Probate: Delays

Lord Beecham Excerpts

Wednesday 12th June 2019 Lords Chamber

[Lord Keen of Elie]

My Lords, there were essentially two features that impacted upon the timing of probate applications earlier this year. First, as the noble Lord alluded to, there was a marked increase in the number of applications—about 22%—in March of this year. It is perceived that that may have been in response to the anticipation of fee increases for probate. A second, more immediate, factor was the move over in respect of the digital probate service from three probate registries to the Courts & Tribunals Service centre in Birmingham towards the end of March. To facilitate that move, it was necessary to transfer cases, both digital and paper, from the legacy system on to a new single system called CDM. During the first few weeks after the changeover, there were difficulties with the CDM system, which have now been overcome. There was also the need to further train staff in that new system, resulting in pressures on the service during that period. We have now met those pressures, we have stopped the increase in time taken for the processing of probate applications and we now hope to see it reduce.

[Lord Beecham (Lab)]

My Lords, is it still the Government’s intention to make a profit out of the charges levied for probate, or will the fees simply reflect the cost of providing the service, as they should?

[Lord Keen of Elie]

My Lords, the term “profit” is not really appropriate in this context. As the noble Lord is well aware, any fees over and above cost in the court system are attributed to its other features so that, for example, victims of domestic violence can have their fees waived with regard to court applications. As regards the present state of the legislation, an approval Motion has not yet been laid in the other place.

Courts and Tribunals (Online Procedure) Bill [HL]

Lord Beecham Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 10th June 2019 Lords Chamber

[Lord Pannick (CB)]

My Lords, I support what has been said by the noble Lords, Lord Marks and Lord Beith. I declare an interest as a barrister practising in offline courts. That was the reason I did not participate at Second Reading.

The Briggs report has been referred to, which said at paragraph 6.13 that there are persons,

“living mainly in rural areas with no access to broadband, those who cannot afford a lap-top or desk-top computer, and those who for a variety of understandable reasons regard moving to computer after a life spent communicating on paper a step too far”.

I agree with previous speakers that it is unacceptable that the Bill says nothing about such potential litigants. The Minister accepts that their interests must be accommodated—they need to be accommodated in the Bill.

That is the view of your Lordships’ Constitution Committee, on which I served with the noble Lord, Lord Beith, and the noble and learned Lord, Lord Judge. Our report said at paragraph 16 that, against the background of what was said by Briggs,

“forcing people to choose between online proceedings or not pursuing legal claims at all risks excluding large numbers of people from the justice system”.

For that reason, your Lordships’ Constitution Committee has recommended that the Bill must place duties on the Lord Chancellor to ensure that adequate provision is made to enable access for the sorts of people I have mentioned.

[Lord Beecham (Lab)]

My Lords, Amendment 10 in my name gives the right to respond, in addition to the person initiating the claim, to choose whether the new procedure applies. Amendment 11 then provides that, in the event of disagreement between the parties, the relevant court or tribunal will determine which course to follow—the matter just referred to by the noble Lord. Indeed, I concur with all the issues raised by the three Members of your Lordships’ House who have spoken already in this debate.

I confess that my drafting is somewhat less than elegant, but this is an important issue, given the difficulty that many will have with an online process, stemming from unfamiliarity with the process or medical or mental health issues. The report of the Constitution Committee of 7 June, to which reference has just been made, raises serious concerns about the process that go beyond the matters referred to in these amendments but are most apposite to them.

The committee declares:

“It is unsatisfactory for legislation to be drafted in a way that fails to acknowledge the fundamental right to a fair hearing, both at common law and under the European Convention on Human Rights. While ministers may have no intention of using the powers provided by the Bill to undermine the right to an oral hearing, it is incumbent on Parliament to frame the powers it confers in a way that acknowledges and respects fundamental constitutional principles”.


The committee expresses its concern that,

“the Bill confers broad powers on ministers to limit oral hearings in a much wider range of cases than is currently envisaged”,

and suggests:

“One way to secure appropriate control over this power would be to require not just consultation with the Lord Chief Justice, or the Senior President of Tribunals where appropriate, but their concurrence”,


in those proposals. In other words, consultation has to be taken seriously in these circumstances—perhaps more seriously than in most, given what is at stake here for the workings of our legal system.

[Baroness Drake (Lab)]

My Lords, I support the intentions of Amendments 1 and 6 in the name of my noble friend Lord Ponsonby and Amendments 10 and 11 in the name of my noble friend Lord Beecham. In summary, they remove the potential requirement that people must choose between online proceedings and not pursuing legal claims, strengthen judicial discretion on the need for a full court hearing and protect the right of parties to proceedings to seek oral hearings.

It is right that courts and tribunals be modernised, but in utilising new technologies access to justice must not be undermined. The impact assessment notes that the conventional economic rationale for government intervention is based on efficiency or equity arguments. The rationale here is efficiency, referencing,

“outdated processes … costly for both the Government and court users”.

A reliance on an efficiency rationale must not prejudice access to justice, but I fear that that is the Bill’s potential impact. Clauses 1 to 3 give Ministers extremely broad powers to replace traditional proceedings with online ones, allowing for the possibility of online proceedings being the only option in the absence of Clause 3 regulation permitting a person to choose between online or conventional proceedings.

The Minister can give assurances as to the Government’s intentions but they are not binding over time. The Government argue that additional safeguards are not needed, but the Online Procedure Rule Committee’s powers will be far greater than those of any existing rule committees. Indeed, concerns about access to justice are heightened because the Bill confers powers to limit oral hearings in a wider range of cases than was envisaged by Lord Justice Briggs’s recommendation to introduce an online court to resolve low-value civil money claims. I quote the noble and learned Lord, Lord Judge, at Second Reading:

“Effectively, this Bill covers all non-criminal proceedings … this is a serious, wide-ranging Bill with wide-ranging consequences”.—[Official Report, 14/5/19; col. 1511.]


It may be argued that protecting access to justice is implicit in the Bill, but I believe that Parliament needs greater confidence; it should not rest on judicial intervention or ministerial assurance to address concerns about ministerial powers. I recall the Minister addressing this House on the draft Employment Tribunals and Employment Appeal Tribunal Fees Order 2013 in response to concerns that such fees would restrict access to justice. He asserted:

“We believe that the mitigations we have put in place will properly protect access to justice for those seeking to bring claims”.—[Official Report, 8/7/13; col. 85.]


In July 2017, the Supreme Court unanimously held that, as the order prevented access to justice, tribunal fees were unlawful and must be quashed with immediate effect.

As many noble Lords have said, curtailing the use of oral hearings will have a particular impact on access to justice for vulnerable court users with limited digital means, digital literacy and general literacy skills. The Constitution Committee observed that,

“the Office for National Statistics concluded that … 5.3 million adults in the UK … could be characterised as ‘internet non-users’”.

However, the committee noted that this figure may understate the problem. It said:

“Such figures do not take into account those with limited digital skills, for whom basic browsing and messaging may be within their capabilities but the complexity of online legal forms may not”.


People with limited general literacy skills will be disadvantaged by proceedings conducted solely in writing without access to oral hearings. As has been referred to, the charity Mind reports how people with mental health problems are disproportionately likely to experience digital exclusion, struggle with digital engagement and are nearly twice as likely to experience legal problems.

The Government’s objective is to devise new rules that will focus on users being able to solve grievances and resolve their issues online at the earliest opportunity, as well as to encourage more people to resolve disputes before they reach the hearing stage. If the Government are right in their assumptions, which are still to be tested, many people will prefer to use online proceedings voluntarily and efficiencies will be gained. However, that is not compulsion; people should retain the right to seek access to an oral hearing. Ministerial powers with the potential to require people to choose between online proceedings or not pursuing legal claims carry the real risk of incompatibility with the principle of access to justice. Amendments 1, 6, 10 and 11 seek to address that risk.

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[Lord Ponsonby of Shulbrede]

My Lords, Amendment 2 addresses Schedule 2 on the Online Procedure Rule Committee, how it relates to proceedings under the standard civil, family and tribunal procedures rules, and when these do not apply. Although I appreciate the importance of a clear process indicating which rules govern proceedings—and giving precedence to one committee does achieve that—I am concerned that the result will be the OPRC being able to make decisions about the appropriateness of online procedures for cases without input from the Family Procedure Rule Committee or other relevant jurisdictional committees. Amendment 2 could resolve this issue by clarifying under Clause 1 that the relevant jurisdictional rule committee must determine which proceedings can be governed by Online Procedure Rule Committee.

On Amendment 8, Clause 1(1)(b) would allow the OPRC to designate any family proceedings to be dealt with online. While I appreciate that the aim of the legislation is to be permissive, with the details to be delegated to the OPRC, I am concerned that no limits are set out in the primary legislation in relation to the appropriateness of online processes within the family court. At Second Reading, I raised concerns about the appropriateness of full video hearings in the family court. The president of the Family Division has said that, in the vast majority of cases, face-to-face hearings would normally be required for contested cases involving oral evidence, multiparty cases concerning litigants in person, or any cases concerning children. It can be the case that not all participants have to be present in court. I know that is fairly common practice in other parts of the country, depending on the distance to be travelled, when turning to the family court. But the general expectation should be that anything to do with the family jurisdiction—any contested matter—should be held in person and not online.

I beg to move.

[Lord Beecham]

My Lords, I refer to Amendments 7 and 8 in this group. I suspect that the inclusion of a reference to criminal justice proceedings is otiose; I hope so. No doubt the Minister will confirm that, in which case I will not press the issue; it would be entirely unnecessary, as indeed it should be.

There is a concern about possession claims for homes. We in your Lordships’ House are all aware of the great pressure on the housing sector and the vulnerability of a great many people in private rented accommodation in particular. It seems sensible that they should not be included in the general proposition of reverting to digital processes, because I suspect they are the least likely to be able to cope with that way of proceeding. I hope the noble and learned Lord will give that some further consideration, although he may not necessarily respond one way or the other today. Given the state of the housing market and the well-known difficulties experienced by so many tenants—and the difficulties they would have in proceeding under the provisions of the Bill, particularly in the absence of legal aid and advice in so many parts of the country—it would be wrong to include them in a system which would effectively give them no recourse to advice and support.

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[Lord Keen of Elie]

It is intentionally broad. Again, this is not going to proceed without the input of the judiciary, in particular the Lord Chief Justice, and without application to the formulation of rules of a committee with expertise in all these areas. I suggest it would be counterproductive to introduce at the outset statutory limitations on the operation of these simplified procedures. That is an unnecessary straitjacket, given the way the legislation is formulated and how the simplified Online Procedure Rules will be introduced, not only by the Executive but by the judiciary and relevant committee. In these circumstances, I invite the noble Lord to withdraw his amendment.

[Lord Beecham]

Did the Minister imply that it would be possible to bring forward provision to include housing, presumably by secondary legislation? Is that what he has in mind? If so, would it be an affirmative or negative resolution?

[Lord Keen of Elie]

To clarify, I believe I said that many housing issues are currently governed by the Civil Procedure Act 1997. They are therefore subject to civil procedural rules and could, in turn, be subject to rules introduced by the OPRC for digital access. There is no present intention to address that in the context of housing. I went on to add that, at present, there is an online procedure for some forms of housing claim, such as possession claims, which can be made through the relevant website. I emphasise that housing cases fall within the wide remit of this legislation, but there is no present intention to embrace them within the OPRC.

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[Lord Woolf]

My Lords, I hope it will not be inappropriate, in view of the elegant and powerful speeches already made, for me to say these few words. I was a party to the concordat, the importance of which was that it established the new relationship between the arms of government, to which the noble and learned Lord, Lord Mackay, referred, until the Constitutional Reform Act 2005. I hope it will suffice to say that everything said in support of this amendment seems four-square with what was said in the concordat, indicating when the consent of the Lord Chancellor or that of the Lord Chief Justice would be required. These were heavy burdens that my successors as Lord Chief Justice had to carry in consequence of, first, the concordat and then the Constitutional Reform Act. It would be so easy to allow legislation of this sort to undermine the spirit of the concordat and the provisions of that Act by creating a precedent, which could be pointed to subsequently, indicating that the clear distinctions of relevant situations where the consent of the Lord Chief Justice should be required are not as they were previously understood to be.

[Lord Beecham]

My Lords, I simply add that the crowded Benches behind me will support the amendment. We are entirely in sympathy with all that has been said.

[Lord Keen of Elie]

My Lords, I begin with a simple point of clarification, although it may be that confusion reigns only in my mind. Where the Bill refers to the Secretary of State, it refers to the Secretary of State for BEIS, because of his responsibilities with regard to employment tribunals. Where it refers to the Lord Chancellor, that reference includes of course the Lord Chancellor’s appointment as Secretary of State for Justice. I say this lest there be any confusion about the two references in the Bill.

As I indicated at Second Reading, we have a number of concerns about the implications of these amendments. The Bill has been drafted precisely to ensure that the existing constitutional balance is protected. I will elaborate on that in light of some observations made by the noble and learned Lord, Lord Woolf, with reference to Amendment 28, which concerns the Minister’s power to direct the committee to include provision in the online procedure rules to give effect to a specified purpose.

I stress that this is not a novel power, nor would it apply only to the Online Procedure Rule Committee. The same power already features in the legislation which underpins the committees for the Civil Procedure Rules, Family Procedure Rules and Tribunal Procedure Rules. That is because Clause 8 reflects similar provisions in Section 3A of the Civil Procedure Act 1997, Section 79A of the Courts Act 2003 and Part 3 of Schedule 5 to the Tribunals, Courts and Enforcement Act 2007. That power was one agreed by the then Lord Chancellor and Lord Chief Justice under the concordat of 2004 and given effect in the Constitutional Reform Act 2005. The safety valve within the 2005 Act is Section 5, which confers upon the Lord Chief Justice the statutory right to make a report to Parliament if he is concerned about an issue relating to the administration of justice. I emphasise that this is not a novelty. The provisions of the Bill were drafted to reflect the existing statutory underpinning of the other civil rules committees with regard to civil jurisdiction, family jurisdiction and tribunal procedure.

In turn, Amendments 29 and 30 seek to ensure that the Lord Chief Justice concurs before the Lord Chancellor can make regulations under Clause 9. Clause 9 requires consultation with both the Lord Chief Justice and the Senior President of Tribunals, the latter in the context of tribunal procedure. Again, we suggest that this is as it should be. It is anticipated that, as in the past, these regulations would be used to make minor revisions to legislation; for example, to regularise and modernise terminology to match that in the new rules and ensure that the rules operate as intended. In other words, they will be used to make operability amendments. It is in these circumstances that consultation is considered to be the appropriate approach.

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Moved by

[Lord Beecham]

15: Clause 4, page 4, line 16, leave out paragraph (c) and insert—
“(c) one of each of the following—(i) a barrister in England and Wales, and(ii) a solicitor of the Senior Courts of England and Wales, and(iii) a legal executive, and(iv) a magistrate of England and Walesappointed to the Committee by the Lord Chancellor.”

[Lord Beecham]

My Lords, this amendment would extend somewhat the involvement in the committee that the Lord Chancellor will appoint across the relevant professions and service. It seems sensible to reflect the breadth of the legal service and the legal community. It would not be hugely burdensome in numbers. It seems to make sense. I hope the Minister will feel able, if not today then subsequently, to accept that this would be desirable.

I do not think I need to elaborate. The amendments are clear enough about the intention and the numbers to be involved. I hope the Minister will at least look at this again and recognise that it is in the interests of the changes that are about to be made to accept these suggestions. I beg to move.

[Lord Judge]

I will make just one small comment. If the appointments of these additional people are in the hands of the Lord Chancellor, he will end up with a majority of six to two on the committee. If the amendments are to be pursued, I respectfully ask that the concurrence of the Lord Chief Justice to the appointment should be required.

[Lord Keen of Elie]

My Lords, it appears that we might avoid both potential problems if we retain the present membership of the proposed committee. Before I turn to the detail of the amendments, it may be helpful if I make some general remarks about the committee’s composition. We certainly support the need for a small, focused and agile committee responsible for making new court rules that are simple, tailored for the benefit of ordinary users and, therefore, understandable. In his final review of the civil justice system in 2016, Lord Justice Briggs as he then was anticipated—I accept—a very differently constituted committee of experts from across various disciplines reflecting users’ needs. A smaller committee allows the standing members to increase and adapt their membership quite easily every time they consider a different topic. That therefore allows them access to a greater spread of expertise and to ensure the rules are made by those who have an understanding of how they are most suited to the user.

The purpose of Amendment 15 from the noble Lord, Lord Beecham, is to add legally qualified members, or members with legal experience, to the committee. As I have indicated, we consider that there is considerable benefit in beginning with a small committee, but one where the membership and expertise can be adapted over time. We consider that adopting the amendment would create issues about who is appointing the membership of the committee and whether there was a disproportionate power of appointment between the Lord Chancellor and the Lord Chief Justice.

I remind noble Lords that the intention is that the online procedure will apply in the first instance to civil money claims up to the value of £25,000, but over time we of course want to widen the procedure’s scope so that it covers the civil procedures, potentially including family and tribunal proceedings. It would be difficult to see the value of insisting on an expanded legal membership at this stage without first gauging the overall value that could be addressed by bringing in specific experts in the area of specific proceedings being considered. In addition, as I said, Clause 6 would allow for the committee’s composition to be changed to incorporate particular experts or disciplines and particular areas of expertise if or when the committee came to address such issues as tribunal jurisdictions or some forms of family jurisdiction.

For similar reasons, we are not persuaded of the need for Amendments 16 and 17, which seek to add an additional member with IT expertise. Again, the argument is the same. Under Clause 6, the committee will have the ability to bring in additional expertise as and when it requires it, and that flexibility is seen as a considerable benefit.

In Amendment 18, the noble Lord, Lord Beecham, seeks to ensure a gender balance on the committee. Of course we support the wider aim of ensuring greater diversity among all senior appointments to public bodies but, to be truly effective, public bodies must bring together a mix of people with different skills, experience and backgrounds. The obligation with regard to appointment is always guided by the code of practice of the Office of the Commissioner for Public Appointments, which sets out the design principles and procedures for appointments with diversity in mind, including gender diversity. It is by these means that we can preserve accountability for diversity. That process is monitored by the Commissioner for Public Appointments, and is subject to a published report each year. We are certainly not complacent about the idea of gender representation at all levels on all committees, but we think it better that it is seen through the wider lens of the Equality Act, which protects a broader range of groups, not just gender. At this stage, we are not inclined to accept that there should be an express provision on gender balance.

Amendments 20 and 21 deal with the number of committee members required to agree the rule changes. Amendment 21 from the noble Lord, Lord Beecham, would increase the number needed from three to five, and that would perhaps be a consequence of an extended membership. Amendment 20 from the noble Lord, Lord Ponsonby, would require a simple majority with regard to matters, rather than just the current number of three. I can see that there may be an advantage in having some flexibility here, if we look forward to the point where the committee decides to exercise the powers under Clause 6 and extend the numbers in the committee to embrace further areas of expertise. I would like to give further consideration to that point in light of that, because it seems that underlying this there is a point that we should address before Report. With that, I invite noble Lords not to press their amendments at this stage.

[Lord Beecham]

Does the Minister accept the possibility that if there is not a requirement to reflect gender balance, there should at least be a requirement to report on it periodically, as part of the provision of the Bill?

[Lord Keen of Elie]

Respectfully, it appears that there is already statutory provision for just such a report, because the appointments will be monitored by the Commissioner for Public Appointments, who will make an annual report for that very reason.

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Moved by

[Lord Beecham]

19: Clause 6, page 7, line 17, leave out “negative” and insert “affirmative”

[Lord Beecham]

My Lords, this is a fairly simple amendment requiring there to be an affirmative resolution, rather than a negative one. We are perhaps overdone with negative procedures. I suggest that this is an important area which should be subject to the affirmative process instead of the negative one.

[Lord Keen of Elie]

My Lords, might I be permitted to respond with equal brevity to the noble Lord’s proposed amendment? Our concern is that this should be a small committee which has the ability pursuant to Clause 6, for example, to extend its membership to other areas of expertise, and that it should be able to move relatively swiftly to do that. That is why, in this area and others covered by amendments including Amendments 26 and 27, we embrace the negative procedure. We are concerned that, if we introduced the affirmative procedure, it would be necessary to take the matter through both Houses of Parliament, with the potential for significant delay from time to time. In fact, we simply want to effect new draft rules following consultation with the Lord Chief Justice. Regarding the consultation provisions as well, we suggest that the negative and not the affirmative procedure is appropriate here.

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Moved by

[Lord Beecham]

22: Clause 7, page 7, line 30, at end insert—
“(za) must be piloted by the Government in a period determined by the Online Procedure Rule Committee before they may be fully and permanently implemented,”

[Lord Beecham]

My Lords, there are two or three amendments in this group that look to the Government to pilot the processes embodied in the Bill. That seems a sensible way of dealing with these changes. Amendment 24 would require the Minister to publish a written statement on the progress and findings of the pilot scheme. These are major changes in our legal system, so it is necessary to look carefully at how they are working before deciding that they will remain part of the system. This is a major change, and it would help if the Government accepted the notion that progress will be reviewed and an opportunity given to consider how it is working. Further, the procedure should be an affirmative resolution.

[Lord Marks of Henley-on-Thames]

My Lords, our Amendments 31 to 33 in this group require a statutory review between three and four years from the date on which the Bill becomes law. They also require a report to Parliament from the appropriate Minister, prepared in consultation with the Lord Chief Justice and the Senior President of Tribunals, both of whom will be able to contribute independently to the report, should they wish to. The Minister’s answer to these suggestions to date has been that the Government will carry out a post-legislative review, so there is no need to incorporate a requirement for such a review into the Bill. Once again, I regret that we do not agree. Non-statutory promises have a nasty habit of being fulfilled well outside the time limits promised. Indeed, such reviews often seem to have as many delays as Crossrail. Statutory time limits, while not fool-proof, at least concentrate the minds of Ministers and officials. Furthermore, without further primary legislation, they do not bind future Governments. In any case, the requirement to review and report guarantees a certain thoroughness to the review and resulting report that might not otherwise have existed.

We regard as particularly important the requirement for the Government to consult the Lord Chief Justice and the Senior President of Tribunals in preparing the report and to have the opportunity to report to Parliament. That will guarantee that a judicial perspective is brought to bear on the review and formal report to Parliament. In this case, we regard the combination of judicial and political input as very important. Reviewing the operation of the legislation makes that combination important, as with making the changes and decisions that we discussed in the group of the amendments of the noble and learned Lord, Lord Judge. We also support the amendments in this group on further piloting these online procedures. Careful piloting and a staged introduction could avoid costly mistakes and improve the procedures as they are developed. Both providers and users will be able to see and report on what works and does not.

[Lord Keen of Elie]

I first turn to Amendments 22 to 24, tabled by the noble Lord, Lord Beecham, and address the issue that the rules should be piloted by the Online Procedure Rule Committee before they come into effect. I will then come on to Amendments 31 to 33, moved by the noble Lord, Lord Marks, and supported by the noble Lords, Lord Beith and Lord Pannick, and the noble and learned Lord, Lord Judge.

I assure the noble Lord, Lord Beecham, that when services are introduced, they are already subject to ongoing testing. HMCTS is rapidly testing and adapting new online services, based on user feedback and service data. That is important because it ensures flexibility and improvements in practice and procedures that enhance access to justice. Piloted online services cannot be rolled out to the public more widely without such rigorous independent assessment carried out by the Government Digital Service, and then confirmation that they are fit for purpose. In addition, some projects are also being more formally evaluated through their development by HMCTS itself.

Reference was made to a number of piloted measures in the existing digital portal for debt actions. The difficulty is that, if we accept measures of the kind proposed in these amendments, we will add a layer of bureaucracy to the rule-making process beyond current practice, thereby reducing the flexibility to respond to user needs and technological changes. The Bill permits the use of practice directions, which can support projects through development before formal rules are set out in statute, so one does not have to go to a formal set of rules immediately; one can simply have a practice direction that assists the piloting of particular projects.

I mentioned before the example of online civil money claims and the pilot that went live in March 2019, which is underpinned by practice directions that require the consent of the Master of the Rolls and the appropriate Minister. Such a project worked closely with the judicial sub-committee to develop the pilot. I emphasise that there is already a clear process in place through which such proposed rules are tested, piloted and reviewed. To that extent, we consider Amendment 22 unnecessary.

Amendment 23 would again limit the flexibility of the OPRC to make the small, minor changes required to respond quickly to changes in user needs or perhaps new technology. It would add time and consequently cost to the development of the online process. We do not consider it appropriate to go down that route.

Amendment 24 would require us to publish six-monthly reports. We regard that as simply unmanageable given the number of pilots across the services that we are in the course of transforming. Again, there is the issue of cost, so we are not persuaded of the need for such steps to be taken.

Amendments 31, 32 and 33 would place in the Bill a requirement for a formal review of the Act to which the Lord Chief Justice and Senior President of Tribunals were able to contribute independently. Clearly, reviewing legislation which has been passed by this House is of great importance. That is precisely why the Government already require departments to carry out post-legislative scrutiny of all Acts within three to five years after Royal Assent. We therefore consider this amendment unnecessary because post-legislative scrutiny of this legislation will be conducted—I emphasise, will be conducted—within that timescale.

Regarding the reference to the Lord Chief Justice and Senior President of Tribunals, of course, their views are incredibly important and are taken seriously. There would be no question of us laying a report on this or other courts legislation without taking account of their opinions. Again, we consider the amendments unnecessary, understanding the importance of what underpins and has prompted them. I hope that, with these assurances, noble Lords will accept that the amendments are unnecessary and I invite them not to press them.

[Lord Beecham]

My Lords, having listened to the Minister, I am happy to withdraw the amendment.

Amendment 22 withdrawn.

Probation: Voluntary Sector

Lord Beecham Excerpts

Wednesday 5th June 2019 Lords Chamber

[Lord Keen of Elie]

My Lords, there is a determination to ensure that the voluntary sector is fully engaged in the future delivery of probation services. Indeed, although there are only 94 voluntary community or social enterprises delivering services in the current CRC supply chain, we know that there are many hundreds of such organisations that are either signposted by the present system or are available to be used, and we intend to go to them in so far as we can. As regards the future organisation of those services, we are in the process of gathering data on all staff across the probation system to inform our workforce planning for this new model.

[Lord Beecham (Lab)]

My Lords, this House debated the Government’s Offender Rehabilitation Bill, which was an early example of Chris Grayling’s ideological approach to policy and his limitless capacity to get things wrong—in this case, at the cost of over £400 million. Now, a year after a devastating report from the Justice Select Committee, in a belated decision the Government are abolishing the community rehabilitation companies, but why are they insisting, in effect, that the role of the National Probation Service is to contract out much of the service to private companies?

[Lord Keen of Elie]

The mixed-market model that we have engaged in has proved effective in a number of respects, and we continue to believe that that is the way in which to deliver services. Indeed, I notice that the noble Lord’s suggestion might well have the unfortunate result of excluding much of the voluntary sector.

Family Courts: Domestic Violence

Lord Beecham Excerpts

Tuesday 21st May 2019 Lords Chamber

[Lord Keen of Elie]

My Lords, it is intended that this will be an expert panel with representatives of the third sector, the judiciary and the Ministry of Justice.

[Lord Beecham (Lab)]

My Lords, I declare my legal interests as set out in the register. Law Society research confirms that the legal aid cuts of 2012 and the accompanying means test operate as a barrier to people in poverty—including victims of violence and abuse—claiming legal advice and representation, requiring them to represent themselves against their abusers. Will the Government ensure, via their review of the legal aid means test, that adequate support is available? Will they address the problem that in 61% of cases of domestic abuse, there are no separate facilities for waiting or for giving evidence by screen or video link?

[Lord Keen of Elie]

My Lords, the Government are concerned to ensure full access to justice, particularly in such delicate cases as those involving children and domestic abuse. The draft domestic abuse Bill was subject to pre-legislative scrutiny this morning and will come before the House in the foreseeable future.

Courts and Tribunals (Online Procedure) Bill [HL]

Lord Beecham Excerpts

Tuesday 14th May 2019 Lords Chamber

[Lord Beecham (Lab)]

My Lords, I refer to my interest as an unpaid consultant in my former solicitors’ practice, as recorded in the register, and to my less-than-complete mastery of the digital process. I may not be alone in that in your Lordships’ House. Clearly there is a case for an appropriate development of the use of technology, not least because of the pressures on the system, enhanced as they have been by the closure of many courts and the inconvenience thereby occasioned to litigants. But this must not be at the expense of access to justice, or indeed a further dilution of the provision of legal aid and advice.

Why have the Government chosen to go well beyond the recommendation of Lord Justice Briggs in the 2016 Civil Courts Structural Review that the online courts should be used for money claims with a value of up to £25,000? Given the number of potential cases across the legal system covering both courts and tribunals, and the diverse character of those cases and of the parties involved, should not the new approach be piloted before being rolled out across the whole country and the whole system?

While the Online Procedure Rule Committee will design the rules, with the requirement that at least three of its proposed five members support the proposed rules, they can be required by the Lord Chancellor to make rules, and he or the Secretary of State will be empowered to amend, reveal or revoke legislation where necessary and/or desirable to facilitate the making of rules. What process is envisaged for the exercise of such powers, and will change be effected through the affirmative procedure?

Given the wide range of application of the new procedure, why is the committee restricted to five members? The Civil Procedure Rule Committee has 16 members, the Family Procedure Rule Committee has 15 members and the Tribunal Procedure Committee has nine. Here a much smaller figure is proposed. Will the Government ensure that there is gender balance within the composition of the committee and its staff, and that the Bar and solicitors are represented, together with representatives from the advice sector and, as has been suggested this afternoon, from the judiciary itself? And will they look again at the suggestion in Lord Justice Briggs’s report that the membership of committees should include in relevant cases members with relevant skills such as engineering and IT? Given their declared intention for the committee to be independent, how will the Government exercise their power,

“to require the OPRC to make online rules to achieve the specified purpose”,

within a specified time? The Law Society points out that Clause 1(3)(d) refers to the use of,

“innovative methods of resolving disputes”.

What do the Government have in mind in that area?

Clause 1(6) and (7) authorise rules to provide for proceedings of a specified kind not to be governed by, or to cease to be governed by, rules, and instead to be governed by civil procedure and other existing rules. What consultation will take place and what criteria will be applied to that process?

Clause 3 allows the Minister by regulations to provide for the person initiating proceedings to choose between online and other procedures and rules. What consultations have taken place or will take place on this process? What role is there for the defendant in such cases? The clause also empowers Ministers by regulations to allow online procedure rules for excluded proceedings. What is the rationale of this provision? Can the Minister exemplify how it will work?

Why will regulations empowered by Clause 6 be made by the negative resolution process?

Clause 8 empowers the Minister to write to the committee asserting that he,

“thinks it is expedient for Online Procedure Rules to include provision that would achieve a specified purpose”,

which the committee has to make “within a reasonable period”. The Explanatory Note says that this,

“may be required in situations of urgency”.

Can the Minister exemplify such situations and indicate what would constitute a “reasonable period”? Will it be open to the committee to decline a request or amend any proposed change?

Will the powers of the Lord Chancellor in Clause 9 to amend secondary legislation to reflect the introduction of online procedure rules be made by the affirmative or negative procedure? I concur with the Law Society’s view that it should be the former, as others have suggested today.

There is a particular concern about the impact of the Bill on housing cases, an issue raised by the Housing Law Practitioners Association, to which Lord Justice Briggs responded in his report by asserting:

“Claims for possession of homes (even if accompanied by a money claim) should at least initially be excluded from the Online Court”.


He also stated that he was,

“persuaded that there should not be compulsory inclusion within the Online Court of the damages-only sector of these claims, particularly where fixed costs recovery still supports an economic model for CFAs”.

He added:

“I continue to see no reason why there should not be voluntary admission of these cases, where a tenant claimant so wishes”.


However, he added that he could not see,

“how these counterclaims could easily be brought within the Online Court if the possession claim is to be excluded”.

On enforcement, Lord Justice Briggs recommended that,

“urgent steps need to be taken to address the under-investment and consequential delays which clearly undermine the quality of the County Court bailiff service”.

Can the Minister indicate whether, and if so when, the Government intend to address this issue?

Clause 2 does not explicitly refer to housing cases but, in the light of Part VII of the Housing Act 1996, it would appear that they are included in the category of civil proceedings. Perhaps the Minister will confirm that that is the case?

Your Lordships will be aware that housing law is an area in which access to justice is problematic with, in effect, legal aid and advice deserts in many parts of the country enhancing the vulnerability of tenants. It is not unreasonable to question whether in this most sensitive area of the justice system reliance on a digital system is the right approach. What steps will the Government take to ensure that adequate support is available to tenants, many of whom will be vulnerable and unequipped to contest a claim for possession, and will they, and if so when, review the efficacy of the changes embodied in the legislation?

There is wider concern about the impact of the policy on people unfamiliar with the digital world. PCS, the Public and Commercial Services Union, shares this concern and avers that the changes are primarily driven by the 40% cut in the Ministry of Justice’s budget, and points to the fact that the Courts and Tribunals Service’s own staff survey revealed that 85% of its respondents regarded the new technology as having a negative effect on timeliness, with 81% averring that it interfered with their ability to give legal advice and ensure a fair hearing.

Finally, can the Minister assure us that the next move to modernise the justice system will not be to replace the judiciary and tribunals with artificial intelligence?

Services of Lawyers and Lawyer’s Practice (Amendment) (EU Exit) Regulations 2019

Lord Beecham Excerpts

Monday 18th March 2019 Lords Chamber

[Lord Beecham (Lab)]

My Lords, it is ironic that our departure from the EU, if it occurs, will necessitate an agreement with Switzerland, which of course is not a member. Can the Minister indicate the extent of the problem that the regulations seek to address? How many Swiss lawyers currently practise in the UK—my understanding is that there might be as few as 10—compared with EU lawyers, and how many UK lawyers do so in Switzerland? How do these figures compare with those of other EU states?

The regulations are described as resulting “in the short term” with parties avoiding,

“the costs of adjusting their business models”.

How long is this short term expected to be, and what is the estimate of the cost of adjusting business models?

Paragraph 12 of the Explanatory Memorandum avers that there are all of 10 Swiss registered European lawyers in England and Wales. How many is it estimated will be here after Brexit? The impact assessment states that clients seeking legal services from them will not be allowed to obtain them unless the lawyers are “permanently established in the UK”. How is that status to be established? How many are deemed to fit that description now—presumably there are 10—and how will that be judged in the future? What is the rationale of the provision that Swiss lawyers will have only four years after Brexit to apply for REL status? Why will Swiss lawyers with contracts be able to serve clients for 90 days a year for up to five years? Why just 90 days? Will they have to abandon their clients in the midst of cases, for example?

The impact assessment fails to live up to its title when it explicitly states that:

“The cost of this change cannot be quantified as no data exists showing the number of Swiss lawyers providing regulated services in the UK on a temporary basis”,


and that the,

“cost to regulators is not quantifiable”.

Can the Minister indicate which provisions of these regulations, if any, are quantifiable? What is the anticipated impact on UK lawyers practising, or seeking to practise, in Switzerland, given that they will have a four-year period to register or, if not yet in Switzerland, to apply to transfer to Swiss professional status? UK law firms will be able to continue to serve existing Swiss clients for up to 90 days a year for five years after Brexit subject to written contracts being in place before exit day. What is the estimate of the number, and proportion of the existing number, that Her Majesty’s Government envisage will do so?

The Law Society points out that there is no provision to allow UK law firms to operate in Switzerland under their current structures. What, if any, estimate have the Government made of the impact of this position? The society suggests that some firms will have to amend their corporate structure and that a future trade agreement with Switzerland will have to be negotiated. What, if any, plans do the Government have to deal with this eventuality? What estimate have the Government made of the impact of the changes on the international standing of UK legal services and the contribution they make to the standing of our legal services and to our economy?

[Lord Keen of Elie]

I am obliged to noble Lords. I think the answer to the question posed by the noble Lord, Lord Beecham, is that we are implementing an international treaty, and that is why these steps have been taken. However, to respond to the point made by the noble Lord, Lord Thomas of Gresford, no Swiss lawyers are registered with the Bar Standards Board. We understand that 10 are registered with the SRA, and that is where that figure comes from.

It is not necessary for Swiss lawyers coming into the United Kingdom to carry out temporary work to register and therefore it is not possible to monitor the number, because they are entitled to come in on a temporary basis to provide legal services. The period of four years reflects the fact that it is possible for a Swiss lawyer to transition into membership of the relevant professional body in the United Kingdom in under four years—I understand that at present it is three years—and therefore there is full allowance for that.

With regard to English lawyers practising in Switzerland, at the last count, which I think goes up to 2015-16, in the region of 236 lawyers practising in Switzerland full-time were English-qualified.

With regard to the future corporate structure of English firms operating in Switzerland, I would not venture a view as to what the precise structure would be in the future. However, from engagement with the major legal firms in England and Wales over the last year or so, it is quite clear that they have made provision in anticipation of our leaving the EU, with the consequent effect that that will have on the EU-Swiss agreements on which we rely. We can therefore be reasonably confident that their structures will be compliant with the requirements of Swiss law.

On the question of the international standing of our legal profession, we see no reason to doubt that it will be maintained after Brexit, nor any reason why the terms of the UK/Switzerland citizens’ rights agreement as implemented by this SI should in any way derogate or detract from the standing of our legal profession in England and Wales, and indeed in the UK as a whole.

In these circumstances, we consider that this is a relatively technical amendment to the existing provision that is being made in anticipation of our departing from the EU without a deal. Of course, in the event that the deal is implemented and we go into a transition period, the application of this instrument will be deferred until the end of that period. We will then determine at that time whether in fact we have in place the relevant free trade agreements with both the EU and Switzerland.

[Lord Beecham]

Before the Minister sits down, obviously I was throwing questions at him that he may not have been able to answer, so will he perhaps cover those that have not been answered in a letter to me in due course?

[Lord Keen of Elie]

I will consult Hansard. If it appears that there is a question that the noble Lord posed that is relevant to this instrument then I will respond.

Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) (No. 2) Regulations 2019

Lord Beecham Excerpts

Monday 18th March 2019 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, this is a necessary rectification of the earlier regulations. Subject to what has already been expressed, we have no objection to it.

[Lord Beecham (Lab)]

My Lords, I join my colleague in the House of Commons, and others in your Lordships’ House, in welcoming these amendments which meet concerns raised by family law practitioners, as mentioned in the Explanatory Memorandum. They were concerned about the prospective narrowing of the jurisdiction for financial remedies and the type of remedies which would be available.

This raises the question of what consultation took place before paragraphs 14 and 16 of the EU maintenance regulation were originally amended. To be fair, the Government have been persuaded by family law practitioners that the concerns raised were valid, hence the revised amendment in this statutory instrument, but surely adequate consultation in advance of drafting it would have avoided the need to amend it. What consultation, if any, took place? What assurances can the Minister offer that this scenario will not be repeated?

This is not quite the MoJ equivalent of the fantasy ferry projects subscribed to by the former Lord Chancellor, Chris Grayling, but it is rather disturbing. It comes, after all, only some seven weeks since the original regulations were approved by both Houses, and just over four weeks since they came into force.

The Law Society is content with the changes, which effectively revert to the relevant Hague conventions and some English law extant before 2011. I am glad that the Government have recognised the problem, just about in time, and made the necessary change. However, it underlines the need for proper consultation before laying new regulations to comply with the fate which appears to await the country.

[Lord Keen of Elie]

I am obliged to noble Lords for their contributions. As the noble and learned Lord, Lord Hope, observes, the supplementary instrument is distinguished by its brevity. Nevertheless, I can assure him that it has the effect indicated by making the deletion from the relevant provision regarding maintenance. That was raised with the Family Law Committee as well. We consider that this will be effective. I will look at the point he raises and will write to him if there is further elaboration and assurance I can give him on it.

Regarding consultation, this issue arose at a very late stage when we were proceeding with the principal instrument. It is a highly technical issue. Indeed, there is some uncertainty as to whether the principal instrument did in fact cover these issues. It therefore proceeded, but, in the light of the concerns that had been expressed, we consulted further with family law stakeholders and brought it to the committee’s attention. It was determined that we should, on any view, take the line—I was going to say “of least resistance”—that, come what may, there was no technical deficiency in the instrument in the event that we exited without a deal.

There was consultation with relevant stakeholders when the principal instrument was considered. Their response on these points came rather late in the day as far as we were concerned. The principal instrument therefore proceeded but I remind noble Lords that when I moved it I drew this point to the attention of the House quite specifically and said that we were giving consideration to a further instrument to address it. It has been at the forefront of our minds for some time. In the circumstances, I commend the regulations to the House.

Female Offender Strategy

Lord Beecham Excerpts

Thursday 31st January 2019 Lords Chamber

[Lord Keen of Elie]

This is a very important issue for us. In all cases where a female offender is in custody, we endeavour to ensure that birth does not take place within the prison system, but sometimes that cannot be avoided. We have extensive services for mothers and children up to the age of 18 months when it is necessary for them to be in custody—I emphasise the word “necessary”. When an offender is reaching the end of a short sentence, steps are taken to try to ensure that mother and child are kept together. However, of course this cannot be done in circumstances where there has been a serious offence that results in a mother being in custody for a lengthy period.

[Lord Beecham (Lab)]

The right reverend Prelate referred to the strategy envisaging greater use of residential and community services instead of custodial sentences. To what extent is that occurring? Are the Government still adhering to their policy of limiting funding of the strategy to £5 million over two years, replacing their previous plan to spend £50 million on five new prisons? If so, what is happening to the other £45 million?

[Lord Keen of Elie]

My Lords, there is an important shift in policy away from custody as a means of trying to resolve these issues. That is why we moved away from the proposal for five community prisons; we hope they will not be required. Instead, we have shifted the balance in the direction of community services. We will pilot such community residential services in five areas to see how they work. For that purpose, we have committed funding of up to £5 million over the next two years, but of course that will not be the end of the matter. We will address the consequences of the pilot in these five areas and see how we can take things forward from there.

Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019

Lord Beecham Excerpts

Tuesday 29th January 2019 Grand Committee

I hope that this covers all aspects of these provisions. I should be content to answer any queries. I commend the draft instrument to the Committee.

[Lord Beecham (Lab)]

My Lords, again, I am grateful to the noble and learned Lord for being clear and relatively concise about the matters he is taking through this Committee today. It was important that he should explain the Government’s approach in this statutory instrument and he has done so very well.

The first of these two statutory instruments is the one in today’s batch which appears to have raised the most concern. It is disturbing that no impact assessments were published until 24 January and even more disturbing that they contained next to nothing of interest. It is fair to say that the Law Society “broadly supports” the statutory instrument on the basis that,

“it would be inappropriate to unilaterally continue the existing mechanism in the event of no deal”.

The grammatical error is theirs, not mine. Can the noble and learned Lord indicate whether there have been discussions with the EU about the future position on this, or on any other basis?

The Law Society stresses,

“the scale of loss of international functionality in family law in the event of no deal”,

It points out that,

“the lives of UK and EU 27 citizens have become intertwined in the last 40 years”.

It goes on to cite five significant benefits enjoyed by UK families, the future of which are at risk.

These are: the regulations on mutual recognition of protection orders, which help the protection of victims of domestic violence or harassment across borders; the European enforcement order, which facilitates the enforcement of uncontested claims; the maintenance regulations facilitating cross-border payment and maintenance; and the Brussels II regulation, which allows mutual recognition of divorce orders and determines the jurisdiction for them in domestic cases in close collaboration with courts and welfare services on issues affecting children, including child protection and abduction. Finally, the system provides mutual recognition of contact orders, and the enforcement of orders such as, in effect, custody of access.

Without a deal, we would have to fall back on less comprehensive provisions. There are, however, a number of additional concerns. Although the Minister in the other place, Lucy Frazer, informed the Justice Select Committee that there is an agreement to apply current rules to cases ongoing on exit day, the Ministry of Justice has confirmed that there is no such guarantee that the EU states will do this—they will treat us as a third state, and it will depend on their own law. This raises the risk of a rush to the courts to secure a decision under the present regime, which would cause real difficulties in cost to our own system.

Alternatively, people may find that a case started under one set of rules will be concluded under another set, with consequential delay and at greater cost. If the new system is deemed by one party more likely to assist his or her claim, there might be competing petitions. Will the Government therefore be addressing these issues—at the very least, seeking to ensure that the current rules will continue to be applied in all cases begun before Brexit?

I understand that the EU has issued a notice saying that only orders that should have been registered in the relevant member state would be recognised. There is also concern that the instrument, as drafted, could mean that a prenuptial agreement that is the subject of negotiation at the date of Brexit may not be upheld. We are dealing with issues potentially affecting large numbers of people, with 1 million British citizens living in the EU, and 3 million EU citizens living in the UK. The Bar Council points out that there are currently as many as 16 million cross-border family disputes in the EU, 140,000 international divorces and 1,800 cases of child abduction. What is the Government’s estimate of the number of cases of these three kinds affecting UK citizens, and EU citizens resident in the UK? I do not anticipate that the noble and learned Lord will have that information today, but I am sure he will convey it after today’s events.

The Council points to two EU instruments that impact significantly on our family law. One is on jurisdiction, recognition and enforcement of decisions in matrimonial cases, parental responsibility, and crucially, on international child abductions. The other deals with maintenance, including child maintenance. But the Bar Council cites a range of other benefits, including the protection of victims of domestic violence and forced marriage protection orders, together with a streamlined process for enforcing uncontested claims—for example, where the parties agree an out of court settlement.

While departure from the EU without a deal would not affect UK law, the Bar Council points to the risk of uncertainty, duplicate court proceedings, possible problems with enforcing UK court decisions in the EU, and significantly, costly pressure on an overstretched court system here. There are possible alternatives, which the Bar Council cites, under the Hague and Lugano conventions. But these are not, apparently, without problems. For example, we would have to join the EFTA or secure the agreement of all Lugano state members to adopt those systems.

There are also problems over financial provision for children. For example, these will be made only where the child and its resident parent live abroad, and the non-resident parent lives in England and Wales—whereas now it is the other way round. Should not the position be as it was before? As it stands, children living in the UK with fathers in the EU are likely to lose out. Further, it will be possible for the court only to make an order for periodical payments and lump sum or property orders.

--- Later in debate ---

[Lord Beecham]

I am grateful to the Minister. He cites the difficulty with the restriction of the powers of the European court. Could that be addressed, not as part of a no-deal situation, but in the event of a negotiated deal? I assume that it would, but it would be welcome to have that on the record.

[Lord Keen of Elie]

I am not in a position to say what will or will not be addressed in the context of negotiations that are not yet under way, and that are pursuant to a political declaration that is attendant upon a withdrawal agreement that is not yet an agreement. So I am reluctant there. I observe, however, that it would be necessary for the EU to amend the relevant directive. It would have to amend it quite significantly to afford that benefit. No doubt parties will bear in mind the potential benefits of such an order going forward.

There is only one other matter that I will mention. The noble Lord, Lord Beecham, referred to me meeting the Resolution Foundation—in fact, it was my officials who met it, not me, to be clear on that. With that, I commend this draft instrument to the Committee.

Mutual Recognition of Protection Measures in Civil Matters (Amendment) (EU Exit) Regulations 2019

Lord Beecham Excerpts

Tuesday 29th January 2019 Grand Committee

[Lord Keen of Elie]

That is entirely right.

[Lord Beecham (Lab)]

My Lords, as we have heard, this statutory instrument has the effect of preventing UK courts from providing similar protection measures and certificates to secure the recognition and enforcement of their judgments in the EU while, paradoxically, recognising such measures and certificates issued by the EU courts. This is extraordinary. There is not an impact assessment as far as I know—if there is I have missed it—and no indications as to what steps will be taken to ensure reciprocity by the EU on this subject. The noble and learned Lord mentioned that possibility en passant without substantive clarification.

The Law Society recommends that there should be an explicit clarification that protective measures issued in the Scottish and Northern Irish courts will be recognised in England and Wales. Perhaps the noble and learned Lord will deal with that when he replies to the debate.

The Secondary Legislation Scrutiny Committee has recommended that this SI should be upgraded to an affirmative, stating:

“To allow UK civil courts to issue certificates post EU-exit would, potentially, mislead protected persons as to the recognition and enforceability of their UK issued protection measures in EU Member States post exit potentially placing them at risk”.

That sounds significant and I wonder why the Government have chosen to adopt the procedure they have rather than make this an affirmative, given the potential implications identified by the Secondary Legislation Scrutiny Committee. It points out that it is unclear what measures would be taken to ensure UK judgments would be recognised after Brexit and that there is an assumption that the EU states will not respect civil protection measures issued in England and Wales. Can the noble and learned Lord confirm that?

Finally, there is a question about the potential cost to the UK Government, the courts and the police of enforcing EU-issued protection orders, which will still be valid, while ours will not be valid there. It looks one-sided: the cost will fall on us as a nation because contrary positions have been taken up. Can the noble and learned Lord clarify that?