Crime and Courts Bill [HL]

Baroness Hamwee Excerpts

Tuesday 4th December 2012 Lords Chamber

[Lord Beecham]

My Lords, this amendment deals with the proposal in the Bill to delegate some decisions in the family court to legal advisers. The amendment seeks to define those duties in a way that would avoid legal advisers assuming the role of the court itself in making effectively legal decisions. It is quite a different matter if they were to make effectively administrative or case management decisions on matters of that kind. There is a concern, among the magistracy as well as more generally, that powers to adjudicate should be conferred on legal advisers.

The Minister wrote to me in some detail about this, and I am grateful for that letter, but I understand that discussions are going ahead and have not yet reached a conclusion about the precise form of regulations that are to come to both Houses. It is unfortunate that once again we are in a position of enacting legislation without a clear view of how it is to be implemented. Your Lordships may think that that is happening rather too regularly. Clearly, however, the Government are taking this matter seriously, and I look forward to seeing the draft regulations and ultimately the statutory instruments, which I understand will be subject to affirmative procedure. That being the case, I do not know whether the noble Lord is in a position to give an indication of the scope of the proposed delegation, without going into too much detail, because the regulations have not yet been drafted and consultations are still taking place. It might be helpful if he were able to give an indication that there will be some kind of limitation perhaps not precisely along the lines of the amendment but avoiding too much of a judicial role being assumed by legal assistants as opposed to judges—and, for the purposes of the family court, magistrates become judges.

It would be helpful to have that information, although if it is not available we will simply have to wait. But while waiting to hear what the Minister says, I make it clear that I do not propose to press the amendment. We will have a parliamentary opportunity at some point, although not one that would allow us to amend anything. Even so, in those circumstances I will not be pressing the amendment, but it would be interesting to hear whether the noble Lord can update us to any degree.

[Baroness Hamwee]

My Lords, could I ask my noble friend a question? He may not be able to answer at this point, but I am afraid that it has only just occurred to me—it is with regard to assistant legal advisers. I can well understand that a person should be able to act as a legal adviser only if that person is a justices’ clerk, but why should a justices’ clerk, as distinct from an assistant to a justice’s clerk, not be able to act as an assistant legal adviser? It may be that the requirements on any given day, or because of the complexity of the matter or whatever, would make it more convenient for a justices’ clerk to act as an assistant legal adviser. It may be that I do not understand enough about how the magistracy works with its clerks at the moment. However, the points raised by the noble Lord, Lord Beecham, caused me to look back to see who these individuals might be, because I share his concern about what they would be expected to do. It is an odd little restriction.

[Lord McNally]

My heart always sinks when my noble friend says that she does not understand some particular point of law, because I think then that the odds of my being able to understand it are infinitely less. On that particular point, I will have to write to her on the nuances between magistrates’ clerks and assistant magistrates’ clerks. However, may I say to the noble Lord, Lord Beecham, that I understand and, to a certain extent—as much as I am allowed to as a Minister—share his irritation that sometimes the legislation and the various Explanatory Notes and schedules do not come in the right order? As he says, however, there will be a chance for Parliament to look at these matters in due course. I also pray in aid the fact that, as my noble friend Lady Hamwee indicated, the aim of these changes is to try to get greater efficiency in justice into our courts. I will take up the invitation of the noble Lord, Lord Beecham, to update the House on where we are.

We are all keen to ensure the smooth running and efficient nature of our courts. Indeed, the single family court will ensure a more efficient, user-friendly system that enables cases to be processed quickly and with minimum distress to any children involved. In order to achieve this it is essential that our courts operate to maximum effectiveness. One of the ways that the Government will be able to encourage this is to allow legal advisers and assistant legal advisers to carry out procedural and administrative functions. By doing so they will ensure that the wheels of justice continue to turn, while freeing up judicial time to make the difficult decisions and determine rights.

The amendment proposed by the noble Lord, Lord Beecham, seeks to restrict the delegation of powers to legal advisers. The noble Lord has pointed to the report of the Joint Committee on Human Rights, which observed that the power awarded to legal advisers could be used quite widely. It also expressed concerns that there may be an appearance of lack of independence or impartiality if legal advisers are allowed to make decisions other than administrative decisions, such as case management. However, the provisions in the Bill for the delegation of powers to legal advisers largely mirror the provisions made in the Courts Act 2003—legislation passed by the previous Administration. I always find it a comfort when I am able to draw the attention of the Opposition to the fact that we are using one of their Acts to do something. I am sure that it is also a great comfort to the Opposition.

These amendments would mean that legal advisers and assistant legal advisers in the family court would be able to exercise fewer functions than they can potentially already exercise in magistrates’ courts. The Justices’ Clerks Rules 2005, made under the powers in the Courts Act 2003, already delegate a number of functions in family proceedings to justices’ clerks and assistant justices’ clerks. Only those who are currently justices’ clerks and assistants to justices’ clerks in the magistrates’ court will be able to be legal advisers and assistant legal advisers in the family court. I should also stress that justices’ clerks and their assistants are all legally trained, and so we are not proposing to delegate functions to those who are not legally trained. While I understand noble Lords’ reservations about the delegation of powers to legal advisers, I am not persuaded that the delegation of powers should be restricted as the amendment proposes. If legal advisers were restricted to working solely in administrative functions, as the noble Lord suggests, it would be a step backwards, removing powers that they already have, and would lead to increased delay and less efficient family court procedures. In particular, Amendment 81B seems to suggest that legal advisers should not be able to perform the function of giving legal advice to lay magistrates in the family court, even though this is a key part of their role now in the magistrates’ court.

--- Later in debate ---

[Lord Clinton-Davis]

I speak as a mere solicitor, but I very much support everything that the former members of the Supreme Court and other members of the judiciary have said. It is absolutely essential that we should retain flexibility. I am usually on the same side as the noble Lord, Lord Pannick, but not on this occasion. Flexibility is a better word than the one that the Government are using.

Attracting part-time judges in the higher courts will not happen. If it does happen, it will not be to the credit of the higher courts. I support women in every area of work. Women have been an invaluable resource as far as the solicitors’ profession is concerned. Why should they not inhabit the Supreme Court and other higher courts in the land? It would do us a great favour if that were to happen.

[Baroness Hamwee]

My Lords, I very much agree with the noble Baroness, Lady Neuberger. I, too, feel a great sense of trepidation, also being a “mere” solicitor, non-practising.

It is very rare that I agree with those who have spoken on the other side of this argument but I want to respond to the point that has been made about the perception of women who wish to work flexibly. My own experience has been that those who work to a slightly different pattern almost invariably turn themselves inside-out to work harder than is humanly possible in order to make it quite clear that they are not taking advantage of the arrangements that have been made for them.

In this walk of life, as in any, if we deny that cohort of people the opportunity, we are not only denying them, we are denying the whole of society the opportunity to use their life experience as well as their professional experience.

[Lord Beecham]

My Lords, I join my two fellow members of the junior branch of the profession with equal trepidation. We have heard from four most distinguished noble and learned Lords, all of whom support the amendment.

Last night I was lobbied, perfectly properly, by the noble and learned Lord, Lord Lloyd, who drew my attention to the constant use of the word “flexibility” in the debate which took place some five months ago. It is true that the word was used but I am not sure that it was used in the sense that the noble and learned Lord perhaps implies, contrasting with the word “part-time”. When we discussed the matter I said that I was not quite sure what the difference meant in practice. I am still not sure what difference the noble and learned Lord would construct between the two.

The noble and learned Lord quoted two or three Members of your Lordships’ House as using the term “flexibility”. He mentioned, for example, my noble friend Lady Kennedy. She did use that word. At one point in the debate, at col. 92, he asked my noble friend a question. He said:

“Much of what she said dealt with flexibility. I think that everybody in the House is in favour of maximum flexibility … The real question is whether flexibility demands part-time judges. The view of some of us is that it does not”.

We have heard this today most eloquently from the noble and learned Lord and from other noble and learned Lords. My noble friend replied:

“If I may respond to the noble and learned Lord, it seems to me that it has to be one of the possibilities in the whole panoply open to those making appointments”.

That “it”, of course, is the question of part-time service. She continued:

“I do not imagine that it would happen very often but it might be that someone exceptional could be appointed who would say, ‘I will sit during these parts of the year and will be available to you then’”.

This was precisely the point made by the noble Baroness, Lady Neuberger. My noble friend went on:

“I do not believe that that would bring about resentment from other colleagues once they saw the quality of the work done by people of real ability”.—[Official Report, 25/6/12; col. 92.]

That is perhaps an answer to my noble friend Lord Clinton-Davis.

The noble and learned Lord also referred to my noble and learned friend Lord Falconer—who made but a fleeting appearance, unfortunately, in the Chamber this afternoon. I would have been delighted to give way to him for the purposes of this debate and, indeed, possibly to some others. My noble and learned friend Lord Falconer spoke in some detail and also rather deprecated the use of the term “part-time”. In the conclusion to his remarks, he said:

“So if we were to agree to a provision that allowed part-time or flexible working members of the Supreme Court … there would be two benefits. First, it would increase the pool of people who would be able to apply. Secondly, it would lead to a sense that we thought that flexible working was available from the top to the bottom of our judicial system”.

My noble and learned friend treated “part-time” and “flexible” working as much the same thing. In the real world, surely that must be right. He concluded:

“I cannot think of a better message for us to send—and it would be one that was not just a gesture but would have an effect on increasing merit”.—[Official Report, 25/6/12; col. 101.]

My noble and learned friend said that the Opposition endorsed the proposals in the Bill, and we do again tonight.

Having never appeared before a tribunal higher than the county court I speak with some trepidation. However, I take some comfort from the experience of my noble and learned friend Lord Falconer, my noble friend Lady Kennedy and, in particular, the noble Lord, Lord Pannick, who has again eloquently made the case.

We are looking at flexible working that would necessarily involve—to avoid the use of the dreaded phrase “part-time”—less than full-time working. It seems to me that that is consistent with the objectives that have been outlined by noble and learned Lords who have supported the Government’s position. If it is of any comfort to the Minister, that will be the position should a Division be called: we would support the Government. We think that this is an imaginative forward step in the judicial system. We have every confidence that the people who are appointed to that very senior position will discharge it to the best of their obviously very considerable ability and with the utmost conscientiousness. I have no fears about that or about the capacity of the system to cope with what would inevitably be a relatively modest number of people occupying senior positions of that kind in the Court of Appeal and the Supreme Court.

On this occasion, the Minister and I are at one —which is perhaps, subsequently, a matter for some modest celebration.