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.