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

2nd reading (Hansard): House of Lords
Wednesday 20th June 2018 Lords Chamber

Second Reading

15:49

Moved by

[Lord Keen of Elie]

That the Bill be now read a second time.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, the Bill is a vital first step in delivering legislation to underpin our ambitious and far-reaching programme to create a modern, world-class courts and justice system that is swift and straightforward and that works for everyone. Our programme of reform will also foster innovation and cement our reputation for global legal excellence.

In our manifesto, and in last year’s Queen’s Speech, the Government committed to modernising our courts and tribunals so they are fit for the 21st century. The way justice is administered and delivered in our courts and tribunals cannot stand still while the world changes around them. The justice system must embrace new technologies and seize the opportunities of the digital revolution. It must work for, and fit in with, the way people live their lives today. But modernisation must also ensure that the judiciary and staff who work in our courts and tribunals are empowered to deliver smooth and efficient justice. We have a world-class judiciary, and through the Bill we want to enable it to continue to deploy its time and expertise where and when it is most needed.

The Bill will assist in a number of different ways. It will allow suitably qualified and experienced staff to be authorised to handle uncontroversial, straightforward matters under judicial supervision. This will free up judges’ time to focus on more complex matters and will improve the efficiency and effectiveness of the courts and tribunal system. The independent procedure rule committees will determine which functions staff may exercise in each jurisdiction. These judicially led committees are the right bodies to take these decisions, and this will ensure that the powers are properly scrutinised by judges, practitioners and other interested parties.

The Bill will make it possible for staff to carry out judicial functions in the Crown Court, where the activities of court officers are currently restricted to “formal and administrative matters” only. The Crown Court judiciary currently spends far too much time on routine tasks which could be delegated, such as changes to the starting time of a hearing, or changing the pretrial preparation hearing date, even if the parties are all in agreement about these matters. The Bill also removes the post of justices’ clerk, to enable the creation of a more flexible, cross-jurisdictional leadership role for authorised staff.

All this is subject to a robust framework of authorisation that affords the court and tribunal staff who exercise these functions the right protections and safeguards. Most significantly, the Bill makes such staff independent of the Lord Chancellor but accountable to the judiciary. Courts and tribunal staff will be able to exercise judicial functions only once authorised to do so by the Lord Chief Justice or his nominee, or the Senior President of Tribunals or his delegate. The judiciary will grant such authorisation only when satisfied that the relevant staff have the necessary competence and experience to exercise these functions. The Bill also applies to authorised staff the same protections that currently apply to justices’ clerks and assistants to justices’ clerks carrying out judicial functions in the magistrates’ and family courts. This includes protecting them from costs in legal proceedings and indemnification in respect of anything they do, or do not do, when exercising judicial functions in good faith.

Alongside these changes, the Bill includes measures to ensure that the system of judicial deployment is as flexible as possible. It will give the Lord Chief Justice and the Senior President of Tribunals greater flexibility to make the best use of our judges’ experience, expertise and time. The judicial measures in the Bill include enabling recorders to sit in the Upper Tribunal and senior employment judges to sit as judges in the First-tier Tribunal and Upper Tribunal. This will broaden the pool of expertise that the tribunals can draw from to help them meet business needs. They also include extending the range of High Court judges to act as arbitrators. This will help meet the growth in demand in recent years for arbitration—for example, to resolve cases in the Chancery Division of the High Court. They will also remove the restriction on a judge being the president of more than one chamber of the First-tier Tribunal or Upper Tribunal. This will give the Senior President of Tribunals greater flexibility to manage the leadership of the tribunals without having to recruit and appoint a new chamber president immediately that there is a vacancy. Taken together, these measures will enable the judiciary to respond to the changing demands of the case loads of different jurisdictions and will make the best use of the existing cohort of judges to benefit all users of our courts and tribunals.

We are delivering the court reform programme in partnership with the senior judiciary. I am pleased that the Lord Chief Justice and the Senior President of Tribunals have welcomed the Bill, commenting that its introduction is,

“a positive first step in legislation to deliver reform”.

Most of the measures have already been before Parliament as part of the Prisons and Courts Bill, which fell when the general election was called. The Courts and Tribunals (Judiciary and Functions of Staff) Bill is very much a first step, and we will bring forward further courts legislation as soon as parliamentary time allows.

We have not stood still waiting for this Bill; we have been pressing on with reform in areas where primary legislation is not required and we are making significant progress in enabling access to justice through online and digital means. In May, we rolled out nationally an online divorce service, allowing couples to apply for uncontested divorce digitally for the first time. People can also now make pleas online for low-level offences, such as traffic offences, and they can respond to jury summonses, track social security appeals, and issue and respond to civil money claims, all online. Over 16,000 people have already engaged with these pilots and are getting straightforward, digital access to the courts for the first time. The Bill supports that wider reform by making sure that we make best use of our judiciary and courts staff as we develop these new approaches to delivering justice.

The Bill, and our wider package of reforms, will ensure that our courts and tribunals system is fit for the 21st century and the digital age. It will help to ensure that both the judges and staff of our courts and tribunals are able to respond to the changing demands of a reformed system and, ultimately, to deliver better services for court users. The Bill marks an important first step in delivering a reformed courts and tribunals system and I commend it to the House. I beg to move.

15:57

[Baroness Chakrabarti (Lab)]

My Lords, like many in your Lordships’ House, I have spent much of my life critiquing, seeking to improve and sometimes downright opposing legislation that I have seen as flamboyantly intrusive and therefore unjust. Clearly, this Bill is not in that category. However, legislation can also be deficient for what it does not contain, as that might lead to injustice as well.

As the noble and learned Lord said, the Government’s Queen’s Speech promised a programme of reforms that would transform the way in which the UK justice system operates. He referred to that reform as “ambitious”. Unlike last year’s Prisons and Courts Bill, which dealt head-on with those proposed reforms, this Bill is, by contrast, perhaps the beginning of a legislative drip feed.

Today of all days, we are conscious of the challenges and complexities of minority government. Clearly, one approach is the very skilful drafting of the scope of this Bill, with its very tight Long Title, perhaps to avoid controversy, amendment and so on. However, another approach in challenging times of minority government might be to be a little more ambitious and out in the open, and to pursue that ambition by consent. My hope would be that, during the passage and conduct of the Bill, the Government might consider moving from the more cautious to the more open approach to debating these matters—these ambitions—and subjecting them to appropriate parliamentary scrutiny. As the Minister just said, the reform programme is moving ahead in any event, in the absence of primary legislation, and one might query the appropriateness of that.

The reform programme cost of £1.2 billion to the taxpayer seeks to “modernise” the courts service by transferring more court hearings online or operating them through remote video links. Digital hearings will have implications worth considering for the principles of open justice and for public confidence in the justice system. The Equality and Human Rights Commission has raised concerns about the potentially detrimental impact on people with certain challenges and protected characteristics, who are more likely to be excluded by digital processes. My noble friend Lord Beecham will deal with this in more detail a little later.

There has been no real parliamentary scrutiny of this programme—this expensive modernising series of measures—or of the associated court closures and staff cuts, even by the Justice Committee. Since 2010 the Government have closed literally hundreds of courts and cut thousands of vital staff, with the Ministry of Justice launching a new consultation on further court closures in January. Opposition research suggests that 80% of the courts sold so far have raised on average little more than the average UK house price. This raises concerns over long-term damage to access to justice for civil litigants and indeed victims of crime.

Reductions in the number of local courts pile further pressure on those remaining courts, which are already creaking under the weight of budget and staff cuts over many years. So we on this side of your Lordships’ House ask and implore the Government not to proceed with any further court closures until legislation for this ambitious digitisation of courts programme is published and reforms can be subjected to full parliamentary and public scrutiny.

In May, the National Audit Office released a report on the Government’s ambitious reforms and it is pretty damning. Again, my noble friend Lord Beecham will consider this in more detail later. We already have precedent, however, of reforms to the justice system conducted without sufficient research and consultation. That precedent—not a great one—is LASPO.

LASPO has been an unmitigated disaster, widely criticised by expert stakeholders including the Bar Council, the Justice Committee and the Law Society. The Public Accounts Committee made it clear that in bringing forward that legislation the Ministry of Justice had,

“not properly assessed the full impact of the reforms”.

That impact has proved devastating for some of the most vulnerable people in our society, who as a result of those cuts have been shut out altogether from the legal aid system that we were once so proud of in this country.

The year before the relevant provisions of LASPO came into force, legal aid was granted in 925,000 cases. According to Amnesty, the year after it came into force assistance was given in fewer than 500,000 cases—a drop of 46% in legal assistance. This is not just a comparator. Drastic cuts to legal aid will and do have a direct relationship to pressures on judges and those who work in the court system when ill-advised and unassisted members of public turn up to seek justice.

Clause 3, as we have heard from the Minister, delegates judicial functions to authorised staff. This seemingly sensible and uncontroversial provision must be understood in the broader context of the wider reform agenda and the austerity measures behind it, because the savings generated through proposed reforms will arise only through the reduction of the court estate and through savings on judicial salaries. Further proposals include the relocation of many case management functions—listing, scheduling and so on—which currently take place within court buildings with the benefit of on-site judicial supervision. The implication is that these decisions will move to new off-site service centres—which I think we have all experienced with varying degrees of satisfaction in relation to other services. Given their off-site nature, the implication that these service centres will be supervised by authorised staff, not judges, is worrying. To have authorised staff who are not subject to the training, experience, ethos and oaths that a professional judge is, and who are performing judicial functions but employed directly by HMCTS, raises questions worth considering of accountability and independence. Concerns that they would be subject to administrative pressures, such as meeting targets, are also worth thinking about.

The devil will, therefore, be in the detail of how these provisions might operate. Without limits on who can be authorised and what powers can be given to authorised persons, this delegation has the potential, as currently drafted, to change the essential nature of our justice system. Transparent and public scrutiny by parliamentarians with a democratic mandate is necessary. While acknowledging the great work over many years and the existing remit of the procedure rule committee, I really would query whether delegation of judicial functions can be thought of as a simple procedural matter for a rules committee as opposed to something worthy of secondary legislation in both Houses of Parliament. If one accepts the case for the limited delegation of some of the most straightforward decisions to authorised staff, it is then potentially objectionable that these relatively low-paid staff—quite possibly paid less than lawyers in other government departments and who have already been hit by the public sector pay caps—are being used to save money, if they are not to be offered proper remuneration for this new, more challenging and increased workload.

On this side of your Lordships’ House, we will be seeking to probe the Government during the passage of this Bill and to push for a number of safeguards in the Bill, the first of which is limits to the delegation of these judicial powers to non-judicial personnel. The MoJ’s own factsheet on delegation to staff says that delegated decisions are unlikely to involve contested matters; why should that not appear in the Bill itself? Most case management decisions are vital judicial functions and, therefore, should not necessarily be delegated. Decisions that impact on the fairness of the process itself are, and must remain, the remit of judges and involve carefully weighing submissions by parties. In addition to concerns around transparency, there is a danger that efficiencies gained by delegating case management decisions will be lost if the court has to reconsider many of these decisions at a later stage in the process. There ought, again, to be minimum qualifications for these authorised staff in the Bill. The Law Society has suggested, for example, that no one with less than three years post-qualification legal practice—that is, a barrister or solicitor—should be delegated any judicial function under this Bill. That is a suggestion worth considering. Three years of post-qualification practice is not a high bar when you consider who may or may not take on a pupil or a trainee solicitor, for example, for supervision.

As your Lordships will have read, other interested parties have called for a statutory right of reconsideration allowing any party to a decision by an authorised person to have that decision reconsidered by a judge, as recommended by Lord Justice Briggs in his 2016 report. That statutory right would further assist in assuring compliance with Article 6 of the Convention on Human Rights, which requires decisions by an independent and impartial person.

Further, the Bar Council has called for key questions to be asked by your Lordships’ House on the nature and extent of the suggested powers of authorised staff. First, will the staff members have the power to determine the outcome of any matter which is contested by the parties? Secondly, if so, what rights of reconsideration would there be and to whom, and will this be consistent across all jurisdictions? Thirdly, will there be a right of reconsideration, not just a review or appeal? Fourthly, will staff be legally trained and, if so, to what level of qualification? Fifthly, in order to achieve the savings required, what is the number of judicial posts that the Government would expect to lose; and what number of additional authorised staff will the Government need to recruit? Sixthly, what are the limits to the functions that case officers should perform, and should not these be in the Bill to allow them to be subject to proper scrutiny?

Other provisions about the flexible deployment of judges are clearly of far less concern in this Bill but, none the less, the further and increased deployment of temporary judges to any court or tribunal on which a deputy judge of the High Court is able to sit is still worth thinking about. Given the planned savings on judicial salaries, we have to ask whether these provisions are a short cut to make up for a shortfall in the recruitment of permanent judges. Any move towards increasing reliance in the system on temporary judges— who will most likely seek a permanent appointment in the longer term—would be of concern because of independence, which is less likely when someone is a temporary judge. The Government must provide greater evidence of the need for such reliance on temporary judges and explain the proportionality of such measures.

A further omission from the Bill—a point well made by Women’s Aid—is the provisions prohibiting the cross- examination of victims of domestic violence which we all looked forward to in the abortive Bill of last year. We should be concerned that those provisions are not in this Bill and ask for further assurances on them.

This is a wafer-thin Bill which, on its face, is apparently uncontroversial. However, as the Minister said, it is the beginning of the fulfilment of a further ambitious programme. The Government appear to be testing the waters for more controversial court reforms and it is vital that we understand the limited provisions in the Bill in the context of that broader agenda of reforms and devastating cuts. Nor should we be completely persuaded that the Bill in itself does not have the potential, as currently drafted and unamended, to profoundly impact upon our justice system as we have all understood and loved it. Without further careful scrutiny and additional safeguards, this governmental drip-feed approach has the potential to erode some of our most fundamental institutions.

16:15

[Lord Beith (LD)]

My Lords, when the Bill was published, I described it as,

“a little mouse of a Bill”.—[Official Report, 6/6/18; col. 1306.]

I did so because it has been shorn of most of the provisions the Government had intended to include in legislation and is drafted in such a way as to try to discourage the addition of any of those provisions by way of amendments. That has to be set against the context of the Government’s very ambitious claims about what they were going to do to assist the justice system. In 2017, the government website stated that the then Prisons and Courts Bill would,

“transform the lives of offenders and put victims at the heart of the justice system, helping to create a safer and better society”.

But even if we look just at the briefing for the Queen’s Speech for this Parliament about the Government’s legislative intentions, it was a Bill that would,

“end the cross-examination of domestic violence victims”,

by those accused of perpetrating the violence. It was a Bill which would allow for fixed penalties for minor guilty pleas; it would allow fixed terms for some judicial leadership positions on the basis that some might be attracted to those posts if they could serve a shorter term in them; and it was in the context of the Government talking about wide reforms of procedure and practice, many of which required legislation, including avoiding the waste of time and money in unnecessary and entirely formal hearings.

When the Lord Chief Justice—the noble and learned Lord, Lord Burnett of Maldon—appeared before the Constitution Committee of your Lordships’ House on 25 April 2018, he said:

“At the heart of what is in contemplation is a change in procedures and practices, some of which will require enabling legislation, followed by rules and practice directions. Of course, the latter will be under judicial control. The question whether all but the most basic procedural hearings will be by telephone or videolink will, in the end, be for the judge to decide, having received representations if necessary.


We hope the legislation that fell at the last election will be back before Parliament fairly soon. Without it, some of the courts and tribunals, or at least some of what we do, will remain trapped in the mid-20th century. At a more prosaic level, modernisation will simply align the courts and tribunals with ways of operating which the outside world, and even Government, have long ago adopted”.


That phraseology was echoed in the opening remarks of the noble and learned Lord, Lord Keen, but does not seem to be greatly furthered by this Bill. What we have here, apart from a few changes of title for one or two judges and justices’ clerks, are some necessary and helpful provisions about the deployment of both judges and staff. Obviously they will have to be looked at in detail. Similarly, some of the issues raised by the noble Baroness will need to be looked at carefully. However, I think that there is generally a fair wind behind the belief that judges’ time and that of staff in the court system can be better used. It is these useful provisions which justify spending a little time on the Bill.

However, there are many other major issues around our courts. Not all of them can be dealt with through legislation, but many require legislative backing. If you talk to members of the judiciary, they will pretty soon mention the condition of the court estate, the working conditions of court staff and the impact all that has on recruitment. The recruitment problem in the senior judiciary is something that the Government will have to consider, and along with that go the issues around the retirement age. More widely, the growing pay gap between criminal practice and commercial practice makes it almost impossible to recruit young people to the criminal Bar for the future. The Times recently reported that 15 City law firms, all American-owned, offer newly qualified solicitors more than £100,000 a year. Against that background, it will be extraordinarily difficult to recruit the young people needed for the future of our courts both in advocacy and on the Bench. The development of problem-solving courts may need some more legislative encouragement.

I turn to a fundamental point which the Prisons and Courts Bill could have been used to improve: the fact that the courts can sentence only according to what is available. Prison is deemed always to be available, but non-custodial sentences are dependent on local services—whether they are in place at all, what their quality is, and what combination of services is required for a really serious non-custodial sentence. All those issues are uncertain. Moreover, commissioning is hopelessly divided. Prisons are commissioned nationally while these other services are commissioned largely on a local basis, so there is a mismatch that gives the courts fewer options for dealing with the offenders before them.

Some of these issues can be dealt with without legislation but some cannot. I hear Ministers such as the noble and learned Lord talk about bringing forward more legislation when parliamentary time allows. I look forward to the period that we are entering in Parliament, with 1,000 statutory instruments and four major Bills to do with exiting the European Union—I wonder how that phrase can be uttered seriously—supposedly coming our way. I believe that a further draft Bill is sitting somewhere in the Ministry of Justice, ready to be brought forward, but I do not see when the parliamentary time will come. It makes me wonder what has happened to the significance of the Ministry of Justice in the pecking order of the Government’s legislative programme. We have a two-year parliamentary Session, half of which we have used up. In that Session, the Ministry of Justice could not have a relatively uncontroversial Bill, which could have done considerable good; it had to be content with a totally shorn and reduced Bill and the vague hope of further measures when parliamentary time allows.

I will make one last point on the problem of parliamentary time. We know that it is a problem, although it does not seem so when you look at the agenda for these current weeks, dealing with the EU Bill; the pressures have not been so great but they will be pretty great in the year ahead. One thing that does not take up much parliamentary time is legislation by consolidation Bills. Law Commission Bills do not take up as much time as legislation that effects change in the law. The courts could be greatly assisted if the Government made more of the now rather neglected procedures of consolidation Bills; they would be greatly assisted if the current work being done on the consolidation of sentencing were achieved and brought forward by the Government in the more limited procedures that can be used when the law is simply being consolidated, not changed. The Government should look at that further and discuss giving it higher priority with the Law Commission. That can be done, at least, to assist the courts, even when parliamentary time is tightly rationed.

16:22

[Lord Mackay of Clashfern (Con)]

My Lords, I will immediately take up the point made by the noble Lord, Lord Beith, about consolidation. It is a rather important function of Parliament, but it is not a particularly attractive one. I served on the Consolidation Committee for some time. I remember that it is a committee of both Houses. We had the greatest difficulty in securing a quorum for the committee to proceed—and not because of the absence of Members of the House of Lords.

When I first looked at the Bill, what astonished me was that court staff were going to be authorised to advise judges on the law. I thought that that was rather strange. I thought that judges were supposed to know the law before they got to that position. Of course, when you look at it more carefully, the judges are judges of the family court and justices of the peace. There will be professional judges in the family court from time to time, as well as judges who are there effectively as magistrates. As I understand it—and certainly for all the time that I have known anything about it—justices’ clerks have always been responsible for giving legal advice to magistrates in magistrates’ courts. That was dispensed with only when the court had a stipendiary magistrate because he, being stipendiary, was thought to know the law and therefore not to require the advice of the justices’ clerk.

It is a sad day for me to see the justices’ clerk’s title being set aside in a schedule to a Bill in Parliament. The office of justices’ clerk is very old and very distinctive, but it will be replaced. Let me find the passage. Paragraph 7(a) of the Schedule says that,

“for ‘justices’ clerk’ substitute ‘designated officer for the court’”.

Apart from anything else, it seems a little longer, so it will take longer to type—but it is anything but a distinguished-looking title.

Seeing my noble friend Lord Baker of Dorking not far away reminds me of a fact about justices’ clerks that I learned long ago. It was the habit of the Lord Chancellor to attend the annual meeting of the justices’ clerks of England and Wales. To one of these I went and I was told by the president of the Justices’ Clerks’ Society, who had recently been at an international conference of their brethren, that he had been told by the people there that they were astonished that a court official as important as a justices’ clerk should be responsible to a Minister who was also responsible for prisons. Of course, in those days the justices’ clerks were the responsibility of the Home Office, and the Home Secretary certainly had the undoubted privilege of being the Minister for Prisons.

That encouraged me to think that it was time for a change, so we had an arrangement under which the justices’ clerks’ policy department moved from the Home Office to the Lord Chancellor’s Department. I regret to say that that very important judicial development has now been reversed, in that the justices’ clerks, with all the other court staff, are in the political area of the Ministry of Justice, which has, as one of its most important functions, looking after prisons. So the whole improvement has been reversed, which is what you may call progress. So far as I am concerned, I think it rather unfortunate that there needs to be change of this title—but perhaps more enlightened people can advise me whether there is any option.

Another provision in the Bill changes the names of some officers. One that I would like to suggest, which my noble and learned friend knows all about, is the district judge (magistrates’ court). That title was suggested instead of “stipendiary magistrate” because it was thought that reference to remuneration was not quite the right thing for somebody of that order. Therefore, this is what has happened. So far as I am concerned, after a good deal of time during which this has been running, it would be quite a good idea to forget the bracketed “magistrates’ court”. In the Bill we are talking about judges getting legal advice who are in fact lay people, whereas the district judge sitting in a magistrates’ court is quite a distinct officer, so the necessity for the rather long title has now been removed.

One other point I will mention is not in the Bill, but the Bill changes the names of judicial officers and some of the masters now have a different title. I was in Edinburgh last Thursday when the President of the Supreme Court gave a lecture. One of the important functions of the Supreme Court is that it is the Supreme Court for the whole of the United Kingdom. Apparently when it was created—I learned this on Thursday—the staff of the Lord Chancellor’s Department wrote to the Scottish authorities to say that the Supreme Courts of Scotland were now required to change their name to something else. Not entirely to my surprise, they got a letter back to say that they were proposing to do no such thing and there are Supreme Courts in Scotland still.

However, the great jurisdiction of England and Wales has no Supreme Court; it is the Senior Courts. I do not know whether there is a junior court—I do not think expressly so; no doubt the magistrates’ courts and possibly the family court are part of that section. Surely it is time to recognise that the Supreme Court of the United Kingdom is not a court of England and Wales. Therefore, there is no reason why we should not have the old names—the High Court and the Court of Appeal, as they were for a long time before the Supreme Court. I think that this suggestion probably comes within the Long Title of the Bill, but I would be glad to know whether it can be contemplated before I put down an amendment for that purpose.

16:30

[Lord Thomas of Cwmgiedd (CB)]

Perhaps I may turn to the last point made by the noble and learned Lord about the titles of the courts of England and Wales. If it is within the scope of the Bill, there may be some advantage in that. Beyond that, I do not wish to say anything about titles, as it has generally been my experience that once you start the debate on judicial titles it can take a whole afternoon to resolve them, and I know that your Lordships have a huge number of other things that may or may not happen later this evening.

I want to say a little bit about the Bill. When I was Lord Chief Justice, I firmly supported the original comprehensive Bill that covered everything. Some of the matters which the noble Baroness, Lady Chakrabarti, has referred to on a wider scale—issues of legal aid and the like—I am currently looking at as they affect Wales as chairman of the commission appointed by the Government in Wales to examine the justice system there, but I do not want today to go outside the scope of this Bill and its title.

I warmly welcome the Bill, as I warmly welcomed the many other clauses in the other Bill that was lost in 2017. It is essential to modernise the court system. It is very important that, wherever possible, savings can be made to make sure that every bit of the system is proportionate and affordable. The Bill reckons to save some £6 million. Bearing in mind the huge analysis to which all these figures have been subjected by accountants, consultants and Her Majesty’s Treasury, I suspect that this is a realistic figure. That is not an insubstantial sum in the light of the current expenditure on justice. Therefore, although a lot could be said about other aspects of the justice system and about adding more things that need to be done, I hope that your Lordships’ House will be able to pass this Bill as rapidly as possible.

Having abjured saying anything about titles, perhaps I may deal with just two provisions of the Bill. The first concerns flexible deployment. This is a very important step to be taken. During the past 15 to 20 years, the procedures of the courts and tribunals have come much closer together. It seems inevitable that one needs to deploy the judiciary flexibly. For example, I would hope that, where you have overlapping jurisdictions such as occurs in relation to property and housing, one could use this Bill to go some way along the lines of a single court that deals with property. Those provisions are unarguably needed.

I can see that great concern might be expressed about the authorisation provisions, but it is important to stress the degree of control inherent in the Bill by the use of the rule committee. I was a member of and chaired, de jure and sometimes de facto, the Criminal Procedure Rule Committee, which I can assure you is a highly representative body with many representatives of the legal profession. Certainly, the committee will always try to reach a view by consensus—when I was a member of it for more than six years there never was a division; we always managed to agree.

It was suggested in the course of today’s speeches that we may want to put restrictions on delegations. For example, would we impose a restriction such as, “If the matter is opposed, it cannot be dealt with through delegation”? A simple example shows how careful one has to be. If, for example, someone wants an extension of 14 days and someone else says, “No, you can only have seven”, that is an opposed proceeding. Do we really want to put restrictions into this Bill? Experience has shown that detailed restrictions on procedure are a very real fetter on the administration of justice. For example, some of the impediments to improving the way in which witnesses can give evidence over a videolink have been caused by the detailed procedural provisions of some of the legislation of the late 1990s and early 2000s. When the Bill comes to Committee, I sincerely hope that serious consideration will be given to fettering the discretion in requiring matters to come to this House, or to impeding the ability of the Criminal Procedure Rules Committee to modernise, particularly as digitisation, artificial intelligence and smart codes for procedural regimes will be characteristics of the justice system within the next few years.

I therefore hope that the Bill can be subject to realistic scrutiny. This is a small part of what is essential. It is important to remind the House that there is no plan B for the modernisation of the system. If modernisation does not go through, the only prospect for our court system is significant decline. I therefore hope that the Bill will be given detailed scrutiny in Committee and that people will try to resist the temptation to hang too many other things within the scope of the Bill on it. I am anxious for the Government to realise they can put this through so they can get the other ones through and we can have a modernised justice system as soon as conceivably possible, because that is what we have to do to restore justice to the people at an affordable cost.

16:37

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I am most grateful to my noble and learned friend on the Front Bench for his introduction of the Bill, which I support, and in particular for his explanatory letter of 23 May, which laid out the background to it. As he knows only too well, I am not a lawyer, and speaking immediately behind a past Lord Chancellor and a past Lord Chief Justice on a technical Bill means that one needs to proceed with a certain degree of care.

More years ago than I care to remember, I attended a business school in the United States. The university used to arrange for distinguished visitors to come to lecture us. One such lecturer was a man called Peter Bauer who delivered a spellbinding piece of oratory. Peter Bauer’s name may not be familiar to all noble Lords. He was Jewish and was born in Hungary in 1915. He came to this country in the 1930s and taught for the rest of his life at Cambridge and the London School of Economics, and later became a Member of your Lordships’ House as Baron Bauer, of Market Ward in the City of Cambridge. His primary achievement was to revolutionise the way that foreign aid was distributed. He demonstrated how government-to-government aid, if it was not largely absorbed in corruption, often went on prestige projects such as national airlines or building dams, which did little for the average person in the country. He argued that it was more effective to give aid at a lower level, and the modern NGO structure is essentially a product of his thinking. In that spellbinding lecture, he pointed out that for such developments to take place successfully a degree of stability was needed, stability provided particularly by the rule of law and specifically by a respect for property rights. That is the relevance to our discussion today. His vision further required not just an effective legal system but, equally importantly, one that was understandable and accessible for the man in the street. He said that, without this, the critical ingredient of public trust and confidence would be missing. As he put it that afternoon all those years ago, “The law is too important to be left to lawyers alone”.

In my time in public life, one of my interests has therefore been to try to ensure that the law is kept up to date and is seen to be relevant by our fellow citizens. That lies behind my interest in the Bill today. As I say, it seems unobjectionable; nevertheless, I would like to raise a few points with my noble and learned friend. First, in his letter of 23 May, he wrote that one of the purposes of the Bill was to,

“make it easier for people to resolve disputes and secure justice”.

Amen to that, we all say, but—to touch on the point made by the noble Baroness, Lady Chakrabarti, in her opening remarks—to achieve that objective we need judges. To me as a lay man reading the newspapers, there appears to be a critical shortage of applicants for judicial posts. The reasons as I read them are pretty wide: they range from the financial, particularly the provision of pensions, to the physical state of our courts and indeed to the growing pressure being exerted on judges by social media. It will take time to resolve these challenges and some may not be resolvable at all. What could be done in the short term? One way would be to raise the retirement age. The compulsory retirement age of 70 makes appointments post 65 unlikely to be attractive either to the applicant or to the judicial system from the point of view of use of resources. With people living longer and healthier lives, many argue that ageism is a prejudice that we have yet to tackle successfully and properly. Why not kill two birds with one stone and increase the compulsory retirement age for judges to 75?

My second point concerns the point raised by the noble Lord, Lord Beith, about Law Commission Bills. In my view the Law Commission does incredibly valuable work updating the law in an entirely apolitical way, but too much of that work is shunted into a siding and left to rust. Surely we should be able to find sufficient parliamentary time for a couple of Law Commission Bills, given their uncontroversial nature, as he pointed out. Two in particular that stand shovel-ready, to use the modern parlance, are of special importance. One is on election law. What could be of greater importance than maintaining public trust and confidence in our electoral system? It is worth underlining that point with a short quote from the briefing by the Law Commission at the time of the launch of its recommendations:

“It is widely acknowledged by those involved in administering the electoral process that this body of laws has grown so large, fragmented, complex and outdated that it is no longer fit for purpose”.


Those are serious allegations that the Government should address by bringing forward this Bill. The other Bill concerns technical issues in charity law, in which I declare an interest because some of the recommendations arose from a report that I wrote for the Government as long ago as 2012 but which nevertheless the sector badly needs and would welcome. There have been endless—and I mean endless—promises about the intention to bring forward one or more Law Commission Bills. Perhaps my noble and learned friend can give me another endless promise when he winds up today.

The penultimate point is developments in the working practices of the tribunal system and some of the challenges that it now faces. For example, the Charity Tribunal, which arose from the Charities Act 2006, was designed to provide a quick, effective, user-friendly and economically attractive way for charities, many of which are quite small, as well as their regulator, the Charity Commission, to resolve differences.

I am not sure that our hopes during the passage of the Bill—cross-party hopes, I hasten to add—have been entirely fulfilled. Too many cases seem to have devolved to the familiar and expensive heavy artillery exchanges which take place in the courts. I do not suggest that individuals should be inhibited from employing legal representation, but the original vision was that the tribunal would provide surroundings—an atmosphere, if you like—in which interested parties could speak for themselves. This appears to be a diminishing hope. I fear that such developments are paralleled in other parts of the tribunal system. If you accept Peter Bauer’s contention that the law should be accessible and comprehensible, such developments are surely unwelcome.

Finally, I have a specific, technical point. The Charity Commission is the statutory regulator for the charity sector. It has a huge and important task, given that there are 160,000 regulated charities and probably as many again unregulated ones. Yet if the commission wishes to seek clarity on a point of law by taking a case to the Charity Tribunal—it might wish to do so to get general clarity for a number of charities which might otherwise have to pursue their own case—it has no power to do so, but can do so only with the permission of and through the Attorney-General. For the regulator of a sector, that cannot be a sensible state of affairs.

Worse than that, the Attorney-General can be exceptionally slow in responding to such requests. For example, in September 2016, the commission requested the Attorney-General to refer the issue of the Royal Albert Hall Corporation—a long-running charity saga—to the Charity Tribunal. On 4 January 2018—four months later—my noble and learned friend replied to a Parliamentary Question of mine, stating:

“The Attorney-General requested further information … He has now received that further information and expects to make a decision early in the year”.


Frankly, that is not good enough. This cumbersome and protracted procedure places the regulator of this important sector of our national life in an impossible position. We should surely move to a position where the Charity Commission is free to refer cases to the tribunal off its own back but must inform the Attorney-General that it is doing so.

The Bill has my support but, as other noble Lords have pointed out, we need to ensure that it represents more than just moving the furniture around if we are to keep pace with Peter Bauer’s belief in the importance of transparency and relevance in our judicial system.

16:47

[Lord Flight (Con)]

My Lords, the Bill seeks to make reforms to the rules regarding the deployment of judges and to provide for the undertaking of some judicial functions by HM Courts and Tribunals Service professional staff. It contains three substantive clauses and one schedule. Clause 1 changes existing legislation to remove restrictions on how judges can be deployed, Clause 2 makes minor changes to the law concerning some judicial titles, and Clause 3 and the Schedule provide for court and tribunal staff to carry out some judicial functions and provide legal advice to judges. They would establish a unified system for the judicial oversight of staff carrying out those tasks across the various jurisdictions.

The changes are part of an ongoing programme of reform of the Courts and Tribunals Service and comprise some of the provisions previously in the Prisons and Courts Bill, which was dropped due to the calling of the 2017 election. But the Bill does not make much progress towards the logical solution of what is needed: establishing a dedicated housing court. The Bill has been criticised in Parliament and the press for including only some of the proposed reforms, and especially for failing to advance the use of online technology. In a recent report on the private rental sector, the Housing, Communities and Local Government Select Committee agreed that,

“A specialist housing court would provide a more accessible route to redress for tenants”,


and urged the Government to issue “more detailed proposals” as soon as possible.

I had intended to table an amendment to give the Lord Chancellor the necessary powers to bring a single unified housing court into being, but apparently this has been ruled outside the scope of what is a two-topic Bill, although I would have thought it was the logical conclusion of those two topics. Anyway, it was intended to deal with business that relates to residential tenancies, which are currently split among the county courts, the First-tier Tribunal Property Chamber, the First-tier Tribunal General Regulatory Chamber, the Upper Tribunal and the magistrates’ courts. The intent was to make such a court modern in outlook, using online processes as far as possible and sitting flexibly according to needs.

In a speech in May, Sir Geoffrey Vos, Chancellor of the High Court, outlined the problem of there being multiple bodies that can be approached when things go wrong between landlord and tenant:

“Property legislation in recent years has bifurcated the responsibility for determining specific property disputes in numerous areas between the courts and the tribunals, such that in a significant number of cases, the parties have no choice but to engage in both types of proceeding. This increases the costs, causes additional delay, and in some cases, stress and frustration associated with an illogical judicial process. … But the great prize nonetheless remains an absence of duplication – in the modern jargon – a one-stop shop. For my part, I think a rationalisation of how we resolve disputes is overdue”.


The Residential Landlords Association has found that there are over 140 Acts of Parliament containing more than 400 regulations affecting the private rental sector. A landlord or tenant can go to one of two tribunals, the county courts, the High Court or the magistrates’ court to uphold their rights, depending on what their specific complaint is. In some cases, there is a need to go to more than one of these bodies. The Government propose, moreover, to increase the complexity with a further body, a new PRS housing ombudsman. It takes an average of 22 weeks to regain possession of property where a tenant is not paying their rent or is committing anti-social behaviour. I understand that average figure is from housing association and individual situations.

When Sajid Javid was CLG Secretary, in his speech to the Conservative Party conference last October, he pledged to look at establishing a new housing court as called for by the Residential Landlords Association,

“so that we can get faster, more effective justice”.

Since then, there has been little discernible action.

The Residential Landlords Association believes that the most efficient way of developing plans for the new court would be to build on the work of the existing First-tier Tribunal Property Chamber. The advantages of this would include: capitalising on the large number of cases decided on paper by the tribunal, making the process easier to access; using the mediation and enhanced alternative dispute resolution procedures the tribunal operates; enabling the use of the tribunal’s in-house surveyors and inspectors and thereby saving costs; and being able to integrate with and take full advantage of the new online court, so the majority of records could be dealt with online. The more informal operation of the tribunal should make it less daunting for tenants and landlords. The tribunal currently holds hearings in local public buildings, making it physically easier to access. The tribunal tends not to award legal costs where there would be advantages if the current cost-limited model were retained.

I had hoped the amendment, which I am not able to table, would be a useful probing amendment to explore how and in what timeframe the Government plan to progress with establishing a dedicated housing court, which is much needed.

16:54

[The Earl of Listowel (CB)]

My Lords, I begin by following the noble Lord, Lord Flight, in his encouragement to the Government to move forward in these specialist courts, and declare my interest as a landlord. We have in England, according to the statistics from last March, over 120,000 children living in bed-and-breakfast and temporary accommodation. The private rented sector can make an important contribution to dealing with that problem, if we can make it as attractive as possible—and these courts would make the private rented sector more attractive.

I thank the Minister for speaking to the Cross-Bench group and answering questions on the Bill and introducing it today. I particularly welcome it after listening to what my noble and learned friend Lord Thomas said about the potential savings from the Bill. Money is very short and we need to spend it where it can make most difference. I welcome particularly that aspect of the Bill, although there needs to be care where the savings are made. I welcome what the noble Baroness, Lady Chakrabarti, has said on ensuring that there is a high level of qualification requirement for people overseeing the new arrangements.

I declare my interest as a trustee of the Michael Sieff Foundation, a child welfare charity that has been working for the last four years to seek to support the implementation of my noble friend Lord Carlile’s inquiry into youth justice. I am also vice-chair of the All-Party Parliamentary Group for Looked After Children and Care Leavers and treasurer of the All-Party Parliamentary Group for Children. I have been in those roles for 15 years, so I am particularly interested in the matters relating to family courts and youth courts.

I welcome the first clause in this Bill as it at least opens the possibility of ensuring that we get exactly the right judges into the family courts. The judges in the family courts have a very complex and difficult task; they need to be hugely empathetic and, to use that term, emotionally intelligent. It is a very specific requirement, so if this Bill allows an opportunity to encourage and find more appropriate judges in those courts, it would be most welcome. I look forward to probing that in Committee and outwith the Chamber.

Sir James Munby, the president of the Family Division, was speaking recently, and gave examples of families going to the private courts arguing about the length of their child’s hair and asking a judge to sort that out, or asking what time exactly on an afternoon they can be dealt with. They can also come in with concerns about domestic violence, and the judge has to decide whether it is in the child’s best interests to have a relationship with both parents or whether the risk of domestic violence is significant and it cannot be permitted. It is a hugely challenging role.

The noble Lord, Lord Beith, raised the issue of problem-solving courts. My noble friend Lord Carlile highlighted the need to develop those in his report about four years ago. We have moved forward on that very slowly; I believe that progress is imminent, and I would be grateful if the Minister could confirm that and assure us that the Government have very strong support for these courts. I believe that the Ministry of Justice innovation arm is taking that forward, but assurance from the Minister would be very welcome.

I was very sad to hear that the Family Drug and Alcohol Court implementation unit is to close in September. I learned this just this week from Sir James Munby—and I am sorry not to have given the Minister notice that I wished to raise it as a concern today. I am very concerned; I visited it several times and have seen parents being given certificates enabling them to retain their child, who otherwise might be taken into care. This wonderful court, introduced by the district judge Nicholas Crichton, allows judicial continuity over 12 months with a family. It allows the use of a multi-disciplinary team, including social workers and clinical psychologists, to work with these families. It is tremendously effective in preventing children being taken into local authority care. To go back to concerns raised by my noble and learned friend Lord Thomas, it may not save the courts or the MoJ huge amounts of money, but it saves local authorities huge amounts of money and saves society a great deal of money in the longer term.

I will read briefly from an article by Sir James Munby on the closure of FDAC, which is to be published shortly:

“In the same week as we saw the launch of the Care Crisis Review, undertaken by the Family Rights Group with the support of the Nuffield Foundation, came the news that the Family Drug and Alcohol Court (FDAC) National Unit has had to withdraw its application for funding to the Life Chances Fund because of lack of support from local authorities”,


on which it now depends. The Government have historically funded its work, which has been most welcome. They have recently stopped doing so, which is why it needs local authority funding. In addition, he says, came the news that,

“the National Unit would be closing in September because of the lack of continuing funding from central govermment. This is grim news, not least at a time when, as both I and my designated successor made clear at the launch, the care system is in crisis”.

That refers to the system of child protection for children in foster care. Sir James continues:

“FDAC is the most researched of the recent innovations in family justice. Rigorous, high quality academic evaluation … has proved, conclusively, that FDAC works … Similarly rigorous independent evaluation proves that FDAC saves the local authorities who participate significant sums of money: £2.30 for every £1 spent. FDAC is one of the most important developments in family justice in the last 40 years”.


So, in parenthesis, in a Bill that is looking at modernising the justice system, we should certainly be discussing this, if not in the Chamber, then outside it. To continue:

“The continued expansion of FDAC is critically dependent upon the work of the National Unit, whose invaluable work, as midwife and then as health visitor, is so important in the planning, implementation and nurturing of each new FDAC. FDAC improves the life chances of some of the most vulnerable and marginalised parents and children in our society: it increases the sum of human happiness and decreases the sum of human misery—and it saves the system money”.


I wish to detain the House for as little time as possible this afternoon. However, can the Minister say what assistance he might give me in seeking to ensure that no stone is left unturned in trying to avoid this closure? I would also appreciate advice from your Lordships on what might be done to prevent it. If any noble Lords are concerned about this, I would be grateful to hear what support they can give in raising this matter with the Government.

I look forward to taking part in Committee and to scrutinising this important legislation. I also look forward to the Minister’s response.

17:02

[Baroness Newlove (Con)]

My Lords, this has been a wonderful debate. As someone who used to work in the courts, I have learned quite a lot about the history of titles in the courts, and so on. The speech given by my wonderful noble and learned friend Lord Mackay was delightful—and of course I have had the pleasure of working alongside the noble and learned Lord, Lord Thomas, on victims’ issues.

As a former committal court assistant I was saddened to see that that role is now given and gone, as they say, because of money and wasting court time, but I was proud to sit alongside justices’ clerks, which we are discussing in the Bill alongside other titles that are going. That role in courts is important, and it was very important to me when I sat alongside them when we were dealing with the Libyan bombers, who were very active in Manchester many years ago. That shows how important roles within our court system are very important to the people who use them. So I find this to be a small Bill which deals with a lot of functions that have carried on for many years and done a commendable job as they do this.

That brings me to why I want to speak here today. I commend the Bill, and there is little in it I can disagree with. It takes a pragmatic approach on how best to use the resource and expertise within our courts and will, I hope, give both court staff and our judiciary more fulfilling working days. However, I cannot help but feel that it has missed an opportunity to protect some of the most vulnerable in our society. So, standing here, it pains me that we are going for a quick win rather than concentrating parliamentary time on legislation that will have the most impact on the lives of users of our judicial system.

Speaking on behalf of victims in my role as Victims’ Commissioner, and as a person who has gone through a 10-week court trial for my late husband’s murder, what victims tell me they want—and, I believe, should have—is access to a fair judicial system that treats victims with care and respect. As originally drafted, it appeared that the Prisons and Courts Bill went some way towards achieving this. Indeed, as was mentioned, it was a starting point in ensuring that victims’ voices were listened to.

The area that particularly concerns me—it was mentioned by the noble Baroness, Lady Chakrabarti—is the continuation of cross-examination of domestic abuse victims by perpetrators in our family courts. Over the last few months, I have been around the country speaking to many victims of this horrendous crime. Hearing their stories has left me shocked, as has the way that the courts have treated these vulnerable victims. Time is now of the essence. It is within our gift to transform these people’s experiences now, if only we can implement the legislation. How can it be right that a victim can give evidence behind a screen in our criminal courts and yet, sadly, when they appear in our family courts, despite a restraining order being in place, cross-examination can be carried out by the individual who has made the lives of that victim and their children pure hell?

I thank Women’s Aid for its briefing on some very important points. Its recent study carried out alongside Queen Mary University shows that nearly a quarter of domestic abuse victims are still being allowed to be cross-examined by the perpetrator in our family courts, and 61% are offered special measures. The original Bill put a precise prohibition on that practice.

My noble and learned friend the Minister says that the Government are still committed to a ban, but the parliamentary timetable is so frustratingly and agonisingly tight that I fear for many victims, especially where tactics such as gaslighting are used. Victims will continue to suffer a continuation of their abuse in our family courts because abusive partners are allowed to continue their controlling and coercive behaviour in plain sight, not only towards the victims but towards the children. I may add that victims feel, and say to me, that it appears when judges and Cafcass officers conclude with their directions.

How can we expect a victim in such a traumatic environment to give the best evidence and argue for the best scenario for their children—one that keeps them safe—when the person they are standing up against is the person they are most afraid of in the world? So I join Women’s Aid in calling for a bar on the ability of perpetrators to cross-examine their victim to be enacted by the quickest available legislative vehicle. I challenge my noble and learned friend by asking: is this Bill not the very vehicle he has been waiting for? I also call on the Government to introduce a victim’s advocate scheme in our courts, so that all victims of crime are truly supported through the judicial maze.

We do not have the luxury of waiting for this to be brought forward in the domestic abuse Bill. That Bill will not reach this place for some six to nine months at least. How many victims will be allowed to be questioned about their sex life by their abusive partners in that time, and how many will be manipulated into agreeing contact arrangements that put their children at high risk? I am not prepared to let this moment pass without making sure that those victims’ voices are heard.

Victims must be able to access a system that helps them move towards a safer future for their family—not one that adds to the abuse and the anxiety of the situation they found themselves in in the first place. There are people in refuges who had businesses but are now scraping around for funding, while the perpetrators are able to start a new relationship and a new family and are smiling all the way. If we are talking about a digital platform and a common place, surely common sense must be put in our legislation.

17:09

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

My Lords, when my noble friend Lord Beith asked a Question on 6 June about the proposed modernisation of the courts, he described the Bill—and he repeated this today—as,

“a little mouse of a Bill”.

The Minister then contradicted him in response, saying that,

“this is a mouse that roared”.—[Official Report, 6/6/18; cols. 1305-06.]

I think there is consensus around the House today that, as it stands, the Bill is more of legislative squeak than anything approaching a roar. The Bill we all wanted to have would have covered the whole gamut of court modernisation and I fully endorse what the noble and learned Lord, Lord Thomas, said: the central point is that the alternative to comprehensive modernisation is significant decline.

I found Joshua Rozenberg’s description of the Bill in the Law Society Gazette as,

“a little too late and quite a lot too little”,

pretty accurate. In opening, the noble and learned Lord described the Bill as a positive first step in reforming the court system. Mr Rozenberg, however, criticised it as drip-feeding—a term also used by the noble Baroness, Lady Chakrabarti. The problem with drip-feeding is that you cannot see the entire flow, and the Bill gives little indication of the Government’s direction of travel.

There has been little substantive criticism today of the specific provisions that have found their way into the Bill. I shall, however, make a couple of points on those provisions. First, Clause 1 allows for the more flexible deployment of judges, which is generally sensible and to be welcomed, as the noble and learned Lord, Lord Thomas, explained. I would, however, caution against rowing back from our developing reliance on judges’ specialist expertise in centres across England and Wales, which has been uniformly beneficial. This was a theme pursued by the noble Lord, Lord Flight. It has been particularly true of specialist family judges, as forcefully argued by the noble Earl, Lord Listowel. It has been true also of mercantile judges, since last year called Circuit Commercial Court judges, which has ensured a spread of circuit judges with specialist commercial expertise in court centres across the country. It has been true also of judges of the Technology and Construction Court—the TCC—who handle difficult and lengthy cases in construction, engineering and IT disputes economically and efficiently in regional centres as well as in London. I also welcome the recently announced development of one overarching umbrella for specialist business and property courts across the country.

While there has been considerable cross-ticketing of judges, as it is inelegantly known, whereby judges from one specialism are deployed in a similar field, it is important that flexible deployment develops alongside and in sympathy with the continuing specialisation of judges where it is needed. I never again wish to argue a long and complicated matrimonial finance case, as I did some years ago, in front of a deputy High Court judge who was highly distinguished in his field as tax counsel but had entirely the wrong end of the stick—and, frankly, not a clue—about his task in a matrimonial context.

Secondly, I accept that, as proposed by Clause 3, suitably qualified staff should be able to make not only administrative decisions but some of the less significant case management judicial decisions. I agree that it is not a definitive criterion that such a decision should be unopposed. If that is to be the case, however, we need robust safeguards to ensure that decisions that should be taken by judges are indeed taken by judges and not delegated to too low a level. We must also guarantee that staff making judicial decisions are adequately qualified.

I am also concerned about the prospect of under- qualified court officers giving advice to judges in the family court—they are often lay magistrates, as the noble and learned Lord, Lord Mackay, pointed out—or the magistrates’ courts. I note that the Schedule will provide that qualifications will be determined by regulations to be made by the Lord Chancellor with the agreement of the Lord Chief Justice. It is vital that such regulations establish clearly that those advising magistrates and judges are completely qualified to do so.

We have heard in this debate much more about what the Bill does not do but should do than about what it in fact does. So, turning to what is not in the Bill, I note that the Long Title is relatively wide:

“To make provision about the judiciary and the functions of the staff of courts and tribunals”.


It is certainly wide enough, I suggest, to accommodate the campaign of the noble and learned Lord, Lord Mackay, to give England and Wales back its supreme court, but not—sadly, I think—wide enough to comprise the campaign by Women’s Aid to prevent victims of domestic abuse being cross-examined by the perpetrators of that abuse. Having listened to the speech of the noble Baroness, Lady Newlove, many of us would no doubt hope that the Government and the noble and learned Lord might see their way to extending the Long Title to encompass provision in that regard. Noble Lords may wish to explore the process of modernisation with inventive amendments within the Long Title, as it exists, in that context.

I suggest that there are three significant areas for improvement. The first area is judicial diversity. Since the report of the noble Baroness, Lady Neuberger, in 2010, we have made some considerable progress, particularly with the work done by the judicial diversity task force. However, we have a very long way to go. I would like to see this Bill require more action on judicial diversity, more women judges, more judges with BAME heritage and backgrounds and a more socially diverse bench generally, to make our court system look and in fact be more attuned to and more in touch with our society. We could start with taking on the recommendations of the organisation Justice in its excellent paper, Increasing Judicial Diversity. I am not sure that accepting the suggestion of the noble Lord, Lord Hodgson, that we increase the retirement age of judges, would help. Flexible, family-friendly hours and more job sharing for judges, on the other hand, almost certainly would.

The second area is accessibility. I suggested on 6 June that we need court staff, in person and over the phone, court documents and online resources all to be committed to helping court users, particularly litigants in person, to navigate their way through the litigation process. This would mean court officers changing their traditional position that they are not there to give advice. The noble and learned Lord, Lord Keen, gave me a very encouraging reply. He said that,

“there is no reason why reallocated court staff will not be in a position to provide advice”.

But he then added the words,

“as they have in the past”.—[Official Report, 6/6/17; col. 1307.]

I think that the added words were overoptimistic. Those of us who regularly attend court tend not to appreciate quite how daunting an experience going to court is for members of the public. Traditionally, court staff have taken the view that their job is to be detached, impartial and objective, giving the advice that is needed on procedure but leaving it to litigants to get advice from their solicitors and other advisers. However, more litigants in person and less legal aid make it essential that court staff are trained to give real assistance to all concerned, including advice not only on procedures but on completing documents and the evidence that people will need to prove a case. The noble Baroness, Lady Newlove, with her call for help for victims, adds to the point. That does not mean that court staff have to act as lawyers for individual parties, and they should not. But they should act as firm friends in court for those without lawyers—litigants in the civil courts and defendants in the criminal courts. That should be true whether the contact is face-to-face, over the phone, by email or through the court’s online resources.

Thirdly and finally, we must make progress with the development of a fully online system, to enable cases that can be dealt with online to be processed efficiently and quickly through digital technology, with users feeling informed and not at sea. I accept that there has been considerable progress in pilot projects in this area, as the noble and learned Lord mentioned in opening. Online divorce; applications for probate, on which I should add that we never want to see the reintroduction of the ridiculous proposal for hyperinflated probate fees; online pleas in minor criminal cases; and huge numbers of debt recovery cases—these are all areas where the court could be made user-friendly and efficient with digital technology.

I look forward to working with the noble and learned Lord and others, in the likely absence of parliamentary time for other justice Bills, to inject a little more ambition into this Bill. If we can give the mouse if not a full-throated roar then at least a bit of an increase in volume, that will be all to the good.

17:20

[Lord Beecham (Lab)]

My Lords, I refer to my interests as an unpaid consultant of my former firm of solicitors and as the father of a practising barrister who specialises in employment and housing law and who would, I think, be very interested in the suggestion by the noble Lord, Lord Flight, of a housing court—a suggestion with which, with my other hat on, as a local councillor with concerns about these matters, I would also concur.

The National Audit Office report Early Progress in Transforming Courts and Tribunals, published six weeks ago, begins with a set of key facts, identifying the Government’s expectation of savings of £265 million a year from 2023-24 onwards, with a staff reduction of 5,000—one third of the current staffing—and 2.4 million fewer cases held in physical courtrooms. The NAO describes the change as,

“a very significant challenge”,

with changes,

“far broader than those in comparable programmes in other countries”.

The timetable has been extended from four years to six, interestingly without changing the budget, and this is still shorter than the smaller programmes of this kind in other countries.

Moreover, the Infrastructure and Projects Authority concluded in its latest assurance review that successful delivery of the programme is in doubt. It avers that less progress overall has been made, such that a spending gap of between £61 million and £177 million has appeared, depending on whether the Treasury will allow earlier underspending to be carried forward, while costs have increased and planned benefits reduced. The NAO points out that Her Majesty’s Courts and Tribunals Service still needs to develop how the services will work and that,

“stakeholders do not fully understand how the reformed services will work in detail”.

It concludes that a lack of clarity has contributed to delays and programme failings.

The NAO adds:

“Failure to sustain commitment from all delivery organisations will significantly reduce the likelihood of success and the benefits achieved … Delivering change on this scale at pace means that HMCTS risks making decisions before it understands the system-wide consequences”.


To cap it all, it asserts:

“The benefits claimed so far by HMCTS exceed expectations but risk putting pressure on its ability to maintain services”.


It concludes that, while it has improved,

“its governance and programme management … there is a long way to go”,

and warns of major risks in a number of areas.

This damning critique may resonate with Members who recall the fanfare with which the coalition Government launched the disaster entitled universal credit—or discredit, as I and many others afflicted by the problems are apt to describe it. But the National Audit Office does more than list these problems. It states:

“The scale of the challenge is increasing and the programme is under significant pressure to meet what is still a demanding timetable”.


It makes four critical recommendations, to which I invite the Minister to respond. It says HMCTS should allow enough time to engage with affected parties within the justice system, to consult widely and respond to the results, to provide more detail of how the system will work and to carry the staff along with it. It says HMCTS should resist pressure to claim savings until planned changes are fully embedded. It says HMCTS should provide greater transparency on objectives and progress. Finally, it says HMCTS should work with the department and the Treasury to address the system-wide consequences of planned changes. In more general terms, the NAO suggests that there should be greater transparency on the Government’s objectives and progress, and clarity on how plans are adapted in response to risks.

We are, after all, dealing with a system through which 4 million cases pass yearly: 1.7 million criminal court matters, 1.9 million civil cases and 250,000 family court cases. Thanks to the massive cuts in legal aid and advice, which have led in some areas of law and in different parts of the country to the creation, in effect, of a desert of professional legal support, too many people have to struggle unaided with their legal problems or are driven to rely on claims management companies, the nefarious activities of which featured in our recent discussions on the Civil Liability Bill.

Inevitably, these changes in both the criminal and civil areas are impacting on the supply of qualified professionals, as well as the number of litigants acting in person, causing considerable delays in the court process. But we also have to consider other difficulties which are increasingly confronting people with legal problems. The court closure programme may be saving money for the Ministry of Justice, but it is increasingly impacting on court users in terms of cost and lengthy travelling times—an issue raised by the Law Society, which points to the impact on vulnerable court users in particular. More than 200 courts have been closed since 2011. Yet the MoJ has made the curious decision to close Cambridge magistrates’ court, which already has videolink technology. It seems a rather strange choice for closure.

No doubt the Government’s response will be to talk up the impact of increasing the use of digital technology in the conduct of legal processes—very much part of their reform programme—but I suspect I am not alone among Members of your Lordships’ House in struggling with this new and constantly developing world and being ever grateful for what used to be PICT and is now PDS, the Parliamentary Digital Service, rescuing me from time to time. I find myself in the position exemplified by Groucho Marx, who once declared:

“A child of five would understand this. Send someone to fetch a child of five”.


Even children of that age could probably match my performance—and, I suspect, others’—and therefore, almost certainly, that of many of those who will be having to rely on that approach as people involved in the justice system. I fear that, as we have learned from the introduction of universal credit and the dreadful record of the Home Office, the digital world is not one within which everybody is comfortably able to manage.

The Equality and Human Rights Commission draws attention to both pros and cons of the modernisation programme. It welcomes the opportunity to improve accessibility for some disabled people by providing alternatives to attending court in person; I would add some family cases, where one party, perhaps the wife or mother, cannot be face-to-face with an abusive partner—the sort of area that the noble Baroness was concerned about. But it has concerns that,

“people with certain protected characteristics are excluded by digital processes, and that video-link hearings and online courts negatively affect access to justice and fair trial rights. There are also implications for principles of open justice and for public confidence in the justice system”.

One wonders, too, how far these developments will take us. Will we see the development of a “Justice Alexa”, initially providing advice but ultimately deciding cases? The Law Society has expressed concerns that new technology has not been fully tested and evaluated, while court closures proceed in any event. It urges that before embarking on a significant court closure programme and much-increased reliance on new technology and online courts, there should be a full evaluation of these developments. Will the Government agree, and with what sort of timescale in mind? In any event, what is the Government’s estimate of the cost of the new technology on which £100 million has already been spent, or of the likely receipts from the sale of court buildings? As we have heard, 80% of those that have been sold only realised sums equivalent to average house prices—hardly a financial bonanza likely to contribute significantly to the programme.

We are at one with the Government in their intention to modernise the court system, with the important caveat that the objective must be to facilitate access to justice—including the areas raised by the noble Baroness, Lady Newlove, about victims of domestic violence—not merely to engender visible financial savings at the possible expense of those who really need the protection of the law.

17:30

[Lord Keen of Elie]

My Lords, it is perhaps too late to bring our court system into the 20th century but this is the opportunity to take it into the 21st century. This may be a small step, but a small step on a long journey, when properly directed, will take us closer to our goal, and that is the intention of this legislation. To that extent it has been welcomed around the House. Let me address some of the points raised by noble Lords in the course of this helpful discussion.

First, we have seen the development of digital access, by way of pilots and its wider use, in conjunction with the issue of redundancy within physical court buildings. That means that there has to be a balance between the development of that digital provision and the closure of courts, as anticipated by the noble Lord, Lord Beecham. That will continue. However, it has to be a balancing act—we appreciate that—and judgments will have to be made. We should not allow one aspect of digitisation to run ahead of the necessary demands for physical court buildings, and we have that in mind.

The noble Baroness, Lady Chakrabarti, spoke of the need for legislation so that we could review what was happening with the digitisation process. However, with respect, the purpose of primary legislation is to implement law, not to review that which we can already do. Of course, there are means and methods by which we can keep in mind and review the progress of the changes that we are taking forward.

The noble Baroness also referred to Clause 3 of the Bill and the delegation of official functions. There are two aspects to this: the delegation of judicial functions and the provision for legal advice. The two are distinct and have to be understood as being so. One should not confuse the two or push them together.

On the question of legal advice, justices’ clerks and assistant justices’ clerks are highly qualified individuals who, for a long time, have been in a position of tendering legal advice within the magistrates’ courts and the family courts. That, essentially, will continue; there will be no fundamental changes. It is hoped that these senior and well-qualified individuals will be able to deploy their talents beyond the magistrates’ courts if necessary. That is one aspect of flexibility that is being considered. However, when determining their qualification and function in the provision of legal advice, it is intended that these provisions will be specified by the Lord Chancellor in regulations in order that we can maintain the present system with one or two developments to it.

The staff who will be authorised to carry out certain judicial functions—the “box work” of district and circuit judges—will be determined by the independent jurisdictional rule committees, which are the appropriate bodies to take these decisions and ensure that the powers are properly scrutinised by judges, practitioners and other interested parties. It will be part of the role of the rule committees in determining the functions to consider whether staff should be required to have particular experience or qualifications. That is the level at which this should be done.

The noble Baroness, Lady Chakrabarti, also referred to the use of temporary judges. We consider that there are appropriate safeguards in place with regard to the deployment of temporary judges. We have to remember that there are some highly experienced members of the legal profession who would prefer to maintain their position as temporary judges rather than go forward to a permanent appointment because of the flexibility it provides for them. That is an extremely useful resource and not one that we would wish to imperil.

The noble Lord, Lord Beith, reminded us that there were provisions in the Prisons and Courts Bill that went well beyond the provisions in this Bill. I fully accept that, and in particular the issue—also raised by my noble friend Lady Newlove, who is the Victims’ Commissioner—of the cross-examination of victims of domestic violence. It does not fall within the purview of this Bill but we have it at the forefront of our minds and are determined to take it forward. It is an issue of parliamentary time.

The noble Lord also referred to the use of consolidation Bills. My noble and learned friend Lord Mackay of Clashfern alluded to the difficulties that sometimes arise in ensuring that the Joint Committee on Consolidation Bills is quorate. That is not because of the availability of Members of this House but possibly because of the non-availability of Members of the other House, given that it is a Joint Committee. We see the usefulness of consolidation as a way forward with regard to sentencing. I am aware of the work that the Law Commission has been and is still doing on this matter, but it will be necessary for some primary legislation to be brought forward in order, as it were, to establish a pathway for such consolidation provisions. We are conscious of that and again, we have it in mind. It is to be hoped that we will see some further developments in this area. Reference was also made to the utility of the Law Commission procedure for its own Bills, and again we are conscious of that when parliamentary time is limited.

My noble and learned friend Lord Mackay of Clashfern also alluded to the fact that while Scotland very sensibly managed to retain a Supreme Court, England and Wales rather lost their way in that regard. I am not privy to how it came about, but they agreed to cease to be a supreme court and became a senior court instead. It may be that there is room to revisit that issue at some point, but whether in the context of this Bill or otherwise is a different matter.

The noble and learned Lord, Lord Thomas of Cwmgiedd, welcomed the Bill and I thank him for that. He referred to the importance of flexibility in the deployment of judicial availability, and the point made by the noble Lord, Lord Marks of Henley-on-Thames, is one I agree with entirely. While clearly wanting to have flexibility in the deployment of our judicial asset, we do not want to lose the benefit of the specialist expertise that has been built up in areas such as family law, mercantile law, and the example he gave us of the Technology and Construction Court. We and the Lord Chief Justice will be conscious of that when taking forward the powers here with regard to cross-ticketing, as I believe it is sometimes called.

My noble friend Lord Hodgson of Astley Abbotts raised the question of the judicial retirement age. What I would say at this stage is that we are awaiting the report of the Senior Salaries Review Body, which I think is due in the late autumn, with regard to judicial salaries and pension conditions. I am aware that there have been issues with the judicial pension situation in particular. Once we have the report, it may be possible to look again at the judicial retirement age. My understanding is that at present, the average judicial retirement age is 67 or 68, so it is not a case of the judiciary actually going as far as the existing ceiling. There may be other explanations for that, including the desire of some in judicial office to contemplate an alternative career structure when they cannot proceed beyond 70 on the judicial Bench. It is clear that that requires further consideration.

My noble friend Lord Flight raised the issue of a dedicated housing court. I am aware of the discussions that have taken place on this. Sir Geoffrey Vos recently alluded to the fact that property disputes can take place anywhere between the county court, the First-tier Tribunal Property Chamber, and the High Court. We intend to consult later in the year, I hope, on the provision of a housing court so that this issue can be addressed.

The noble Earl, Lord Listowel, referred to the Family Drug and Alcohol Court. I do not have up-to-date details on what is happening with the funding for that but I undertake to write to him in due course. I will place a copy of the letter in the Library.

On the points made by the noble Lord, Lord Beecham, particularly that we should engage and consult widely before taking further steps, the danger is that that will engender further delay in the implementation of a courts modernisation process, which should not be unduly delayed if possible. We consider that there is general consensus about the need to move towards a more effective, modern and efficient courts system, involving the digitisation of the courts process but remembering the risk that some people may somehow be excluded from access to justice unless their needs and requirements are catered for. We are conscious of that.

With that, I hope that noble Lords will accept that, as I said, this is a small step but a step in the right direction that takes us closer to our goal. I therefore ask the House to give the Bill a Second Reading.

Bill read a second time and committed to a Committee of the Whole House.