Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) Order 2014

Lord Beecham Excerpts

Monday 3rd March 2014 Grand Committee

On the same issue—consultation—the Family Procedure Rule Committee has been consulted in the course of drafting this instrument. The Explanatory Memorandum to the Justices’ Clerks and Assistants Rules says so. In all of this, has the executive committee of the Magistrates’ Association been consulted? Has it given a view? Is it the same view as that of the justices’ clerks’ organisation? Was there tension? Are there difficulties? Have there been differences? It would be helpful to know from the Minister whether that is the case. I do not wish to take up any more of the Committee’s time.

[Lord Beecham (Lab)]

My Lords, I begin by breaking the habits of my three and a half year parliamentary career and not only thanking the Minister for the clarity of his exposition—to which we are accustomed—but also confirming that most of what is in these instruments is agreed by the Opposition.

I reassure my noble friend, who has just spoken, about some of his concerns. The family court concept does not exclude the magistrates’ court and lay justices; it includes them. They become part of a virtually seamless provision for dealing with family court matters. Therefore, the magistracy will remain involved. With regard to my noble friend’s last question to the Minister, the Minister may or may not be able to answer it but I can, because I have put the same question to the Magistrates’ Association. It is content with this afternoon’s legislation and has no objections to any of the proposals.

[Lord Jones]

Is my noble friend giving guarantees on this issue?

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[Lord Beecham]

I can report to the Committee only what I have heard directly from the Magistrates’ Association. I have not heard from the Justices’ Clerks’ Society because I did not contact it. The Magistrates’ Association has no reservations about these matters.

[Lord Jones]

But is my noble friend speaking on behalf of the Magistrates’ Association and is he giving guarantees?

[Lord Beecham]

No, I cannot speak on behalf of the association. I am not, as it were, briefed by it or retained by it, unfortunately, but I assure my noble friend that it has communicated with me in the sense that I have just described. However, other reservations that my noble friend has expressed, which are not, strictly speaking, germane to the matters that we are debating this afternoon, raise concerns which I share and which, indeed, I have raised from time to time. They are also concerns which the Magistrates’ Association shares—that is, the current size of Benches that have been amalgamated and the position now occupied by the justices’ clerks on those Benches. The clerks are no longer responsible to magistrates but are responsible upwards, as it were, to the Ministry of Justice.

My noble friend rightly refers to the accessibility of courts and the closure of court buildings. However, one matter to which he has not referred but which has caused concern, which I have voiced previously, is the apparent growth in the role of full-time or part-time professional district judges as opposed to lay magistrates. There is concern about the imbalance that that is creating. Nowadays, some cases are dealt with virtually exclusively by district judges and the lay judges have a diminished role in consequence. These are genuine concerns which I think we need to explore further, but not for the purposes of the legislation today.

I have in the course of my 40-odd years—some of them rather odd indeed—practised as a solicitor and have spent much time briefing counsel. I am experiencing something of a role reversal today, because I have benefited from briefing from a distinguished family law practitioner, Michael Horton. I do not know whether he is somebody with whom the Minister is acquainted but he is an experienced counsel dealing with family matters. He raises a number of issues which do not undermine the thrust of the regulations that we are discussing but in some instances suggest that a little further clarification is required.

The first issue relates to the appeal to the family court. Where, within the family court, does the appeal lie? In other words, who in the family court will deal with the appeal? The Civil Procedure Rules lay out a definition of who will hear appeals. At the moment, it appears that a new practice direction to the Family Procedure Rules will identify the destination of appeals—that is, not just the broad destination of the family court, which, as I have just emphasised, reaches from the magistracy right through, ultimately, to the Court of Appeal—but what tier of the judiciary will deal with it? I understood the Minister to say that that either has happened or is about to happen—that the rules will be promulgated. They are to come into force in six or seven weeks’ time. I take it that they have been the subject of consultation and I should be grateful if the Minister could confirm that. If, by any chance, they have not yet been the subject of consultation, I strongly urge that they be made so.

Another issue raised is not a criticism at all but it arises from a welcome change to which I do not think the Minister specifically referred. It is the possibility of funding emerging from the change in rules which will allow payments to be made to charities, to be ordered by the family court. I am not quite clear of the intention here. but one hopes that such payments could cover the advice services provided by voluntary organisations to those engaged in family disputes. It would be helpful to have clarification of whether that is in fact the intention. It could make a significant difference in facilitating support for litigants who are not able to pay for or obtain legal aid for advice, as would be the case in a number of instances, if voluntary organisations could be the recipients of money as the result of such an order.

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[Lord Faulks]

Yes, I will certainly write in so far as I do not answer all the issues raised by the noble Lords, Lord Jones and Lord Beecham. I fear that I will not be able to answer all the points, but I hope that I can at least reassure the noble Lord that the magistracy will still be involved in the matter, as it was before, and will not lose its expertise—it will simply be called something different. There is some reallocation of its tasks, but not a loss of its important role.

The closure of courts generally is a different issue from that which we are considering. There are always difficult arguments on the cost of having a court that is infrequently used as against the convenience for local people. We are of course anxious that the quality of decision-making should be high and that there should be convenience, and we do not anticipate that there will be a radical change in individual cases. The noble Lord mentioned the position in Llanelli, where he feared that there would not be enough local expertise. I am assured that there would not be a radical transfer unless the court service was satisfied that there was the appropriate level of expertise in a local area.

I turn to issues raised by the noble Lord, Lord Beecham. He said that he was concerned that there had not yet been a specific route for the appeals identified. I indicated in the course of my remarks that they would be set out in a statutory instrument under Section 31D of the Matrimonial and Family Proceedings Act 1984, which would be made by the Lord Chief Justice or his nominated officer after consultation with the Family Procedure Rule Committee and with the agreement of the Lord Chancellor. The rules are made with the consultation of the committee, which includes expert practitioners, justices’ clerks and judges. It also includes a representative of the court users, so it should be possible before the appropriate tier of appeal is finalised for all interested parties to have an opportunity to have their views reflected in the designation. Although I understand the noble Lord’s anxiety, it is unlikely that he will find the organisation of appeals in any sense out of sync with the construction of appeals that exist generally in civil procedure—that is, there will be an appeal from a court to a higher level of court and, depending on where the initial allocation begins, a superior court will then come to consider the relevant appeal.

The noble Lord, Lord Jones, asked a question about the consultation with the Magistrates’ Association, which was very helpfully answered by the noble Lord, Lord Beecham, who was able to confirm that it had been consulted. The statutory obligation was to consult the family practitioners’ rules committee, which comprises representatives of the lay magistracy, justices’ clerks and a number of judges, so it would have been included in any event in that consultation.

The noble Lord, Lord Beecham, asked about payments to charity. I am told that the amendment to Section 194 of the Legal Services Act 2007 will mean that the family court will be able to order a party to make a payment to a charity. This mirrors the current position in the civil courts and applies where a party has been represented free of charge. It will be for the court in the individual case to determine to which charity the payment should be made. I hope that that answers that point. The noble Lord also made a point about the increase in costs and the fees for divorce going up. Yes, if it is dealt with at a lower level then I understand his point about that. A final decision has not yet been made on whether to increase the fees for divorce, although this matter was consulted on. I will certainly take back his observations.

Perhaps I have not quite sufficiently answered the question about the general sufficiency of the numbers of justices’ clerks. It is actually the case that the assistant justices’ clerks will be doing most of the work in courts. There are about 1,400 of them and the justices’ clerks are managers, so there is one in each area. There are 26. Her Majesty’s Courts and Tribunals Service has assured Ministers that there will be sufficient justices’ clerks to perform the various functions which they are able to do as a result of this designation.

I think that I have answered most of the questions—no, I have not.

[Lord Beecham]

There is just the question of interest, upon which the Minister might care to write to me. I presume that he has not been briefed on that yet by those behind him.

[Lord Faulks]

The position is that I cannot give an answer, I am disappointed to say, but we will definitely write on that issue. I hope that the noble Lord will be satisfied with the answer.

I am grateful for the helpful questions from noble Lords and, notwithstanding the reservations in the points that have been helpfully made, I hope that your Lordships will agree that these draft instruments are an important step in simplifying the family court system and making it more accessible to families.