Judicial Review and Courts Bill
Lord Wolfson of Tredegar ExcerptsThursday 31st March 2022
(2 years, 6 months ago)
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Lord Ponsonby of Shulbrede (Lab)
My Lords, the Labour Party supports the amendment from the noble Lord, Lord Anderson, to remove the statutory presumption and make it clear that judicial remedies should be restricted in this way only in exceptional circumstances. The clause’s effect would be for courts to have less power to provide redress or to compensate those affected by past uses of the unlawful decision. At first glance, that might seem quite a small change to judicial review, but the effects, we believe, would be chilling.
There is widespread opposition to the clause, and the noble and learned Lord, Lord Etherton, quoted a number of the well-respected groups who oppose it. The noble Lord, Lord Marks, cited in particular environmental groups that are worried about the potential effects of the Government’s proposals. I listened very carefully to the noble Lord, Lord Faulks. It is my understanding that the Independent Review of Administrative Law did not recommend prospective-only remedies; it did not recommend presumption for suspended quashing orders; it did not recommend imposing on the courts a list of factors to determine their use; and nor did it recommend ouster clauses. Even the Government’s own consultation paper conceded that a prospective-only quashing order would impose injustice and unfairness on those who have reasonably relied on its validity in the past.
Suspended and prospective quashing orders offer delayed and forward-only remedies. Such remedies could allow environmentally damaging activities to continue in the period between a contested decision and the taking effect of a suspended or prospective-only quashing order.
I listened to the debate with great interest. It was particularly interesting to hear senior lawyers and former judges disagreeing on the points which we have just heard. The noble and learned Lord, Lord Judge, as is typically the case when he speaks, very simply explained his perspective. I think his point was that judges already have broad discretion. They do not need a presumption. A presumption is the only guidance put in the Bill and it is not necessary. He went on to laud the huge benefits we have seen through judicial review and seemed to think that the guidance of the word “presumption” in the Bill would be disproportionately influential, if I may put it like that. That was contested by other noble Lords, including the noble Lord, Lord Sandhurst, but surely if that serves as guidance in the Bill, it will be followed unless there is good reason not to—that is the way I understand it.
So we will certainly support the amendment in the name of the noble Lord, Lord Anderson. We will also support the noble Lord, Lord Marks, if he chooses to press any of his amendments to a vote. We see the amendment from the noble Lord, Lord Anderson, as a compromise amendment that is more in the spirit of the recommendations of the independent review. Nevertheless, the more profound points made by the noble Lord, Lord Marks, are views which we would support if he chose to press his amendments to a vote.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, I begin by wishing the noble Lord, Lord Anderson, well and the noble Lord, Lord Pannick, a safe trip home.
This clause aims to reform remedies on quashing orders in judicial review proceedings so that more flexibility is available to the courts. As my noble friend Lord Faulks noted in Committee, the key for the Independent Review of Administrative Law was that there should be some flexibility to stop some of the “hard edges” that can arise with a quashing order, which operates ab initio, such that the decision is struck down with retrospective effect. This clause is designed to do just that.
I am grateful to the noble and learned Lord, Lord Judge, for his kind words—dare I say that I wish his cat well?—but I confess that I think he expressed the reasons for the remedial flexibility better than I will. I shall come to the presumption point on which we regrettably differ a little later.
The proposed effect of the clause is twofold. First, it allows for the effects of a quashing order to be suspended, or delayed, for a period. Secondly, the clause enhances the flexibility of the court in allowing it to decide whether the retrospective effect of a quashing order should be removed or limited—that is what we are calling a prospective quashing order. As a number of noble Lords referenced, both in Committee and in indeed in print last week in the Times law section, the noble and learned Lord, Lord Brown, who has not participated for reasons which have been explained, has set out clearly the arguments for this additional remedial flexibility. The way he put it in Committee, where he said that Clause 1 confers on the judiciary a power
“to do justice not just to the claimant in a particular case but on a wider basis”—[Official Report, 21/2/22; col. 57.]
really captures what the clause is intended to achieve.
Against that background, I come to Amendments 1, 2 and 3 in the name of the noble Lord, Lord Marks, which would remove prospective-only quashing orders. The noble Lord made a point which has been made before in this regard, which is that there could be situations where a prospective quashing order could cause significant injustice if used incorrectly. The short answer to that point is that we are not forcing the court to use these orders in any case. Just because a power is capable of being exercised, it does not follow that it will be used inappropriately. That is the short answer to the tax case example. It is the answer I gave in Committee, and I stand by it. I say respectfully that I do not think that that sort of example proves any wider point of principle; it is merely an example of a case where this particular remedial order would be inappropriate—in which case the court would not use it. I suggest that that is a complete answer to the tax case example.
The principle of the matter was also covered in this debate. Where we have reached essentially a disagreement is on the constitutional propriety of a court deciding that an unlawful action should nevertheless have some effect and be treated as if it were valid. The short point there is that a judge does not need to go outside their remit of doing justice to the claimant and to the public interest in deciding to use a prospective quashing order. I set out in Committee how such an order could deliver a much fairer and appropriate result in a range of circumstances. I invite the House to consider whether there is a principled distinction between a suspended order and a prospective order. I suggest that the matter comes down to this: you are either in favour of remedial flexibility or you are not. Both proposed new remedies seek to give the courts remedial flexibility. As I shall mention later in the context of Canadian jurisprudence, what we see there are strong conceptual links between the suspended order and the prospective-only order.
Amendment 4 would remove subsections (9) and (10), known as “the presumption”, the intended effect of which is to ensure that the courts will use either prospective or suspended quashing orders if—and this is an important “if”—doing so would provide adequate redress, and unless the court considers that it has “good reason” not to do so. We have heard in this debate good examples of where these remedies would be useful. Against that, two arguments are put with regard to the presumption.
The first argument is that presumption is harmful because it impinges on judicial discretion, and the second is that it is entirely unnecessary because it does not constrain the court in any material manner. The court will use these remedies anyway when it wants to do so. The first point, which is obvious, is that both those points cannot be right: they are materially inconsistent. If I may so, respectfully, only the noble and learned Lord, Lord Etherton, could have managed, with his customary skill, to put both points against me in the same speech. They are inconsistent; I will, nevertheless, take them in turn.
First, I do not accept that the presumption is in any way dangerous or harmful. It is, I repeat, a low-level presumption. The presumption applies only, according to subsection (9) of the new clause inserted by Clause 1,
“unless it sees good reason not to do so”;
the court does not have to use these remedies. Therefore, I respectfully disagree that there is any attack here on the rule of law. Indeed, to respond to the point made by the noble Baroness, Lady Jones of Moulsecoomb, the effect of these new remedies—as I think I said in Committee—might be that the Government lose more judicial reviews, because the court might be more prepared to interfere in circumstances where the consequences of the court’s ruling is not a complete ab initio uprooting of the decision. Therefore, far from limiting judicial review in favour of the Government, if anything, this actually helps applicants in their judicial reviews against the Government.
The other argument, that it is unnecessary, does have more force. Here I come back to the point made by the noble and learned Lord, Lord Judge. We heard an example from the noble Lord, Lord Faulks, about washing powder. Dare I say that what follows now is not meant to be “soft soap”, if I can continue that metaphor? The noble and learned Lord, Lord Judge, said that my argument on this point was the least attractive argument that I have ever made either in the court of Parliament or in the Law Courts. I am not sure that he appreciates just how high a bar he set by that test.
The purpose of including a low-level presumption is to do just that: it is to nudge the court to consider and use these new remedies where they are appropriate, and to build up a strong body of case law to increase legal certainty. In Canada, as I mentioned earlier, there are the Schachter categories, which have established guidelines for the use of suspended quashing orders. Their use actually encompasses what we would call prospective quashing orders as well. We envisage that this presumption in subsection (9) will nudge the courts into that more rapid accumulation of jurisprudence.
I think that if I were to say any more, I really would be repeating arguments with which the House is now familiar. For the reasons that I have set out, I invite the noble Lord to withdraw his amendment.
Lord Ponsonby of Shulbrede (Lab)
My Lords, we strongly support Amendment 5, moved by the noble and learned Lord, Lord Etherton, which is really an alternative Clause 2. It offers a much improved and fairer alternative to the Government’s proposal to remove Cart reviews entirely. Cart judicial reviews should not be abolished. These are most often used in serious asylum and human rights cases. Cart is a vital safeguard. There is already a high threshold for bringing them and the proposed saving is tiny compared with the human cost of abolishing them.
There are two principled points to make. The first concerns the constitutional role of the High Court in guaranteeing justice in a tribunal system, and the second concerns the constitutional role of the High Court as the guarantor of the lawfulness of any of the acts in any public body. The noble and learned Lord, Lord Etherton, gave a forensic examination of the figures. I was writing down some of his numbers. The central point was to cast doubt on the benefit which the Minister claimed in Committee.
The noble Lord, Lord Faulks, described the amendment as a fudge. The noble Lord, Lord Marks, described it as a compromise, which I prefer. Many cases come before the court. I recognise that a relatively large number of them are unmeritorious. As I mentioned in Committee, a number of legal advisers who sit in the magistrates’ court go on to work in the High Court—it is a sort of career progression. They will look at those cases when they prepare for the judges to examine the papers. They have told me that a lot of the cases that they deal with are, in their view, unmeritorious, although they use less diplomatic language. Nevertheless, the route is still there. The High Court is the highest court in the country and the compromise put forward by the noble and learned Lord, Lord Etherton, retains that stamp of approval through his proposed amendment, so we support it.
My Amendment 6 would require the Lord Chancellor to carry out and publish a review of the operation of the Cart judicial provisions within Clause 2 not more than two years after the passing of this Bill. The noble Lord, Lord Faulks, said that he thought that this may be an expensive and fruitless exercise. I will not be moving this amendment to a vote. Part of its purpose is to ask the Minister to explain how the Government will monitor the operation of the JR system, including this element of it, because the central point is to retain confidence that the system is working adequately. It is to that end that I tabled this amendment.
Lord Wolfson of Tredegar (Con)
My Lords, a Cart judicial review is a challenge of a decision of the Upper Tribunal to refuse permission to appeal a First-tier Tribunal decision. A Cart judicial review therefore gives the losing party another—or yet another—chance to challenge a decision to refuse permission to appeal, this time by way of judicial review to the High Court, which then opens a further route to the Court of Appeal if permission for the judicial review is refused by the High Court.
The long-established precedent in our judicial system is to have two appeal tiers and for a case to be considered for permission to appeal by two different judges. This is seen with the First-tier and Upper Tribunal system that we have. In this example, the applicant will have lost in the First-tier Tribunal, will have been refused permission to appeal by the First-tier Tribunal, and will then have been refused permission to appeal by the Upper Tribunal, and that should be an end of it. However, a Cart judicial review offers the applicant a third attempt to gain, effectively, permission to appeal, an anomaly not seen in the criminal or civil court systems. It is this third bite of the cherry that we seek to remove. The Bill does this through an ouster clause.
In Committee, we had a short debate about the constitutional propriety of ouster clauses which I will not go into again today, since it was not raised in today’s debate. Whatever position we take on ouster clauses as a matter of principle, I would hope that everyone in the House would agree that we must keep the court system efficient. When we think about efficiency, we look at the nature of the courts and tribunals that we have at different levels of our system. The Upper Tribunal is a senior court with a specialist jurisdiction, so it is well suited to determining questions of law authoritatively and accurately. The fact that it appears to get 96% of its determinations on permission to appeal right re-enforces its place as the best jurisdiction to settle those issues.
I remind those Members of the House who might be saying, “What about the other 4%”, that in every other jurisdiction we do not know the error rate because we only allow two bites of the cherry, and therefore do not know how many of those second bites, if I may put it that way, would have tasted different if a third judge had taken a bite. This clause restores balance in the proper functioning of the tribunal system and fixes a serious inefficiency. I welcome particularly what the noble Lord, Lord Faulks, said about the background to it.
Turning to Amendment 6, in the name of the noble Lord, Lord Ponsonby of Shulbrede, I heard what he said about the purpose in tabling the amendment and will try to respond to that. This is the amendment requiring the Lord Chancellor to carry out and publish a review. The Government have committed, in our impact assessment, to monitoring the new system, and in particular, the impact on those identified as affected groups within that document.
While I agree that it is important that the Government do not simply legislate to make changes to the justice system and then neglect to assess the actual effects of those changes to the system, creating a duty in legislation to review and publish the outcome of that review within two years would be disproportionate, particularly given that commitment to monitor the effect of this change. Further, it is unlikely that we would see the full effect of this change just two years after its introduction, as the legislation does not apply retrospectively. For those reasons, I cannot accept the amendment, but I hope that I have explained to the noble Lord, and the House, why.
Turning to Amendment 5, in the name of the noble and learned Lord, Lord Etherton, replacing Clause 2, rather than ousting the High Court’s jurisdiction over the Upper Tribunal, the new clause would essentially move the ouster one step up the court system. It provides that the decision of the High Court or other relevant supervisory court in reviewing an Upper Tribunal permission-to-appeal decision is final, preventing any escalation to the Court of Appeal but introducing a rather unusual, if not entirely novel, appeal path directly from the supervisory court to the Supreme Court in cases involving a point of law of general public importance. That was the tweak by the noble Lord, Lord Pannick, to the amendment, that we saw in Committee.
With or without that tweak, my concern is that the amendment does not address the main problems, which are, first, that approximately 750 Cart cases per year place a burden on the High Court, and, secondly, that the Cart decision and approach undermines the tribunal system and the proper relationship between the Upper Tribunal and the High Court. I recognise that there is a burden on the Court of Appeal at present, as some Cart cases will be appealed to that court. I do not have precise figures, but I understand that those to the Court of Appeal are substantially less than 750 cases of this kind per year. The burden of the current system falls on the High Court and, for reasons of its resourcing and efficiency, that is where we need to concentrate our efforts.
I am very grateful to the noble and learned Lord, Lord Etherton, for his engagement with me and my officials on the underlying data. Although there appear to remain some differences between us, I think we have come to a closer understanding on the data point. Let me clarify just one point for the record, which is that the 180 days of judicial time was always estimated as around 150 days of High Court time and the remaining 30 days or so in the Upper Tribunal.
Turning to one of the other substantive points made by the noble and learned Lord Etherton, he mentioned that his position goes further than mine in limiting the exemptions for onward appeal, and that he is concerned that the exemptions in the current Clause 2 will be insufficient to prevent many applications to the High Court. I understand the genesis of that concern but, with respect, I think it is unfounded. The exemptions are narrow and focused. We have seen from failed ouster clauses in other circumstances that clear words are needed for an effective ouster clause. In this case we think that we increase that clarity by some limited exemptions, appropriate to the proper relationship between the Upper Tribunal and the High Court.
The exemptions create a clear and simple distinction: questions of fact and law go to the Upper Tribunal, which is a senior and specialist court, and review is retained in the High Court for jurisdictional or procedural matters. That is a neat and robust delineation. I respectfully say that the dichotomy that the noble and learned Lord presents—that we should either have Clause 2 with no exemptions or take his halfway house—is a false dichotomy. I suggest that the current Clause 2 is a sufficient and well-crafted approach to the problem.
Finally, the halfway house put forward by the noble and learned Lord would perpetuate the current oddity of Upper Tribunal decisions being reviewed by the High Court on grounds not limited to extreme jurisdictional or procedural matters. We should trust the Upper Tribunal to get these decisions right and, as I have said, it does so, to an extraordinarily high percentage. The halfway house therefore does not satisfy the Government’s policy position of correcting the Cart decision. Cart was, with great respect, a legal misstep. We heard in Committee from the noble and learned Lord, Lord Hope of Craighead, who was party to the decision; he accepted, with hindsight, that it was a legal misstep. We should overturn it effectively, which is what the current Clause 2 does. The halfway house put before us by the noble and learned Lord, Lord Etherton, would, I fear, leave us in a legal no man’s land. For those reasons, I respectfully invite him to withdraw the amendment.
Lord Marks of Henley-on-Thames (LD)
My Lords, I will add very little to what the noble Lord, Lord Ponsonby, said in moving his amendment. The House has been much assisted and considerably informed, as we frequently are, by his experience as a sitting magistrate and, in particular, by his experience of young people in court.
I do not propose to go through these amendments one by one. I said in Committee, and I repeat, that we are generally supportive of the measures in the Bill, which modernise our criminal procedures, make more use of online access and simplify guilty pleas in low-level cases. The noble Lord, Lord Ponsonby, in what I understand is a series of probing amendments, which he does not propose to put to a vote, spoke of what I might divide into a number of principal themes which we also consider important.
The first is a concern for protections and safeguards for young people in the context of the new procedures. The second is ensuring that all parties understand the new procedures and have full information about the consequences of decisions they have taken, in particular about the effect of guilty pleas, and indeed that they have access to legal advice. The next is a concern that increased sentencing powers for magistrates be monitored and kept under review. I fully endorse what the noble and learned Lord, Lord Thomas of Cwmgiedd, said in that regard. That is very important. We are entering relatively uncharted territory and, although many of us see those themes as significant, nevertheless it is important that they be monitored.
That said, we await the Minister’s response with interest and hope that the safeguards sought by the noble Lord, Lord Ponsonby, will at least be introduced by the Ministry in considering how we go forward with these new procedures after the enactment of the Bill.
Lord Wolfson of Tredegar (Con)
My Lords, I am grateful to the noble Lord, Lord Ponsonby of Shulbrede, for putting down these amendments which, as he says, are probing amendments. I am also grateful to him for his time in discussing all of these points, I think, in a number of meetings we have had.
What I will seek to do—and I hope the House will forgive me if I do not go into too much detail—is respond to them point by point. I will try to strike a balance between giving a proper response here and not unduly delaying the House with points of detail. It may be that there will be points on which I might write further, but I will try to get the main points on the record, so to speak, because these are probing amendments.
I will start with Amendment 7 to Clause 3 on the new automatic online conviction procedure. This amendment would limit the application of this procedure to non-recordable offences only. I can assure the House in terms that we have no intention of extending this new procedure to any recordable offences. This is a new approach for dealing with certain minor offences, which is why we have committed to reviewing this procedure before considering whether to extend it to any further offences. Any extension of the procedure to additional offences would have to be both debated in and approved by Parliament.
Amendment 8 would allow the Criminal Procedure Rules to make provision about information that should be made available to the media and public on cases heard under the automatic online procedure. Amendment 13 would make a similar provision to Clause 6 for cases dealt with under the new online indication of plea and allocation procedure. This is already provided for in legislation. In fact, current provision in the Criminal Procedure Rules goes further. Rule 5.7 of the Criminal Procedure Rules sets out the basic open justice principle that courts must—that is a “must”, not a “may” as in the amendment—have regard to the importance of dealing with cases in public and allowing a public hearing to be reported. Rules 5.8 to 5.11 set out the process for providing that information and the types of information that should be provided.
The court will therefore provide the media with information about the outcome of these proceedings via the court media register within 24 hours of the case being dealt with. In the case of the automatic online procedure, this would include the conviction and fine imposed. That extends the arrangements currently in place for the single justice procedure for defendants who choose this new option.
In the case of the online indication of plea and allocation procedures, the information on the register would include the alleged date and details of the offence, the indicated plea and whether the case was being sent for trial. Any subsequent hearings for case management, trial or sentencing would be listed as normal and defendants would still be required to appear at a hearing in open court after they had proceeded with the online indication of plea and allocation procedures in order to confirm and enter their plea. I underline that this is because we are dealing here with an indication of plea.
Amendment 9 to Clause 4 deals with the guilty plea in writing. It seeks to raise the age of eligibility for the Section 12 plea, as it is called, by post procedure from 16 to 18 years. However, in distinction to some of the matters I have just referred to, this is not a new procedure. It has been available as an alternative method of summary-only prosecution for defendants aged 16 and over since 1957. That is rather a long time. As I said in Committee, I am not aware of any particular issues of concern being raised for children. Clause 4 will ensure that prosecutors can also offer this long-established procedure for suitable cases initiated by charge in person at a police station and will, if they do that, maintain the same age criterion that already exists for prosecutions initiated by summons or postal charge. This would provide defendants and prosecutors with the option of resolving more types of less serious, summary-only cases without having to spend time and resources attending a court hearing. It is subject to a range of safeguards, which I think I set out in some detail in Committee; I hope the House will forgive me if I do not repeat them all this afternoon.
Amendment 12 to Clause 6 proposes a new written procedure for indicating a plea to a triable either-way offence online. It would require a written invitation from the court to inform the defendant about the real-world consequences of pleading guilty to a crime and getting a criminal record. So far as that amendment is concerned, Clause 6 already states that the court must provide important information about the written procedure when writing to a defendant, including the consequences of giving or failing to indicate a plea online. Clause 6 will also enable secondary legislation under the Criminal Procedure Rules to require or permit the court to provide additional specified information where it is deemed necessary.
Importantly, any indication of plea provided through the new written procedure will not be binding on a defendant until they appear before the court at a subsequent court hearing to confirm it. They can also change or withdraw their indicated plea and, again importantly, if they do that, the indicated plea of guilty cannot be used against them in the proceedings that follow.
Lord Ponsonby of Shulbrede (Lab)
Just to explore that point a little more, does that mean that somebody who changes their plea to guilty, for example, when they physically turn up in court will get the full 30% discount on any sentence that may be given in the court?
Lord Wolfson of Tredegar (Con)
I think that is correct, but let me write to the noble Lord on that point. My understanding is that the indicated plea of guilty cannot be used against them. I appreciate the noble Lord’s point is slightly different. I think the answer to it is yes, but I will write to him so that he is in possession of accurate information before the Bill comes back to this House. He will get a written response from me on that point, unless I get the answer electronically before I sit down—that is a challenge to the team.
Amendment 11 seeks to guarantee that defendants will have access to legal advice before they indicate a plea. As I think I said in Committee, we believe this concern is addressed by the fact that defendants will be able to access the new online procedure for indication of plea and allocation only through their legal representative. This is because the new procedure will be available only through the common platform, which is restricted to qualified legal professionals. I have no objection to making the requirement to seek legal advice clear in legislation, but the right place for this would be in the Criminal Procedure Rules, remembering that this will be a plea indication only, not the entry of a plea at court.
Amendments 14, 15 and 18 seek to remove children from the new written procedures and powers relating to pre-trial plea and allocation proceedings for offences triable either way. So far as Clause 8 is concerned, the same safeguards as apply to Clause 6 apply here. Like adults, children will be able to proceed with the new written procedure for online indication of plea and allocation only through a legal representative, and they will be required to make a subsequent court appearance to confirm their plea. This will provide the same opportunities for the court, as we have heard from the noble Lord’s experience, to satisfy itself that the child has understood the position that currently applies.
Clause 9 creates a new clearly defined set of circumstances that would enable a court to allocate a child’s case in their absence. Again, I explained these conditions in some detail in Committee. The key point is that they are far more stringent than those prescribed for adults, even though children cannot elect for jury trial. Those safeguards guarantee that a child will engage with the court before and during the allocation hearing. Even where that does not happen for some reason, the new power will provide courts with the flexibility to progress the case, but only after they have taken significant steps to confirm that it is appropriate and in the interests of justice to do so.
The new overarching safeguard for written proceedings created by Clause 14 will exist alongside the current legal requirements for a parent or guardian to attend at court during all relevant stages of the proceedings. Therefore, Clause 8, read together with Clause 14, will provide more opportunities to ensure that parents and guardians are involved in children’s cases before the first hearing at court.
Over and above that, the courts have a statutory duty to protect the welfare of children and prevent them offending. Clauses 8, 9 and 14 should help ensure that cases are progressed more expeditiously. That means that interventions designed to tackle offending or reoffending can be made at the earliest opportunity. I also point out that these provisions can help reduce the undoubted stress of travel, with a child having to go to court physically, or the disruption of a child having to miss school to attend preparatory hearings at court, because they reduce the overall number of occasions when the child has to be physically present in court.
Lord Thomas of Cwmgiedd (CB)
My Lords, when the Minister says “monitor” and “publish”, what we need to see is proper, in-depth analysis so that one can see what happened—or would have happened had it been dealt with in the Crown Court—and what is now happening. It is not enough to go on with what we already have.
Lord Wolfson of Tredegar (Con)
My Lords, I was just about to come to that point. I have heard what the noble and learned Lord has said. We will certainly consider what data we can publish that would go towards meeting that point. I would be happy to drop the noble and learned Lord a note on that. We have to think about how this new data fits in the with the current data sets, and we need to publish things in an accessible way. I absolutely understand the underlying point. It goes back to the point I was making in the previous group, which is that we should not just make changes and not then assess how they are working; equally, we do not want to be chasing our tails on data. There must be a way through that.
Let me now come to local justice areas, on which we heard from the noble Lord, Lord Ponsonby, with personal experience. Amendment 37 would require the Lord Chancellor to undertake a consultation with relevant stakeholders regarding the proposed removal of local justice areas. This provision will ensure that magistrates’ courts have the flexibility to assign cases and magistrates in a way that best meets local needs. Ultimately, it is up to the Lord Chief Justice to determine what new arrangements are to be put in place. He has a statutory duty to ascertain the views of lay magistrates on matters affecting them. Magistrates’ courts already work closely with local justice partners to manage court business. I confirm that they will be fully consulted, along with local magistrates, the Magistrates’ Leadership Executive and the Magistrates’ Association, before any changes are made.
I turn to the single justice procedure: Amendment 10 seeks to introduce a new clause which would require a review of that procedure, including its use to prosecute Covid-19 offences, and the transparency of the procedure. I have previously argued to the House that there is in fact greater transparency for cases under this procedure, rather than those that take place physically in court. The press receives a detailed list of pending single justice procedure cases, alongside the prosecution statement of facts and the defendant’s statement in mitigation. On the fairly rare occasions, these days, when the press turn up to a magistrates’ court hearing, they do not generally get that material, so they do get more material online than they do when they turn up.
I am afraid that there are errors in all courts; courts are run by humans and, while people do their best, errors occur. As far as Covid-19 offences are concerned, the majority of errors were detected by the single justice and their legal adviser, and dealt with appropriately by dismissing the case. There are other safeguards in place to address errors where they occur. I am not aware of any evidence to suggest that the error rate for prosecuting Covid-19 offences was higher under the single justice procedure than any other court procedure, or indeed that this procedure was the cause of the errors. We believe that the primary cause of the errors was not the process used; rather, it was the volume of regulations, combined—as noble Lords will remember—with the speed of introduction. Work was done quickly with police forces and court staff to reduce, and to try to eliminate, those errors. The single justice procedure is reviewed on a regular basis to ensure that it remains open and accessible.
There are some amendments in my name which are all minor and technical in nature. I note that there were no questions on these amendments, so I am not proposing to go through them in any detail, unless noble Lords want me to do so. In the absence of acclamation, I will take that as a “Please get on with it.” However, that means that, in my reluctance to spin it out any longer, my team have not been able to get back in time with the answer to the question from the noble Lord, Lord Ponsonby, on guilty discounts. I will have to write to him on that, and I undertake to do so.
I hope that, for those reasons, I have set out the opposition to the noble Lord’s amendments. I invite the House to support the few government amendments in this group.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I beg leave to withdraw Amendment 7.
Member’s explanatory statement
This amendment allows subsection (3) of Clause 13 to operate before and after the other provisions of that Clause come into force (see the amendment in the name of Lord Wolfson of Tredegar at page 59, line 4).
Member’s explanatory statement
This amendment is consequential on the amendment at page 53, line 33 in the name of Lord Wolfson of Tredegar.
Lord Wolfson of Tredegar (Con)
My Lords, I am sorry but one of the problems of doing this online is that, when the system freezes, you do not have any notes.
Lord Wolfson of Tredegar (Con)
Keep taking the tablets, my Lords. When we last debated these clauses, a number of noble Lords, including the noble Baroness, Lady Chakrabarti, invited and urged me to meet Inquest. I am grateful for that urging, because I had a very productive and informative discussion with it last week on the measures in the Bill and some wider measures. In fact, Justice also attended the meeting. While it is fair to say that there are differences of opinion between us, I assured them that the Government’s priority remains to make certain that the bereaved are at the centre of the coronial process. The measures in the Bill support this priority. We seek to reduce unnecessary procedures in the coroners’ courts and that will, in turn, reduce delays in the inquest process, and reduce again the distress to bereaved families.
The amendments in my name in this group are minor and technical. They are consequential on Clause 39, which allows a coroner to discontinue an investigation should the cause of death “become clear”, and they remove some obsolete references to post-mortems from existing legislation.
Those are the government amendments. However, I am conscious that the noble Baroness, Lady Chapman, and the right reverend Prelate the Bishop of St Albans have other, more substantive amendments in this group. Perhaps the noble Lord, Lord Ponsonby, will speak on the noble Baroness’s behalf. I will let them propose their amendments before I respond to them.
Lord Ponsonby of Shulbrede (Lab)
My Lords, Amendment 21 would ensure that certain safeguards were met before a coroner could discontinue an investigation into a death. Family members and personal representatives of the deceased must be provided with a coroner’s provisional reasons for considering that the investigation should be discontinued, helping to ensure that family members make an informed decision as to whether to consent to the discontinuation.
Amendment 22 would provide that the Lord Chancellor should establish an appeal process for families who disagree with a decision to discontinue an investigation. Amendment 23 would ensure that inquests were not held without a hearing if that was against the wishes of the deceased’s family. Amendment 24 would ensure that certain safeguards were met before a remote inquest hearing is held and that interested persons were provided with the reasons why a remote hearing is to be held. I am glad that the Minister met Inquest and Justice. The amendments, which are in the name of my noble friend Lady Chapman, would address the various perceived shortcomings within the coronial system. I look forward to the Minister’s answer to them.
Amendment 28 would allow coroners to record risk factors relevant in a death by suicide and require the Secretary of State to issue guidance on the risk factors that the coroner must consider and the form in which they are recorded. The right reverend Prelate will speak to his amendment in due course. It is part of his attritional campaign for, often, young men who commit suicide because of gambling habits. I support his intention.
Lord Wolfson of Tredegar (Con)
My Lords, I shall respond to the amendments in the name of the noble Baroness, Lady Chapman. Amendments 21, 22, 23 and 24 all seek to introduce further conditions into Clauses 39, 40 and 41 relating to coroners’ courts. The Government’s position on these amendments is that, while we understand and sympathise with the intention behind them, we do not consider them necessary.
As I said in Committee, I have concerns about amendments that would cut across the independence of coroners. As the House has just heard, they are a very ancient form of office, but they are a judicial office. How coroners conduct inquests and investigations is a matter—properly, I would say—solely for them. We do not want to introduce concepts such as consent from other parties which would cut across or fetter their judicial discretion.
For example, Amendment 21 seeks to require the coroner to provide interested persons with a provisional reason for discontinuing an investigation, enabling the interested persons to make an informed decision on whether to consent to the discontinuance. We would not expect judges or other tribunals to seek consent from others, especially from people who are not actually party to the proceedings, before taking this sort of decision and I suggest that we should afford coroners, as judicial officeholders, the same constitutional courtesy.
Moreover, necessary safeguards are already in place. Section 4(2) of the Coroners and Justice Act 2009 is clear on instances where a coroner may not discontinue an investigation, including violent or unnatural deaths, or deaths in custody or other state detention. They would also not be able to discontinue investigations which raise ECHR Article 2 considerations, even if the death is suspected to be from natural causes. Over and above that, Section 4(4) of the Act provides that where a coroner discontinues an investigation into a death, they must, if requested to do so in writing by an interested person, provide a written explanation as to why the investigation has been discontinued. We think that is a sufficient mechanism for interested persons to request an explanation for a discontinuance.
Amendment 22 seeks to provide a mechanism to challenge a coroner’s decision to discontinue. Again, routes are already in place. The challenge can be made by way of judicial review or, sometimes, through application to the High Court with the authority of the Attorney-General.
Giving coroners the flexibility to discontinue an investigation where there is clear evidence that the cause of death is natural eliminates the need for an unnecessary investigation and reduces distress for the bereaved, as well as freeing up resources to be deployed on more complex cases. Coroners will of course work sensitively with bereaved families and take their views into consideration. As I said in Committee, I would expect the Chief Coroner to provide guidance for coroners to accompany any changes in the law, to make sure that practice is consistent across coroner areas.
Amendment 23 would require the coroner to seek consent from interested persons before making a decision on whether to hold an inquest without a hearing. The same point on judicial independence applies. Clause 40 is designed to give coroners flexibility to determine when an inquest can be held without a hearing. It might be used where a family have indicated that they have no wish to attend the inquest, for example, or in cases where the coroner has no concerns as to the cause of death. Of course, we would expect coroners to use their discretion judiciously and judicially when applying this provision.
All these measures are designed to support the drive to remove unnecessary procedures from the coroners’ courts. That will help them in delivering recovery plans as they tackle the post-pandemic backlog of inquest cases.
Amendment 24, similarly, deals with remote hearings. The House may be aware that in fact, coroners’ courts have always been able to conduct virtual hearings, but there has been one proviso: that the coroner and jury—if there is one, because often there is not—must be present in the courtroom. That means that under the current law, everyone participating in an inquest can be remote except the coroner, who has to be physically present in a courtroom with nobody else there at all. I suggest that that is somewhat odd, and this provision enables all participants, including the coroner and any inquest jury, to participate remotely, and it brings coroners’ courts in line with other courts and tribunals.
I should add, however, for clarity that where an inquest jury is participating remotely, all members of the jury—which can be from seven to 11 people—must be physically present in the same place and at the same time. They cannot participate remotely from their individual front rooms, for example. We saw during the pandemic how remote hearings ensured that the wheels of justice kept turning, and we anticipate that remote hearings can continue to play a very useful role in coroners’ courts.
The amendment would also out in primary legislation the requirement for coroners to obtain consent before making a decision on whether to conduct an inquest hearing remotely. As to that, my same point about judicial independence applies.
For those reasons, I invite the noble Lord, Lord Ponsonby, speaking for the noble Baroness, Lady Chapman, not to press those amendments.
I turn finally to Amendment 28, tabled by the right reverend Prelate the Bishop of St Albans. He is absolutely right: we debated this only a few days ago, as matters have turned out. I appreciate that this is, as we have heard, somewhat of an attritional campaign, and he has moved the focus of the amendment slightly to deal with some of the points I made last week, and for that I am very grateful. Of course, we recognise the importance of collating quality information on the circumstances which lead to suicide, including gambling-related factors, but we think that the amendment would not deliver that outcome.
As I think I said last Friday, current legislation focuses the coroner on the question of who the deceased was and when, where and how they died, not why they died. That often strays into determining liability, which Section 5(3) of the 2009 Act expressly forbids. I appreciate that, as the right reverend Prelate informed us, some coroners have started to collate that information, but that is really one of the problems. We are very concerned that information collated in a somewhat haphazard manner would not be a sufficiently robust basis on which to base government policy. Furthermore, even if all coroners were asked to do it, we must recognise that coroners get information from a range of sources: family, partners, friends, police, et cetera. All those sources might give the coroner differing motivating factors which could have led to the suicide.
I repeat what I said on Friday: we will be publishing a White Paper in the coming weeks on the Gambling Act review, following the debate on the tragic death of Jack Ritchie, which the right reverend Prelate mentioned last week. We are committed to understanding the circumstances which lead to self-harm and suicide, including gambling addiction. We have commissioned the University of Sheffield to do some work in this area, and the Office for Health Improvement and Disparities has likewise committed to work with government departments and other stakeholders to improve data in this area.
I gave some more information last Friday about what the Government are doing in this area. I will not detain the House by repeating it, but I assure the right reverend Prelate that we are treating the issue with importance. However, we do not, respectfully, think that this amendment is the right way to deal with it. I therefore urge him not to press his amendments. I was going to say that I am very happy to continue the conversation, but I anticipate that this conversation will be continuing, whether I am happy to or not. In any event, I look forward to continuing it with the right reverend Prelate.
“(4) In the following provisions of the Births and Deaths Registration Act 1953, for “revealed by post-mortem examination” substitute “becoming clear before inquest”—(a) in section 2(1), paragraph (ii) of the proviso;(b) in section 16(3), paragraph (ii) of the proviso;(c) in section 17(3), paragraph (ii) of the proviso;(d) section 29(3B).(5) In section 273(2)(a) of the Merchant Shipping Act 1995, for “revealed by post-mortem examination” substitute “becoming clear before inquest”.(6) In Schedule 21 to the Coroners and Justice Act 2009 (which, among other things, makes amendments to the Births and Deaths Registration Act 1953 that have yet to come into force)—(a) in paragraph 10(5), in the inserted subsection (2)(b), for “revealed by post-mortem examination” substitute “becoming clear before inquest”;(b) in paragraph 11(2), in the substituted section (A1)(b), for “revealed by post-mortem examination” substitute “becoming clear before inquest”;(c) in paragraph 16(2), in the substituted paragraph (a), for the words from “there has” to “the death,” substitute “—(i) there has been no investigation under Part 1 of the 2009 Act into the death, or (ii) such an investigation has been discontinued under section 4 of the 2009 Act (cause of death becoming clear before inquest) other than as mentioned in paragraph (b),”.”Member’s explanatory statement
This amendment adds consequential amendments to Clause 39.
Baroness Jones of Moulsecoomb (GP)
I rise not to add any contribution on the legal side of things but just to add a little moral outrage, because this is an injustice. We all understand, I think, that the lack of public funding for bereaved families at inquests and inquiries just compounds their suffering. It is also very inefficient, because the point of having competent lawyers in court is that they can assist the court in the administration of justice. They can navigate complex issues of fact and law, which means that a just decision can be reached. It also provides the public with a huge service, because we all have to have confidence in the state to keep us safe in its custody and control.
I admit that it is hard when we have a Government such as this, but even so, I think we all understand that every death in police custody, prisons, mental health institutions or any other setting must be fully exposed through the inquest system, and this cannot be done without legal representation for bereaved parties. Without public funding it is actually a tax on bereaved families. It is time for your Lordships’ House to end this injustice by convincing the Government that they have to allow this amendment through.
Lord Wolfson of Tredegar (Con)
My Lords, I am grateful to noble Lords for their contributions to this short debate. I am conscious that the fact that the debate has been relatively short is not a reflection of the importance of the issue. On the contrary, as the noble and learned Lord, Lord Thomas of Cwmgiedd, said, this is a long-running issue. It is not quite as long- running as the coronial office, but it has been before the House before and doubtless it will be again.
I start by assuring the House that the Government believe that bereaved families should be at the heart of any inquest process, but we consider that, although there are some exceptions, which I will come to, legal representation and legal aid are not required for the vast majority of inquests. As I said on the previous group, the coroner’s investigation is a relatively narrow-scope inquiry to determine who the deceased was and how, when and where they died. In my meeting with Inquest last week, we obviously discussed the availability of legal aid for inquests. Again, I should put on record that although there are undoubtedly areas where Inquest would like the Government to go further, we had a productive and useful conversation.
Amendments 25, 26 and 27 all seek to expand access to legal aid at inquests. However, the amendments would also make that access to legal aid entirely non-means-tested. That would lead to significant and potentially open-ended cost to the taxpayer. It would also go against the principle of targeting legal aid at those who need it most, because these amendments would provide public funding for those who could, in fact, afford the cost themselves. Over and above that, I am not persuaded, with respect to my former and current colleagues, that having more lawyers at an inquest will provide an improved experience for the bereaved. Indeed, it could have the unintended consequence of turning an inquisitorial event into a complex defensive case, which would likely prolong the distress of bereaved families.
We do, of course, recognise that bereaved families need support and guidance. We have been working on several measures to make inquests more sympathetic to the needs of bereaved people. That includes publishing new guidance on the coroner service for bereaved families, engaging with the chief coroner on training for coroners and developing a protocol. I think this goes to the point made by the noble Lord, Lord Thomas of Gresford, that, where the state is represented, the protocol now is that the state will consider the number of lawyers instructed, so as to support the underlying inquisitorial approach to inquests.
I turn to the availability of legal aid. First, legal help is available under the legal aid scheme, subject to a means and merits test, which bereaved families can access if they require advice and assistance. Further, where certain criteria are met, legal aid for legal representation may be available under the exceptional case funding scheme. Where these criteria are met, we are of the view that that process should be as straightforward as possible. Therefore, as of January this year, there is no means test for an exceptional case funding application in relation to representation at an inquest or for legal help at an inquest where representation is granted.
Thirdly, we considered our approach to initial access to legal help at inquests in our recently published Legal Aid Means Test Review. This is something of an intimidating document, but I invite interested noble Lords to have a look at it. There, we have proposed to remove the means test for legal help in relation to inquests which relate to a possible breach of rights under the ECHR—it is generally Article 2, but not exclusively—or where there is likely to be significant wider public interest in the individual being represented at the inquest. We published that review on 15 March; a full consultation is currently open and will close on 7 June.
For those reasons, which go both to the nature of the inquest and what the Government are currently doing in this area, I invite the noble Lord who is proposing the amendments in the name of the noble Baroness, Lady Chapman, to withdraw them.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I thank all noble Lords who have spoken in this debate and have supported these amendments. The opening line from the noble Lord, Lord Thomas of Gresford, was that the Government should not hide behind the inquisitorial defence, if I can put it like that, and that is exactly what we have heard from the Minister today.
He chided me for limiting the amendments to public bodies. I accept that criticism to a certain extent; nevertheless, this is an opportunity for a radical improvement of the inquest system to provide a genuine public service. I absolutely agree with the point made by the noble Baroness, Lady Jones of Moulsecoomb, about the importance of public service, and this is a route to do that to the benefit of people in a distressed situation.
The noble and learned Lord, Lord Thomas of Cwmgiedd, gave a historical perspective, if I can use that expression, saying that coroners have changed and adapted over the years. Here is another opportunity to change and adapt for the public good. I think that if the Government are not willing to make that change, I would like to test the opinion of the House on Amendment 25.
“Payments in respect of pro bono representation
(1) In section 194 of the Legal Services Act 2007 (payments in respect of pro bono representation in civil proceedings in England and Wales)—(a) in the heading, at the end insert “: civil courts in England and Wales”; (b) in subsection (8), for “by order made by the Lord Chancellor” substitute “under section 194C”;(c) omit subsection (9);(d) in subsection (10)—(i) in the definition of “civil court”, omit paragraph (a);(ii) omit the definition of “relevant civil appeal”.(2) After section 194 of the Legal Services Act 2007 insert—“194A Payments in respect of pro bono representation: tribunals(1) This section applies to relevant tribunal proceedings in which—(a) a party to the proceedings (“P”) is or was represented by a legal representative (“R”), and(b) R’s representation of P is or was provided free of charge, in whole or in part.(2) This section applies to such proceedings even if P is or was also represented by a legal representative not acting free of charge.(3) The tribunal may make an order under this section against a person if the condition in subsection (5) is met in respect of that person (and if subsection (7) does not apply).(4) An order under this section is an order for the person to make a payment to the prescribed charity in respect of R’s representation of P (or, if only part of R’s representation of P was provided free of charge, in respect of that part).(5) The condition is that, had R’s representation of P not been provided free of charge, the tribunal would have had the power to order the person to make a payment to P in respect of sums payable to R by P in respect of that representation.(6) In considering whether to make an order under this section against a person, and the terms of such an order, the tribunal must have regard to—(a) whether, had R’s representation of P not been provided free of charge, it would have made an order against that person as described in subsection (5), and(b) if it would, what the terms of the order would have been.(7) The tribunal may not make an order under this section against a person represented in the proceedings if the person’s representation was at all times within subsection (8).(8) Representation is within this subsection if it is provided—(a) by a legal representative acting free of charge, or(b) by way of legal aid.(9) For the purposes of subsection (8)(b), representation is provided by way of legal aid if it is—(a) provided under arrangements made for the purposes of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012,(b) made available under Part 2 or 3 of the Legal Aid (Scotland) Act 1986, or(c) funded under Part 2 of the Access to Justice (Northern Ireland) Order 2003 (S.I. 2003/435 (N.I. 10)).(10) Procedure rules may make further provision as to the making of orders under this section, and may in particular—(a) provide that such orders may not be made in proceedings of a description specified in the rules;(b) make provision about the procedure to be followed in relation to such orders; (c) specify matters (in addition to those mentioned in subsection (6)) to which the tribunal must have regard in deciding whether to make such an order, and the terms of any order.(11) In this section “relevant tribunal proceedings” means proceedings in—(a) the First-tier Tribunal,(b) the Upper Tribunal,(c) an employment tribunal,(d) the Employment Appeal Tribunal, or(e) the Competition Appeal Tribunal,but does not include proceedings within devolved competence.(12) For the purposes of subsection (11), proceedings are within devolved competence if provision regulating the procedure to be followed in those proceedings could be made by—(a) an Act of the Scottish Parliament,(b) an Act of Senedd Cymru (including one passed with the consent of a Minister of the Crown within the meaning of section 158(1) of the Government of Wales Act 2006), or(c) an Act of the Northern Ireland Assembly passed without the consent of the Secretary of State.(13) The Lord Chancellor may by regulations—(a) amend subsection (11) so as to add a tribunal to the list in that subsection, and(b) make consequential amendments of the definition of “procedure rules” in subsection (14).(14) In this section—“free of charge” means otherwise than for or in expectation of fee, gain or reward;“legal representative” means a person who is—(a) entitled in accordance with section 13 to carry on the activity of exercising a right of audience or conducting litigation,(b) a solicitor enrolled in the roll of solicitors kept under section 7 of the Solicitors (Scotland) Act 1980,(c) a member of the Faculty of Advocates in Scotland,(d) a person having a right to conduct litigation, or a right of audience, by virtue of section 27 of the Law Reform (Miscellaneous Provisions)(Scotland) Act 1990,(e) a member of the Bar of Northern Ireland, or(f) a solicitor of the Court of Judicature of Northern Ireland,irrespective of the capacity in which the person is acting in the proceedings concerned;“prescribed charity” means the charity prescribed under section 194C;“procedure rules” means—(a) Tribunal Procedure Rules, in relation to proceedings in the First-tier Tribunal or the Upper Tribunal,(b) Employment Tribunal Procedure Rules, in relation to proceedings in an employment tribunal or the Employment Appeal Tribunal, or(c) rules under section 15 of the Enterprise Act 2002, in relation to proceedings in the Competition Appeal Tribunal;“tribunal” does not include an ordinary court of law.(15) An order under this section may not be made in respect of representation if (or to the extent that) it was provided before section (Payments in respect of pro bono representation) of the Judicial Review and Courts Act 2022 came into force.” (3) After section 194A of the Legal Services Act 2007 (as inserted by subsection (2)) insert—“194B Payments in respect of pro bono representation: Supreme Court(1) This section applies to proceedings in a relevant civil appeal to the Supreme Court in which—(a) a party to the proceedings (“P”) is or was represented by a legal representative (“R”), and(b) R’s representation of P is or was provided free of charge, in whole or in part.(2) This section applies to such proceedings even if P is or was also represented by a legal representative not acting free of charge.(3) The Court may make an order under this section against a person if the condition in subsection (5) is met in respect of that person (and if subsection (7) does not apply).(4) An order under this section is an order for the person to make a payment to the prescribed charity in respect of R’s representation of P (or, if only part of R’s representation of P was provided free of charge, in respect of that part).(5) The condition is that, had R’s representation of P not been provided free of charge, the Court would have had the power to order the person to make a payment to P in respect of sums payable to R by P in respect of that representation.(6) In considering whether to make an order under this section against a person, and the terms of such an order, the Court must have regard to—(a) whether, had R’s representation of P not been provided free of charge, it would have made an order against that person as described in subsection (5), and(b) if it would, what the terms of the order would have been.(7) The Court may not make an order under this section against a person represented in the proceedings if the person’s representation was at all times within subsection (8).(8) Representation is within this subsection if it is—(a) provided by a legal representative acting free of charge, or(b) provided by way of legal aid.(9) For the purposes of subsection (8)(b), representation is provided by way of legal aid if it is—(a) provided under arrangements made for the purposes of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, or(b) funded under Part 2 of the Access to Justice (Northern Ireland) Order 2003 (S.I. 2003/435 (N.I. 10)).(10) Supreme Court Rules may make further provision as to the making of orders under this section, and may in particular—(a) provide that such orders may not be made in proceedings of a description specified in the Rules;(b) make provision about the procedure to be followed in relation to such orders;(c) specify matters (in addition to those mentioned in subsection (6)) to which the Court must have regard in deciding whether to make such an order, and the terms of any order.(11) In this section—“free of charge” means otherwise than for or in expectation of fee, gain or reward;“legal representative”, in relation to a party to proceedings, means— (a) a person exercising a right of audience, or conducting litigation, on the party’s behalf pursuant to an entitlement under section 13, or(b) a member of the Bar of Northern Ireland, or a solicitor of the Court of Judicature of Northern Ireland, practising or acting as such on the party’s behalf;“prescribed charity” means the charity prescribed under section 194C;“relevant civil appeal” means an appeal—(a) from the High Court under Part 2 of the Administration of Justice Act 1969,(b) from the Upper Tribunal under section 14B(4) of the Tribunals, Courts and Enforcement Act 2007,(c) from the Court of Appeal under section 40(2) of the Constitutional Reform Act 2005 or section 42 of the Judicature (Northern Ireland) Act 1978, or(d) under section 13 of the Administration of Justice Act 1960 (appeal in cases of contempt of court), other than an appeal from an order or decision made in the exercise of jurisdiction to punish for criminal contempt of court.(12) An order under this section may not be made in respect of representation in proceedings in a relevant civil appeal—(a) from a court in Northern Ireland, or(b) from the Upper Tribunal under section 14B(4) of the Tribunals, Courts and Enforcement Act 2007,if (or to the extent that) the representation was provided before section (Payments in respect of pro bono representation) of the Judicial Review and Courts Act 2022 came into force.”(4) After section 194B of the Legal Services Act 2007 (as inserted by subsection (3)) insert—“194C Sections 194 to 194B: the prescribed charity(1) The Lord Chancellor may by order prescribe a registered charity for the purposes of sections 194 to 194B.(2) The charity must be one which provides financial support to persons who provide, or organise or facilitate the provision of, legal advice or assistance (by way of representation or otherwise) which is free of charge.(3) In this section—“free of charge” means otherwise than for or in expectation of fee, gain or reward;“registered charity” means a charity registered in accordance with—(a) section 30 of the Charities Act 2011,(b) section 3 of the Charities and Trustee Investment (Scotland) Act 2005 (asp 10), or(c) section 16 of the Charities Act (Northern Ireland) 2008 (c. 12 (N.I.)).(4) An order under section 194(8) that was in force immediately before section (Payments in respect of pro bono representation) of the Judicial Review and Courts Act 2022 came into force—(a) remains in force despite the amendment by that section of section 194(8),(b) has effect as if its prescription of a charity for the purposes of section 194 were the prescription of that charity under this section for the purposes of sections 194 to 194B, and(c) may be amended or revoked by an order under this section.”(5) For the purposes of sections 194A and 194C of the Legal Services Act 2007 (as inserted by subsections (2) and (4)), sections 204 and 206 of that Act extend to Scotland and Northern Ireland as well as England and Wales.(6) In paragraph 17(1) of Schedule 4 to the Enterprise Act 2002 (rules that may be made about procedure of Competition Appeal Tribunal), omit paragraph (ha).(7) In paragraph 32 of Schedule 8 to the Consumer Rights Act 2015 (amendments of paragraph 17 of Schedule 4 to the Enterprise Act 2002), omit sub-paragraph (a).”Member’s explanatory statement
This new Clause allows certain tribunals to order a person to make a payment to a legal assistance charity where a party to proceedings has been represented pro bono and the person would otherwise be liable for that party’s costs. It also allows the Supreme Court to make such orders in appeals from Northern Ireland or from the Upper Tribunal.
Lord Wolfson of Tredegar (Con)
My Lords, I am conscious that this is the last group, and I hope that we can end Report on a point of unanimity across the House. In Committee, I welcomed the proposal from the noble and learned Lord, Lord Etherton, to allow pro bono costs orders to be made in tribunals, in much the same way as they are already available in the civil and family courts. I am now very pleased to bring forward a government amendment that achieves this.
There are some differences in the way that this amendment is drafted. I have discussed these with the noble and learned Lord but, to point them out to the House, the reasons for these changes from the original draft are to ensure that we do not prescribe rules for tribunals outside of the Government’s control, nor trespass on the competence of the devolved Administrations. The amendment captures the majority of tribunals in which costs orders might be made and creates a power for the Lord Chancellor to bring additional tribunals within the scope of this power through secondary legislation.
In some respects, we are in fact going further than the original text from the noble and learned Lord, Lord Etherton, by ensuring that, where the tribunal is reserved and provision regulating the tribunal’s procedure could not be made by any of the devolved Assemblies—as, for example, when the Immigration and Asylum Chamber of the First-tier Tribunal or the employment tribunal sits in Scotland—the tribunal can, under this amendment, none the less make a pro bono costs order regardless of where the tribunal is sitting within the UK. I suggest to the House that this is a positive step for two reasons. First, it will provide additional funding to the Access to Justice Foundation, I hope in a material manner. Secondly, it will level the playing field between parties where one is represented pro bono.
There are also some consequential amendments in this group as to the extent and commencement clauses of the Bill. I beg to move.
Lord Etherton (CB)
My Lords, I am extremely grateful to the Minister for tabling this amendment. I strongly support it, and it is warmly welcomed by the Access to Justice Foundation, which is the prescribed charity in the new amendment. As the Minister has said, it replaces my own amendment along generally similar lines, which I tabled earlier. It would not have come without the active support of the Minister and his very helpful engagement with me both in meetings and in correspondence. I urge all Members of the House to support it.
Lord Hacking (Lab)
My Lords, I also endorse what was said and support the Bill, particularly because I struggled back from Portsmouth, not for the beginning of Report, alas, but in time to vote. The Minister did say to me—I hope that I am not breaking any confidences—“You’ve just come back to vote against me”, but may I record that I am voting with him on this issue?
Lord Wolfson of Tredegar
My Lords, I am grateful to everyone and look forward to the noble Lord’s support on issues where it might matter more that he is on my side, but I am always grateful for any support that I get from any quarter.
More seriously, I am grateful to the House for what seems to be unanimous support for this amendment. We have made good progress timewise this afternoon and I will not detain the House for very long, but I would like again to place on the record my personal thanks and the thanks of my department to the noble and learned Lord, Lord Etherton, for his engagement on the issue and for proposing it in the first place. He had a number of meetings both with me and officials, and I am really pleased that we have got to a good result here. I also thank the Access to Justice Foundation, which has worked with the noble and learned Lord and with my team to make sure that the amendment works in practice as effectively as possible. For those reasons, I invite the House to support the amendment.
Amendment 29 agreed.
Clause 49: Extent
Amendments 30 and 31
Member’s explanatory statement
This amendment is consequential on the amendment at page 58, line 32 in the name of Lord Wolfson of Tredegar.
“(za) section 11;”Member’s explanatory statement
This amendment provides for Clause 11 to come into force on Royal Assent.
“(5A) The coming into force of paragraph 20(b) of Schedule 2 results in the provision it inserts becoming subject to section 417(1) of the Sentencing Act 2020 (power to commence Schedule 22 to that Act).” Member’s explanatory statement
This amendment clarifies the prospective effect of paragraph 20(b) of Schedule 2.
“19A_ In section 42 of the Gambling Act 2005 (offence of cheating at gambling)—(a) in subsection (4)(b), for “51 weeks” substitute “the general limit in a magistrates’ court”;(b) in subsection (5), for “51 weeks” substitute “the general limit in a magistrates’ court”.”Member’s explanatory statement
This amendment brings the maximum term of imprisonment on summary conviction of an either-way offence under section 42 of the Gambling Act 2005 into line with the maximum term generally available in such cases.
Prisons: Death Statistics
Lord Wolfson of Tredegar Excerpts(2 years, 6 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Harries of Pentregarth
To ask Her Majesty’s Government what assessment they have made of the statistics in the report by the Ministry of Justice Safety in Custody Statistics, England and Wales: Deaths in Prison Custody to December 2021, Assaults and Self-harm to September 2021, published on 27 January; and in particular the finding that the number of self-inflicted deaths in prison custody had increased by 28 per cent in the 12 months ending December 2021.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, every death in custody is a tragedy. Although in 2021 there were more self-inflicted deaths than in 2020, the number was the same as in 2019. The number of self-inflicted deaths in 2020, used in this Question as a benchmark, was in fact the lowest since 2012. However, each death is one too many. We continue to do everything we can to ensure and improve the safety of those in our care.
Lord Harries of Pentregarth (CB)
I thank the Minister for his Answer. As he says, every suicide is an occasion of great sadness. That there were 86 in prison—an increase of 28% on the previous year—is seriously worrying. Does he agree that the figures reveal something interesting and important? All 86 were males, nearly all were white and they were predominantly in the age groups 21 to 25 and 30 to 39. So many of these deaths occurred in the first 30 days in prison—15 in the first week. The rate was particularly high among prisoners on remand. In the light of these figures, what precautions will Her Majesty’s Government take to address people who fall into this profile, because it seems clear that a particular group of people is at risk?
Lord Wolfson of Tredegar (Con)
My Lords, I accept there are particular risks with people on remand, and with those who have just come into or been recalled to custody. We do focus on those particular groups. However, I point out that, although they were all men, as the noble and right reverend Lord said, that is because there were no self-inflicted deaths of women in custody that year. Historically, we have had female deaths in custody, so the figures also show an improvement because of the work we have been doing in the female estate.
Viscount Hailsham (Con)
My Lords, one factor that may have contributed to the increase is the extended period in cells in custody due to the pandemic. If that is correct, does it not strongly argue that, if we are to reduce the number of suicides, it is important to increase the amount of meaningful out-of-cell activity for prisoners?
Lord Wolfson of Tredegar (Con)
My Lords, my noble friend is right and we do want to do that. We also want to do two other things: to increase videoconferencing, so to speak, between prisoners and their families, as we found during the pandemic that it has been very successful; and to make sure that trials come on more quickly, so that people are on remand for a shorter time. That is why, next year, we are planning to hold 20% more jury trials than before the pandemic.
Lord Morris of Aberavon (Lab)
My Lords, in my various capacities, I have had a lifelong concern for all deaths in custody. Since death by hanging accounts for 83% of self-inflicted deaths and that bedding is the most commonly used ligature and a window is the most commonly used ligature point, what lessons do the prison authorities learn from these statistics and what steps are being considered to take account of the availability of these trigger points?
Lord Wolfson of Tredegar (Con)
My Lords, we are aware of that extremely important point. As we set out in the Prisons Strategy White Paper at the end of last year, we have committed to delivering 290 ligature-resistant cells, the architecture of which prevents prisoners hanging themselves. That is in addition to the other interventions about which I have already spoken.
Baroness Burt of Solihull (LD)
My Lords, the Prison Service is in the midst of a perfect storm, with high volumes of staff shortages and a projected increase in the number of prisoners. How will the Government improve this situation for the people who have to suffer the consequences, both prisoners and officers, including in privatised prisons?
Lord Wolfson of Tredegar (Con)
My Lords, I do not recognise the phrase “staff shortages” when put in context. Between the end of October 2016 and the end of December last year, the number of prison officers increased from just under 18,000 to over 22,000. That is about 4,000 additional full-time equivalent officers.
Lord Brown of Eaton-under-Heywood (CB)
My Lords, is the Minister as concerned and unsurprised as I am that the highest rate of self-inflicted deaths, and indeed of other instances of self-harm, is among the indeterminate prisoners, the IPPs—higher even than life prisoners and getting higher as the period of their post-tariff detention extends, so that the vast majority have done more than 10 years than their punishment required?
Lord Wolfson of Tredegar (Con)
My Lords, we have discussed IPP prisoners on several occasions. I acknowledge the work the noble and learned Lord has been doing in this area. As he knows, the Justice Select Committee has been looking at this issue. I have already committed to reviewing the position as soon as we receive its report.
Lord Lexden (Con)
Do prison chaplains keep a particularly careful and watchful eye on the prisoners in the categories to which the noble and right reverend Lord, Lord Harries, made reference?
Lord Wolfson of Tredegar (Con)
My Lords, prison chaplains do a lot of very good work. They are astute at looking out for signs of prisoners who are at greater risk of self-inflicted harm, but that is something that prison officers are doing as well. We have put in place a strategy to identify on a prisoner-by-prisoner basis those who are at higher risk, and we focus more on them.
Lord Harris of Haringey (Lab)
My Lords, it is almost seven years to the day since I submitted to the Minister’s department a report on the self-inflicted deaths of young people in the prison estate. Since then, all the figures seem to have got worse. An increasing number of people are self-harming. What has been done in the intervening seven years, primarily to stop young men entering the criminal justice system and to ensure that, when they are in prison, they are properly supported, supervised and advised? That is what is lacking.
Lord Wolfson of Tredegar (Con)
My Lords, I am sure the Prisons Minister will be familiar with the document; I confess that I am not. However, with respect, it is not right to say that the number of self-harming incidents has gone up. In the female estate, it is right to say that the rate of self-harm is higher than it was pre-pandemic; in the male estate, it is lower. Therefore, one has to look at the figures carefully.
Baroness Hussein-Ece (LD)
My Lords, the Minister just mentioned the rise in female self-harm in the prison estate. The figure I saw for up to October last year was a 47% rise in self-harm among women and a rise of one-fifth for young people. Does he accept that this is a failure of the duty of care? What is being done to review mental health services and support for women and young people in prison?
Lord Wolfson of Tredegar (Con)
My Lords, without getting into the statistics too much, comparing the 12 months to September 2021 with the 12 months to September 2019—post and pre pandemic—it is 23% higher. On the female estate, which is quite small, we acknowledge that female prisoners are overwhelmingly those who have had significant problems in their lives pre prison, and they are therefore a particularly vulnerable group coming into prison. That is why we focus on the female estate in particular. I am very pleased that, as I pointed out earlier, we had no self-inflicted deaths in the female estate last year.
Lord Ponsonby of Shulbrede (Lab)
My Lords, in the 12 months to December 2021, there were 371 deaths in prison, including the suicides referred to earlier. This is despite recent reductions in the prison population. Over about the same period, there were 7,780 assaults on prison staff, which is an 8% reduction on the previous year. Does the Minister think that those two statistics are connected to each other? Does he agree that the key to improving prisoner and staff safety is the recruitment and, crucially, the retention of prison staff?
Lord Wolfson of Tredegar (Con)
My Lords, the figures are perhaps connected in this way: we want to make sure that we have as few self-inflicted harm incidents as possible and as few assaults on staff as possible. On staff, we have rolled out body-worn video cameras and we have better drug testing coming into prisons. But I and the Government are far from laid back about the current situation; we want to get these figures down further. But I point out to the House that we have seen some significant improvements in the figures recently.
Baroness Butler-Sloss (CB)
My Lords, what training and support are prison officers given to deal with these appalling problems?
Lord Wolfson of Tredegar (Con)
My Lords, prison officers go through rigorous training and are given significant support. We have put in place a system whereby prison officers who are working with particular prisoners who are perceived to be at risk of self-harm have time in their schedules to sit down and focus on those prisoners. As opposed to having to fit this in among their other tasks, particular time is set in their programmes so that they can devote it to their prisoners.
Coroners (Determination of Suicide) Bill [HL]
Lord Wolfson of Tredegar ExcerptsFriday 25th March 2022
(2 years, 6 months ago)
Lords ChamberRead Full debate Coroners (Determination of Suicide) Bill [HL] 2021-22 View all Coroners (Determination of Suicide) Bill [HL] 2021-22 Debates Read Hansard Text Read Debate Ministerial Extracts
Lord Ponsonby of Shulbrede (Lab)
I too have no wish to delay the House, but I will say a couple of words to congratulate the right reverend Prelate on the progress he has made with the Bill and on his expressed wish to take the matter further with a further Private Member’s Bill. My experience of Private Members’ Bills is certainly that it is an attritional process that he is engaged in, and I am glad to hear that he is working constructively with the Minister. As we heard in the earlier debate, the Minister is very keen on data and he will no doubt be focusing his question—if I can put it like that—on how the coroners’ service can address the concerns which the right reverend Prelate has quite rightly raised.
The right reverend Prelate told a very moving story when he introduced the debate today and gave some statistics on the reality of addictive online gambling products. I have to say that anyone who has had anything to do with young men will know that such products are absolutely ubiquitously used, and there are all sorts of ways of enticing people into gambling further. So I wish the right reverend Prelate—and the Minister—well with future Private Members’ Bills.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, I too have no wish to delay the House but, like the noble Lord, Lord Ponsonby of Shulbrede, I also thank the right reverend Prelate the Bishop of St Albans for highlighting this important issue and enabling us to have the time in the House today. I thank him for giving me his time earlier in the week. With all respect to other meetings which I had during the week, that was one which I found really interesting and from which I learned a lot.
I will say word about the legislation and, as the right reverend Prelate indicated, the Government’s approach. The legislation would require a coroner or inquest jury to record gambling addiction and any other relevant factors in a conclusion of death by suicide. Of course, the Government endorse the sentiment behind the Bill and recognise the importance of gathering quality information on the circumstances leading to self-harm and suicide, including the role that gambling can play. However, the Government do not agree that these proposals are the appropriate way to tackle the issue. As my noble friend Lady Scott set out at Second Reading, they would result in a significant expansion of the coroner’s jurisdiction to identify the perceived reason—the “why”—behind an individual’s suicide death, and we do not consider this to be appropriate for the fact-finding summary process of a coroner’s investigation, which is really focused on the hard factual questions of who, where, how and when. We also have a concern that information gathered in this way would likely be both incomplete and inconsistently obtained and therefore would not provide a sound basis for delivering the interventions needed to secure improved outcomes in this important area.
Approved Premises (Substance Testing) Bill
Lord Wolfson of Tredegar ExcerptsFriday 25th March 2022
(2 years, 6 months ago)
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The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, I thank my noble friend Lady Sater for introducing this important Bill today, and I thank the noble Lord, Lord Ponsonby of Shulbrede, for his contribution to this short debate. As the only non-magistrate speaking in this debate, I will say that it has been a pleasure working with my noble friend on this issue. I am grateful for the broad support from the Labour Benches. The Government fully support the Bill. As with the complementary Prisons (Substance Testing) Bill that received Royal Assent last year, I hope this Bill receives unequivocal support across the House.
This Government are committed to tackling the causes of reoffending to keep our communities safe. We have heard some statistics; I shall add a couple more that I think underpin the need for the Bill. About 80% of crimes for which a caution or a conviction ensues are committed by repeat offenders, while around 62% of prisoners have either an alcohol or drugs need, or both. If you put those two statistics together, the case for the Bill is essentially made out.
We know that maintaining treatment for prison leavers is crucial to reducing reoffending. In December last year, we published our landmark cross-government drugs strategy, which represents an ambitious 10-year commitment to work across government to address illegal drug use, including increased and enhanced testing in prisons and approved premises. The strategy is underpinned by a record investment of nearly £900 million of additional funding over the next three-year spending review period. That will take the total investment in combating drugs over the next three years to £3 billion.
As the noble Lord, Lord Ponsonby, noted, the commitment has to go beyond only treatment. We know that people who suffer from addiction also have multiple and complex needs for which they also need support, and we are leading the world in delivering a joined-up package across treatment, accommodation and employment. The Bill will allow us to deliver further on the commitments set out in the Government’s drugs strategy and ensure that every offender has access to treatment and support, enabling them to turn their backs on crime. It will ensure that we can understand and react quickly to the changing patterns of drug use that exist in approved premises and hamper an individual’s chances of rehabilitation.
As my noble friend set out, the Bill will implement a comprehensive drug-testing framework, enabling mandatory drug testing for psychoactive substances together with prescription and pharmacy medicines. Supported by the change to urine testing, this will enable us to test reliably for a wide number of different substances and for longer.
In addition, as the House has heard, the Bill also puts prevalence testing on a firmer statutory basis. That will improve our ability to identify emerging trends and ensure that we are able to react quickly. These combined measures will help us to tackle the use of drugs in approved premises and ensure that staff can respond effectively and implement the necessary treatment but also care planning.
The Bill will ensure consistency of testing and treatment from prison to the community, and will be vital in ensuring that approved premises are safe and drug-free, and that the risk of serious harm is reduced for the individual as well as for other residents and the wider public.
I conclude by again thanking my noble friend Lady Sater for introducing the Bill. The benefits of this legislation are clear to see, and I very much hope that this House will endorse and support the Bill.
Covid-19 and the Courts (Constitution Committee Report)
Lord Wolfson of Tredegar Excerpts(2 years, 6 months ago)
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The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, I thank noble Lords for their contributions. This has been an extremely useful debate. I also thank the committee, including its former and new chairs, for its thorough and wide-ranging report, which underpinned today’s discussion. If I noted it down correctly, the noble and learned Lord, Lord Hope of Craighead, said that it was an excellent report, and I respectfully agree. As a relative newcomer to the House, when I read the report—shortly after it was published some months ago—it was clear that it was a very good example of the detailed and careful work done by committees of the House.
I should say right at the outset that a number of points have been made. Some of them would justify a debate on their own. I hope that the Committee will not find this out of order, but I will seek to respond to the themes, including giving some statistics and data; I will then ask my team to go through the Official Report with me, and I may send a follow-up letter as well. I hope that that will be acceptable.
The noble Lord, Lord Faulks, said that this was a constitutional issue. He referred to both civil and criminal issues. He is absolutely right, of course. The rule of law underpins everything else in society. I led a trade mission to the Gulf last November. The example I gave was that, when you build those wonderful skyscrapers, you do not see the cement once the building is built; however, without that cement, there would be no skyscraper. The rule of law is the cement that holds everything else in our society together.
The justice system is at the heart of everything we do and believe in as a society. There is no doubt that the pandemic had a very significant impact on it. On behalf of the Government, I repeat our thanks to all our partners across the justice system, including solicitors, barristers and the judiciary, but especially—I say this respectfully—court staff, who kept the system running and the wheels of justice turning.
In response to the impact of the pandemic, HMCTS set up national response structures that worked with the wider structures in the Ministry of Justice, other government departments and various external stakeholders. Practical measures were put in place. The estate was made safe by installing Plexiglas screens in more than 450 courtrooms, and 70 courtrooms were reconfigured to hear larger trials. There were a number of discussions with the judiciary to ensure that the most urgent cases could be dealt with if absences went beyond what might reasonably be expected. As we heard from the noble Lord, Lord Ponsonby of Shulbrede, cases were sometimes dealt with in what might be called suboptimal circumstances—but it was better to do that than to do nothing. Sometimes justice just has to be done the best way you can.
That was the situation in the pandemic. The NAO has been referred to, but it is fair to remind the Committee that the NAO praised HMCTS’s response to the pandemic, saying:
“HMCTS responded quickly in the early stages of the pandemic … HMCTS’s evolving governance structures helped it respond quickly and effectively to the operational risks in criminal courts.”
That had a number of effects: domestic abuse victims, who were mentioned earlier, were still able to obtain protection orders; the remand of dangerous suspects could be extended; and, as we have heard, the commercial and family courts continued. We were one of the first countries in the world to resume jury trials; that is an achievement we should be proud of. In turn, that helped us to address the delays caused by the pandemic more quickly than some other jurisdictions.
One of my briefs in the department is the international brief. When I talk to jurisdictions around the world, they see our response to and recovery from the pandemic as extremely good. No doubt there are things we could do better—I will come to the point made by the noble Lord, Lord Faulks, about how we would face a future pandemic later—but the response was very good. We are recovering pretty well, I think, from what has been a fairly torrid two years.
A lot was said about the funding background. The statistics are set out in the report. Those points were made by the noble Baroness, Lady Taylor, the noble and learned Lord, Lord Hope, and others. The Government have made significant investment in the justice system to help it recover from the pandemic. The MoJ’s spending review settlement is the largest increase in justice spending in more than a decade. It was a little disappointing that that point was not recognised. It is one thing to focus on cuts in the past, but we should also look at what is happening now.
More than £1 billion has been allocated to boost capacity and accelerate recovery from the pandemic in our courts and tribunals. That includes £477 million to improve waiting times for victims, and to reduce Crown Court backlogs caused by the pandemic from about 60,000 to our aim of 53,000. The figure for the Crown Court going into the pandemic was not out of line with the historical figure if one looks at how many cases are actually waiting to be heard. The key thing, of course, is not actually the backlog; it is throughput and how long it takes a case to get through the system. You could have a lot of people waiting to have a knee replacement, but the real question is not how many people are waiting but how long they are waiting. We are focused on throughput.
Funding secured for the Crown Court will enable it to sit at its maximum capacity. I will come to Nightingale courts, but we do not have an issue with rooms. The main issue is the number of judges; we now have enough rooms. We have set aside £324 million for civil and family courts, and tribunals, and an additional £200 million to complete the flagship £1.3 billion court reform programme.
I think everybody recognised that technology was a necessary response to the pandemic. I suggest that what we saw in the justice system during the pandemic was what we saw in society in a range of areas: the pandemic accelerated change that probably would have happened anyway. Everything in our lives has been disrupted and I am afraid the justice system has not been any different. As the noble and learned Lord, Lord Hope, said, it was the impetus for new approaches and some of these have stuck.
The remote hearing provisions in the Coronavirus Act allowed literally thousands of hearings to take place. We now have about 11,000 hearings taking place remotely each week. We rolled out the cloud video platform at pace to keep justice going. We developed guidance to support court users when joining remote hearings. Video remand hearings were vital in our efforts to reduce the risk of Covid transmission, removing the need for prisoners to be transported to court sites.
On that point, I understand that it is effectively a resourcing issue in the police. The police withdrew support for video remand hearings in October 2020. Since then, use has diminished significantly: only three forces continue to operate them. We therefore continue to work with other government departments to find a strategic funding solution to address this issue, because we recognise that video remand hearings had some significant upsides.
As I said, the move to online justice was effective and there were lots of upsides to it. That is why we are in the process of replacing some of these provisions with permanent provisions in the Police, Crime, Sentencing and Courts Bill, which is still going through Parliament. I of course recognise that remote hearings might not be suitable for everyone or in all types of case. Therefore, I underline that the mode of hearing will remain a judicial decision and a remote hearing will not take place unless the judge is satisfied that it is in the interest of justice for all parties involved. We have also recently commissioned an evaluation of the implementation and use of the new video hearing services across civil, family and tribunals jurisdictions to ensure we get this right.
I will say a word or two about data. I am afraid that I am a bit of a data freak; I subscribe to the proposition that if you cannot measure it, you do not really know what the problem is, let alone how you are going to respond to it, so please take that point as read. I have had several meetings with Dr Byrom, and she worked closely with the department. We now put out a lot of data. When I write, I will set out some of the datasets that we put out.
I acknowledge that data collection across the court system has historically been challenging and that there is room for improvement. One of the issues—it is a constitutionally proper issue—is that it is not the MoJ which is in charge of every court and every courtroom, in the sense that judges ultimately decide listing, for example. When it comes to collecting data, we have to work with the judiciary to make sure that the data is appropriately captured. Judges, understandably, are very busy, and we have to make sure that we do not divert them and their staff from their main task, but I absolutely acknowledge that we need to do better on data.
One of the benefits of the reform programme is improving data collection: reform will deliver improved data on the way we schedule hearings and use court time, including the use of audio-visual technology. We published the HMCTS Data Strategy in December 2021, which is intended to build on the expanded data available to help transform our services.
We are doing some other things in the data space which I should mention briefly. One of these is making judgments available on the National Archives for the first time. At the moment, if you want to find a judgment you have to pay a private provider for a lot of them. We think that putting them on the National Archives will increase transparency and ensure free access for all. From April this year, that service will also host judicial review rulings, European case law, commercial judgments and many cases of significance from the High Court, the upper tier tribunal and the Court of Appeal. The Supreme Court publishes its judgments on its own website.
So far as protected characteristics are concerned, last week HMCTS published the first report summarising responses to the collection of protected characteristics. They were collected for the period between April and September 2021. It is the first time this information has been published, and we hope that that will be a valuable contribution to the dataset. I underline, however, that the survey is voluntary, so the statistics have to be read with that caveat.
Nightingale courts provided much-needed extra capacity. Of course, the problem was that we could not use a lot of our existing courts because they were too small, so we had to have Nightingale courts. Sometimes they heard criminal trials; sometimes they heard other work which freed up other jury trial rooms to hear jury trials. We have now opened two super-courtrooms, in Manchester and Loughborough, which are three times the size of a usual courtroom and allow for trials of up to 12 defendants. I underline that room is not actually the issue at the moment—we have enough rooms. As I said, the issue is the number of judges.
Another thing we have done to help reduce the backlog is increase magistrates’ sentencing powers. I will not say too much about this, because it was not mentioned by anybody else, but I underline that extending magistrates’ court sentencing powers from the current maximum of six months to 12 months’ imprisonment will enable us to bring criminals to justice more quickly by moving sentencing hearings from the Crown Court into the magistrates’ courts. We estimate that this frees up over 1,700 Crown Court sitting days a year. If you translate that into jury trials, that is another 500 jury trials per year. We are also investing more than £1 million in a recruitment campaign. We want a broader range of people to become magistrates and to boost their ranks by 4,000.
That is part of a broader judicial recruitment campaign. We aim to recruit 2,000 new judges over the next two years, which will enable us to have enough capacity to sit at the required levels over the coming years. So we are encouraging fee-paid judges, with a particular focus on recorders, to sit where they can and are needed, and we are raising the maximum number of days that they can sit each year without having to establish a separate business case. So, for the second year in a row, we have increased the maximum number of sitting days for all recorders from 30 to 80 days.
Over and above that, we have increased the statutory mandatory retirement age from 70 to 75 for judicial officeholders, which will enable us to retain an extra 400 judges and tribunal members, and 2,000 magistrates, every year. There has also been a reform to judicial pensions, but, given the time, I will not say more about that now.
I will say a word about online hearings. I underline that there are benefits in addition to getting cases through the courts. We heard about one: domestic violence. You do not have to go in the same room as your abuser. But there are collateral benefits in terms of diversity for lawyers. For example, if you live in Derby, it is much easier to take your children and drop them off at school and then attend a hearing remotely in Exeter. You can do that if it is remote, and there are many advocates who find that extremely helpful.
The noble Baroness, Lady Taylor, mentioned family courts. The Special Educational Needs and Disability Tribunal has been running as a completely remote hearing since the start of the pandemic. This means that families in crisis, often with children with complex needs, can seek justice more quickly and easily. So, although I absolutely accept that, as we move to online justice, we have to be cognisant of those with poor broadband and poor computer skills, and others who need help—I have made this point in the Chamber on a number of Bills and amendments—there are many advantages of online justice and we cannot tell the 98% that they have to wait for the 2%. We need to help the 2% and make sure that everybody has access to justice—I am passionate about that—but, equally, we need to see where justice is going, and justice is going online.
I turn to the backlogs with the caveat, as I said earlier, that the real issue is throughput and not backlog. We have already made significant strides towards recovery. In the magistrates’ courts—I apologise for throwing figures at the Committee—the caseload is close to recovering to pre-Covid levels. At the end of January of this year, the outstanding criminal caseload was 373,000. That was down from 445,000 in July 2020, a reduction of 16%. In the Crown Court, the outstanding caseload is down to 59,000. That is a reduction of about 2,000 cases since June last year. I absolutely accept that there is much further to go, but it shows that measures to tackle the backlog are starting to have an effect.
In the family courts, we have stabilised the outstanding caseload. In public law, the outstanding caseload by child stands at 21,000. We expect to see this start to fall over the course of this year. In private law, we have started to make inroads and the outstanding caseload by child has fallen to 83,000—down from 85,000 in August last year. The President of the Family Division was mentioned. I have very frequent and constructive meetings with him, and he and I are clear that we need a step change in family law, especially in private family law. Far too many private family law cases are going to court when frankly they should not be anywhere near a court. Back in 2015-16, the number of disposals per day was much higher than it is now; there has been a steady decline. That is nothing to do with the pandemic; there are other factors in family law that are going on and, whether it is the fact-finding hearings or other things, we need a real focus, and there will be a real focus, on private family law in particular.
In the civil courts, timeliness has improved. The average time it takes a small claim to reach its first full hearing has come down by three weeks. In the Immigration and Asylum Tribunal, the case load has fallen by 10%. That is down by 3,400 cases, and its timeliness has also improved.
I am conscious of the time but, if the Committee will indulge me, there was quite a lot said about juries so I hope I may respond fairly briefly. We heard from the noble and learned Lord, Lord Hope of Craighead, that remote juries worked in Scotland. I repeat what I said in the Chamber: we have no plans to introduce remote juries as a matter of course. The provision we put in the Bill is there on an “in case needed, break glass” basis. However, I respectfully suggest to the Committee that, if something is done in Scotland and they regard it as a proper way of doing justice, we perhaps should not find it as radical as some Members of the Committee seemed to see it.
The noble Lord, Lord Faulks, went further on juries. As he knows, we are consulting in the Human Rights Act consultation on the position of jury trials. It is right to say that when one looks at the Strasbourg jurisprudence and talks to lawyers from other jurisdictions, they find it odd that we have cases decided by people with no legal training who do not have to give reasons. Again, I respectfully ask the Committee to consider whether all the countries around the world which manage to decide their fraud cases without a jury are not operating a justice system. There is a real risk in a justice system that what is familiar becomes the only way of doing justice. I suggest that, ultimately, there are two reasons for why we should think very carefully before we move away from the jury system. However, neither has anything to do with its inherent superiority over other systems.
The two reasons are: first, the system in fact has the overwhelming confidence of the people of this country, and that is critical for a justice system; secondly, when you look at a jury—in particular, a jury of 12 because there are more people—you are more likely to see people like you. This is really tied to the first point, I suppose, but juries can be more representative of the community. This is well above my pay grade, so I will touch on this very briefly. I think it is slightly odd that we still ban research into juries. It is difficult to have any real debate—as in the one we are sort of having now—when, at the same time, the legislation effectively prohibits us finding out what actually goes on. If I say anymore, I might be out of a job, so I will stop there.
The noble Lord, Lord Faulks, also asked about our preparation for a future outbreak. Of course, we have learned from the Covid-19 pandemic. We now have a well-established pandemic-focused contingency plan, and we will also build more robust and tested plans to deal with other national events. We are already improving our readiness and planning for other strategic risks to our justice system.
If I can be indulged for another two minutes, I will turn to legal aid. The noble Lord, Lord Howarth, put a gauntlet down about how I will restore and renew the justice system. I am not sure that I can do that on a Wednesday evening. However, I point the Committee to our response to Sir Christopher Bellamy’s report. Also, the means-test review for both criminal and civil legal aid was published at the same time—please do not overlook that. There are a lot of very good ideas and proposals in that means-test review. We think that it brings 3.5 million more people within the scope of criminal legal aid, and 2 million more within the scope of civil legal aid.
Although the Criminal Bar Association is not particularly happy with the Government at the moment, what we said in response to Sir Christopher Bellamy’s report was welcomed broadly by the Bar Council, the Law Society and the Chartered Institute of Legal Executives. I say to the leadership of the CBA that the proposed action is ill-judged and unmerited, and I very much hope that they will reconsider. So far as the innocence tax is concerned, when the noble Lord, Lord Howarth, looks at the means-test review, he will see that it is one thing that we are proposing to do away with. It was a matter of a little regret that he did not mention that in his speech.
We also want people to be able to resolve issues without lawyers. For example, with the new online whiplash claims service and the online money claims service, they can do all that without a lawyer. We are running the system hot; there is no limit on sitting days; we are going to hear as many cases as we possibly can.
I underline that it is no part of my approach to clip the wings of the judiciary, but there is a proper constitutional debate to be had about judicial review and the Human Rights Act, and we will have that in due course.
I am conscious that I am trespassing on the Committee’s patience. I say in summary that we acknowledge that there is a lot more to be done. I hope that the Committee sees that we are doing a lot. We are very focused on justice for all. I think that the benefits from the pandemic are that we will emerge from it with a stronger justice system that is really suited to the 21st century.
Prisons: Releasing Women into Safe and Secure Housing
Lord Wolfson of Tredegar Excerpts(2 years, 6 months ago)
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Baroness Whitaker (Lab)
My Lords, on behalf of my noble friend Lady Warwick of Undercliffe, and at her request, I beg leave to ask the Question standing in her name on the Order Paper.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, our vision is that no female offender who is subject to probation supervision will be released from prison homeless. Building on the success of our Covid emergency scheme, last July we introduced a transitional accommodation service for prison leavers in five regions, and we are expanding it further. We hold the system to account through ambitious accommodation targets set out in the target operating model that we introduced last year.
Baroness Whitaker (Lab)
My Lords, that is well and good—I am grateful to the Minister—but while it is good to know that some progress has been made, there are still problems. The accommodation service is in place in only five of the 11 probation regions of England and Wales, and there has been no commitment to timelines or to safe and secure housing specifically for women. Some 77% of women left one prison without any safe and secure housing; one was provided with a tent. The service provides temporary housing for only 12 weeks. Can the Minister give some commitment on timing for rollout and on what the Government will do for vulnerable prison leavers after 12 weeks? Can he indicate how support will reflect the particular needs of women?
Lord Wolfson of Tredegar (Con)
There was quite a lot in that question. I acknowledge that it is a very important topic. I will pick up on a couple of the points made. The 77% figure comes from the recent IMB report for HMP Bronzefield, and it refers to safe and secure accommodation. That is a different approach to what we use, which is to determine whether people are actually homeless. Do they have somewhere—a roof over their head—for that night? We are very aware of the particular needs of women prisoners. Our accommodation programme is targeted at all prisoners, but we have particular people working in women’s prisons to ensure that women’s needs are specifically met.
Lord Moylan (Con)
My Lords, as my noble friend has just illustrated, there are wide discrepancies in the ways in which homelessness is measured for women leaving prison between the Prison Service and the independent monitoring board at Bronzefield. I am grateful that the Government recognise that something needs to be done about this to give confidence in the figures. Can the Minister say when we can expect a set of robust categories to be in place, on which everyone can agree?
Lord Wolfson of Tredegar (Con)
I think that robust categories are in place. We define homelessness, in accordance with the legal definition, as being where the individual does not have any accommodation available and reasonable for them to occupy, including where they may be rough sleeping, squatting or in a night shelter, emergency hostel or campsite. It is very important to ensure that we are all looking at the same data. We publish the data annually and I invite all noble Lords to look at those figures.
Baroness Burt of Solihull (LD)
My Lords, the disparity between government figures and those of the independent monitoring board is because we do not have one standard measure of what acceptable accommodation for prison leavers looks like. It is not a sofa, and it is not a tent. Will the Minister commit to facilitating the production of one standard measure? What we do not measure, we cannot manage.
Lord Wolfson of Tredegar (Con)
I absolutely agree with that point. I have said from this Dispatch Box, on a number of areas, that data is absolutely critical. We need to ensure that we are looking at the same thing. I set out the legal definition of homelessness, and we publish statistics on this. I am pleased to say that there has been an improvement in the figures recently. The percentage of prison leavers recorded as either homeless or rough sleeping has fallen from 16% to 12%. We want to make that even better.
The Lord Bishop of Leeds
My Lords, Friday releases from prison, in particular, are hugely problematic. This is particularly the case for geographically dispersed women’s prisons, because women cannot travel home in time to make a housing application with their local authority before the office closes. Are the Government aware of this specific problem, and can they offer any solutions as to what can be done to overcome it?
Lord Wolfson of Tredegar (Con)
My Lords, I am more than aware of this problem, because we debated it both in Committee and on Report for legislation which was going through this House. It is a real issue, and particularly for prisons which are in more disparate parts of the country where it can take people longer to travel back to where they originally came from. Prison governors are aware of this. The figures—which I do not have at hand—are getting better in this regard. Perhaps I can write to the right reverend Prelate further on this point.
The Lord Speaker (Lord McFall of Alcluith)
My Lords, we have a virtual contribution from the noble Lord, Lord Howarth of Newport.
Baroness Armstrong of Hill Top (Lab)
My Lords, it is very clear that many women end up in circumstances where perpetrators of abuse exploit and take advantage of them if they are not in safe and secure housing. One recent study has shown that, overwhelmingly, a number of those women in prison have previously been subjected to abuse and, therefore, suffer trauma. Is not the priority, therefore, to ensure that there is more trauma-informed work available to work with women, so that they do not enter the criminal justice system?
Lord Wolfson of Tredegar (Con)
My Lords, the noble Baroness is absolutely right, but we have seen a significant reduction in the number of women prisoners in the past three to four years. There will always be some women in prison, but the figures have gone down significantly. In addition, as we are talking about housing, four of the housing specialists that we have put into prisons are specifically in women’s prisons, so they are acutely aware of the particular needs of women prisoners. They are in Styal, Bronzefield, Peterborough and New Hall.
Baroness Sater (Con)
My Lords, we know that, sadly, a large number of women in prison were victims of domestic abuse before they started their sentence. This makes leaving to live in safe and secure housing vitally important—but equally important is psychological support. What are the Government doing to ensure that specialist mental health support and mentoring are available for all women leaving prison for as long as they need it?
Lord Wolfson of Tredegar (Con)
My Lords, this is obviously a very important issue. We have tried to join up the dots between the Prison Service and the NHS. The problem in the past was that women left prison, and the NHS did not know about them; the Prison Service had, so to speak, passed them on to nobody. The GP is the best way in which to access mental health support, in particular, in the community. Therefore, we are working with the Prison Service to make sure that the links between the Prison Service and the NHS are stronger and better.
Lord Ponsonby of Shulbrede (Lab)
My Lords, the Minister in answer to my noble friend’s question said that his vision was that no women prisoners should be homeless. We have seen from the questions of noble Lords, and from the noble Baroness, Lady Sater, my former colleague, the breadth of the problems that women prisoners face when they come out of prison. Can the Minister say something about how he will monitor the impact of the Government’s policy to see that this integrated support, which is the only way in which to prevent reoffending, is actually working?
Lord Wolfson of Tredegar (Con)
My Lords, integrated support is absolutely key—I agree with the noble Lord on that. We have done a number of things; we have set up a scheme to offer 12 weeks’ accommodation to prison leavers with support to move to settled housing and, by 2024-25, we will be investing £200 million per year to transform our approach to rehabilitation. But of course we need to be held to account on this, and we hold the Prison Service to account on this. We publish data, and the data is meant to be clear and transparent. There has been an improvement in the figures, and I want to see them improve even more.
Lord Singh of Wimbledon (CB)
My Lords, I declare an interest as head of the Sikh prison chaplaincy service. Prison chaplains can play an important role in rehabilitation. Does the Minister agree that smaller faiths should have the same access to prisoners, in education, pastoral care and so on, as the larger faiths?
Lord Wolfson of Tredegar (Con)
My Lords, I disagree with the noble Lord only on one point, when he said that prison chaplains can play an important role for prisoners, including in rehabilitation. I think that underestimates the point; I would say that prison chaplains can play a crucial and fundamental role in prison life, in and outside prison. As to smaller faiths, maybe I should declare my interest, because I agree.
Barristers Leaving Criminal Practice
Lord Wolfson of Tredegar Excerpts(2 years, 6 months ago)
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Lord Howarth of Newport
To ask Her Majesty’s Government what plans they have to bring forward measures aimed at reducing the number of barristers leaving criminal practice.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, our plan is more work for criminal barristers at higher fees. We have made radical proposals for wholesale reform of legal aid, provided £150 million more on fees and £20 million more for longer-term reform, and increased sitting days so that the Crown Court can get through more trials. The combined effect of our plans will take expected criminal legal aid spending to £1.2 billion per year.
Lord Howarth of Newport (Lab) [V]
Does the Minister accept that before this week’s announcement, a decade of underfunding by the Government brought the criminal Bar to near collapse? Criminal advocates, having suffered a 40% real-terms cut in their earnings, were exiting criminal work in droves—a quarter of junior barristers and half of all QCs. Criminal trials were being adjourned for lack of available counsel and it was taking up to five years for cases to come to trial. Therefore, I welcome the Government’s acceptance this week of the Bellamy review recommendations, but why did it take the third threat in eight years by criminal barristers to go on strike before the Government acted? Also, does the Minister understand that it is far from clear that the Government have provided enough money for the remuneration of criminal law barristers to keep them in the system?
Lord Wolfson of Tredegar (Con)
My Lords, it did not take the threat of a strike from the Criminal Bar Association for us to respond to Sir Christopher Bellamy’s report, but I hope that our responding in a way which has drawn broad welcome from the Bar Council, the Law Society and the Chartered Institute of Legal Executives will mean that the Criminal Bar Association will withdraw its utterly ill-thought-out and unfounded strike proposal.
Lord Kirkhope of Harrogate (Con)
My Lords, I declare my interests here. Can my noble friend say what further proposals there may be to allow solicitors to appear in the higher courts?
Lord Wolfson of Tredegar (Con)
My Lords, solicitors need a higher rights of audience certificate to appear in the higher courts. We are in discussions to ensure that this system is working well. However, as part of our response to Sir Christopher Bellamy’s report, we are looking at opening up more opportunities for legal executives to do more work in the courts, particularly in the higher courts. That would also improve diversity, because the diversity of legal executives is in much better shape than it is for solicitors and quite a lot better than it is for barristers.
Lord Anderson of Swansea (Lab)
My Lords, perhaps the effect of the cuts has been felt most harshly on younger barristers at the very start of the profession. Up to 25% have left the profession over the past five years, despite having done the pupillage and Bar examinations. For them, legal aid has been a lifeline, allowing them to survive and have a decent career. What assessment have the Government made of the effects of these changes on the younger barristers and the likelihood of them staying in the profession?
Lord Wolfson of Tredegar (Con)
My Lords, we think that these changes will be a systemic change in legal aid: 3.5 million more people will be eligible for legal aid in magistrates’ courts and 2 million more people will be eligible for civil legal aid. We think that will help the Bar generally. Our other plans—for example, having more online hearings—mean that barristers are not spending money on travel and that a barrister can, for example, drop their children off at school and then attend a hearing 200 miles away.
Lord Hope of Craighead (CB)
The Minister has just mentioned travel. Has any thought been given to reimbursing barristers for the cost of travelling to and from the courts in which they are to appear, particularly in the case of junior barristers, for whom a substantial part of the fee is taken up simply by the cost of travelling to and from the court?
Lord Wolfson of Tredegar (Con)
The noble and learned Lord is absolutely right. We do look at the cost of travel for barristers. As I have just said, we hope that increased online hearings will mean that travel costs are essentially reduced to zero, with more money therefore going into barristers’ pockets. That is something that we are looking at. We have constant discussions with the judiciary on that. Ultimately, however, whether a hearing is heard in person or online is a decision for the judge, not for Government Ministers.
Baroness Smith of Basildon (Lab)
My Lords, I suspect that industrial action by barristers would get as much public sympathy as industrial action by politicians. I welcome the Minister’s comments, but that was not the influence; the Government thought that it was what they wanted to do anyway. I also suspect that if the Minister had been in post earlier, we might not have seen the appalling LASPO Act, which cut so much legal aid, no doubt contributing to this problem. Following his announcement today, are the Government planning to review the impact of the changes so that they can later assess whether or not they are having the desired impact?
Lord Wolfson of Tredegar (Con)
My Lords, as a barrister-politician, I now know where I stand in public esteem. The noble Baroness is right. One of the issues has been that there has not been a means-test review in civil legal aid, for example, for a long time. While we are not proposing to review it annually, we will keep it under review to ensure that the general package keeps in line with where public pay is and where public costs are, to ensure that the underlying principle of access to justice is maintained.
No-fault Divorce
Lord Wolfson of Tredegar Excerpts(2 years, 6 months ago)
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Baroness Deech
To ask Her Majesty’s Government, further to the letter from Lord Keen of Elie to Baroness Deech on 16 March 2020, what progress they have made on reforming the law governing financial provision on divorce to align with the introduction of no fault divorce.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, the letter from my noble and learned friend Lord Keen was sent at the conclusion of the parliamentary process for the divorce Act. In the intervening two years, we have prioritised the implementation of the fundamental reforms of that Act, which will commence on 6 April. Following that commencement, we will consider how best to proceed with the commitment in that letter, and we will announce our intentions in due course.
Baroness Deech (CB)
My Lords, the new no-fault divorce law is coming into force in three weeks’ time, but the most miserable and litigious part of it will remain: the law about splitting assets and paying maintenance. That law is so bad that the ministry is paying couples £500 each to mediate and avoid it. The promise was made two years ago to review it; where is that review? Gathering evidence is no excuse for not formulating principle, and I can offer this piece of evidence right away: legal costs eat up chunks of the assets. Unless it is reformed, the no-fault divorce law will fail to achieve its aims. Will the Minister assure the House that vested interests are not blocking reform, and will he give a timetable for completion of the financial provision project?
Lord Wolfson of Tredegar (Con)
My Lords, I do not make any apology for the mediation voucher scheme; it is important to encourage mediation in family law, as indeed across the civil justice system more generally. However, we have committed to exploring the financial provision aspects of divorce after the Act comes into effect. I cannot give the noble Baroness a timetable, but I assure her that we will look at this as a matter of principle and will not be bowed down by vested interests, whether legal or otherwise.
Lord Thomas of Gresford (LD)
Following the reference made by the noble Baroness, Lady Deech, to vested interests, I ask: have the Government had representations from solicitors practising in this lucrative area, or from members of the family Bar, to keep fault as an issue in financial provision proceedings? If so, what was the Government’s response?
Lord Wolfson of Tredegar (Con)
My Lords, I have not had representations from those entities, but I dare say that the department might have done. We get representations, frankly, from all areas of the legal profession, and indeed more broadly, all the time. We will look at this issue on its merits. We have set out that we want to make sure that financial matters are dealt with as amicably as possible. The divorce Act will be a very good start and, as I say, we are encouraging it through family hubs, mediation vouchers and many other ways too.
Baroness Shackleton of Belgravia (Con)
My Lords, I speak as a foot soldier operating under the current system. I would like to explore with the Minister the redundancy of the current legislation, which is now 40 years old. Society has changed, as has the way we operate, and the rules are so left to the judge’s discretion that there is an industry—I am almost ashamed to practise in it—which fine-tunes, for money, applications for ancillary relief because no one can predict the outcome of such an application accurately. We talk about the mythical mediator, but the mediator has to know what the rules are, because how can they mediate without the rules being clear and explicit? The noble Baroness, Lady Deech, and I—
Baroness Shackleton of Belgravia (Con)
I would like my noble friend the Minister to be nailed down to a timetable, and I would like to know what that is because—I was going to build up to the question—we are fully welcoming the Act that Parliament has passed facilitating divorce without the end of the financial remedies being sorted. We need a timetable.
Lord Wolfson of Tredegar (Con)
My Lords, I am not sure whether my noble friend is a foot solider or somewhere between a major-general and a field marshal in this area of the law. May I gently suggest that perhaps not all lawyers charge by the word? I respectfully say that in this area of law, as in many areas of law, there is a balance to be struck between discretion on the one hand and certainty on the other. You need clear rules, but you also need a judge to have discretion to do the right thing in the individual case. That is what we will be striving for when we look at this area of the law about financial provision on divorce.
Baroness Butler-Sloss (CB)
My Lords, as a former foot soldier who tried a very large number of these cases, I believe it is a far more complicated area than either the noble Baroness, Lady Deech, or the noble Baroness, Lady Shackleton, has said to the House. I would be very unhappy with a timetable; the Government ought to get on with it, but they need to take a lot of sensible advice before they put forward proposals. That is my suggestion to the Minister.
Lord Wolfson of Tredegar (Con)
My Lords, I am very grateful for that question. Of course, we will take advice from a broad range of stakeholders and others. Indeed, in preparing for today I also looked at the laws in other jurisdictions. Although it is fair to say that, for example, prenuptial agreements are enforceable in Spain, which they generally are not in England and Wales, they are not enforceable if the judge considers that they are detrimental to the children or seriously damaging to one of the spouses. So again, the House will see that that balance of certainty and discretion is so important to try to reach in this area.
Baroness Smith of Basildon (Lab)
My Lords, as the noble Baroness, Lady Deech, said when she first proposed this Question, the whole point was to make divorce, by being no fault, less acrimonious and less difficult. The missing part is the financial aspect. In the current system that creates more acrimony and difficulty, especially when children are involved. When the noble and learned Lord, Lord Keen, wrote to the noble Baroness, Lady Deech, he said that such a review would take “two to three years”. That plays into what the Minister said just now about how complex and difficult this is, but does that not mean that we ought to make a start as soon as possible? It feels like the ghost of Sir Humphrey is around, with “in the fullness of time”, “as resources allow” and “in due course”. Nobody is asking the Minister to come up with answers now—only to start the review, which is urgently needed.
Lord Wolfson of Tredegar (Con)
My Lords, I hope I have made it clear that we are talking about a matter of weeks once the Act comes into force. We will look at this area very carefully. I know that the previous and current Lord Chancellors are focused on this area. Looking at family law generally, we want to see fewer private family cases before the court and maintain the public family cases before the court. Many private family cases really ought to be resolved out of court, through mediation and in other ways. We will work towards that.
Lord Farmer (Con)
My Lords, how have the Government strengthened support for separating couples in preparation for the commencement of this divorce Act on 6 April? In particular, how will they help ex-partners and children cope with the considerable emotion and conflict that being unilaterally divorced will provoke and which might last for years?
Lord Wolfson of Tredegar (Con)
My Lords, we of course recognise that divorce can be a stressful time for families. We want to make sure that support is there for separating couples. We have invested in family hubs and the family mediation voucher scheme. We also have a Reducing Parental Conflict programme. However, we also think that the new divorce Act will lead to more amicable divorce and will itself take some of the heat out of the issue.
Baroness Walmsley (LD)
My Lords, let us not put the cart before the horse by changing the law before thinking about the most acrimonious part of divorce. Is it not true that a no-fault divorce does not necessarily mean that there was no fault? In which case, is it not all the more important that there is equality of arms between the two people concerned when it comes to mediation on a financial settlement?
Lord Wolfson of Tredegar (Con)
My Lords, yes: no-fault divorce means that the question of fault is essentially irrelevant to the fact of the divorce. As to equality of arms, that is where mediation is so useful. Families who participated in the mediation voucher scheme tell us that it really took the heat out of the issue as they could sit down outside a court setting and resolve their issues. For every multi-million pound divorce that you read about in the papers, hundreds—indeed, thousands—of divorces go through without too much acrimony, other than the acrimony perhaps inherent in the fact of being divorced. We want to build on what we think is a movement in the right direction.
Early Legal Advice Pilot Scheme Order 2022
Lord Wolfson of Tredegar Excerpts(2 years, 6 months ago)
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Lord Wolfson of Tredegar
That the draft Order laid before the House on 19 January be approved.
Relevant document: 29th Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 10 March.
Early Legal Advice Pilot Scheme Order 2022
Lord Wolfson of Tredegar Excerpts(2 years, 7 months ago)
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Lord Wolfson of Tredegar
That the Grand Committee do consider the Early Legal Advice Pilot Scheme Order 2022.
Relevant document: 29th Report from the Secondary Legislation Scrutiny Committee
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, I beg to move this statutory instrument, which establishes the early legal advice pilot scheme that will be conducted in Middlesbrough and Manchester for a time-limited period. The instrument amends part 1 of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012, colloquially known as LASPO, to bring civil legal services for certain housing debt and welfare benefit matters in scope of legal aid for the purposes of the pilot scheme. It makes consequential amendments to secondary legislation for the purposes of that pilot scheme. The draft order is made using the powers conferred by LASPO itself.
The instrument lays the necessary foundations to put the pilot scheme into operation and signifies a crucial step in delivering a key commitment made in the Ministry of Justice’s legal support action plan, which we published in 2019. Through the pilot scheme, we will test the impact of early legal advice on the resolution of legal problems. We will also seek to quantify the benefits to individuals, their support networks, the Government and, ultimately, the taxpayer.
Civil legal aid is available to an individual if their issue is listed in Part 1 of Schedule 1 to LASPO. Legal aid may also be available on an exceptional basis where there would be a breach, or the risk of a breach, of the individual’s rights under the European Convention on Human Rights or any retained enforceable EU rights. This is known as exceptional case funding, or ECF.
Eligibility for legal aid, for both in-scope matters and ECF, is subject to a statutory means and merits assessment. The means test sets out that, if an individual’s capital or disposable income is above a certain threshold, they are generally not eligible for legal aid. There are different merits tests depending on the type of case but, generally, the merits test provides for a cost-benefit test and a “prospects of success” test. If those tests are not met, again, funding would not be granted. Under the current arrangements, legal aid for social welfare law matters such as debt, housing and welfare benefits is limited to the most urgent and important circumstances, for example if an individual is at risk of losing their home through eviction or repossession. This is so that legal aid is targeted at those who need it most.
However, during the post-implementation review of LASPO, we heard from respondents that the reforms in that Act, which came into effect in 2013, might have caused increased financial costs to individuals, their support networks and the Government. Those respondents explained that individuals experiencing social welfare legal problems, especially related to housing, were now unable to resolve their problems at an early opportunity. This meant that they were now likely to experience problem-clustering and problem escalation, each of which can lead to costly intervention. Frequently cited examples included increased use of court services for possession proceedings; greater reliance on welfare benefit and on temporary and permanent accommodation services; and increased use of health services for stress and anxiety.
Although we have some anecdotal evidence to support the view that early legal advice could produce benefits to individuals and to local and central government, there is limited empirical evidence. In particular, there is limited evidence in relation to the financial impact of early intervention through the legal aid scheme. I am sure we can all agree that the argument that early intervention can result in cost savings feels intuitively correct. However, in order to make robust arguments for funding for early legal advice and ensure that we provide value for money for the taxpayers who will fund it, we need an argument based on actual evidence. We are therefore bringing these matters into scope and using the pilot scheme as an opportunity to gather robust, quantitative evidence that can demonstrate whether early legal advice can lead to early problem resolution, thus bringing savings to the public purse.
The pilot will be in two specific areas—Manchester and Middlesbrough—and will be time limited, from 1 April 2022 to 31 March 2024. Individuals will be eligible if they live, or habitually reside, in the area of Manchester City Council or Middlesbrough City Council. They must be selected to participate by a person appointed by the Lord Chancellor, who will publish guidance explaining who the person will be—they might be an independent evaluator—and how they must select participants. Participants will receive a maximum of three hours of advice and assistance for housing, debt and welfare benefit matters.
We have worked closely with legal aid providers and other government departments to devise the pilot scheme and finalise the terms of this amendment. The amendment to Part 1 of Schedule 1 to LASPO in this instrument brings these matters into scope for legal aid, subject to some exclusions outlined in the order; for example, participants cannot receive advocacy or representation services. This reflects the intentions of the pilot because it is all about advice before court proceedings are initiated.
It covers, therefore, civil legal services relating to advice and assistance in relation to housing, debt and welfare benefits for a maximum of three hours. Participants can receive advice and assistance irrespective of whether their matters fall into one or all of those categories. They will receive holistic advice on all those categories as far as needed. The maximum time for advice is fixed at three hours, but there is no means or merits test. The only criteria are the geographical requirements and that they are included in the pilot scheme by the person appointed by the Lord Chancellor.
Lord Ponsonby of Shulbrede (Lab)
My Lords, the noble Lord, Lord Thomas, has given us an historical context for what we are receiving through this statutory instrument. We of course support it, because it goes some way to ameliorating the position we have had since the massive cuts in 2013 with LASPO. The noble Lord has made the broader points, with which I agree.
I want to focus on two particular questions, one of which was asked by my honourable friend Afzal Khan when this matter was debated in the House of Commons. He contacted the Greater Manchester Law Centre and the Law Society there, the only two welfare benefit and legal aid providers in Manchester city and the only two debt legal aid providers in Middlesbrough, one of which also advises on welfare benefit law. He made the point in the House of Commons that the scheme will undoubtedly create an increase in demand. There was scepticism, from that limited number of providers, whether the three-hour limit is enough in itself and whether the pay is enough for those three hours. How, given that there is very likely to be an increase in demand, will the ministry respond?
The Minister used a couple of phrases that I thought were appropriate when he talked about the problem of the clustering of cases around a multitude of different contexts—housing, welfare and the like—and about the problem of escalation. From different parts of our working lives outside this House, we all know that both of those things are right and true, both in the housing context and the criminal justice context as a whole—something I know from my work in magistrates’ courts.
The Minister said that there was limited evidence of financial benefit from early intervention. The noble Lord, Lord Thomas, expressed extreme scepticism, and I agree with him: there is a multitude of reports about the benefits of early intervention, and I have lost track of the number of early-intervention pilots that I have seen on the criminal justice side that have fallen by the wayside for various reasons.
I will raise another question, which comes from the Secondary Legislation Scrutiny Committee report’s appendix 2:
“Further information from the Ministry of Justice on the draft Early Legal Advice Pilot Scheme Order 2022”.
Question 1c is as follows:
“The wording of the SI indicates that those who are selected but receive no advice will also be informed that they are part of the pilot—will that control group also be required to fill in any evaluation or description of their experience? Otherwise, they will be just like any other Housing benefit claimant—what marks them out?”
That is to say, what marks them out as different in the data collected? The answer is:
“The pilot is seeking to develop robust quantitative impact evidence, and so how to best collect control or comparison group evidence is a priority issue to be examined. The specific criteria and process for identifying and engaging the control or comparison group is to be determined based on feasibility work to be undertaken by the independent evaluator.”
I did not read that out very well, but I understand what it means. My experience on the family court side is that a large number of people drop out of the system. Advice is made available and people start accessing it, but then the process becomes difficult and tiresome and people just stop engaging.
So, arising out of that question and answer, my question to the Minister is: will there be an evaluation of people who start the process but do not finish it? That is part of the overall cost, and it is also a demonstration of the impact or otherwise of these schemes. As I say, from my experience in a different context—family law—a very big part of the overall picture is the people who do not pursue the advice and support that are available to them because doing so is just too burdensome.
Lord Wolfson of Tredegar (Con)
My Lords, I am very grateful for the contributions from the noble Lords, Lord Thomas of Gresford and Lord Ponsonby of Shulbrede. I will pick up a few points in response. On the Treasury being behind it, I say that this is not a Treasury-driven measure, in the sense that the sole focus is not the public purse. But we have to recognise that the Treasury is ultimately behind the legal aid system: it is funded by the public purse, and we have to make sure that we get value for money.
One of the things that we are doing here is trying to answer this question—we all feel this instinctively, perhaps, and, as the noble Lord, Lord Thomas, said, there are lots of people in the market, so to speak, who say, “Spend some money now; you’ll save more money later on”. But we want to have some robust evidence to see to what extent that is actually the case—and also to see to which particular groups it applies more and to which it applies less. We have a very diverse population, and one of the things that we will be able to do in the pilot is look at people with different backgrounds and needs and see the extent to which the early legal advice actually helps. Although I am well aware of the research by the various NGOs that the noble Lord mentioned, that is not empirical evidence. We do not have the robust, quantitative evidence that we will get from the pilot.
I will pick up the points made the noble Lord, Lord Ponsonby, who asked a few questions around time limits and associated points. First, on the appropriateness of the fee, I explained the 25% uplift. To obtain the figure for the underlying fee, we used the existing non-London hourly rates for housing and family matters; that generated the baseline fee for the work. We added the 25% uplift to increase the extra costs. We are confident that that will mean that we get proper take-up from providers.