Judicial Review and Courts Bill

Alex Cunningham Excerpts

Report stage
Tuesday 25th January 2022 Commons Chamber

[Alex Cunningham (Stockton North) (Lab)]

Let me first thank the Minister and other colleagues on the Bill Committee for their kind comments on the last day. Sadly, I was unable to join them because I had tested positive for covid Double vaccinations protected me well, and I got off lightly. I am also grateful to the Minister for his helpful engagement with many of our concerns in Committee.

The Opposition understand the need to modernise our court and tribunal proceedings, and we appreciate the potential of online and digital procedures to increase the efficiency of our courts for those who use them and work in them. However, we also recognise that alongside any innovative changes, appropriate safeguards must be introduced to ensure that access to justice and engagement in our justice system are not inadvertently hampered for anyone. I am concerned that the criminal procedure and online rules procedure sections of the Bill as drafted do not sufficiently safeguard access to justice, particularly for young people and children and people with vulnerabilities.

On Second Reading, the Lord Chancellor said:

“Physical hearings will always be available for those who need and want to use them, so that those who are uncomfortable or cannot access the digital and online applications will not be prejudiced.”—[Official Report, 26 October 2021; Vol. 702, c. 195.]

While I welcome that commitment from the Lord Chancellor, I do wonder why the Government would not go so far as putting such safeguards in the primary legislation, instead choosing to vote down every Labour amendment that tried to secure the rights of young and vulnerable individuals to engage with the justice system in the way most suitable for them. Today we are giving the Government a second chance, and I hope that the Minister uses it well and supports the amendments we have tabled.

Before I come on to the Opposition amendments, I will address new clause 1 and its consequential amendments, as we were not able to scrutinise these proposals in Committee. At this stage, I join the Minister in praising the work of our magistrates up and down the country. They do a grand job, often in very difficult circumstances. However, I do not understand why we did not have the opportunity of full legislative scrutiny of these proposals in Committee, rather than their being tabled at this late stage. Indeed, in response to an intervention from the hon. Member for Warrington South (Andy Carter) on Second Reading, the Lord Chancellor confirmed that the proposals were already being considered at that time.

Ministers have explained that new clause 1 is intended to provide additional capacity to help decrease the burgeoning backlog of cases in the Crown court. In the Ministry of Justice’s own statistics, released just last week, it has been revealed that delays in the criminal justice system have hit a record high. It takes an average of 708 days from the commission of an offence to the completion of a criminal case in the Crown court, so we need action. The Opposition want to see dramatic decreases in these numbers, and will support the Government in measures that will genuinely contribute to a reduction in the backlog. However, I seriously doubt that increasing sentencing powers of magistrates will have the measurable impact that all those involved in the criminal justice system are crying out for.

According to the Government, the measures could

“save 1,700 sitting days in the Crown Courts by enabling 500 jury trials to be switched to magistrates”.

It appears, however, that that estimate presumes that defendants will not exercise their right to opt for a jury trial. Will the Minister tell the House on what basis the Government have made this presumption? It strikes me that one of the primary reasons for not electing for a trial in the Crown court is in fact the lesser sentencing powers of magistrates, but as this cap is increased, I imagine that a trial by jury may seem a more appropriate option for more defendants and so they will still end up in the Crown court. Even if all defendants did choose not to exercise their right, the Government’s plan would represent a tiny saving overall.

I see that Jo Sidhu QC, chairman of the Criminal Bar Association, has also suggested that the increase in magistrates’ sentencing powers will not have the effect that the Lord Chancellor hopes, as it will lead to more cases being appealed in the Crown court, thereby potentially increasing rather than reducing the workload.

[James Daly]

That assessment is completely at odds with my 16 years of working in this field. When a case is committed to the Crown court, it is on the basis of the maximum sentence that could be imposed in the circumstances. The increase in sentencing powers will bring many more cases—burglary, affray, first-time offenders—back into the magistrates courts and avoid the ridiculous situation whereby straightforward cases that can be dealt with in a magistrates court are committed to the Crown court for no reason.

[Alex Cunningham]

I am not saying that we oppose the proposal—Labour legislation first put it on the statute book—but people in the magistrates courts will get higher sentences and may well feel the necessity to appeal, so we will potentially have more appeals.

[Andy Carter (Warrington South) (Con)]

Following on from my hon. Friend the Member for Bury North (James Daly), one of the main reasons for cases going to the Crown court is that magistrates refuse jurisdiction and send them there. There is no certainty that higher sentences will be given to individuals who are found guilty. They may well get exactly the same sentence in a magistrates court as they would get in a Crown court. The hon. Member for Stockton North (Alex Cunningham) is confusing the issue. The fact that magistrates can now keep a case in their court without having to refer up to a higher court will reduce the backlog in Crown courts.

[Alex Cunningham]

We believe the potential is there, but we want to understand the statistics on which the Government have based the proposal. However, I will move on now.

Have the Government taken into account the potential increase in appeals? I imagine that could quickly offset the 1.6% saving in sitting days. The increase in sentencing powers is interesting in the context of existing provisions in the Bill, particularly in relation to the new allocation procedure.

As Justice points out, there is a risk that more serious cases

“could proceed without defendants being physically present for a hearing, and as such without the defendant’s informed input as to whether the case should be heard in the Magistrates’ or Crown Court.”

It is also important to consider the proposal in the light of clause 9, which will allow hearings to take place in the absence of the defendant in many circumstances. Can the Minister share any assessment that the Department has made of the potential impact on appeals to the Crown court of introducing the increase in sentencing powers at the same time as the new allocation procedure and clause 9?

As the Minister outlined, new clause 1 will enable the Government to switch off and back on the maximum custodial term that a magistrates court may impose for an either-way offence—in other words, he is taking the power to reverse these new sentences when it suits the Lord Chancellor. I am interested to hear in what circumstances the Minister would want to reduce magistrates’ sentencing powers in future. Will that be triggered by the backlog reaching a certain level, or does he think there is a high risk that there will be unintended consequences, such as those that the CBA, Justice and I have described?

The whole approach suggests that the Government are not too confident that the proposal will be the success that they hope. Until Ministers address the shortages in judges, criminal practitioners and appropriate court space, victims and defendants will continue to suffer excessive waits until their cases are concluded.

I will now move on to the Opposition’s amendments and new clauses, which, as I explained earlier, aim to introduce a number of safeguards into the Bill to ensure that access to justice is not hampered in the drive towards efficiency that online and remote processes can offer.

Clause 3 creates an automatic online conviction and standard statutory penalty procedure, which will provide automatic online convictions as an alternative to the single justice procedure. Through this process, a defendant could opt to plead guilty online, which would result in an automatic conviction without the need for a hearing.

The process rightly already has some limitations. For example, the defendant must consent to use of the process, so they retain the right to opt for an in-person hearing instead. Furthermore, the procedure is only available in respect of non-imprisonable summary offences where the accused was aged 18 or over when charged. The Opposition agree with those limitations, but we think they need to go further. Amendment 20 would require that all accused persons considered for automatic online convictions, as introduced by clause 3, are subject to a health assessment, and that only those who do not have any vulnerabilities or disabilities are given the option of being convicted online.

The Equality and Human Rights Commission has recognised that remote justice is unsuitable for disabled people, such as those with learning difficulties, cognitive impairments or mental health conditions. The commission identified that remote proceedings reduced chances to identify a court user’s additional needs and make the appropriate adjustments. I know the Minister will share my anxiety that further roll-out of remote processes without the right safeguards may compound those inequalities even further. A recent criminal justice joint inspectorates report emphasised the need for default screening of all criminal suspects and defendants for disability, including neuro-disability. That proposal was supported by the former Lord Chancellor, who promised action on this issue. I sincerely hope his successors will uphold his promise by supporting this amendment.

I am aware that it is the Government’s intention for online pleas to be entered via the common platform, which potentially provides at least one instance where a court user’s needs can be identified so that adjustments can be made. However, the ongoing chaos with the common platform demonstrates why that would not be a sufficient safeguard in this regard. The pilot and early adopter sites have established that in its present form, at least, the common platform is not fit for purpose. The experience of the pilot courts has been widely reported to the Public and Commercial Services Union as disastrous. Their members have been working late into the evenings in an attempt to record case outcomes, with work often disappearing into thin air. Case outcomes that took a matter of seconds to record in a paper file are now taking in excess of an hour to record, provided the system is even working. Although Her Majesty’s Courts and Tribunals Service has taken steps to address slowness and instability since the intervention of the senior presiding judge in pausing the roll-out last year, PCS does not accept that those steps have addressed the fundamental design flaws. Results still routinely disappear from the court record.

I am told that confidence in the common platform at the Crown Prosecution Service—the common platform was initially a joint CPS and HMCTS venture—is so low that the CPS has retained its case management system and is using that in preference to the platform. Given the low level of confidence in the system among the professionals who use it, I am sure the Minister can recognise why I do not believe it should be relied on as a safeguard as more remote justice procedures are introduced and rolled out. Instead, he should listen carefully to the EHRC’s findings and introduce meaningful screening measures.

I turn to amendment 21, which would introduce a further safeguard to the automatic online conviction and standard statutory penalty procedure by excluding recordable offences from its purview. When I raised my concerns in Committee about the application of the AOCSSP to recordable offences, the Minister confirmed:

“There is currently no intention to extend the procedure to any recordable offences.”––[Official Report, Judicial Review and Courts Public Bill Committee, 9 November 2021; c. 228.]

The Opposition welcome the Minister’s words, but we would prefer to see that confirmed in primary legislation. The Bill already limits the use of the procedure to summary and non-imprisonable offences, but the consequences of a recordable conviction, even for such an offence, can still be serious. Many people will not understand the impact that a conviction can have on their lives. For example, it can have a detrimental impact on employment prospects in certain sectors.

In its current format, it seems as though the AOCSSP will incentivise people to plead guilty out of convenience, regardless of whether they have an arguable case. I am sure the Minister will agree that it is vital that no one is adversely impacted by pleading guilty without recognising the full impact. If the Government agree with that point, I hope the Minister will confirm that support by limiting the procedure in primary legislation to non-recordable offences.

I now consider amendment 22, which would remove children from the provisions of clause 9. Again, in Committee the Minister provided me with additional briefing on this point, for which we were very grateful. It was not, however, enough to quell my concerns about the fact that courts will be able to proceed if a child defendant is absent from a plea and allocation hearing. In Committee, the Minister confirmed that he recognises that

“in the majority of cases, the courts may not deem it appropriate to proceed”––[Official Report, Judicial Review and Courts Public Bill Committee, 16 November 2021; c. 271.]

in the absence of the child. Given that, I do not know understand why the Government insist on keeping the provision in the Bill. I have spent much time in this role trying to unpick Government proposals that treat children more and more like adults in the justice system, in both this Bill and the Police, Crime, Sentencing and Courts Bill. It is extremely worrying to me that here we have yet another example of the Government failing to treat children in an appropriately distinct way. It is the position of the Opposition that they should be removed from the scope of the clause entirely.

--- Later in debate ---

[Alex Cunningham]

The Chairman of the Justice Committee, as always, talks very clear sense. If we are going to have all these training programmes, attract people to the magistracy and everything else, we will need resources, so will he join me in encouraging the Lord Chancellor to go banging on the door of the Treasury to say that it is time that we took this matter seriously?

--- Later in debate ---

[Alex Cunningham]

This has been an interesting Bill in process, although we still do not really see the need for many of the sweeping changes that the Government are proposing. I reiterate that the Minister has worked collaboratively with us, but sadly could not agree the changes that we proposed, which would have vastly improved this largely unnecessary Bill. I am grateful to my hon. Friend the Member for Hammersmith (Andy Slaughter) for partnering me through the Bill, and my hon. Friends the Members for Lewisham East (Janet Daby), for Liverpool, Wavertree (Paula Barker) and for Luton North (Sarah Owen) for helping to hold the Government to account. Thanks, too, to all the others who were involved in the process.

Let me be clear: there is simply no need to change the judicial review process. The Ministry of Justice is trying to fix something that is not broken. The Government should instead be spending their time tackling the record backlog and protecting victims of serious crime. The Government’s changes to judicial review will have a chilling effect on justice, deterring members of the public from bringing claims against public bodies and leaving many other victims of unlawful actions without any redress.

The proposed reforms go beyond what was recommended by the expert panel set up to advise us, with no evidence to back up this overreach. The proposals are also based on figures that the Government have accepted were completely inaccurate. With the Government’s review of the Human Rights Act on the horizon, this is only the latest proposal to make it harder for ordinary members of the public to hold public institutions to account.

It is always useful to have a current example to illustrate what the impact of the Government’s draft legislation is likely to be. This afternoon—I hope the Minister is aware of this—there was a judicial review result, after disabled people challenged the Work and Pensions Secretary for failing to properly consult on the national disability strategy. The Government lost—yet again, another judgment lost. Does the Minister wish to intervene on me and tell me whether that particular challenge, and correction of an injustice, would have been possible if the provisions in the Bill had been in play today? Clearly, the Minister does not want to intervene.

We had high hopes for the coroner aspects of the Bill, but sadly it does not address the existing problems with the coroner service. Even more sadly, the Government have missed the opportunity to introduce automatic support for bereaved families at inquests where the state is represented. That is not justice; it is justice denied. On Report, I talked about the Government’s drive to apply more and more processes originally intended for adults, to children and young people. They set a precedent in the Police, Crime, Sentencing and Courts Bill, failing time and again to safeguard one of our most vulnerable groups.

More generally, I cannot for the life of me understand why the Government are fighting shy of protecting vulnerable people from the provisions of the Bill. The Government have refused to instigate health checks and other measures to ensure that, when people do engage with online justice, they know exactly what they are doing and the potential consequences. Again, that is not justice.

We did not want to stand in the way of improving our courts system—we know it needs massive improvement—but overall, this is a bad Bill and we shall vote against it.