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

Imran Hussain Excerpts

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

[Imran Hussain (Bradford East) (Lab)]

I draw hon. Members’ attention to my entry in the Register of Members’ Financial Interests, and I start by acknowledging some of the excellent contributions from Members across the House. My hon. Friend the Member for Bristol West (Thangam Debbonaire) passionately made a plea, and a very important point, on the impact on some of the most deprived and how we should always mitigate that. The hon. Member for Bromley and Chislehurst (Robert Neill), the much respected Chair of the Justice Committee, made a very important point about the right to reconsideration, which I will come on to in greater depth.

[Robert Neill]

I am grateful to the hon. Gentleman for giving way, because it gives me the chance to do justice to his hon. Friend the hon. Member for Bolton South East (Yasmin Qureshi), and to remind the House of my entries in the Register of Members’ Financial Interests, which I should have done before. The hon. Lady and I had a minor debate about whether Lord Judge or Lord Marks quoted Joshua Rozenberg. We have now worked out between us that Lord Marks quoted him in a debate on this Bill, but that Lord Judge quoted him in a debate on another occasion—so they both quoted him, and he has been quoted twice here.

[Imran Hussain]

I am grateful to the Chair of the Justice Committee; he has saved me some time, because my hon. Friend the Member for Bolton South East (Yasmin Qureshi) asked me to clarify that matter in my speech.

I also acknowledge the contribution from the hon. Member for Henley (John Howell), who rightly made the point about a consistency in approach across the judiciary and did so very well. The hon. Member for Stoke-on-Trent South (Jack Brereton) spoke passionately about making our justice system the best in the world—which it already is, although we can improve it through further and better technology.

When the Government brought the Prisons and Courts Bill to the House, they declared an intention to reform our courts and judicial system. When that Bill fell because of the Prime Minister’s ill-fated decision to call a general election, they restated their intention for reform and brought this Bill before us. In opening the debate today, the Lord Chancellor spoke about court reform, new and innovative technology, and sweeping modernisation, yet the content of the Bill does not match his words. It is devoid of any substantial change that will encourage greater access to justice, and it wilfully omits—and even seeks to avoid—debate on the huge, pressing concerns present in our courts system. When seen in the wider context of the Government’s austerity agenda and cuts to the justice system, it seems to be less about reform and more about squeezing as much money as possible from the courts.

Even at first glance, this is a minimal, even empty, Bill—a view that is vindicated upon reading it in more detail. It contains provisions to extend the redeployment of judges, to rename some of the judiciary and to allow an increased use of the delegation of judicial functions to non-judicial staff. While all those measures have value, in no way do they capture all that is needed to reform our courts and judiciary. They are measures taken by a Government intent on introducing a drip-feed of legislation in the absence of their parliamentary majority, avoiding scrutiny. Not only have they omitted anything substantial, but they have drafted the Bill to avoid some of the most pressing issues facing the justice system. It makes no mention of measures to address legal aid cuts, court closures, judicial vacancies or the protection of domestic abuse victims. It is here where the real failures of reform lie.

On legal aid cuts, access to justice has been decimated. Spending has fallen by one third from £2.5 billion to £1.6 billion per year, and the number of civil legal aid cases has fallen from more than 500,000 in the year to April 2013 to just under 150,000 in the year to April 2017. Vulnerable people are being left unable to defend themselves in areas as fundamental as housing, employment, immigration and welfare benefits, and unnecessary costs are being created for the taxpayer as cases are going to court that could have been resolved earlier. Further costs for the public purse arising from cuts are causing issues such as poor health, homelessness and debt. When people lack the money or knowledge to enforce their rights, those rights are worth nothing more than the paper they are written on, yet the Bill fails to mention legal aid or the urgent need to reverse the changes imposed by the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

On court closures, the Bill is silent and has closed down discussion on this equally vital issue for people’s access to justice. It fails to address the significant £1 billion-plus courts reform programme that is being pushed through, as the Lord Chancellor stated earlier—but without any proper scrutiny. Since 2010, the courts and tribunals estate has changed significantly, with hundreds of courts having been closed in the name of austerity, and that has hampered people’s ability to access justice.

Many claimants and defendants must now travel miles to access justice and uphold their rights, the Government having closed their local courts, but many lack either the transport or the finances needed to do so and as a result have lost what should be their guaranteed right to justice. The Government argue that their modernisation programme reduces the need for an expansive courts estate, but we are clear that courts reform should increase access to justice, not ignore its erosion, and that any modernisation of our courts system must not be a smokescreen for cuts and closures that will cause long-term damage to access to justice.

As mentioned earlier, the Bill should have done much more to address the appalling situation of victims of domestic violence being subjected to questioning by those who assaulted them. Women’s Aid found that almost one in four of survey respondents had been cross-examined in this way. That unacceptable situation puts the victims of abuse through yet more torment and hardship, for no conceivable reason. It is cruel and barbaric. Measures to prevent it from happening and protect victims are supported by campaign groups on women’s rights and domestic violence, including Women’s Aid, but yet again such measures are absent from the Bill, despite having been in the Prisons and Courts Bill. There is no excuse for the Government’s not having included such measures in the Bill: that should shame them. I hope they can explain when such measures will be introduced to rectify the situation.

Where there is change, it is change that the Government have failed to impose with sufficient protection, and it is here that we will seek to amend the Bill. On a point of clarification, I should say that my hon. Friend the Member for Bolton South East did not mean to say earlier that we opposed the Bill: we will be abstaining today and tabling amendments in Committee. We are determined to deliver change and reform to the courts and judiciary, even if through the Government’s piecemeal efforts, but we are equally determined that it not be done at the expense of the judiciary, legal protections or judicial independence.

As the Government seek to delegate judicial functions to non-judicial staff, they must be careful of their use; they must not overuse non-judicial staff or use them as substitute judges to fill the significant number of judicial vacancies, which have risen to critical levels on their watch. Judges must absolutely remain at the top of their hierarchy in the courts, and their position must not be undermined by non-judicial staff assuming more and more of their functions. Granting further powers to non-judicial staff not only risks undermining the judiciary, but runs the even more dangerous risk of delegating serious judicial functions to unqualified staff.

It is important for the Bill to contain provisions that prevent excessive delegation, protect the reputation of the judiciary, and protect claimants, prosecutors and defendants from unqualified decisions. The Government ceded amendments to impose in primary legislation some restrictions on the type of judicial functions that authorised staff can discharge, but we need a strong further commitment; I hope that the Lord Chancellor and the Minister will strengthen their stance in that regard.

There are also insufficient protections for the expertise of our judiciary. Those would be provided through the imposition of a minimum standard on staff to whom decisions are delegated. The Government argue that authorised staff will not be making substantial decisions, but in his review of efficiency in criminal proceedings Sir Brian Leveson states that even non-contested elements of cases require experience, and Lord Briggs has said in his report that even if authorised staff are legally trained and qualified, they will not benefit from years of judicial experience in delivering the quality of services that is currently delivered by judges.

It is therefore extremely important that the decisions being delegated to authorised staff are appropriate to their experience and qualifications, as the prospect of non-qualified, inexperienced staff carrying out judicial functions is all too real and worrisome. When such staff make decisions, it is also vital for those decisions to be subject to a statutory right to judicial reconsideration.

The Government state in their factsheet that the functions and responsibilities delegated to authorised staff will be uncontested, but it is easy to see how that could shift in the future to authorised staff making contested decisions, particularly in the absence of a clear definition of what delegation can be given. Justice has said that some of the functions anticipated for authorised staff, such as extending time for service and taking pleas, may well give rise to contested matters and have consequences for cases. It is therefore essential for the Government to impose a statutory right to reconsideration for decisions taken by authorised staff—a view supported by the Bar Council. In not imposing such measures when the public have a real and reasonable expectation that significant contested decisions in a court will be made by a judge—or, if not, that there will at least be a right of appeal or review before a judge—the Government are also playing fast and loose with the public’s trust in the judiciary and the rule of law.

The Government may claim that the procedure rule committees could and would impose similar safeguards in any rules that they produce, but that is simply not good enough, given that their amendments fail to offer sufficient guarantees of a right of review. We think that, and so does the Bar Council, which believes that a further amendment is necessary to abate its concern that the Government could exert pressure on the PRCs to reduce the right of reconsideration to increase the turnover of cases and clear the backlog. We are adamant that any backlog must not be cleared through the removal of a fundamental legal right of reconsideration.

Let me end by confirming that we will abstain today, but look forward to the Government’s seriously considering our amendments in Committee. The Lord Chancellor opened the debate in a spirit of collaboration. I assure him that all our amendments are very reasonable, and I am sure that he is an amiable chap who will view them in the same light. If the Government want to deliver a worthwhile Bill, they must listen to these arguments, not throw them aside. They must consider them in Committee before returning the Bill to the House.

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

Imran Hussain Excerpts

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

[Imran Hussain (Bradford East) (Lab)]

I, too, thank all hon. Members who have participated in the proceedings on the Bill today and throughout its passage for the considered and learned contributions they have made. I also thank the Public Bill Office, as well as organisations such as the Law Society, the Bar Council and Justice for the expertise and support that they have provided throughout these proceedings.

From the outset, we have made clear our reservations about the measures contained in the Bill: the fact that there is no proper parliamentary scrutiny of the delegation of powers to non-judicial staff; the fact that there are no minimum qualifications and experience for staff to whom powers are delegated; and the fact that there is no statutory right to reconsideration by a judge of the decisions made by authorised staff. We have been clear that we are not opposed to the principle of reform and change to our courts system. However, we cannot support the changes in this Bill without the protections that we, the Bar Council and the Law Society, among other organisations, and legal professionals have called for. Unfortunately, on these matters, we feel that we have been ignored, and therefore we will oppose the Bill on Third Reading today.

Judges hold considerable power in our courts system. They have the power to commit individuals to prison, to detain, to repossess, to grant injunctions and to issue search orders, among many others, and it takes judges years to develop the experience and qualifications necessary to wield these powers. That is why we should not take the handling of powers given to them lightly, yet that is precisely what the Government are doing in this Bill. They are passing powers currently exercised by the judiciary to authorised court staff and, most crucially, they are doing so without sufficient scrutiny. The delegation of powers exercised by the procedure rule committees will be done under delegated legislation, with no more safeguards than using a motion under the negative procedure. This is not simply a procedural matter, as the Government have stated today, but one that has the potential to change the nature of our justice system.

Under the Bill, authorised staff will find themselves able to wield considerable power. Although some decisions might seem insignificant, no court decision is small or inconsequential. The smallest decision’s implications can reach far beyond the here and now, well into the advanced stages of a case. We can easily see authorised staff making decisions that are contested because the procedure rule committees, not Parliament, are granting them the power and functions. The Government should have accepted our amendment today to require that when statutory instruments delegating judicial functions to authorised persons are introduced, they are subject to the affirmative procedure, allowing Parliament the necessary scrutiny, but they chose not to do so.

The lack of scrutiny of delegated powers and functions is even more worrying considering the lack of qualifications and experience that the Bill requires to wield them. We rightly expect a minimum standard of our judges, and so do the public. We expect that decisions in our courts are made by those with experience and the necessary qualifications, which is why we have restrictions and a thorough vetting process for those who wish to become members of our judiciary. Justices of the peace—magistrates who do not hold a legal qualification—nevertheless have considerable life experience and are still advised by trained, experienced and qualified legal staff. The Government, however, have imposed none of these requirements of experience and qualification on authorised staff.

In the Public Bill Committee in the Lords, the Minister responsible stated that the minimum standards we sought to impose then, and sought to impose in the Public Bill Committee in this House and again earlier today, would be more restrictive than those that are currently imposed on people providing legal advice in magistrates and family courts. However, that is no excuse and there is no reason why, when authorised staff are making decisions that were previously made by trained and experienced judges, we should not be upholding a higher standard. The Government counter that the decisions being made by authorised staff will be limited and that they will not be contested, but they cannot give that guarantee here today, for even the most basic decisions—extending time for service and taking pleas—may give rise to contention.

Even if we were to provide tight restrictions in the Bill for decisions that were delegated to ensure that they were not contested, that would not alter the fact that even non-contested elements of cases require experience—a view supported by Sir Brian Leveson in his review of the efficiency of criminal proceedings. Furthermore, if staff were legally trained and qualified, they would still be without the benefit of the experience that our judges hold through their many years of service in our legal system. That is why experience is just as crucial here as qualifications, as shown by our amendments and by the support that they received from the Bar Council. There was no reason why the Government could not accept the amendments on this issue, and no reason for them not to hold authorised staff to a higher standard when they are granted the power to make decisions. Clearly, however, the Government thought otherwise of the Bar Council’s expertise.

Our final point is that the Bill fails to provide sufficient safeguards for the decisions that are made by authorised staff, with no statutory right to judicial reconsideration. Clearly, the Government have not taken heed of the warning to be vigilant when judicial powers are being exercised by non-members of the judiciary. The explanations that they have provided in their factsheets—that delegated decisions will not be contested—are insufficient, as are the safeguards provided by the procedure rule committees, which are too open to pressure to reduce the right to reconsideration to ease pressures and backlogs in the courts.

Any legal decision made in our courts must be open to review and appeal. It is a fundamental principle of the rule of law, and the decisions made by authorised staff should be no different, yet the Bill does not uphold that spirit by failing to make available a statutory right to reconsideration. In failing to provide that statutory right, the Government have undermined the expectation of the public that legal decisions will be made by a judge or can be reviewed by a judge, and they have undermined our courts and judicial system in the process.

The Bill is a poor replacement for what should have been a thorough Bill filled with real courts reform. We are disappointed that the Government have failed to take up the baton of reform and to change their punitive legal aid cuts, which have left thousands unable to exercise their right to access to justice, created barren legal aid deserts and allowed legal rights to degrade to the point where they are no longer worth the paper they are written on. They have failed to change course on a courts closure programme that forces people to travel miles, at great cost and difficulty, to get to their closest courts and uphold their rights, and they have failed to address the urgent need for protection for domestic violence victims being cross-examined and questioned in the family courts by the very same people who subjected them to the abuse.

[Keith Vaz (Leicester East) (Lab)]

My hon. Friend is making a powerful speech, and I agree with everything he has said. There is one other aspect that I am sure he as a constituency MP, like me and others, has faced, which is the delays experienced by our constituents in the immigration tribunal, some having to wait up to two years for a decision on whether they can bring spouses into the country. Does he agree that the Government have failed to act to clear the backlog?

[Imran Hussain]

My right hon. Friend is a distinguished parliamentarian and, as ever, makes a really important point. It is not within the remit of the Bill—one of the problems with the Bill is that its narrow scope prevents important issues such as the one he raises from being discussed—but I absolutely agree with him.

The Bill is a shadow of what it could and should have been and fails to provide protections and safeguards on the changes the Government have introduced. It is on these grounds—the lack of protections for courts, judges and people seeking justice—that we will oppose the Bill today.

[Robert Neill]

It is a pleasure to follow the hon. Member for Bradford East (Imran Hussain). We have had a constructive and civilised debate on both sides. I do not agree with all his conclusions, but none the less it has been a good debate. I particularly congratulate my hon. and learned Friend the Minister on the stellar way in which she has taken the Bill through all its stages. I am sure that it will not be the last time she does that.

I support the Bill. I would have liked a bigger Bill, and I would like not to have lost the Prisons and Courts Bill in the 2017 Dissolution, but we are where we are, and this is a valuable step forward. I particularly welcome my hon. and learned Friend’s commitment to introducing further legislation. As she and the House know, this is part of the very important courts modernisation programme, particularly on the civil side, and builds on the work of Lord Briggs of Westbourne. I know that those involved in his review are most anxious that the remaining statutory underpinnings for the updating of procedure rules and other matters be introduced as a matter of urgency, and I urge her to do that as soon as the legislative timetable permits.

I think that the Bill strikes the right balance. I would take issue with the hon. Member for Bradford East over the suggestion that the judges, exercising their oath of office on the procedure rule committees, would allow themselves to be swayed by considerations of convenience or financial matters in deciding upon the appropriate scheme of delegation. There is not a shred of evidence in the history of our modern judiciary to suggest such a thing, and it does a disservice to the judiciary. We should trust the judges.

[Imran Hussain]

I want to make it absolutely clear that—as I am sure the hon. Gentleman, who is Chair of the Justice Committee, will accept—no one in the Opposition is challenging in any way, shape or form the good standing of the judiciary. The point, which has been made time and again, is that certain matters are within the remit of the procedure rule committees, but there are others that this House and the other place should have scrutiny of.

[Robert Neill]

I thank the hon. Gentleman for what he has said, and I entirely accept the intentions behind it. We will have to differ on the question where the line should be drawn between which decisions are appropriate for Parliament to decide and which are appropriate for the judiciary, but I am grateful for the sentiments that he has expressed, which I am sure have reassured us all.

I am happy to proceed on the basis of recent advice from senior judges who have been referred to in the debate and on the basis of what is in the Bill. It will make savings, and at this point perhaps I can put in a plug to the Minister. It might be appropriate, for example, to use that £6 million-plus to restore the funding for the Family Drug and Alcohol Court National Unit. I particularly regret that we have lost some of the emphasis on problem-solving courts following the loss of the Prisons and Courts Bill. Perhaps, given that we now have a unified planning court, we could also consider the Lord Flight’s suggestion in the other place for the establishment of a unified housing court.

Having made those suggestions for what might happen in future, I will end by saying that I welcome the Bill and will support it today.