrade to the point where they are no longer worth the paper they are written on. They have failed to change course on a courts closure programme that forces people to travel miles, at great cost and difficulty, to get to their closest courts and uphold their rights, and they have failed to address the urgent need for protection for domestic violence victims being cross-examined and questioned in the family courts by the very same people who subjected them to the abuse.

Courts and Tribunals (Judiciary and Functions of Staff) Bill [ Lords ] (First sitting)

(Committee Debate: 1st sitting: House of Commons)
Lucy Frazer Excerpts
Tuesday 4th December 2018

(1 year, 8 months ago)

Public Bill Committees
Read Full debate Bill Main Page
Ministry of Justice

We will begin line-by-line consideration of the Bill. The selection list, which shows how the selected amendments have been grouped for debate, is available in the room. Amendments grouped together are generally on the same issue, or similar issues. Decisions on amendments will not take place in the order in which they are debated, but in the order in which they appear on the amendment paper. The selection list shows the order of debate; decisions on each amendment are taken when we come to the clause that the amendment affects. I will use my discretion to decide whether to allow a separate stand part debate on individual clauses and schedules following the debates on the relevant amendments.

Clause 1

Deployment of judges

Question proposed, That the clause stand part of the Bill.

Lucy Frazer Portrait The Parliamentary Under-Secretary of State for Justice (Lucy Frazer) - Hansard
4 Dec 2018, 9:31 a.m.

It is a pleasure to serve under your chairmanship, Sir Henry.

A key element of our reforms in relation to courts is ensuring that we have a justice system that works better for everyone, which includes making the best use of our judges’ experience, expertise and time. I should make it clear that the deployment of judges is a matter for the judiciary, and the Lord Chief Justice and the Senior President of Tribunals already have far-reaching powers to ensure that the right judges are deployed on the right cases, taking account of changes in case loads of different jurisdictions. However, there are five areas in which clause 1 would amend current legislation to increase that flexibility to deploy judges where they are needed.

The first change is about the temporary appointment of deputy judges to the High Court. The Lord Chief Justice already has a statutory power to appoint a person meeting the eligibility criteria as a judge of the High Court if their appointment is urgent, temporary and there are no other reasonable steps that could be taken to fill the gap. Those temporarily appointed judges are ordinarily existing, serving judges who have been appointed to a judicial office via the independent Judicial Appointments Commission process. Current legislation allows those appointments to facilitate business in the High Court or Crown court only. Clause 1(1) would widen that so that the person appointed could sit in any court or tribunal on which an ordinarily appointed deputy judge of the High Court could be deployed, such as the county court, the family court, the first-tier tribunal and the upper tribunal.

The second change in clause 1 relates to the upper tribunal. The Tribunals, Courts and Enforcement Act 2007 sets out which judges are judges of the upper tribunal and may therefore hear cases there. The definition comprises a number of different types of judge, such as circuit or district judges, but does not currently include recorders. As fee-paid judges, recorders have equivalent powers to circuit judges, and may sit in the Crown court or the High Court with appropriate authorisation. Allowing recorders to sit in the upper tribunal would allow the judiciary to make more use of recorders’ experience, expertise and skill, and would provide greater flexibility to meet business need.

The third change in clause 1 relates to chamber presidents in the first-tier tribunal and the upper tribunal. Currently, there is a restriction that prevents someone from presiding over more than one chamber of the first-tier tribunal or of the upper tribunal. Subsection (4) would allow a chamber president to be appointed to more than one chamber in the same tribunal. That would enable the Senior President of Tribunals to use the existing and future complement of chamber presidents to provide continuous leadership across all chambers without having to recruit and appoint a new chamber president immediately if there were a vacancy.

The fourth change in the clause relates to senior judges of employment tribunals. Currently, there are restrictions on where senior judges of employment tribunals may be deployed. The Bill will enable the presidents of employment tribunals for England, Wales and Scotland to sit in the Employment Appeal Tribunal, which will provide additional capacity for experienced judges to hear appeals. The Bill will also enable leadership judges— the presidents and vice-presidents of the employment tribunal Scotland, and regional employment judges of the employment tribunals—to hear cases in the first- tier tribunal and the upper tribunal, making more use of their experience and skill where needed.

The final part of the clause relates to flexible deployment with respect to arbitration. The Arbitration Act 1996 currently provides for certain judges of the High Court to sit as judge-arbitrators. That allows cases falling within the relevant jurisdiction of the High Court to be resolved via arbitration with the Lord Chief Justice’s permission. The clause extends the range of High Court judges who can sit as judge-arbitrators, and would also allow the Lord Chief Justice to delegate his functions in agreeing that judges can be appointed as judge-arbitrators. That will allow, for example, judges in the chancery division of the High Court, which has seen a growth in demand for arbitration in recent years, to resolve cases in that way. Those provisions, taken together, will contribute towards a modern and responsive justice system.

Yasmin Qureshi Portrait Yasmin Qureshi (Bolton South East) (Lab) - Hansard
4 Dec 2018, 9:34 a.m.

It is a pleasure to serve under your chairmanship, Sir Henry. While we accept the necessity for the clause, we have some concerns, which we hope the Government will take on board.

We accept that there are practical arguments for expanding the flexible deployment of judges, including temporary judges appointed outside the usual Judicial Appointment Commission selection process, to a wider pool of courts and tribunals. The appointment of temporary judges as a principle, however, should be approached with caution. It is important to view flexible deployment generally through the prism of the Government’s wider reforms and cuts, and plans for savings on judicial salaries.

We are concerned about that being used regularly as opposed to on an occasional basis. [Interruption.] Sorry, the Minister was looking very confused. We are concerned about the potential for a trend of too much reliance on temporary judges. The provisions should be used only to deal with urgent matters in the case of a shortage of judges, and the deployment of judges across different sectors should not become the de facto position.

Clearly, one of the things that the Government have not mentioned is what training provisions will be provided for judges moving out of their normal area of activity. If a Crown court judge is transferred to a tribunal, for example, what kind of training would they receive to deal with issues unique to the tribunal system—for example, on issues of disability, reasonable adaption for the purpose of disability legislation, and what could be considered discriminatory under equality legislation. Those are key issues unique to employment tribunals. We want to know and ensure that there are training provisions for that.

As a consequence of the clause, civil judges might come into the criminal courts and Crown courts. What training will be provided for them to deal with specific issues that are unique to the criminal court, such as admissions of previous convictions, which can sometimes be brought in against defendants, and go against the normal rules? What about issues of disclosure? If a failure to disclose material information is ruled inadmissible, it can cause the whole case to collapse. Those are some of the things that are unique to particular courts. I have used the example of the Crown court and the employment tribunals to demonstrate that there are things that are unique to those courts. While we will not oppose the clause, we ask the Government to provide some assurance that the Lord Chief Justice and the Lord Chancellor will make proper financial provision for those judges to update their skills and to receive professional training when they go into a different area of judicial function.

Lucy Frazer Portrait Lucy Frazer - Hansard
4 Dec 2018, 9:35 a.m.

I am grateful to the hon. Lady for making some important points. She can rest assured that the temporary appointments are temporary, and they can be made only if they are urgent and temporary and if no other reasonable steps can be taken to fill the gaps. I can also assure her about training: where judges are asked to sit in a new jurisdiction, further induction will be provided in line with the directions of the senior judiciary. The Judicial College is in charge of training, and it will continue to train our judges. Judges will also attend continuation training for all jurisdictions in which they sit.

Question put and agreed to.

Clause 1 accordingly ordered to stand part of the Bill.

Clause 2

Alteration of judicial titles

Question proposed, That the clause stand part of the Bill.

Lucy Frazer Portrait Lucy Frazer - Hansard
4 Dec 2018, 9:36 a.m.

No amendments have been tabled to the clause and no issues at all were raised in the other place, or on Second Reading in this place.

In summary, the clause is part of our reform to modernise our courts to ensure that court users know who is hearing the case, and what sort of case the matter is about. The clause therefore provides for amendment of judicial titles to reflect a change in the name of the court in which those judges sit. It also ensures that the title of that office and similar offices can be changed through secondary legislation in the future.

Subsections (1) and (2) change the title of chief bankruptcy registrar to chief insolvency and companies court judge. That reflects the change in the name of the other judges of this court and of the court itself. In 2017, the name of the court dealing with bankruptcy matters was changed to the insolvency and companies court to better reflect its work. Earlier this year, the titles of the more senior judges in that court were changed to reflect the change in the name of the court. The Bill therefore changes the title of the office of the senior judge to bring it in line with other judges of the court.

Subsection (3) enables the judicial titles of other senior masters and district judges of the senior courts to be changed in future by secondary, not primary, legislation, should it be necessary to do so. Changes of title may be required, for example, because of organisational changes in the courts and tribunals. The clause will correct an anomaly that prevents some judicial titles from being amended by ministerial order. Such judicial measures, while relatively modest, will contribute towards a more modern justice system.

Yasmin Qureshi Portrait Yasmin Qureshi - Hansard

The clause seems to be a sensible one, so the Opposition have tabled no amendments to it.

Break in Debate

Yasmin Qureshi Portrait Yasmin Qureshi - Hansard
4 Dec 2018, 9:38 a.m.

We tabled the amendment because the existing drafting of the clause appears to allow the delegation of judicial functions to authorised persons without going through an affirmative process—that is, without using secondary legislation. As the Bill stands, that would be done automatically. Bearing in mind that we have expressed concern about the whole system of the authorised person being delegated judicial functions, we believe that that should be done, if it comes to that, by means of a statutory instrument so that Parliament has a chance to discuss it. We would be able to make observations and it would not go through on the nod.

The issue of delegating judicial functions to authorised persons is important to us. At the moment, the Bill does not talk about who such people will be, what their qualifications are, what they will do, or what subjects and issues they can deal with. As the Bill is drafted and from what Ministers have said, the procedure committee is expected to make all those decisions. We do not accept that that should be the case. There are real issues that need to be determined through parliamentary discussion. These measures should be introduced through statutory instruments and not just be decided by the procedure committee as envisaged in the Bill. The procedure committee should listen to our concerns. We want more parliamentary scrutiny of this part of the legislation, through a statutory instrument.

Lucy Frazer Portrait Lucy Frazer - Hansard
4 Dec 2018, 9:40 a.m.

I am grateful to the hon. Member for Bolton South East for raising the issue and giving me the opportunity to respond, so I can satisfy her that her concerns are unfounded, I hope.

The power in clause 3(2) seems to have caused considerable confusion here and in the other place, so it might be helpful for me to explain how it works. That power does not permit the delegation of judicial functions to authorised persons—that is a matter for the procedure rules made by the independent rule committees. The power in clause 3(2) could not make such changes because it is a narrow power that is very clearly restricted to consequential, transitional, transitory or saving provisions—a concept that is well understood with many precedents. Those terms are construed strictly by the courts.

The power in clause 3(2) is needed because the procedure rules cannot be used to make all the necessary amendments to other secondary legislation—we will use regulations made under the clause to do that. The power is needed principally to amend references in secondary legislation from “justices’ clerk”, a post abolished by the Bill, to “authorised officer”. So far, we have identified more than 200 references in more than 60 pieces of secondary legislation that would need amendment, and there may be more.

The Government do not intend to use this power to amend primary legislation. Lord Keen gave an undertaking to that effect on Report in the other place. Therefore, there is no express provision for such amendments in clause 3. To accept this amendment would set an unhelpful precedent and would mean that valuable parliamentary time would have to be set aside to debate minor and consequential changes to secondary legislation. In a busy parliamentary Session, that would delay implementation of the provisions in the Bill. I hope that the hon. Lady is reassured and feels able to withdraw the amendment.

Yasmin Qureshi Portrait Yasmin Qureshi - Hansard

Although I hear what the Minister says, we are not reassured and we will push the amendment to a vote.

Question put, That the amendment be made.

Break in Debate

Yasmin Qureshi Portrait Yasmin Qureshi - Hansard
4 Dec 2018, 9:58 a.m.

My observations relate to when judges are dealing with an individual case. Of course, we know that they are independent, but when someone becomes part of an administrative body, a procedure committee or an arm of the state—I mean that in a loose way, not in terms of a formal relationship—sometimes the criteria that they look at are different from when they are dealing with an individual case presented before them.

I will give an example, albeit not one that relates to judges. The Crown Prosecution Service, an organisation for which I worked for a number of years—I still have friends who work in it, even though I left years ago—has had different people serve as Director of Public Prosecutions. However, prosecutors who have been there for a long time say that, bar perhaps two DPPs who were really concerned about ensuring that the department was fully financially resourced, and who actually fought hard for it to get resources, the other DPPs did not make that sort of effort. People do act for administrative purposes.

The reality is that senior people at the top of organisations, when they are doing administration and are running institutions, look at things such as money and financial administration, try to save as much money as possible, and try to push things along as quickly as possible, because that looks good in their statistics. Because of that, we would say that what we are asking for is not too weighty. We have tabled very reasonable amendments. The people who will make some of these enormous decisions should be legally qualified and—we will come on to this later—we should consider what kind of things they can actually do. I do not think there is anything wrong with giving a steer to procedure committees. They can deal with some of the other rules, but we should have some basic minimum standards.

Lucy Frazer Portrait Lucy Frazer - Hansard

I, too, propose to deal with amendments 3, 4 and 5 together, as they all relate to minimum qualifications for authorised staff. Amendments 3 and 4 require that any staff member who gives legal advice to lay justices or judges of the family court be legally qualified and have more than three years’ experience post qualification. Amendment 5 makes the same requirement of any staff carrying out judicial functions.

The staff who currently give legal advice in the magistrates court and the family courts are justices’ clerks and assistant clerks. Assistant clerks, who are also known as legal advisers, currently provide the overwhelming majority of legal advice on a day-to-day basis. To be an assistant clerk at the moment one must be a barrister in England and Wales or a solicitor of the senior courts of England and Wales, have passed the necessary exams for either of those professions, or have qualified as a legal adviser under historical rules that were in place prior to 1999.

Those requirements are set out in regulations made by the Lord Chancellor, and have been since 1979. We propose no lessening of this bar, and no substantive change to the approach for determining qualifications. Under the Bill, the qualifications required for staff to be authorised to provide legal advice to magistrates and family court judges will therefore continue to be specified by the Lord Chancellor in regulations, which must now be made with the agreement of the Lord Chief Justice.

Break in Debate

Jess Phillips Portrait Jess Phillips (Birmingham, Yardley) (Lab) - Hansard

The Minister is explaining who will get to decide whether we are flexible on this in the future, bit what I do not hear—what I do not hear in any of this Bill—is how we make sure that these changes mean improvements for the people who use these courts. While the judiciary and the people carrying out these functions certainly seem to have a voice in the changes being proposed, in terms of the changes I would like to see in the family courts, the voices of those people using the courts are nowhere in this Bill.

Lucy Frazer Portrait Lucy Frazer - Hansard
4 Dec 2018, 10:02 a.m.

That is a very important point. We serve the people through justice and the court system. The people who come to the courts to get justice are the people my Department is serving. In all our reform programme, we have a user-centred focus and consistently engage with users to improve our services. All the forms we have recently produced were produced with insight from users, which is why we have an extremely high satisfaction rate for the reforms we are making.

The hon. Member for Birmingham, Yardley makes an important and valid point, and I can tell her how users will benefit from this. She will have been in the House when questions were put to me about delays in the court system and about the time it is taking for certain hearings to come before the courts. We want to ensure that there are as few delays as possible and that justice is not only fair but speedily dispensed. These changes will allow functions to be operated by the appropriate people, and will enable us to get more swift, easy and quick justice for those who use our courts.

Andy Slaughter Portrait Andy Slaughter (Hammersmith) (Lab) - Hansard
4 Dec 2018, 10:05 a.m.

I am sure the Minister is sincere in her intention. My experience is that there is increasing delay. Part of that is caused by inexperience, perhaps because of the use of lay magistrates as opposed to district judges, who do not take command of the issue and do not timetable matters correctly. I am concerned about any decline in the level of experience. This is perhaps a question not of legal qualification but of experience in being able to manage and seize control of cases. I would rather see the greater control and scrutiny that the amendments would introduce.

Lucy Frazer Portrait Lucy Frazer - Hansard
4 Dec 2018, 10:05 a.m.

I am sorry if the hon. Gentleman has not experienced the appropriate level of judicial engagement or appropriate judgments in courts. I recently went to the family court in London, and I have been to courts across the country, and I have spoken to magistrates who operate in the family courts. The expertise and dedication I see is commendable. We can stand still, do nothing and just let our courts operate in the way they are operating, or we can sit back and reflect on how we can improve our court system. We are trying to do the latter through the Bill. We are trying to improve people’s experience of the courts, recognising that funds and resources are not unlimited and that we need to use them as well as we can. On listing, my Department is looking at a listing programme to ensure that lists operate as effectively as possible.

It is simply not necessary for all authorised staff exercising judicial functions to possess legal qualifications. The qualifications and experience staff need will depend on the nature of the work they carry out. Legal qualifications of the level that would be required by amendment 5 not only are far too high for the routine and straightforward case preparation tasks that we anticipate many authorised staff may carry out, but may not be the most relevant qualifications for staff in different jurisdictions. For example, it is more helpful for a registrar in the tax tribunal to be a tax professional by background than to be a legal professional. Where powers currently exist, rule committees already determine the qualifications staff need to exercise particular functions, and that works well. Such committees can focus qualification and experience requirements on what is most relevant to the work that those staff carry out.

Amendments 3, 4 and 5 would all set the bar for qualification prohibitively high and rule out a large proportion of Her Majesty’s Courts and Tribunals Service staff from giving legal advice or exercising judicial functions, even though they may have been doing either or both for a number of years.

Alex Chalk Portrait Alex Chalk - Hansard
4 Dec 2018, 10:07 a.m.

Will the Minister be kind enough to address the issue of the approach we can expect judges to take in rule committees? It is my experience that they show themselves in court to be scrupulously fair and focused on justice. Does she agree that there is no reason to think they would abandon those principles when they sit out of court on a rule committee to make these important judgments?

Lucy Frazer Portrait Lucy Frazer - Hansard
4 Dec 2018, 10:08 a.m.

My hon. Friend makes an extremely valuable point. Rule committees are made up of members of the judiciary and legal professionals, who take their roles incredibly seriously. Lord Thomas said on Second Reading in the other place that

“it is important to stress the degree of control inherent in the Bill by the use of the rule committee. I was a member of and chaired…the Criminal Procedure Rule Committee, which I can assure you is a highly representative body with many representatives of the legal profession.”—[Official Report, House of Lords, 20 June 2018; Vol. 791, c. 2039.]

It is important to note his experience of sitting on and chairing a rule committee. I actually sat on an insolvency rule committee when I was at the Bar, and I do not think anyone mentioned costs. We were concerned with ensuring that the procedures we used in court day in, day out worked well, and that they worked well for our clients, too.

A loss of expertise would render the provisions in clause 3 and the schedule unworkable. I should add that a member of staff will not be able to give legal advice or exercise judicial functions until they have been authorised to do so by the Lord Chief Justice or their nominee, or by the Senior President of Tribunals or their delegate. Authorisations are therefore ultimately the responsibility of the judiciary, who will not authorise staff unless satisfied of their competence.

The Government’s position is consistent with the approach taken over many decades and is supported by both current and former members of the senior judiciary. Lord Neuberger, former President of the Supreme Court, said that the amendments place

“a potential straitjacket on the ability to appoint the appropriate people to make appropriate decisions.”

He went further, reflecting that there

“will be many decisions”

for which the level of experience set out in the amendments

“would be appropriate, but there will be others where less experience would be adequate for the decision-making.”—[Official Report, House of Lords, 10 July 2018; Vol. 792, c. 882.]

I want to reassure hon. Members that we have listened to the concerns expressed here and in the other place about linking the qualifications of staff to the judicial functions that authorised staff may carry out. That is why we added further safeguards to the Bill in the other place by restricting the functions that staff will be able to exercise. In the light of that, Lord Marks of Henley-on-Thames said:

“we are not persuaded that it is necessary for the authorised person exercising the remaining powers—some of which are trivial, some minor and some of more substance—to be a qualified lawyer or one of particular experience.”—[Official Report, House of Lords, 16 October 2018; Vol. 793, c. 414.]

Before I close, I would like to respond to a number of the points made by the hon. Member for Bolton South East in putting forward her amendments. She has mentioned for the second time in her submissions cost-cutting. What we are doing in the Bill is trying to achieve a position whereby judges are deployed in the most effective way to bring justice to the people whom they serve. We are trying to ensure that jobs are appropriate for those who carry them out, and that they have the appropriate qualifications. The hon. Lady suggested that only barristers, solicitors and judges—that is, people who are legally qualified—understand justice. That is self-evidently wrong. A large part of our criminal justice system is the justice dispensed by magistrates, who are volunteers and are extremely able. As I have said, many people are already carrying out the functions, and carrying them out well, in courts and tribunals across the country.

The hon. Lady mentioned court closures. Of course, this is not a debate about court closures; it is a debate about who carries out functions in the courts that operate. She also suggested that call centres are having a detrimental impact on justice. Our call centres are actually improving justice, because, as can be seen from the take-up rate, people are speaking to someone who can answer their concerns much more speedily. The satisfaction of people ringing up is improved as the pick-up time is improved, because it is now dedicated people picking up the phone, rather than people in courts, who have a large number of things to do.

I hope that the hon. Lady feels able to withdraw the amendment, based on the explanations that I have put forward.

Yasmin Qureshi Portrait Yasmin Qureshi - Hansard

I thank the Minister for her response, but our position remains the same, and we ask for a vote on the amendment.

Question put, That the amendment be made.

Break in Debate

Yasmin Qureshi Portrait Yasmin Qureshi - Hansard
4 Dec 2018, 10:23 a.m.

We could include the criterion of the impact on someone’s rights. When we look at a case, we can work out whether an adjournment or a particular issue regarding disclosure would have an impact. The legislation should have that as a criterion in determining whether there should be judicial reconsideration. Obviously, we assume that the procedure committee would set out a procedure whereby, when a person writes to the court to ask that something be reconsidered, it goes to a judge, who works out whether this was something that impacted on the person and should therefore be subject to reconsideration. The legislation does not do any of those things.

Although we accept that some administrative functions carried out by judges can be delegated to the “authorised people” defined in the Bill, when a judicial legal function is given to other people, there should be a right to ask for reconsideration of the decision if a litigant is unhappy with it. To avoid anything flimsy, we have helpfully put in the impact aspect, so that reconsiderations are not a matter of course but are limited to appropriate cases. We would leave it to the procedure committee to make rules as to what the procedure would be.

The amendments are perfectly reasonable. The Minister mentioned that some Lords in the other place said that the provisions were okay, but if we look at the Hansard, Lord Marks of Henley-on-Thames, Lord Pannick and others said that they had concerns, not just about the issue of 14 days’ reconsideration, but also in relation to the authorised persons. The Government have put all these things about judicial functions, delegated persons and authorised people into one clause, but concern was expressed in the other place about the need to make the legislation better. Those are my words.

We have gone further than some of the noble Lords in the other place, but we tabled the amendments not for the fun of it, but because we genuinely and sincerely believe that they would ensure that processes were carried out properly, justice was done properly, and properly qualified people would deal with issues. If there are decisions that people are unhappy with, they should have the right to ask for reconsideration within 14 days, if that is appropriate—or 21 days; I would be happy with whatever additional days the Government wished to add.

Lucy Frazer Portrait Lucy Frazer - Hansard
4 Dec 2018, 10:26 a.m.

As the hon. Member for Bolton South East has said, amendments 6, 7, 8 and 9 deal with the right of reconsideration of decisions taken by authorised staff in courts and tribunals, and amendments 6 and 7 would enable a party in a case to request that any decision made by an authorised person exercising the functions of a court or tribunal be reconsidered by a judge. It might be appropriate for there to be reconsideration of decisions, but the Government believe that the independent procedure rule committees, composed of jurisdictional experts and experienced practitioners, are best placed to decide if such a right of reconsideration is needed and if so, the form it should take.

The approach taken in the proposed amendments would impose across all jurisdictions the same blanket right of reconsideration with an arbitrary deadline of 14 days. That would not work in practice, especially for those functions that are entirely straightforward case management and preparation duties. Each jurisdiction has its own ways of working, and it is imperative that any mechanism for reviewing decisions is designed with those jurisdictional intricacies in mind.

The rule committees in the civil and tribunals jurisdictions, for example, already have included in their respective rules a specific right to judicial reconsideration for decisions made by authorised persons. The magistrates courts and the family court, however, have their own existing mechanisms for reviewing various decisions, which the amendments would cut across.

Furthermore, the amendments are unworkable. In the magistrates courts, legal advisers issue some 2.5 million local authority summonses every year. If a right of reconsideration, as laid out in the amendments, were imposed on the court, a defendant could apply to the court against the issue of the summons. That would inevitably delay the first hearing and would mean that the matter would need to be referred to a magistrate who would reconsider the decision to issue the summons alongside a legal adviser, and the outcome of that decision would need to be notified to the parties before the case could start. That would build significant delay and cost into the process.

There are already three ways for a defendant to challenge a case in which a summons has been issued in the magistrates courts. They can make an initial argument to the court hearing the case that the summons should not have been issued, contest the substantive application made by the local authority, or apply for a judicial review of the decision to issue the summons. Creating a mandatory right to judicial reconsideration is therefore unnecessary.

I have some sympathy with the intention behind the hon. Lady’s amendments, which is to ensure that the Bill contains adequate safeguards. For that reason, the Government moved amendments on the right of reconsideration that were accepted on Report in the other place. Those require the committees, when making any rules, to allow authorised staff to exercise judicial functions and consider whether the rules should include a right to judicial reconsideration of decisions made by authorised staff exercising those functions. That means the rule committees will have to consider whether each judicial function should be subject to a right to reconsideration. Additionally, the amended Bill requires that if a rule committee decides against the creation of a right of reconsideration, it must inform the Lord Chancellor of its decision and the reasons for the decision.

The measures in the Bill should also be read alongside the existing statutory provisions, which require the committees to consult such persons as they consider appropriate before they make rules. If a rule committee then chose not to include a right of reconsideration in its rules, it would have to notify the Lord Chancellor. The Lord Chancellor could then ask the committee to reconsider its decision, or, if he agreed with it, he could lay the rules in Parliament. We expect that he would set out the committee’s rationale for not including a right of reconsideration in the explanatory memorandum to accompany the statutory instrument. The Bill as amended in the other place therefore ensures much greater transparency in the decision-making process.

Alex Chalk Portrait Alex Chalk - Hansard
4 Dec 2018, 10:30 a.m.

Those are reassuring words. Will the rule committee have the right to request when, in certain circumstances, an exercise of discretion that might otherwise be innocuous—say, for the sake of argument, granting an adjournment—could lead to a material impact on the rights of an individual, that there could be a right of review in those circumstances? Does the Minister follow? It is important that that flexibility is in place.

Lucy Frazer Portrait Lucy Frazer - Hansard
4 Dec 2018, 10:31 a.m.

I think that is right. It will be the rule committee that will set out the procedure and requirement for any reconsideration. If it considers what my hon. Friend has mentioned as an appropriate way forward, it could make those determinations.

The noble and learned Lord Thomas, the former Lord Chief Justice said:

“I support what the Government seek to do and urge a substantial degree of caution in respect of the proposal put forward by the noble Baroness”—

that is, Baroness Chakrabarti. He added that the Government’s approach provides the right balance:

“It gives discretion to a body that knows and has a lot of experience, but it contains that degree of explanatory accountability that will make sure that it does not do anything—even if we were to worry that it might—that goes outside a proper and just delegation”.—[Official Report, House of Lords, 16 October 2018; Vol. 793, c. 425-426.]

Amendments 8 and 9 relate to the right of judicial reconsideration and the substantive rights of parties to cases in the courts and tribunals. As I mentioned earlier, the amendments we made to the Bill in the other place now mean that the rule committees will, when making any rules to allow authorised staff to exercise judicial functions, have to consider whether each of those functions should be subject to a right to reconsideration. They would require that, in doing so, the rule committees should also consider whether the function in question would be capable of having a material impact on the substantive rights of the parties.

The amendments appear to have been prompted by concerns about the compatibility of the provisions in clause 3 and the schedule with the rule of law, the independence of the judiciary and article 6 of the European Convention on Human Rights. In the circumstances, the Government believe the amendments are unnecessary. The independent procedure rule committees have for many years been making rules about practice and procedure which impact on court users. In carrying out this public function, they must ensure that the procedure rules are compatible with fundamental rights, including rights under the convention. I note that the overriding objective of the criminal procedure rules, for example, explicitly refers to these rights.

Other safeguards in the Bill will help to ensure compatibility with the right to a fair trial. Most importantly, the Bill provides that all court and tribunal staff who are authorised to exercise judicial functions will now be independent of the Lord Chancellor when doing so, and subject only to the direction of the Lord Chief Justice or their nominee or the Senior President of Tribunals or their delegate.

The Bill also provides, for the first time, protections from legal proceedings and costs in legal proceedings and indemnities for all authorised staff when carrying out judicial functions, which will further safeguard their independence. We have, of course, strengthened these safeguards by limiting the types of functions that authorised staff will be able to exercise, through the Government amendments we made to the Bill on Report in the other place.

I hope I have reassured the Committee and the hon. Member for Bolton South East that there is no issue of compatibility between the measures in the Bill and article 6 rights, the rule of law or the independence of the judiciary. The Bill strikes the right balance between ensuring appropriate safeguards and transparency of decision-making, and leaving the jurisdictional rule committees the discretion to determine the most appropriate mechanism for reviewing decisions by authorised persons. I urge the hon. Member for Bolton South East to withdraw her amendment.

Yasmin Qureshi Portrait Yasmin Qureshi - Hansard

I thank the Minister for her response, but our position remains the same and I therefore wish to press the amendment to a vote.

Question put, That the amendment be made.

Break in Debate

Short title, commencement and extent

Lucy Frazer Portrait Lucy Frazer - Hansard
4 Dec 2018, 10:39 a.m.

I beg to move amendment 1, in clause 4, page 4, line 6, leave out subsection (8).

This amendment would remove the privilege amendment inserted by the Lords.

This is a technical and procedural amendment to remove the privilege amendment made on Third Reading in the other place. The privilege amendment recognises that provisions in the Bill may infringe the privilege of the House of Commons with regard to the control of public money, and amendment 1 will leave out subsection (8), ensuring that the imposition of any charge resulting from the Bill is properly approved. In practice, the new powers the Bill will confer and the cost arising from them will be met by the Ministry of Justice.

Amendment 1 agreed to.

Question proposed, That the clause, as amended, stand part of the Bill.

Lucy Frazer Portrait Lucy Frazer - Hansard
4 Dec 2018, 10:38 a.m.

Clause 4 is technical in nature but it is important to give proper effect to the measures the Committee has considered. Subsection (1) confirms the short title of the Bill. Subsections (2) and (5) set out the commencement provisions, which will enable speedy and orderly implementation of the measures in it: clause 4 will come into force on the day on which the Bill is passed; clauses 1 and 2 will come into force two months after Royal Assent; and clause 3 and the schedule will come into force on a day to be appointed by the Secretary of State in regulations.

Subsection (4) allows the commencement regulations to make transitional, transitory or savings provision and to appoint different days for different purposes or areas, which will ensure that the rule committees are able to implement the proposals as they best see fit. Subsections (6) and (7) set out the territorial extent. Subject to certain exceptions, the provisions of the Bill extend and apply to England and Wales only. Where the provisions extend beyond England and Wales, this is in relation to tribunals, for which responsibility is currently reserved to Westminster. This is not the moment for debate about devolution matters, but I stress that we have undertaken extensive consultation with the devolved Administrations in preparing the Bill, and they agree with our analysis.

Subsection (8) is the privilege amendment inserted by the House of Lords, with which I have already dealt.

Clause 4, as amended, ordered to stand part of the Bill.

New Clause 1

Review of the delegation of legal advice and judicial functions to authorised staff

“(1) Within the period of three years from the coming into force of this Act, the Lord Chancellor must arrange for a review to be undertaken on the impact of the implementation of the provisions contained within section 3 and the Schedule to this Act.

(2) A report setting out the findings of the review must be laid before both Houses of Parliament.”—(Yasmin Qureshi.)

This amendment would require the impact of the delegation of judicial functions to be reviewed within three years of it coming into force.

Brought up, and read the First time.

Yasmin Qureshi Portrait Yasmin Qureshi - Hansard
4 Dec 2018, 10:42 a.m.

I beg to move, That the clause be read a Second time.

The new clause asks for a review of the impact of the legislation to be carried out within three years of the start of the Act, and that this be laid before both House of Parliament. The reason for that is, as mentioned earlier and in all debates in respect of the Bill, the Opposition have serious concerns about how the Bill will work out and about its impact on our justice system—in particular on litigants who go into court not legally represented, as often happens.

With the Act, there will be a more rapid use and deployment of judges from one sector to another, and we would like the Government to consider how that is working and its impact on our traditional court system. We believe that the functions the authorised people will be given and the issue of reconsideration will have a clear impact on what happens in both our criminal and civil courts.

Break in Debate

If a decision is taken and somebody wants it to be reconsidered, we want to know what happens in relation to that judgment. How does it affect people? Are there many people asking for reconsideration? The authorised person will do certain tasks that impact on people’s lives tremendously. Although the Bill is short, it makes wide-ranging changes, and it will impact on ordinary people across the country. It is therefore important that the impact of the Bill on our court system and litigants be evaluated. We have said that that should happen after three years, because that is a sensible period of time after which to evaluate how these things work in practice. Once that finding is made by the Ministry of Justice, it should be brought before both Houses of Parliament for debate. This is a sensible new clause to ensure that people’s lives, liberties and rights are safeguarded.

Lucy Frazer Portrait Lucy Frazer - Hansard
4 Dec 2018, 10:47 a.m.

As the hon. Lady mentioned, the new clause is about reviewing the impact of the authorised staff provisions within three years of the Bill coming into force.

Reviewing laws is always important. We in the Ministry of Justice do not shy away from that. The question is what the appropriate form of that review is. As the impact assessment for these measures says, we have committed to working with the rules committees and the senior judiciary to monitor the impact of any future assignment of judicial functions and responsibilities to authorised staff. This is particularly important where the Bill enables provisions to be extended to a new jurisdiction; for example, the power of authorised staff to carry out judicial functions will be new to the Crown court. We therefore expect the criminal procedure rule committee to conduct a review of the provisions as it feels appropriate, and to draw on its impartiality and expertise in doing so.

In other jurisdictions, the exercise of judicial functions by staff is already kept under review by the relevant rule committees, by the senior judiciary and by Her Majesty’s Courts and Tribunals Service, where appropriate. For example, the civil procedure rule committee has undertaken a review of a pilot scheme in which a range of functions were delegated to legal advisers in the County Court Money Claims Centre. As a result of that, the committee decided to modify and extend powers. It has also agreed to a further pilot to allow legal advisers in the county court to make unopposed final charging orders. This will run to April 2020 and, again, will be reviewed before a decision is taken to extend it.

Those reviews and this approach to implementation are illustrative of how we expect these measures to be rolled out in the future: incrementally, with the necessary monitoring, and subject to review and evaluation before any further steps are taken. The rule committees are independent of the Government and their membership includes judges, legal professionals and representatives of voluntary organisations. They are best placed not only to make the rules for authorised staff exercising judicial functions, but to conduct the reviews of these measures in the future. I hope that I have provided the hon. Member for Bolton South East with the assurances that she seeks, and that she will withdraw the new clause.

Yasmin Qureshi Portrait Yasmin Qureshi - Hansard

I thank the Minister for her response, but the Opposition will not withdraw our new clause. I ask that the Question be put.

Question put, That the clause be read a Second time.

Courts and Tribunals (Judiciary and Functions of Staff) Bill [Lords]

(2nd reading: House of Commons)
Lucy Frazer Excerpts
Tuesday 27th November 2018

(1 year, 8 months ago)

Commons Chamber
Read Full debate Bill Main Page
Ministry of Justice
Imran Hussain - Hansard
27 Nov 2018, 3:36 p.m.

I am grateful to the Chair of the Justice Committee; he has saved me some time, because my hon. Friend the Member for Bolton South East (Yasmin Qureshi) asked me to clarify that matter in my speech.

I also acknowledge the contribution from the hon. Member for Henley (John Howell), who rightly made the point about a consistency in approach across the judiciary and did so very well. The hon. Member for Stoke-on-Trent South (Jack Brereton) spoke passionately about making our justice system the best in the world—which it already is, although we can improve it through further and better technology.

When the Government brought the Prisons and Courts Bill to the House, they declared an intention to reform our courts and judicial system. When that Bill fell because of the Prime Minister’s ill-fated decision to call a general election, they restated their intention for reform and brought this Bill before us. In opening the debate today, the Lord Chancellor spoke about court reform, new and innovative technology, and sweeping modernisation, yet the content of the Bill does not match his words. It is devoid of any substantial change that will encourage greater access to justice, and it wilfully omits—and even seeks to avoid—debate on the huge, pressing concerns present in our courts system. When seen in the wider context of the Government’s austerity agenda and cuts to the justice system, it seems to be less about reform and more about squeezing as much money as possible from the courts.

Even at first glance, this is a minimal, even empty, Bill—a view that is vindicated upon reading it in more detail. It contains provisions to extend the redeployment of judges, to rename some of the judiciary and to allow an increased use of the delegation of judicial functions to non-judicial staff. While all those measures have value, in no way do they capture all that is needed to reform our courts and judiciary. They are measures taken by a Government intent on introducing a drip-feed of legislation in the absence of their parliamentary majority, avoiding scrutiny. Not only have they omitted anything substantial, but they have drafted the Bill to avoid some of the most pressing issues facing the justice system. It makes no mention of measures to address legal aid cuts, court closures, judicial vacancies or the protection of domestic abuse victims. It is here where the real failures of reform lie.

On legal aid cuts, access to justice has been decimated. Spending has fallen by one third from £2.5 billion to £1.6 billion per year, and the number of civil legal aid cases has fallen from more than 500,000 in the year to April 2013 to just under 150,000 in the year to April 2017. Vulnerable people are being left unable to defend themselves in areas as fundamental as housing, employment, immigration and welfare benefits, and unnecessary costs are being created for the taxpayer as cases are going to court that could have been resolved earlier. Further costs for the public purse arising from cuts are causing issues such as poor health, homelessness and debt. When people lack the money or knowledge to enforce their rights, those rights are worth nothing more than the paper they are written on, yet the Bill fails to mention legal aid or the urgent need to reverse the changes imposed by the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

On court closures, the Bill is silent and has closed down discussion on this equally vital issue for people’s access to justice. It fails to address the significant £1 billion-plus courts reform programme that is being pushed through, as the Lord Chancellor stated earlier—but without any proper scrutiny. Since 2010, the courts and tribunals estate has changed significantly, with hundreds of courts having been closed in the name of austerity, and that has hampered people’s ability to access justice.

Many claimants and defendants must now travel miles to access justice and uphold their rights, the Government having closed their local courts, but many lack either the transport or the finances needed to do so and as a result have lost what should be their guaranteed right to justice. The Government argue that their modernisation programme reduces the need for an expansive courts estate, but we are clear that courts reform should increase access to justice, not ignore its erosion, and that any modernisation of our courts system must not be a smokescreen for cuts and closures that will cause long-term damage to access to justice.

As mentioned earlier, the Bill should have done much more to address the appalling situation of victims of domestic violence being subjected to questioning by those who assaulted them. Women’s Aid found that almost one in four of survey respondents had been cross-examined in this way. That unacceptable situation puts the victims of abuse through yet more torment and hardship, for no conceivable reason. It is cruel and barbaric. Measures to prevent it from happening and protect victims are supported by campaign groups on women’s rights and domestic violence, including Women’s Aid, but yet again such measures are absent from the Bill, despite having been in the Prisons and Courts Bill. There is no excuse for the Government’s not having included such measures in the Bill: that should shame them. I hope they can explain when such measures will be introduced to rectify the situation.

Where there is change, it is change that the Government have failed to impose with sufficient protection, and it is here that we will seek to amend the Bill. On a point of clarification, I should say that my hon. Friend the Member for Bolton South East did not mean to say earlier that we opposed the Bill: we will be abstaining today and tabling amendments in Committee. We are determined to deliver change and reform to the courts and judiciary, even if through the Government’s piecemeal efforts, but we are equally determined that it not be done at the expense of the judiciary, legal protections or judicial independence.

As the Government seek to delegate judicial functions to non-judicial staff, they must be careful of their use; they must not overuse non-judicial staff or use them as substitute judges to fill the significant number of judicial vacancies, which have risen to critical levels on their watch. Judges must absolutely remain at the top of their hierarchy in the courts, and their position must not be undermined by non-judicial staff assuming more and more of their functions. Granting further powers to non-judicial staff not only risks undermining the judiciary, but runs the even more dangerous risk of delegating serious judicial functions to unqualified staff.

It is important for the Bill to contain provisions that prevent excessive delegation, protect the reputation of the judiciary, and protect claimants, prosecutors and defendants from unqualified decisions. The Government ceded amendments to impose in primary legislation some restrictions on the type of judicial functions that authorised staff can discharge, but we need a strong further commitment; I hope that the Lord Chancellor and the Minister will strengthen their stance in that regard.

There are also insufficient protections for the expertise of our judiciary. Those would be provided through the imposition of a minimum standard on staff to whom decisions are delegated. The Government argue that authorised staff will not be making substantial decisions, but in his review of efficiency in criminal proceedings Sir Brian Leveson states that even non-contested elements of cases require experience, and Lord Briggs has said in his report that even if authorised staff are legally trained and qualified, they will not benefit from years of judicial experience in delivering the quality of services that is currently delivered by judges.

It is therefore extremely important that the decisions being delegated to authorised staff are appropriate to their experience and qualifications, as the prospect of non-qualified, inexperienced staff carrying out judicial functions is all too real and worrisome. When such staff make decisions, it is also vital for those decisions to be subject to a statutory right to judicial reconsideration.

The Government state in their factsheet that the functions and responsibilities delegated to authorised staff will be uncontested, but it is easy to see how that could shift in the future to authorised staff making contested decisions, particularly in the absence of a clear definition of what delegation can be given. Justice has said that some of the functions anticipated for authorised staff, such as extending time for service and taking pleas, may well give rise to contested matters and have consequences for cases. It is therefore essential for the Government to impose a statutory right to reconsideration for decisions taken by authorised staff—a view supported by the Bar Council. In not imposing such measures when the public have a real and reasonable expectation that significant contested decisions in a court will be made by a judge—or, if not, that there will at least be a right of appeal or review before a judge—the Government are also playing fast and loose with the public’s trust in the judiciary and the rule of law.

The Government may claim that the procedure rules committees could and would impose similar safeguards in any rules that they produce, but that is simply not good enough, given that their amendments fail to offer sufficient guarantees of a right of review. We think that, and so does the Bar Council, which believes that a further amendment is necessary to abate its concern that the Government could exert pressure on the PRCs to reduce the right of reconsideration to increase the turnover of cases and clear the backlog. We are adamant that any backlog must not be cleared through the removal of a fundamental legal right of reconsideration.

Let me end by confirming that we will abstain today, but look forward to the Government’s seriously considering our amendments in Committee. The Lord Chancellor opened the debate in a spirit of collaboration. I assure him that all our amendments are very reasonable, and I am sure that he is an amiable chap who will view them in the same light. If the Government want to deliver a worthwhile Bill, they must listen to these arguments, not throw them aside. They must consider them in Committee before returning the Bill to the House.

Lucy Frazer Portrait The Parliamentary Under-Secretary of State for Justice (Lucy Frazer) - Parliament Live - Hansard
27 Nov 2018, 3:50 p.m.

It gives me great pleasure to respond to the debate on this Bill, which, as many have said, is a small but important step in our court reform programme. As the Lord Chancellor set out in his speech, our courts together with our judiciary are respected throughout the world, but our courts and tribunals need to move with the times, and we have heard some excellent points today on how this Bill will improve our efficiency. I wish to respond to some of them.

As the excellent Chair of the Select Committee, my hon. Friend the Member for Bromley and Chislehurst (Robert Neill), said, the Bill’s measures are important technical reforms that require a statutory base. He highlighted the importance of the judicial process in general—the importance of each case to the individual whose case it is. These are important points that the Ministry of Justice must always bear in mind.

My hon. Friend the Member for Stoke-on-Trent South (Jack Brereton) was right to point out, as I have, that this is but one part of a suite of measures of court reform. I was grateful to the hon. Member for Bristol West (Thangam Debbonaire) for saying there is a great deal that is good in this Bill, and she asked a number of questions that I am happy to answer. She said it is important that there be no reduction in justice over all, and was concerned about court closures. As 41% of our courts are used at less than half their available capacity, we must think about whether it is sensible to spend more money on the court estate as opposed to other things; at present a fifth of our budget is spent on the court estate. The hon. Lady suggested that we were pushing through this legislation at a time when the House is thinking about other things. That is patently untrue; its measures were included in the Prisons and Courts Bill, which was going through this House but fell at the general election.

The hon. Lady also raised concerns that must be addressed about the immigration tribunals. I highlight to her the measures we are introducing to give court staff the ability to undertake some judicial and other functions. They are already in operation in some tribunals. In the first and upper tier tribunals, for example, there are already three tiers of staff authorised to exercise different judicial functions; the most basic functions of issuing standard directions at commencement of a case can be carried out by authorised staff members at some chambers; slightly more complex functions are undertaken by caseworkers; and the most complex of the delegated functions are generally reserved to registrars, who are legally qualified. The hon. Lady asked whether I have read “The Secret Barrister”, and I am happy to confirm that the Lord Chancellor and I read it many months ago, just as we read many other publications that affect our Department.

The hon. Member for Dwyfor Meirionnydd (Liz Saville Roberts) thought the measures were a cost-cutting exercise. They absolutely are not; we are asking ourselves how to use resources in the best way possible, how to deploy our judges as efficiently as possible, and how to ensure people get fair and swift judgment. That is not just our view; this is the view from Members across the House. As Lord Marks said in the other place,

“It seems to us relevant that the purpose of this part of the legislation is to increase efficiency and—hopefully, and to everybody’s advantage—the speed of decision-making within the court and tribunal systems, while making some cost savings in so doing.”—[Official Report, House of Lords, 16 October 2018; Vol. 793, c. 414.]

There are three key clauses in this Bill. One is clause 3 on authorised functions, which allows appropriately qualified and experienced court staff in civil, family and magistrates courts and the High Court, Court of Appeal, Court of Protection and tribunals to continue to carry out uncontroversial and straightforward judicial functions under judicial supervision. My hon. Friend the Member for Cheltenham (Alex Chalk) made an important point that I highlighted to the hon. Member for Bristol West: some court staff in these jurisdictions are already carrying out certain of these functions, but we are extending that to the Crown court and freeing up judges from the most routine tasks, ensuring that case preparation and management tasks are distributed at the appropriate level, or reserved to judges when that is proportionate.

As the right hon. Member for Kingston and Surbiton (Sir Edward Davey) highlighted, the Bill prevents certain judicial functions—for or example, committing someone to prison or serving injunctions—from being undertaken by authorised staff. As his colleague Lord Marks said in the other place, it is right that these should not be delegated.

The hon. Member for Bolton South East (Yasmin Qureshi) suggested that there would be limited scrutiny of officers. This ignores the reality of the Bill, because their tasks will be set by the rule committee, which will be independent, judicially led and therefore best placed to determine the functions of staff. The committee will have a broad membership, including judiciary, representatives of court users and legal professionals. Lord Thomas said in the other place that

“it is important to stress the degree of control inherent in the Bill by the use of the rule committee. I was a member of and chaired…the Criminal Procedure Rule Committee, which I can assure you is a highly representative body with many representatives of the legal profession.”—[Official Report, House of Lords, 20 June 2018; Vol. 791, c. 2039.]

The hon. Lady asked for three years’ post-qualification experience, but qualifications for staff giving legal advice should be set out in regulations, as they have been since 1979. Qualifications ought to depend on the functions involved, and many of the functions that staff currently exercise are straightforward and routine and do not require a legal qualification. An example would be the fixing of hearing dates. She also said that she wanted a statutory right for reconsideration, but many rule committees in the civil and judicial jurisdictions already have a right to reconsideration built in. Magistrates and family courts already have mechanisms for reviewing decisions. This is up to the rule committee, and if it decides not to create such a right, it must give its reasons to the Lord Chancellor, as the Bill states.

My hon. Friends the Members for Cheltenham and for North Dorset (Simon Hoare) talked about the independence of staff. The Bill introduces a statutory guarantee of independence from the Lord Chancellor for authorised Courts and Tribunals Service staff in all jurisdictions, and makes staff answerable to the Lord Chief Justice or the senior president of the tribunal, rather than the Lord Chancellor.

This has been a wide-ranging debate in which the technical matters of the Bill have been raised along with a large number of other matters, which I shall mention briefly. My hon. Friend the Member for Bromley and Chislehurst talked about the wider Bill; I should stress that the Lord Chancellor and I are keen to bring forward wider legislation in relation to courts, and we will do so as soon as parliamentary time allows. My hon. Friend the Member for Henley (John Howell) rightly advocated for the industry and parliamentary placement scheme, which the hon. Member for Plymouth, Sutton and Devonport (Luke Pollard) also raised with me in oral questions recently. It is an excellent scheme, and I encourage all those who are interested in joining it to do so.

My hon. Friend the Member for Cheltenham spoke about the importance of the judiciary, and he was absolutely right to highlight that point. Our judiciary is respected throughout the world, and we need to continue to attract the best talent to it. My hon. Friend the Member for Henley mentioned the importance of digitisation. We have a number of schemes in which we are bringing digitisation to our courts. For example, people can now apply online for probate, and petition online for divorce, and we are also bringing a significant amount of technology to the social security tribunal.

I would like to end by responding to the points raised by the hon. Member for Bolton South East and the hon. Member for Bradford East (Imran Hussain) on the shadow Front Bench. They suggested that we were not addressing the bigger issues, but I would like to remind the House that we have been looking at the important question of legal aid for a number of months. We are in the middle of a legal aid review, and we are aware of the issues that are being raised. We will report on that by the end of the year. Hon. Members also raised the issue of domestic violence. As they will know, we have recently consulted on that issue, and we will be bringing in a domestic violence Bill. As they are also aware, cross-examination in the courts will be covered by that Bill.

Finally, we recently consulted on our approach to court closures, and I would like to clarify a number of matters raised today in relation to court closures and finance. The hon. Member for Bolton South East suggested that petty sums were being raised by our court closure programme, which is not true. Since 2015-16, we have recovered £122 million from the court closure programme, all of which is being reinvested in our justice system, and have spent approximately £170 million on capital maintenance.

The Ministry of Justice is committed to continuing to protect the individuals who go through our justice system, and to making their experience better, speedier, fair and just, and it is on that basis that I commend the Bill to the House.

Question put and agreed to.

Bill accordingly read a Second time.

Courts and Tribunals (Judiciary and Functions of Staff) Bill [Lords] (Programme)