Criminal Justice and Courts Bill

Hywel Francis Excerpts

Tuesday 17th June 2014 Commons Chamber

[Robert Neill]

I am grateful, and that provides a suitable point for me to conclude. The costs apply not just to individual litigants and therefore to companies and local authorities, because the cost to a local authority is ultimately a cost to the taxpayer, and then there is the opportunity cost to the planning system and the court system that comes from bringing needless judicial reviews. There is nothing in the Bill to prevent a meritorious claim from coming forward and being heard, but it provides some checks and balances in the matter—a reminder that the common law does not exist independently of the House. Ultimately, accountability lies here through Parliament. The judiciary has an important role to play in interpreting the will of Parliament.

Occasionally, I look at judgments in judicial review cases and gain the impression that one or two of the senior judiciary have rather concluded that the common law somehow exists in isolation. The development of case law is important, as suggested, but it should happen within the framework set by this democratically accountable House. We need to redress the balance to ensure that while the House is accountable, a democratically elected local authority is the right primary accountable body in its sphere of competence. I thus commend both the planning and the judicial review provisions.

[Dr Hywel Francis (Aberavon) (Lab)]

It is a pleasure to follow the hon. Member for Bromley and Chislehurst (Robert Neill), not so much for the content of his contribution as for its tone and humour. I am afraid that I will not be able to match his humour. He beat me to the punch by telling us about his friendship and legal partnership with my distinguished predecessor, Lord Morris of Aberavon. I suspect from the tone of the hon. Gentleman’s contribution that he must have learned it at the feet of my predecessor. The general tone of this debate has been very constructive, so I hope the Minister will respond positively to the constructive contributions.

I particularly commend the contributions of my hon. Friend the Member for Rotherham (Sarah Champion) and of the hon. Member for Cambridge (Dr Huppert)—I was about to call him my hon. Friend—who contributed progressively and constructively to the work of my Joint Committee on Human Rights earlier in this Parliament.

I shall propose my own amendments 42 and 44 and speak in support of amendments 24 to 32 and 36, tabled in the names of my hon. Friends the Members for Hammersmith (Mr Slaughter) and for Barnsley Central (Dan Jarvis) and recommended by the Joint Committee on Human Rights, which I chair. Let me remind everyone that the Joint Committee is made up of members of all parties and that the majority of its members are from the coalition parties. When a report from our Committee is unanimous, it means that it was supported by Government Members.

My Committee has done a lot of work on the implications for access to justice of the Government’s proposals to reform both legal aid and judicial review, and we continue to take evidence on these important matters. Earlier this year, we concluded a detailed inquiry into the Government’s judicial review reforms. Our report, which came out in April, pointed out—as did my hon. Friend the Member for Hammersmith in this debate—the crucial importance of judicial review to upholding the rule of law in this country. It is, I believe, one of the fundamentals that seems to be in everyone’s list of “British values”—much discussed of late.

Amendments 42 and 44 were recommended in my Joint Committee’s report. They are necessary to ensure that the Bill does not go too far in curtailing one of the most important developments in recent years, which has increased effective access to judicial review to hold the Government to account. The courts have carefully developed costs capping orders, which are also known as protective costs orders, to ensure that meritorious challenges to the legality of Government action are not prevented by the fear of a crippling bill for costs. In appropriate cases, they remove the disincentive to litigation of the ordinary “winner takes all” costs rules.

Corner House Research, a non-governmental organisation with expertise in countering bribery and corruption, brought judicial review proceedings against the Department of Trade and Industry for not doing enough to counter bribery and corruption through its export credits guarantee scheme. The courts believed that the legal challenge raised important issues of public interest that needed to be decided. The case was, however, brought only because of a costs capping order limiting the costs exposure of this important NGO.

The Government are concerned that the test for providing such costs protection has become increasingly flexible, as a result of which costs capping orders are being granted too frequently. The Lord Chancellor and Secretary of State for Justice said that they seem to have

“become the norm rather than the exception”.

According to his way of thinking, a lot of well-off campaign groups are bringing cases safe in the knowledge that their costs exposure will be kept down by a costs capping order. My Committee looked into this issue in detail and found the Lord Chancellor’s concern to be exaggerated. The senior judiciary, in its response to the consultation, also doubted the Lord Chancellor’s claim. Other than in environmental cases, where a special cost regime applies because of the UK’s EU obligations, the judges’ experience is that the use of costs capping orders is not widespread.

We welcome much of what is in the Bill on costs capping, including the Government’s decision to put costs capping orders on a statutory footing and to enshrine the common law principles into a statutory code. This seemed to my Committee to be a welcome recognition in principle of the importance of costs capping orders as a way to ensure practical and effective access to justice. We also found that the new statutory code in clauses 59 and 60 is a broadly accurate reflection of the principles developed by the courts, and for the most part merely reflects the restrictions on the availability of costs capping orders that are already applied by the courts.

In one very important aspect, however, the Bill includes a restriction that has the potential to limit very severely the practical effectiveness of costs capping orders. Clause 59(3) provides that a costs capping order may be made by the courts

“only if leave to apply for judicial review has been granted.”

The Government’s justification for this restriction is that only cases with merit should benefit from cost capping orders, and the test of whether a case has merit is whether it is granted permission to proceed by the court. In practice, however, this provision seriously undermines the utility of costs capping orders and may lead to meritorious judicial reviews not being brought because the cost risk is too great.

[Heather Wheeler]

Can the hon. Gentleman provide any examples of where that might have occurred? I am finding it very difficult, and I think the taxpayers of South Derbyshire will find it very difficult, to think that people’s rights to open justice are being curtailed in any way when we are not seeing meritorious cases that ought to come to court. Judicial reviews have got out of hand, my friend.

--- Later in debate ---

[Dr Francis]

That is not the view of my Committee. I commend our report to the hon. Lady, if she has not read it, because it deals with this point very thoroughly.

Pre-permission costs in judicial review proceedings are often substantial: the Bingham Centre for the Rule of Law told our inquiry that they may comfortably exceed £30,000, and that restricting the availability of costs capping orders until permission is granted will in practice undermine their usefulness in ensuring effective access to justice. It is worth repeating the words, which we quote in our report, of the Bingham Centre on judicial review proceedings:

“The risk of unknown and potentially substantial pre-permission costs is a risk that those who would otherwise qualify for costs protection cannot possibly take. If a PCO cannot be obtained to protect against such a costs risk, very many claims with substantial wider public interest will not be brought. A PCO that cannot be obtained until it is too late to prevent the chilling effect”—

the chilling effect—

“of uncertain and unlimited costs exposure is a pointless PCO: it does not achieve the aim of enabling access to justice for those who cannot expose themselves to substantial costs risk.”

The whole point of costs capping orders is that they provide assurance to litigants in advance, before the defendants to judicial review proceedings start running up costs that, without a costs capping order, the claimant may have to pay. To ensure that costs are not a barrier to upholding the rule of law, that protection should be available in relation to costs incurred at the very outset of the proceedings, before permission is granted. That is what amendment 42 is designed to achieve.

Neath-Port Talbot Magistrates Court

Hywel Francis Excerpts

Wednesday 12th March 2014 Westminster Hall

[Mr Peter Hain (Neath) (Lab)]

Thank you for chairing the debate, Mr Pritchard. I look forward to your presiding over it. I ask the Government to reverse their decision to close Neath magistrates court, which has served the town for generations. Written records show that from the early 18th century, and probably much earlier when they were situated in the castle from which the town gets its name—in Welsh, Castell Nedd—magistrates in Neath were so busy that they sat almost continuously, not just four times a year as they did in other places. The current facility has been open since 1977.

Although I am grateful to the Secretary of State for meeting me on two occasions, I totally refute what he said in his letter to me of 5 February confirming his decision to close Neath magistrates court and move it to Swansea. I challenge the costing that he presented to justify the closure, which will have a seriously damaging impact on the quality of local justice for local people. I also challenge some of his basic facts, such as those on the usage of the Neath court, which are simply wrong.

I presented an incredible low-cost alternative that would have delivered savings, namely to transfer the magistrates court to the nearby county court facility, which is underused and might easily be modified for that purpose. That suggestion was rejected, seemingly arbitrarily, which caused deep local anger. More than 1,800 signatures were collected in a matter of weeks on a petition that circulated in the town.

[Dr Hywel Francis (Aberavon) (Lab)]

I thank my right hon. Friend for giving way, and I congratulate him warmly on his success in securing the debate. His point about local feeling is a strong one. Does he agree that alongside trial by jury and the appointment of local magistrates, one of the central tenets of our common-law system, which has been developed over centuries and of which we are very proud, is the importance of the local delivery of local justice? My constituents share his concerns, because Neath magistrates court also serves Port Talbot.

[Mr Hain]

Indeed, and I am happy to be corrected by my hon. Friend from the neighbouring constituency. Having examined the Secretary of State’s argument, the proposal document and the consultation response from Her Majesty’s Courts and Tribunals Service, I am convinced that the transfer of the magistrates court service from Neath to Swansea will severely and detrimentally affect the town and its citizens, and will erode the provision of local justice for local people, as my hon. Friend has eloquently pointed out.

The decision to merge has been driven purely by cost reduction, as part of an exercise across England and Wales in which 130 courts have been closed since 2010. In recent years, the Neath and Port Talbot area has lost two magistrates courts in Pontardawe and Port Talbot. The loss of the third and final magistrates court in the county borough will leave nearly 140,000 people— a population bigger than that of Middlesbrough or Cambridge—without a magistrates court. Instead, the Swansea court will serve a population of 380,000 people. Local topography, transport and economic issues have been completely disregarded.

The timing of the consultation was perhaps no coincidence, coming as it did alongside the start of work on Neath Port Talbot county borough council’s long-awaited regeneration of the town. The implication in the executive summary of the consultation document and the impact assessment of August 2013 that there was no other option because the county borough council required the land seems to have been designed to lay the blame firmly at the door of the local authority. However, Her Majesty’s Courts and Tribunals Service had known about the county borough council’s intention since 2008, when alternative venues, including a new courtroom nearby, were being explored. At that time, my suggestion to the then Secretary of State to move the magistrates court to the county court only 300 metres away was being examined, and Neath Port Talbot county borough council had even budgeted for its contribution to the estimated cost of £1.4 million to facilitate the move. Had that been pursued and any problems overcome, which I believe could easily have happened, not only would the Government have made their savings, but Neath would have retained its magistrates.

The costs associated with the proposed merger of Neath and Swansea magistrates courts are far greater than those involved in the conversion of Neath and Port Talbot county court to a new Neath Port Talbot magistrates court. That new facility would have minimal additional operating costs, because the crown court is already fully functioning. There would be no additional travel costs for magistrates or staff. The county court has free car parking, so there would be no additional car parking fees. There would be a net saving of operating facilities costs, estimated to be between £100,000 and £110,000 per annum, which includes utility costs, cleaning, waste disposal, security and maintenance, because those are already in place at the county court.

The projected enabling cost of the Swansea merger is £165,000, but the true figure will be significantly greater. I give notice to the Secretary of State that should he continue to disregard our representations and the case I am making to the Minister today, I will carefully monitor what those costs actually are and report them. Court 6 in Swansea, for example, has no retiring room. Court 5 has neither a secure dock nor secure access and egress for magistrates, so it cannot be used for criminal cases. Even if it is physically feasible to correct those deficiencies, major alterations will be required. Only criminal cases would be heard in Swansea magistrates court after a merger, with all family work being transferred to the Swansea civil justice building. Travel costs after a merger would increase by £55,000 a year.

Had those figures been objectively analysed, not only would the Government have made their savings but Neath would have retained its magistrates court, albeit in a new location. There is a suspicion that the Government decided to merge Neath and Swansea magistrates courts with little or no investigation of the real costs and savings involved. Consequently, they appear to have undertaken the consultation exercise without intending to take much notice if the facts demonstrated that it would be far less costly to convert the county court than to merge Neath and Swansea magistrates courts.

The option of converting Neath and Port Talbot county court and connecting it by secure walkways to the adjacent cells in the police station is supported by local magistrates, local politicians, the local police and local court users. The police in Neath no longer require the cells, but they wish to retain a presence in Neath. Because there is a low-cost option for a new court in Neath, there is absolutely no justification for merging the court with Swansea. The conversion of the county court is a viable alternative that can deliver savings in addition to the £300,000 that will be obtained from selling the existing building to Neath Port Talbot county borough council. That is more than enough for a careful remodelling of the county court.

Conversely, if the Government press ahead with the merger of Neath and Swansea magistrates courts, they will incur transition costs estimated to be at least £150,000 and additional annual travel costs of at least £55,000, in addition to the cost of establishing a new digital service proposed by the Secretary of State, which would have to be housed in the county court in Neath anyway. That facility would have to be staffed by relevant personnel, a legal adviser and an usher, duplicating the staffing in Swansea magistrates court. Only one video link can operate at any given time, and the Swansea courts will grind to a halt if solicitors and defendants have to liaise via a video link rather than face to face. Few witnesses will choose to attend Swansea magistrates court for a trial if video link facilities exist locally in Neath, thus denying magistrates the opportunity to assess witnesses’ countenances when they give evidence, which can be a crucial or even determining factor in their assessment.

Even the original, deeply flawed impact assessment produced by Her Majesty’s Courts and Tribunals Service was not clear on the extent of savings from the proposed closure. It did not adequately take into account the increased travel and parking charges that would accrue in Swansea. As the Neath county court is fully functioning and has adequate security, there would be no increase in total running costs if the county court were to become the magistrates court—indeed, there would be savings to both court services through the merging of overheads.

To accommodate the magistrates, the family and civil work currently undertaken at the county court could easily be transferred to the justice centre in Port Talbot, which cost £3 million some five years ago but currently averages just 13% usage. There are no cells in the Port Talbot building, so criminal cases cannot be heard there, but the transfer of civil work would increase its utilisation. Thus, the county court could become the new Neath magistrates court and the justice centre in Port Talbot could become the new family and civil justice centre. It is just 8 miles from Neath to Port Talbot, so the journey time would be considerably less than the proposed increased journey time to Swansea from the many towns and valley villages.

The times and distances quoted in the consultation document are deeply inaccurate and ignore the difficulties of travelling from valley communities such as Banwen, Glynneath and Onllwyn. A simple journey to Swansea can involve two or three buses, and it could take well over an hour to complete a journey. Getting to Swansea court involves negotiating Fabian way, which is notorious for long delays owing to the volume of traffic—especially at peak times—which can add half an hour to a journey. That is on a good day when the bus services run well, whereas often the tricky topography and poor weather mean longer and more convoluted journeys. In a county borough where 30% of households do not have a car, the difficulties of public transport should surely have been recognised instead of simply ignored by the Government.

Even if, as he indicated to me, the Secretary of State is less concerned about inconvenience to defendants, surely he should concerned about witnesses, victims and court staff who will have to make the same trek to attend at Swansea court, incurring additional running costs. We must also remember that magistrates are unpaid volunteers; they are the bedrock of the justice system in this country. In Neath, we have notably dedicated and able magistrates serving in a well-respected team. To suppose that they will just move wherever Her Majesty’s Courts and Tribunals Service decides, adding gratuitously to their precious volunteering time, is to presuppose and expect an awful lot.

Many living in Neath will be thinking long and hard about whether they wish to relocate, and prospective magistrates will certainly think twice if that means not being able to deliver local justice locally and continue to serve the local community they cherish, and, in Neath’s case, are proud of. With such uncertainty over their future, the staff, to whom I pay tribute, have acted with great resilience over the past few weeks, as they did during the recent storms, which saw a huge upheaval for the work force when the Neath court roof blew off—but I will come on to that later.

Despite assurances to the contrary, I am concerned that the closure of Neath magistrates court will result in possible redundancies for staff who live locally and cannot commit to a longer commute. The suggestion in the consultation document that

“some staff and judiciary may experience slightly higher costs having to travel further to the receiving court”

is disingenuous, given that increased costs are almost certain because of the much longer distance to travel and the high cost of parking in Swansea. The loss of that local knowledge will be a huge blow to local justice.

Local solicitors representing defendants in Neath will inevitably relocate to Swansea in order to be closer to Swansea magistrates court. A number of solicitors firms are key employers in Neath town and provide well-paid, skilled jobs. If they relocate, it will leave a gaping hole in the economy.

Access to the probation services based in Neath courthouse will be affected, and probation service staff will also have to be redeployed. There will be upheaval and a cost effect on the youth offending service, the victim support service, and the witness service, all of which often work with the most vulnerable in our communities. Relocating all such professional and support jobs will also significantly damage the local economy.

It is wrongly asserted that Neath court rooms are currently 55.3% used. That figure is calculated on the assumption that there are three courts available for criminal work, whereas in fact only two courts are suitable for criminal work, with a secure dock and secure access to the cells. The correct calculation would be 75% usage in Neath court building; Swansea has 74% usage and Cardiff 59%. Of the 16 magistrates courts in Wales, 10 have utilisation figures well below those of Neath.

On efficiency, Neath court staff and magistrates have an exemplary record. Cases are dealt with swiftly and efficiently, fines are collected, and court utilisation is often among the highest in Wales. Neath compares very well with Swansea, Merthyr and Cardiff in all areas. There is no justification for the closure of Neath court on the grounds of efficiency, and detailed and up-to-date figures are available to substantiate that statement. It is also the case that, unlike other areas of the UK, crime in south Wales is increasing, and the number of cases being heard in magistrates courts is going to increase as a result of the Lord Chancellor’s review of out-of-court disposals, which was instigated in 2013.

Recent damage to the roof of Neath magistrates court caused by bad weather caused all work to be transferred to Swansea court. The damage has since been repaired, but the staff and magistrates from Neath coped brilliantly. They were welcomed by the staff and magistrates in Swansea, who did everything they could to make them comfortable. Nevertheless, the key point that I want to make is that there is no avoiding the fact that justice suffered, particularly as Swansea’s court rooms 5 and 6 are not fit for criminal court work. All the evidence shows that if Neath is merged with Swansea, the same will happen, except permanently.

One example case illustrates the point. There was a joint alleged assault, and the defendants were in a relationship. They received the letter reminding them of the new venue for their trial—Swansea—but the accused woman, a drug addict, had to get her methadone prescription from her chemist at 9 am, then try to get a bus to Swansea. Receiving the methadone and taking it in the chemist, as addicts must in order to prevent them selling the methadone on the street to buy heroin, she missed the 9.15 am bus, but caught one at 9.45 am. Her partner had given her the fare, leaving him with no money. He eventually found a friend and borrowed the fare.

Meanwhile, the court began hearing the case and, as the defendants were not present, there was considerable delay while options were considered. The woman then arrived, so the trial began again, and an arrest warrant was issued for the co-defendant. Just as it seemed that the trial was concluding, the man arrived. The arrest warrant was cancelled and the trial concluded. One and a half hours of precious court time was totally wasted. Had the trial been in Neath, both defendants would have arrived before 10 am and the trial have been concluded by 10.45 am. That may seem trivial compared with work in our Crown courts, but if there is to be justice for all, courts must be available to deal with the less high-profile cases as well.

The temporary arrangements demonstrated that, despite the best efforts of Neath staff and Swansea staff, Swansea magistrates court was ill-equipped to handle the additional work and the delivery of local justice—indeed, it was pushed to the tipping point of being unworkable. Although I have described extraordinary circumstances, the proposal to move services from Neath to Swansea will make such events the norm.

To conclude, the situation I have described highlights the fact that Her Majesty’s Courts and Tribunals Service has no contingency plans for such scenarios, and has major problems of organisation and viability, making both the decision about Neath and the refusal to countenance the alternative of moving Neath magistrates into the county court very short-sighted and damaging indeed. If Neath and Port Talbot court is merged with Swansea magistrates court, public money will be wasted. That is unacceptable at a time of Government cuts everywhere. I therefore urge the Secretary of State to reverse his decision—I hope that the Minister will take this message back to him—and transfer Neath and Port Talbot magistrates court to the local county court.

Local justice should be carried out by local people in a local venue. That is a fundamental principle of our justice system. Should the Secretary of State push ahead regardless, he will be responsible for the erosion of local justice. I put it to the Minister and to the Secretary of State that Neath is an exception in the list of countrywide magistrates court closures because there is an alternative solution that will save money for the overall court service. I strongly urge the Government to change their mind and allow common sense to prevail.