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

Yasmin Qureshi Excerpts

Tuesday 5th February 2019 General Committees

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

The Minister outlined legal issues dealt with by the recast Brussels regime, which has been in force since January 2015. One issue she did not mention is that when a person is one of a number of defendants, they can be joined to proceedings that are commenced in another member state where they are not domiciled if those proceedings are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments.

As the Minister said, the way the Brussels regime has been put into practice means that there is a seamless transfer of cases and judgments—a bit like the customs union, but for legal services. The Opposition recognise that this SI has to be tabled to ensure reciprocity, as the agreement between European Union member states and the UK on cross-border, civil and commercial disputes will no longer apply after exit day. The SI would also make provision for cases that start before exit day, but—as far as I know—the Ministry of Justice has not published an impact assessment of the draft regulations’ effect on the current system and on cases that are currently before courts.

Although the Law Society and Bar Council have been consulted, a number of bodies have reservations about the impact of these draft regulations. They are concerned, and we are concerned, about the impact that a no-deal Brexit would have on cross-border co-operation on civil justice. Trade between the United Kingdom and the European Union’s 27 countries has increased in the past 40 years, not least because of civil judicial co-operation.

One thing we are concerned about is the loss of the Brussels I framework for determining which national court has jurisdiction, and recognising where there is a choice of court clause or not between parties to the dispute. Following on from that, it provides for a near-automatic recognition allowing parties to enforce the judgment in all EU member states. It covers all judgments reached in civil and commercial matters, including contractual and non-contractual disputes, employment, insurance and consumer disputes.

Participation in Brussels I has been in four particular areas, and the impact is on four particular areas. First, it encourages cross-border trade. As it continues to grow, commercial parties will correspondingly need judgments to be enforced against counter-parties with assets in other countries. Brussels I allows them to do this easily and cheaply due to the near-automatic nature of the mechanisms. This can encourage—and has encouraged—investment in member states, and promotes the growth of UK businesses overseas. The ability to enforce judgments, or awards in the case of arbitration, in a country is often a threshold issue for businesses contemplating an investment in that country, so will be beneficial to UK businesses in the European Union, and for European Union businesses looking to continue to trade with the UK.

Secondly, Brussels I increased predictability and certainty, leading to reduced costs for businesses. Businesses have the certainty that they can enforce their rights, and that can easily recuperate assets in EU countries. This is particularly helpful for smaller businesses that do not have resources that are comparable to those of large companies.

Thirdly, Brussels I makes England and Wales attractive to litigants. Maintaining it would provide a continued incentive for parties to negotiate jurisdiction clauses in favour of the English courts. As mentioned in previous hearings, British legal services are worth about £24 billion, which will be massively impacted if we leave without a deal.

Finally, Brussels I provides an enormous amount of protection to consumers by allowing them to sue or defend themselves in the home court familiar to them without having to pay lawyers or high legal fees for that purpose.

Can I ask the Minister whether the Lugano convention has been considered? It deals with jurisdiction, recognition, and the enforcement of judgments in civil and commercial matters. It currently applies between European Union member states and Switzerland, Norway and Iceland—the European Free Trade Association area. Other non-European Union members can accede to the convention under certain conditions. We ask the United Kingdom Government to seek accession to the Lugano convention by applying to the Swiss Federal Council as soon as possible. The convention is not a European Union instrument although the European Union is party to it, so we ask the Government to make it a priority in their no-deal preparations. Will the Minister confirm if that has been considered or applied for? If not, why not?

Ms Ryan, I would like to indicate that the Opposition will be abstaining in the vote on this statutory instrument.

[The Chair]

Before I call the next speaker, I realise that not all Government Back-Bench members of the Committee are interested in this topic, but I would ask that they either work quietly or leave the room. It is not acceptable to be carrying on your own meeting from the beginning to this point in our sitting.

Oral Answers to Questions

Yasmin Qureshi Excerpts

Tuesday 5th February 2019 Commons Chamber

[Edward Argar]

Reducing reoffending is a key goal of the prison system, as we set out in the White Paper. Plans such as the New Futures Network show that we are serious about this. Research published by the Ministry of Justice last year showed that prisoners who have undertaken learning activity have a significantly lower reoffending rate on release than their peers, with a one-year proven reoffending rate that is 7.5 percentage points lower. Offenders who found P45 employment in the year after leaving prison had one-year reoffending rates that were six to nine percentage points lower than similar offenders who did not find employment.

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

While the total number of children in prison has declined over the years, the number of black and minority ethnic children in the prison system has remained static. How can the Lord Chancellor reassure BME communities that their children are not being disproportionately targeted?

[Edward Argar]

The shadow Minister makes an important point, building on the point made earlier by the right hon. Member for Tottenham (Mr Lammy). I am concerned about the black, Asian and minority ethnic people in custody. As the Lord Chancellor has said, we take this matter very seriously. This runs through our response to the Lammy review and the race disproportionality work that we undertake in the Department. I would be happy to meet the hon. Lady on this topic, if she would like me to.

Draft Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019 Draft Civil Partnership and Marriage (Same Sex Couples) (Jurisdiction and Judgments) (Amendment Etc.) (EU Exit) Regulations 2019

Yasmin Qureshi Excerpts

Wednesday 30th January 2019 General Committees

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

It is a pleasure to serve under your chairmanship, Sir David. We will abstain on both statutory instruments. Colleagues will be relieved to hear that most of my comments will relate to the draft family regulations; we understand the need for the draft civil partnership and marriage regulations, and I have no observations on them.

It is important to observe that the draft family regulations will ensure that the existing reciprocity between EU member states and the United Kingdom in matters pertaining to marriage, divorce, annulment, parental responsibility and maintenance no longer applies after exit day. The draft regulations make some provision for cases that start before exit day. Disappointingly, however, an impact assessment for the instrument has not been published.

We would support the draft regulations in the event of no deal, as it would be inappropriately unilaterally to continue those mechanisms. However, the scale of the loss of international functionality in family law in the event of no deal must be stressed. The lives of UK and EU27 citizens have become intertwined over the past 40 years. There are approximately 1 million British citizens living in other EU member states, and some 3 million EU nationals living in the United Kingdom. To illustrate the scale of all this, at the moment there are approximately 16 million cross-border disputes on family law matters, 14,000 international divorces and approximately 1,800 child abduction cases in the European Union.

Currently, families in the UK have the following benefits. The regulation on mutual recognition of protection orders helps to enforce orders made to protect victims of domestic violence or harassment across borders. The European enforcement order provides a streamlined procedure for enforcing uncontested claims, for example where there has been an out-of-court settlement, which is extremely useful. The maintenance regulation provides for a series of measures aimed at facilitating the payment of maintenance claims in cross-border situations.

The Brussels II regulation allows mutual recognition of divorce orders, decides the jurisdiction and forum of divorce cases, and promotes close collaboration of courts and national welfare authorities in matters of children and jurisdiction, recognition and enforcement of children orders, child protection and child abduction. Brussels II also provides an automatic system of recognition of contact orders; ensures easier enforcement of child arrangement orders, which decide where a child lives and how much time they spend with each parent; and allows cases to be transferred to the court that is best for the child and the case.

If we were to leave without a deal, we would have to fall back on the international arrangements, which are not as comprehensive. While we are pleased that the 2007 Hague convention has been signed by the United Kingdom in its own right, rather than through its European Union membership, and while I hear what the Minister said about signing up to various international conventions meaning that the situation would not be as bad, they are limited as to what they can do. Our current arrangements are far superior, very easy and straightforward.

One of the issues is that the arrangements that we will have to fall back on—the international agreements or the common law—were often something that only affluent people could have afforded. People who have lower incomes, do not have access to decent legal aid or are vulnerable adults are the ones who will suffer the most, because they do not have the resources or knowledge to deal with such cases.

[Anna McMorrin (Cardiff North) (Lab)]

Does my hon. Friend agree that it is very worrying that no impact assessment has been published before the regulations have come before us today? Would she like to know when those impact assessments will be published?

[Yasmin Qureshi]

I totally agree with my hon. Friend, which is why I alluded to that issue earlier. Without a formal assessment by the Ministry of Justice, which I hope it will carry out, we can say that under the current arrangements seamless laws are applied and we do not have to worry about getting judgments or orders. Of course, most people are able to take advantage of those arrangements, especially—to reiterate what I said earlier—people who do not have much money or assets and vulnerable adults. Those people are able to access their rights, which they will not be able to do in the same way once we exit the European Union.

Leaving the European Union without a deal will cause a tremendous amount of problems for many families and people across the United Kingdom, especially people who are not financially well off, those who are on benefits and those who cannot access legal aid. They are going to have a horrific and horrendous time.

Courts IT System

Yasmin Qureshi Excerpts

Wednesday 23rd January 2019 Commons Chamber

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

(Urgent Question): To ask the Secretary of State for Justice if he will make a statement on the failure of the central courts IT system.

[The Parliamentary Under-Secretary of State for Justice (Lucy Frazer)]

I am grateful for the opportunity to update the House on the IT issues facing the Ministry of Justice over recent days.

I start by apologising to those who have been affected by the intermittent disruption, which was caused by an infrastructure failure in our supplier’s data centre. Although services have continued to operate and court hearings have continued, we know how frustrating this is for everyone. The issue is that some of our staff in the Courts and Tribunals Service, the Legal Aid Agency, probation and Ministry of Justice headquarters have been unable to log on to their computers, but we have contingency plans in place to make sure that trials can go ahead as planned.

The Prison Service has not been affected and—to correct inaccurate reporting—criminals have not gone free as a result of the problem. We have been working closely with our suppliers, Atos and Microsoft, to get our systems working again, and yesterday we had restored services to 180 court sites, including the largest ones. Today, 90% of staff have working computer systems. Work continues to restore services and we expect the remainder of the court sites to be fully operational by the time they open tomorrow morning. We are very disappointed that our suppliers have not yet been able to resolve the network problems in full.

This afternoon, the permanent secretary, Sir Richard Heaton, will meet the chief executive of Atos and write personally to all members of the judiciary. I am very grateful to all our staff who have been working tirelessly and around the clock, alongside our suppliers, to resolve the issues.

[Yasmin Qureshi]

I thank you, Mr Speaker, for granting the urgent question, and the Minister for her reply.

Members will be concerned by the failure of the multiple vital IT systems that our courts require, including systems supplied by Atos and Microsoft. Indeed, I saw those failures at first hand last week, when I visited one of the Crown courts. The chair of the Criminal Bar Association described our courts system as being “on its knees” following that failure, and blamed

“savage cuts to the MoJ budget”.

Reports in The Times suggested that there is a risk of defendants being released before trial. Will the Minister confirm whether any defendants have been released without trial? What costs has the failure incurred? Have Atos and Microsoft paid any penalties for failures on the contracts so far? Can the Minister guarantee that all costs arising from the failures will be recovered from the suppliers?

Of course, such failings do not happen in a vacuum. The Ministry of Justice has faced cuts of 40% in the decade to 2020. The Government are pursuing a £1.2 billion courts reform programme, which has seen hundreds of courts close, thousands of court staff cut and a rush to digitise many court processes. Are the plans to cut 5,000 further court staff by 2023 still being pursued?

Will the Minister explain why the Government ignored the Association of Her Majesty’s District Judges, which called for courts closures to be stopped until

“fully functioning IT systems are demonstrated to be up and running successfully”?

Finally, will the Minister now commit to a moratorium on further cuts, closures and digitisation of our courts until a Bill has been brought to the House so that we can fully scrutinise the Government’s plans?

[Lucy Frazer]

I am grateful for the opportunity to answer the points that the hon. Member for Bolton South East (Yasmin Qureshi) raised. She suggested that the problems are related to cuts—they are not. They relate to an issue in a contractual supplier’s system. She suggested that defendants were being released. I hope she heard in my initial reply that that was incorrect reporting. No prisoners have been released. The prison system is different from the MOJ’s and I repeat that no prisoners have been released as a result of the problem.

The hon. Lady asked about penalties. As I said, the permanent secretary is meeting the supplier’s chief executive this afternoon and of course we will look carefully at the contracts, which include penalty clauses.

The hon. Lady suggested that the issue is related to a rush to digitisation. I would like to clarify that Her Majesty’s Courts and Tribunals Service operates on a legacy system, which needs to be updated because issues arise in it, and we are therefore investing significantly in our digitisation programme to ensure that our courts system runs well in the future.

The hon. Lady talked about cuts. I started with that and I will end with it, as she did. We are not cutting our justice system and our Courts Service. Indeed, as she rightly identified, we are putting £1 billion into it.

Draft Civil Legal Aid (Amendment) (EU Exit) Regulations 2019

Yasmin Qureshi Excerpts

Tuesday 22nd January 2019 General Committees

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

It is a pleasure to serve under your chairmanship, Sir Henry. As the Minister has explained, this regulation will repeal a 2003 directive that was designed

“to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid”

for cross-border disputes over family, commercial and civil matters, which are obviously important issues that need to be dealt with properly. As the Minister has outlined, a cross-border dispute is defined as

“one where the party applying for legal aid in the context of the directive is domiciled or habitually resident in a Member State other than the Member State where the court is sitting or where the decision is to be enforced.”

In practical terms, this is relevant for individuals who are domiciled or habitually resident in an EU member state and require legal services for proceedings in other member states, or who wish to enforce a decision or an authentic instrument in another member state.

Although it is acknowledged that some of the provisions in this regulation are procedural in nature, there is one substantive provision that will have a massive impact on access to legal aid by removing paragraph 44 of part 1 of schedule 1 in LASPO. When this statutory instrument was discussed in the other place, Lord Thomas of Gresford said that the current framework

“provides predictability and certainty for citizens and businesses”

and that

“judgments and orders obtained will be recognised and enforced…as is the case now.”—[Official Report, House of Lords, 15 January 2019; Vol. 795, c. 191.]

Those benefits were recognised in the Government’s 2017 paper, “Providing a cross-border civil judicial cooperation framework”. Paragraph 7 stated:

“This framework provides predictability and certainty for citizens and businesses from the EU and the UK about the laws that apply to their cross-border relationships, the courts that would be responsible, and their ability to rely on decisions from one country’s courts in another State.”

An important feature of civil judicial co-operation at present is the mutual provision of legal aid. The legal aid directive sets minimum common rules relating to legal aid in order to improve access to justice in cross-border disputes. It applies to all such disputes over civil and commercial matters, but particularly to family law—the disposal of assets and access to children, especially across borders. This provision was incorporated into English law by LASPO, and its purpose is to ensure that people domiciled or habitually resident in EU member states are not treated more favourably after we leave the European Union than those who reside in England, Wales and Northern Ireland. EU residents who require legal services in relation to proceedings in our courts, or who wish to enforce an overseas judgment, will no longer have a right to legal aid for matters within the scope of the EU directive.

The statutory instrument uses the Henry VIII powers in section 8 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 to revoke the legislation implementing the European Union directive in UK domestic law. As far as we can ascertain, the statutory instrument would prevent European Union residents from seeking legal aid for exceptional cases that are not normally within the scope of UK domestic legal aid, but where not providing it would be a breach of retained enforceable European Union rights. Can the Minister tell us whether, after Brexit, EU residents will be able to apply for legal aid in the ordinary way for cases involving children across borders in an English court, for example, and whether legal aid would be granted if the ordinary tests of merits and means were satisfied? Does domicile or residency in the European Union disqualify an applicant who applies for legal aid in the normal way?

One of our many concerns is that the Government have not properly planned for reciprocal justice arrangements after we leave the European Union. That failure could have very damaging consequences for the people who rely on those arrangements, including those resolving complex family law cases. There are concerns across Parliament, including on the Justice Committee, that the Ministry of Justice has provided little detail or certainty about how co-operation on justice will be managed after we have left the European Union. In October, the Chair of the Lords EU Justice Sub-Committee wrote to the Lord Chancellor to set out a number of the Sub-Committee’s concerns about the impact of the Government’s handling of the Brexit negotiations on judicial co-operation, warning about the

“‘profound and damaging’ impact of a no-deal Brexit on the UK’s family law system and those that these courts seek to protect”.

The civil judicial co-operation framework that I referred to earlier on, which was issued by the Government, was found by the Lords EU Justice Sub-Committee to contain little detail on how the Government’s aims for co-operation would be achieved, and noted that

“a worrying level of complacency has taken hold in the Government that assumes that we can leave the EU without alternatives in place and that other international arrangements will fill the void left by this important EU legislation.”

It is in that context that we express concern that the provisions in the statutory instrument could begin to undo the existing legal framework without yet having an agreed replacement in place. That is a risky approach that would be avoidable were it not for the Government’s failure so far to secure comprehensive agreements on future co-operation in justice matters. The Lords EU Justice Sub-Committee is not alone in noting that. The matter was raised in two debates in Westminster Hall last year, which focused generally on judicial co-operation post Brexit, not only for legal services but for our judicial and civil relationships.

The statutory instrument does not come with a clear explanation, which is another concern expressed by the Lords. The Government’s failure to plan properly for reciprocal justice arrangements could have damaging consequences for people who rely on such co-operation. Earlier, I asked whether European Union residents could apply in the ordinary way for legal aid for UK courts post Brexit in cases of children across borders, for example, and whether that aid would be granted subject to means and merit tests. No answer has been given. I would be grateful if the Minister gave us some facts and figures about which applications for legal aid might be accepted. It is well known that the Law Society has indicated its concerns to the Ministry of Justice about the provisions and the problems that they may cause. For those reasons, we will vote against the statutory instrument.

Draft Services of Lawyers and Lawyer’s Practice (Revocation etc.) (EU Exit) Regulations 2019

Yasmin Qureshi Excerpts

Wednesday 16th January 2019 General Committees

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

It is a pleasure to serve under your chairmanship, Mr Bailey. I have indicated to the Minister, the Government Whip and the Chair that we will not be pressing this statutory instrument to a vote. I thank the Minister for her courtesy in ringing me to talk about it last week.

The Opposition have some observations about the statutory instrument and its effects. The legal services sector is in a unique position in the European Union. It is widely established that a series of European directives have created a single market in legal services, unlike in other service sectors. Lawyers and law firms benefit from a simple, predictable and uniform system that allows them a temporary or permanent presence in other EU member states, with little scope to introduce national variations. This allows United Kingdom lawyers to service the cross-border needs of businesses and individuals, both from satellite offices in the European Union and through fly-in, fly-out services from their London offices. That is a daily business practice for many firms.

Since this liberalisation, the UK legal sector has become a major exporter to the European Union, with 36 of the top 50 UK law firms having at least one office in another country in the European Union or European economic area, or Switzerland. UK law firms have a presence in 26 of those 31 countries. That has meant that the legal sector has contributed significantly to our economy. In 2017 alone it was worth more than £26 billion to the UK economy—equivalent to 1.5% of UK GDP—and it employed in excess of 380,000 people. The latest statistics show that the legal services sector was responsible for a net export of £4 billion. There is no precise figure for how much of that trade is to the EU, but we are aware that 55% of the UK’s business services exports go to the European Union, and legal services make up a significant amount of UK business services.

A no-deal Brexit would have a significant impact on the ability of UK lawyers to operate in the European Union, and it would lead to World Trade Organisation rules being applied. Progress in developing rules on services at the World Trade Organisation has been very slow. Although it is outside the scope of the statutory instrument, I remind Members that there is a concern that a no-deal situation will have the following consequences for UK law firms and lawyers. Without a future partnership agreement, world-leading law firms in the UK could face significant restrictive regulations on the provision of temporary and permanent services in the European Union 27 countries. Lawyers would face more than 30 different regimes, depending on each European Union and EFTA member state, many of which impose restrictions and limit practice rights for third-country lawyers and law firms.

For example, there are restrictions on practice areas. In most European member states, it is not possible to practise local state law as a third-country lawyer without holding local qualifications. The WTO schedules of commitments under legal services include only home country and public international law. Crucially, European Union law is not treated as a type of public international law, and so is excluded from the scope of the schedules. UK lawyers will therefore not be able to advise on areas such as competition, internal markets and trade. In most member states, it would not be possible, save for a few exceptions, for a third-country lawyer to represent their client in the domestic courts.

Another big consequence is a restriction of modes of practice. Most European Union member states do not permit fly-in, fly-out services by third-country lawyers. If those services are lost, the profession’s ability to continue to advise European clients, represent those with cases involving more than one European Union member state and continue to play a leading role in global investigations will be jeopardised. Fly in, fly out is excluded from the WTO commitments, and each member state imposes its own rules and regulations. For example, France, Germany and Luxembourg require compulsory membership of professional bodies in relation to commercial presence. There are strict rules prohibiting local lawyers from partnering with non-EU lawyers in, for example, Spain and Sweden. There are restrictions on company structure or commercial presence, such as restrictions on foreign investment in law firms or an imposition of a certain legal form on third-country law firms, in, for example, France, Spain, Portugal and Poland.

One of the main issues is that most member states do not allow third-country nationals even to re-qualify in their national legal profession, as that is available only to EU, EEA or Swiss nationals. Again, that will have a big impact on UK lawyers and legal services, and our economy. Our world-leading services, which are rightly recognised across the world, will be seriously impacted.

Those are just some of the consequences. There have been at least two Westminster Hall debates on those and other issues relating to legal matters arising from Brexit. One was on 29 March last year and the other was on 21 November, and I had the pleasure of responding to both from the Opposition Front Bench. The issues I mentioned today were spoken about in detail or alluded to in those debates, and we asked the Government a number of questions. What are the Ministry of Justice and the Government doing to deal with the problems that we will have if we leave the European Union? So far, it seems that no protocols, no agreements, no treaties and no memorandums—no nothing—have been negotiated by the Ministry of Justice or the Government for legal services. There is a grace period until 2020, but nobody knows what will happen after that. Our legal services will be impacted.

This is not new. I am sure these issues have been raised by other hon. Members prior to 2018—I have been dealing with them since last year. I and other hon. Members who were present in the Westminster Hall debates that I have mentioned raised these points then. The Ministry of Justice has had to introduce a statutory instrument to deal with the revocation of all the previous legislation and the things that allowed essentially seamless movement of legal services across borders.

Although lawyers who have already qualified will keep their rights, that is not a great concession because if someone is already qualified in a particular country, it will be difficult to take that back. I know—as does the Minister, who was a practising lawyer as well—that at some point we are going to require another country’s legal jurisdiction. Different countries have different rules. Europe has what we call the continental system, which is a statutory-based codification, and that is a different ball game from trying to practise in common-law jurisdictions, which are very different. It can be an absolute nightmare, and a difficult and lengthy process, to re-qualify in other jurisdictions—and that leaves aside the fact that in some jurisdictions, someone who is not an EU, EEA or Swiss national cannot practise at all. Once we are out of the European Union, we will not be a member of any of those, so we will not be able to practise in many European countries. I do not know why the Department has not grasped the impact of that particular provision on our legal services.

I hope that the Minister and others in the Department are listening. I wish they would get together and sort something out, so that our lawyers can practise across the European Union, the EEA and Switzerland.

Courts and Tribunals (Judiciary and Functions of Staff) Bill [Lords]

Yasmin Qureshi Excerpts

3rd reading: House of Commons & Report stage: House of Commons
Wednesday 12th December 2018 Commons Chamber

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

I beg to move amendment 1, in page 3, line 28, leave out subsection 3 and insert—

“(3) A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before Parliament and approved by a resolution of each House.”

This amendment would require that where statutory instruments delegating judicial functions to authorised persons are brought they would be subject to the affirmative procedure.

[Mr Speaker]

With this it will be convenient to discuss the following:

Amendment 2, in the schedule, page 6, line 36, at end insert—

“(aa) is a qualified solicitor, barrister or chartered legal executive with more than three years’ experience post-qualification, and”.

This amendment would stipulate that the minimum legal qualifications for authorised persons should be three years’ experience post-qualification.

Amendment 3, in the schedule, page 8, line 31, at end insert—

“( ) is a qualified solicitor, barrister or chartered legal executive with more than three years’ experience post-qualification, and”.

See explanatory statement to amendment 2.

Amendment 4, in the schedule, page 11, line 12, at end insert

“and if they are a qualified solicitor, barrister or chartered legal executive with more than three years’ experience post-qualification”.

See explanatory statement to amendment 2.

Amendment 5, in the schedule, page 11, line 32, leave out subsection 67C and insert—

“67C Right to judicial reconsideration of decision made by an authorised person

A party to any decision made by an authorised person in the execution of the person’s duty as an authorised person exercising a relevant judicial function, by virtue of section 67B(1), may apply in writing, within 14 days of the service of the order, to have the decision reconsidered by a judge of the relevant court within 14 days from the date of application.”

This amendment would grant people subject to a decision made under delegated powers a statutory right to judicial reconsideration.

--- Later in debate ---

[Yasmin Qureshi]

I rise to speak in support of amendment 1 and the other amendments. We are being encouraged to wave through this wafer-thin Bill, which is both narrowly constrained and obscurely drafted. This is a Bill that sneaks through changes that will change unconstitutional double delegation—that is, of legislative power to unaccountable judges sitting on procedure rule committees and of judicial powers to non-independent courts and tribunal staff.

Let us begin with clause 3, which delegates judicial functions to authorised staff. This provision must be understood in the context of a wider court reform agenda and the austerity measures that seek to make significant cuts. These efficiencies, generated through the proposed reforms, arise not only from the reduction in the size of the courts estate, but from savings on judicial salaries. Ultimately, the Bill seeks more justice on the cheap.

The Bill will ensure that judicial powers are delegated to non-independent courts and tribunal staff. The procedure rule committee is primarily made up of senior judges, who would ensure relatively little external public scrutiny of this delegation of judicial functions to non-judicial employees of Her Majesty’s Courts and Tribunals Service. That is a really important point.

The Bill provides that regulations under clause 3 must be made under the negative resolution procedure. In effect, this will allow new rules of court stipulating which judicial functions can be delegated and to whom, and the requisite qualifications or experience that an authorised person must have to take on these judicial functions, but, as the Bill stands, such a delegation will come into force without any real parliamentary scrutiny. In essence, by providing that the regulations in the Bill are to be made under the negative resolution procedure, the Government are avoiding proper scrutiny by a democratically mandated legislature here in this place.

Our amendment, which is supported by the Bar Council, would ensure more constitutionally appropriate accountability and scrutiny, through the affirmative resolution procedure, of these sweeping regulations. These regulations concern powers to make rules stipulating which judicial functions can be delegated and to whom, and the qualifications and experience required before a member of the administration can be given these judicial functions. Without careful scrutiny and additional safeguards, the Government’s drip-feed approach to court reform will erode some of our most fundamental institutions and our understanding of the rule of law.

[John Howell (Henley) (Con)]

Will the hon. Lady comment on whether the qualification provision will raise the bar significantly above that in current regulations for such people and whether that will put at a disadvantage people already carrying out those functions?

[Yasmin Qureshi]

We are talking about two different things. The authorised persons are to have delegated to them many judicial functions, and it is only appropriate that they have some experience. In those circumstances, three years’ post-qualification experience is not a big ask, obligation or burden. We are asking for the minimum, and we are being very reasonable and practical about it. We are only surprised that the Government are not taking our concerns on board and changing the rules.

[Mr Jim Cunningham (Coventry South) (Lab)]

One reason we need proper scrutiny is the tendency towards rationalisation of the courts, which eventually means long waiting times—that cannot be justice for anyone waiting for a trial. There have been endless cases of this now, and it is getting worse, not better. Does my hon. Friend agree that that is not fair on the victim or the perpetrator?

[Yasmin Qureshi]

My hon. Friend is spot on. That is one of our concerns about the Government’s proposals.

We need a process that requires transparent and public scrutiny in this House of the scope of future delegated powers. The safeguards the Opposition seek on the powers created by the Bill are not unreasonable and would not interfere with the notion of reasonable delegation of non-contentious administrative functions; they simply press for further oversight and accountability.

Our amendments providing that the authorised persons must be solicitors, barristers or chartered legal executives with more than three years’ post-qualification experience have been recommended and drafted by the Law Society and are supported by the Bar Council. In other words, all the practitioners in the country are supporting and asking for these changes, and I ask the Government, even at this late stage, to consider adopting them. In the circumstance, we believe them to be the minimal ask of the Government. It is a lower qualification threshold than what is currently required of pupil supervisors, or indeed of solicitors, to supervise an office.

It is worth remembering that authorised staff are not subject to the training, experience, ethos and oaths of professional judges, and could be performing judicial functions while also—this is really important—being employed directly by HMCTS. This raises genuine questions of independence.

[Kevin Hollinrake (Thirsk and Malton) (Con)]

We are talking about taxpayers’ money. Does the hon. Lady not accept that where such tasks are routine—say, straightforward case preparation—the people performing them should not need a legal qualification?

[Yasmin Qureshi]

These people will be performing judicial tasks and functions and so will need to be appropriately qualified, which is why we have tabled the amendments.

[James Cartlidge (South Suffolk) (Con)]

It is my understanding that these are mainly interlocutory functions, not actual judgments or significant judicial functions.

[Yasmin Qureshi]

No, as we understand it, although it is envisaged that some of these tasks will be procedural, others will be very important to people whose rights are affected. We might think, for example, that requests for adjournments are straightforward, but they are not. As practitioners and former practitioners will know, they can be complicated, because when a judge decides whether to grant one, they take into consideration a host of things, so it is important that the person be appropriately qualified.

We accept that the procedure rule committee will be able to iron out some of the questions about what are judicial and what are administrative functions, but the main thing is that these people will be carrying out judicial functions and deciding some difficult issues, and it is only appropriate that they be qualified and appropriately experienced.

[Andy Slaughter (Hammersmith) (Lab)]

My hon. Friend is absolutely right. We discussed this in Committee. Interlocutory case management often has a large bearing on what happens in a case; it can alter what happens in a case and it can alter cost decisions. In their own way, such decisions are as important as purely judicial decisions. The Government’s proposal might be a false economy, so I support what she is saying.

[Yasmin Qureshi]

I thank my hon. Friend, a former shadow Justice Minister, for his intervention, and I take his point.

We acknowledge that the relevant procedure rule committee will set out the procedural requirements for who can carry out the procedures, but we also know that these committees are predominantly made up of senior judges, so this will have implications for the independence of judicial decision making.

We also believe that such a shift will not match the expectations held by members of the public on the experience and independence of those making judicial decisions about their rights.

[Robert Neill (Bromley and Chislehurst) (Con)]

The hon. Lady referred to the independence of the judges. Is not the whole virtue of this proposal that the rules governing who should be delegated what functions will be made by judges, and should not be made by politicians in any circumstance? Lord Thomas of Cwmgiedd, the former Lord Chief Justice, observed:

“Experience has shown that detailed restrictions on procedure are a very real fetter on the administration of justice.”—[Official Report, House of Lords, 20 June 2018; Vol. 791, c. 2039.]

He counselled against too much restriction of the kind that is being proposed.

[Yasmin Qureshi]

The procedure rule committee obviously has a place in our judicial system, and we accept that judges and others are involved in it, but everyone knows that there are times when, because of financial pressures, services are cut to the bare minimum. We believe that, to protect our judicial system, the functions concerned should be clearly set out, and those that will have an effect on someone should be decided by an authorised person with a legal qualification.

[Alex Chalk (Cheltenham) (Con)]

The hon. Lady is getting perilously close to suggesting that judges will do justice when they are inside a court, but will be incapable of ensuring that justice is done when they are outside a court, on the procedure rule committees. Will she make it crystal clear that judges will always, in all circumstances, want to do justice, and can be trusted to do so?

[Yasmin Qureshi]

We are not suggesting that judges will somehow not be independent. As I have said, I have the highest regard for our judiciary in court, although from time to time we might disagree with the decisions that judges reach. In the real world, however, there are often targets to be met and financial constraints to be considered. We are saying that when the procedure rule committee is making rules, it should be guided by Parliament.

[Robert Neill]

rose—

--- Later in debate ---

[Yasmin Qureshi]

I have taken a number of interventions, and I will make some progress now. Otherwise we will be going round in circles on the same point.

The Bill provides for judicial functions to be delegated to authorised staff across the criminal, civil and family courts and tribunals. However, it also states that while those staff will be independent of the Lord Chancellor when carrying out the delegated functions, they will remain court staff, and will not take the judicial oath of independence. It is surely important for those who will be making any type of judicial decision to take that oath. They cannot be described as independent when they are employed by the court in which they will serve.

There might, for example, be economic pressures. The court might want to get rid of cases very quickly, within a certain period. The promotion prospects of those who are employed directly by the courts will, of course, be affected, and, unlike judges, they will not be governed by the oath of independence, the Bar rules and the Law Society rules. People who are making judicial decisions should be appropriately qualified, with the proper ethos and the proper rules that apply to solicitors and barristers, and to which members of the legal profession, such as me, must have regard.

Our amendment 5 would ensure that a party to any decision made by an authorised person exercising a relevant judicial function, or the function of a tribunal,

“may apply in writing, within 14 days of the service of the order, to have the decision reconsidered by a judge of the relevant court within 14 days from the date of application.”

We will be quite happy if the Government want to increase the period to 21 days, or reduce it to fewer than 14, but we want people to have a right to judicial reconsideration of a decision made by an authorised person. We cannot understand why the Government do not want to accept the amendment.

--- Later in debate ---

[Lucy Frazer]

I hope that more will put in to speak on this important subject. I wish to pick up on what my hon. Friend was saying, because he cited a number of speeches from the other place, where senior members of the judiciary were highlighting the appropriateness of the Government’s position. Lord Neuberger, former President of the Supreme Court, warned that these amendments would place

“a potential straitjacket on the ability to appoint the appropriate people to make appropriate decisions.”

He went on to reflect that there “will be many decisions” for which the experience set out in the amendments

“would be appropriate, but there will be others where less experience would be adequate for the decision-making.”—[Official Report, House of Lords, 10 July 2018; Vol. 792, c. 882.]

Thirdly, I come to an important point that has not yet been mentioned in the House. The amendments would limit flexibility should new routes to legal qualifications emerge. For example, one key change that we have made in the draft regulations that we published alongside the Bill is to include fellows of the Chartered Institute of Legal Executives, or those who have passed the necessary examinations to be a CILEx fellow, among those who can give legal advice. That is a progressive step, but if we were to accept amendments 2 and 3, it would be much harder to respond to such changes in the future, as we would have to amend primary, rather than secondary, legislation.

Furthermore, a legal qualification might not be the most relevant qualification for a particular judicial function. For example, it is more helpful for a registrar in the tax tribunal to be a tax professional by background, rather than a legal professional.

The hon. Member for Bolton South East raised a number of points on independence, and I wish to start by saying that I think the judiciary, whether sitting in court or in committee, has, as my hon. Friend the Member for Cheltenham (Alex Chalk) said when he was in his place, the highest level of independence and integrity.

The hon. Lady queried, both here and in Committee, the independence of authorised staff, implying that those with a legal qualification were more likely to be independent. Under the Bill, all court and tribunal staff who are authorised to exercise judicial functions will now be independent of the Lord Chancellor when doing so, and subject only to the direction of the Lord Chief Justice or their nominee, or the Senior President of Tribunals or their delegate.

The Bill also provides, for the first time, protections from legal proceedings and costs in legal proceedings and indemnities for all authorised staff when carrying out judicial functions, which will further safeguard their independence in decision making.

Finally, amendment 5 deals with the right of reconsideration of decisions taken by authorised staff in the courts. I wish to start by acknowledging that the hon. Lady and the Opposition have listened carefully to the points made in Committee; I note there is now no amendment dealing with decisions taken by staff in the tribunals, and I welcome that.

It is right that in some circumstances a party to proceedings may wish to have the decision reconsidered, but we remain opposed to the amendment for three reasons. First, the Bill already ensures that a right of reconsideration will be available when appropriate. We believe that the independent procedure rule committees—comprised, as I and others have said, of jurisdictional experts and experienced practitioners—are best placed to decide whether such a right of further reconsideration is needed and, if so, the form that that right should take.

Indeed, the procedure rule committees in the civil and tribunals jurisdictions have already included in their respective rules a specific right to judicial reconsideration for decisions made by authorised persons in appropriate cases. For example, the magistrates courts and the family court have their own existing mechanisms for reviewing various decisions, which amendment 5 would cut across.

Secondly, the right identified by the hon. Lady is too broad, even by her own admission. In speaking to amendments in Committee, she said that

“we accept and acknowledge that one should not be able to ask for reconsideration simply because one disagrees with the decision of the authorised person; one must have a cogent reason. There must be proper grounds for requesting a reconsideration.”—[Official Report, Courts and Tribunals (Judiciary and Functions of Staff) [Lords] Public Bill Committee, 4 December 2018; c. 17.]

I was delighted to hear those words, because the Government have also been arguing, both here and in the other place, that a blanket right of reconsideration simply would not work in practice. Yet amendment 5 would give a party in a case an automatic right to request that any decision made by an authorised person exercising the functions of a court be reconsidered by a judge, irrespective of the merits.

Thirdly, the approach we put forward is fair and balanced. The Government listened to concerns about ensuring there were adequate safeguards in the Bill. For that reason, we moved amendments on the right of reconsideration that were accepted on Report in the other place. They effectively require the rule committee, when making rules, to allow authorised staff to exercise judicial functions to consider whether each of those functions should be subject to a right to judicial reconsideration. Where a rule committee decides against the creation of a right of reconsideration, it must inform the Lord Chancellor of its decision and the reasons for it.

The hon. Lady also referred to the Briggs report, and I would like to touch on that very briefly. The recommendations made by Lord Justice Briggs are taken from the report “Civil Courts Structure Review”, the focus of which was the courts of the civil jurisdiction. While an unqualified right of reconsideration might have been appropriate to recommend for the civil courts, given their unique way of working it would be ineffective simply to transpose this recommendation on entirely different jurisdictions.

The civil procedure rule committee has built a right of reconsideration into its rules, but this will not necessarily be appropriate for other jurisdictions. It is for each jurisdiction, with the expertise it has within the rule committee, to decide what is right.

That approach has found favour in the other place. Lord Thomas, former Lord Chief Justice and former chair of the criminal procedure rule committee, said:

“I support what the Government seek to do and urge a substantial degree of caution in respect of the proposals brought forward by the noble Baroness”—

that is, Baroness Chakrabarti. He added that the Government’s approach provides the right balance:

“It gives discretion to a body that knows and has a lot of experience, but it contains that degree of explanatory accountability that will make sure that it does not do anything—even if we were to worry that it might—that goes outside a proper and just delegation”.—[Official Report, House of Lords, 16 October 2018; Vol. 793, c. 425-26.]

The Bill strikes the right balance between ensuring appropriate safeguards and transparency of decision making, and leaving the jurisdictional rule committees the discretion to determine the most appropriate mechanism for reviewing decisions by authorised people.

Finally, I would like to respond to the very important points made by the hon. Member for Sheffield, Heeley (Louise Haigh). I was very pleased to meet her and Sammy Woodhouse a week or so ago. She raised issues that are outside the scope of the Bill, but none the less what Sammy went through was harrowing and the hon. Lady made some important points. As she knows, I committed to look very carefully at the issues she raised and I assure her that we are doing that.

As the hon. Lady mentioned, we have already taken some steps. We have, as she alluded to, asked the president of the family court to look at the practice directions and he has committed to doing that with the rule committee. My officials have spoken to the Association of Directors of Children’s Services about whether it is appropriate to send further guidance to councils on the circumstances in which they should apply to court not to give notice of hearings to parties, such as happened in the Sammy Woodhouse case. The Department will continue to look closely at those issues.

For all those reasons, this is an important Bill that will ensure that we can bring flexibility to our judges, deploy them in the most flexible way, use their resources where they are needed and not when they are not needed, and ensure that those who operate our court system do so effectively and fairly for the people they serve.

The Ministry of Justice is putting users of the court at the heart of our reforms and of our programme on court reform. The measures will not only save on cost—that is not the primary reason for them, although it is important—but ensure that cases go through the system fairly and well. For those reasons, I urge the hon. Lady to withdraw the amendment.

[Yasmin Qureshi]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: 2, in the schedule, page 6, line 36, at end insert—

“(aa) is a qualified solicitor, barrister or chartered legal executive with more than three years’ experience post-qualification, and”.—(Yasmin Qureshi.)

This amendment would stipulate that the minimum legal qualifications for authorised persons should be three years’ experience post-qualification.

Question put, That the amendment be made.

Courts and Tribunals (Judiciary and Functions of Staff) Bill [ Lords ] (First sitting)

Yasmin Qureshi Excerpts

Committee Debate: 1st sitting: House of Commons
Tuesday 4th December 2018 Public Bill Committees

[The Parliamentary Under-Secretary of State for Justice (Lucy Frazer)]

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

A key element of our reforms in relation to courts is ensuring that we have a justice system that works better for everyone, which includes making the best use of our judges’ experience, expertise and time. I should make it clear that the deployment of judges is a matter for the judiciary, and the Lord Chief Justice and the Senior President of Tribunals already have far-reaching powers to ensure that the right judges are deployed on the right cases, taking account of changes in case loads of different jurisdictions. However, there are five areas in which clause 1 would amend current legislation to increase that flexibility to deploy judges where they are needed.

The first change is about the temporary appointment of deputy judges to the High Court. The Lord Chief Justice already has a statutory power to appoint a person meeting the eligibility criteria as a judge of the High Court if their appointment is urgent, temporary and there are no other reasonable steps that could be taken to fill the gap. Those temporarily appointed judges are ordinarily existing, serving judges who have been appointed to a judicial office via the independent Judicial Appointments Commission process. Current legislation allows those appointments to facilitate business in the High Court or Crown court only. Clause 1(1) would widen that so that the person appointed could sit in any court or tribunal on which an ordinarily appointed deputy judge of the High Court could be deployed, such as the county court, the family court, the first-tier tribunal and the upper tribunal.

The second change in clause 1 relates to the upper tribunal. The Tribunals, Courts and Enforcement Act 2007 sets out which judges are judges of the upper tribunal and may therefore hear cases there. The definition comprises a number of different types of judge, such as circuit or district judges, but does not currently include recorders. As fee-paid judges, recorders have equivalent powers to circuit judges, and may sit in the Crown court or the High Court with appropriate authorisation. Allowing recorders to sit in the upper tribunal would allow the judiciary to make more use of recorders’ experience, expertise and skill, and would provide greater flexibility to meet business need.

The third change in clause 1 relates to chamber presidents in the first-tier tribunal and the upper tribunal. Currently, there is a restriction that prevents someone from presiding over more than one chamber of the first-tier tribunal or of the upper tribunal. Subsection (4) would allow a chamber president to be appointed to more than one chamber in the same tribunal. That would enable the Senior President of Tribunals to use the existing and future complement of chamber presidents to provide continuous leadership across all chambers without having to recruit and appoint a new chamber president immediately if there were a vacancy.

The fourth change in the clause relates to senior judges of employment tribunals. Currently, there are restrictions on where senior judges of employment tribunals may be deployed. The Bill will enable the presidents of employment tribunals for England, Wales and Scotland to sit in the Employment Appeal Tribunal, which will provide additional capacity for experienced judges to hear appeals. The Bill will also enable leadership judges— the presidents and vice-presidents of the employment tribunal Scotland, and regional employment judges of the employment tribunals—to hear cases in the first- tier tribunal and the upper tribunal, making more use of their experience and skill where needed.

The final part of the clause relates to flexible deployment with respect to arbitration. The Arbitration Act 1996 currently provides for certain judges of the High Court to sit as judge-arbitrators. That allows cases falling within the relevant jurisdiction of the High Court to be resolved via arbitration with the Lord Chief Justice’s permission. The clause extends the range of High Court judges who can sit as judge-arbitrators, and would also allow the Lord Chief Justice to delegate his functions in agreeing that judges can be appointed as judge-arbitrators. That will allow, for example, judges in the chancery division of the High Court, which has seen a growth in demand for arbitration in recent years, to resolve cases in that way. Those provisions, taken together, will contribute towards a modern and responsive justice system.

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

It is a pleasure to serve under your chairmanship, Sir Henry. While we accept the necessity for the clause, we have some concerns, which we hope the Government will take on board.

We accept that there are practical arguments for expanding the flexible deployment of judges, including temporary judges appointed outside the usual Judicial Appointment Commission selection process, to a wider pool of courts and tribunals. The appointment of temporary judges as a principle, however, should be approached with caution. It is important to view flexible deployment generally through the prism of the Government’s wider reforms and cuts, and plans for savings on judicial salaries.

We are concerned about that being used regularly as opposed to on an occasional basis. [Interruption.] Sorry, the Minister was looking very confused. We are concerned about the potential for a trend of too much reliance on temporary judges. The provisions should be used only to deal with urgent matters in the case of a shortage of judges, and the deployment of judges across different sectors should not become the de facto position.

Clearly, one of the things that the Government have not mentioned is what training provisions will be provided for judges moving out of their normal area of activity. If a Crown court judge is transferred to a tribunal, for example, what kind of training would they receive to deal with issues unique to the tribunal system—for example, on issues of disability, reasonable adaption for the purpose of disability legislation, and what could be considered discriminatory under equality legislation. Those are key issues unique to employment tribunals. We want to know and ensure that there are training provisions for that.

As a consequence of the clause, civil judges might come into the criminal courts and Crown courts. What training will be provided for them to deal with specific issues that are unique to the criminal court, such as admissions of previous convictions, which can sometimes be brought in against defendants, and go against the normal rules? What about issues of disclosure? If a failure to disclose material information is ruled inadmissible, it can cause the whole case to collapse. Those are some of the things that are unique to particular courts. I have used the example of the Crown court and the employment tribunals to demonstrate that there are things that are unique to those courts. While we will not oppose the clause, we ask the Government to provide some assurance that the Lord Chief Justice and the Lord Chancellor will make proper financial provision for those judges to update their skills and to receive professional training when they go into a different area of judicial function.

[Lucy Frazer]

I am grateful to the hon. Lady for making some important points. She can rest assured that the temporary appointments are temporary, and they can be made only if they are urgent and temporary and if no other reasonable steps can be taken to fill the gaps. I can also assure her about training: where judges are asked to sit in a new jurisdiction, further induction will be provided in line with the directions of the senior judiciary. The Judicial College is in charge of training, and it will continue to train our judges. Judges will also attend continuation training for all jurisdictions in which they sit.

Question put and agreed to.

Clause 1 accordingly ordered to stand part of the Bill.

Clause 2

Alteration of judicial titles

Question proposed, That the clause stand part of the Bill.

[Lucy Frazer]

No amendments have been tabled to the clause and no issues at all were raised in the other place, or on Second Reading in this place.

In summary, the clause is part of our reform to modernise our courts to ensure that court users know who is hearing the case, and what sort of case the matter is about. The clause therefore provides for amendment of judicial titles to reflect a change in the name of the court in which those judges sit. It also ensures that the title of that office and similar offices can be changed through secondary legislation in the future.

Subsections (1) and (2) change the title of chief bankruptcy registrar to chief insolvency and companies court judge. That reflects the change in the name of the other judges of this court and of the court itself. In 2017, the name of the court dealing with bankruptcy matters was changed to the insolvency and companies court to better reflect its work. Earlier this year, the titles of the more senior judges in that court were changed to reflect the change in the name of the court. The Bill therefore changes the title of the office of the senior judge to bring it in line with other judges of the court.

Subsection (3) enables the judicial titles of other senior masters and district judges of the senior courts to be changed in future by secondary, not primary, legislation, should it be necessary to do so. Changes of title may be required, for example, because of organisational changes in the courts and tribunals. The clause will correct an anomaly that prevents some judicial titles from being amended by ministerial order. Such judicial measures, while relatively modest, will contribute towards a more modern justice system.

[Yasmin Qureshi]

The clause seems to be a sensible one, so the Opposition have tabled no amendments to it.

[The Chair]

I am pleased to hear that.

Question put and agreed to.

Clause 2 accordingly ordered to stand part of the Bill.

Clause 3

Authorised court and tribunal staff: legal advice and judicial functions

[Yasmin Qureshi]

I beg to move amendment 2, in clause 3, page 3, line 24, leave out subsection 3 and insert—

“(3) A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before Parliament and approved by a resolution of each House.”

This amendment would require that where statutory instruments delegating judicial functions to authorised persons are brought they would be subject to the affirmative procedure.

[Yasmin Qureshi]

We tabled the amendment because the existing drafting of the clause appears to allow the delegation of judicial functions to authorised persons without going through an affirmative process—that is, without using secondary legislation. As the Bill stands, that would be done automatically. Bearing in mind that we have expressed concern about the whole system of the authorised person being delegated judicial functions, we believe that that should be done, if it comes to that, by means of a statutory instrument so that Parliament has a chance to discuss it. We would be able to make observations and it would not go through on the nod.

The issue of delegating judicial functions to authorised persons is important to us. At the moment, the Bill does not talk about who such people will be, what their qualifications are, what they will do, or what subjects and issues they can deal with. As the Bill is drafted and from what Ministers have said, the procedure committee is expected to make all those decisions. We do not accept that that should be the case. There are real issues that need to be determined through parliamentary discussion. These measures should be introduced through statutory instruments and not just be decided by the procedure committee as envisaged in the Bill. The procedure committee should listen to our concerns. We want more parliamentary scrutiny of this part of the legislation, through a statutory instrument.

[Lucy Frazer]

I am grateful to the hon. Member for Bolton South East for raising the issue and giving me the opportunity to respond, so I can satisfy her that her concerns are unfounded, I hope.

The power in clause 3(2) seems to have caused considerable confusion here and in the other place, so it might be helpful for me to explain how it works. That power does not permit the delegation of judicial functions to authorised persons—that is a matter for the procedure rules made by the independent rule committees. The power in clause 3(2) could not make such changes because it is a narrow power that is very clearly restricted to consequential, transitional, transitory or saving provisions—a concept that is well understood with many precedents. Those terms are construed strictly by the courts.

The power in clause 3(2) is needed because the procedure rules cannot be used to make all the necessary amendments to other secondary legislation—we will use regulations made under the clause to do that. The power is needed principally to amend references in secondary legislation from “justices’ clerk”, a post abolished by the Bill, to “authorised officer”. So far, we have identified more than 200 references in more than 60 pieces of secondary legislation that would need amendment, and there may be more.

The Government do not intend to use this power to amend primary legislation. Lord Keen gave an undertaking to that effect on Report in the other place. Therefore, there is no express provision for such amendments in clause 3. To accept this amendment would set an unhelpful precedent and would mean that valuable parliamentary time would have to be set aside to debate minor and consequential changes to secondary legislation. In a busy parliamentary Session, that would delay implementation of the provisions in the Bill. I hope that the hon. Lady is reassured and feels able to withdraw the amendment.

[Yasmin Qureshi]

Although I hear what the Minister says, we are not reassured and we will push the amendment to a vote.

Question put, That the amendment be made.

--- Later in debate ---

Authorised court and tribunal staff: legal advice and judicial functions

[Yasmin Qureshi]

I beg to move amendment 3, in the schedule, page 6, line 36, at end insert—

“(aa) is a qualified solicitor, barrister or chartered legal executive with more than three years’ experience post-qualification, and”.

This amendment would stipulate that the minimum legal qualifications for authorised persons should be three years’ experience post-qualification.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 4, in the schedule, page 8, line 31, at end insert—

“() is a qualified solicitor, barrister or chartered legal executive with more than three years’ experience post-qualification, and”.

See explanatory statement to Amendment 3.

Amendment 5, in the schedule, page 11, line 12, at end insert

“and if they are a qualified solicitor, barrister or chartered legal executive with more than three years’ experience post-qualification”.

See explanatory statement to Amendment 3.

[Yasmin Qureshi]

As I have indicated to the Clerk, we will be dividing the Committee on these amendments.

Clause 3 delegates judicial functions to authorised staff, and we are concerned about that. Although we accept that there are some occasions where people other than judges can make decisions on cases, such as on simple procedural issues, including time extensions or requests for adjournments, if authorised people are to be given more than those powers, they must be of a certain calibre. The Bill gives no information on who these people will be, and that worries us, because it would appear that allowing jobs carried out by judges to be done by others, who are not qualified, is another attempt to cut costs and save money. If the Bill said that the authorised people were to be qualified lawyers, barristers or solicitors, or legal executives with three years’ experience or more, as in the amendments, we would be much more reassured about this part of the Bill.

[Ellie Reeves (Lewisham West and Penge) (Lab)]

Does my hon. Friend agree that even what might, on the face of it, be a straightforward case management conference could involve complex tactical or substantive issues? Giving such decisions to someone who is not legally qualified could have a massive impact on access to justice.

[Yasmin Qureshi]

My hon. Friend makes an excellent point. We know that more and more people are now representing themselves in court because of cuts to legal aid. If those making decisions—those may appear to be administrative but may be quite crucial to these people—are not legally qualified and trained, errors are more likely to occur, because we now have so many people representing themselves who are not familiar with court processes or the courts. That is on top of the fact that so many courts are now being closed, and a lot of the work is being done off-site by means of technological improvements. Many cases used to be disposed of in a physical court building, and there would be judges, lawyers and people who could assist and give advice and information. Now, with so much being done outside of court buildings and from call centres, there is even less help available.

I will give an example. When I was prosecuting, defending or in court, someone would sometimes turn up who had no legal representation. They would be really worried about what was going on. I and many of my colleagues would give informal advice; it was not legal advice, but we could point them in the right direction—we could suggest things they could try. There was somebody to give them advice or assistance; the court clerks or staff in the court were also able to direct people informally. However, with fewer and fewer people going to court, more and more things being done online, and more and more stuff being carried out in call centres, where someone does not know who they are speaking to or what qualifications or level of experience they have, it is even more important to ensure we have this safeguard.

It is okay to have laws, but if we have no mechanism to enforce them, or to ensure that they are done properly, justice is not served. Therefore, the complete lack of information in the Bill about who the authorised people will be, and even about what work they will do, is completely wrong. That is why we feel strongly about it, as we mentioned on Second Reading in the House of Commons, and in the other place. To date, the Government have taken no notice of that.

We also have to recognise that some of the authorised people will be employed directly by Her Majesty’s courts and tribunals, which raises questions about accountability and independence. They may be more subject to pressures because of administration. Again, therefore, we need something to show that the people who will do these things are qualified.

Qualified barristers, solicitors and lawyers, even when they work in the courts system, have an appropriate professional body with codes of conduct they have to abide by. If they do not abide by those codes of conduct, they could be struck off from their practice. However, if the people who carry out the work are not legally qualified, such as administrative staff or clerical officers, they will not have to think about their independent professional bodies. In fact, they will probably be more subject to pressures of administration to speed things up. If somebody asks for an adjournment, staff might say no; if somebody wants certain documents to be disclosed, they will say that that cannot be done, because they will be under pressure to speed things up and deal with cases quickly. They will not be as concerned as a barrister, a solicitor or a chartered executive about what their professional bodies will say.

We also do not know what kind of functions these people will be given. As my hon. Friend mentioned, something that seems straightforward could actually be quite complicated. I refer to disclosure issues in civil cases, as well as in the criminal courts. Disclosure is an important part of a case proceeding properly. Someone may well ask for certain information, and the person at the other end will say, “No, you don’t need it,” but we do not know. Because they do not have the legal expertise and knowledge, there is a greater chance of errors occurring and things happening that perhaps would not happen if a legally qualified person were exercising those powers.

The Government’s approach is that all these issues can be dealt with by the procedure rule committees, which are made up of judges and other practitioners. They are also under pressure and financial constraints, however, so they would also have to look at pressures and so on, and they might not be able to do things as independently as we might ask.

[Alex Chalk (Cheltenham) (Con)]

The hon. Lady is, of course, making important points, but we can have a degree of confidence that the judges who head up the committees, who have shown themselves to be scrupulously and fiercely independent, would continue to behave in exactly that way. Does she not agree?

[Yasmin Qureshi]

I have, of course, the utmost regard and respect for our judiciary, but I believe that, in the procedure committees, financial constraints and pressures sometime come into play in trying to speed things up through the courts system. The ethos is that a case should be dealt with very quickly—there is nothing wrong with that—and that there should be minimal interactions between lawyers in the court process. When the procedure committees make certain rules, such as defining who the authorised person is, what is wrong with Parliament saying that the starting point should be that those authorised persons must have been legally qualified for at least three years?

It is also important that we have an idea about what kind of things the authorised persons can do. Procedure committees can make rules, but they may be constrained by trying to get things through quickly. There may be things that they think that authorised persons can do, but, in fact, they should not, because they are not judicial. I do not see what is wrong with us, as Parliament, saying, “Look, this is the bare minimum that the procedure committees should be thinking about.” Then they can add to it.

[Alex Chalk]

I am grateful to the hon. Lady for giving way a second time. May I respectfully press her a little on this? On the one hand, she says that she has enormous respect for the procedure rule committees, the judges and the highly qualified people who occupy these positions, and that they would always act in a way that is consistent with justice. On the other hand, she says that, actually, they will not, because they will ensure that a desire to avoid delays trumps justice. She cannot have it both ways. If she trusts the judges, she needs to come out and say that she trusts them to act in the way that they have, in time-honoured tradition, which is by putting justice first.

[Yasmin Qureshi]

My observations relate to when judges are dealing with an individual case. Of course, we know that they are independent, but when someone becomes part of an administrative body, a procedure committee or an arm of the state—I mean that in a loose way, not in terms of a formal relationship—sometimes the criteria that they look at are different from when they are dealing with an individual case presented before them.

I will give an example, albeit not one that relates to judges. The Crown Prosecution Service, an organisation for which I worked for a number of years—I still have friends who work in it, even though I left years ago—has had different people serve as Director of Public Prosecutions. However, prosecutors who have been there for a long time say that, bar perhaps two DPPs who were really concerned about ensuring that the department was fully financially resourced, and who actually fought hard for it to get resources, the other DPPs did not make that sort of effort. People do act for administrative purposes.

The reality is that senior people at the top of organisations, when they are doing administration and are running institutions, look at things such as money and financial administration, try to save as much money as possible, and try to push things along as quickly as possible, because that looks good in their statistics. Because of that, we would say that what we are asking for is not too weighty. We have tabled very reasonable amendments. The people who will make some of these enormous decisions should be legally qualified and—we will come on to this later—we should consider what kind of things they can actually do. I do not think there is anything wrong with giving a steer to procedure committees. They can deal with some of the other rules, but we should have some basic minimum standards.

[Lucy Frazer]

I, too, propose to deal with amendments 3, 4 and 5 together, as they all relate to minimum qualifications for authorised staff. Amendments 3 and 4 require that any staff member who gives legal advice to lay justices or judges of the family court be legally qualified and have more than three years’ experience post qualification. Amendment 5 makes the same requirement of any staff carrying out judicial functions.

The staff who currently give legal advice in the magistrates court and the family courts are justices’ clerks and assistant clerks. Assistant clerks, who are also known as legal advisers, currently provide the overwhelming majority of legal advice on a day-to-day basis. To be an assistant clerk at the moment one must be a barrister in England and Wales or a solicitor of the senior courts of England and Wales, have passed the necessary exams for either of those professions, or have qualified as a legal adviser under historical rules that were in place prior to 1999.

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[Lucy Frazer]

My hon. Friend makes an extremely valuable point. Rule committees are made up of members of the judiciary and legal professionals, who take their roles incredibly seriously. Lord Thomas said on Second Reading in the other place that

“it is important to stress the degree of control inherent in the Bill by the use of the rule committee. I was a member of and chaired…the Criminal Procedure Rule Committee, which I can assure you is a highly representative body with many representatives of the legal profession.”—[Official Report, House of Lords, 20 June 2018; Vol. 791, c. 2039.]

It is important to note his experience of sitting on and chairing a rule committee. I actually sat on an insolvency rule committee when I was at the Bar, and I do not think anyone mentioned costs. We were concerned with ensuring that the procedures we used in court day in, day out worked well, and that they worked well for our clients, too.

A loss of expertise would render the provisions in clause 3 and the schedule unworkable. I should add that a member of staff will not be able to give legal advice or exercise judicial functions until they have been authorised to do so by the Lord Chief Justice or their nominee, or by the Senior President of Tribunals or their delegate. Authorisations are therefore ultimately the responsibility of the judiciary, who will not authorise staff unless satisfied of their competence.

The Government’s position is consistent with the approach taken over many decades and is supported by both current and former members of the senior judiciary. Lord Neuberger, former President of the Supreme Court, said that the amendments place

“a potential straitjacket on the ability to appoint the appropriate people to make appropriate decisions.”

He went further, reflecting that there

“will be many decisions”

for which the level of experience set out in the amendments

“would be appropriate, but there will be others where less experience would be adequate for the decision-making.”—[Official Report, House of Lords, 10 July 2018; Vol. 792, c. 882.]

I want to reassure hon. Members that we have listened to the concerns expressed here and in the other place about linking the qualifications of staff to the judicial functions that authorised staff may carry out. That is why we added further safeguards to the Bill in the other place by restricting the functions that staff will be able to exercise. In the light of that, Lord Marks of Henley-on-Thames said:

“we are not persuaded that it is necessary for the authorised person exercising the remaining powers—some of which are trivial, some minor and some of more substance—to be a qualified lawyer or one of particular experience.”—[Official Report, House of Lords, 16 October 2018; Vol. 793, c. 414.]

Before I close, I would like to respond to a number of the points made by the hon. Member for Bolton South East in putting forward her amendments. She has mentioned for the second time in her submissions cost-cutting. What we are doing in the Bill is trying to achieve a position whereby judges are deployed in the most effective way to bring justice to the people whom they serve. We are trying to ensure that jobs are appropriate for those who carry them out, and that they have the appropriate qualifications. The hon. Lady suggested that only barristers, solicitors and judges—that is, people who are legally qualified—understand justice. That is self-evidently wrong. A large part of our criminal justice system is the justice dispensed by magistrates, who are volunteers and are extremely able. As I have said, many people are already carrying out the functions, and carrying them out well, in courts and tribunals across the country.

The hon. Lady mentioned court closures. Of course, this is not a debate about court closures; it is a debate about who carries out functions in the courts that operate. She also suggested that call centres are having a detrimental impact on justice. Our call centres are actually improving justice, because, as can be seen from the take-up rate, people are speaking to someone who can answer their concerns much more speedily. The satisfaction of people ringing up is improved as the pick-up time is improved, because it is now dedicated people picking up the phone, rather than people in courts, who have a large number of things to do.

I hope that the hon. Lady feels able to withdraw the amendment, based on the explanations that I have put forward.

[Yasmin Qureshi]

I thank the Minister for her response, but our position remains the same, and we ask for a vote on the amendment.

Question put, That the amendment be made.

Division 2

Ayes: 8

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Labour: 8

Noes: 9

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Conservative: 9

[Yasmin Qureshi]

I beg to move amendment 6, in the schedule, page 11, line 32, leave out subsection 67C and insert—

“67C Right to judicial reconsideration of decision made by an authorised person

A party to any decision made by an authorised person in the execution of the person’s duty as an authorised person exercising a relevant judicial function, by virtue of section 67B(1), may apply in writing, within 14 days of the service of the order, to have the decision reconsidered by a judge of the relevant court within 14 days from the date of application.”

This amendment would grant people subject to a decision made under delegated powers to a statutory right to judicial reconsideration.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 7, in the schedule, page 19, line 21, at end insert—

“(7A) A party to any decision made by an authorised person in the execution of the person’s duty as an authorised person exercising functions of a tribunal, by virtue of this subsection, may apply in writing, within 14 days of the service of the order, to have the decision reconsidered by a judge of the relevant tribunal within 14 days from the date of the application.”

This amendment would require the Tribunal Procedure Rules to set out a procedure for applying for judicial reconsideration. It is consequential on Amendment 6.

Amendment 8, in the schedule, page 11, line 40, at end insert—

“(2A) In reaching its decision under sub-paragraph 2 above, the authority must consider whether the function is capable of having a material impact on the substantive rights of the parties.”

This amendment would require any Procedure Rules Committee making rules about the functions to which a reconsideration right would apply to consider whether the substantive rights of the parties will be materially affected.

Amendment 9, in the schedule, page 19, line 39, at end insert—

“(2A) In reaching its decision the Committee must consider whether the function is capable of having a material impact on the substantive rights of the parties.”

This amendment would require any Procedure Rules Committee making rules about the functions to which a reconsideration right would apply to consider whether the substantive rights of the parties will be materially affected.

[Yasmin Qureshi]

Amendments 6 and 7 have been tabled to ensure that there is a safeguard for claimants who do not accept a decision made by authorised persons. There should be a right to a statutory reconsideration, and the claimant should be able to apply in writing, within 14 days of the service of order, to have a particular decision reconsidered by a judge of the relevant court. They are strengthening provisions. As we do not know who authorised persons will be or what delegated functions will be given to them, we believe that if claimants disagree with important decisions, they should have a statutory right to reconsideration. The Bill makes no reference to that.

Amendments 8 and 9 relate to the issue of material impact. When a decision is being made on whether there a should be a reconsideration within 14 days, we ask that there be consideration of whether the function could have a material impact on the substantive rights of the parties. That means that we accept and acknowledge that one should not be able to ask for reconsideration simply because one disagrees with the decision of the authorised person; one must have a cogent reason. There must be proper grounds for requesting a reconsideration. We would define and decide what is an appropriate reason for asking for a reconsideration by assessing the limb of material impact on the substantive rights on the parties, which I think speaks for itself. That relates to decisions made by authorised persons that are material and important to the claimant, who should be able to ask for a reconsideration of that decision.

We suggest that the application in writing should be sent within 14 days of the decision, but it could be 21 days if the Government wished to change that. We think that 14 days is the minimum period that should be allowed for the reconsideration application to be made. The Government’s intention is to leave the procedure committee to decide fully what “material impact” means, whether there should even be reconsideration options for claimants, and by what processes that must be done.

We are effectively asking for safeguards for litigants. I will try not to repeat the same points, but it is important to remind the Committee of a point I made earlier, which was that a number of claimants are not legally represented because of cuts to legal aid, both civil and criminal. Many people now go to court without any legal advice, and are basically litigants in person or may have a McKenzie friend. To ensure that decisions are made properly, if there is a material impact on the substantive rights of parties, claimants should be able to ask for a reconsideration of the decision by a legally qualified judge of the court. People will have more confidence that the decision has been made properly, if it is made by a judge.

It should not be left to the procedure committee to decide, in theory, whether to allow reconsideration or to decide, off its own bat, what kind of decisions should be up for reconsideration. We ask that it determine and put into place rules on how reconsideration applications could be done.

Again, those three things are there to enhance the right of the ordinary person going into the court system and to ensure that our judicial system maintains the highest standards, as accepted throughout the whole world. For Parliament not to have democratic oversight of the matter, and not to indicate what the procedure committee should do, is a derogation of our duty to the people of this country. We are effectively looking after their interests. A judgment or decision by an authorised person should be subject to review by a judge. We accept that should not be done gratuitously, or in cases that do not warrant it, but if the decision has an impact on the rights of the person, that should be allowed. We ask the procedure committee to set out a procedure for applying for judicial reconsideration.

[Alex Chalk]

The hon. Lady makes a fair point; I will be interested to hear what the Minister says. How does she propose that an assessment be made about whether the decision truly had a material impact? A decision on whether to grant an adjournment or on whether to allow evidence to be admitted could in certain circumstances have a material impact, but in other circumstances might not. How would she ensure that the procedure to determine that was effective and efficient, and did not clog up the courts?

[Yasmin Qureshi]

We could include the criterion of the impact on someone’s rights. When we look at a case, we can work out whether an adjournment or a particular issue regarding disclosure would have an impact. The legislation should have that as a criterion in determining whether there should be judicial reconsideration. Obviously, we assume that the procedure committee would set out a procedure whereby, when a person writes to the court to ask that something be reconsidered, it goes to a judge, who works out whether this was something that impacted on the person and should therefore be subject to reconsideration. The legislation does not do any of those things.

Although we accept that some administrative functions carried out by judges can be delegated to the “authorised people” defined in the Bill, when a judicial legal function is given to other people, there should be a right to ask for reconsideration of the decision if a litigant is unhappy with it. To avoid anything flimsy, we have helpfully put in the impact aspect, so that reconsiderations are not a matter of course but are limited to appropriate cases. We would leave it to the procedure committee to make rules as to what the procedure would be.

The amendments are perfectly reasonable. The Minister mentioned that some Lords in the other place said that the provisions were okay, but if we look at the Hansard, Lord Marks of Henley-on-Thames, Lord Pannick and others said that they had concerns, not just about the issue of 14 days’ reconsideration, but also in relation to the authorised persons. The Government have put all these things about judicial functions, delegated persons and authorised people into one clause, but concern was expressed in the other place about the need to make the legislation better. Those are my words.

We have gone further than some of the noble Lords in the other place, but we tabled the amendments not for the fun of it, but because we genuinely and sincerely believe that they would ensure that processes were carried out properly, justice was done properly, and properly qualified people would deal with issues. If there are decisions that people are unhappy with, they should have the right to ask for reconsideration within 14 days, if that is appropriate—or 21 days; I would be happy with whatever additional days the Government wished to add.

[Lucy Frazer]

As the hon. Member for Bolton South East has said, amendments 6, 7, 8 and 9 deal with the right of reconsideration of decisions taken by authorised staff in courts and tribunals, and amendments 6 and 7 would enable a party in a case to request that any decision made by an authorised person exercising the functions of a court or tribunal be reconsidered by a judge. It might be appropriate for there to be reconsideration of decisions, but the Government believe that the independent procedure rule committees, composed of jurisdictional experts and experienced practitioners, are best placed to decide if such a right of reconsideration is needed and if so, the form it should take.

The approach taken in the proposed amendments would impose across all jurisdictions the same blanket right of reconsideration with an arbitrary deadline of 14 days. That would not work in practice, especially for those functions that are entirely straightforward case management and preparation duties. Each jurisdiction has its own ways of working, and it is imperative that any mechanism for reviewing decisions is designed with those jurisdictional intricacies in mind.

The rule committees in the civil and tribunals jurisdictions, for example, already have included in their respective rules a specific right to judicial reconsideration for decisions made by authorised persons. The magistrates courts and the family court, however, have their own existing mechanisms for reviewing various decisions, which the amendments would cut across.

Furthermore, the amendments are unworkable. In the magistrates courts, legal advisers issue some 2.5 million local authority summonses every year. If a right of reconsideration, as laid out in the amendments, were imposed on the court, a defendant could apply to the court against the issue of the summons. That would inevitably delay the first hearing and would mean that the matter would need to be referred to a magistrate who would reconsider the decision to issue the summons alongside a legal adviser, and the outcome of that decision would need to be notified to the parties before the case could start. That would build significant delay and cost into the process.

There are already three ways for a defendant to challenge a case in which a summons has been issued in the magistrates courts. They can make an initial argument to the court hearing the case that the summons should not have been issued, contest the substantive application made by the local authority, or apply for a judicial review of the decision to issue the summons. Creating a mandatory right to judicial reconsideration is therefore unnecessary.

I have some sympathy with the intention behind the hon. Lady’s amendments, which is to ensure that the Bill contains adequate safeguards. For that reason, the Government moved amendments on the right of reconsideration that were accepted on Report in the other place. Those require the committees, when making any rules, to allow authorised staff to exercise judicial functions and consider whether the rules should include a right to judicial reconsideration of decisions made by authorised staff exercising those functions. That means the rule committees will have to consider whether each judicial function should be subject to a right to reconsideration. Additionally, the amended Bill requires that if a rule committee decides against the creation of a right of reconsideration, it must inform the Lord Chancellor of its decision and the reasons for the decision.

The measures in the Bill should also be read alongside the existing statutory provisions, which require the committees to consult such persons as they consider appropriate before they make rules. If a rule committee then chose not to include a right of reconsideration in its rules, it would have to notify the Lord Chancellor. The Lord Chancellor could then ask the committee to reconsider its decision, or, if he agreed with it, he could lay the rules in Parliament. We expect that he would set out the committee’s rationale for not including a right of reconsideration in the explanatory memorandum to accompany the statutory instrument. The Bill as amended in the other place therefore ensures much greater transparency in the decision-making process.

--- Later in debate ---

[Lucy Frazer]

I think that is right. It will be the rule committee that will set out the procedure and requirement for any reconsideration. If it considers what my hon. Friend has mentioned as an appropriate way forward, it could make those determinations.

The noble and learned Lord Thomas, the former Lord Chief Justice said:

“I support what the Government seek to do and urge a substantial degree of caution in respect of the proposal put forward by the noble Baroness”—

that is, Baroness Chakrabarti. He added that the Government’s approach provides the right balance:

“It gives discretion to a body that knows and has a lot of experience, but it contains that degree of explanatory accountability that will make sure that it does not do anything—even if we were to worry that it might—that goes outside a proper and just delegation”.—[Official Report, House of Lords, 16 October 2018; Vol. 793, c. 425-426.]

Amendments 8 and 9 relate to the right of judicial reconsideration and the substantive rights of parties to cases in the courts and tribunals. As I mentioned earlier, the amendments we made to the Bill in the other place now mean that the rule committees will, when making any rules to allow authorised staff to exercise judicial functions, have to consider whether each of those functions should be subject to a right to reconsideration. They would require that, in doing so, the rule committees should also consider whether the function in question would be capable of having a material impact on the substantive rights of the parties.

The amendments appear to have been prompted by concerns about the compatibility of the provisions in clause 3 and the schedule with the rule of law, the independence of the judiciary and article 6 of the European Convention on Human Rights. In the circumstances, the Government believe the amendments are unnecessary. The independent procedure rule committees have for many years been making rules about practice and procedure which impact on court users. In carrying out this public function, they must ensure that the procedure rules are compatible with fundamental rights, including rights under the convention. I note that the overriding objective of the criminal procedure rules, for example, explicitly refers to these rights.

Other safeguards in the Bill will help to ensure compatibility with the right to a fair trial. Most importantly, the Bill provides that all court and tribunal staff who are authorised to exercise judicial functions will now be independent of the Lord Chancellor when doing so, and subject only to the direction of the Lord Chief Justice or their nominee or the Senior President of Tribunals or their delegate.

The Bill also provides, for the first time, protections from legal proceedings and costs in legal proceedings and indemnities for all authorised staff when carrying out judicial functions, which will further safeguard their independence. We have, of course, strengthened these safeguards by limiting the types of functions that authorised staff will be able to exercise, through the Government amendments we made to the Bill on Report in the other place.

I hope I have reassured the Committee and the hon. Member for Bolton South East that there is no issue of compatibility between the measures in the Bill and article 6 rights, the rule of law or the independence of the judiciary. The Bill strikes the right balance between ensuring appropriate safeguards and transparency of decision-making, and leaving the jurisdictional rule committees the discretion to determine the most appropriate mechanism for reviewing decisions by authorised persons. I urge the hon. Member for Bolton South East to withdraw her amendment.

[Yasmin Qureshi]

I thank the Minister for her response, but our position remains the same and I therefore wish to press the amendment to a vote.

Question put, That the amendment be made.

--- Later in debate ---

[The Chair]

Amendments 8, 7 and 9, which have just been debated, can be moved formally by the hon. Member for Bolton South East, or she can withdraw them in the light of the last vote.

[Yasmin Qureshi]

I would like to move amendments 8 and 7, but not 9.

Amendment proposed: 8, in the schedule, page 11, line 40, at end insert—

“(2A) In reaching its decision under sub-paragraph 2 above, the authority must consider whether the function is capable of having a material impact on the substantive rights of the parties.”—(Yasmin Qureshi.)

This amendment would require any Procedure Rules Committee making rules about the functions to which a reconsideration right would apply to consider whether the substantive rights of the parties will be materially affected.

Question put, That the amendment be made.

--- Later in debate ---

[Lucy Frazer]

Clause 4 is technical in nature but it is important to give proper effect to the measures the Committee has considered. Subsection (1) confirms the short title of the Bill. Subsections (2) and (5) set out the commencement provisions, which will enable speedy and orderly implementation of the measures in it: clause 4 will come into force on the day on which the Bill is passed; clauses 1 and 2 will come into force two months after Royal Assent; and clause 3 and the schedule will come into force on a day to be appointed by the Secretary of State in regulations.

Subsection (4) allows the commencement regulations to make transitional, transitory or savings provision and to appoint different days for different purposes or areas, which will ensure that the rule committees are able to implement the proposals as they best see fit. Subsections (6) and (7) set out the territorial extent. Subject to certain exceptions, the provisions of the Bill extend and apply to England and Wales only. Where the provisions extend beyond England and Wales, this is in relation to tribunals, for which responsibility is currently reserved to Westminster. This is not the moment for debate about devolution matters, but I stress that we have undertaken extensive consultation with the devolved Administrations in preparing the Bill, and they agree with our analysis.

Subsection (8) is the privilege amendment inserted by the House of Lords, with which I have already dealt.

Clause 4, as amended, ordered to stand part of the Bill.

New Clause 1

Review of the delegation of legal advice and judicial functions to authorised staff

“(1) Within the period of three years from the coming into force of this Act, the Lord Chancellor must arrange for a review to be undertaken on the impact of the implementation of the provisions contained within section 3 and the Schedule to this Act.

(2) A report setting out the findings of the review must be laid before both Houses of Parliament.”—(Yasmin Qureshi.)

This amendment would require the impact of the delegation of judicial functions to be reviewed within three years of it coming into force.

Brought up, and read the First time.

[Yasmin Qureshi]

I beg to move, That the clause be read a Second time.

The new clause asks for a review of the impact of the legislation to be carried out within three years of the start of the Act, and that this be laid before both House of Parliament. The reason for that is, as mentioned earlier and in all debates in respect of the Bill, the Opposition have serious concerns about how the Bill will work out and about its impact on our justice system—in particular on litigants who go into court not legally represented, as often happens.

With the Act, there will be a more rapid use and deployment of judges from one sector to another, and we would like the Government to consider how that is working and its impact on our traditional court system. We believe that the functions the authorised people will be given and the issue of reconsideration will have a clear impact on what happens in both our criminal and civil courts.

--- Later in debate ---

[Lucy Frazer]

As the hon. Lady mentioned, the new clause is about reviewing the impact of the authorised staff provisions within three years of the Bill coming into force.

Reviewing laws is always important. We in the Ministry of Justice do not shy away from that. The question is what the appropriate form of that review is. As the impact assessment for these measures says, we have committed to working with the rules committees and the senior judiciary to monitor the impact of any future assignment of judicial functions and responsibilities to authorised staff. This is particularly important where the Bill enables provisions to be extended to a new jurisdiction; for example, the power of authorised staff to carry out judicial functions will be new to the Crown court. We therefore expect the criminal procedure rule committee to conduct a review of the provisions as it feels appropriate, and to draw on its impartiality and expertise in doing so.

In other jurisdictions, the exercise of judicial functions by staff is already kept under review by the relevant rule committees, by the senior judiciary and by Her Majesty’s Courts and Tribunals Service, where appropriate. For example, the civil procedure rule committee has undertaken a review of a pilot scheme in which a range of functions were delegated to legal advisers in the County Court Money Claims Centre. As a result of that, the committee decided to modify and extend powers. It has also agreed to a further pilot to allow legal advisers in the county court to make unopposed final charging orders. This will run to April 2020 and, again, will be reviewed before a decision is taken to extend it.

Those reviews and this approach to implementation are illustrative of how we expect these measures to be rolled out in the future: incrementally, with the necessary monitoring, and subject to review and evaluation before any further steps are taken. The rule committees are independent of the Government and their membership includes judges, legal professionals and representatives of voluntary organisations. They are best placed not only to make the rules for authorised staff exercising judicial functions, but to conduct the reviews of these measures in the future. I hope that I have provided the hon. Member for Bolton South East with the assurances that she seeks, and that she will withdraw the new clause.

[Yasmin Qureshi]

I thank the Minister for her response, but the Opposition will not withdraw our new clause. I ask that the Question be put.

Question put, That the clause be read a Second time.

Courts and Tribunals (Judiciary and Functions of Staff) Bill [Lords]

Yasmin Qureshi Excerpts

2nd reading: House of Commons
Tuesday 27th November 2018 Commons Chamber

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

Before I open my speech, I wish to tell the House that today is Lancashire Day. On 27 November 1295, Lancashire sent its first Member of Parliament to attend King Edward I’s model Parliament. The day is well marked and celebrated in Lancashire.

We have been waiting for the arrival of court reform legislation ever since the Government promised in the Queen’s Speech last June a Bill to modernise the court system. One can imagine that expectations were high, but instead we were left disappointed when this wafer-thin Bill, which is both narrowly constrained and obscurely drafted, was finally published. Indeed, most of its provisions were included in the Prisons and Courts Bill that was shelved more than a year ago. That Bill devoted 38 clauses and 13 schedules to the courts and judges, whereas this Bill has just three such clauses followed by a single schedule. As Lord Judge once said of another Government move, it is

“a little too late and…quite a lot too little”.

[Robert Neill]

I intervene only in fairness to the distinguished legal journalist Mr Joshua Rozenberg, for that was his phrase that the noble Lord Judge was quoting.

--- Later in debate ---

[Yasmin Qureshi]

I thank the hon. Gentleman for that helpful intervention.

Rather conveniently, the Government have left out measures that would provide a legislative framework for the increased use of online technology in the courts—their justification for closing so many courts and axing so many court staff. Indeed, we know that Her Majesty’s Courts and Tribunals Service is working at pace on the introduction of online justice services: the civil money claims service was made available to the public in April 2018 and the online divorce application procedure was rolled out nationally in May this year.

Although we would, of course, not seek to refute the fact that modern technology has undoubted benefits, we do have to ensure that it is used carefully and without generating more confusion or distress around the process. It should be about investing to improve our services; it should not be a smokescreen for cuts and closures. As such, it is only right that the effects of digitisation should be researched intensely and costed to ensure the best possible outcome. The Government have not yet confirmed that that has happened and still seem intent on this path, without considering potential concerns.

We are by no means against modernisation. We all want justice to be done in the most cost-effective manner and we all believe that the court system must meet the demands of the 21st century, but there is real concern that the Government are trying to bypass necessary legislative scrutiny in this policy area. We must see a thoroughly researched digitisation programme included in primary legislation, to ensure that written and online processes are undertaken appropriately.

The Bill is a missed opportunity. It should have included clear principles to guide the future of online court procedures and a modernisation programme that could have been fully debated in the House today. Instead, we are told that more legislation will eventually follow to encompass all that. This fragmentary approach—or what has been described by one legal commentator as a “legislative drip-feed”—is deeply unsatisfactory. In May 2018, the National Audit Office published a report that concluded that delays in the introduction of primary legislation have created a significant degree of uncertainty, and that Her Majesty’s Courts and Tribunals Service “faces a daunting challenge” in delivering the technological and cultural change needed to modernise our courts and tribunals.

Since 2010, the Government have closed literally hundreds of courts and cut thousands of vital staff. Our research suggests that 80% of the courts sold so far have on average raised little more than the average UK house price. That causes concerns about long-term damage to access to justice for civil litigants and, indeed, victims of crime. It will also have an obvious and long-lasting effect on the principle of local justice. The cuts have led to an increase in the number of people forced to represent themselves, a problem further compounded by cuts to legal aid. When unrepresented members of the public turn up to seek justice as litigants in person, it increases costs and delays for everyone. As we have said in the past, it is the most vulnerable who will bear the heaviest costs—young mothers who are unable to find childcare, the elderly who find long journeys difficult, or the disabled. The court closures will prohibitively reduce access.

Will the Government pause their programme of court closures while new technologies and online courts are being tested and wait to see the full findings of their pilots to assess the impact of the changes to our courts system? Will the Lord Chancellor commit today to restarting the programme of court reforms only once the House has finally had an opportunity to fully scrutinise the plans in primary legislation? We have concerns about the Bill as it stands and will not be supporting it today, but we will table amendments in Committee.

As we heard from the Minister, clause 3 delegates judicial functions to authorised staff. This provision must be understood through the lens of a wider austerity agenda that seeks to make significant cuts. These cuts are being made through a process of court closures and through savings on judicial salaries. Other proposals include the relocation of many case-management functions, which, as we know, currently take place in court buildings, with the benefit of on-site judicial supervision.

Our concern is that decisions would move to new off-site service centres. There is an implication that, given that off-site nature, those service centres would be supervised by authorised staff, not judges. That is deeply problematic for us, not least because we would have scenarios in which authorised staff who were not subject to the training, experience, ethos and oaths that a member of the judiciary is, would be performing direct judicial functions while being employed directly by Her Majesty’s Courts and Tribunals Service.

The issue raises obvious questions about accountability and independence. It is also worth noting concerns that the people involved may be subject to administrative pressures that require the meeting of targets. Given the ideological cuts agenda driving this reform, it is vital that the Bill makes provision for safeguards to protect the standard of decision making by authorised staff, to ensure that the quality of the judicial process and the experience of those who use the court are maintained.

Although we accept that there is some scope for freeing up judges by allowing the most straightforward decisions to be delegated to authorised staff, the intended future limits to any such delegation do not appear to be in the Bill. Instead, they are supposed to be decided by the procedure rule committee. That means that if the Bill passes in its current form, there may be limited external scrutiny of how widely judicial functions are being carried out by people who are not in fact judges, but who work for Her Majesty’s Courts and Tribunals Service.

I wonder whether the Lord Chancellor is aware of the serious implications for the rule of law and the independence of our judicial decision making. In his opening speech, he touched on the fact that our judicial legal system is considered to be one of the best in the world and is used by many countries, many companies, and many litigants; it makes up about £28 billion-worth of trade. Will that be affected by this downgrading of our judiciary? We believe that such a shift would not meet the expectations held by members of the public about the level of experience and the independence of those making judicial decisions about their rights. Unless limits are placed on those who can be authorised and on what powers can be given to those authorised persons, the Bill could change the very nature of our justice system.

[Mr Gauke]

The hon. Lady is right to raise the importance of our judiciary, but I hope that we can reach a consensus on that. Does she not recognise that the Bill has the support of the judiciary? Senior retired judges have spoken in support of it in the other place, and it has been welcomed by the senior judiciary.

[Yasmin Qureshi]

I accept that the senior judiciary, some of whom are in the House of Lords, have said that the Bill is a good thing. However, practising lawyers, barristers, solicitors, the Bar Council and the Law Society have said that it is not right, and that the amendments that we will propose should be considered.

There is disagreement in the judicial community about the Bill. [Interruption.] I will just wait until the Lord Chancellor has dealt with his question. The Lord Chancellor and the practitioners here must be aware that, when judges are involved in delegated functions or non-court sitting judgments, they are making judgments on difficult issues and complex matters of law—for example, a case management hearing, or even something such as asking for an adjournment. We do not know, but, at the moment, the Bill suggests that such work could be done by delegated staff.

When someone asks for an adjournment, all kinds of complications could be involved; there could be issues relating to failure of disclosure and so on. According to the Bill as it stands, many issues would be given to a delegated person. That is one reason why we are asking for clarification about who those people will be, what powers they will be given, and, more specifically, what training they will be given. Although some senior members of the judiciary in the other place have said that the Bill is a positive development, the practitioners on the ground, at the moment, do not agree.

[Robert Neill]

I understand what the hon. Lady is saying, and I am not unsympathetic to her point, but, in fairness to the senior judiciary, is it not worth pointing out what was said by the two noble lords who spoke on this matter? Lord Neuberger of Abbotsbury, the recently retired President of the Supreme Court, counselled that it would be unsatisfactory to reduce the flexibility of these proposals, pointing out that there will be many decisions where requisite experience is required, but others where less experience is necessary. Lord Thomas of Cwmgiedd, the previous Lord Chief Justice, pointed out that the procedure rule committee had practitioners on it who acted independently. He said:

“Experience has shown that detailed restrictions on procedures are a very real fetter on the administration of justice.”—[Official Report, House of Lords, 20 June 2018; Vol. 791, c. 2039.]

Those are very serious counsels by two very distinguished recently retired judges.

[Yasmin Qureshi]

I have respect for the senior judiciary, of course, but Parliament should have control over what is being delegated. Taking away judges’ positions and powers is a matter that should be debated in this House. We do not think that it is a matter for the procedure rule committee. We would have a much better idea about what it should be looking at. I think that we will disagree on this issue.

[Jess Phillips (Birmingham, Yardley) (Lab)]

Does my hon. Friend share my concern about always listening to eminent legal practitioners in the Lords? I am certain that, quite recently, they have made some mistakes.

--- Later in debate ---

[Yasmin Qureshi]

I thank my hon. Friend for her intervention. Those things do occur.

Let me go back to my earlier point. We believe that limits should be placed on those who can be authorised and on what powers can be given to those authorised persons. The Bill will change the very nature of our judicial system. We want a system that requires transparent and public scrutiny of the scope of future delegated powers by those in this House. That is important and I am surprised that hon. Members who are democratically elected wish to take away that element from the Bill.

We on the Labour Benches are seeking to push for a number of safeguards, the first of which places limits on the delegation of these judicial powers to non-judicial personnel. We intend to press for further oversight and accountability and will be laying down amendments to that effect. It should also be noted that the procedure rule committee has, for many years, undertaken some excellent work, but the delegation of judicial functions cannot be thought of as a simple procedural matter for a rule committee—rather, this is something worthy of secondary legislation in this House.

The reforms that the Government are seeking to introduce through the Bill are designed primarily to cut costs, but, as the Bill stands, there is a risk that the procedure rule committee will be placed in the difficult position of balancing pressures to save costs against maintaining fundamental rights. Amending the Bill so that the procedure rule committee must at least consider the impact on rights would provide important protections both for the rights of the citizen and for the integrity of the committee. We ask the Government to consider that any decision made by someone who has been delegated judicial functions should be open to a full reconsideration or review by a judge. That would guarantee that purely procedural matters could be dealt with more efficiently; if any decisions were deemed contentious, however, they could be reviewed by an experienced and appropriately qualified judge.

We also note that the Government’s late amendment in the other place obliged the procedure rule committee to consider making rules to determine which of the functions performed by authorised staff could be subject to a party’s right of reconsideration by a judge. However, that does not satisfy our concerns. Indeed, it is simply replicating the fundamental problem of the Bill. By placing the obligation on the rule committee, it delegates a legislative duty to the same unaccountable body. Consequently, we will be pushing ahead with our amendment, supported by the Law Society and the Bar Council, that proposes a statutory right to judicial reconsideration for any party to a decision by an authorised person. We will also seek to ensure that, in drawing up the rules on reconsideration, the rule committee must consider which functions and decisions will be clearly capable of having a material impact on the substantive rights of the parties. I reiterate that we respectfully disagree with the noble and learned Lords in the other place.

In the Ministry of Justice’s explanatory notes on delegation to staff, it is stated that decisions are unlikely to involve contested matters, yet this is not in the Bill. I remind the Lord Chancellor that case management decisions are essential judicial functions that should not necessarily be delegated. We need to ensure that the decisions that impact on the fairness of the process remain within the remit of the judges.

We also have concerns about the lack of minimum qualification for the authorised staff, particularly where staff are not legally qualified or sufficiently experienced to undertake such functions effectively. The Law Society has suggested that the requirements for qualification, training and experience should be set at three years’ post-qualification, as a solicitor, barrister or chartered legal executive for all types of functions, and that that approach should be consistent across all courts and tribunals. I know that the Lord Chancellor has disagreed with this, but I ask him again to agree with the Law Society’s recommendation that a minimum requirement of three years’ post-qualification as a solicitor, barrister or chartered legal executive is appropriate for court staff who are to be delegated judicial functions. Will he also provide assurances that provisions in the Bill that allow the delegation of judicial functions will only be considered where staff have appropriate legal qualifications?

A further omission from the Bill—this point has been made by Women’s Aid—is the provision prohibiting the cross-examination of victims of domestic violence that we all looked forward to in last year’s aborted Bill. The stark evidence from groups such as Women’s Aid is that this gap in the law is being used as a further means of control and abuse. We are concerned that such provisions are not now in the Bill. Will the Lord Chancellor tell us when the Government will bring this particular provision to Parliament so that we can deal with it and have a law in our statute book to bar people from cross-examining victims of domestic violence?

[Jess Phillips]

Those of us who have campaigned were expecting to see in the Bill some of the things that have been promised, such as the banning of cross-examination. Senior members of the judiciary have themselves called for that measure, but find that current legislation ties their hands. Given that it is not in this Bill, I am certain that Ministers will tell us that it will be in the domestic abuse Bill that will be brought forward. Why will women have to suffer this experience between now and whenever that legislation comes forward? Why is the provision not in this Bill?

[Yasmin Qureshi]

I thank my hon. Friend for her work on raising these issues. She is absolutely right. Why is the provision not in this Bill? It was in last year’s Bill, which was aborted because of the general election. It should not be that difficult to put it into a legislative framework.

Let me give an example of something that happened a few months ago in the family courts. Two spouses had an issue about the custody of their child. The female plaintiff had made allegations of domestic violence and sexual abuse against her husband, and it was obvious that the male respondent wanted to cross-examine her. However, the judge had to step in to ask the question on behalf of the male respondent. The case then went to the High Court, where the judge said that it was really not appropriate for members of the judiciary to have to intervene in such cases. The provision should already be on the statute book. We have talked about it for so long and it is not that difficult; it should be on the statute book as soon as possible.

To truly understand the impact of the Bill, we must look at it in the context of the Government’s wider austerity agenda. As it stands, the Bill has the potential to have a profound impact on our justice system. The double delegation of powers that the Government are intent on introducing is a slippery slope that, without proper controls, puts rights at risk. Without further careful scrutiny and additional safeguards, the Bill has the potential to erode long-established legal rights.

The amendments that Labour tabled in the other House were reasonable, sensible and practical, and we really cannot see why the Government cannot adopt and accept them. The Bill has limitations. The Government should listen to us and others who want to improve it, and accept our amendments, which have the support of the Law Society and the Bar Council, so that we protect our judicial system.

Leaving the EU: Legal Services

Yasmin Qureshi Excerpts

Wednesday 21st November 2018 Westminster Hall

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

It is a pleasure to serve under your chairmanship, Sir Christopher. I congratulate the hon. Member for Huntingdon (Mr Djanogly) on securing the debate, and thank him for his comprehensive speech, which dealt with the issues and challenges we will face once the Brexit negotiations have been carried out. I commend him on the work that he has done as chair of the all-party parliamentary group on legal and constitutional affairs in the inquiry on the effects of Brexit on legal services.

This has been a thoughtful and considered debate. In particular, I thank the hon. Member for Henley (John Howell), who does a superb job as the chair of the all-party parliamentary group on alternative dispute resolution. He discussed the need for arbitration and how it, too, is important to UK legal services. I hope we have further debates, for example on family law protection or the European arrest warrant post-Brexit. Serious concerns have been expressed in all parts of the Chamber.

As we have heard, Brexit will be the largest ever change to the UK’s legal framework, which presents many concerns and risks for the legal sector. Regardless of the outcome of the negotiations, we need to ensure that citizens and businesses in the UK continue to have certainty about access to justice in civil, commercial, consumer and family law matters. That requires clarity on the responsibilities of the courts in the United Kingdom and in the European Union, and certainty that judgments can be enforced with a minimum of delay and cost.

The UK legal services market, as the hon. Member for Huntingdon said, is worth anything between £25 billion and £30 billion in total, employs 370,000 people and in 2015 generated an estimated £3.3 billion of net export revenue. Central to that market is the ability of barristers, solicitors and other legal professionals to provide legal services in the European Union. Equally importantly, our exporters’ confidence in doing business abroad depends greatly on the ability of their lawyers to establish and provide services in the countries in which they seek to trade and invest. Numerous aspects of the work of barristers and solicitors will no longer be possible when we leave the European Union, unless existing cross-border rights are preserved.

The Government must therefore have regard to the nature of the legal work that comes to the UK as a result of the UK legal profession’s expertise, not least in European Union law. Will the Minister tell us what measures the Government are taking to maintain cross-border legal practice rights and opportunities for the UK legal sector, given efforts by European Union law firms to use Brexit to win clients from UK competitors?

The draft withdrawal agreement, like the White Paper before it, continues to emphasise regulatory flexibility in the context of services, which would not assist the legal sector. Legal services do not need further regulatory flexibility: the regime in the European Union is already considered to be among the most liberal in the world, and provides lawyers with the freedom to advise and represent their clients anywhere in the EU and in any dispute resolution forum.

The Government have also made mention of adopting the approach of a free trade agreement to services. That is disappointing. Will the Minister explain how a binding EU-wide regulatory framework for legal services could be agreed in the context of a free trade agreement? Is there a danger that the legal profession in the UK would be left to negotiate different bilateral agreements covering the provision of legal services with many of the EU member states? Will that leave a patchwork of rights and obligations, varying from country to country?

I am also concerned that lawyers from England and Wales might lose their right to advise on European law when in the EU. UK businesses, which will still need to operate under EU law, will be unable to have their trusted UK legal professionals by their side and will instead be forced to hire EU lawyers with whom they are not familiar, and vice versa—despite language and other barriers—to protect and defend their rights within the European Union. Indeed, lawyers from England and Wales will even lose the right to defend the UK Government, as well as UK businesses and UK citizens, before the Court of Justice of the European Union, despite a former president of the Court recognising the UK profession for providing some of the best advocates. That would be a huge loss to both the UK and the European Union. Will the Minister in her response confirm that the Government will ensure that any future relationship with the European Union includes a mechanism for UK lawyers to practise EU law via the mutual recognition of professional qualifications and law firm structures?

The deal lacks the detail that the professional services sector needs to know in other respects, in particular with regards to temporary mobility for business travel. Do the Minister and the Government appreciate that that is essential for the quick delivery of legal services? For example, a lawyer might need to see a client at short notice in one of the EU members states, or to represent that client in an arbitration or mediation meeting. Will she ensure that, post-Brexit, UK lawyers are able to continue to serve their clients on a fly-in, fly-out basis? Does the Minister recognise that the UK risks not only the loss of the tax revenue from legal services, but an erosion of the enormous influence and soft power generated by our legal services sector in Europe and internationally?

Finally, I remind the Minister that the UK is the largest market for legal services in Europe, and globally is second only to the US. The Government must do all that they can to protect Britain’s legal services sector after Brexit if the country is to remain the world’s jurisdiction of choice. Equally, it is vital to ensure that international parties understand the ongoing benefits of using English law and legal services once the United Kingdom has left the European Union. An efficient and cost-effective resolution of disputes is critical to that goal and to the ongoing development of English law. After all, that is at the core of the international attractiveness of the United Kingdom.

I hope the Minister and the Ministry of Justice will consider properly some of the representations made by the Law Society and the Bar Council. We all want the best for legal services, and I hope the Minister will respond on such an urgent issue and perhaps tell us what concrete steps the Department and the Government have taken to deal with it, and with the concerns. I am sure the concerns are not new and that the Government are not unaware of them, so I look forward to hearing from her.