Courts: Resourcing and Staffing

Lord Beecham Excerpts

Thursday 14th July 2016 Lords Chamber

[Lord Beecham (Lab)]

My Lords, I refer to my interests as an unpaid consultant with my former legal practice, as well as a paternal interest as my daughter is a practising barrister and sits as a part-time deputy district judge. I congratulate the noble and learned Lord, Lord Saville, on his long-awaited maiden speech. We look forward very much to hearing more from him; on the basis of what we heard today, it should be illuminating. I was saddened to learn from the Minister that he has decided not to continue as a member of the Government. We have enjoyed our exchanges over the Dispatch Box for some considerable time and he is regarded with great esteem and affection throughout your Lordships’ House. We will miss him very much indeed. We look forward to whoever takes his place emulating his knowledge, wisdom and good humour.

I also echo the thanks extended to the noble and learned Lord, Lord Woolf, by other speakers for initiating this timely and important debate on a major aspect of what appears to be an unending programme of change in our legal system. Access to justice, the foundation of the rule of law, has been and is being effectively undermined in a variety of ways, notably by the curtailment of legal aid and the ever-rising costs imposed upon those who seek justice. The noble Lord, Lord Trevethin and Oaksey, referred to this aspect, and as he said, next week we will debate a regret Motion on the latest increase in court and tribunal fees, designed to generate still more than full-cost recovery, despite the palpable impact such increases have already wrought on, for example, employment tribunal applications.

The judiciary has repeatedly voiced concerns about the problems caused by unrepresented litigants across the whole system, perhaps occasioning particular concern in the area of family law, where as we heard from the noble and learned Lord, Lord Woolf, there are unrepresented parties in 30% of cases, and perhaps even more worryingly, 22% of child contact cases are in the same category. The delays in this area are particularly reprehensible given the sensitivity of the subject matter, but they are to be found across the whole system, civil and criminal law alike.

It is of course reasonable both to seek to reduce the costs of the system and to make use of modern technology, but not at the expense of justice itself. As we have heard, the pressures engendered by government policy reach to the highest level. Lord Dyson, in the report on appeals to the Court of Appeal, which marked the end of his distinguished tenure as Master of the Rolls, referred to the almost 60% increase in workload in the last five years, which other noble Lords referred to, with the trend still rising, no increase in judicial resources, a concomitant lack of judicial time, a growing backlog and ever longer delays. As he pointed out—and the noble and learned Lord, Lord Woolf, quoted—justice delayed is justice denied.

His report suggests changes in the Civil Procedure Rules, but it is disturbing that he also reports, following discussions with the Ministry of Justice, that there is no prospect of increasing the number of judges in the court. I had thought it possible that if Mr Gove had remained in office as Lord Chancellor, he might have undergone a Damascene conversion on this issue, as he did over the suitability of his erstwhile friend Boris Johnson to be Prime Minister. Let us hope that his successor will respond constructively. However, even if that were to prove the case, there are real doubts about whether it would be possible to recruit the most able potential judges, and these doubts apparently extend through the whole system. As we have heard, salaries and pension provision appear to have had an impact on the number of suitable applications for appointment, especially to senior positions. Can the Minister enlighten us as to the position at the moment and on whether, and in what way, current policy is addressing the recruitment issue?

The chairman of the Bar Council, quoted by the noble Lord, Lord Lester, echoes the concerns expressed in relation to pensions by the Lord Chief Justice in his annual review and cites the observation by the noble and learned Lord, Lord Thomas, to the Select Committee on the Constitution in April, that a new High Court judge will receive a significantly smaller pension than that of a district judge and in general, judges of the age of 58 or over will be excluded. Do the Government not realise the disincentive that has been created by this state of affairs?

A distinguished QC of my acquaintance illustrated the current position by reference to his own experience in the Court of Appeal. He referred to delays, which Lord Dyson made much of, but also to other issues. These include inappropriate listing. For example, a family property appeal was heard and rejected by a court comprising three members, whose expertise lay entirely in the realm of commercial law, leading to a further appeal. He complains of rushed hearings, even citing instances where the judgment appears to have been written in advance of the hearing, and he expresses concern over the proposal to abandon the right to renew orally a paper application seeking permission to appeal, having himself succeeded in such an application to a single Lord Justice after the initial application was dismissed—again, without reasons.

He raised another issue, which is that of diversity, suggesting that recruiting judges, especially in the higher courts, is made more difficult by the timing and timetabling of cases, which can seriously impact on family life and commitments.

The Government make much of the opportunities to generate savings through court closures and an increasing reliance on online solutions. In respect of the former, there is continuing concern, especially in relation to the magistrates’ courts, about the difficulties occasioned to parties and witnesses where long travelling times are involved—the noble Lord, Lord Thomas, referred to that.

There are also doubts about whether conducting cases online or by video is necessarily a satisfactory alternative. The Public Accounts Committee expressed concerns on this point, noting that Governments do not have a good track record in the realm of information technology. Of course, IT has a part to play, but in relation to civil claims, there is an assumption that we are all computer-literate, whereas this is palpably not the case—and I speak as someone who is at best semi-literate in these matters. The UK Association of Part-Time Judges also refers to the cost to parties of using the internet and accessing the equipment.

The association also drew attention to the problems that might be faced in eviction cases by people on benefit unable to access IT or attend court—concerns echoed by the Law Society. If, given the absence of legal aid and an inability to pay for legal advice, people seek to conduct their own cases, the support—which is often currently available on an informal basis—will be sorely missed. Justice, in its document, What is a Court?, published in May, referred to the need for diversely skilled, trained and empathic court staff, with IT support staff providing assistance in person. It also called for a more customer-focused approach, treating court users as clients, but it warned that the reduction in staff numbers, believed to have taken place and contemplated for the future, militates against this desirable aim.

So what is the Government’s target for staffing numbers and qualifications, and what is their assessment of the capacity of the system to cope with current demand and change? How do they respond to Justice’s claim that a wide range of court users have consistently highlighted the negative impact on the system, and on their morale, of reduced staff? I hope that the noble Lord will reply to the important questions raised by the noble Baroness, Lady Coussins, about interpreters.

It seems to me, and many others, that under this Government the road to access to justice is being paved with ill-thought-out and clumsy interventions. I hope that the noble Lord’s successor will enjoy some success in persuading the new Lord Chancellor to revisit this whole area and to change the direction of government policy. I hope also that he will continue to use his influence, which ought to be significant, from the Back Benches in your Lordships’ House to ensure that what he has tried to do from the Front Bench will be realised in practice.

Prisons: Staff Safety

Lord Beecham Excerpts

Monday 11th July 2016 Lords Chamber

[Lord Beecham (Lab)]

The Question asked in the House of Commons related to the safety of staff in prisons following walk-outs and protests last week by between 5,000 and 6,000 officers protesting about the rising tide of violence threatening both staff and prisoners. Assaults on prison officers reached 5,500 last year, an increase of 36%, while last year there were 32,000 incidents of self-harm, up by 74% since 2010, a shockingly high number given that the prison population is around 85,000. There were 100 suicides in 2015-16.

Is it not clear that our prisons are both chronically overcrowded and dangerously understaffed? The Howard League for Penal Reform has chronicled the deteriorating position in a worrying number of prisons. In Lewes, for example, 50% of its 640 inmates were being locked in their cells during the working day, some of them for as much as 23 hours a day. In February, staff at Wetherby young offender institution refused to let 300 prisoners out of their cells for a day because of rising violence. We recently had a Statement on the dreadful conditions in Wandsworth prison in which assurances, albeit of a rather vague character, were given about rectifying the situation revealed in a television programme. The Lord Chancellor talks a good game about improving conditions and replacing old and unsuitable prisons, but then he is the Lord Chancellor who set out on the road to his political Damascus in support of Boris Johnson, only to recant and discover at the very last minute that if Boris was the answer he had been asking the wrong question for weeks.

When will the Lord Chancellor, or whoever succeeds him—I rather hope it might be the noble Lord, Lord Faulks—recognise that the crisis in our prisons cannot sensibly be tackled without a significant reduction in the number of prisoners and a significant increase in the number of properly trained staff with adequate support in relation to issues of mental health? Will he now revisit his decision to spend just £10 million to increase safety, approximating to around all of £125 per head of the prison population, which is not of course, a static number?

Is it not time for another high-powered review of the state of the service, along the lines of the inquiry into Strangeways conducted by the noble and learned Lord, Lord Woolf, 26 years ago, but extended to the entire custodial system?

[Lord Faulks]

I am grateful to the noble Lord for his thorough criticism and the questions that he raises about the state of our prisons and the safety of staff and indeed of other prisoners. We freely acknowledge that there is a problem and that we have to do something about it. It is not a problem that is easily solved and, as the Statement indicated, there are a number of factors. There is an increase in the number of violent offenders in our prisons. Substantial problems have been caused as a result of the use of psychoactive substances. It is clearly far less than desirable that prisoners should be locked in their cells for long periods and not engaged in purposeful activity. The Secretary of State clearly wants to involve as many people as possible and as many organisations as possible in trying to improve the situation. That was why he invited the BBC into Wormwood Scrubs to see the conditions there.

There has been new funding of £10 million for prison safety, allocated as appropriate, and that will be supplemented by £2.9 million from existing budgets so that a significant number of governors—those facing the greatest challenges—will have an opportunity to improve safety levels. There is also £1.3 billion, which the Secretary of State secured from the Chancellor of the Exchequer, to modernise the prison estate. That will be a long-term project, but one which the Secretary of State is most anxious to help with.

Magistrates

Lord Beecham Excerpts

Thursday 7th July 2016 Lords Chamber

[Lord Faulks]

My noble friend makes an important point and, with her experience of the magistracy, a pertinent one. We very much respect the contribution that magistrates make to our criminal justice system. Some 90% of criminal cases in the justice system are dealt with by magistrates. As to her specific point, defendants are always encouraged to plead guilty— where appropriate, of course—at the earliest possible opportunity, and judges and magistrates very much bear in mind that, although there is a temptation for brinkmanship, the best way to show mitigation and reduce your sentence is to plead guilty at an early stage and save all the costs that my noble friend referred to.

[Lord Beecham (Lab)]

My Lords, on 23 December, the Ministry of Justice declined a freedom of information request on the modelling of proposals to increase the sentencing powers of magistrates, but admitted that it had carried out such modelling. On 7 June, the Minister, Mr Vara, told the Justice Select Committee that he was not aware of any such modelling. Will the Government now disclose what assessment has been made of the impact on prison numbers of the proposed changes? If they proceed with the proposal, when will they review the effect of that change?

[Lord Faulks]

The question of appropriate sentencing powers is a difficult one. It goes back to 1952, when the magistrates were first given their powers. There are different views on whether it is appropriate to increase the sentencing powers. For example, the Prison Reform Trust and the Howard League think there ought to be a decrease in sentencing powers. There is a great deal of thought being carried out on this. I am not currently aware of any modelling and I cannot go beyond the answer given, but I will take that back to the department and bear in mind the question posed by the noble Lord.

Motoring Offences Review

Lord Beecham Excerpts

Thursday 7th July 2016 Lords Chamber

[Lord Faulks]

This is a difficult area. The distinction between careless driving and dangerous driving, although long established, does not please everybody. There are always difficult balances between assessing the culpability of driving and the effect of driving. Relatively minor episodes of careless driving can cause serious injury; very dangerous driving can sometimes not cause much in the way of harm. It is a difficult matter. It is also important to establish some proper correlation between the sentencing for driving offences and sentences, say, for dishonesty or assault cases and that sort of thing. It is a difficult matter, but we are proceeding.

[Lord Beecham]

My Lords, has the abolition of the requirement to display a tax disc made enforcement of motoring offences more difficult? Have the Government made any assessment of the loss of revenue as a result of that change?

[Lord Faulks]

I am not aware of any assessment of the loss of revenue. I will certainly write to the noble Lord if such information is available. But it is of course perfectly possible to trace by the individual registration number, through computers, exactly who has the car and who should have the car.

Court Proceedings: Written Transcripts

Lord Beecham Excerpts

Tuesday 28th June 2016 Lords Chamber

[Lord Faulks]

There is not, in fact, a printed record of proceedings. There is a recording, which is then transcribed. It is the cost of transcription that we are concerned with.

[Lord Beecham (Lab)]

My Lords, do the Government recognise that not everybody has access to digital technology? What steps are they taking to deal with that aspect of the matter? Is not the more important question that of access to justice generally, with the increasing number of unrepresented parties appearing in courts making for delays in the system and, apparently, an increasing reliance on McKenzie friends? Do the Government really think that is the way to promote access to justice?

[Lord Faulks]

That is rather outside the Question, but it is none the less an important point. On accessibility, if there is a transcript and, in the judge’s view, it is appropriate, it can be obtained at public expense. In certain circumstances, there can even be legal aid to obtain a transcript. It is most important that judges and, more importantly, litigants are given assistance. We still have a system of legal aid. McKenzie friends are somewhat controversial, but they can, in appropriate circumstances, provide great help to litigants and the court.

Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) (Amendment) Order 2016

Lord Beecham Excerpts

Monday 13th June 2016 Lords Chamber

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, I beg to move that the Committee has considered the draft Access to Justice Act 1999 (Destination of Appeals) Order 2016, which I will refer to as “the civil order”, and the draft Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) (Amendment) Order 2016, which I will refer to as “the family order”.

The orders are intended to address the workload of the Court of Appeal and are made under Section 56 of the Access to Justice Act 1999. They have been consulted upon with members of the senior judiciary, as is required by Section 56. As their titles suggest, the orders make provision in respect of the routes of appeal from judicial decisions in civil and family proceedings. I will start with the civil order.

The civil order replaces the Access to Justice Act 1999 (Destination of Appeals) Order 2000. If made, the order will remove the current distinction made for certain proceedings between interim and final decisions, so that appeals from all decisions of a particular level of judge will follow the same route and, as far as possible, lie to the next level of judge. This is the key amendment made by the order. The civil order also reflects amendments made by the Crime and Courts Act 2013 to Section 5 of the County Courts Act 1984, which widened the definition of “judge of the county court”.

The 2000 order currently makes provision for routes of appeal where a route is not already provided in other legislation. In particular, the order makes provision for an exception with regard to appeals against final decisions in claims which are allocated to the multi-track and appeals from decisions in specialist courts; for example, proceedings under the Companies Acts. At present, these appeals lie directly to the Court of Appeal, in some cases circumventing both the county court judge and the High Court, irrespective of the level of judge who made the decision to be appealed. This exception might well have been thought appropriate at the time that the 2000 order was debated, but there is no doubt that both the county court and the High Court have the requisite level of expertise to determine such appeals irrespective of whether the decisions appealed are interim or final. In the meantime, valuable judicial and administrative resources in the Court of Appeal are being lost to matters that can quite properly be determined in the lower courts.

Turning to the detail of the civil order, the Ministry of Justice has worked with the senior judiciary to ensure that these amendments will work, and we are grateful to them for their assistance. Although the civil order may appear quite detailed, its effect is to simplify the routes of appeal so that appeals from decisions of district judges sitting in the county court will lie to a circuit judge, except in respect of appeals in proceedings under the Companies Acts, which will now be determined by the High Court; appeals from decisions of circuit judges will lie to the High Court; appeals from decisions of masters and district judges sitting in the High Court will lie to a High Court judge, except in proceedings which have been allocated to the small claims track of the Intellectual Property Enterprise Court, where an appeal will lie from a decision of a district judge to an enterprise judge; and appeals from decisions of High Court judges will continue to lie to the Court of Appeal. The result will be that cases will be considered at the most appropriate level of court, which, in turn, will result in a more efficient use of available judicial resources.

Recent amendments to Section 5 of the County Courts Act 1984 significantly increased the number of judges who might sit in the county court, and list no fewer than 25 judicial officeholders, including certain tribunal judiciary, who may do so. In reflecting this reform, and to ensure that the correct route of appeal is applied in each case, the civil order also recognises that when sitting as a judge of the county court, some of that number will be accorded a level of seniority commensurate with that of a circuit judge, while others will be accorded that of a district judge.

I should add that the amended order will not undermine the judicial power to order that an appeal be transferred to a higher appellate authority should the circumstances of the case merit it. Also, as is apparent on the face of the civil order, the new arrangements are not intended to affect the rules relating to second appeals, which will continue to lie to the Court of Appeal.

The aim of this new civil order is to clarify and simplify the appeals process to ensure that the route of appeal in civil proceedings lies to the next level of judge. This should reduce the number of appeals that are lodged in the Court of Appeal and reduce pressure at that court by making best use of judicial time, ensuring that cases are heard in the most appropriate level of court.

I now move on to the family order. This order amends the Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) Order 2014, which I will refer to as the 2014 order, to route certain family court appeals away from the Court of Appeal to the High Court. The order also includes consequential amendments to the Family Procedure Rules 2010. Those rules set out the practice and procedure that is to be followed in family proceedings in the family court and the High Court.

Family proceedings in England and Wales are dealt with primarily in the family court, with the High Court also having jurisdiction to hear such cases. The default route of appeal from a decision of a judge of the family court would be to the Court of Appeal. However, the 2014 order already makes provision for appeals from decisions of certain judges in the family court to be routed to a different, higher, level of judge in the family court. For example, an appeal from a decision of a district judge in the family court already lies to a circuit judge in the family court.

The family order will amend the 2014 order so that appeals from certain decisions of circuit judges and recorders in the family court will lie to the High Court rather than to the Court of Appeal. It has been laid in response to concerns about the quantity of appeals currently being made to the Court of Appeal. Ministry of Justice statistics published in June 2015 show that family-related appeals to the Court of Appeal increased by over 200% between 2008 and 2014. Appeals must be dealt with in ways proportionate to the grounds of complaint and the subject of the dispute, while ensuring effective access to justice.

The changes proposed under the order mean that, rather than an appeal hearing taking place before a court of up to three Court of Appeal judges, appeals routed to the Family Division of the High Court will be heard by a single, specialist and experienced High Court judge. It is clear that this change will reduce the senior judicial resources required for these types of appeal and, by moving some work to the High Court, the Court of Appeal will be better able to manage cases of appropriate weight for that court.

Routing certain appeals to the High Court instead of the Court of Appeal should also lead to a reduction in the time it takes for these appeals to be heard and, by reducing the number of appeals going to the Court of Appeal, I hope this change should also benefit the flow of cases in that court. This will allow for more effective and expeditious determinations in other appeals, for example public law appeals relating to children.

The senior judiciary was consulted on these proposals in November 2015. It was supportive of these proposals and its views were key in determining the content of the order. We also consulted 10 key stakeholders, including the Law Society, Bar Council and the Council of Her Majesty’s Circuit Judges, who were broadly supportive of our proposals and whose responses helped us to finalise the policy position. Further details in relation to the points raised in the consultation responses are summarised in the Explanatory Memorandum to the family order.

The amendments to the 2014 order made by the new family order will apply to appeals from decisions of the family court made by circuit judges and recorders in all proceedings, including appeals from decisions made relating to contempt of court, with some exceptions. Those exceptions are: appeals from decisions made on appeal in the family court, so as not to create an extra level of appeal; appeals from decisions made in proceedings under Part 4 or 5 of the Children Act 1989, for example appeals against orders placing a child in the care of a local authority; appeals from decisions under the Adoption and Children Act 2002, including adoption and placement order appeals; and appeals from decisions relating to contempt of court linked to the above proceedings.

In the case of appeals relating to proceedings under Parts 4 and 5 of the Children Act 1989 and those under the Adoption and Children Act 2002, the consequences of the state intervening in a family’s life, the fact that the relationship between a parent and their child may be completely severed and the child’s status changed by adoption, and the complexities arising in these proceedings are considered so serious as to merit these types of appeal continuing to be heard by the Court of Appeal.

To summarise, appeals must be dealt with in ways that are proportionate to the grounds of complaint and the subject of the dispute, while ensuring effective access to justice. The amendments made by the family order will allow that to happen. By moving some work to the High Court, the Court of Appeal will be better able to manage cases of appropriate weight for that court.

I should add that, as well as these measures to improve the flow of work through the Court of Appeal, the Civil Procedure Rule Committee has recently launched a further and separate consultation outlining proposals to raise the threshold for permission to appeal to the Court of Appeal and remove the automatic right of oral renewal for permission to appeal where permission has been refused on the basis of the documents in the case. The consultation closes on 24 June.

If the proposals under consultation, which I have described to the House, are accepted then they will apply to appeals to the Court of Appeal in both civil and family cases. This consultation, along with these two orders, form a suite of reforms to improve efficiency in the civil courts. We are grateful for the ongoing work of the judiciary in our efforts to achieve this. Noble Lords will be aware that judicial recruitment is the responsibility of the Lord Chancellor. That of course means ensuring that he meets his statutory obligation in respect of appointments, but also keeping workload under review—as he does—to ensure that enough judges are available to hear appeals within a reasonable timeframe.

Noble Lords will wish to know that the Lord Chancellor’s decisions are informed by a so-called complement group made up of senior judiciary and HMCTS officials who examine the business need at all levels of the judiciary and advise the Lord Chancellor on the optimum complement. Both orders respond to concerns about the volume of appeals directed to the Court of Appeal and they will ensure that cases and appeals are being heard in ways that are proportionate to the grounds of the complaint and the subject of the dispute. I beg to move.

[Lord Beecham (Lab)]

My Lords, when these orders were debated at the Third Delegated Legislation Committee, for all of 13 minutes, with an opening in the Commons by the Minister responsible there of two minutes, my honourable friend Christina Rees expressed support for the changes, which had the backing of the senior judiciary, as we have head, recognising the need to reduce the workload on the Court of Appeal. It took a freedom of information request from the Law Society, apparently, to reveal that almost half of the 646 trials adjourned in that court were adjourned because of a lack of judicial resources.

Can the Minister explain why the Government allowed the number of cases to increase by 59% in the last five years without increasing resources or taking action of the kind embodied in this order? Is there a particular category of case which is responsible for this increase? To what extent, if any, has the reduced availability of legal aid in both family and other proceedings had a bearing on the matter, particularly given the number of unrepresented parties? Can he answer the question asked by my honourable friend and not answered by the Minister in the other place, as to the evidence base for the assertion that:

“The High Court has the capacity to absorb the extra appeals, thus lowering waiting times”.?

She also asked to what extent these changes meet the four requirements made by Lord Justice Briggs for easing the load on the Court of Appeal, namely increasing the court’s resources, reducing its workload, improving its efficiency and—I hope this would not be the case—deliberately reducing the quantity and quality of the service.

Somewhat disconcertingly, the Minister in the Commons admitted that, on their own, the changes,

“will not necessarily address any backlog of work held by the Court of Appeal, but they will ensure that the backlog does not continue to increase and that cases are dealt with at an appropriate level and as swiftly as possible”.—[Official Report, Commons, Third Delegated Legislation Committee, 8/6/16; col. 6.]

What does that mean in terms of the number of cases that will go to the Court of Appeal, as compared with the present situation, and as to the waiting time for hearings in that court? Needless to say, the so-called impact assessment, as is all too often the case, fails to supply the relevant information.

The Explanatory Memorandum to the family proceedings order refers to the consultation carried out by the Ministry of Justice and referred to by the Minister with a range of 10 stakeholders, albeit none from court users, as opposed to the judiciary and legal professionals. The consultation responses “broadly supported” the rerouting of appeals from circuit judges and recorders in family proceedings to a High Court judge rather than the Court of Appeal. But what does “broadly” mean? Did any of the consultees raise questions about resources or target times for hearings?

Finally, to what extent will the Ministry of Justice monitor progress under this new regime, both in terms of the cases to be heard in the High Court as now prescribed, and in relation to the effect of the reduced workload in the Court of Appeal? I trust that we will not be waiting for three or more years before the position is reassessed, particularly given that the changes are principally directed at a significantly sensitive area of law—the family area. I should declare a paternal interest inasmuch as my daughter sits as a part-time deputy district judge.

[Lord Faulks]

I am grateful for the questions posed by the noble Lord and I congratulate his daughter on the contribution that she is making to the administration of justice. I am sure that she, like all judges, will be feeling the pressure that heavy workloads can create. The noble Lord asked if any consideration had been given to whether the lower courts could cope with additional work. The answer is that HMCTS, as is its responsibility, is fully aware of and supportive of the changes, and the Ministry of Justice has been working with the senior judiciary, who are supportive of the measures and keen for the order to come into force.

The noble Lord suggested that there has been a somewhat tardy response to what was clearly something of a crisis in the build-up of cases and the capacity of the Court of Appeal to deal with them. I am sure he will understand that any Government will have to be careful before depriving any litigant of their rights of appeal, which are well established, and will have to satisfy themselves, after the appropriate level of consultation, that restricting or changing the routes of appeal is in fact in the interests of justice and will not prejudice the interests of a particular appellant, while of course bearing in mind the fact that justice must be administered in an efficient way. The noble Lord will see that there has been a nuanced response in terms of the appeal process, so some of the appeals that I outlined in my opening remarks will still go straight to the Court of Appeal, where it is considered that that is appropriate. So this has not been an across-the-board response.

As to the consultation, there was a requirement for the Ministry of Justice to consult with the Lord Chief Justice, the Master of the Rolls, the President of the Queen’s Bench Division, the President of the Family Division and the Chancellor of the High Court before making the order. All specifically indicated that they were content with the provisions, and their views were key in determining the content. But in addition to the consultation with the senior judiciary required by statute, the Ministry of Justice held a wider consultation on these proposals with 10 key stakeholders: the Council of Her Majesty’s Circuit Judges, the Association of District Judges, the Magistrates Association, the Chief Magistrate, the Bar Council, the Association of Lawyers for Children—very much, I respectfully suggest, representing the consumer—the Justices’ Clerks’ Society, the Family Law Bar Association, the Law Society and Resolution. That was a pretty broad series of bodies to consult before deciding on the appropriate changes to the arrangements.

[Lord Beecham]

My Lords, I am grateful to the Minister for supplying that information, but perhaps he could advise the department that in future when it sets out a position on these matters, it should give a rather fuller account of the consultations it has carried out—because it does not appear in the documentation that has been put before us.

[Lord Faulks]

I am tempted to say better late than never—but, in any event, the information is available, and I hope that it has satisfied the understandable curiosity that the noble Lord had about the extent of the consultation.

On the management of resources—clearly something that is a responsibility of the Government—this is an estimation. Of course one can never be precisely sure about how many people will be appealing. I do not have any figures on whether the increase in appeals is related to any of the matters that the noble Lord suggested. On the face of it, it seems somewhat unlikely that the reduction in legal aid in certain areas would result in there being more appeals. It could result in more or fewer appeals—but none the less, there has been an increase. As I also indicated, there is a consultation shortly to close as to whether there ought to be a change in the threshold for allowing an appeal to be launched in the first place. The Government are waiting for the response to that before deciding the next step.

On the question of backlog, the answer is simply this: we do not want to deprive anybody retrospectively, as it were, of a right to appeal that they had, so it will take a little time for the changes, which we think will improve matters, to take effect. Nothing very dramatic will happen until this order takes effect and we can reroute the appeals in the way we suggested.

On the question of monitoring progress, we will do so. If necessary, we will make appropriate changes to ensure, in so far as possible, that the administration of justice is efficiently carried out. We will continue, as we have done, to consult the judiciary—not only the heads of division, but various other bodies—to ensure we do this in the best way we can.

These are important changes. The appeal process is fundamental to civil and family jurisdictions. We feel we have the balance right. This should help to deal with the volume of appeals currently being made to the Court of Appeal and will make a significant difference to the progress of appeals prospectively after the order comes into effect. We also take the view that the order will clarify and simplify the process to ensure that the route of appeal is to the next level of judge. The family order will mean that certain family appeal hearings take place before a single, specialist and experienced High Court judge.

I hope that I have answered the questions the noble Lord asked. I beg to move.

Criminal Cases Review Commission (Information) Bill

Lord Beecham Excerpts

Thursday 5th May 2016 Lords Chamber

[Lord Ramsbotham (CB)]

My Lords, I beg to move that this Bill be now read a third time.

[Lord Beecham (Lab)]

My Lords, I congratulate the noble Lord on bringing forward this Private Member’s Bill—which is something of a misnomer in review of the eminent rank that he achieved in his professional life. The Bill confers powers on the commission to obtain, with the leave of the court, material that may assist it in the exercise of its important functions in reviewing the validity of convictions.

I suspect that the Guardian may not be the Minister’s journal of choice for reading at breakfast, or perhaps at all, but by coincidence it published last week a disturbing critique by Eric Allison, its respected prisons correspondent, of the working of the commission. The report was prompted by a decision of the Court of Appeal that two men who had served 24 years in prison between them after being convicted of crimes that they did not commit were not entitled to compensation. This outcome perhaps reflects a flaw in the system rather than in the court’s judgment, and I invite the Minister to undertake a review of the position with a view to empowering the courts to order compensation where they deem it to be appropriate after quashing a conviction.

The article contains further disturbing material. The commission now receives 130 applications a month, while in addition the universities that run the Innocence Project receive two or three a week. Of course, not all of these will be justified, but it would appear that the commission is struggling to carry out its important role. The commission’s chair says that for every £10 being spent on a case 10 years ago he now has just £4 with which to carry out the work, while the workload has increased by 70%. It is true that only a minority of cases are referred, but of those, 70% succeed on appeal.

Mr Allison is sceptical about the implicit conclusion that most claimants are making false claims, not least because while a claim is pending they will not get parole or better conditions. But even if that were wrong, justice surely demands more support for the commission’s work, not least when one of the contributory causes of wrong convictions is inadequate legal support during the original trial. Given the potential impact of legal aid cuts on the preparation and conduct of trials, that is something that may get worse,

I hope that the Minister, who has facilitated the passage of the Bill and to whom the House is indebted in that respect, will discuss these matters with the commission and ensure that it has the resources required to carry out its duties effectively in this important area of the criminal justice system.

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, as the House will appreciate, we very much welcome the Bill. The noble Lord, Lord Beecham, apart from commenting on my breakfast-time reading, raised two important points. He will understand that of course I cannot comment on individual cases, but I understand the concern that he expressed in relation to compensation. It is not something, as the House will appreciate, that the Criminal Cases Review Commission deals with, so it is outside the scope of the current Bill.

The position, as noble Lords, including the noble Lord, Lord Beecham, may remember, is that where there is a miscarriage of justice—and the test was recently altered—it is the state not the courts that is responsible for compensation, and decisions are made on the basis of the statutory test. Therefore, it would not be appropriate for the Court of Appeal to take on this function after overturning a decision of the lower court. If it were to do so, we should need to consider whether a further appeal might lie against a Court of Appeal decision on compensation. So although these matters are always kept under consideration, my initial reaction is that this is not an appropriate way forward.

On the noble Lord’s second question, the CCRC is managed within the same spending review process as the remainder of the Ministry of Justice. The commission must live within its means, as we all must when budgets are tight. To exempt any particular area from finding savings means that the burden of saving falls disproportionately on other areas.

In fact, I do not think that the position is as bad as the noble Lord suggests. Since 2010, the Criminal Cases Review Commission’s annual budget has been reduced from £6.47 million to £5.178 million—a cut in real terms of 26%. During the same period, the Ministry of Justice’s net settlement was reduced in real terms by 35%—so the commission has fared well compared with other areas in the ministry. Indeed, the commission’s budget for the last three years has remained at £5.178 million, in part specifically to recognise the need for the CCRC to continue to take proactive steps to address its backlog. The budget for 2016-17 will also ensure that the CCRC can continue to prioritise tackling the backlog.

Furthermore, this is not simply a matter of resources. In these straitened financial times we expect all agencies and services to make efficiencies and improvements to their processes to provide the very best level of service. The focus over the last two years has been on efficiency, not savings—doing more with the existing level of resource. The CCRC has worked to manage its caseload more effectively by reviewing all its work practices and by making improvements. Since 2010, the commission has improved its performance. It closed 947 cases in 2010-11. That rose to 1,632 cases in 2014-15.

The Government congratulate the commission on the work that it does. It is a very valuable function. The Bill will assist it further in the discharge of its duties. It extends its scope to England, Wales and Northern Ireland. We now have a legislative consent Motion to legislate on behalf of Northern Ireland. I repeat my welcome for the Bill.

Prison Safety

Lord Beecham Excerpts

Tuesday 3rd May 2016 Lords Chamber

[Lord Faulks]

The noble Lord will know, because his party was in government for five of the last six years, that what happens in prisons represents a real challenge for any Government. However, I can tell him that prison officers have increased in number by 440 this year. Further to that increase, we are continuing our drive for more prison officers; the training is improving—going from six to 10 weeks; we are cracking down on psychoactive substances and their importation into prison; and we are acting through a number of different initiatives to identify particular risk points for violence. We are doing everything we can to tackle these very real problems.

[Lord Beecham (Lab)]

My Lords, given the shocking revelations about the use of synthetic cannabis by prisoners, which the Chief Inspector of Prisons described as having a “devastating impact” on prisons, including 19 deaths between 2012 and 2014, when will the Government recognise the need to reduce the prison population substantially and to increase prison staffing substantially?

[Lord Faulks]

The prison population is of course a feature of the sentences passed by judges. We are as anxious as anyone else to reduce that prison population in a way that is consistent with the safety of the population and that respects the sentences that have been passed. I have already answered the question about increasing prison staff. As to psychoactive substances, we are world leaders in what we are doing to track the ingestion of these substances. We are trying a test to detect them in 34 different prisons. We hope, when that is proved successful, to roll it out through the prison estate, so that we have an offence and a test which should get this under control.

Civil Proceedings, Family Proceedings and Upper Tribunal Fees (Amendment) Order 2016

Lord Beecham Excerpts

Tuesday 15th March 2016 Lords Chamber

Moved by

[Lord Beecham]

At the end to insert “but this House regrets that the draft Order further increases enhanced fees in certain proceedings that will be detrimental to victims of domestic violence and disproportionately discriminate against women; is concerned that the Government have acted against the advice of the Lord Chief Justice, Master of the Rolls, and the President of the Family Division, among others; and notes the Secondary Legislation Scrutiny Committee’s disappointment that despite strong concern expressed by respondents to the public consultation the Government give no policy justification other than the generation of income”.

[Lord Beecham (Lab)]

My Lords, yesterday the House spent a good deal of time on the infamous pay-to-stay provisions of the Housing and Planning Bill. Today it is pay to sue that this order makes the subject of debate.

The Government have already ratcheted up fees for court and tribunal proceedings with a devastating effect in relation to employment tribunals, where applications have fallen by 70%. Now they seek to extract significantly higher fees in the civil and divorce courts, not only for the issue of proceedings but even for filing applications and consent orders in the course of those proceedings.

The report of the Secondary Legislation Scrutiny Committee reminds us, as the noble Lord has just done, that the Anti-social Behaviour, Crime and Policing Act 2014 permits a Lord Chancellor to,

“prescribe a fee of an amount which is intended to exceed the cost of anything in respect of which the fee is charged”—

in other words, to make a profit out of the parties to litigation over and above the actual cost to the system of those proceedings. It is as if people paying for a prescription had to pay more than their treatment costs to help fund the NHS or some other element of government funding. I hope that the Secretary of State for Health does not read Hansard tomorrow; it might give him ideas.

The court system costs £1 billion a year to run. The order is estimated to realise £64 million by increasing the fees for a range of proceedings. In possession claims for goods or land the fees rise from £280 to £355—an increase of 27%, or in respect of online claims from £250 to £325. Consent applications in the course of proceedings, which by definition involve a minimum of court time, see a doubling in the fee from £50 to £100. The fee for contested applications in the course of proceedings rises from £155 to £255—a 60% increase. Uncontested applications in, of all places, immigration judicial review proceedings and the Upper Tribunal more than double from £45 to £100, while contested applications more than treble, from £175 to £550—I think that figure may not be accurate, but nevertheless they are increased substantially. Controversially, as the noble Lord has indicated, the cost of divorce proceedings rises from £410 to £550, and this is represented as a generous concession from the £750 originally proposed.

--- Later in debate ---

[Lord Faulks]

My Lords, this debate has been short but not lacking in power nor indeed in criticism of the Government. It feels almost nostalgic to hear in this Session of Parliament criticisms of the Government generally in their handling of the economy and of the Ministry of Justice and the Secretary of State. We are on familiar ground. It even included, from the noble Lord, Lord Beecham, the customary disavowal of anything being wrong with the economy at the time of the election in 2010.

[Lord Beecham]

The noble Lord misrepresents me. I did not say that there was nothing wrong with the economy. I said that it was recovering—and it was.

[Lord Faulks]

I stand corrected, though the recovery seemed to be rather in the eye of the beholder. In any event, the approach of the noble Lord appears to be that these changes are not justified in economic terms and that they will or might have the tendency to cause hardship.

Of course, I readily accept—as I did in opening this debate—that fee increases are never likely to be popular. On the question of divorce, there was an acceptance, if not an enthusiastic one, by the noble Lord that we had listened to representations, concluded that the original proposal was too high and reduced the sum that needs to be paid in order to obtain a divorce. Reference was made by the noble Lord to what judges said in the course of giving evidence—distinguished judges, I fully acknowledge.

--- Later in debate ---

The purpose of these reforms is to increase fee income—we do not in any way shy away from that—and to reduce the costs of the courts to the taxpayer who would otherwise be responsible. We would not be doing this if we thought that there was any serious risk that it would reduce demand in the courts and tribunals. For all these reasons, and those I explained in my opening remarks, we are satisfied that the risks are minimal. I therefore commend this draft order to the House.

[Lord Beecham]

My Lords, I will not take up the time of the House. I do not, of course, agree with the Minister’s defence of the Government’s attitude, which seeks effectively to make a profit for the purposes of government—in whichever ministry—out of proceedings. In particular, the order imposes increases with no justification of their size, no common principle applied to the percentage increase, and in a way which, despite what the Minister says, will undoubtedly lead to people having great difficulties. The earnings level that I referred to is low. Beyond £245 a week, people will be expected to pay—and pay, potentially, several hundred pounds. That cannot be in the interests of justice. It is a continuing part of the Government’s assault on access to justice. But, having regard to the usual practice, I beg leave to withdraw the amendment while continuing to express regret at what many in the profession, and many who support people endeavouring to seek justice, maintain is a thoroughly bad decision by the Government and a thoroughly bad order.

Amendment to the Motion withdrawn.

Insurance Industry: Whiplash

Lord Beecham Excerpts

Tuesday 1st March 2016 Lords Chamber

[Lord Faulks]

The Government are attacking this problem on a number of different fronts. Referral fees is one; the LASPO reforms is another; and there is the MedCo portal, which means that all whiplash injuries must go via a neutral evaluation with limited costs. All are contributing to a decrease in the number of whiplash claims, but there are still too many, and we still feel that there is fraud at the root of all this.

[Lord Beecham (Lab)]

My Lords, of course no one would defend fraudulent claims, whether for whiplash or other injuries. However, the raising of the small claims limit to £5,000 will represent a further reduction of access to justice to people and even businesses of modest means with valid claims. Given that the Government claim the insurance industry—in which motor insurers alone receive £15 billion a year in premiums—will save £1 billion from the increased limit, having already saved £7 billion in the last four years, what steps are the Government taking to ensure that any further savings from their latest surrender to the industry’s interests will be substantially passed on to policyholders? Or is this to compensate the industry for the insurance tax levy increase, which it will no doubt in any case pass on to policyholders?

[Lord Faulks]

There is no question of the Government surrendering to the insurance industry, as the noble Lord puts it. The insurers already announced that they will reduce the premiums to insurance companies by £50. We will watch insurance companies very carefully to see whether they translate their promises into action. Of course, as all noble Lords will know, insurance is a highly competitive world. All of us will have been irritated by the invitations to compare the market. Ultimately, the market should prevail.