Crime and Courts Bill [HL]

Lord Elystan-Morgan Excerpts

Monday 28th May 2012 Lords Chamber

[Lord Elystan-Morgan]

My Lords, this has been a most excellent Second Reading debate. I, like so many other Members of the House, I am sure, have found it a most enriching and educating experience. It is yet again a case of a Government bringing in at least one miscellaneous provisions criminal law Bill a year. I think this must be true over the past 25 years, possibly even longer. On previous occasions I have been irreverent enough to suggest that some day we should have a Bill of Rights and a written constitution, and that the obverse of that Bill of Rights should be that a Government should be allowed only one miscellaneous provisions criminal Bill every two years. That was an academic point when made in earlier years. It may now be much more relevant, in light of the fact that Clause 2 of the House of Lords reform Bill has been demolished by the Richard committee and that there may well be a unanimous view that only a written constitution can prevent two elected Houses committing mutual strangulation.

Be that as it may, at this late hour I will confine my remarks to Clause 17. As the House will know that clause deals, first, with the creation of a single, unified county court for England and Wales and, secondly, the creation by subsection (3) of a family court. I was most interested to hear what the noble and learned Baroness, Lady Butler-Sloss, said about her late brother Michael and his most progressive and pioneering views, which he articulated in the early 1980s, in relation to a family court.

On the question of a county court, doubts have been raised as to exactly what is achieved by this. The county court has a fascinating history. It is of Anglo-Saxon origin, probably predating the Norman conquest by a couple of centuries, but it is a very different body from a criminal court as such, dealing with criminal and civil matters. Indeed, it was almost rendered unnecessary and irrelevant by the assize system of Henry II in the 12th century. The County Courts Act 1846 created a small claims court, something entirely different from the earlier county court. It was a very modest development, and in the 176 years since then it has grown out of all proportion and beyond all imaginations.

That is the point that I make in relation to whether there should be unification. The strongest claim for bringing together the 170 individual courts—this rich patchwork quilt of little fiefdoms—into one court is brought about more than anything by the fact of the tremendous development that there has been in that court in the past 20 or 30 years. Thousands of heavy, complex cases, which normally would be heard in the High Court—the High Court would never be able to handle anything like that with its present membership—have been successfully handled by the county court, in many cases by circuit judges sitting as deputy High Court judges, but in many cases by ordinary circuit judges. Therefore, one has to take that very much into account.

The noble Lord, Lord Thomas of Gresford, asks the question of exactly what it will achieve—what is the added value? It seems to me that one can put the case in the following fairly balanced way. There are obvious advantages to using the human and material resources of those 170 courts to the best possible effect but there are two very substantial difficulties and dangers. We had a cull of the county courts in England and Wales some two years ago. I forget exactly how many were lost but dozens disappeared.

Under Schedule 9, which deals with this particular reform, the Lord Chancellor will have massive powers to decide which county courts exist or not. He will decide where this conjoined, unified court for England and Wales will sit, and there may well be a further cull. I appeal for the particular consideration of rural areas, which the noble Lord, Lord Thomas of Gresford, and I know very well, where the travelling distances involved for people who do not have private transport are so immense—very often half the day is taken up with two or three bus or train journeys—that one has to take into account that justice will be denied to people who live in those areas unless one maintains broadly the structure that we have at the moment.

One other matter is illustrative of what can happen with centralisation. It happened two or three years ago, when the Lord Chancellor decided that all bulk issues should take place through the Salford County Court. This meant that hundreds of thousands of processes were commenced there on behalf of bodies that were of national stature. The effect of that on the viability of other county courts could be immense, making any profit and loss trading account considerations largely irrelevant. There was no consultation at all with the Welsh judiciary, local government or the managers of county courts. It should never have been done in that way. If it is humanly possible in some way to revisit that situation, I will be very glad to see it dealt with in a fair and balanced way.

I come now to the question of the family court. Yes, this development has been waiting at our door for a very long time. I have no doubt that it is to be welcomed. I do not think it revolutionary. As a circuit judge for many years, dealing with cases that had commenced in the county court, I found it easy to send them either up to the High Court or down to a magistrates’ court. There is nothing revolutionary in this at all, but again there is the power of the Lord Chancellor to decide exactly what shall be heard at which courts and at what level. Those powers are very considerable.

I end with the obvious point that the setting up of a family court creates a new forum but does not deal with the dozens of issues now coming to the boil in relation to family matters. I refer in particular to the Munro report, the Narey report and the remainder of the Northcroft report. Dozens of pioneering and progressive decisions have to be made. When the Minister comes to sum up the debate, I would welcome some indication as to what the timetable might be. I pay tribute to the Government tonight for having examined so many of these major reforms in a sensitive and careful way. It would be entirely wrong to tack any of them on to latter stages of the Bill. However, I would like some idea of the order of priority and the possible timetable.