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

Debate between Baroness Harman and Robert Neill

2nd reading: House of Commons
Tuesday 27th November 2018 Commons Chamber

[Robert Neill]

I totally agree. These are useful, practical measures on their own, but they are by no means a solution to the problem. In fact, they are but a very small part of the solution.

I am a bit concerned by some of the Law Society’s suggestions in briefings that some of the broader programme of courts reform is posited on making savings in judicial posts and appointments of about £37.5 million. I hope that the Lord Chancellor—or the Under-Secretary of State for Justice, my hon. and learned Friend the Member for South East Cambridgeshire (Lucy Frazer), when she responds to the debate—will be able to set our minds at rest on that. We can make savings by using staff qualified at the appropriate level in what one might term purely interlocutory or procedural matters, but all the decisions on issues of substance in any case—whatever the sum involved or whatever the nature of the charge, in a criminal case—have impacts on the individuals concerned, and they should, in my judgment, be taken only by properly qualified lawyers in an open court process. That is important.

We cannot allow the valuable nature of this Bill to take away from the fact that we need an injection of resource into the criminal justice system. We are seeing a shortfall in appointments to the High Court bench on a regular basis. A number of hon. Members have talked about the integrity of our justice system and the importance of its legal standing, and the quality of the judiciary is key to that. We also see difficulties in making sufficient appointments—full time, at any rate—to the circuit bench. It is easier with recorders, I grant, because they are able to sit part time, but there is a real issue there.

There is also a real issue, as my hon. Friend the Member for Cheltenham knows, about morale. I think that the Lord Chancellor and the Under-Secretary of State understand that and take it on board. I do not expect them to be able to wave a magic wand and solve everything overnight, but it is important to stress these things. Technical changes are useful as far as they go, but they cannot underpin what is essentially a people-based system.

[Ms Harriet Harman (Camberwell and Peckham) (Lab)]

I pay tribute to the excellent work that the hon. Gentleman’s Committee does on these and many other issues. I agree that there were perhaps things in the Prisons and Courts Bill that have not found their way into this Bill. He may agree that we should, none the less, take the opportunity of this Bill to try to sort out the problem of the previous sexual history of victims in rape trials being dragged through the court and used by the defence in an irrelevant way to undermine the complainant’s evidence, sometimes when applications are not even made to introduce this material. Does he agree that this Bill is an opportunity to deal with that problem? We know that this is happening, and it undermines getting rape convictions.

[Robert Neill]

I very much respect the point that the right hon. and learned Lady is making, but I must say to her frankly that I am not convinced that this Bill is the appropriate vehicle for dealing with that issue, although it is a real one, simply because the Bill is very tightly drawn in scope and relates to function. What she wishes to do—I understand why she may wish to do it—would have significant impacts on the operation of the law of evidence, which is a consideration that deserves to be looked at on its own. We probably have a shared view as to what we might want to achieve, but I am not sure that this Bill would be the right one to achieve it.

We do need to look very carefully at the whole approach to the way that previous sexual conduct is dealt with in rape and other sexual offence cases, but we also have to bear in mind—I say this as somebody who prosecuted and defended in these cases—that we should not assume that these issues will never be relevant to the key issue in the case. A balance has to be struck, and very often that is a decision that can only be taken by the trial judge in the light of the submissions made by the parties. I would not want us to restrict the ability of the trial judge to make that decision, because they are best placed to do that. However, the right hon. and learned Lady’s point about failure to follow the procedures and make proper application in advance, and enforcement of those procedures by the judiciary, is an important one that we certainly ought to take forward.

[Ms Harman]

Can I go back to plan B, then? Even if the hon. Gentleman thinks that the Bill is not the right place to address such a considerable evidential problem—and there is controversy around this—would he not, at the very least, like to see tucked in under clause 3, “Functions of staff”, an obligation on staff to record, when an application under section 41 of the Youth Justice and Criminal Evidence Act 1999 is made, what evidence was brought forward and what the result of the application was? There is an absence of evidence about what the courts are actually doing. That enables them to say that there is not a problem, when evidence such as that brought forward by Vera Baird, the police and crime commissioner for Northumbria, says that there is a problem. Does he agree that this Bill could at least get us recording that very important information?

[Robert Neill]

That is a very interesting and constructive point, because we do want to have an evidence base. Again, the only caution I have is this: is it appropriate to do that through a form of statute, or is it better done through placing that requirement in the criminal procedure rules? I am going to talk about the procedure rules in a moment. Either way, there should be a means of capturing that information, and I am very sympathetic to doing so. Perhaps the right hon. and learned Lady and I could talk with others about the best way forward on achieving that, because it should certainly be possible, with modern court technology.