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

Baroness Chakrabarti Excerpts

2nd reading (Hansard): House of Lords
Wednesday 20th June 2018 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, like many in your Lordships’ House, I have spent much of my life critiquing, seeking to improve and sometimes downright opposing legislation that I have seen as flamboyantly intrusive and therefore unjust. Clearly, this Bill is not in that category. However, legislation can also be deficient for what it does not contain, as that might lead to injustice as well.

As the noble and learned Lord said, the Government’s Queen’s Speech promised a programme of reforms that would transform the way in which the UK justice system operates. He referred to that reform as “ambitious”. Unlike last year’s Prisons and Courts Bill, which dealt head-on with those proposed reforms, this Bill is, by contrast, perhaps the beginning of a legislative drip feed.

Today of all days, we are conscious of the challenges and complexities of minority government. Clearly, one approach is the very skilful drafting of the scope of this Bill, with its very tight Long Title, perhaps to avoid controversy, amendment and so on. However, another approach in challenging times of minority government might be to be a little more ambitious and out in the open, and to pursue that ambition by consent. My hope would be that, during the passage and conduct of the Bill, the Government might consider moving from the more cautious to the more open approach to debating these matters—these ambitions—and subjecting them to appropriate parliamentary scrutiny. As the Minister just said, the reform programme is moving ahead in any event, in the absence of primary legislation, and one might query the appropriateness of that.

The reform programme cost of £1.2 billion to the taxpayer seeks to “modernise” the courts service by transferring more court hearings online or operating them through remote video links. Digital hearings will have implications worth considering for the principles of open justice and for public confidence in the justice system. The Equality and Human Rights Commission has raised concerns about the potentially detrimental impact on people with certain challenges and protected characteristics, who are more likely to be excluded by digital processes. My noble friend Lord Beecham will deal with this in more detail a little later.

There has been no real parliamentary scrutiny of this programme—this expensive modernising series of measures—or of the associated court closures and staff cuts, even by the Justice Committee. Since 2010 the Government have closed literally hundreds of courts and cut thousands of vital staff, with the Ministry of Justice launching a new consultation on further court closures in January. Opposition research suggests that 80% of the courts sold so far have raised on average little more than the average UK house price. This raises concerns over long-term damage to access to justice for civil litigants and indeed victims of crime.

Reductions in the number of local courts pile further pressure on those remaining courts, which are already creaking under the weight of budget and staff cuts over many years. So we on this side of your Lordships’ House ask and implore the Government not to proceed with any further court closures until legislation for this ambitious digitisation of courts programme is published and reforms can be subjected to full parliamentary and public scrutiny.

In May, the National Audit Office released a report on the Government’s ambitious reforms and it is pretty damning. Again, my noble friend Lord Beecham will consider this in more detail later. We already have precedent, however, of reforms to the justice system conducted without sufficient research and consultation. That precedent—not a great one—is LASPO.

LASPO has been an unmitigated disaster, widely criticised by expert stakeholders including the Bar Council, the Justice Committee and the Law Society. The Public Accounts Committee made it clear that in bringing forward that legislation the Ministry of Justice had,

“not properly assessed the full impact of the reforms”.

That impact has proved devastating for some of the most vulnerable people in our society, who as a result of those cuts have been shut out altogether from the legal aid system that we were once so proud of in this country.

The year before the relevant provisions of LASPO came into force, legal aid was granted in 925,000 cases. According to Amnesty, the year after it came into force assistance was given in fewer than 500,000 cases—a drop of 46% in legal assistance. This is not just a comparator. Drastic cuts to legal aid will and do have a direct relationship to pressures on judges and those who work in the court system when ill-advised and unassisted members of public turn up to seek justice.

Clause 3, as we have heard from the Minister, delegates judicial functions to authorised staff. This seemingly sensible and uncontroversial provision must be understood in the broader context of the wider reform agenda and the austerity measures behind it, because the savings generated through proposed reforms will arise only through the reduction of the court estate and through savings on judicial salaries. Further proposals include the relocation of many case management functions—listing, scheduling and so on—which currently take place within court buildings with the benefit of on-site judicial supervision. The implication is that these decisions will move to new off-site service centres—which I think we have all experienced with varying degrees of satisfaction in relation to other services. Given their off-site nature, the implication that these service centres will be supervised by authorised staff, not judges, is worrying. To have authorised staff who are not subject to the training, experience, ethos and oaths that a professional judge is, and who are performing judicial functions but employed directly by HMCTS, raises questions worth considering of accountability and independence. Concerns that they would be subject to administrative pressures, such as meeting targets, are also worth thinking about.

The devil will, therefore, be in the detail of how these provisions might operate. Without limits on who can be authorised and what powers can be given to authorised persons, this delegation has the potential, as currently drafted, to change the essential nature of our justice system. Transparent and public scrutiny by parliamentarians with a democratic mandate is necessary. While acknowledging the great work over many years and the existing remit of the procedure rule committee, I really would query whether delegation of judicial functions can be thought of as a simple procedural matter for a rules committee as opposed to something worthy of secondary legislation in both Houses of Parliament. If one accepts the case for the limited delegation of some of the most straightforward decisions to authorised staff, it is then potentially objectionable that these relatively low-paid staff—quite possibly paid less than lawyers in other government departments and who have already been hit by the public sector pay caps—are being used to save money, if they are not to be offered proper remuneration for this new, more challenging and increased workload.

On this side of your Lordships’ House, we will be seeking to probe the Government during the passage of this Bill and to push for a number of safeguards in the Bill, the first of which is limits to the delegation of these judicial powers to non-judicial personnel. The MoJ’s own factsheet on delegation to staff says that delegated decisions are unlikely to involve contested matters; why should that not appear in the Bill itself? Most case management decisions are vital judicial functions and, therefore, should not necessarily be delegated. Decisions that impact on the fairness of the process itself are, and must remain, the remit of judges and involve carefully weighing submissions by parties. In addition to concerns around transparency, there is a danger that efficiencies gained by delegating case management decisions will be lost if the court has to reconsider many of these decisions at a later stage in the process. There ought, again, to be minimum qualifications for these authorised staff in the Bill. The Law Society has suggested, for example, that no one with less than three years post-qualification legal practice—that is, a barrister or solicitor—should be delegated any judicial function under this Bill. That is a suggestion worth considering. Three years of post-qualification practice is not a high bar when you consider who may or may not take on a pupil or a trainee solicitor, for example, for supervision.

As your Lordships will have read, other interested parties have called for a statutory right of reconsideration allowing any party to a decision by an authorised person to have that decision reconsidered by a judge, as recommended by Lord Justice Briggs in his 2016 report. That statutory right would further assist in assuring compliance with Article 6 of the Convention on Human Rights, which requires decisions by an independent and impartial person.

Further, the Bar Council has called for key questions to be asked by your Lordships’ House on the nature and extent of the suggested powers of authorised staff. First, will the staff members have the power to determine the outcome of any matter which is contested by the parties? Secondly, if so, what rights of reconsideration would there be and to whom, and will this be consistent across all jurisdictions? Thirdly, will there be a right of reconsideration, not just a review or appeal? Fourthly, will staff be legally trained and, if so, to what level of qualification? Fifthly, in order to achieve the savings required, what is the number of judicial posts that the Government would expect to lose; and what number of additional authorised staff will the Government need to recruit? Sixthly, what are the limits to the functions that case officers should perform, and should not these be in the Bill to allow them to be subject to proper scrutiny?

Other provisions about the flexible deployment of judges are clearly of far less concern in this Bill but, none the less, the further and increased deployment of temporary judges to any court or tribunal on which a deputy judge of the High Court is able to sit is still worth thinking about. Given the planned savings on judicial salaries, we have to ask whether these provisions are a short cut to make up for a shortfall in the recruitment of permanent judges. Any move towards increasing reliance in the system on temporary judges— who will most likely seek a permanent appointment in the longer term—would be of concern because of independence, which is less likely when someone is a temporary judge. The Government must provide greater evidence of the need for such reliance on temporary judges and explain the proportionality of such measures.

A further omission from the Bill—a point well made by Women’s Aid—is the provisions prohibiting the cross- examination of victims of domestic violence which we all looked forward to in the abortive Bill of last year. We should be concerned that those provisions are not in this Bill and ask for further assurances on them.

This is a wafer-thin Bill which, on its face, is apparently uncontroversial. However, as the Minister said, it is the beginning of the fulfilment of a further ambitious programme. The Government appear to be testing the waters for more controversial court reforms and it is vital that we understand the limited provisions in the Bill in the context of that broader agenda of reforms and devastating cuts. Nor should we be completely persuaded that the Bill in itself does not have the potential, as currently drafted and unamended, to profoundly impact upon our justice system as we have all understood and loved it. Without further careful scrutiny and additional safeguards, this governmental drip-feed approach has the potential to erode some of our most fundamental institutions.