Legal Aid, Sentencing and Punishment of Offenders Act 2012

Debate between Baroness Chakrabarti and Lord Marks of Henley-on-Thames

Thursday 7th February 2019 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I am grateful to the Minister for repeating the Statement. Sadly, I am not grateful for its content, which offers very little very late. The Government wasted two years investigating their own devastating cuts, perpetrated by the coalition Government on so many ordinary people in this country, for whom access to justice is no longer a reality. The review is a missed opportunity to restore legal support to people facing rogue landlords, debilitating family breakups and the Government’s hostile environment to not just migrants but poor people and people living on benefits.

There have been 99% cuts to benefits legal aid for some of the most vulnerable people in our society, which is completely unacceptable. The Statement’s accompanying documents include an action plan that is incredibly disappointing, in many cases offering just more reviews rather than the action that the term “action plan” would normally suggest. Legal aid has been slashed by hundreds of millions of pounds. Even the Government’s target of saving £410 million was exceeded by £200 million. Is that a record of which the Ministry of Justice can be proud?

On many occasions technology, as with the Northern Ireland border, is offered as a panacea to replace real lawyers offering people early advice and subsequent representation where necessary. That is what anyone would want when dealing with a difficult dispute in their life, and it should be available to everyone—rich or poor.

Cuts to public services and austerity are always political choices, but when the cuts are to the legal advice and representation at the heart of our rule of law, they become particularly ideological. All the exquisite legislation brought forward and scrutinised in your Lordships’ House remains a dead letter in a closed book without adequate legal aid. That is the situation in the United Kingdom—one of the wealthiest countries on earth—at this moment in the 21st century. To my mind, this is a national disgrace.

This year marks the 70th anniversary of the Legal Aid and Advice Act 1949. That piece of Labour legislation, of which we are proud, was as important in the post-war settlement as healthcare or universal education. I am sad to say this because I think that matters concerning the rule of law should be cross-party and bipartisan, but I have come to the view that only a Labour Government will restore access to justice, advice and representation for all.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, after a delayed process that took an entire year, we now have the post-implementation review of LASPO. I will focus on legal aid.

Of its four stated objectives, the MoJ claims success in just one: significant savings have been made. Well, we know that. As the noble Baroness, Lady Chakrabarti, pointed out, the savings wildly exceeded what was expected. However, on each of the other three objectives—discouraging unnecessary and adversarial litigation at public expense; targeting legal aid at those who need it most; and delivering better overall value for money for the taxpayer—the answer is an unimpressive “Don’t know”, dressed up in weasel words such as, “It is impossible to say with certainty”. I suspect that an independent review would have come to clearer conclusions.

The review identifies six themes echoing the experiences of all of us involved in the justice system. First, these changes in the scope of legal aid undermine value for money, particularly by preventing early intervention. Secondly, financial eligibility and operational requirements limit access to legal aid too harshly. Thirdly, the exceptional case funding scheme is not working well. Fourthly, legal aid fees are now so low that future provision by practitioners is at risk. Fifthly, increasing numbers of litigants in person increase costs and risk the perception of a two-tier justice system. Finally, advice deserts across our country threaten access to justice.

The legal support action plan seeks to address those issues, at least in part. I am more hopeful than the noble Baroness in saying that the action plan is welcome. Among the Government’s pledges, some of which were mentioned in the Statement, they promised to review eligibility requirements, increase public awareness of how to access legal aid, broaden the scope of legal aid in some immigration and family cases—that will not go nearly far enough—improve the exceptional case funding scheme, review criminal legal aid, widen access to the telephone gateway, increase support for litigants in person and examine complementary ways of providing legal support. Both those pledges and the others made must be kept and implemented soon. We will have further demands for improved support. We will hold the Government’s feet to the fire.

Can the Minister do two things today on this vital topic? Together, the four documents represent a massive report. Will he please use his influence to secure a debate, with adequate time and soon, on the reports and the action plan? Secondly, will he reassure us that where the promises in the action plan are not backed up by implementation dates—and some are—the MoJ will treat them with urgency?

Notwithstanding the warnings in the paper and in the Statement that all this cannot be delivered overnight and is the first step in the process, the rescue of our legal aid system and the improvement of our legal support system needs more urgency than was ever accorded to this review.

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

Debate between Baroness Chakrabarti and Lord Marks of Henley-on-Thames

Report stage (Hansard): House of Lords
Tuesday 16th October 2018 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I believe we have some settled agreement in your Lordships’ House on the constitutional system we serve, which is still much admired around the world. In that system, notwithstanding the peculiarities of your Lordships’ revising House, accountable primary legislators make our laws and independent judges apply them.

I fear that we have been lulled into a false sense of security on this so-called mouse of a Bill. We have been encouraged to wave it through your Lordships’ House without much of a squeak, but I fear none the less that it breaches the crucial distinction I just attempted to set out. It attempts to sneak through principal changes that, in my view, constitute a double delegation of legislative powers to unaccountable judges by way of the procedure rule committee—and ultimately not even to judges because in my experience, government lawyers will draft those rules, which will pass on the rule committee without much by way of amendment.

Secondly, judicial powers are to be delegated to non-independent courts and tribunal staff. The procedure rule committee is primarily made up of senior judges. That would ensure relatively little external public scrutiny of this delegation of judicial functions to non-judicial staff, to employees of Her Majesty’s Courts and Tribunals Service. It is vital that Clause 3, which delegates judicial functions to authorised staff, is understood in the context of a much wider court reform agenda, and the significant austerity measures—because austerity is not quite over yet—that sit behind this.

Efficiencies generated by the proposed reforms will arise not only through the reduction of the court estate but through savings on judicial salaries. The Government’s Queen’s Speech promised a programme of reforms that would transform the way the United Kingdom justice system operates. Unlike last year’s Prisons and Courts Bill, which dealt with these proposed reforms head on, the courts and tribunals Bill is the beginning of a slower legislative drip-feed process. There has been no adequate parliamentary scrutiny of this broad programme of expensive modernising measures—even by the Justice Committee—nor indeed of the associated court closures and staff cuts.

The Bill currently provides that regulations under Clause 3 shall be made under a negative resolution procedure. This would allow for new rules of court stipulating which judicial functions may be delegated and to whom, and an authorised person’s requisite qualifications or experience to take on those judicial functions. As the Bill stands, this delegation will come into force without any real parliamentary scrutiny. By providing that the regulations in the Bill be made under the negative resolution procedure, the Government are once again seeking to avoid proper scrutiny by democratically mandated legislatures, principally the other place. This amendment, supported by the Bar Council, attempts to ensure more constitutionally appropriate accountability and scrutiny, through at least the affirmative resolution procedure, of the potentially sweeping regulations to be made under Clause 3. Those regulations concern powers to make rules stipulating which judicial functions may be delegated and to whom, alongside appropriate stipulations regarding the qualifications or experience required before this member of the administration—potentially quite a junior member of Whitehall staff—be given these judicial functions.

As the noble Lord, Lord Pannick, who I see in his place, pointed out in Committee:

“The power which the Secretary of State or Lord Chancellor is being given”,


under the clause,

“includes a power to make ‘consequential provision’”.—[Official Report, 10/7/18; col. 878.]

Despite the Government’s promise to give further consideration to the issue during the previous debate, they seem to have offered only the assurance that the power will be limited to changes to statutory instruments. If that is the assurance, why should it not appear in the primary legislation? As a legislator, that seems an assurance worth having.

At Second Reading, the Minister said in response to concerns expressed about the lack of consultation and scrutiny of this ambitious reform programme that,

“the purpose of primary legislation is to implement law, not to review that which we can already do”.—[Official Report, 20/6/18; col. 2053.]

I once more respectfully disagree with that constitutional analysis, for to my mind the role of the legislative process is most certainly in part to review government policy and to restrain executive action, particularly when that policy has the potential—just the potential—profoundly to impact on our justice system. Without careful scrutiny and additional safeguards, the Government’s drip-feed might erode some of our most fundamental institutions and our understanding of the rule of law. The safeguards that we are calling for on the powers created by this Bill are not unreasonable, or seeking to wreck the fundamental notion of reasonable delegation of non-contentious administrative functions. They are minimal if we consider that provisions in this so-called uncontroversial Bill have the potential profoundly to impact on our justice system. The relatively unrestrained double delegation of legislative and judicial powers that the Bill encourages is a slippery constitutional slope that we can, and ought to, resist.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, since Committee on 10 July there have been meetings and extensive correspondence with the noble and learned Lord’s department. The question arises on this amendment as to what is the ambit of the power. If it were as described by the noble Baroness, Lady Chakrabarti, one would have considerable sympathy with the amendment—indeed, I do have sympathy with it, but it needs a little more analysis.

When serving on the Delegated Powers and Regulatory Reform Committee, as I did for some years, we were astute always in not ruling out a negative resolution procedure in cases where the power was strictly limited, but insisting on an affirmative resolution where it was not. In the analysis that we have conducted I have been very grateful to the Bill team, and in particular to the Bill manager, Dominic Smales, for the careful and thorough way in which he in particular responded to my persistent and probably rather troubling questioning. What has concerned me is Clause 3(1), to which the noble Baroness referred, which states:

“The Schedule provides for authorised court and tribunal staff”—


it is subsection (b) that worries me—

“to exercise judicial functions where procedure rules so provide”.

The phrase,

“where procedure rules so provide”,

is important.

--- Later in debate ---

[Baroness Chakrabarti]

My Lords, I shall also speak to Amendments 4 and 6, which are consequential. These amendments in aggregate stipulate that authorised persons must have the following bare minimum legal qualifications: that they be a qualified solicitor, barrister or chartered legal executive with more than three years’ experience post-qualification, as recommended and drafted by the Law Society and supported by the Bar Council. This is a very minimal ask of the Government in the circumstances. It is a lower qualification threshold than is currently required for pupil supervisors or for solicitors to supervise an office.

Authorised staff who are not subject to the training, experience, ethos and oaths of professional judges could be performing judicial functions and employed directly by HMCTS. Even the concept of such delegation, as I said earlier, raises questions of independence. There is legitimate concern that they would inevitably be subject to administrative pressures—for example, meeting targets in a very difficult fiscal climate—and potentially subject to political pressures as well. Without some reasonable limit on who can be authorised, this delegation has, as I said, the potential—perhaps just the potential, but the potential none the less—to change an essential aspect of our judicial system.

I acknowledge that the relevant procedure rules committee will set out procedural requirements about who is empowered to carry out those procedures, but, as we have heard, the committees are made up predominantly of senior judges. This marks a growing trend towards forcing a judiciary that is already bearing the brunt of cuts to the MoJ’s budget also to have to mark its own homework. This has implications for the rule of law and for the independence of judicial decision-making. We also argue that such a shift may well fall short of reasonable expectations held by members of the public about the level of experience and independence of those charged with making judicial decisions—not least about their fundamental rights.

The draft Authorised Court Staff Qualifications Regulations which have been offered in response to those concerns offer only that authorised persons are legally qualified solicitors or barristers. The Bill policy statement provided by the MoJ states:

“We do not expect legal qualifications to necessarily be required for all the different types of judicial functions that authorised staff will carry out”,


so that assurance does not go very far. The Opposition, along with key stakeholders—in this case, the Law Society and the Bar Council—are clear that further qualification is necessary for authorised persons adequately to take on judicial functions of whatever magnitude and that minimum requirements ought to be included in the Bill.

I note that the Minister previously pointed out that three years’ post-qualification experience sets the bar higher than that currently required of assistant justices’ clerks, who currently tend to legal advice within magistrates’ and family courts. However, assistant justices’ clerks are not currently performing judicial functions. If the object here is to provide uniformity to the practice of delegation across all courts and tribunals, surely we should set the bar at least three years PQE.

One has to ask whether the reluctance on the Government’s part to set minimum qualifications just a little higher than nowhere is not due to fiscal concerns about HMCTS staff salaries. Once again, the Government are asking the public—on this occasion, users of our courts and justice system—to bear the burden of austerity, which we have only just been told is over. I beg to move.

[Lord Marks of Henley-on-Thames]

My Lords, the noble Baroness has opened our debate on the amendment with considerable eloquence and a beguiling argument. We have approached the question of whether an authorised member of staff needs to be a qualified lawyer of stipulated experience with an eye on what the extent of the delegated powers of authorised persons would be. In particular, the concern that I expressed in Committee was that the delegated powers should not extend to taking away a person’s liberty, or to ejecting a person from his or her family home, or the family from that home, or to granting an injunction or an order for preserving evidence, which can have far-reaching consequences, or authorise searches of private premises.

--- Later in debate ---

[Lord Marks of Henley-on-Thames]

My Lords, the noble and learned Lord has indicated that we support these amendments, and indeed they respond to concerns that I raised. I indicated in Committee, and in discussion and correspondence with the department since, that I did not see the need to restrict the ambit of delegated functions in a way that could prevent authorised officers extending time for the service of documents, or making consent orders of a procedural nature in substantial civil claims.

However, I was extremely concerned that an authorised officer should not have the power to: make orders taking away the liberty of the subject; make a possession order that would have the effect of depriving someone, or their family, of their home; take the serious steps and risk the far-reaching consequences of granting injunctions; or make orders to preserve evidence—which, as I said earlier, could involve searches of private premises.

I am very grateful to the noble and learned Lord, and to the Bill team, for their consideration and acceptance of the principles I have made. Amendments 5 and 12 respond fully to our concerns and we support them.

[Baroness Chakrabarti]

My Lords, as far as I am concerned, this is the good news in this afternoon’s proceedings. I am very grateful to the Government, assisted by the noble Lord, Lord Marks, for responding to some of the gravest concerns about the gravest decisions that ought not to be delegated to non-judicial persons. I have been trying to suggest that there is an ocean of difference between purely procedural decisions and those that could have, for example, the effect of depriving an individual of their freedom. Without limits on who can be authorised, and what powers can be delegated, measures such as those that we have been discussing could have a very profound effect on the nature of our judicial system. Such a profound change really requires proper scrutiny by parliamentarians.

The stated intention of the policy is to improve the efficiency of the Courts Service by diverting judges’ time from routine tasks, to allow them to focus their time and expertise on more complex matters. Matters of personal liberty and of people’s homes should surely be considered in that higher order of decision-making. That is why I am particularly grateful for having been heard by both the noble Lord, Lord Marks, and by the Government, in relation to concerns raised at earlier stages and in discussion.

While it is almost impossible to create a definitive or exhaustive list of appropriate judicial functions for delegation, covering each tribunal and eventuality—particularly as these roles cover a broad range from the administrative to the determinative, depending on the jurisdiction—we can surely all agree that functions that might deprive a person of their home or their liberty are never appropriate for this kind of delegation. These particular limitations really are the bare minimum. It is worth noting that, in his civil courts structure review, Lord Justice Briggs drew the line at caseworkers making any dispositive decisions, which he saw as being a purely judicial role.

All delegated functions in the civil jurisdiction are routine case-management functions, and are often confined only to cases where all parties consent. Legal advisers do not currently make decisions that represent a final determination, and a party may request a reconsideration of any decision of a legal adviser within 14 days of being served a notice of that decision. Are these not reasonable restrictions to have been placed on delegated functions in criminal proceedings? The MoJ’s own factsheet on delegation to staff says that delegated decisions are unlikely to involve contested matters. 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 these decisions at a later stage in the process.

I give the Government due credit for having gone some way towards addressing real concerns raised at the Lords Committee stage with an amendment that prohibits the delegation of decisions affecting people’s homes and personal liberty. We wholeheartedly support these government amendments, which are very welcome; none the less, they highlight the potential hidden dangers in an apparently benign Bill.

--- Later in debate ---

[Baroness Chakrabarti]

My Lords, I shall speak to Amendment 8 and to Amendment 11, which is consequential, both of which were drafted by the Bar Council.

Clause 3 and the Schedule to the Bill provide for judicial functions to be delegated to authorised staff across the criminal, civil and family courts and tribunals. This would allow decisions that are currently made by independent judges to now be made by employees of Her Majesty’s Courts & Tribunals Service. The Bill provides that authorised staff will be independent of the Lord Chancellor when carrying out these delegated judicial functions, but they will remain court staff and will not take the judicial oath of independence.

Amendments 8 and 11 would ensure that a party to any decision made by an authorised person in the execution of relevant judicial functions or of a tribunal—by virtue of Section 67B(1) or paragraph 3 of Schedule 5 respectively—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.

A statutory right of reconsideration allowing any party to a decision by an authorised person to have that decision reconsidered by a judge was recommended by Lord Justice Briggs in his 2016 report Civil Courts Structure Review: Final Report. That right is currently already provided for, for example, in the tribunal procedure rules. Lord Justice Briggs said:

“The creation of an extensive right to have the decisions of Case Officers considered by a judge has from the outset been regarded as the natural safety valve for concerns about what was … described as the delegation of judicial functions to persons who are not judges”.


As a minimum safeguard, the right of consideration has the benefit of freeing an authorised person from the obligation to produce detailed reasons for every decision, as would be the case if the right of appeal were, for example, created. It is important to point out that this consideration on the papers by a judge is not the same as a full right of appeal. It has the additional benefit of going further than a right of review, guaranteeing judicial oversight of a decision which a right of review would not ensure.

Crucially, this statutory right would also ensure compliance with Article 6 of the European Convention on Human Rights—the right to a fair trial—surrounding decisions affecting people’s rights by an independent and impartial person, which is not a member of court staff. It is a proportionate safeguard relevant to the new powers created by the Bill. Your Lordships are aware that Article 6 provides that the determination of a person’s civil rights and obligations or any criminal charge against them must be undertaken by an independent and impartial tribunal established by law.

The requirements of independence apply not only to the tribunal but also to any judge or other officer authorised by law to exercise judicial power. As the Ministry of Justice acknowledges in its memorandum on the Bill,

“In considering independence, … guarantees against outside pressures are relevant – as is the question whether the body presents an appearance of independence”.


In that human rights memorandum, the MoJ suggests that it is intended that,

“case management decisions which it is proposed these authorised members of staff will be able to take will be uncontentious and not of sufficient importance to engage Article 6”.

However, case management decisions can have a significant impact on shaping the issues, progress and ultimate outcome of the case. For example, a decision on the appropriate timescales within which a party should take a step in proceedings may be significant, as failures to comply with that timescale can subsequently lead to some or all of the party’s case being struck out.

Furthermore, the Ministry of Justice’s fact sheet on the delegation of functions to non-judicial staff states:

“In future, we expect that authorised staff will be able to carry out a range of functions and responsibilities, including case management powers and some mediation roles”.


This suggests that it is envisaged that such staff will have a role beyond merely making non-contentious decisions on purely procedural matters in future.

The Government’s welcome amendment excludes some functions from delegation, but there are still others that may be significant to the progress and outcome of an important case. Such functions—for example, the issuing of an arrest warrant to secure a person’s attendance in court—can still be delegated to non-judicial staff.

In Committee, the Minister argued that a blanket right to reconsideration across all jurisdictions will not work in practice, as it will add significant cost and delay to the process on the basis that a dissatisfied party will inevitably apply for reconsideration by a judge, thereby negating the benefits of delegating decisions to staff. However, this objection was dealt with by Lord Briggs in his Civil Courts Structure Review: Final Report. He accepted that,

“an unfettered right of reconsideration will be a necessary long-stop”.

He also cited evidence from real-life precedents, suggesting that where such a right exists elsewhere, the number of reconsideration applications is low. Surely that should continue to be the case, particularly if, as the Ministry of Justice suggests, the decisions being made by authorised staff are properly non-contentious.

The Government’s concession, placing an obligation on the relevant rule committee to consider a right to judicial reconsideration for delegated functions, does much less to satisfy our concerns than their concession on delegated functions themselves, such as the safeguard in relation to a person’s liberty in their home. In fact, the Government’s concession here replicates the fundamental problem with the effect of the Bill. Placing the obligation on the rules committee, which ultimately does not have the budget to fund the Courts Service, delegates a legislative duty to an unaccountable body.

We on this side of your Lordships’ House strongly believe that Parliament has a legitimate role in ensuring that the new system of delegation proposed in the Bill includes a backstop protection for the right to a fair trial. Consequently, I urge noble Lords to support our amendments, which have already been endorsed by the Law Society, the Bar Council and the Equality and Human Rights Commission. They propose a statutory right to judicial reconsideration for any party to a judicial decision made by an authorised person, or non-judge. This would afford stronger protection for the right to a fair trial and guarantee the independent and impartial determination required by Article 6.

[Lord Marks of Henley-on-Thames]

My Lords, in Committee I spoke in favour of a blanket right to judicial reconsideration of all delegated decisions of authorised persons, much along the lines suggested just now by the noble Baroness, Lady Chakrabarti. During the debate, and after I had spoken, I was gently chided—if I may put it that way—by the noble and learned Lord, Lord Neuberger of Abbotsbury. He said that he sympathised with my view, stating that,

“the idea of a decision being made by a non-judicial person and not being referable to a judicial figure is inconsistent with justice”.

However, he went on:

“Whether it is right to provide in such clear terms, and such uncompromising general terms, for the circumstances and requirements for such an appeal seems to me, again, to be questionable. While I absolutely see the requirement for a right of appeal, I would have thought that, again, it would be better to leave it to the rule committee”.—[Official Report, 10/7/18; col. 890.]


I stress, as has been stressed before, that rules made by the rule committee have to be laid before Parliament, and are subject to annulment if Parliament so decides. The question is, then: how far do the amendments tabled by the Government in this group ensure that a right of judicial reconsideration will apply, when such a right ought to apply?

The noble and learned Lord, Lord Keen, suggested meeting the need to provide for judicial reconsideration by introducing requirements for the rule-making bodies to consider and work on the judicial reconsideration specific for each type of function. Amendments 7 and 13 reflect the Government’s thinking on that. The rule-making body will first have to consider and decide whether rules delegating functions should, in respect of each delegated function—that is important, because they are function-specific—include a right to judicial reconsideration. Secondly, if the rule-making body considers that the rules should include such a right, that body will be compelled to include it, so the right will stand. Thirdly, if the rule-making body considers that the rules should not include such a right, the body should be compelled to inform the Lord Chancellor of its decision and reasoning. Not only are these function-specific arrangements, but they meet the point that there would be no judicial reconsideration.

I was initially concerned when I saw these amendments that they would stop there, without providing for what the Lord Chancellor should do when informed of a decision by a rule-making body not to include a right to judicial reconsideration. But the Lord Chancellor has the power to require rules to be made. It seems to me that if the Lord Chancellor is of the view—being answerable to Parliament and having to lay rules before it—that a rule-making body is wrong in failing to provide for judicial reconsideration, he may be expected to require appropriate rules to be made. That is enhanced by the fact that, if he decides that they are right, he will have to come back to Parliament and say so. In my view, that meets the point made by the noble and learned Lord, Lord Neuberger, while providing for the introduction of rights to judicial reconsideration and delegated decisions where appropriate.

I do not see that there is a contravention of Article 6 simply because a judicial decision is delegated to an authorised officer. That would be a matter of consideration of the particular function and delegation and the presence of a right of appeal. A decision taken by someone who is not a judge is not necessarily a decision by a non-independent party. Indeed, in private litigation between parties, I can see no reason why a decision by an authorised officer should not be a decision by an independent party compliant with Article 6.

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

Debate between Baroness Chakrabarti and Lord Marks of Henley-on-Thames

Committee: 1st sitting (Hansard): House of Lords
Tuesday 10th July 2018 Lords Chamber

[Baroness Chakrabarti]

My Lords, in moving Amendment 8, I will speak to Amendment 10. Once more, these amendments would place restrictions in the Bill as to what type of function will be permitted to be delegated to authorised persons. The previous amendments were about who might be an authorised person. The restrictions this time include that no authorisation,

“shall include the power to … make an order of the court which is opposed by one or more party … make any order of the court in a civil claim with a value of more than £25,000 … make any order of the court with a penal notice or power of arrest”.

The stated intent of the policy of delegating judicial powers is to improve the efficiency of the courts service by diverting judges’ time from routine administrative tasks to allow them to focus their time and expertise on more complex and significant matters. However, there must be reasonable limits to what powers can be given to authorised persons who are not judges. Without those limits, we have a power that has the potential to change the essential nature of our judicial system. I am sure that this is not the Government’s intention, but we need to construct this power for future Governments of whatever stripe because significant judicial power should be exercised by judges.

While it is almost impossible to create a definitive or exhaustive list of appropriate judicial functions for the delegations that will cover every tribunal and eventuality, it is reasonable to expect some red lines and limits relating to the most significant decisions and exercise of power. It does not seem unreasonable to ask that Parliament have an opportunity to set out a framework for such delegation and to exclude decisions that deprive an individual of their liberty or of life-changing sums of money for most people, and decisions that parties have contested or those involving vulnerable witnesses or people lacking mental capacity.

Other provisions in the amendment provide a mop-up of what might provide a red line around a decision which could dispose of a matter altogether. Lord Briggs drew such a line in his civil court structure review, at caseworkers making dispositive decisions, which he saw essentially as a judicial role. All delegated functions in the civil jurisdiction are routine case management functions and are often confined to cases where all parties consent. Legal advisers do not currently make decisions that represent a final determination and a party may request reconsideration of any decision of a legal adviser within 14 days of being served notice of it. Are these not therefore reasonable restrictions to place on delegated functions in the context of criminal proceedings, where so much is potentially at stake? The MoJ’s own factsheet on delegation to staff says that delegated decisions are unlikely to involve contested matters. Why not put such a reasonable restriction in the Bill, given that many case management decisions are potentially important judicial functions that should not be delegated?

In addition to concerns about transparency, there is a danger that efficiencies gained by delegating case management decisions will be lost if the court then has to reconsider such decisions at a later stage in the process. Further, if one accepts the case for the limited delegation of some of the most straightforward decisions to such authorised staff, one has to raise concerns that these relatively low-paid staff—HMCTS staff being paid less than other government lawyers—are being used to save money without proper remuneration for their increased workload. I beg to move.

[Lord Marks of Henley-on-Thames]

My Lords, I have some sympathy with two of the new paragraphs proposed in the amendments. I have sympathy with those relating to orders of the tribunal or the court with a penal notice or power of arrest. I have some sympathy, too, with the restriction on the power of a court to make an order under Section 37 of the Senior Courts Act for an injunction, including any freezing order, and the corresponding power for the tribunal.

I am afraid that is as far as my support goes for the noble Baroness’s amendment, because all the other powers may be entirely trivial. In particular, the noble Baroness places reliance on the idea that a contested order should not be made. Some contested orders are unbelievably trivial. If I seek a 14-day extension for the service of my defence and the other side says that I should do it in seven, and the authorised person says, “Well, you can have 10”, the idea that he or she should not have the power to make that order is wrong.

One has to leave it to the good sense of the rule committees to decide where it is sensible that such restrictions should be drawn. Injunctions are in a different category and where the liberty of the individual is at stake we have a different category, but otherwise I am afraid I cannot support the amendments.

Worboys Case and the Parole Board

Debate between Baroness Chakrabarti and Lord Marks of Henley-on-Thames

Wednesday 28th March 2018 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I am most grateful to the Minister for that Statement about today’s High Court decision. I hope that he will agree that the ruling was possible only because of the Human Rights Act and the victims’ rights contained in it. But today’s decision clearly highlights the deep flaws in the initial Parole Board decision, which caused enormous anguish for victims—those whose cases had been dealt with but also those who have not yet had justice. There is also deep concern among women and the public more widely.

Of course, the head of the Parole Board has decided to stand down—although I am sure that all noble Lords will be concerned to preserve the independence of the board going forward. So what is needed is surely a change in the way that the Parole Board and perhaps the wider justice system function. As the Minister said, the current legal restrictions on the Parole Board mean that we still do not know exactly why the initial decision was taken. That led to rumours about where Worboys would be released and even whispers that he might be released without a tag. It is not good for victims or public confidence.

It cannot be right that victims had to resort to a crowdfunded judicial review—not a legally aided one—before any whiff of the reasons for the release of John Worboys became available. Judges in the judicial review said that there was too much secrecy about Parole Board decisions under Rule 25, which presents any reasons for decisions made by the board. The case underlines, once and for all, that we need urgent measures to achieve greater transparency in Parole Board decisions. I am sure noble Lords will agree that if the public are entitled to be informed about court judgments, it makes sense that they should also be informed about at least the rationale of Parole Board decisions. This is not about undermining the board’s independence. I am sure that all Members of your Lordships’ House can unite in defence of the independence of both the board and the judiciary. It is right that action is being taken. The Government have committed to taking action to improve transparency, but it seems that we need not just transparency but a clear mechanism to allow victims to challenge decisions when they feel aggrieved. Can the Minister commit to the review he discussed being concluded by this summer? It is inevitable in government, with so many pressures, that such reviews sometimes slip. Can we have some assurance that that will not happen in this case?

A lawyer for Worboys’s victims has said that the Ministry of Justice was responsible for preparing the dossier of evidence on which the Parole Board made its decision to release. Can the Minister explain why information about the “rape kit” used by John Worboys was not included in this dossier? Can he also explain why the sentencing remarks of the judge in the Worboys criminal trial were not included in that dossier? Why did the dossier contain nothing about the new information that had come to light during the proceedings brought by victims against the Metropolitan Police? It must be possible that the failures in the Worboys case go much wider than the rules governing the Parole Board or the board’s function.

It is clear from today’s ruling that judicial review is a key tool for every citizen to be able to challenge unjust or unlawful decisions by the state or other public bodies. Deep cuts to legal aid have undermined the ability of too many people in our country to pursue judicial review. I repeat: I do not think it is right that victims should have to resort to crowdfunding to access justice. Justice cannot be dependent on the depth of your pockets. Will the Government commit to using their review of legal aid to look in particular at how we might better support the basic right to judicial review of administrative action?

It seems that there have been widespread failings in this case from the very outset. In 2009, John Worboys was convicted of 19 offences against 12 women, but the police have also linked Worboys to about 100 other cases. Many of the victims have raised concerns about the police handling of the case. Others have raised concerns about the CPS decision not to prosecute in other cases. We have discussed at length the complaints about the Parole Board, particularly its failure to properly notify victims of proceedings. It is clear that we need a thorough examination of the end-to-end handling of this case, from the first attack reported to a police officer right through to the Parole Board hearings that were under review in today’s decision. Those of us on this side of the House have asked the Government to consider such an end-to-end review before. I hope, in the light of today’s decision, that the Minister might commit at least to considering that request.

Finally, for most people most of the time the justice system is out of sight and out of mind until a case such as this comes to public view. Yet, the justice department has in recent times faced 40% cuts—the deepest of any department. Is it not time to reconsider the effect of those cuts and whether they are sustainable? If I might be so bold or cheeky, I ask the Minister to consider lobbying the Lord Chancellor to get extra investment into a justice system that is at least strained, if not quite broken.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I join the noble Baroness in welcoming the Statement from the Secretary of State and the noble and learned Lord’s repetition of it in this Chamber. The High Court’s decision is a signal victory for the victims. I join the noble and learned Lord in congratulating them on bringing this case.

The High Court’s decision and the Statement mark a real endorsement of three important principles. First, the interests of victims should be given significant weight in the Parole Board’s decision-making at every stage. Secondly, the Parole Board should operate with far greater transparency and its secrecy hitherto has acted against the interests of justice. Thirdly, a much wider range of evidence, including evidence of past offending, which was so very relevant to the Worboys case, should be fully considered by the board.

I welcome the many steps announced by the Secretary of State in the Statement. I also endorse the points made by the noble Baroness about how important judicial review is and the importance of resisting any attacks on it, direct or indirect, through its funding by Governments in future. However, I have a number of questions for the noble and learned Lord. I appreciate that the answers will necessarily to some extent be preliminary at this stage, but I make two points about that. First, the answers will be relevant to the reconsideration to be given by the Parole Board pursuant to the decision of the High Court in the Worboys case. Secondly, as the noble and learned Lord stated, this work has been going on for two and half months already.

My first question is: what thought has yet been given as to how evidence of past offending will be heard, tested and then weighed up by the Parole Board? In that context, how is it proposed that the voices of victims will be heard?

Secondly, one of the problems has been that the victims were notified of the decision after it had been taken and made public. That cannot be right. I appreciate the commitment in the Statement to giving a summary of reasons, but can we be assured that victims of past crimes by offenders who are about to be released will be notified in advance of a decision to release?

Thirdly, how is it intended that the role of the Secretary of State’s representative at Parole Board hearings, which was mentioned in the Statement, will be enhanced?

Fourthly, on training, the Statement commits to further specialist training of Parole Board members. How is it that the training of Parole Board members has been allowed in the past to be of a standard that the Government now accept was deficient?

Finally, how, in general terms as well as, as far as possible, in the particularity, is it proposed, given the abolition of Rule 25, that greater transparency for Parole Board proceedings will be implemented?