Draft Judicial Pensions (Remediable Service etc.) Regulations 2023

Mike Freer Excerpts

Wednesday 14th June 2023 General Committees

[The Parliamentary Under-Secretary of State for Justice (Mike Freer)]

I beg to move,

That the Committee has considered the draft Judicial Pensions (Remediable Service etc.) Regulations 2023.

It is a pleasure to serve under your chairmanship, Sir Edward. I declare a direct interest: I am a member of the parliamentary pension scheme who may benefit from the implementation of the McCloud judgment. The regulations provide for technical aspects of what is known as the McCloud remedy, which I shall go into later. Hon. Members will remember the passage of the Public Service Pensions and Judicial Offices Act 2022, which was brought forward in response to the legal ruling that the 2015 public sector pension reforms were discriminatory on grounds of age. The Act sets out how we will remedy that discrimination across the public sector, including in the judiciary. It is necessary, however, to make provisions for groups of the judiciary with specific circumstances that are not captured in the Act. The Act provides the power for these regulations, which will ensure delivery in special cases and for different groups of judges.

For example, the regulations ensure a fair remedy for pension credit members who are the ex-spouses of members of the pension scheme who have a pension sharing order. Pension sharing orders set out how pension benefits should be divided between the pension credit member and the judge. The regulations ensure that pension credit members continue to receive the proportion of the pension benefits that they have been allocated in the pension sharing order, and that they cannot be adversely affected by any choices made by the judge. I apologise to hon. Members: these are quite technical regulations and can be a bit dry, so I ask them to please bear with me.

To give another example, the regulations provide options for when a judge owes money to the scheme as a result of their remedy. The regulations give judges a number of ways to pay any moneys owed; they include, but are not limited to, paying a lump sum, paying in instalments and opting for deductions from their salary. The regulations also allow for any liabilities to be waived, depending on the circumstances.

In addition, certain powers in the Act have been exercised in accordance with directions from HM Treasury. The directions provide guidance on applying interest and paying compensation to ensure a degree of consistency in administering the remedy across the public sector. The regulations also include associated amendments that may impact judges in scope of the McCloud remedy, but that are not made as a direct result of the discrimination. I will address these further later.

I come to the purpose and rationale for the regulations. Prior to the 2015 pension reforms, salaried judges were eligible for pensions under either the Judicial Pension Act 1981 or the Judicial Pensions and Retirement Act 1993. Fee-paid judges secured equivalent pensions through other litigation and became eligible for the fee-paid judicial pension scheme. These collectively are called the legacy pension schemes and were all tax-unregistered final salary schemes.

In 2015, the Government introduced extensive reforms to public service pension schemes. The reforms followed the Independent Public Service Pensions Commission’s final report in 2011, which set out a number of recommendations that were adequate and fair, but also made public service pension schemes more affordable and sustainable for the taxpayer. To that end, the commission recommended a number of changes, including increasing the normal pension age to a member’s state pension age for most schemes; replacing final salary schemes with new schemes based on a career average design; and introducing a fixed cost ceiling to ensure cost control for the taxpayer.

The Government adopted those recommendations, and introduced pension schemes based on the proposals from 1 April 2015. For the judiciary, the Judicial Pensions Regulations 2015 created a tax-registered, career average pension scheme. The 2015 regulations also included transitional protections whereby older members—those aged 55 or over on 31 March 2012—were exempt from the reforms and remained in their legacy schemes. For those aged between 51½ and 55 on 31 March 2012, tapered protection was available; those judges were given the choice of joining the 2015 scheme on 1 April 2015, or tapering across on a later date determined by their date of birth. All other judges—those aged under 51½ on 31 March 2012—received no protection and moved to the 2015 scheme on 1 April 2015, unless they opted out of pension scheme membership altogether.

Those transitional provisions were challenged by younger judges in the case of McCloud v. Ministry of Justice in 2016. In 2018, the Court of Appeal held that the 2015 reforms were unlawfully discriminatory on the grounds of age. On 15 July 2019, the Government issued a written ministerial statement that accepted the Court of Appeal’s judgment, and confirmed that they would take steps to address the difference in treatment across all schemes and for all affected members, regardless of whether they had brought a claim. That is called the McCloud remedy.

Since then, the Government have taken steps to resolve the discrimination for affected members. In July 2020, the Ministry of Justice consulted on proposals to remedy the discrimination. In February 2021, it confirmed which members the remedy would apply to, and that the remedy would consist of all non-claimant members participating in a formal options exercise, in which they would be offered a retrospective choice of pension scheme membership between their legacy scheme and JPS 2015 for the remedy period. The remedy period will cover from 1 April 2015, which is when the discrimination began, to 31 March 2022, at which point all members were moved to the judicial pension scheme 2022. On 1 April 2022, the judicial pension scheme 2022 became the only scheme open to members of the judiciary for future accrual. That remedy approach is different from that of the majority of public sector schemes affected by the McCloud judgment. As the Government recognised the judgment’s wider implications, the Act provided for a remedy for all public sector pension schemes, to ensure that all eligible public service workers received an appropriate remedy.

The one-off options exercise will happen later this year. The difference in approach for judicial members and other public sector workers is due to a preference for certainty for judicial members, given a number of unique factors in the judicial schemes, such as the 20-year accrual cap in the legacy schemes and the different tax treatments between the legacy and the 2015 schemes.

That remedy approach was legislated for in the Public Service Pensions and Judicial Offices Act 2022. Chapter 2 of the Act specifically provides for the judicial remedy. Following the passage of the Act, we are now bringing forward the draft regulations to provide for specific technical aspects of the remedy, primarily for special cases, as I mentioned earlier. The draft regulations are necessary to fully operationalise the choices members make in the options exercise. We have brought forward the draft regulations following a consultation that was open from 16 December 2022 to 10 February 2023. We received 10 responses, and carefully considered all of them; they were broadly supportive of the proposals. On 15 May 2023, the Government published the consultation response.

As I said, the regulations also make a number of amendments that may impact judges who are in scope of McCloud, but that are not made as a direct result of the discrimination. The amendments cover three main areas. The first area is indexation in the judicial pension scheme 2022. The JPS 2022 included indexation calculations that did not align with the calculations for other public sector schemes and the initial policy intention. An amendment rectifies that position. The second area is dependant contributions for salaried and fee-paid judges. Amendments ensure that all judges pay the same level of dependant contributions, which is 0%, on sums earned over £150,000, from the 2016-17 tax year onwards. That ensures that members choosing a legacy pension option are treated the same as those who are protected by the 2015 reforms, and that fee-paid judges are treated the same as salaried judges. An extension of the deadline in the Judicial Pensions (Fee-Paid Judges) (Amendment) Regulations 2021 is one of the other amendments.

[The Chair]

Order. People in the Public Gallery should not be taking photographs.

[Mike Freer]

For context, when the 2021 regulations came into force on 1 April 2021, they extended eligibility for a fee-paid judicial pension to 13 further judicial offices with retrospective effect. They also enabled affected judges to pay contributions into the FPJPS retrospectively for pensionable service prior to 1 April 2021 by way of deductions or a lump sum. However, as the window in which members can pay back-dated contributions via a lump sum payment has now closed, the amendment extends the period in which that lump-sum payment can be made, so that it runs to 31 March 2025, with the possibility of further extension by the administrators in individual cases.

Once the regulations come into force, we intend to run the options exercise for all members in scope as soon as possible. The options exercise will run for three months for most members; after that, members’ choices will be implemented, and pension records will be amended where necessary.

[Valerie Vaz (Walsall South) (Lab)]

The Minister is actually being quite interesting—not at all dry. Does he have an estimate of the numbers and costs? Will the costs come out of the Ministry of Justice budget?

[Mike Freer]

Off the top of my head, I cannot remember the numbers. I can say that the overall cost is about £170 million to the MOJ over the period. There are 2,500 members impacted. I hope that is helpful to the hon. Member.

In conclusion, I assure the Committee that the regulations are necessary. I apologise for the rather dry and technical nature of this issue, but the regulations are necessary to ensure that the judiciary will receive a pension remedy that is complete and equitable.

[The Chair]

I am sure that is all very clear, and that everybody has understood it completely.

--- Later in debate ---

[Mike Freer]

May I first touch on the nature of the discrimination, because the word “discrimination” can be quite loaded? As the pension schemes have changed, those people who are coming up to retirement age and may have had fewer pensionable years to make changes to their provision have got some additional protection. The court case was because younger members felt that they were being discriminated against. It is important to put that into perspective. I understand why younger members felt that they were not being given opportunities that older members of pension schemes were getting, but equally, those of us who are older and are contributing do not necessarily have the working years ahead of us to make additional contributions or arrangements. I can understand why the situation arose, but we are where we are. I thought it was important to clarify that.

I turn to points raised by my right hon. Friend the Member for North West Hampshire. It is quite difficult to say what the impact on other schemes will be, because each scheme is quite complex in its own right, as he knows and as we have seen with the digital scheme. Each Department will have to make its own statutory instruments to address the issues and the complexities of its own schemes.

I understand the question about why such a technical and complex matter is being addressed through an SI. In my time in this House, I have served on a number of statutory instrument Committees dealing with quite complex pension changes. It is not unusual for technical changes to pension schemes to be made in this way, but I take on board the very fair issue that my right hon. Friend raises about having time to understand the complexities.

On dependants, my understanding—I will double-check this point and write to my right hon. Friend if I have it wrong—is that the whole point of the McCloud remedy is to ensure that people are given the opportunity to put back in. My understanding is that that would include dependants. [Interruption.] I will quickly read my note to make sure that I have not misunderstood.

[Kit Malthouse]

Let me give the Minister a little time to read his note. I guess the question I am asking is: if I am the husband of a judge who died between the judgment and the remedy, will I be given the opportunity to make the same choices that my spouse would have made if they were alive? I would obviously have a dependant’s pension, and I would have had a death-in-service payment as well.

[Mike Freer]

I am grateful to my right hon. Friend for giving me a little time. The scheme election may be made in respect of a person who is entitled to the remedy.

[Kit Malthouse]

So it is a yes.

[Mike Freer]

Yes—that might have been quicker. In a former life I used to sell pensions, although certainly not of this complexity, I have to say.

These are important regulations about a matter that we need to address. I am grateful for the support of colleagues and the Opposition. I commend the draft regulations to the Committee.

Question put and agreed to.

Publication of Claimant Data in County Court Judgments

Mike Freer Excerpts

Wednesday 14th June 2023 Westminster Hall

[Janet Daby]

I thank the hon. Member, and I absolutely agree with him.

The regulations were created in 2005. They allow for the sharing of specific civil court information with the registrar. However, that information does not include the name of the claimant in a judgment. That means that a defendant can obtain every other piece of information they might need, but not the name of the claimant who took the judgment out against them. That is a problem for several reasons.

Our justice system is world renowned. One of its key principles is that individuals should know who is taking them to court. That is a fundamental principle of natural justice—one that I am proud to champion, and one that I hope the Minister is, too—so it is ludicrous to discover that defendants in these cases do not know who is taking them to court. Indeed, it seems unreasonable and unjust that the claimant’s name is not published in county court judgments, and it creates something of an unbalanced system. It goes against the fundamental principles of natural justice that underpin our justice system. Again, I hope the Minister shares that concern.

To look at this on a more practical level, the omission of claimant data can have negative consequences for some of the most financially vulnerable in our society—for example, those wishing to settle and repay debts, or to come to an agreement with their creditor, who are unable to obtain the information they need about who is pursuing a claim. Instead, they must embark on the lengthy and convoluted process of seeking the judgment case number, via TrustOnline, and then making phone calls or writing letters to the courts to access claimant information.

The average waiting time for income inquiries to the courts often peaks at approximately one hour. That makes it likely that individuals will have to make repeated attempts to reach the courts, which further swells an already bursting administrative system. These delays in getting their calls or correspondence answered put individuals at risk of passing the 30-day window that they are given to settle their debt. If they miss the 30-day deadline, the judgment can be left to sit on their credit file for up to six years, at which point people will no longer be eligible for mortgages and may have further rent applications rejected, and insurance policies may lapse. That creates many problems.

Publishing claimant data would eliminate that. It supports both the claimant and defendant by making it easier to settle their debt, and it gets rid of an unnecessary layer of bureaucracy, which stacks the system against those who fall into debt. It seems archaic, ineffective and inefficient that individuals have to make endless calls or continually write to the courts to find out such a small but important piece of information. Neither side of this House would disagree with the assessment that our court system is currently beset with severe backlogs, and the Minister, alongside his departmental colleagues, has said repeatedly in the House and elsewhere that the Department is committed to cutting those backlogs. Therefore, it is in everyone’s interests that they succeed.

Today I offer the Government an easy win. Every week, it is estimated that the courts field 2,000 inquiries related to claimant information, which adds up to 100,000 inquiries a year—a colossal and unnecessary figure. Imagine what court capacity might be freed up if our courts were handling 100,000 fewer inquiries every year. Publishing claimant data will do just that: free up capacity and help to cut the court backlogs. I remind the Minister that that is without additional Government spending and without the need for primary legislation.

If I have not yet been persuasive enough, let me share with the Minister some of the other potential benefits of making this change—I think I probably have, as I can see some nodding in the Chamber.

[The Parliamentary Under-Secretary of State for Justice (Mike Freer)]

indicated assent.

[Janet Daby]

I will share a bit more anyway. Policymakers would be better able to understand what is driving problem debt and so would be able to develop better policy solutions. Regulators such as the Financial Conduct Authority or Ofwat would be better able to identify which firms are treating customers fairly by proactively supporting those who fall into difficulty. The Government would also be able to better target funding for debt advice services exactly where it is most needed.

Analysis by the Registry Trust, an organisation that I will talk about in more detail as I bring my speech to a close, found that 25% of all claimants in county court judgments are utility companies or parking companies. Unfortunately, in recent months Members of this House have become all too familiar with some of the poor practices deployed by energy companies in relation to the forced installation of prepayment meters. I know that is something that the Minister has engaged on with various Select Committees. Rightly, the actions of those energy companies have been condemned on both sides of the House.

Nevertheless, the fact that claimant data is not ordinarily published means that those energy companies can remain anonymous. Meanwhile, the people who the companies have registered a claim against are left blindfolded in terms of knowing who has taken out a judgment against them. That is wrong and a clear imbalance of justice, whereby our society’s most financially vulnerable people come second to energy giants who rush warrants through the courts, break into people’s homes and force-fit prepayment meters without proper regard for their customers’ welfare. Surely the Minister is not satisfied with this situation and wishes to rectify this inequality.

Let me reassure the Minister that I am not here to point the finger; I am here to help him put a solution in place that will actually work out in practice. The register of judgments, orders and fines has been run by the Registry Trust on behalf of the Ministry of Justice since 1985. The data managed by the trust supports millions of lending and credit decisions across the UK and Ireland every year. The Registry Trust provides services to Government bodies, regulators, credit reference agencies and many other organisations. On average, it processes over 130,000 records each month—vital work that helps our economy to keep moving. Before this debate, I shared with the Minister the news that I have been liaising with the Registry Trust for some time on this matter. The Registry Trust could not be clearer: it has the capacity to manage the addition of claimant data to the register.

If the Minister takes on board the arguments that I have laid out, goes back to his Department after this debate and drafts a statutory instrument so that it can be laid before Parliament at the first opportunity, I can assure him that he would not face opposition from the Registry Trust. Quite the opposite—the Registry Trust is leading the campaign for the publication of claimant data. If the Minister wants reassurance from the trust, I know that it would be only too happy to meet him and put their case forward.

Let me conclude by saying to the Minister: please do not look a gift horse in the mouth. This proposal requires no primary legislation, as I have already said. It does not add to Government spending. It promotes fairness and efficiency in our justice system. It is even being asked for by the organisation responsible for administering it. I therefore hope that the Minister will confirm the Government’s intention to update the 2005 regulations and publish claimant data.

[The Parliamentary Under-Secretary of State for Justice (Mike Freer)]

It is a pleasure to serve under your chairmanship today, Ms Fovargue.

I am grateful to the hon. Member for Lewisham East (Janet Daby) for securing this debate. I am tempted to say, “I agree”, and sit down again. Sadly, there are a few things that I have to put on the record first.

I genuinely welcome the hon. Lady’s focus on this issue. I have heard her set out how enhancing the data that the Registry Trust holds could help protect households facing financial difficulties. I can confirm that the Government are considering whether we can support the proposal by the Registry Trust to allow claimant data to be included on the register of fines, orders and judgments in England and Wales, as articulated so clearly by the hon Member.

I want to commend the Registry Trust for the valuable service it provides to consumers, businesses and the wider economy. Access to data it holds supports millions of lending and other business decisions each year. The register holds more than 6 million records of fines, orders and judgments. Ordinarily, if a debt is not paid within one month of the court order, an entry will remain on the register for six years, as the hon. Lady set out.

Currently, entries on the register in England and Wales include the name and address of the judgment debtor, the amount owed and whether the debt has been satisfied. Every day, His Majesty’s Courts and Tribunal Service provides the Registry Trust with a secure data feed of new or amended entries to the register. Once the Registry Trust has reviewed and processed the data, it is uploaded to TrustOnline, which provides members of the public and businesses with access to search the public registers. TrustOnline has enabled more than 100,000 customers to check county court judgments registered in the courts. It also provides organisations or individuals with bulk data, which is typically used to support lending and other types of business decisions.

The hon. Lady clearly set out the benefits of including the name of the claimant on the register in England and Wales, as happens in Scotland and Northern Ireland. Reflecting on the proposal, I note that that could benefit households in two ways. First, it would provide greater transparency about the use of the county courts by creditors. It would shine a light on the businesses and institutions that most frequently bring county court claims against consumers.

When we first started to discuss the topic of the debate, I tasked officials to see how we could start publishing the top 10 or 20 users of the data, so that we could shine that light as fast as possible. Because the data could help regulators to monitor how firms treat their customers in vulnerable financial positions, and it would help to identify which firms are the most aggressive in using enforcement action. The data could also be used by the regulators of utility and telecom providers to monitor the effectiveness of policies intended to support consumers in financial difficulty. Data could also provide an indication of the credit controls that lenders have in place to prevent irresponsible lending.

Secondly, the Registry Trust states that the addition of claimant data on the register could help academics and debt advice providers obtain better insights into the source of problem debt in the economy. As the hon. Lady said, the Government do provide a lot of support to debt advice. If this would make debt advice more effective, she is quite right that we should proceed.

There is a benefit to HMCTS, as well, as the people and businesses who find out that a court order has been made against them. Often they find they are in default without having received the claim, and transparency would help in that case. That can happen sometimes because, although the court rules require claimants to take reasonable steps to ensure that they have served the claim to the right address, they are not required to prove that the claim forms have been received. These rules seek to balance the rights of claimants to recover debts and the rights of debtors to be informed of the claim against them. As the hon. Lady said, that lack of transparency as to who is making the claim, sometimes means that people do not find out in time or are unable to satisfy within that 30 days. That is an incredibly powerful point. As she said, it could save the courts time, and lead to a quicker resolution of the debt, which would help restore the person’s business credit rating.

As the hon. Lady set out, the change would require the Government to amend the Register of Judgments, Orders and Fines Regulations 2005. It would also require HMCTS to update its existing digital systems to implement it. I would like to reassure the hon. Lady that we are carefully considering Registry Trust proposals. We agree it could bring several benefits to consumers.

We also want to ensure it does not expose consumers to any risks. For example, we are aware that criminals seek to exploit publicly available data to extort money from vulnerable people, for example by impersonating enforcement agents. We also need to consider where to focus the Department’s efforts to modernise many of the back-office systems that we are currently grappling with. I can reassure the hon. lady that this is, as she says, a gift horse, and something that I am keen to deliver as fast as I can.

In conclusion, I am grateful for the opportunity to support and respond to this debate, to the hon. Member for Lewisham East for securing it, and to my hon. Friend the Member for Darlington (Peter Gibson) for his support. I have the found the debate and reading around the subject in preparation incredibly helpful in finding out how we can address what sounds like a simple solution, for the benefit both of businesses and of those who find themselves in difficulty. I give my commitment that I will do my best to move this forward at pace.

Question put and agreed to.

Draft Judicial Appointments (Amendment) Order 2023

Mike Freer Excerpts

Monday 12th June 2023 General Committees

[The Parliamentary Under-Secretary of State for Justice (Mike Freer)]

I beg to move,

That the Committee has consider the draft Judicial Appointments (Amendment) Order 2023.

It is an honour to work under your chairmanship, Mr McCabe. This draft statutory instrument amends the Judicial Appointments Order 2008, which made chartered legal executives eligible for some judicial offices using powers granted by the Tribunals, Courts and Enforcement Act 2007. The draft order, which amends the Judicial Appointments Order 2008, will be made under section 51 of the Act and will make chartered legal executives—fellows of the Chartered Institute of Legal Executives, known as CILEX—eligible for three additional offices: recorder, judge of the upper tribunal and deputy judge of the upper tribunal. The purpose of the draft order is twofold: to widen the pool of people who are eligible to apply for those important judicial roles; and to increase the range of roles for which CILEX fellows are eligible.

CILEX offers a non-graduate pathway to law, enabling professionals from various backgrounds to access a legal career. Chartered legal executives are authorised persons under the Legal Services Act 2007, meaning that they carry out some of the reserved legal activities prescribed in the Act. The legal services market has evolved over many years to allow chartered legal executives to exercise many of the same functions as solicitors, although there are still some differences in the legal functions that they may undertake.

The Government are clear that expanding the eligibility of CILEX fellows to a wider range of judicial offices is the right thing to do, as the judicial appointment eligibility condition can be a barrier to being able to draw on the widest pool of lawyers who are eligible to be a judge. That forms part of a wider Government ambition to ensure that no unnecessary barriers prevent CILEX members from progressing their careers.

I will talk briefly about judicial diversity. The draft order is consistent with the Lord Chancellor’s statutory duty to encourage judicial diversity. The Government have been working as part of the Judicial Diversity Forum since 2015 to improve judicial diversity. Last year, 50% of newly appointed judges were women, and 14% were from ethnic minorities. We know that we have a long way to go, as only 41% of serving judges are women and only 10% are from ethnic minorities. There is less diversity in the senior judiciary. However, 77% of CILEX fellows are women, and as CILEX provides a non-graduate route to becoming a lawyer, it attracts candidates from diverse socioeconomic backgrounds, with benefits to social mobility. The change in the draft order would be one step towards a lawyer’s ability, rather than their method of qualification, determining suitability for judicial appointment.

My right hon. Friend the Lord Chancellor met the Chair of the Select Committee on Justice, my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), who asked if we had consulted other legal professions about the draft order. I confirm that we sought a range of views on the proposal. We consulted members of the Judicial Diversity Forum, which includes the judiciary, the Judicial Appointments Commission and the legal professions, on the broad proposals to extend CILEX eligibility for judicial office.

The responses having been considered, the Government’s decision has been to move incrementally, with three additional offices included in the draft order. The Government are required to consult formally the Judicial Appointments Commission and the Lord Chief Justice on amendments to the 2008 order. I am happy to report that, having reviewed the draft order, both have confirmed that they support it.

Finally, I emphasise that the draft order does not change the requirement for CILEX fellows—as for all candidates—to demonstrate through the Judicial Appointments Commission’s selection process that they meet the bar to be appointed on merit. Ultimately, the independent, rigorous and merit-based selection undertaken by the Judicial Appointments Commission provides an objective test of whether a lawyer, irrespective of their legal qualification, meets the high threshold to be a judge.

In summary, I am confident that the draft order, supported by the diversity programmes delivered by the members of the Judicial Diversity Forum, will result in a wider range of judicial offices being accessible and open to CILEX fellows. The draft order can only be to the benefit of the courts and tribunals and the people whom they serve. I therefore commend the draft order to the Committee.

--- Later in debate ---

[Mike Freer]

I reassure the shadow Minister, the hon. Member for Manchester, Gorton, that we do not have enough time today to inform him of all the good work that we are doing to recruit judges and widen diversity, but I am happy to meet him privately. It will take some time to explain to him all the successes of the Government. Widening the pool, and widening diversity, but ensuring that our new judges are both skilled and experienced is a good thing, and I commend the draft order to the Committee.

Question put and agreed to.

Government Response to Legal Aid Means Test Review

Mike Freer Excerpts

Thursday 25th May 2023 Written Statements

[The Parliamentary Under-Secretary of State for Justice (Mike Freer)]

The Under-Secretary of State for Justice, my noble Friend Lord Bellamy KC, has made the following written statement:

Legal aid is fundamental to a fair justice system and underpins the rule of law. It ensures equality of arms, so that people can access justice and enforce their legal rights. Means testing is a crucial component of the justice system as it ensures those on lower incomes receive help with paying their legal costs, and that those who can afford to contribute towards their legal costs do so.

The Government have today published its response to the consultation which reviewed the entire system of legal aid means testing. The comprehensive suite of changes we will now be implementing to civil and criminal legal aid means tests will significantly widen eligibility for legal aid and ensure continued access to justice.

Changes we will be making include:

Increasing income and capital thresholds for legal aid eligibility, so they better reflect essential living costs and different household compositions. This means that 3.5 million more people will be eligible for criminal legal aid in the magistrates court and 2.5 million more people will be eligible for civil legal aid.

Introducing a £500 per month earnings threshold for applicants in receipt of universal credit. If exceeded, applicants will need to complete a full income assessment in the same manner as applicants not in receipt of benefits. This replaces the interim position adopted in 2013, when universal credit roll-out began. This policy is designed to deliver fair eligibility according to applicants’ means, regardless of the source of those means.

Removing the upper income threshold for legal aid at the Crown court, meaning that all Crown court defendants will be eligible for legal aid. Those on higher incomes will be asked to pay more towards to their legal aid, ensuring taxpayer resources are directed at those most in need.

Excluding assets such as the family home from the means test where they are the subject matter of the case or where coercive control has denied applicants use of their shared marital assets, making it easier for domestic abuse victims to access legal aid.

Removing the means test for three areas of civil legal aid: civil representation for under-18s, civil representation for parents or those with parental responsibility facing the withdrawal of life-sustaining treatment from their child, and legal help for inquests involving a potential breach of rights under the ECHR (within the meaning of the Human Rights Act 1998) or where there is likely to be a significant wider public interest in the individual being represented at the inquest.

The MTR will be implemented in phases. Phase 1 will deliver changes to non-means tested areas. The rest of the new civil means test will be implemented in phase 2, followed by the new criminal means tests in phases 3 and 4. Changes to the regulations will be laid in 2023-24, coming into force in 2025. This timeframe allows digital build and testing of the new assessments by the legal aid agency and legal aid providers.

This has been an open and collaborative review and we are grateful for the invaluable contribution of a wide range of interested parties throughout the consultation period and during the course of the review.

[HCWS809]

Oral Answers to Questions

Mike Freer Excerpts

Tuesday 16th May 2023 Commons Chamber

[Sarah Champion (Rotherham) (Lab)]

11. What steps he is taking to tackle court backlogs.

[The Parliamentary Under-Secretary of State for Justice (Mike Freer)]

The outstanding case load at Preston Crown court stood at 1,454 cases at the end of December 2022. We are taking action across the criminal justice system to bring the caseload down and improve waiting times for those who use our courts. We have ramped up the additional capacity, we have recently announced the continued use of 24 Nightingale courtrooms in this financial year, and we are investing a significant amount of funding in the criminal justice system.

[Sir Mark Hendrick]

The backlog of court cases means that victims of rape, sexual abuse and violent crime face years of delay in their fight for justice. The emotional burden of the trial and delays have led to victims dropping out of the process and feeling that they would be unwilling to engage again in future. That has happened to a Preston constituent of mine who, after five years, is still waiting for her court case. Does the Secretary of State believe that that is an acceptable state for the British justice system to be in?

[Mike Freer]

I appreciate, and I know that colleagues in the judiciary appreciate, the sensitivities around such cases. They will always do their best to bring vulnerable cases forward so that victims are seen as fast as possible. There can be a variety of reasons why cases are delayed. If the hon. Gentleman wishes to write to me with the specifics of the case, I can try to find out exactly what caused the delays.

[Sarah Champion]

The Government are likely to miss their own targets on reducing Crown court backlogs. Wait times for rape and sexual assault cases are at an all-time high. I have two Rotherham families who have been waiting years for access to court for corporate manslaughter cases, and countless victims of sexual abuse who do not know when they will get their day in trial. Thirteen years of erosion of our public services have led us to this point. What exactly will the Minister do to deal with the trauma that victims, survivors and their families in my constituency are facing with such waits? Their lives are on hold. What is he actually going to do today to address that?

[Mike Freer]

Sexual offences are an incredibly sensitive issue, and the hon. Lady is right to raise it. The Department is working with the judiciary to consider specialist support in several courts to ensure that such cases are brought forward in a faster manner. There can be a variety of reasons why cases are delayed. As I said to the hon. Member for Preston (Sir Mark Hendrick), if hon. Members write to me on specific cases, I can find out why they have been delayed. It can be for a variety of reasons and not just because of the general backlog.

We are dealing with the backlog. It was coming down before the Bar strike, which pushed it back up. In the meantime, we have increased the judiciary across all our courts by 10% in the last five years—we have recruited more than 1,000 judges this year and will recruit 1,000 next year—we have taken the cap off sitting days, and we have 24 Nightingale courts still in use. Those are the practical measures that we are taking to increase capacity.

[Sir Desmond Swayne (New Forest West) (Con)]

Might we learn from the experience of Rwanda’s Gacaca courts?

[Mike Freer]

I am not quite sure what to do with that question, Mr Speaker. If my right hon. Friend would like to write to me on the details of that particular court, I will see if there are any lessons we can learn from our Rwandan colleagues.

[Siobhan Baillie (Stroud) (Con)]

As part of reducing delays in family courts, we need substantial law reform, so I welcome the Department’s decision to refer financial remedy reform to the Law Commission for a review. The problem is causing dramatic delays, costs and uncertainty for thousands of families across the country. Baroness Deech and I are holding an event in the House of Lords next month with Mr Justice Mostyn and Baroness Shackleton. Will the Ministry of Justice ensure that it is represented at that meeting so that it can listen, learn and ensure that we get some changes?

[Mike Freer]

We appreciate all the issues raised by my hon. Friend, who has been a long-term campaigner on family law. I guarantee that either a senior official or a Minister will attend that meeting.

[Mr Speaker]

I call the shadow Minister.

[Mike Freer]

I thank the hon. Gentleman for not asking a question about Common Platform, which makes a refreshing change. On the issue of reducing the backlog, it is not rhetoric—these are facts. The outstanding case load—

[Alex Cunningham]

The fact is it is going up.

[Mike Freer]

The outstanding case load is coming down from the impact of the Criminal Bar Association—

[Alex Cunningham]

No it is not!

[Mike Freer]

Well, if the hon. Gentleman waits until the figures are published at the end of June, he will see that the case load is coming down. I repeat: this is not rhetoric. These are facts. More judges this year, more judges next year, more money in the criminal justice system for legal aid, Nightingale courts, uncapped sitting days—these are practical measures that will improve access to justice.

[Alex Cunningham]

They are not working!

[Mike Freer]

Well, they are working. The hon. Gentleman will not want to admit it, but if he waits to see the facts when they are published, I hope he will then realise that we are taking tangible action to improve the capacity of our courts.

[Mr Speaker]

Don’t forget that Chorley court is still empty—we’ll take the capacity problems that Preston has.

--- Later in debate ---

[Sarah Olney (Richmond Park) (LD)]

7. What discussions he has had with the Secretary of State for Health and Social Care on the regulation of psychologists appointed as experts in family courts.

[The Parliamentary Under-Secretary of State for Justice (Mike Freer)]

The use of expert evidence is a matter for the independent judiciary, with parameters set in legislation. If the expert’s area is regulated, they must be in possession of a current licence to practice or provide an equivalent to the court. If it is not regulated, they must demonstrate appropriate qualifications or regulation by a relevant professional body. I can confirm that officials from the Ministry of Justice and the Department of Health and Social Care are in discussion on taking this further.

[Sarah Olney]

The continued reliance on self-declared experts to provide evidence in family courts is placing thousands of children and vulnerable women at risk, with allegations of parental alienation closely linked to cases of domestic abuse and coercive control. I have heard at first hand from constituents just how dangerous this can be. Professional associations and international bodies, including the United Nations, have also highlighted the failings of the current system. Will the Minister take action to protect vulnerable women and children, and finally commit to a full inquiry into the use of parental alienation in family courts, alongside more regulation and accreditation standards for those invited to give specialist testimony?

[Mike Freer]

I reiterate that it is a matter for the judiciary to question the bona fides of an expert: if they do not believe an expert seeking to give evidence in court is of the required standard, the judiciary can reject them. On taking further steps, the rights of the child are paramount, which is why we are looking forward to discussions to see how we can tighten up the role of experts. Equally, the Government are confident that the family justice system can robustly address this issue already. If there is more work to be done once we have been able to see the evidence, we will do it, but I am not proposing that we rush into a further review at this stage.

[Mr Speaker]

I call the shadow Minister.

[Anna McMorrin (Cardiff North) (Lab)]

Family courts across the country are being used to perpetuate domestic abuse, and when that abuse proves fatal, which we know it too often does, the family courts allow it to be continued against the victim’s family. Currently, the parents of a woman who was killed by her husband would have to be cross-examined by that same murderer to adopt their orphaned grandchildren. This is a system that is stacked in favour of the killer. Do the Government agree that this practice is abhorrent and support Labour’s calls to implement Jade’s law in the Victims and Prisoners Bill?

[Mike Freer]

I refer the hon. Lady to my colleague the victims Minister, my right hon. Friend the Member for Charnwood (Edward Argar), because I believe he has already met the right hon. Member for Alyn and Deeside (Mark Tami) to see how the issues raised by Jade’s law can be implemented. [Interruption.] As I have said, my colleague has met the proponent of Jade’s law to see how those issues can be progressed further.

[Dame Caroline Dinenage (Gosport) (Con)]

8. If he will make an assessment of the potential merits of giving grandchildren a statutory right to access their grandparents following a divorce or bereavement.

[The Parliamentary Under-Secretary of State for Justice (Mike Freer)]

We recognise that grandparents often play an important role in children’s lives and can provide stability in families following divorce or bereavement. However, when making any decision about a child’s upbringing the court’s paramount consideration must be the welfare of the child based on the individual facts of the case, and given the importance of considering each case on its individual merits neither adults nor children have a statutory right of access.

[Dame Caroline Dinenage]

I thank the Minister for his answer but we know that the bond with a grandparent can be one of the most precious relationships in a child’s life, yet so often in the adult wars of family breakdown children are a weapon and actions by grandparents through the family court are often incredibly expensive and frequently fruitless. What more can the Department do to give grandchildren that right to see their grandparents, and is it not about time we followed the example of Scotland, which has an older persons Minister, and Northern Ireland and Wales, which have older persons commissioners, to take up such issues?

[Mike Freer]

My hon. Friend might want to take up the question of an older persons commissioner with the Prime Minister because I suspect that is well above my pay grade. On access for grandparents, I will double-check this but am pretty sure that we recently extended the ability to get legal aid to special guardianship orders, which may well be accessible for grandparents to secure rights of access.

[John Penrose (Weston-super-Mare) (Con)]

9. What assessment he has made of the potential for improvements in the efficiency and economy of trial processes.

[The Parliamentary Under-Secretary of State for Justice (Mike Freer)]

We are committed to working closely with the judiciary and other partners to improve the efficiency of the criminal courts and family courts, and this includes the judicial-led cross-system Crown court improvement group, which improves ways of working with the Crown court. But across the whole system we are looking at increasing digitisation so that the cost of access to justice is also reduced, and that is an addition to all the measures mentioned in response to other questions to ensure the capacity of our system is robust.

[John Penrose]

I thank the Minister for those examples. Does he agree that those reductions in the costs, delays and complexity of resolving disputes and enforcing the law are good not just for victims and plaintiffs but for consumers and taxpayers, and are also examples of how red tape can be cut without compromising the quality of British justice? So will he keep going on this crusade, and perhaps persuade other Government Departments to apply the same energy and rigour in their portfolios?

[Mike Freer]

My hon. Friend is absolutely right. For instance, for online civil money claims the times for issuing, responding and hearing dates are down to 9.4 days from 25 days, while damages claims are down from 11.4 days to one day and financial remedy consent orders are down to four weeks rather than many months, all making access to justice faster, more efficient and cheaper for those who need it.

[Florence Eshalomi (Vauxhall) (Lab/Co-op)]

On 1 May, my constituent Johanita Dogbey was brutally murdered on Stockwell Park Walk in my constituency, an area that I have walked past many times. She was 31 years old. Yesterday, as I held her mother, trying to console her, she asked me why her family have to wait for over a year to get justice. The Minister outlined improving the courts system and efficiency. Does he agree that every day that my constituents have to wait is a sentence for them and that it is about not just the economic cost but the human cost in bringing forward cases so that our victims get the justice they deserve?

[Mike Freer]

The hon. Lady is quite right to raise that point. The Department and the judiciary appreciate the sensitivity of such cases to ensure that the families of victims—and the victims, if they are still with us—do get their day in court so that they can see justice done as fast as possible. There can be a variety of reasons why cases are delayed. It could be about the availability of counsel, prosecutors or experts—or, in some cases, the availability of multiple defendants. I do not know the details of that case apart from it being listed for, I believe, the spring—

[The Lord Chancellor and Secretary of State for Justice (Alex Chalk)]

It is spring 2024.

[Mike Freer]

Spring 2024. If the hon. Lady would like to write with the details of the case, I can find out if there are specific reasons why it has been delayed. As I say, there can be a variety of reasons for that, and I am quite happy to get the details for her.

[Martin Docherty-Hughes (West Dunbartonshire) (SNP)]

10. Whether he has had recent discussions with the Scottish Government on the potential effect of provisions in the Retained EU Law (Revocation and Reform) Bill on EU law incorporated in Acts of the Scottish Parliament.

[Kirsten Oswald (East Renfrewshire) (SNP)]

16. Whether he has had recent discussions with the Scottish Government on the potential effect of provisions in the Retained EU Law (Revocation and Reform) Bill on EU law incorporated in Acts of the Scottish Parliament.

[The Parliamentary Under-Secretary of State for Justice (Mike Freer)]

The Ministry of Justice has been working closely with the Scottish Government and other devolved Administrations to consider the implications of the Retained EU Law (Revocation and Reform) Bill for retained EU law in justice policy areas across the UK. My officials have regular discussions with their devolved Administration counterparts to ensure that proposals to revoke or reform retained EU law are carefully considered to avoid any unintended divergence across the UK.

[Martin Docherty-Hughes]

I wonder whether the Minister agrees with Unison the trade union, which has warned that

“encroaching upon devolved areas, to actively make lives worse for working people will damage the democratic legitimacy of the Westminster Parliament in the eyes of people in devolved nations.”

[Mike Freer]

With regard to this specific Bill, given the announcement last week, I do not believe that there is any infringement on the Scottish competency.

[Kirsten Oswald]

The Bill restricts Scotland’s Lord Advocate’s reference and intervention powers to devolved Scottish legislation. However, there is no corresponding restriction on English law officers to limit them to reserved matters. Does the Minister feel it is right that English law officers would be able to refer Scottish legislation to the courts in that manner, or does he agree with the Law Society of Scotland that that should be left to Scottish law officers?

[Mike Freer]

I will have to look carefully at the references that the hon. Lady has made, but, as far as I am aware, the items of retained EU law in the Ministry of Justice’s remit that are intended to be revoked under the new schedule are all spent measures, and there will be no impact on Scotland.

[Maggie Throup (Erewash) (Con)]

17. What steps his Department is taking through the criminal justice system to tackle alcohol and drug related crime.

--- Later in debate ---

[Dan Jarvis (Barnsley Central) (Lab)]

18. What steps he is taking to protect children in the family courts.

[The Parliamentary Under-Secretary of State for Justice (Mike Freer)]

We have introduced a number of measures to improve the experience of victims of domestic abuse and their children following the final report of the expert panel on harm in the family courts. We will shortly publish an update setting out progress made since the report’s publication. That includes establishing new pathfinder pilots in Dorset and north Wales to trial a more investigative approach to private family law cases and bolster the voice of the child in proceedings. We are consulting on further measures to spare children from involvement in courtroom battles by supporting the early resolution of private law disputes.

[Dan Jarvis]

I am grateful to the Minister for that response. Jack and Paul were murdered by their father after it was ruled that it was in their interests to maintain contact with him. The presumption for parental involvement in cases of domestic abuse can have fatal consequences, which is partly why it is under review. However, that review was meant to publish two years ago. Children’s lives depend on it, so will the Minister confirm when the findings will be published?

[Mike Freer]

As the hon. Gentleman says, work is under way. The review has to be carefully considered, because of the complexities of parental involvement, to ensure that the rights of the child are protected. It is an important and complex issue, and we want to ensure it is based on a solid understanding of the ways the presumption is currently applied and how it affects both parents and children. I have asked that we get a stronger date for the review to be published. I will write to him shortly, once I have a date.

[Peter Aldous (Waveney) (Con)]

19. Whether the Government are taking steps to ensure that legal aid is available for extended family members who are seeking guardianship of vulnerable children.

[The Parliamentary Under-Secretary of State for Justice (Mike Freer)]

We laid a family statutory instrument in February this year which, among other things, brings special guardianship orders in private law proceedings into the scope of legal aid, injecting a further £5.6 million a year into the system. A special guardianship order can place a child in the care of someone other than their birth parents. That can include family members, including grandparents, and close family friends.

[Peter Aldous]

I am most grateful to my hon. Friend for that answer. The Government’s announcement, which he outlined, of an additional £5.6 million for legal aid to support family members seeking guardianship of vulnerable children is extremely welcome. I would be grateful if he considered whether that could be part of a wider review of the rights of family members, specifically grandparents who are very often best placed to provide a loving home, care and support.

[Mike Freer]

The rights of grandparents have risen up the agenda considerably over the last few years. Both colleagues who have spoken on this issue today, including my hon. Friend, make some valid points. I will give a commitment to discuss it with my colleague Lord Bellamy, who leads on this area, to see what further work we can do.

[Mr Speaker]

I call the shadow Minister.

[Afzal Khan (Manchester, Gorton) (Lab)]

These are not my words on the cuts to legal aid, but the words of the new Lord Chancellor:

“There is now a serious concern that, without some steps to restore a measure of access to justice, serious injustice will inevitably follow.”

Will the Minister heed the words of his new boss and reverse the devastating cuts to legal aid that his party has inflicted over the last decade?

[Mike Freer]

I think, actually, that it was the Labour party who said that it was going to

“derail the gravy train of legal aid”.

This Government have continued to fund legal aid, with £1.2 billion on criminal and £813 million on civil. In the last few months, we have injected nearly £30 million into the civil part and some £13 million of that is legal aid for special guardianship orders, so I simply do not accept the premise that we are underfunding or cutting legal aid. In fact, we are investing in it. The hon. Gentleman touched on access to civil, family and tribunals. On family, we increased the budget for the Children and Family Court Advisory and Support Service by £8.4 million to £141 million. We are recruiting more judges across the system. That includes more fee-paid judges who can work in this area. That includes a virtual regional pilot to support London and the south-east, so that access to justice is faster. That includes £7.5 million for a family mediation scheme, helping 17,000 families get the access to justice they need. Any attempt to suggest we are not investing in the justice system is simply false.

[Holly Mumby-Croft (Scunthorpe) (Con)]

21. What steps he is taking to support victims of domestic abuse through the court system.

--- Later in debate ---

[Mr Philip Hollobone (Kettering) (Con)]

T6.   How many probate cases are awaiting a decision for seven weeks or more, and what is the Minister doing to speed up the decision-making process?

[The Parliamentary Under-Secretary of State for Justice (Mike Freer)]

The number is roughly 9,135, which is about 15% of the backlog. The cases for which all the documentation has been received will take six to eight weeks to complete. We have recruited 100 additional members of staff to ensure that we can clear the more complex cases, as we realise that the issuing of probate is important.

[Helen Morgan (North Shropshire) (LD)]

T5. According to figures from the Ministry of Justice, the number of theft and burglary cases prosecuted in a Crown court by West Mercia police that have been awaiting completion for one to two years increased more than threefold between the first quarter of 2020 and the first quarter of 2022. Can the Minister provide more up-to-date data on those backlogs, and tell us what steps he is taking to ensure that the victims of such crimes in North Shropshire see justice within a reasonable timescale?

[Mike Freer]

As we have said in earlier answers, we are trying to ensure that the outstanding caseload continues to diminish by continuing to increase the judiciary. There will be 1,000 more judges this year and next, we are increasing court capacity—there is now no cap on the number of sitting days—and there are also the 24 Nightingale courts. All this will make a tangible difference to the capacity of the court system, which means that the cases in the hon. Lady’s constituency can be heard more quickly.

[Scott Benton (Blackpool South) (Ind)]

T10.   What plans does my right hon. Friend have to use prisoners to help to fill labour shortages, and what assessment has he made of the extent to which that may drive down reoffending rates and help to improve the employability of prison leavers?

Oral Answers to Questions

Mike Freer Excerpts

Tuesday 28th March 2023 Commons Chamber

[Mr Barry Sheerman (Huddersfield) (Lab/Co-op)]

4. If he will make an estimate of the number of people under the age of 18 serving custodial sentences who were convicted under joint enterprise.

[The Parliamentary Under-Secretary of State for Justice (Mike Freer)]

The number of young people in custody is at an historic low, with the number of under-18s in custody having fallen by 77% over the past decade. The Ministry of Justice does not, however, collate information on whether a prosecution or conviction for any crime was also one of joint enterprise. We are considering whether such data could be collected as part of the Common Platform programme.

[Mr Sheerman]

The campaign group JENGbA—Joint Enterprise Not Guilty by Association—estimates that there are hundreds, if not thousands, of young people under 18 in prison under parasitic accessorial liability, a novel form of joint enterprise that was supposedly overturned in 2016. People convicted under PAL have no true route to appeal because of the high bar used by the Court of Appeal. Will the Minister consider my Criminal Appeal (Amendment) Bill, which is going through the House of Commons at the moment? It is desperately needed for those young people, who should not be in prison.

[Mike Freer]

I am aware of the court case to which the hon. Gentleman refers, and I am always happy to engage with him on his private Member’s Bill.

[Kate Osamor (Edmonton) (Lab/Co-op)]

5. What steps he is taking to increase the availability of legal aid.

[The Parliamentary Under-Secretary of State for Justice (Mike Freer)]

On 30 November 2022, we published our full response to the criminal legal aid independent review and a consultation on policy proposals. We are boosting the system with up-front investments to address the most urgent concerns, including uplifts of 15% for most legal aid fee schemes. We have also launched a review of civil legal aid to identify options that inform our long-term strategy of improving the sustainability of the civil legal aid system. In March 2022, we published a detailed consultation on legal aid means testing arrangements. The consultation proposes changes that should mean that legal aid is available to 2 million more people in civil cases and 3.5 million more people in magistrates courts.

[Kate Osamor]

I thank the Minister for his response. My office regularly refers constituents to the local law centre for housing issues relating to disrepair. The law centre is concerned that it is largely not covered by legal aid on damages for clients. Law centres are also not recognised as exempt professional firms so they are unable to purchase after-the-event insurance, meaning that clients are exposed to costs if they lose their case. Will the Minister consider extending access to legal aid in housing cases and recognising law centres as exempt professional firms?

[Mike Freer]

On the exemption issue, if the hon. Lady would like to write to me, I will certainly investigate that. She will be pleased to know that in the last two months we have invested an additional £10 million to boost the amount of legal aid available on housing matters.

[Mr Speaker]

I call the shadow Minister.

[Afzal Khan (Manchester, Gorton) (Lab)]

Legal aid is the backbone of our criminal justice system, and it is running on empty. In England and Wales, 54 constituencies have no legal aid providers at all, and 80% of the population do not have access to welfare legal aid providers in their local authority. The current legal aid system is not just a postcode lottery but a regional lottery. The Government have kicked the civil legal aid review into the long grass and are still not following Bellamy’s recommendations. When will the Lord Chancellor meet Bellamy’s recommendations in full?

[Mike Freer]

I do not recognise spending more than £2 billion a year as “running on empty”. Spending an extra £4 million on section 28 fees, an extra £10 million on housing legal aid, an extra £5.6 million on special guardianship legal aid, and an extra £3.3 million on special and wasted preparation legal aid is not “running on empty”. In terms of representation across the UK, the Legal Aid Agency regularly ensures that all areas of the UK are covered by duty solicitors and legal aid firms.

[Mr Speaker]

I call the SNP spokesperson.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

During yesterday’s debate on the Illegal Migration Bill, I sought clarity on how people impacted by the Bill will be able to secure access to legal advice and legal aid. Those people—be they an Afghan fighter pilot or an LGBT person who has fled Uganda—will have just eight days to make an application and seven days to appeal against removal on the grounds of serious and irreversible harm, and all that will happen while they are in immigration detention. So let me try again: how will access to legal advice be secured for such people, and will legal aid be available to them?

[Mike Freer]

If I may, as it is such a technical issue, I will happily meet the hon. Gentleman or write with a detailed answer.

[Caroline Ansell (Eastbourne) (Con)]

8. What steps he is taking to increase support for families within the family court system.

[The Parliamentary Under-Secretary of State for Justice (Mike Freer)]

Drawn-out court proceedings can have a damaging impact on parents and children. We have published a consultation on proposals for a funded mandatory mediation and co-parenting programme before court to enable more families to resolve disputes out of court. We have also invested a further £15 million in the family mediation voucher scheme, which will help about 28,000 more separating families over the next two years. By freeing up stretched court resources, those changes will help families whose cases need to be heard by a court, such as those involved in domestic abuse.

[Daniel Kawczynski]

Does my hon. Friend agree that this Government have taken the necessary steps to prevent perpetrators of domestic violence from being able to question their victims in family court proceedings, and that the family court should never again be a place where victims can be subjected to further abuse from their perpetrators?

[Mike Freer]

My hon. Friend raises a very important point. In July 2022, a landmark Domestic Abuse Act 2021 measure came into force, prohibiting domestic abuse perpetrators and victims from cross-examining each other in person during certain family and civil proceedings. Family and civil courts can now engage a court-funded qualified legal representative to conduct cross-examinations in these cases. That scheme is very popular, and hundreds of qualified legal representatives have registered for it. This will ensure that those people in court are protected from such cross-examination.

[Caroline Ansell]

In one of my last advice surgeries, a parent described to me their toxic experience of family court. The Children and Family Court Advisory and Support Service has highlighted the harm posed to children from drawn-out court proceedings. What further measures is the Minister taking to enhance and promote mediation where appropriate, so that the impact of separation is not exacerbated by legal proceedings?

[Mike Freer]

My hon. Friend raises a very important and sensitive issue. The Government are reviewing all aspects of family law, particularly in terms of how to ensure that families stay out of court. The extra £15 million for mediation vouchers will help to keep people out of that adversarial situation. It is also about the use of language, to ensure that children are not scarred by the adversarial process. A wraparound process that is family-friendly, with mediation, should address the concerns she has raised.

[Sarah Green (Chesham and Amersham) (LD)]

Over three years, one of my constituents was dragged back to the family court by their ex-partner 25 times. Despite having the bravery to leave an abusive relationship, they faced further trauma as a result of an ex-partner who was able to use the family court system to further control and manipulate them and their child. What steps is the Minister taking to ensure that the family courts cannot be abused in this way?

[Mike Freer]

The hon. Lady raises a point that has been raised before. The Department is reviewing how we can ensure that people caught up in the family court system are protected from such abuse.

[Andy Slaughter (Hammersmith) (Lab)]

The best support that families could get is representation, but the Legal Aid, Sentencing and Punishment of Offenders Act 2012 virtually abolished private law family legal aid. Saturday will be the 10th anniversary of that Act coming into effect, and since then, legal aid expenditure has been cut by a third, advice is given in three quarters of a million fewer cases and applications for full legal aid have halved, as has the number of providers. In the light of that, does the Minister think that LASPO has been good or bad for access to justice?

[Mike Freer]

What I can tell the hon. Gentleman is that we have spent over £813 million on civil legal aid. In fact, the means-testing review is expected to widen civil legal aid availability to an extra 2 million people, so I do not accept the premise that we are failing families or the civil legal aid system, because of the investment we are making.

[Priti Patel (Witham) (Con)]

7. If he will make an assessment of the adequacy of the performance of HM Courts and Tribunals Service’s probate service in the last 12 months.

[The Parliamentary Under-Secretary of State for Justice (Mike Freer)]

Despite the increased volume of applications received during and after the covid-19 pandemic, the average length of time taken for a grant of probate once all required documents are received has been maintained at between four and seven weeks, with the average response being almost one week faster in the third quarter of 2022 than the yearly average for 2020 and 2021.

[Priti Patel]

A number of my constituents have been experiencing significant delays in their probate applications—some have been waiting for over 10 weeks—and have had difficulties in accessing staff through the contact centre and the hotline. What message does the Minister have for my constituents who are stuck waiting for answers, and what is he doing to improve the application process? At the end of the day, bereaved families are having to deal with the estates of deceased relatives, and this is a deeply painful time for so many constituents up and down the country.

[Mike Freer]

My right hon. Friend raises a case that I have taken some time to unpick. I can reassure her that wait times for calls to the helpline have dropped from an hour to between five and 10 minutes. In terms of the number of what are called stops, when we have to ask for additional information, we are looking at why the form causes that, to see whether it is user-friendly. We are also recruiting additional caseworkers to ensure that complex cases are speeded through the system.

[Valerie Vaz (Walsall South) (Lab)]

The probate service was part of the reform programme, which has now been paused following a National Audit Office report, so could the Minister say who is responsible for this shambolic waste of public money, and what the next steps are?

[Mike Freer]

I have to say to the right hon. Lady that that is an interesting take on a pause. I do not think that taking extra time to ensure that a new system beds down correctly and listening to the concerns of the staff, which many Opposition Members have been asking for for many weeks, is shambolic. Many of the issues in the probate system are caused by the sheer volume of cases coming in with the increased death rate, but they are also about ensuring that we have enough staff on site with the right skills. That is why we are recruiting people to deal with the volume of cases.

[Mr Laurence Robertson (Tewkesbury) (Con)]

9. If he will take steps to ensure that legal aid is used only for cases which relate to individual cases; and if he will make a statement.

[The Parliamentary Under-Secretary of State for Justice (Mike Freer)]

Legal aid is granted only to individuals. There are specific regulations that set out the position relating to multi-party applications. Following changes made in 2012, legal aid may be granted to participants in MPAs only where each individual has a cause of action and will directly benefit from proceedings. This is a way of dealing with a collection of cases more efficiently by identifying a lead case. In addition, under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, any judicial review must have the potential to produce a benefit for the individual applicant, a member of their family, or the environment.

[Mr Robertson]

I thank the Minister for that response and I welcome the changes that have been made, but it still seems to be the case that sometimes, legal aid or connected taxpayers’ money can be used to challenge decisions that have been democratically arrived at and would, in fact, benefit communities.

[Mike Freer]

I am aware of the concern that Members have about the use of legal aid in such cases, but I can reassure my hon. Friend that the Legal Aid Agency reviews all cases to ensure that the funding decisions are necessary before they are agreed.

[Mr Gregory Campbell (East Londonderry) (DUP)]

Does the Minister agree that legal aid availability is a very important part of the justice system, but it is equally important that the wider community becomes aware of the cost of repeated cases of legal aid for the same application, so that there is full transparency among the wider public about what they are paying for?

[Mike Freer]

The hon. Gentleman makes a good point. The Legal Aid Agency will always monitor cases where we get repeat applications for funding to ensure that any application is warranted before being agreed.

--- Later in debate ---

[Simon Fell (Barrow and Furness) (Con)]

13. What assessment he has made of the impact of social media on live court cases.

[The Parliamentary Under-Secretary of State for Justice (Mike Freer)]

We have taken steps to mitigate the risk that social media poses to court cases following a call for evidence in 2019. Arrangements are in place with social media companies to ensure that relevant material is flagged and removed, and we are working to improve the enforcement of anonymity laws. Courts will take appropriate action against those who misuse social media, and they may be found in contempt of court, resulting in a fine and up to two years in prison.

[Simon Fell]

In May 2020, just as we entered the first lockdown, a young woman from my constituency posted false allegations on Facebook claiming that she was the victim of an Asian grooming gang, and that she had been raped, trafficked and beaten. The images accompanying that post were absolutely horrific. As the House might imagine, the post went global and it went viral, and in the lockdown world, it was all people were talking about. Hundreds of thousands of messages were being shared on Facebook, Twitter, Snapchat and others. The environment made it increasingly difficult for the police to do their job gathering evidence, and it even risked the viability of a trial going ahead at all. Traditional media carry reporting restrictions for such cases. Will the Minister agree to meet me to discuss whether we can look at applying the same conditions to social media channels?

[Mike Freer]

I am more than happy to meet my hon. Friend. I can reassure him that contempt of court and reporting restrictions apply to social media as well as mainstream media. We continually look at what more we can do to strengthen the law in this area, and that is why we have asked the Law Commission to consider the issue as part of a wide-ranging review of the law on contempt of court. Two new offences in the Online Safety Bill will criminalise the type of behaviour we have seen in the Eleanor Williams case. The false communications offence will criminalise communications where a person sends information that they know to be false with the intention of causing harm. As I say, I am more than happy to meet my hon. Friend.

[Andrew Bridgen (North West Leicestershire) (Ind)]

14. What progress he has made on tackling the backlog of court cases.

[The Parliamentary Under-Secretary of State for Justice (Mike Freer)]

The outstanding case load has reduced across the UK. I do not have specific numbers for my hon. Friend’s constituency, as we do not calculate them by constituency. We are taking action across the criminal justice system to bring backlogs down and improve waiting times for those who use our courts.

[Andrew Bridgen]

My hon. Friend will be aware of the saying that justice delayed is justice denied. What steps is he taking to ensure that the courts sit for as long as possible to try to get the backlog down?

[Mike Freer]

I can reassure my hon. Friend that we have removed the limit on sitting days in the Crown court for the second financial year in a row, and that means that courts will continue to work at full capacity. We are also continuing with the use of 24 Nightingale courtrooms into the 2023-24 financial year, and are recruiting 1,000 new members of the judiciary to ensure that we get the backlog under control.

[Mr Speaker]

You could always reopen the court at Chorley to help.

[Mike Amesbury (Weaver Vale) (Lab)]

Victims of crime are having to wait up to four and a half years for their day in court. Since 2010, 50% of magistrates courts have been closed. Do the Secretary of State and the Minister believe that is a coincidence?

[Mike Freer]

In terms of the efficiency of the courts estate, I can reassure the hon. Gentleman that I am less hung up about the availability of buildings in every town and city and more hung up about whether we have sitting days and judges to ensure that our criminal justice system is swift and fair.

[Mr Speaker]

I call the shadow Minister.

[Alex Cunningham (Stockton North) (Lab)]

The Minister would have us believe that all was well and great progress was being made in tackling the courts backlog. Then we got the damning National Audit Office report into the reform programme. The catalogue of problems is too extensive to detail here, from the ailing common platform to the hundreds of failing processes within the 46 projects yet to operate in the way they were intended. I therefore pose the same questions as the NAO: when will Ministers be able to quantify the now decreasing benefits of the programme and demonstrate that it has improved access to justice?

[Mike Freer]

I appreciate that the shadow Minister has a somewhat luddite approach to implementing new systems. I also say to him that the Opposition have been calling for us to listen to the staff using the common platform, which is what we have done. In fact, when I go out and about and talk to courts staff, including listing clerks and clerks in magistrates courts, the benefits of the common platform are understood, but the implementation does need some work, which is why we are pausing it. However, the alternative is to return to legacy systems, which were on the verge of collapse and for which support will be withdrawn in the near future. If that is his future, he is welcome to it.

[James Gray (North Wiltshire) (Con)]

15. What plans his Department has to consult on the options for reform in its response to the domestic homicide sentencing review.

--- Later in debate ---

[Stephen Metcalfe (South Basildon and East Thurrock) (Con)]

As my right hon. Friend will know, my private Member’s Bill reforming the process of creating lasting power of attorney passed through this place two weeks ago and is now in the other place. Assuming all goes well, when does he expect it to receive Royal Assent?

[The Parliamentary Under-Secretary of State for Justice (Mike Freer)]

While I cannot determine the date of Royal Assent, I reassure my hon. Friend that once the Bill passes through the other House, we would expect it to complete its passage here before the end of the Session.

[Taiwo Owatemi (Coventry North West) (Lab)]

Too many families are being failed by our broken courts system, including my constituents. With poor handling of domestic abuse allegations, the disregarding of children’s voices, and an obsessive pro-contact culture that puts unfit parents’ demands ahead of the children’s best interests, we need urgent reform. What steps is the Justice Secretary taking to protect vulnerable children and ensure justice for victims?

--- Later in debate ---

[Jim Shannon (Strangford) (DUP)]

Has the Minister made an assessment of the number of wills and estates that are disputed over assets each year in the United Kingdom? What discussions has he had with the devolved Assemblies about the timescales for solving such issues?

[Mike Freer]

I am not aware of any particular statistics on the number of wills that are contested, but I will write to the hon. Gentleman and ensure that we liaise with the devolved Assemblies.

Family Court Reform and CAFCASS

Mike Freer Excerpts

Wednesday 22nd March 2023 Westminster Hall

[The Parliamentary Under-Secretary of State for Justice (Mike Freer)]

It is a pleasure to serve under your chairmanship, Mrs Cummins. I thank the hon. Member for Coventry North West (Taiwo Owatemi) for securing a debate on this important subject.

The family court must always act in the best interests of children. CAFCASS plays an integral role in England, both representing children in the family court and advising the court on what is safe and in children’s best interests. It is CAFCASS that ensures that children’s voices are at the heart of the family justice system. CAFCASS is the largest employer of qualified social workers in England and supports over 140,000 children each year, speaking up for those children at what can be an extremely difficult time.

I appreciate that Members wish to raise cases where things do not go right, but it is also important to pay tribute to the work that CAFCASS does, as well as the hard-working social workers who support 140,000 children. It is wrong to suggest that the whole of CAFCASS is failing children in this country. That is simply not fair on the organisation, and the social workers who have a very difficult job to do. That is not to say that mistakes are not made or that things do not go wrong, but to paint the whole service as a failure is simply not correct.

[Taiwo Owatemi]

Will the Minister give way?

[Mike Freer]

I will make some progress. I point Members to the recent Ofsted inspection in January this year. Ofsted said that CAFCASS was “highly effective”. The service has meant that the children at greatest risk continue to be promptly allocated a children’s guardian or family court adviser. I do not take issue with the problems that hon. Members have raised, but I wanted to put on record that the description of CAFCASS as a dystopian organisation getting everything wrong is simply unfair. There are many people there working in very difficult situations, doing a lot of good work for children.

I will move on to some of the things that we are doing to ensure that CAFCASS has capacity and funding. On additional funding and coping with the pandemic backlogs, we have ensured that the CAFCASS budget was increased by over £8.4 million, to a baseline of £140 million. We are also ensuring that the sitting days for both elements of the family court are increased.

I do not want to dwell on the particularly dry bits of what the family courts have to do. I appreciate that Members have raised specific questions, which I will do my best to answer. Where I cannot answer them, I will see that my colleague, Lord Bellamy, who covers this portfolio, provides more detailed answers. If hon. Members wish to meet Lord Bellamy to go through the issues in more depth, I am happy to facilitate that. I appreciate that I do not have the depth of knowledge that other Members or Lord Bellamy have.

We spend £813 million on civil legal aid. In the last couple of months, we have increased the amount by £30 million, just to support those people who need legal aid in a situation of domestic violence. It is not true to say that we are leaving victims of domestic violence without legal aid.

I recognise that long-term reform of the family court is needed, and that many of the issues are wide-ranging. Ensuring that vulnerable court users, such as those who have experienced domestic abuse, continue to be supported is complex. We want to continue to build on the response to the 2020 report on the risk of harm in private law proceedings. We have delivered on all the short-term commitments in the harm panel report. The Domestic Abuse Act 2021 prohibits the cross-examination of victims by perpetrators, and gives victims of domestic abuse automatic eligibility for special measures in the family courts.

In December 2022, the Family Procedure Rule Committee agreed rule and practice direction changes to ensure that independent domestic violence advisers and other specialist support services can accompany a party into court. Those changes are expected to come into force on 6 April. The Government continue to work closely with the domestic abuse sector to ensure that survivors’ voices remain central to family court reform. I look forward to the upcoming launch of the Domestic Abuse Commissioner’s monitoring and reporting pilot, which will ensure that we continue to understand the impact of family court proceedings on children and families.

I will touch on a couple of issues raised.

[Alex Cunningham]

Before the Minister continues, could we go back to the issue of legal aid? Not everybody in family court proceedings can qualify for legal aid, but will he conduct an assessment of the time that has been wasted in courts because litigants in person take up so much more of judges’ time? It would save time, and the Government money, if those people had access to legal aid.

[Mike Freer]

As always, I will give very careful consideration to any request from the hon. Gentleman, and I will report back to him on what we can do on that issue. He mentioned family mediation. Obviously, a big driver of the reform is the desire to keep families out of a court process that is not helpful, and away from an adversarial process. The investment of about £7.3 million in providing mediation vouchers has been a success; it is working.

[Jess Phillips]

Would the Minister enter, or want anyone in his family to enter, into mediation with their rapist?

[Mike Freer]

I will tread very carefully here. I grew up in a home with domestic violence, so I understand the issue quite closely. I am very careful to ensure that victims of domestic abuse are able to get justice, but I also accept—[Interruption.] No, hang on a moment; the hon. Lady should let me finish, before she judges what I am going to say. I personally would not want that to happen. That is not my decision. Unfortunately, as the hon. Lady knows, the justice system is never fair. It is often too “processy”. The point she makes has been well landed, and they are points that we will continue to discuss with the judiciary. The process, as she knows, is not always balanced, and it is our job to try to remove imbalances. The point has been well made, and I will ensure that it is conveyed to the judiciary.

I turn to the other issues that the hon. Lady and other Members have raised. On the use of experts, we clearly have a difference of opinion. First of all, the regulation of experts is a matter for the Department of Health and Social Care, and I am more than happy to take the matter up with the relevant Minister.

The ability, or inability, to refuse a so-called expert is a matter for judicial discretion. If the judiciary does not believe that a person is an expert, it is up to them to say, “We do not accept them as an expert.” Regulation is a separate issue; as I say, I am more than happy to take that up with colleagues in DHSC. However, the judiciary can reject what we would call, in common parlance, so-called experts.

I turn to the presumption of parental involvement. This is an important and complex issue, and we want to ensure that any recommendations resulting from the review are based on a solid understanding of the way that the presumption is applied, and how it affects both parents and children. The review will be concluded later this year, and a publication date will be announced in due course.

Parental responsibilities can already be limited by the courts. On Jade’s law, my understanding is that the Minister of State, Ministry of Justice, my right hon. Friend the Member for Charnwood (Edward Argar), and Lord Bellamy have already met the right hon. Member for Alyn and Deeside (Mark Tami) to discuss the case and how these issues can be pursued. If hon. Members want to know more, then I am very happy to write, or to ask Lord Bellamy to write. However, that issue is being explored with the right hon. Member, who has raised it in the House several times.

I do not want to diminish the complexity of the issues raised today, but I did want to put on record that all the issues raised are being dealt with. I appreciate that Members will raise individual cases where they feel that the system is failing, and I cannot diminish individuals’ experience of that, but we need some balance; 140,000 children are supported by CAFCASS in difficult circumstances, and to suggest that it gets it wrong all the time is not fair. However, the points raised by Opposition Members have landed well, and I will ensure that Lord Bellamy and I sit down to review the issues that have been raised. If hon. Members wish to have a meeting with Lord Bellamy, I am more than happy to facilitate that.

Powers of Attorney Bill

Mike Freer Excerpts

3rd reading
Friday 17th March 2023 Commons Chamber

[The Parliamentary Under-Secretary of State for Justice (Mike Freer)]

First, I thank my hon. Friend the Member for South Basildon and East Thurrock (Stephen Metcalfe) for his sterling work on this valuable Bill in steering it through to this stage; he has done an amazing amount of work in the background and in the Chamber and in Committee to ensure it has obtained cross-party support, and I am extremely grateful for that.

I am sure I speak on behalf of many in saying that it is difficult to talk about and plan for a time when we might no longer be able to make our own decisions due to the loss of mental capacity. It is clear that we all recognise that a lasting power of attorney is a vital resource. We also recognise the importance of ensuring that the process for making one has sufficient safeguards while remaining accessible and efficient. As my hon. Friend highlighted, however, there are a number of problems facing the current system for making and registering an LPA. These problems can be summarised in three points: outdated safeguards; confusing paper forms; and an unsustainable volume of forms for the Office of the Public Guardian to deal with. The service needs to be modernised: the volume of paper is such that the system is rapidly reaching the point where it is no longer fit for purpose.

The Bill effectively tackles those problems by facilitating changes to the service to make and register an LPA. The introduction of a digital channel will make it easier for users to create and register their LPA. However, I hope my hon. Friend has reassured those with concerns that modernisation does not mean removing all traces of paper; instead, it promotes an enhanced paper channel so that donors, attorneys and others involved can have a choice of using a digital or paper route, depending on their needs. I am greatly in favour of this fluid system as it is important to increase access to this important service so that everyone who wants or needs an LPA can have one.

My hon. Friend has also eloquently summarised ways in which this Bill strengthens protections for the donor. It gives assurances that the process for making an LPA has sufficient safeguards, for example allowing anyone with a legitimate concern to raise an objection with the public guardian. Along with restricting who can apply to register an LPA just to the donor and the introduction of identity checks, the changes will build in more confidence that the system will better protect individuals from coercion or abuse.

It is important to ensure that the public guardian can successfully operate the new service. I am grateful for my hon. Friend’s comments about the current burden on the public guardian. I have seen for myself when visiting the Office of the Public Guardian the receipt of 4,000 envelopes a day, each containing 18 pages of paper—that is nearly 80,000 papers a day having to be processed. A number of colleagues have commented on the backlog. I can reassure colleagues that the Office of the Public Guardian has been working throughout covid. It does use technology: it uses a three-shift system to ensure that the office is manned for up to 18 hours a day, to ensure that these vital applications are processed as safely, as securely, and as fast as possible. However, the use of electronic registration for LPAs will help reduce that burden and build resilience into the process, making the public guardian much more sustainable.

I should also mention the support that these provisions have received. It is especially pleasing that everyone supports chartered legal executives being allowed to certify copies of the power of attorney. I agree with what my hon. Friend said about the utility of that provision. I recognise that a power of attorney is a very important legal document and that it is important to maintain public confidence in the security of the process, but let me also say quite clearly that the proposed change to the legislation does not affect the contents of the power of attorney. It ensures that chartered legal executives who support their clients to prepare the original document can also legitimately certify that a copy is a true and complete copy of the original.

Before closing, I will address some of the issues raised by Members. The shadow Secretary of State for Justice, the hon. Member for Croydon North (Steve Reed)—I am pleased to see him in his place today—raised the issue of capacity assessment. That is quite a detailed issue, so I will write to the hon. Gentleman with much more detail, but the certificate provider is required to ensure that the donor understands the purpose of the LPA and the scope of the authority conferred under it. Obviously, there is a raft of other provisions, so without detaining the House, I will ensure that the shadow Secretary of State gets a full response in due course.

The hon. Member for Glasgow North (Patrick Grady) raised a very good point, both today and in Committee, about the recognition of Scottish powers of attorney in England and Wales. I can confirm that legislation is already in place that allows for the recognition of Scottish powers of attorney in England and Wales. Paragraph 13 of schedule 3 to the 2005 Act provides that where an individual is habitually resident in another country to which England and Wales is a connected country—which would include Scotland—the law applicable to the power’s existence is the law of the other country, so both are recognised. However, I accept that institutions do not always recognise that duality. Not only will we address that point as part of our engagement, particularly with banks and the insurance sector, to ensure that those organisations are aware of the new changes we are making, but we will reiterate the legitimacy of Scottish powers of attorney. As requested, I will place a copy of that letter in the Library.

My hon. Friend the Member for North West Norfolk (James Wild) quite rightly welcomed the retention of the paper process. I would also say that the digital process is increasingly important if we are to ensure that the Office of the Public Guardian is fit for purpose. My hon. Friend asked what stage we are at with the new digital system; the development of that system is ongoing, and the cost given in the explanatory notes, which he mentioned, is correct. I know he has spent some considerable time looking at IT problems that the Ministry of Justice is involved in, and if he wishes it, I am happy to ensure that we can have a more detailed briefing on how the new system will work.

My hon. Friend the Member for Guildford (Angela Richardson) also raised the issue of the 11 tonnes of paper, but having seen the scanners in operation, I can reassure her that it is quite an impressive operation. Literally every envelope with its 18 pages is scanned through at speed, so that the processers can see them online. My hon. Friend the Member for South West Hertfordshire (Mr Mohindra) mentioned Age UK. It is correct to pay tribute to the work that that charity has done, and it did recognise that the paperwork system is cumbersome. That paperwork is often being embarked upon at a difficult stage, and it is right that we streamline it but, equally, ensure that the verification of the people involved is as secure as possible. I reassure my hon. Friend that there is a system—I keep calling it the one-touch system—through which one can check on where the system is, and on verification.

I cannot mention all hon. Members’ contributions to the debate, but I do want to respond to the speech of my hon. Friend the Member for Cities of London and Westminster (Nickie Aiken). So often in this place, we deal with dry, technical issues, but our job is not just to vote things through: it is to ensure that the legislation we are voting for is rooted in changing people’s lives. The personal testimony that my hon. Friend brought to the debate demonstrated why we are here: it makes for better law if we have personal experience or testimony from those we know—from our constituents—to bring our legislation to life. I reiterate, on her point about battling institutions, that we will continue to engage with banks and insurance companies. I thank her for her personal and powerful perspective.

Finally, I thank all colleagues for their support and all those who took part in the debate—I am sorry that I cannot address all their points. I thank the officials who have assisted in the passage of the Bill, as well as the previous Ministers who have been involved in the process. I hope that the Bill’s passage has made it clear that modernisation is a necessity for improving user experience, protections and accessibility.

Let me take this final opportunity to reiterate the Government’s wholehearted support for the Bill and our thanks to our hon. Friend the Member for South Basildon and East Thurrock.

Singapore Convention on Mediation: Government Response to Consultation

Mike Freer Excerpts

Thursday 2nd March 2023 Written Statements

[The Parliamentary Under-Secretary of State for Justice (Mike Freer)]

My noble Friend the Parliamentary Under Secretary of State for Justice (Lord Christopher Bellamy KC), has made the following statement:

Today I am publishing the Government response to the consultation on the United Nations Convention on international settlement agreements resulting from mediation (New York, 2018) (the “Singapore Convention on Mediation").

In an increasingly globalised world, it is important that businesses have the confidence to trade across borders in the knowledge that private international law rules are in place to determine which country’s courts will hear a dispute raising cross-border issues (jurisdiction), which country’s law will apply (applicable law) and whether a judgment obtained in one country will be recognised and enforced in another (recognition and enforcement). These rules also establish procedures for cooperation in areas such as the taking of evidence, the service of legal documents and co-operation between competent authorities.

The Singapore convention on mediation (“the Convention") is a private international law agreement which provides a framework to allow for the recognition and enforcement of international commercial settlement agreements reached via mediation. It enables a party which has mediated their dispute to enforce the resulting cross-border mediated agreement in any country that is party to the convention without needing to commence an action for breach of contract.

The convention has garnered international support and recognition since it opened for signature in August 2019, with 55 countries having already signed it, including a number of the UK’s key trading partners and 18 of the UK’s fellow Commonwealth nations. The convention has been ratified by 10 countries to date, namely Fiji, Qatar, Saudi Arabia, Belarus, Ecuador, Honduras, Turkey, Georgia, Kazakhstan, and Singapore.

With this global reach, the convention presents opportunities for the UK to strengthen its relationships with our existing international partners and to establish new relationships. It will also reaffirm the UK’s intention to build upon its long history of leadership in international law-making fora such as the United Nations and the Hague Conference on private international law.

Mediation as a dispute resolution process is integral to the UK justice system. It can provide a cost-effective method of resolving disputes whilst also aiming to preserve important and potentially long-standing business relationships. It is estimated that commercial mediation can save businesses around £5.9 billion per year in management time, damaged relationships, lost productivity, and legal fees. In February 2023, the value of UK mediated cases each year was estimated at approximately £20 billion.

The convention provides a uniform framework for the effective recognition and enforcement of international mediated settlement agreements resulting from commercial disputes. Its non-reciprocal nature means that the settlement agreements that UK courts may be asked to enforce, as a party to the convention, do not need to have been concluded in the jurisdiction of another state party. Parties to international mediated settlement agreements will therefore be able to have their settlement agreements recognised and enforced in the UK under the convention rules, regardless of the jurisdiction in which they were reached. This wide application of the convention will reinforce and potentially increase the UK’s attractiveness as a respected jurisdiction for international dispute resolution.

The Government launched a public consultation in February 2022 to seek the views of the UK’s flourishing legal sector and mediation community on whether the UK should become a party to the convention. The majority of the responses were in favour of the UK joining the convention. In practical terms, many respondents noted that joining the convention will mean that where it might be necessary to enforce a mediated agreement, having a direct route for enforcement would be preferable to the current practice of having to enforce by way of a breach of contract or following a court order. Respondents also generally agreed that becoming party would signal the UK’s commitment to mediation, further enhance the UK’s status as an attractive international dispute resolution hub, promote the UK legal sector and increase the credibility of UK-based mediators.

For these reasons, the Government has concluded that it is the right time for the UK to become a party to the convention to provide for recognition and enforcement of international commercial mediation settlement agreements throughout the UK. This decision will be a clear signal to our international partners that the UK is committed to maintaining and strengthening its position as a centre for dispute resolution and to promote the UK’s flourishing legal and mediation sectors.

The UK will sign the convention as soon as possible, as an important signal of our intentions to remain a world leader in this area and as a clear indication of the UK's commitment to mediation. We will work to ratify at a later date once all necessary implementing legislation is in place and after the convention has been laid before Parliament under the terms of the Constitutional Reform and Governance Act 2010.

I invite you to consider the Government response to the consultation, available at https://www.gov.uk/government/consultations/the-singapore-convention-on-mediation.

[HCWS592]

Powers of Attorney Bill

Mike Freer Excerpts

Committee stage
Wednesday 1st March 2023 Public Bill Committees

[Patrick Grady (Glasgow North) (SNP)]

I congratulate the hon. Member for South Basildon and East Thurrock on bringing forward the Bill and securing Government support. I have a few brief comments to make. Power of attorney provisions are increasingly valuable and necessary as the population ages and our interactions with different authorities and agencies become more complicated. The Bill’s simplification of the application process and introduction of further safeguards for applicants and donors are very welcome.

As the hon. Member recognised, the legal system in Scotland is devolved; in fact, it has had its own legal system since the Acts of Union. The aspects of the Bill that apply north of the border are largely technical and consequential in nature—for example, relating to the recognition of chartered legal executives. There are certain differences in how power of attorney arrangements work north and south of the border—for example, in how the application is witnessed and certified—and Scotland has its own Office of the Public Guardian. It is important that both systems are robust and that everybody—donors, or granters as they are known in Scotland, attorneys and the institutions they interact with—has full confidence in the integrity of the system.

I understand that there are some issues with mutual recognition north and south of the border. I am not sure whether the Bill is the correct vehicle to tackle them, but I wonder whether there is an opportunity to explore that before Report. If there is an opportunity to simplify and clarify the law in this area and ensure that there is mutual recognition north and south of the border, it is important that we take it. There are often cross-border issues for families and individuals and their attorneys. Many of us, myself included, have had constituency casework related to the complications that can arise when a family is in one part of the United Kingdom but care is being received or properties have to be managed in another part of the United Kingdom. Perhaps that could be considered before Report.

I am extremely glad that there is consensus on the Bill, and I am glad to be able to take part in the Committee and help it to progress. It cannot cover everything, and there are some wider issues that could be considered in the longer term—not least the variation in the charges that solicitors often apply when providing advice in this area. Ensuring that more people can safely and with confidence provide for a power of attorney in the long run will hopefully help people to save money and, more importantly, save some of the stress and confusion that can arise when a relative is incapacitated. We should all be working to raise awareness of the value that having the power of attorney in place can bring. I congratulate the hon. Member for South Basildon and East Thurrock again, and I look forward to the progress of the Bill.

[The Parliamentary Under-Secretary of State for Justice (Mike Freer)]

It is a great pleasure to serve under your chairmanship, Mrs Murray. I will try not to detain the Committee for long. I want to express my wholehearted support for the Bill of my hon. Friend the Member for South Basildon and East Thurrock, and I thank him for introducing it.

It is my privilege to be the Minister responsible for mental capacity, and I am particularly aware of how necessary these provisions are. A lasting power of attorney, or LPA, ensures that a person’s wishes and preferences can be considered and reduces the stress and burden on families when capacity is lost unexpectedly. However, despite the intention, the reality is that a lot of people find the current paper process for making LPAs stressful, confusing and bureaucratic. Having had experience of trying to put an LPA in place for both my mother and my mother-in-law, I can testify to how confusing, bureaucratic and difficult the process can be.

It is ever clearer that modernisation is no longer just an option, but an absolute necessity. It will help the Public Guardian to respond to changing societal needs and ultimately make the process for making and registering LPAs safer, simpler and more accessible. No doubt the introduction of a digital channel and an improved paper route will help to make an LPA more accessible for more people. The hybrid approach will provide flexibility between digital and paper channels to create a single LPA. However, it is the changes to the application process that my hon. Friend explained, such as removing the ability for anyone other than the donor to apply to register an LPA and allowing the Public Guardian to co-ordinate the completion of the document, which allow for that flexibility.

My hon. Friend outlined that in the new system, the LPA will be registered as an electronic document and accessed digitally; therefore, proof of an LPA can be provided and accessed instantly. Of course, as my hon. Friend also mentioned, physical proof of an LPA can still be requested for those unable to access a digital service. More generally, chartered legal executives will also be able to certify copies of any power of attorney, including LPAs, which they are unable to do under the current legislation. That will remedy an anomaly in the process that allows Chartered Institute of Legal Executives lawyers to participate in the creation of a power of attorney, but then renders them unable to certify as genuine a copy of the same document. Along with modernising the LPA, that will help to make sharing and using all LPAs, whether old or modernised, easier in the future.

As my hon. Friend covered, those measures relating to evidence of the LPA or power of attorney are the only sections of the Bill that extend to Scotland and Northern Ireland. I therefore want to take the time to affirm that it is the Government’s position that no legislative consent motion is needed, as changes are consequential to the legislation in England and Wales. I take the point the hon. Member for Glasgow North made, and if he wishes to contact my hon. Friend the Member for South Basildon and East Thurrock or myself afterwards, we will see if we can address any specific concerns he may have about the application in Scotland.

So far, I have spoken about the benefits of the Bill for the access and use of LPAs and powers of attorney generally, but digitisation will also help the Public Guardian to become more sustainable. Digitisation reduces the Public Guardian’s burden to scan, process and store enormous volumes of paper—11 tonnes at any one time. Manual checks can be automated and happen earlier; I am confident that that will create a speedier process, help to reduce errors in the LPA that prevent registration and ensure the Public Guardian is fit for the modern world.

As my hon. Friend has so eloquently explained, the Bill will guarantee access to a system that is simple to navigate and easier to complete. However, that must be balanced against the need for suitable safeguards. That is partly achieved through changes made by the Bill to notification and objection. Currently, the Public Guardian trusts that the applicant has notified people of their ability to object. Having the Public Guardian inform parties means it can be certain that notifications have been sent, increasing the protection provided.

What is more, the Bill simplifies the objection process by providing a single route for all objections, starting with the Public Guardian and ending at the Court of Protection. If required, the Court of Protection can step in. I share my hon. Friend’s view that formalising the existing process will increase protections for donors, due to clarity about where and how to express concerns about the registration of an LPA.

I am also delighted to see the introduction of identity verification for certain parties. That will help to protect donors and wider society from unauthorised access to people’s assets by reducing the risk of fraud. It is a significant increase in safeguards. The introduction of identity verification, alongside the changes to notification and objections, is a driving factor in why the Government support the Bill. It will embed robust safeguards throughout the process for making an LPA.

In closing, I reiterate my thanks to my hon. Friend the Member for South Basildon and East Thurrock for sponsoring this important Bill and confirm the Government’s continuing support for it. This may not be a long Bill, but its impact is far-reaching. It is therefore vital that we support the measures, and I am grateful to the Committee members who have spoken so helpfully. I look forward to engaging more as the Bill progresses through Parliament.

[Stephen Metcalfe]

I will add a few thanks to the Minister’s, in particular to my hon. Friend the Member for Darlington and the hon. Members for Newcastle upon Tyne Central and for Glasgow North for their contributions, and to all Members for their attendance and support. I thank the Minister for his positive support, all the officials who helped to bring the Bill to this stage, and you and your team, Mrs Murray, for keeping us all on track.

As the Minister and I have said, this is a relatively small and short Bill. It is tight in its provisions and scope, but it will have a huge impact on people’s ability to make a lasting power of attorney and it will introduce some particularly welcome safeguards. I am grateful for the support, and I hope that everyone will continue to support the Bill as it moves through the House.

My final thank you is to all the external organisations that have been in contact with me throughout the process of sponsoring the Bill. I thank them for their advice, their views and their general support for what we are trying to do.

Question put and agreed to.

Clause 1 accordingly ordered to stand part of the Bill.

Clauses 2 and 3 ordered to stand part of the Bill.

Schedule agreed to.

Bill to be reported, without amendment.