Rights, Equality and Citizenship Programme (Revocation) (EU Exit) Regulations 2019

Yasmin Qureshi Excerpts

Monday 28th October 2019 General Committees

[Yasmin Qureshi (Bolton South East) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Gray. I thank the Minister for outlining the purpose of this particular provision. He set out what the fund does and the important work it has carried out in the last number of years and that it will continue to carry out.

During an earlier Statutory Instrument Committee, I told the Minister that I wanted clarification on a number of questions. We are concerned about regulation 4, which states that

“the Secretary of State may grant and provide financial assistance”.

Regulation 4(2) states:

“Financial assistance may be provided in such form and on such terms as the Secretary of State considers appropriate.”

The wording of those two sentences suggests an element of discretion and that the Secretary of State or Minister may not follow this through properly. For example, if somebody has already been awarded money and has received only some of it, the question is whether they will be entitled to the rest of it, or whether that will be reliant on the fact that the Secretary of State “may” grant it, as opposed to “should” grant it, if certain criteria are fulfilled.

We have a number of other questions. If we exit without a deal, what happens if A has applied for a grant but has not yet received a decision? Would that mean that that application had finished? Alternatively, if the EU decided to agree to the application, who would pay that funding? Will the European Union still be allowed to consider applications that have not taken place once the exit has been done? As we know, the fund runs until 2020. If someone makes an application after we exit without a deal, will the European Union have the power to look at it, and, if it grants funding, is it the Government or the European Union that would pay?

If B applies after exit without a deal but before December 2020, are they still allowed to apply? If we exit with a deal, during the transition period will funding that has not yet been granted be paid by the European Union or by our Government, and who will pay for applications that are under consideration or have been successful? Will the payment be guaranteed, because regulation 4(1) states that the Secretary of State “may” rather than “will” grant? Finally, will the Minister confirm that the Government guarantee to award funding to programmes within the scheme?

Civil Jurisdiction and Judgments (Civil and Family) (Amendment) (EU Exit) Regulations 2019

Yasmin Qureshi Excerpts

Monday 28th October 2019 General Committees

[Yasmin Qureshi (Bolton South East) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Paisley. I thank the Minister for outlining the proposed changes. The fact is that we would not be in this mess if the Government had anticipated and made allowances for those rules.

As a current European Union member state, the United Kingdom applies the Brussels I regulation to legal disputes of a civil or commercial nature. That set of rules has made proceedings much easier, be they domestic or disputes in other European Union countries. The current system creates an affordable and effective process for the recognition and enforcement of intra-European Union judgments. Small traders or consumers can easily take their cases to their domestic courts using local lawyers, and the domestic judgment is then recognised across the whole of the European Union. That is a considerable and useful advantage to many people of limited means.

Big companies can fight litigations, but small businesses, employers and those fighting family dispute matters will have to go to different courts to exercise their rights, which will make things much more complicated for them. We believe that the Government should have anticipated those matters and put in place a mechanism to deal with them. The Opposition will abstain in a vote on the provisions because we believe that the Government have not done enough to protect people’s rights—the provisions have been introduced at the last minute, but they are not good enough.

The Government should have worked much harder to anticipate and deal with this matter to ensure that people’s civil rights are protected, be they for employees against employers, in family disputes or in small-business and commercial disputes. The Government are introducing legislation at the last minute to avoid the inevitable chaos of exiting the EU without a deal. Essentially, the Government should have anticipated this and done more to protect workers’ rights and the rights of the individual, to make life easier for everyone. On that basis, we will abstain.

Procedure for Appointing Judges

Yasmin Qureshi Excerpts

Tuesday 8th October 2019 Westminster Hall

[Yasmin Qureshi (Bolton South East) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Sharma. I congratulate the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) on securing this debate.

It is fair to say that in the wake of the Supreme Court’s recent ruling, some Government Members and even Ministers began to call for the reformation of the judicial appointments system. That tells us that some of those people—often those with very hard Brexiteer points of view—are not interested in parliamentary sovereignty or judicial independence, and they do not respect our traditions or our democracy. As the Chair of the Select Committee on Justice, the hon. Member for Bromley and Chislehurst (Robert Neill) said earlier, the attack on the judiciary by the media was disgraceful, but, sadly, so were some of the words used and the comments made by Members of this House.

It should be said repeatedly and clearly that the selection hearings of the US system have no place in our democracy, and nor do the highly political workings of the US justices. In the immediate aftermath of the Supreme Court’s ruling, the Attorney General seemed to suggest that Parliament would need to look at a judicial appointments system, although I am pleased to hear that he has rowed back on those comments since making them. Those calling for an American-style process rather than a Supreme Court-style one have little interest in the constitutional frameworks that have been essential to government in this country for centuries.

Although these arguments will not be new to anyone, they perhaps deserve reiteration. The US system is beset with practical problems. It allows the President to nominate judges on an explicitly political basis, and even if we accept that idea—which we do not—the power to nominate is not equally distributed. Instead, the make-up of the US Supreme Court is determined by whoever is President when judges become unable to continue in their role. The make-up of the most powerful court in the land is political and dangerously random, and the result is neither stable nor fair. That holds especially true when an Executive like the USA’s current one chooses not to respect conventions or tradition. As the Chair of the Justice Committee also said eloquently, we have only recently seen the unedifying spectacle of a USA-style confirmation hearing.

There is a great deal to be proud of in our judiciary. Our commercial courts are widely recognised as some of the best in the world; every year, a huge number of international litigators choose to come to the UK because they know they can rely on fair treatment. Last year, our legal sector alone contributed around £26 billion of trade to the UK. Even in our tragically undervalued criminal courts, on the back of yet another week of courts being unnecessarily shut, the judiciary is soldiering on impressively.

I admire the durability and professionalism of our judges, along with the rest of the court staff. They deserve significant credit for propping up a system that I am afraid the Government have done little to support, as shown by those court closures. Only recently, I have received emails from some judges—especially recorders—who say that they are expected to attend different courts in the UK at the last minute. They sometimes cannot do so because of their own work commitments, but they are effectively told that if they do not, their chances of being confirmed as judges may well be impacted. There is evidence, even from the Ministry of Justice’s figures, that the time it takes for court cases to come to trial has recently grown longer, while courtrooms are sitting empty and shut. Despite that, our judges, recorders and magistrates continue to work really hard to support our system, and I commend and thank them for all their efforts.

Despite attempts by some people to find political intent in the recent Supreme Court ruling, the decision was a powerful demonstration of the vital power of a genuinely independent, apolitical judiciary. It ruled without fear or favour, and in doing so it protected our democracy. The judiciary in this country has a long and noble tradition, and it is best that we respect that.

Balanced, learned and direct, Baroness Hale is in many ways the best of that British tradition, but the barriers that she has faced are illustrative of how uneven our justice system still is. For far too long, justices have been predominantly people of privilege with wealthy backgrounds, predominantly men and predominantly educated at private schools. Baroness Hale was only the second woman to be appointed to the Court of Appeal. She is the first female Lord of Appeal in Ordinary and the first female President of the Supreme Court. It should worry us all that women still have to break the glass ceiling. A century on from the Sex Disqualification (Removal) Act 1919, we are still yet to achieve real proportional equality in our public bodies and institutions. The Law Society also agrees that our current system for the appointment of judges should be maintained and not changed.

I hope we can all agree that the US system is clearly a bad one, but perhaps today is an opportunity to focus the debate on how we can alter our judicial appointments system not to make it political, but perhaps to make it more representative. As a young barrister, I saw many hugely talented people who did not fit the accepted demographic of a judge. Some struggled their way to the top; too many did not. There have been encouraging steps as the number of female judges has risen. However, it is important that we do not fall into the trap that many businesses do and focus exclusively on comparing numbers without looking at seniority. Although it is heartening to know that the percentage of female tribunal judges is nearing 50%, that falls to 32% for court judges, and for high court judges the figure is well under 30%.

The issue is even more glaring in the case of black and ethnic minority members of the judiciary. Reading through the judicial diversity statistics this year, I see that the Ministry of Justice reports that 11% of new judges in the court were BAME, compared with 6% of those leaving. That is a paltry rate of change that will leave our judiciary disproportionately unrepresentative. The judicial mentoring scheme and the pre-application judicial education programme are good initiatives, but they are nowhere near enough. In a judiciary that continues to display systemic problems, well-intentioned mentoring schemes are unlikely to go far enough.

Worryingly, a metric seems to have crept in that rarely appears in official Government documents in any other Department. For several years in a row, the annual judicial diversity statistics have qualified their admission that the number of BAME judges remained low by comparing the ratio of BAME judges with the ratio of people within a certain age bracket. We are told that

“BAME representation among tribunal judges was similar or higher than that of the general population at all age bands from 40 and over.”

That might seem reasonable at first reading, but it deserves further attention. Where else in Government documents are disparities justified by cherry-picking age groups for comparison? That is done to match proportions that are decades out of date. Our judiciary should not be representative of people over 50, or even 40; it should be representative of our nation as a whole at every stage. Everyone who passes through our justice system should feel that it genuinely represents them. Between 2014 and 2019, the proportion of BAME court judges increased by 2%, which takes us to 7% of court judges. The Government need to move faster.

In the Lammy review, my right hon. Friend the Member for Tottenham (Mr Lammy) stated:

“The government should set a clear, national target to achieve a representative judiciary and magistracy by 2025. It should then report to Parliament with progress against this target biennially.”

It was a bold aspiration with an ambitious deadline. It was an opportunity to facilitate a change, but the Government have missed the opportunity. Despite some positive noises, we have not seen any real changes, and that leads us to the inevitable conclusion that a wealth of talent in the BAME community is ignored.

The fact that more than half of those currently held within the youth estate are BAME shows that there is something fundamentally wrong with our criminal justice system. Although improving judicial diversity is not a panacea for the wide variety of self-inflicted ills that harm our justice system, it would certainly be a significant step. Our judges should be representative of our country and should be diverse in terms of gender, ethnicity and, crucially, socio-economic background. We should also provide more support for those who are not barristers moving into the judiciary. Solicitors continue to form a small minority of judges, closing the profession off from other highly talented practitioners.

The Law Society has suggested some practical steps to ensure representation of solicitor judges: for example, ensuring that solicitors’ experience is given the same due weight as barristers applying for the Bar; ensuring that solicitor judges are involved in the selection process; considering the development of judicial career paths; promoting cross-deployment of judges from tribunals to court; and providing access to shadowing and mentoring opportunities for existing judges. That could apply to women, to members of the BAME community and to those from poor financial backgrounds; children from working-class backgrounds are very under-represented in our system.

Far too often, the Government treat representation as a cosmetic issue that can be changed with minor tinkering. They fail to recognise that the disparities come from histories of inequality that require fundamental reform to remedy. Rather than simply analysing data retrospectively, the Ministry of Justice should set clear deadlines and put plans in place. The public have a right to a judiciary that represents them in all their diversity.

With that in mind, will the Government accept that their judicial appointments system is not sufficient and adopt the approach laid out by the Lammy review? Will the Minister clarify what moneys will be set aside to ensure that judicial diversity is a central objective, rather than just a buzzword? That is essential not only on a moral basis, but on a practical one. A judiciary that is not perceived as representative will have difficulty in maintaining its legitimacy in the long term, particularly for communities who do not see themselves reflected at the most senior level of our justice system. We can fix the problem. It will require funding, long-term commitment and clearer strategic planning, which the Government appear not to offer at the moment. The Government need to go beyond expressing sympathy and set proper deadlines. I hope that when the Minister responds, he will be able to give us some deadlines and suggestions for what they can achieve.

Finally, I want to emphasise that my observations about the representation of ethnic minorities, women and working-class people have no bearing on my belief that our judiciary is the best in the world. No one should ever attack its credibility. Our judges are the best in the world, and they decide things on law, not on politics. The press and Members in this House should appreciate that.

Oral Answers to Questions

Yasmin Qureshi Excerpts

Tuesday 8th October 2019 Commons Chamber

[Chris Philp]

My hon. Friend raises a very important point, which was touched on by Members under Question 3. It is vital that we help victims of these terrible crimes to pursue the case right through the court system, rather than dropping it after reporting the crime, and there is a lot more to do there. The provisions in the Domestic Abuse Bill, introduced for its Second Reading last week, will help that, as will the increased funding to support victims of these terrible crimes, to which I referred earlier.

[Yasmin Qureshi (Bolton South East) (Lab)]

The Government have undertaken an unprecedented sale of courts, which has made giving evidence in court far more difficult for the many victims of crime who now have to travel much further to have their day in court. As the hon. Member for Waveney (Peter Aldous) said, the fact is that victims of sexual and other physical abuse are already reluctant to come to court, and this plays into that even more. Will the Minister agree to an independent assessment of the impact of these court closures and commit to no further closures unless it can be proved that they are not having a detrimental impact on access to justice?

[Chris Philp]

Of course, access-to-justice considerations are extremely important. Before any court is earmarked for closure, there is an extremely thorough consultation process, and if any courts are due to close in the future, a similarly thorough consultation process will be gone through. I would point out that in the cohort of courts consulted on in 2015 that were subsequently closed, on average their utilisation rates were about one third. We need to balance a reasonable approach to the court estate with the access-to-justice considerations that the hon. Lady quite rightly raises.

Courts and Tribunals (Online Procedure) Bill [ Lords ]

Yasmin Qureshi Excerpts

Committee Debate: 1st sitting: House of Commons
Tuesday 23rd July 2019 Public Bill Committees

[The Chair]

Copies of written evidence that the Committee receives will be made available in the room.

We will start with amendment 1 to clause 1, with which it will be convenient to debate clause 1 stand part. For clarity, that means there will not be a separate debate on clause 1; it will be debated now along with the proposed amendment to it. Members who wish to discuss clause 1 should seek to catch my eye.

Clause 1

Rules for an online procedure in courts and tribunals

[Yasmin Qureshi (Bolton South East) (Lab)]

I beg to move amendment 1, in clause 1, page 2, line 9, at end insert—

‘(6A) A person’s choice to initiate, conduct, progress or participate in proceedings by electronic means, does not prevent them from then deciding at a subsequent stage to continue by non-electronic means.”

The amendment would allow persons who have started the specified kinds of proceedings by electronic means, to change to non-electronic means.

[The Chair]

With this it will be convenient to discuss clause stand part.

[Yasmin Qureshi]

It is a pleasure to serve under your chairmanship, Sir Gary.

We have tabled amendment 1 to allow people to continue to conduct proceedings on paper. While we accept the advent of digitalisation and that increased use of the technology available is helpful and appropriate for our court procedures, making matters easier and perhaps saving time, it is also important to ensure that people are aware that they can use conventional paper methods and procedures.

Members will be aware that many members of the public, in particular the older population —I do not mean this disrespectfully—are not very computer savvy. They may not have the internet at home, and they might be confused about the procedures to adopt, where to file things online and whether they have to get the internet installed at home. All those challenges arise, so they must be able at the beginning of proceedings and during the course of proceedings, if it becomes appropriate, to switch to the paper system. The amendment would deal with that issue.

[The Parliamentary Under-Secretary of State for Justice (Paul Maynard)]

It is a pleasure to serve under your chairmanship, Sir Gary. It is important to recognise, as we all do, that the eyes of the world and the nation are upon us in this room, as we are the most important political event of the day. I am sure we will try to live up to that level of scrutiny.

As we are considering the entirety of clause 1, I will make a few preliminary comments. The clause deals with the foundations of the new approach to the online procedure. It provides that there are to be online procedure rules that require specified civil, family or tribunal proceedings, including proceedings in employment tribunals, and that the employment tribunal should be subject to the online procedure. It allows those kinds of proceedings to be initiated, managed and resolved by electronic means. Rules may provide for all or any part of the procedure for conducting proceedings online, including starting and defending proceedings or participating in hearings. Different rules may be made for different proceedings and for circumstances in which rules are not to apply or cease to apply. This allows flexibility and proportionality in giving effect to all procedure rules and ensuring that the right types of proceedings are supported by the right types of rules.

The clause also permits rules to provide for specified proceedings to be taken in a different court or tribunal from the one that would normally take them, and for central proceedings that would normally be heard in different courts or tribunals to be taken together. To ensure that the online procedures rule committee works for the benefit of all users, the power to make these rules is to be exercised in so far as it ensures that the procedure is accessible and fair, the rules are simple and simply expressed, disputes are resolved quickly and efficiently, and the rules support the use of innovative measures on resolving disputes.

The requirement for clear, accessible, simple and intelligible rules will make it easier for ordinary court users to navigate the system and access justice. Although the rules have been designed to be of particular benefit for ordinary court users, we expect them to be equally helpful for IT technicians and legal practitioners to make overall sense of the underlying framework of the IT and online service. It also strengthens the emphasis on innovative methods of dispute resolution, which might include online tools that support parties in resolving their issues without having to resort to a formal court hearing. The Government believe that these innovative methods are likely to widen access to justice further, to a wider cohort of users than now.

The clause also requires that when the committee make the rules, it must have regard for

“the needs of those who require support in order to initiate, conduct, progress or participate in proceedings by electronic means”,

to ensure that the committee is always aware of people who are digitally disadvantaged. Clause 1 specifies that if the online procedure rules require someone to participate in proceedings by electronic means, the rules must also provide for them to participate by non-electronic means. That was an amendment that the Government added in the House of Lords, and it demonstrates our commitment to paper proceedings.

Clause 1 gives effect the schedule 1, which deals with practice directions. These powers are similar to those that are currently provided in the Civil Procedure Act 1997, the Courts Act 2003, the Tribunals, Courts and Enforcement Act 2007 and the Employment Appeal Tribunal (Amendment) Rules 1996. The powers will enable the Lord Chief Justice or his nominee, with the approval of the Lord Chancellor, to issue practice directions in civil and family proceedings to which online procedures apply.

Amendment 1, which stands in the name of the hon. Member for Bolton South East, is designed to to give users the ability to opt out of using online services at any time, and switch instead to a paper route. Our ambition is to develop online services that are so easy to navigate that, over time, digital channels will become the default choice for the majority of our users. Nevertheless, I absolutely agree that it is right to ensure that people can choose a paper option at different stages throughout proceedings, and vary that choice at different points where that is their preference. I must clarify that the Bill already provides for this—indeed, we amended the Bill in the other place to ensure that this is absolutely clear.

Subsection (6), inserted by the Government amendment in the other place, provides that

“Where Online Procedure Rules require a person to initiate, conduct, progress or participate in proceedings by electronic means”,

the rules

“must also provide that a person may instead choose to do so by non-electronic means.”

Litigants will not be tied to a particular channel. There is nothing in the Bill that requires a litigant who begins proceedings online to continue to do so throughout the entirety of their case. The Government are aware that some litigants might be less able or confident in using some parts of our digital services, so we will allow them to transact with us easily via a mix of paper and digital channels. To be clear, litigants will be able to choose to use paper or online options at different points during the same proceedings if they wish to do so, and Her Majesty’s Courts and Tribunals Service’s approach is built around providing and supporting that choice. The amendment is therefore unnecessary. It does not add anything to the Bill, so I urge her to withdraw it.

--- Later in debate ---

[Paul Maynard]

I thank the hon. Member for Brighton, Kemptown for his observation about the new Government. I hope the Bill is not the first to fall victim to a catastrophic U-turn, because that would be a great disappointment to us all.

On the point about the reliability of technology, the Bill is an insurance policy against any unreliability, not because of any particular system being inherently unreliable, but because occasionally someone might not plug something in—it could be as simple as that. I recognise that it is important to have alternative means available.

We could put many provision in the Bill that do not necessarily need to be in the Bill. We cannot see where technology will take us in 10 to 20 years’ time. Who knows? Who foresaw the internet in the early ’80s, for example? The point is that whenever anyone engages with the online systems, the opportunity to use non-electronic means is a clearly advertised joined-up process. It does not need to be in the Bill. Indeed, such a provision might be outdated in a few years’ time.

Also, and more important, the Bill sets up an online procedure rules committee. I do not want to fetter the decision-making powers of that committee on the correct online procedures for every type of case that it deals with. It will have to deal with this question on a case-by-case basis. As much as I love Christmas trees, turning every Government Bill into a Christmas tree on which we hang our own individual baubles is equivalent to erecting a gravestone over our political efforts, so I once again ask that the amendment be withdrawn.

[Yasmin Qureshi]

No one on the Opposition Benches is asking for their own baubles on a Christmas tree. The amendment is sensible and friendly. We want it written into the Bill so that the provision is crystal clear. I therefore want to press the amendment to a vote.

Question put, That the amendment be made.

--- Later in debate ---

Duty to make support available for digitally excluded people

[Yasmin Qureshi]

I beg to move amendment 2, in clause 4, page 4, line 13, after “proportionate” insert

“including, but not limited to, a free help-line”.

This amendment would require the establishment of a free help-line to provide support to digitally excluded people.

[The Chair]

With this it will be convenient to discuss clause 4 stand part.

[Yasmin Qureshi]

Essentially, amendment 2 is designed to protect people who are normally digitally excluded. The clause refers to a “proportionate” level of support, which we believe should include, but not be limited to, a free helpline. As I said earlier, there are people who do not have internet facilities in their home, have no access to the internet or cannot use computers—people have different challenges.

The helpline should be free because the very same people who are excluded from the internet also tend to be those who are financially in the worst position. Quite often, the helpline numbers for Government and other bodies or public officials may charge 3p, 4p, 5p or 10p a minute, which amounts to a lot of money for someone on a very limited income who has to spend half an hour or 40 minutes on the telephone. We therefore ask for a free telephone helpline for those people, so that they can make calls and get the information they need. We hope it will assist them, but at least it will not cost them.

I do not know whether other hon. Members have the same experience, but in my constituency there are many people who do not have a contract phone. They are often on pay-as-you-go, because it costs the least, and they try as far as possible not to use up too much credit. Not everybody has a contract phone that gets them free calls to certain numbers, and even for people who have one, many numbers are not free. That is why we are asking for a free helpline; it would probably not cost the Ministry of Justice that much more, but it would ensure that people who are digitally excluded can access free legal advice and assistance without having to pay either for the billing costs or for having someone help them.

--- Later in debate ---

[Paul Maynard]

I am always nervous when telling the hon. Gentleman, who is an experienced lawyer, how the courts work. He has spent far more time in courts than I have in my life. If I may rehearse my earlier point, clause 4 is a legally binding duty on the Lord Chancellor to arrange for the provision of appropriate and proportionate support to those litigants who may be digitally excluded.

In my view, that legally binding duty will encompass telephone supportbut it will be for the procedure rule committee to determine in each and every example where it has to formulate rules for online procedures whether that should include at least telephone support or over and above that. It will be within the ambit of the Committee to stipulate whether it wishes to do so, and whether a wider range of means of support may be appropriate for the technology of the time when it seeks to make those rules.

[Yasmin Qureshi]

I am not trying to be difficult, but we will push the amendment to the vote for two reasons. First, clause 4 states:

“The Lord Chancellor must arrange for the provision of such support as the Lord Chancellor considers to be appropriate and proportionate, for the purpose of assisting persons to initiate…”

Do we know what “appropriate and proportionate” mean? Although the rule committee presumably will decide what is appropriate and proportionate, it is important for it to know that our amendment adds the consideration of a free helpline. The support is not limited to that—other things could be included. It is important to include free phone lines so that the rule committee is assured that it can look at all possible options, including free telephonic support at the point of use.

Question put, That the amendment be made.

--- Later in debate ---

The Online procedure rule committee

[Yasmin Qureshi]

I beg to move amendment 3, in clause 5, page 4, line 29, leave out paragraph (c) and insert—

“(c) one of each of the following—

(i) a barrister in England and Wales, and

(ii) a solicitor of the Senior Courts of England and Wales, and

(iii) a legal executive appointed to the Committee by the Lords Chancellor in concurrence with the Lord Chief Justice;

(iv) a magistrate of England and Wales appointed by the Lord Chief Justice; and”

This amendment would require that the Online procedure rule committee has representatives from different parts of the legal professions.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 4, in clause 5, page 4, line 31, leave out “two” and insert “three”

Amendment 5, in clause 5, page 4, line 37, at end insert “and;

(iii) one of whom must have experience representing the views of people who are digitally excluded.”

This amendment is consequential on the earlier amendment. The amendment would require a members of the Online procedure rule committee to have experience representing the views of people who are digitally excluded.

[Yasmin Qureshi]

We believe that the procedure rule committee should be larger than currently proposed and that members should be a member of the Bar, a solicitor, a legal executive or magistrate. The reasons for that are twofold. First, it is surprising that the Government envisage the Online procedure rule committee as having a very small number of members, yet the Family procedure rule committee and the Civil procedure rule committee have somewhere in the range of 11 to 16 members. The Online procedure rule committee seems to have by my calculation about five members. We believe that is too small a number to be able to deal with a committee that is going to be pretty revolutionary in what it is designing. It would be wrong to exclude a legal executive, solicitor, barrister or magistrate from that, because the idea behind the committee is to deal with the smaller cases from the civil and criminal courts, and it is legal executives and solicitors who are often involved in the preparation of those cases.

--- Later in debate ---

[Yasmin Qureshi]

We want the amendments to be put to a vote because we want to make it clear to the Government that these issues are important, and not only to us; they are fundamental to a proper Online procedure rule committee. Although the Minister says that the committee may do this and that, that is all open, and up in the air. We want concrete specifics, and for that to be written into the text of the Bill that such people must be part of the committee. Otherwise, the committee could say, “Well, we don’t need so and so. We don’t need such and such.” Alternatively, they might say, “If the Government wanted us to consult other people, or call on other people to become members of the committee, they would have put it in the legislation.” Because it is not in the legislation, there is no reason why they should be looking at other people. We say that the experience that legal executives, magistrates, solicitors, barristers and digitally excluded persons have is crucial to the committee, in being able to come up with a good set of rules. That is why it important to us to put these amendments to a vote.

Question put, That the amendment be made.

--- Later in debate ---

Power to change certain requirements relating to the Committee

[Yasmin Qureshi]

I beg to move amendment 6, in clause 7, page 7, line 35, leave out “negative” and insert “affirmative”.

This amendment provides that regulations made under Clause 7 which allow changes to certain requirements relating to the Committee are subject to the affirmative resolution procedure.

[The Chair]

With this it will be convenient to discuss amendment 7, in clause 8, page 8, line 18, at end insert—

“and subject to the affirmative resolution procedure.”

This amendment provides that rules made by the Committee are contained in statutory instruments subject to the affirmative resolution procedure.

[Yasmin Qureshi]

We think the Government are being a bit naughty in not allowing Parliament an oversight—[Interruption.] My hon. Friend the Member for Warwick and Leamington expresses surprise. Clause 7 states at the end:

“Regulations under this section are subject to negative resolution procedure.”

Members of the Committee know what that implies. It basically means that it does not come to Parliament, does not get a full discussion, does not get a full hearing, and goes through the on the nod procedurally. When the power is given to change things relating to the committee, the legislature must make a decision—at the end of the day, Parliament is supreme. We accept that a number of different people will be consulted. We have asked for a small amendment to the effect that we have an affirmative resolution procedure rather than a negative resolution procedure.

All parliamentarians should push for that. We should show that we have a complete say. We accept that clause 7 refers to the fact that a number of different people will be spoken to, that discussions will be held and that decisions will be made but, at the end of the day, Parliament is supreme and therefore we ask that, whatever changes are made, and whatever changes are made by the Lord Chancellor under clause 7, they should be subject to an affirmative resolution procedure and not a negative one.

[Paul Maynard]

Amendment 6 seeks to change the negative procedure to the affirmative procedure whenever the Lord Chancellor wants to make a change to the committee’s membership. As I have explained, we envisage that the new committee will be agile, focused and flexible—I fear that those words will be chiselled on my gravestone.

Over time, as the scope of the online procedure widens, the Lord Chancellor may wish to make changes both to the number and to the expertise of committee members. The amendment would have the effect of hampering the committee’s ability to respond quickly and effectively to new situations. If the committee needed to draft new rules in a new area, it may decide that additional expertise is required, and may need new members to help to form a considered view. The amendment would mean that a debate in both Houses of Parliament would need to take place before an additional person could become a member of that committee. That would be an inappropriate use of parliamentary time, and is counter to our aim of ensuring that the online procedure rule committee can always access the expertise it needs quickly and efficiently.

Requiring changes to membership of the online procedure rule committee by way of an affirmative procedure would also be inconsistent with provisions for amending the membership of the civil, family and tribunal procedure rule committees. I urge the hon. Lady to withdraw amendment 6 because of that.

Amendment 7 seeks to change the negative procedure to the affirmative procedure when the committee makes court or tribunal rules. In the other place, a number of concerns were raised by noble Lords about the constitutional implications of the Bill. I take this opportunity to assure hon. Members that the Bill has been drafted precisely to ensure that the existing constitutional balance is protected.

The Bill mirrors the existing rule-making powers in legislation for the civil, family and tribunal procedure rule committees, which means that the process for making rules follows the traditional and usual method, in which the committee holds regular meetings and consults appropriate persons before making rule changes. Once drafted and signed by the committee, the rules are then allowed by the Lord Chancellor. Finally, the Lord Chancellor lays a statutory instrument in Parliament subject to the negative resolution procedure. It is clear that, if rules are drafted and agreed by the committee as well as by the Lord Chancellor, we do not need to have two further debates.

If rules laid before Parliament under the powers were subject to the affirmative resolution procedure, it would not only place the new committee out of step with existing procedure committees, but significantly reduce the flexibility of the committee and hamper its ability to support in a timely fashion new online services as they quickly adapt and improve. In addition, minor changes to the rules are made regularly throughout the year, so requiring a debate in both Houses of Parliament every time a change is made would be time-consuming and disproportionate. I consider that the negative procedure strikes the right balance between ensuring sufficient parliamentary scrutiny and allowing the new committee to operate effectively. I urge the hon. Lady to withdraw amendment 6 and not to press amendment 7 to a Division.

[Yasmin Qureshi]

We will press the two amendments to a Division. Parliament spending time looking at procedures does not waste time or clog up the parliamentary timetable. In fact, the parliamentary timetable is quiet, so we have enough time to deal with a few more regulations. I am not sure the Minister’s argument is the best one. We believe that Parliament should be able to see what is happening and therefore should be able to subject such regulations to the affirmative resolution procedure.

Question put, That the amendment be made.

--- Later in debate ---

[Paul Maynard]

It is a pleasure to go first for a change. On Third Reading, the other place voted to amend clauses 9 and 10 so that the Lord Chancellor and the Secretary of State for Business, Energy and Industrial Strategy must obtain the concurrence of the Lord Chief Justice when the Lord Chancellor or the BEIS Secretary gives notice requiring the committee to make rules to achieve a specified purpose, or the Lord Chancellor makes consequential amendments to existing legislation to ensure that the online procedure rules operate properly. Previously, the Lord Chancellor could use the powers without the need to obtain agreement from the Lord Chief Justice. The powers originally reflected the legislative procedures in place for the existing rule committees, which have worked well for many years, and which I believe should be retained.

The amendments in the other place have also altered the constitutional position. I do not consider it acceptable to use the Bill as a vehicle for significant constitutional reform. I also strongly believe that the amendments made to clause 9 in the other place fetter the Lord Chancellor’s power to give effect to Government policy through the online procedure rules. The clause now requires the Lord Chief Justice to take a decision on the implementation of that policy, which contradicts the traditional role of the independent judiciary and the concordat: a long-standing agreement between the judiciary and the Executive that specifically refers to the Lord Chancellor’s power to require committees to make rules to achieve a specified purpose.

The concordat also refers to the power to amend, repeal or revoke any enactments governing practice and procedure to facilitate the making of rules considered necessary or desirable following consultation with the Lord Chief Justice, as was originally provided for in clause 10. It is important that the Bill reflects the position in the concordat. The Lord Chancellor is directly accountable to Parliament for any rules that are made, so it is right that the responsibility lies with him alone. Therefore, with amendments 9 to 12, the Government seek to overturn the amendments made in the other place and to revert to the original wording. When these amendments are seen alongside Government amendments tabled in the other place, I hope Members will agree that there are sufficient safeguards in the Bill to allay concerns.

We amended the Bill in the other place so that before laying regulations to bring new types of proceedings online, the concurrence of the Lord Chief Justice and the senior president of tribunals is required. That is in addition to the requirement already in the Bill of an affirmative vote in each House agreeing to any such regulations. The regulations set out the framework in which the rules will operate, and the Lord Chief Justice must agree to that framework. The Lord Chancellor cannot direct the rule committee to make rules outside the framework that the Lord Chief Justice has agreed to, so the safeguards in clauses 2 and 3 provide the requisite assurances.

Furthermore, the power under clause 10 can be used only for changes that are consequential on the online rules, or that are necessary or desirable to facilitate online rules. We therefore consider that there are sufficient safeguards to ensure the appropriate use of the powers, and there is no need to provide for concurrence with the Lord Chief Justice and senior president of the tribunals in clauses 9 and 10 as well. We have actively engaged with the peers who had concerns and we will continue to discuss this part of the Bill with them ahead of its returning to the other place, where I am hopeful of achieving agreement to the changes.

Amendment 8, tabled by the hon. Member for Bolton South East, seeks to allow the committee to decline a ministerial direction to make rules on a specified topic. It is my position to ensure that lawful government policy can be given effect to and that the relevant Minister should be able to direct the Committee to make rules. The rules might be required to ensure that the online procedure is operable, and so might need to be made urgently, without additional procedure. Concern was raised about the clause on Second Reading, and I hope to be able to assure hon. Members that it is not a power grab by the Executive. The power already applies to existing rule committees and to other procedural rules not subject to the Bill.

Clause 9 reflects similar provisions agreed between the then Lord Chancellor and Lord Chief Justice under the concordat of 2004 and given effect in the Constitutional Reform Act 2005. In practice, the power is not frequently used—indeed, there is just one example of its having been used in the existing civil procedure rule committee. Nevertheless, it is an important power and reflects the established constitutional arrangement. The amendment could cause a problematic constitutional situation whereby a rule committee could refuse to draft rules following the written request of a Minister who sought to implement a specific policy. There would be democratic concerns if a committee was able to refuse to prepare rules on a policy that the Government had been elected to deliver. Such a situation would risk embroiling the judicial members of the committee in a political debate. We should all seek to avoid that.

The proposed amendment would also lead to a situation in which the new committee operates differently from other committees that deal with civil, family and tribunal proceedings. It would diminish the power of the appropriate Minister to respond rapidly to changing circumstances, and would effectively give the new committee a power of veto to make rules, which could lead to delays for users who are required to engage with the justice system or for HMCTS in delivering the reforms. As the Minister is the one who is answerable to Parliament, ultimate decisions on policy making should be in their hands, not in the hands of the committee. I urge the hon. Lady not to press amendment 8, and I commend amendments 9 to 12 to the Committee.

[Yasmin Qureshi]

We think amendment 8 is important to ensure that there is no control by the Executive. If it is asked by the Minister to change the rules, the committee that has been charged with the task of preparing the procedures should be able to decline the request. That is important because it ensures that the committee is independent of the Executive, the Lord Chancellor and the Ministry of Justice. The committee should be free to do as it wishes. The Opposition therefore believe that the amendment is an important safeguard for the OPRC to be able to determine the rules as it wishes. It will give written notice to the appropriate Ministers, and I am sure it will explain its rationale. We believe that it should ultimately be a procedure committee’s decision whether to change a procedure because of a request from a Minister; the Minister should not be able to take control of that. It is a power grab by the Executive, and we have to avoid that as far as possible.

[Daniel Zeichner]

I am one of the few people in the room who does not have a legal background. I have an IT background, and I used to spend a lot of my time trying to explain to people that IT cannot always do the magical things that they think it can. One of the flaws in this discussion is that there is nothing about the digital infrastructure that underpins the Bill. The proposed amendment is actually rather sensible, given that the only IT expertise in this process seems to sit with the OPRC. I would like reassurance from the Minister that some thought has been given to the processes that will underpin the Bill. Has he considered whether it would be sensible in some cases for the Committee to say, “Actually, this is not going to work.”?

--- Later in debate ---

[Paul Maynard]

On a point of order, Sir Gary. I will be as brief as I can, because I know that colleagues wish to yodel and ululate at the Queen Elizabeth II Centre imminently. May I thank you, Sir Gary, for chairing the Committee, and the officials who have got us through it so speedily?

I also thank my Bill team, who successfully worked through the weekend, delivering me acres of notes; my Parliamentary Private Secretary, my hon. Friend the Member for North Devon, for delivering one note that proved that it was worth his turning up as a member of the Committee; and my Whip, my hon. Friend the Member for Boston and Skegness, who guided me through every step of the way. I also thank all Members who made their individual contributions—even those who do not like Mozart and Bach.

[Yasmin Qureshi]

Further to that point of order, Sir Gary. I echo the Minister’s sentiments. I thank you, Sir Gary, for your chairmanship, and those in the Public Bill Office for all their help in tabling our amendments, and assisting us in preparation. I thank all Members who attended the Committee. Specifically, I thank Opposition Members who helpfully supported me and intervened at the right junctures. I welcome their support in considering the Bill. We now await the next part of proceedings.

Bill, as amended, to be reported.

Courts and Tribunals (Online Procedure) Bill [Lords]

Yasmin Qureshi Excerpts

2nd reading: House of Commons & Money resolution: House of Commons
Tuesday 16th July 2019 Commons Chamber

[Yasmin Qureshi (Bolton South East) (Lab)]

As a general rule, the adoption of new technologies in our justice system is something to welcome. It should, if done carefully, lead to better, more agile courts that increase access to justice. Labour recognises the need for an online procedure rule committee, given the increased use of digital courts. Our aim now is to focus on amendments that improve the proposed committee and ensure that any rules strengthen, rather than weaken, our hard-won rights.

Although digitisation is necessary, it needs to be done with diligence and accuracy. Most importantly, it must not be done simply to achieve savings. Given that digitisation will have a substantial impact on our justice system, it is incredible that there still has not been any proper, publicly funded academic research into the impact of digital courts on access to justice. Instead, the Ministry of Justice seems happy to shell out huge consultant fees—over £60 million last year—and roll out untested and ad hoc changes.

In 2018, the House of Commons Public Accounts Committee expressed concern about the scale and pace of the changes the Ministry of Justice was attempting. It expressed little confidence in the capacity of Her Majesty’s Courts and Tribunals Service to deliver this hugely ambitious programme, not least because it found that Her Majesty’s Courts and Tribunals Service had failed to indicate

“what the new system would look like.”

That is a vital point and one that this Bill fails to deal with.

Far too often in the last year, the changes pursued by the Ministry of Justice have had a vague direction, instead of a particular, definable endpoint; after all, we have had at least seven Secretaries of State for Justice in the last nine years. The only consistent characteristic of these reforms seems to me to be related more to ideology than judicial policy: the desire ceaselessly to cut the budget year on year. Again, in the last nine years, the Ministry of Justice has had the highest budgetary cuts in comparison with other Departments.

The Law Society has noted the backward illogic of the reform programme, criticising the decision to close courts

“before the technology that is intended to replace the need for physical hearings has been tested, evaluated and proven to work.”

With half of our courts estate already sold off since 2010, we now have little choice but to move towards online courts. Finance appears to have triumphed over sense in deciding what to do in relation to justice.

On the current Bill, it is notable that the Government have chosen to go well beyond the relatively modest recommendations of Lord Justice Briggs in 2016. Further, instead of piloting individual areas, the Government’s desire appears to be to digitise whole swathes of the courts system, with limited oversight. Amendments put forward in the other place tried to ensure that the piloting of new stages would be mandatory. That still seems a reasonable measure to ask for, bearing in mind how many internet breakdowns we have had in the court system in the last few months. It is really important to try out a pilot scheme to see how these things work. However, the Government do not appear to want to do this.

Another matter of importance in this debate is the question of whom the Bill authorises to make future decisions. Currently, it states that the relevant Minister may require amendments to be made, with little clarity about exactly what would justify such a requirement. The suggestion discussed in the other place was that the committee be allowed to decline the Minister’s request, and we think that was a very relevant and valuable suggestion. Although that did not pass, the amendments to clauses 9 and 10 provided some balance on the power of the relevant Minister, as they must seek the concurrence of the Lord Chief Justice.

While we welcome those important provisions, we believe that the Minister should not be the final arbiter in deciding whether the procedure rule committee makes a rule that he or she wants; that should ultimately be within the province and remit of the procedure rule committee. What is the point of having a committee to set out rules if the Minister is going to say, “No, I want you to change this”? If we have selected people to make the rules, they should be the ultimate arbiters of what the rules should be. That is very important because the Executive and Ministers cannot be allowed to get away with dictating what they want. While we accept that there needs to be a balance between a Minister and the committee, we urge the Government to reconsider and rethink this aspect.

At the moment, it is unclear how far Parliament will be able to scrutinise the rules put forward by the committee. Given that the online procedure rule committee will have the power significantly to alter the way many people engage with our justice system, it seems reasonable that an elected body should also have a say in this matter. As was highlighted by the Bar Council in relation to the Courts and Tribunals (Judiciary and Functions of Staff) Bill in 2018, this Government frequently adopt a “drip-feed”—its word—approach to change in order to avoid a full debate and proper legislative scrutiny of their court plans. That cannot be allowed to happen through this Bill. My counterpart in the other place suggested adopting the affirmative resolution procedure for clauses 8 and 9. That seems patently sensible, as it would provide parliamentary oversight of potentially major changes to our justice system.

The make-up of the proposed online rule procedure committee also merits consideration. Our amendment in the other place was to enlarge the committee to ensure representation from each of the legal professions—the Bar, the Law Society and legal executives—but, again, that was denied. That is really strange, bearing in mind that the civil procedure rule committee has 16 members, the family procedure rule committee has 15 members and the tribunal procedure rule committee has nine members, while the number here is much lower.

I heard what the Minister said in his opening speech to my hon. Friend the Member for Enfield, Southgate (Bambos Charalambous). I may have misheard him, but the Minister suggested that there is nothing in the proposed legislation to stop an increase in the composition of the committee. That, however, is not accurate. The committee says that currently it does set out how many members there should be or who they should be. Therefore, unless the number and composition of committee members are put into primary legislation, we cannot just change it.

In my discussion with the Minister yesterday on the telephone, I explained the importance of having a barrister, a solicitor and a legal executive on the online procedure rule committee. When I practised at the Bar, solicitors would send me instructions on all the procedural parts of the case, such as starting the petition, issuing the summonses or laying the charges. All those procedural matters were undertaken by legal executives and solicitors. Barristers would often just turn up at court to speak and do the advocacy part. Therefore, to exclude from the committee the very people involved in the procedural side does not make any sense. I am sorry, but I am not reassured by the Minister that the committee can somehow change itself. Again, I may have misheard. It is important for the legislation to spell out that there will be a member of the Bar, a solicitor from the Law Society and a legal executive. That is really important in ensuring the system works, because they are the people involved in all the procedural aspects.

The amendments we supported and argued for in the other place were also supported by Mind and the Law Society. I continue to feel that including non-lawyers with experience of disability and digital exclusion would significantly reduce fears that the Bill fails to properly ensure access to justice. We tried to promote gender balance on the committee, again without success. This would be an important measure. It is no secret that power in our court system resides with a group who are highly unrepresentative of our national population. We think provisions to require gender balance would rectify some of the imbalance and be an important step towards increasing diversity in our justice system. What assessment has the Minister made of the make-up of the committee in terms of both its composition and size? The Minister and I discussed this issue yesterday on the telephone.

We also raised concerns that the Bill could lead to digitisation by default. Whether proceedings are criminal, civil, tribunal, probate or family in nature, there are good reasons to feel that making digital the default option will, in many cases, restrict or entirely remove access to justice. We believe that both sides involved in a case should be able to decide on whether online or traditional measures are used throughout the case. Again, I had an encouraging conversation with the Minister on that point yesterday, but I would like to see proper guarantees in the Bill to ensure that both litigants are provided with the choice of using traditional methods and that this option is made very clear and easily available, so that most people do not feel that they should be going down the online route or that the in-person route is in any way exceptional as opposed to the norm.

[Bambos Charalambous]

My hon. Friend mentions the digitally excluded. For some people, only a face-to-face physical hearing will do. That leads to the point about insufficient weight or prominence being given to legal advice or representation, because that may well influence what decisions people make when they are faced with a choice about what to do with regard to digitisation. Does she agree that for everyone to be treated fairly and equally, not being forced down the path of digitisation is of the utmost importance?

[Yasmin Qureshi]

Absolutely. We can imagine a lay person being told to follow, or being pushed towards following, the online procedure. They are not going to be told that the paper procedure or turning up is just as doable and straightforward. I will come on to this point later, but ensuring that people have access to legal advice is even more important with the introduction of digitisation and there seems to be nothing in the Bill to deal with that issue.

Sadly, in many areas of the reform programme, digitisation has frequently been imposed from the top down. Clause 4 recognises the Government’s duty to

“make support available for digitally excluded people”

in so far as the Lord Chancellor feels it to be “appropriate and proportionate”. It is vital that support is not just there but properly funded and—importantly—sufficiently advertised. Even when there are mechanisms available to provide support, we worry that all too frequently they are poorly promoted. They work to show evidence of action, while providing little meaningful aid to those who need it. Since it was set up in February 2018, a helpline for those who need help to use video links in court has averaged less than one call a day. The Public and Commercial Services Union has questioned how widely HMCTS would advertise alternatives to digital justice and I share its concern.

Another point we are concerned about relates to clause 1(3)(d), which refers to the use of

“innovative methods of resolving disputes.”

Despite the probing of my counterpart in the other place, it is still unclear precisely what that means. Greater clarity on the wording would be useful. We are very concerned that the Bill does not lead to digital justice becoming an inescapable default setting across the justice system.

Access to legal aid and legal advice is very important, and it is regrettable that the Bill is pretty silent on that. The Bill should include the ability for those who go through the online procedures to at least be able to make a phone call to access legal advice. That phone call should not be a premium number or a chargeable number; it should be a free number, so that people can access proper legal advice. Many people do not have contract phones, with free mobile phone calls. A lot of people are still on pay-as-you-go, so they need a system that is free to use. It would therefore help if the Minister was able to ensure, when he responds to the debate or in Committee, that the Government deal with that point.

I emphasise that point because of my own personal experience as a practitioner. I can remember being in courts, whether civil or criminal, which were attended by unrepresented people. None of us gave legal advice as such, but lawyers and solicitors would at least provide them with some guidance, a signpost and somewhere to go. When we have online courts and people are sitting at their computers, they will not have human advice, guidance and signposting. It is therefore crucial that such people can access legal advice, even on a phone, so I ask the Government, the Ministry of Justice and the Minister to think about that.

Let me recap a few issues that really concern us, which I hope the Minister will address in his response. First, so far no rational reason has been produced as to why the committee needs to be so small. Secondly, how will he ensure that the rights of disabled people are properly represented in the committee? Thirdly, how will he ensure that there is real parliamentary oversight of potential major changes to our justice system? I would really appreciate answers to those questions.

Finally, I reiterate that fair and equal access to our justice system needs to be at the justice system’s heart. It is well known that the most stable countries in the world are those that have the best legal and judicial systems, where people feel that they will get justice in the end. Therefore, what will the Government, the Ministry of Justice and the Minister do to ensure that people are protected, that no harm comes to them and that justice is properly and fairly accessible to all those who need it?

Oral Answers to Questions

Yasmin Qureshi Excerpts

Tuesday 9th July 2019 Commons Chamber

[Paul Maynard]

I very much hear what the hon. Gentleman is telling me. He will recall a debate that we had in this Chamber a couple of weeks ago on that point. We have no plans to close any further courts at the moment, but he will recognise that there is a need to make sure that our court estate is used appropriately, and he will recognise that where court buildings are not used, or indeed are used for less than half the time for which they could be available, we have to look at making sure that what we do in our courts best meets the needs of our estate and of the people using our courts system.

[Yasmin Qureshi (Bolton South East) (Lab)]

Last year, the Government made a huge fanfare about their female offenders strategy but announced only £5 million for it. Recently, legal aid was increased by £8 million, but that pales into insignificance compared with £67 million spent on consultants to provide cuts to our courts. Instead of throwing money at the consultants, surely there should be a proper debate in this House on the Government’s disastrous court closure programme.

[Paul Maynard]

When I speak to most sensible people across the entire justice system, there is a recognition that our justice system has to modernise. If we do not transform or modernise the system, the service will become increasingly unsustainable and will deliver a progressively worse service for the people for whom I know the hon. Lady wants to get the best outcomes possible—I do too. If we do not modernise, our district system will not be able to maintain that level of service.

Divorce, Dissolution and Separation Bill (First sitting)

Yasmin Qureshi Excerpts

Committee Debate: 1st sitting: House of Commons
Tuesday 2nd July 2019 Public Bill Committees

[The Parliamentary Under-Secretary of State for Justice (Paul Maynard)]

Q For the benefit of the wider Committee, could you set out what, when people submit their evidence of fault, the court does with that piece of information? How is it handled by the court? What weight do they place on it?

Nigel Shepherd: The short answer is that the average time that court officials—this is now mostly done by legal advisers in regional divorce centres—have to scrutinise the evidence is four minutes per case, broadly. Although current legislation says that the court has a duty to investigate the situation as far as is reasonably practicable, the reality is that our process does not allow that to happen at all. If a petition goes in on behaviour, and it is not defended, the legal advisers looking at it are simply checking to make sure that the jurisdictional grounds are correct, and that there is the necessary legal connection between the behaviour and the breakdown—in other words, that the boxes are correctly ticked.

There is no investigation and, what is worse, if the respondent to that petition writes five pages on why it is all untrue, if it is not formally defended with an answer and a fee paid of £200, it is ignored. That is the worst of all worlds, because respondents, particularly those without the benefit of legal advice, think that they are saying that they disagree with something about the petition, but that nobody is listening. That makes it even worse. There is no realistic scrutiny at all in the system. It is impractical to have that scrutiny, because who knows really what goes on behind the closed doors of a marriage? That is why this change is fundamentally so important; it means that there is no pretence anymore. It is intellectually dishonest at the moment; that is what Sir James Munby said in the Court of Appeal in the case of Owens. We would be getting rid of that dishonesty and acrimony at the start of the process.

David Hodson: I can add to that as a part-time judge at the central London family court. Until two or three years ago, when we had divorce centres, part-time judges had to do four or five of these special procedures every time we sat. It took a matter of moments. We would give careful consideration to the document that had been drawn up by the legal adviser as to whether there were any procedural errors. We would look at the unreasonable behaviour allegations, but I find it difficult to remember in recent years—we have softened as the years have gone by—anything having been sent back. Sometimes it is so minuscule, but if it is undefended, it will go through.

The 1996 legislation had a knock-on effect. If Parliament decided in 1996 that no-fault divorce was appropriate, though Parliament subsequently did not bring it into force, should judges be turning around and saying no? Owens was a distinctive case. It was a defended case, whereas if it is undefended, as Nigel said, it will go through. That makes it a crying pity that people have got to go through that process in the first place.

[Yasmin Qureshi (Bolton South East) (Lab)]

Q Good morning. You gave evidence a little while ago about the fact that in order to respond to a fault being mentioned in a divorce, a person has to memorise reams and reams of letters and make a very detailed, comprehensive response to the allegation, but unless they pay the money, they are not even going to be considered. One of the problems with a fault having to be alleged is that often, the respondent or the applicant will then have to spend quite a lot of money to get the process through, so it is almost a double whammy: they have to pay money to blame each other and get a divorce.

David Hodson: One of the Law Society’s concerns is the court fee. I appreciate that this is not in primary legislation, but may we express our concern? At the moment, it is £550.

[Yasmin Qureshi]

That is a lot.

David Hodson: For that, you get a few minutes—I will not say moments—of judicial time, and there is perhaps some scrutiny of the procedure. We hope to go to a no-fault divorce process, mostly online, with almost no or no judicial involvement, because there will not have to be any.

The £550 is very unfair on the poor—for those on welfare benefits, there is an allowance, but it is very unfair on those above that. The great worry has to be that we have a lot of limping marriages in our society between people who just cannot afford that. There are no financial claims—there is no money to make any financial claims—but they just cannot afford to bring the divorce forward.

The Law Society—Resolution would probably agree—would like to make a plea: can the Ministry of Justice review the fees? Again, that is for a secondary instrument. We have some of the highest in the world, probably second or third highest, and they are much too high. Particularly with the new process that will be going through, there is not that cost to society or to the Ministry of Justice of running it, so can we make the plea to reduce the fee of £550, so we do not have marriages out there that came to an end a long time ago?

[The Chair]

Minister, this will have to be your last question.

Divorce, Dissolution and Separation Bill (Second sitting)

Yasmin Qureshi Excerpts

Committee Debate: 2nd sitting: House of Commons
Tuesday 2nd July 2019 Public Bill Committees

[Eddie Hughes]

I completely understand the hon. Lady’s point. That is why I am trying to set the context: my very personal view is that the system worked in my particular case, but I completely accept that it will be different for others, as we heard in our evidence session this morning.

My point is simply that we have all visited websites that have asked us to tick a box to agree to terms and conditions. It is highly doubtful whether any of us has ever read all the terms and conditions before ticking the box, because we know that we are entering into a contract that will be really easy to get out of. We have all done it—we have all pressed the button to enter into a contract really quickly, because we know that it is easy to get out of. I am scared about any move in that direction with regard to marriage, because my personal belief is that it is more important than that, as a contract and a spiritual union.

Anyway, I have some points and questions for the Minister about clause 1. The written and oral evidence submitted to the Committee by Mr Hodson raises several key points that really engage with the clause and that arguably highlight the need for amendments that I hope the Government will consider.

The 20-week reflection period is clearly of huge importance. The Bill is about removing fault from divorce, not about minimising the opportunity within the divorce process for couples to gain access to mediation and have a rethink. This may come as a surprise to some right hon. and hon. Members, but in some instances the first occasion on which a spouse finds out that their marriage is in difficulty is the commencement of divorce proceedings. That is the first opportunity they have, with that knowledge, to try to put things right. At a time when the annual cost of family breakdown to the Exchequer stands at £51 billion, according to the Relationships Foundation’s annual assessment, it is imperative that policy makers and legislators seize every opportunity provided by the 20-week reflection period to maximise the opportunities for mediation and reconciliation. Without any expression of commitment to the importance of marriage, the Bill will sound very hollow.

One key measure by which the success or failure of the removal of fault in the legislation will be judged will be the extent to which it creates a better environment within which couples can rethink and save their marriage. To this end, the 20-week reflection period defined in clause 1 is clearly of the utmost importance. At the moment, on the basis of the evidence submitted by Mr Hodson, it seems vulnerable on several points.

First, in a case in which one member of a couple initiates divorce proceedings, if the 20-week clock starts ticking from the moment that they initiate, as clause 1 currently proposes, the other spouse will on some occasions inevitably end up with less than a 20-week reflection period. That is clearly neither fair nor transparent. Will the Government amend the Bill so that it is clear that the 20-week clock will only start to tick from the moment it is clear that both members of the couple know about it?

Secondly, in order for the 20-week reflection period to work well, it is plainly important that a good part of the 20-week period, if not all of it, is made a litigation-free zone, so that the focus can be on mediation. That must extend to ancillary financial litigation. Will the Government amend the Bill so that at least most of the 20-week period, if not all of it, is made a litigation-free zone, including ancillary financial litigation?

Thirdly, will the Government consider changing the point in the process at which the partner seeking the divorce should lodge their statement of irretrievable breakdown? Having it at the start, as the Bill proposes, makes it extremely difficult for the other partner to respond constructively if the intention is for a period of reflection.

Finally, mindful of the importance of the 20-week period referred to in clause 1 for reconciliation and mediation, what new provisions will the Government make to ensure that all couples are offered effective reconciliation and mediation specifically during this period, in an effort to increase the numbers of divorce proceedings that are not concluded, thereby increasing the number of marriages saved?

[Yasmin Qureshi (Bolton South East) (Lab)]

It is a pleasure to serve under your chairmanship, Mr McCabe. I put on the record the fact that the Opposition do not object to this legislation, which is one reason why no amendments or new clauses have been tabled. We welcome this piece of legislation, which has for many years been required and called for, and it is great that the Government have brought it to the House. This morning, Members heard from experts in this area who deal with these types of cases day in, day out, and it was quite clearly their unanimous opinion that this legislation is important, welcome and needed.

No one goes into a marriage expecting it to fail, but it is an unfortunate reality of life that couples may choose to go their separate ways. It is even more unfortunate that, when they pursue a divorce, they do so under archaic law. Among the five permissible grounds for divorce are adultery, desertion and unreasonable behaviour, which involve the allocation of blame to one party. That is unfair and could damage a couple’s children as well.

For decades, campaigners have been asking for this change to the law. This situation was crystallised recently in the case of Owens v. Owens, which ended up in the Supreme Court. Sir James Munby, then president of the family division of the High Court, said in 2017 that

“the law which the judges have to apply and the procedures which they have to follow are based on hypocrisy and lack of intellectual honesty. The simple fact is that we have, and have for many years had, divorce by consent, not merely in accordance with section 1(2)(d) of the 1969 Act but, for those unwilling or unable to wait for two years, by means of a consensual, collusive, manipulation of section 1(2)(b).”

We heard about that this morning. It is interesting that in Scotland, where the requirement for fault has been abolished, only 6% to 7% of divorce applications are based on fault, yet in England 60% are based on allocation of fault. That raises the interesting question, as Professor Trinder said this morning, of whether we are worse behaved than the Scots. It is not that. In Scotland, people do not have to go through the intellectual dishonesty, as Sir James Munby said, of creating issues of fault.

The Minister will set out the law as it stands, but I point out that if a couple want to divorce in less than two years, they need to start pointing the finger of blame, with one citing the other’s adultery, unreasonable behaviour or desertion. That in itself causes unnecessary strife. However, in most cases, neither party contests a divorce, so they can go their separate ways.

The need to apportion blame, and ratchet up the acrimony, is one of the main reasons why the Opposition want to see an end to fault-based divorce law, not least because of its impact on children. The ground of unreasonable behaviour, for example, requires allegations from one spouse against the other that are hardly ever challenged and can be exaggerated, which will inevitably exacerbate the relationship between the parties and make arrangements regarding children even more difficult. It is therefore unsurprising that most of the legal community supports the changes. About 1.7 million people have assigned blame in a divorce process. Many need not do so, so again legislation is very important.

The Law Commission has called for the current fault-based system to be scrapped. In fact, it recommended that in 1996. It has made several criticisms of the current law, of which many hon. Members are aware, but perhaps they are worth repeating because some believe, and indeed the hon. Member for Walsall North alluded to the fact, that somehow such reform will lead to more people filing for divorce. In a number of cultural and religious communities divorce is actually very easy but the divorce rate is tiny. I do not accept the suggestion of a correlation and that the divorce rate will spike because of a change in the law. It is about societal issues or particular challenges in people’s lives and communities. I do not think a correlation can be seen between changing the law and an increase in the rate of divorce from looking at other countries, cultures and societies where there is a more open or easier divorce system.

One of the problems with our current system is that the law is confusing and misleading. It says that the only ground for divorce is that a marriage has “irretrievably broken down,” but that can be proved only in one of five ways, three of which involve fault. Therefore, the fact used as the peg on which to hang a divorce petition may not in any way bear relation to what caused the breakdown in marriage. The law also pretends that the court is conducting an inquiry into whether and why the marriage has broken down when in fact it does no such thing. Even if a petition is defended, it requires only that the fact is proven.

The current system is discriminatory, favouring those who can afford to live apart for two years before seeking divorce, with the remedies that go with that. Many poorer parties, including many who are victims of domestic violence or abuse, cannot afford to separate unless and until they get orders, which are obtainable only on divorce. Matrimonial home orders under part IV of the Family Law Act 1996 were originally intended to provide a sensible interim housing solution, but the provisions of our current law exclude parties from being able to access it.

The current system is unjust. Adultery and unreasonable behaviour suggest that one party has to blame the other, but many of the technical bars under the old law were abolished. There is little or nothing to stop the more blameworthy one relying on the conduct of the less blameworthy one. It is difficult, expensive and may be counter-productive to defend or cross-petition to try to put matters right.

--- Later in debate ---

[Paul Maynard]

On a point of order, Mr McCabe. It is customary to give a lengthy thank you to all those who have participated in the Bill. I fear I would end up making a speech longer than any other speech if I tried to do so, but I thank all Members for their contributions, even if they have been silent contributions of good will emanating towards us. That is good enough for me.

More importantly, I thank all the officials who have worked hard on the Bill for many months. They may even be disappointed that we have taken only 47 minutes to progress it through Committee. I will put them at their ease, because if it is only 47 minutes, it means there is far less chance for me to muck it up at any stage. There will be a sigh of relief at the Ministry of Justice, I suspect, that I have been hidden from scrutiny by taking a bit less time. I thank all my officials and I thank you, Mr McCabe, for chairing the Committee so adeptly. You have facilitated our rocket-powered canal boat moving down the great canal of British history through one more set of locks.

[Yasmin Qureshi]

Further to that point of order, Mr McCabe. I place on record my thanks to all Members who have attended today and those who spoke in the Chamber on Second Reading. I thank you, Mr McCabe, for your excellent chairing of this Bill Committee.

[The Chair]

It is certainly close to a record, Minister, but it must be down to the quality of the Committee.

Bill to be reported, without amendment.

Divorce, Dissolution and Separation Bill

Yasmin Qureshi Excerpts

2nd reading: House of Commons & Money resolution: House of Commons & Programme motion: House of Commons
Tuesday 25th June 2019 Commons Chamber

[Yasmin Qureshi (Bolton South East) (Lab)]

This debate has seen considered and valuable contributions. There have been many points of agreement across the House—and obviously some differences.

I thank all Members who participated, starting with the hon. Member for Newton Abbot (Anne Marie Morris), who is not in her place. She talked about the importance of marriage while recognising the challenges, issues and realities when people get married and things go wrong. She referred to the 50:50 rule for dividing property, about which there is some misunderstanding. As I understand it, from the many years I studied family law, the 50:50 rule applies to people with long-lasting marriages—30 or 40 years—and maybe several children. Often with short marriages, the rule does not apply. The crux of her argument, however, was that marriage is important but that things can go wrong.

The hon. Member for Bath (Wera Hobhouse) talked about the importance of the Bill and why the law needs to change.

I thank the hon. Member for Congleton (Fiona Bruce), who earnestly talked about the importance and stability of marriage for people and children. I know she holds these views very dearly, as do many across the country and the House. I also thank the hon. Member for Strangford (Jim Shannon) for his many contributions in the form of interventions.

Finally, I cannot finish without mentioning the hon. Member for Bromley and Chislehurst (Robert Neill), the Chair of the Justice Committee, who, with all his different hats on, gave a very considered speech about why the Bill is necessary. He made the particularly important point that many people were having to exaggerate, lie or invent fault to be able to expedite a divorce. We should not be making our citizens do these things.

In an era when we better understand the complexities of human relationships and the freedom that people deserve to decide how they live their lives, it is clear to most of us that the old and outdated divorce rules need to change. That was crystallised and highlighted by the case of Owens v. Owens, to which the shadow Lord Chancellor and the Chair of the Select Committee referred. Mrs Owens asked for a decree nisi, which was not granted, even though the Supreme Court accepted that the marriage had irretrievably broken down. The law said that there had to be an attribution of fault to one of the parties, so the law as it stood did not allow the marriage to be finished. Subsequently, the then president of the family division, Sir James Munby, said that this aspect of law and procedure was based on

“hypocrisy and a lack of intellectual honesty”.

The Supreme Court also said that it was not for the judiciary or the courts to change the law but for Parliament. I am pleased that Parliament is debating this and that the law will be changed for the betterment of all.

As the Nuffield Foundation put it, the reliance on fault and blame as a key pillar of divorce law is

“at odds with the thrust of wider reforms in the family justice system, which have focussed on reducing conflict and promoting resolution”.

We understand that 1.7 million people currently use fault to get a divorce when fault is not the reality. Given that 90% of family lawyers represented by Resolution say that the current law makes it harder to reduce conflict between ex-partners and that 69% of the public are in favour of no-fault divorce, the time is right to change this archaic rule.

I would, however, like to raise some omissions from the Bill and to hear what the Lord Chancellor has to say. Divorce procedure is just one part of the wide tapestry of our legal system. As has been raised in debate with Ministers, this tapestry is fraying due to decisions made by their party over the past decade. The reforms we have discussed today are welcome attempts to reduce unnecessary conflict and prevent needless emotional stress for divorcing couples and their children, but in other areas of justice and family policy this does not seem to be an issue of concern for the Government.

The deep cuts to legal aid mean that the legal representation required to reach the right divorce settlement will be available only to those with the funds to pay for it. A lack of legal support makes it difficult for people to understand the intricacies of important changes such as these and therefore will reduce the positive impact of the no-fault divorce procedure, which we welcome today. Did the Lord Chancellor agree with the Law Society when it said the Government should, alongside these reforms, reintroduce legal aid for early legal advice to support divorcing couples and help them to reach the best possible settlements for themselves and their children?

[Ian C. Lucas]

I strongly support what my hon. Friend is saying to the Lord Chancellor. One of the major concerns I hear in my constituency surgeries is about individuals seeking advice concerning contact with children and matrimonial proceedings. It is a very emotive subject, as we heard earlier in the debate, and needs to be addressed.

[Yasmin Qureshi]

I thank my hon. Friend for that helpful intervention. I hope the Lord Chancellor was listening to that and to everything else we are saying on the Opposition Benches.

More could be done in the Bill to support the most-at-risk people seeking a divorce. The Bill does not remove the bar on petitioning for divorce in the first year of marriage, despite charities and campaigners pointing to the impact this will have on victims of domestic abuse. We know that big life events such as marriage or pregnancy are hotspots for abuse and controlling behaviour to begin or increase. That first year of marriage is for some not a honeymoon period but a nightmare. It is clear that in 2019 we should not be trapping people in potentially dangerous situations because of an outdated law that does not give people the agency to get themselves out. Can the Lord Chancellor explain the rationale for this omission?

Overall, we welcome the reform, but we urge the Government to put this progressive shift into the context of the wider changes required to our justice system. There is so much more to do to ensure that anyone going through a tough time, such as a divorce or other conflict, has a positive and fair experience while seeking justice. I hope that the Minister, when he responds, will deal with some of the questions we have raised. That said, this is a very welcome Bill, which is why the Opposition support it.