Oral Answers to Questions

Debate between James Cartlidge and Alex Cunningham

Tuesday 21st March 2023 Commons Chamber

[Alex Cunningham]

While the sector would have liked more, I welcome the £20 billion over 20 years for carbon capture, use and storage in the Budget. Will the Minister now confirm that the Teesside-Humber project will go ahead and how additional clusters will be selected through the track-2 process?

[James Cartlidge]

I pay tribute to the hon. Gentleman for his consistency—he raised this with me on Thursday in my winding-up speech on the Budget debate. As I said then, we will announce further details soon, but I can confirm that I will be meeting the Carbon Capture and Storage Association tomorrow. I look forward to the meeting. This is an incredibly important step forward, because we must remember that carbon capture does not just give us clean energy, but enables heavy industry to decarbonise.

Budget Resolutions and Economic Situation

Debate between James Cartlidge and Alex Cunningham

Thursday 16th March 2023 Commons Chamber

[Alex Cunningham]

I am grateful to the Minister for acknowledging the support for carbon capture and storage, but this must be the start of the investment. We need another wave of investment followed by another wave after that. Are the Government really committed to it?

[James Cartlidge]

We have announced £20 billion of funding, which shows the strength of our commitment. We want to decarbonise and continue our rapid progress to net zero, but, along the way, we must maintain energy security, otherwise what have we learned from what has happened in the past 12 months, following the invasion of Ukraine? Our constituents want to know that we will do everything possible to grow the supply of UK domestic energy.

Oral Answers to Questions

Debate between James Cartlidge and Alex Cunningham

Tuesday 24th May 2022 Commons Chamber

[Mr Speaker]

I call the shadow Minister, Alex Cunningham.

[Alex Cunningham (Stockton North) (Lab)]

Let me remind the Minister that 67% of a small number is still a small number. The recent criminal justice joint inspection report into pandemic recovery noted:

“The prospect of waiting years for justice is likely to be traumatising for victims and their families and has a damaging impact on justice itself, making it more likely that victims will drop out of cases”.

We know that the Ministry has secured funding to reduce the backlog to 53,000 cases by 2025, but that number still dwarfs pre-pandemic figures. We all want timely justice for defendants and victims, so can the Minister confirm how long on average people are waiting for their cases to come to court, and what impact the additional funding will have on cutting those waiting times?

[James Cartlidge]

These are, as I said, important points. I am glad the hon. Gentleman recognises that we have committed the funding. Where is it going? For the second year on the trot, we have removed the cap on sitting days in the Crown court, which is probably the single most important aspect of delivering capacity. We are also doing it through legislation.

The hon. Gentleman will be aware that we recently had Royal Assent for the Judicial Review and Courts Act 2022, which is a key measure in helping us to increase magistrates’ sentencing powers, releasing up to 1,700 days in the Crown court. That is 1,700 days when we can hear serious cases—rapes, murders and all the rest—to get through the backlog, because capacity is key. I have always said that it is about taking a joined-up approach. We have the funding in place and we have the legislation. It is such a shame that the Opposition could not support us.

Oral Answers to Questions

Debate between James Cartlidge and Alex Cunningham

Tuesday 14th December 2021 Commons Chamber

[James Cartlidge]

The hon. Gentleman speaks with great passion on this matter and I do understand where he is coming from, but that is precisely why we have put in place £46 million of wraparound support over three years for women leaving prison or serving community sentences, to address some of the root causes, such as accommodation, substance misuse, education, training and employment, financial management and family relationships.

[Alex Cunningham (Stockton North) (Lab)]

An estimated 17,000 children are affected by maternal imprisonment every year, yet the sentencing guidelines are designed to ensure that judges and magistrates consider sole or primary carer status as a mitigating factor, and research by Crest Advisory suggests that awareness and application of these guidelines is low. We recognise that the number of women in prison has fallen in recent times, but with the majority of women serving short sentences for non-violent offences, what will the Minister do to cut these numbers even more by ensuring that the rights of the child are explicitly considered in every case where a primary carer is sentenced to custody?

[James Cartlidge]

First, may I put on record that I am sad that the hon. Gentleman is standing down at the next general election? He has been very constructive in our engagements to date on these important matters.

The care of children and other dependants and the impact of the loss of a parent or carer are well-established mitigating factors in sentencing. Sentencing guidelines issued by the independent Sentencing Council include as a specific mitigating factor being the

“sole or primary carer for dependent relatives”

and are clear that the court can consider the effect of the sentence on the health of the offender and the unborn child. The case law in this area, particularly R v. Petherick, makes clear that the court must perform a balancing exercise between the legitimate aims to be served by sentencing and the effect the sentence has on the family life of others, especially children.

Judicial Review and Courts Bill (Tenth sitting)

Debate between James Cartlidge and Alex Cunningham

Thursday 18th November 2021 Public Bill Committees

[James Cartlidge]

To be completely transparent, the purpose of the clause is to allow some very specific mergers to happen. If implemented, there will be an immediate benefit in allowing Kent County Council to progress the merger of its current four areas into one coroner area. Kent is currently unable to achieve this because current legislation does not allow two coroner areas to be merged if the merged area will be less than the area of a local authority. The clause has a very practical justification. We do not see any significant impact in the way the hon. Gentleman describes.

Question put and agreed to.

Clause 41 accordingly ordered to stand part of the Bill.

Clause 42

Abolition of local justice areas

[Alex Cunningham (Stockton North) (Lab)]

I beg to move amendment 96, in clause 42, page 52, line 34, at end insert—

“(7) Before introducing the changes outlined in section (1), the Secretary of State must consult with relevant stakeholders on the impact of the proposals.”.

This amendment would require the government to consult on the abolition of local justice areas before any changes are introduced.

It is a pleasure to serve under your chairmanship, Mr Rosindell. We are now debating chapter 5 of part 2 of the Bill, which covers local justice areas. Before I get into the detail of the amendment, I too have reflected on our attitude and approach to the Bill, and I think the Minister has been slightly unkind in thinking that Opposition Members had some sort of ulterior motive in proposing what we have along the way. I reassure the Minister and the Committee that our entire agenda has been to ensure that anything the Minister proposes is workable and protects people, including the most vulnerable and the elderly—[Interruption.] I am not implying that the right hon. Member for South Holland and The Deepings is elderly, but he has made the point in the past that we need to protect the elderly, and the Opposition also want that. It is important that the Minister understands that we want a more efficient court system as well.

I was also reflecting on what the Minister said this morning when he was trying to justify the growing crisis, particularly in our Crown courts. He tried to claim that, prior to covid, things had improved, in terms of the number of cases before the courts and the efficiency of the system. In fact, in 2010, we had more police, more charges and more cases before the courts. However, the crux of the matter is the actual statistics relating to how efficiently cases were dealt with. In 2010, it took 391 days, on average, for a case to come through the court system, from charge to completion. In 2019, it took 511 days, on average, for a case to pass through the Crown courts, which I think illustrates that, while there were fewer cases, they were taking longer to go through the court system. As my hon. Friend the Member for Hammersmith said, that reflects the huge cuts we have seen to the Ministry of Justice since 2010. Perhaps, had it not been for those cuts, that average would in fact have come down, as there were fewer cases in the system.

Clause 42 will abolish local justice areas. Organisations across the sector have raised a number of potential issues that this would cause, which I am interested to hear the Minister’s thoughts on. I understand it was the Government’s intention that, in place of local justice areas, all magistrates and magistrates courts will be put into one national justice area covering England and Wales, as recommended by Lord Justice Auld’s 2001 review of the criminal justice system, in order to facilitate listing. That proposal is now 20 years old and has not been updated, nor is it supported by additional research in that time, so why would the Government want to rely on that information now?

I am aware of Sir Brian Leveson’s 2015 review of the efficiency of criminal proceedings in England and Wales, in which he supported further steps to unify the criminal courts, although he did not mention anything about abolishing local justice areas. The Government’s explanatory notes to the Bill state that the proposal will

“provide the courts with the freedom and flexibility to manage their caseloads more effectively and ensure that cases are dealt with sooner and in more convenient places.”

More convenient for whom? There is a long-held principle in this country whereby justice is expected to be done for a local community by members of that local community.

I recall my visits earlier this year to Hartlepool, where residents feel strongly that they should have a local court to dispense justice in their own town. Indeed, during the by-election Conservatives promised local residents that they would restore local services that had been cut. Just a few weeks later in a written answer to me, the Minister’s predecessor confirmed that they would not even consider reopening the magistrates court that had been closed by his Government in 2017. Local residents were extremely disappointed and felt cheated. Will the Minister reconsider opening the Hartlepool court to help reduce the backlog across Teesside and beyond—local justice areas or not?

The Opposition are worried about the impact of a curtailment of local justice, which is proposed in the Bill. Transform Justice explains:

“Magistrates are representatives of the people and must have a connection to the area in which they sit. An applicant to the magistracy must currently live or work in their local justice area, so they understand the area, its crime trends and its people. All magistrates are members of a bench made up of other magistrates local to that area. The abolition of local justice areas is likely to lead to a diminution of local justice, including a weakening of the links benches currently have with local criminal justice agencies.”

How does the Minister suggest we maintain this local community link? Is he content for magistrates to be parachuted into local courts from across the country or for cases to be listed who knows how many miles away from where defendants, victims and witnesses live?

Transport Justice raised the issue that the proposals would diminish the independence of the magistracy. It says:

“Magistrates have historically retained an independence from the paid judiciary and governed themselves through democratic processes. They have managed their own ongoing training and disciplinary processes. All leadership roles have been subject to democratic election by peers.”

While the Government’s proposals are scant on detail, it seems that these democratically elected posts will be abolished and that the functions carried out voluntarily by the magistrates will be taken over by court staff and paid judges. Have they not got enough to do? Do the Government foresee that leading to a diminishment of the magistracy’s independence? Will this hand over some of their responsibilities to the senior judiciary? Transform Justice believes:

“Given magistrates’ status as members of the community and ‘representatives of the people’, and their expertise in management, this is not appropriate.”

I worry that the role of magistrates as dispensers of justice from the community will be lost, with all the benefit that that entails.

Why has the proposal been changed slightly since the Prisons and Courts Bill of 2016-17? Under that Bill, which fell with the announcement of the 2017 general election, the Government had exhaustively set out consequential modifications and repeals in a schedule. Under this Bill, the Lord Chancellor would be given a power, exercisable by regulations, to

“make consequential or supplementary provision in relation to the abolition of local justice areas.”

That includes the power to amend, repeal or revoke provision made by or under Acts of Parliament. This is another Henry VIII clause.

On Tuesday, the Minister smiled time and again when I talked of a Government power grab—I think he is probably smiling behind his mask again—and they are at it again. This measure has an impact on witnesses, defendants and victims, of course, as well as the families of all those people. Regulations that amend or repeal any Act of Parliament would remain subject to the affirmative procedure. Otherwise, regulations are made under the negative procedure and do not require prior parliamentary approval. Will the Minister explain why this change was made? Surely it removes helpful accountability and scrutiny mechanisms.

--- Later in debate ---

[James Cartlidge]

I appreciate the various questions from the hon. Gentleman. The key point in his amendment is consultation. Specifically, the amendment proposes to set out in primary legislation a requirement for the Government to consult with relevant stakeholders on the abolition of local justice areas before any changes are introduced.

The hon. Gentleman asked how I feel about consultation. To be clear, on Monday I held a meeting to which I invited all MPs who are or have been magistrates to talk about elements of the Bill. I am pleased to say that a group of colleagues did come—unfortunately, from only one party, but MPs from all parties were invited. Of course, those who did not attend will have had a very good reason. The point that I am making is that I have personally engaged with MPs who are magistrates, or were until they were elected. It was a very interesting conversation. I note that, just as I talk about MPs who are or have been magistrates, my parliamentary private secretary, my hon. Friend the hon. Member for Hertford and Stortford, has entered the Committee Room, and she is of course a magistrate herself.

It is fair of the hon. Member for Stockton North to raise the point of consultation, because of course magistrates are a very important part of the voluntary judiciary, we might say. I recognise the herculean task that they faced to deal with the backlog that arose in the pandemic. The position of the magistrates courts is far more up to speed than it was, although further work needs to be done, which is why the Bill contains several measures to assist with that.

Clause 42 will create a more flexible and unified criminal court by removing local justice areas, which currently restrict work and magistrates from being moved easily between courts. It will also provide the opportunity to improve and enhance the leadership structures of the magistracy. The removal of local justice areas will mean that the current inflexible arrangements for the organisation of magistrates and magistrates courts’ business will be removed from primary legislation. The detail of such arrangements will instead be non-statutory, by way of a protocol to help to ensure greater flexibility and close alignment with the Crown court arrangements. It will mean that arrangements that are specific to local areas and better suited to local needs will be discussed and agreed with the relevant criminal justice and local authority partnerships, in effect moving away from the statutory model to the one that operates in a Crown court.

Our hope is that that leads to much better working between the Crown and magistrates. I am sure that all colleagues recognise that that relationship is absolutely fundamental to the criminal justice system. I said earlier that the common thread in the Bill was streamlining. For example, clause 11 will see more cases remitted from the Crown court to the magistrates court, freeing up—by our estimate—about 400 days in the Crown court. If people see the big picture of better operational working between Crown court and magistrates, that is another very specific and tangible point within the aim of dealing with the backlog and streamlining justice.

[Alex Cunningham]

The Minister has made a good start to answering my concerns around this particular area with talk of the protocol. However, we all talk about travel-to-work areas, so would he care to comment on travel-to-justice areas and say how far he might expect people to travel for justice when his new protocol is brought into place?

[James Cartlidge]

Just to be clear, ensuring that magistrates are assigned, wherever possible, to what we would call a home court, near to where they live, is and will remain an important consideration under the revised arrangements. However, there are a number of advantages in allowing magistrates to work across courts, including the sharing of best practice, maintaining a wide and varied case load, and developing skills across a range of competencies.

Return to the amendment and consultation, the Lord Chancellor and Lord Chief Justice already have a statutory duty, under section 21 of the Courts Act 2003, to ascertain the views of lay magistrates on matters affecting them. Magistrates will still be assigned to a home court, as I just said, and ensuring that that court is as close to where they live as possible will remain an important consideration under the new arrangements. However, they will have the flexibility to work in other courts, should they wish to do so.

Ultimately, it will be for the Lord Chief Justice and the judiciary to determine what new arrangements are to be put in place and to what extent they will differ, if at all, from the current ones. Such changes have always been made in consultation with local criminal justice partners, including magistrates, and that will continue to be the case.

Therefore, I hope that the hon. Gentleman is reassured that magistrates and other relevant stakeholders will be fully consulted as any proposals are developed, to ensure that local business needs are met, and I urge him to withdraw his amendment.

[Alex Cunningham]

I can be brief. The Minister talked about the protocol and the role of the senior judiciary in determining guidance, perhaps, for decision making in this particular arena. My concern remains around the potential impact on victims, witnesses and defendants, who may well be required to travel greater distances in order to access justice.

However, on the basis of what the Minister has said, I am content to withdraw the amendment, although I hope that he continues to consider travel distances for people involved in the justice system, victims in particular. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

[James Cartlidge]

It is a very fair question on journey times. Ironically, it has to be said, it comes after a debate about the benefits of remote hearings and so on, although admittedly that was in the context of the coronial courts. However, in terms of local justice, travel needs for victims and so on, it was a perfectly good point.

On the contrary, however, with these measures, greater flexibility in the allocation of resources will increase the opportunities for ensuring that cases are dealt with fairly and efficiently in the most appropriate location for the individual case. This may be at the location closest to the victim and witnesses, or indeed at a location far enough away from a specific area that causes fear for a victim or witness. Basically, there is more flexibility because we move out of, as it were, the statutory defined geography. That is very much our intention.

Clause 42 will help to create a more unified and flexible court system, by removing the requirement that magistrates court systems in England and Wales are divided into separate local justice areas. The boundaries between local justice areas currently restrict both work and magistrates themselves from being moved easily between courts in different local justice areas. Changes to the court estate and transport infrastructure mean that the court within a local justice area may no longer be the nearest or easiest court for court users to travel to. Consequently, cases are not always heard at the earliest opportunity or at the most convenient court location. Court staff are frustrated that they cannot cut waiting times for court users by transferring cases to a court in a nearby local justice area with an earlier listing date. Removing those restrictions will give courts greater flexibility to ensure that cases are dealt with quickly and in the most appropriate location.

This provision will enable the creation of a single magistracy and a new set of principles for deciding how work and magistrates are allocated. Proximity between the courthouse and the offence will remain the primary consideration, but it will allow the taking into account of other factors, such as convenience for victims and witnesses or the relative speed at which a trial can be arranged. That is of course very important in the current context, in which we have to be frank and open about the challenge of dealing with the backlog. Magistrates will still be assigned to a home court, and ensuring that that is as close to where they live as possible will remain an important consideration. However, they will have the flexibility to sit in other courts should they wish to and should the need arise.

This provision will require putting in place the replacement organisation and leadership arrangements and a great number of minor consequential amendments to legislation to remove and replace references to “local justice areas”. The amendments will be made by an affirmative resolution statutory instrument where any primary legislation is to be amended, so Parliament will be able to scrutinise the legislation. The removal of local justice areas will provide the courts with the freedom and flexibility to manage their case loads more effectively, and will ensure that cases are dealt with efficiently in the most appropriate location, reducing delays and inconvenience for court users.

Judicial Review and Courts Bill (Eighth sitting)

Debate between James Cartlidge and Alex Cunningham

Committee stage
Tuesday 16th November 2021 Public Bill Committees

[Alex Cunningham]

It is a pleasure to serve under your chairmanship, Sir Mark.

As I mentioned in my previous speech, clause 18 provides for the creation of online procedure rules. The online procedure rules must require that proceedings of a kind specified in regulations made by the Lord Chancellor, per clause 19(1), are to be initiated by electronic means. Paragraphs (l)(b) and 1(c) of clause 18 allow for the online procedure rules to either authorise or require that specified proceedings are conducted, progressed and disposed of by electronic means, and that parties to the proceedings participate by electronic means.

The Courts and Tribunals (Online Procedure) Bill provided participants with a choice to initiate, conduct, progress or participate in proceedings by non-electronic means. That choice is retained for those without legal representation in relation to the initiation, conduct, progression or participation other than by a hearing. However, a person is currently unable to choose to participate in hearings by electronic means, and may do so only at the direction of the court or tribunal.

As JUSTICE explain:

“A myriad of issues, including health conditions and disabilities, may make it difficult for individuals to follow or engage with a virtual hearing and those same issues may make it difficult for them to explain to the court or tribunal why they would prefer to attend in person.”

Amendment 59 would allow a person to choose to participate in a hearing by non-electronic means if that is appropriate for them. Amendment 90 would ensure that if someone had a physical or mental condition that would prevent them from understanding or effectively participating in online proceedings, the online procedure rules must allow them to participate by non-electronic means.

Amendments 59 and 90 share the same aim, and together their impact would be to ensure that court users who may have vulnerabilities or particular conditions are able to access the type of hearing most appropriate for them, which research suggests may often be in-person hearings. I am sure that the Minister agrees with me that as we progress with changes to court processes, we must not negatively affect access to justice for any group of court users with particular needs. I would welcome his thoughts on how we can ensure that does not happen.

[The Parliamentary Under-Secretary of State for Justice (James Cartlidge)]

It is good to have you back in the Chair, Sir Mark. I hope that we will make diligent progress this afternoon.

As the hon. Member for Stockton North said, both amendments would provide options for a person to participate in a hearing via non-electronic means. Amendment 59 would give those participating the option, while amendment 90 would require someone who had a physical or mental condition preventing them from understanding or effectively participating in online proceedings to participate in a hearing via non-electronic means.

The online procedure rule committee will make simple and consistent rules that provide simple processes that can be followed by the average court user. We have seen an increase in online proceedings in response to the pandemic—I will say more on that when speaking to clause stand part. Her Majesty’s Courts and Tribunals Service is moving towards digital services being the default, but we absolutely understand that not everyone will choose to participate in a hearing by electronic means.

I will emphasise specific clauses. In many ways, it is a disappointment that my right hon. Friend the Member for South Holland and The Deepings is not here, because he would have been greatly reassured by the clauses. He has obviously struggled to get here for an in-person sitting—perhaps we could have held it online, but unfortunately that option is not available at the minute, which is a shame for my right hon. Friend. I have no doubt that he has a good reason for being absent.

Clause 18(6) states:

“Where Online Procedure Rules require a person—

(a) to initiate, conduct or progress proceedings by electronic means, or

(b) to participate in proceedings, other than a hearing, by electronic means,

Online Procedure Rules must also provide that, if the person is not legally represented, the person may instead choose to do so by non-electronic means.”

The key thing is that the rules reply entirely to civil cases—civil, family and tribunals. Those are the jurisdictions to which those particular rules apply. It is not obvious how there would be a situation where someone who had legal representation would not be able to participate online given that practitioners should, for obvious reasons, be able to participate online.

Furthermore, subsection (7) states:

“Where Online Procedure Rules require a person to participate in a hearing by electronic means, Online Procedure Rules must also provide that a court or tribunal may, on an application or of its own initiative, order or otherwise direct that person, or any other person, to participate by non-electronic means.”

Well—[Interruption.] My right hon. Friend has duly arrived, and I say to him that one of the downsides of physical sittings and in-person hearings is that one is subject to the whims of chronological events, to put it bluntly, and unfortunately he has missed a great bit of the Bill, which I read out not just for him but primarily because it is relevant to the amendments from the hon. Member for Stockton North, the Opposition spokesperson. The Bill shows that where one is represented, one would be able to request a physical or in-person hearing.

There could be a number of reasons why someone would chose to participate in a hearing by a means other than electronic. Her Majesty’s Courts and Tribunals Service provides a support service over the phone as well as more intensive face-to-face support for those who might require it, such as vulnerable users who might not otherwise be able to participate in proceedings effectively or those who are digitally excluded. HMCTS has also awarded a national contract to deliver positive and practical solutions to support users and break down the barrier of digital exclusion across civil, family and tribunal jurisdictions. Through this contract, support will be available in person and remotely through a network of delivery partners who are experienced in supporting users of justice services. As per the specification, the services will be delivered across different channels to ensure that all those who require them can access them. Those channels would include local-centre support in more than 300 physical sites, over-the-phone support, remote video appointments with those who have access but need support in navigating the service, and in-home face-to-face support with necessary equipment. HMCTS has considered forms of support that can be provided to the user throughout their online proceedings.

I recently visited Isleworth Crown court where the citizens advice bureau was actively involved in providing services to witnesses. It is conceivable that the physical roll-out of these support services could be provided on a sub-contracted basis by a range of organisations. The point is that that is precedented and it works to provide effective support on the ground to vulnerable users.

Most importantly, as I have said, the measures in the Bill also ensure that paper form will remain available for citizens participating in proceedings, so an offline option will always be available for those who need it, not least my right hon. Friend the Member for South Holland and The Deepings.

--- Later in debate ---

[James Cartlidge]

Of course—and the needy. They are both important. Given the safeguards in place and the fact that an offline option is already available, I do not think the amendments are necessary. I therefore urge the hon. Member for Stockton North to withdraw them.

[Alex Cunningham]

The theory is all well and good. I hope that, in practice, the service is delivered to the standard the Minister believes is possible. He has had our demands for quality support and flexibility for vulnerable people ringing in his ears for several days now. The right hon. Member for South Holland and The Deepings—who I thought had acquired a red box earlier this afternoon, but it is not quite the right colour—has joined the fray in championing vulnerable people, and I welcome the reassurances he has received from the Minister.

I want to expand slightly and talk a bit about the citizens advice bureaux and the tremendous support they give not only in courts across the country, but to people in my constituency in Stockton. I am interested to know how the services will be designed for the future. The Minister has talked about 300 hubs; he has talked about the CAB and others, as well. How will those services be delivered to ensure that people are properly covered with the necessary support? The comments from the Minister are clear and the theory is clear. We just want to see it in practice. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

[The Chair]

With this it will be convenient to consider that schedule 3 be the Third schedule to the Bill.

--- Later in debate ---

[Alex Cunningham]

There is no doubt that electronic systems have already made a great difference within our Courts and Tribunals Service and I am sure that they will continue to do so in the future. However, as the Minister well knows, it is a case of ensuring that those at the margins—the vulnerable and the excluded—do not lose out in terms of justice as we go forward. Given the crisis in our courts, there is no doubt that we desperately need solutions, and the electronic solutions are part of that process, but again we want to ensure that the support within the system for everybody is correct and that justice is done.

The Minister has talked about various organisations that will be engaged in the process, but we look forward to seeing the system operating—perhaps he and I could go together when it is—to listen to people about its operation and make sure that what we have delivered in this new legislation is practical and that the most vulnerable people are still being looked after.

[James Cartlidge]

When we meet to discuss the single justice procedure—a meeting that I was more than happy to agree to—we can talk about how we can look at things. There will obviously be ongoing reviews. It is important that we get this issue right—by ensuring that it has been through a tender, for example.

[James Cartlidge]

I can absolutely confirm that to my right hon. Friend. At the moment, we are talking about civil cases; he is absolutely right that those people could be witnesses in those, of course.

I stress that the matter would be at the discretion of the courts, without a shadow of a doubt, but I think there will be far more cases of vulnerable witnesses where technology assists the process. The obvious example is section 28 proceedings, in which evidence can be recorded in advance of the actual in-person hearing; they have become a very important part of the justice system. The Secretary of State has set out his desire for them to be rolled out more broadly. In a way, my right hon. Friend makes the point for me: technology in such cases can be of great assistance, and we are applying it to intimidated witnesses as well.

[Alex Cunningham]

The Minister mentioned section 28 proceedings and the recording of evidence. During consideration of the Police, Crime, Sentencing and Courts Bill, the Opposition tabled a number of amendments in that particular area, to expand the use of the process. Given that the new Minister is a fan, will he look at the issue with his colleagues in the Lords to see whether there are ways in which we can expand the service to the benefit of the sorts of people who the right hon. Member for South Holland and The Deepings just spoke about?

[James Cartlidge]

There are two points to make on that. First, the specific point about the Bill’s progress in the Lords is a matter for Lord Wolfson, who is an excellent Minister; I effectively shadow him on the areas for which he is responsible. However, the hon. Gentleman should be assured of the Lord Chancellor’s commitment to section 28 proceedings following his comments in media interviews. There is widespread support for them among the relevant victims’ groups and charities.

Of course, there are practical issues that we need to consider, but, as I have said, there is widespread agreement about this issue. Using such technology can be very important in enabling and assisting vulnerable witnesses.

[Alex Cunningham]

I am in danger of drifting back to the other Bill that I mentioned, but we were also talking about how potential witnesses, in some circumstances, would be interviewed. For example, at the moment they may be interviewed by a non-legal person; in other words, there might not be a legal representative, either for the prosecution or the defence, carrying out the interview in those circumstances. Would the Minister be prepared to look at that?

[James Cartlidge]

With respect, I think that does stray too far into the specifics of the measure. It was a nice try, but I was setting out the principle that technology has assisted access to justice in the context of those who are vulnerable—the sorts of people who we would have in mind in discussing precisely these provisions.

I agree about the importance of in-person proceedings where it matters most. The most obvious example for all of us is that, like my right hon. Friend the Member for South Holland and The Deepings and others on this side of the Committee, I passionately wanted Parliament to return to its normal ways of working at the earliest safe moment, because we could not intervene on each other when we were on a TV screen.

It is not democracy when arguments are not challenged. It gives me a great thrill to take an intervention from the Opposition side that I have to try to answer. That is how we thrash out and debate an argument. It is sub-optimal to have it online and optimal to have it in person, but there will be many aspects of life, and many aspects of legal proceedings, that can be perfectly competently and satisfactorily conducted online.

By maximising those aspects, we maximise the in-person resource for the things that really matter. On the criminal side, that is clearly criminal trials, particularly jury trials in the Crown court. On the civil side, that could be complex cases, such as family cases, that need to be heard in person. By maximising the use of technology, we liberate more of that resource, so it is important to support the measure.

Question put and agreed to.

Clause 18 accordingly ordered to stand part of the Bill.

Schedule 3 agreed to.

Clause 19

“Specified kinds” of proceedings

Question proposed, That the clause stand part of the Bill.

--- Later in debate ---

[Alex Cunningham]

I move the amendment on behalf of the hon. Member for Glasgow North East, who is unable to be here this afternoon.

Clause 21 sets out the membership of the online procedure rule committee and makes other provisions—for the Lord Chancellor to reimburse expenses of members appointed to it, for example. Under the clause as it is currently drafted, the online procedure rule committee would have just six members. Three of them would be judicial appointments made by the Lord Chief Justice and would include the chair of the committee. The other three appointments would be made by the Lord Chancellor and drawn from elsewhere in the legal profession, the lay advice sector and those with professional experience of online portals.

I understand that the number of committee members and the qualifications and experience that they must have can be modified. As the Bill is currently drafted, that would be done by regulations under the negative procedure, although regulations cannot be made until the agreement of the Lord Chief Justice and the Senior President of Tribunals has been secured, and only after consulting other specified members of the senior judiciary. Even though the Bill contains a provision to change the rules governing the committee’s membership, I think the initial set-up as provided for by clause 21 is very unusual for its small size and, as a consequence, the limited amount of experience that would be covered by the committee.

I recall the evidence of Richard Leiper from two weeks ago. I am going to quote him at length because he captures in a few sentences what is wrong with the Government’s proposals. He said:

“The current composition of the committee is a total of 6 people. That is in contrast to the civil procedure rule committee, which has 18 members. The family procedure rule committee has 18 members. To me, given the potential breadth of the rule that could be set by this committee, having one senior judge, a couple of other judges, one practitioner, one layperson and one computer person is simply not enough. That is partly because the scope for the procedures would be trespassing on areas which it is likely that no member of the committee would have any knowledge of.

For example, I have no knowledge at all about family court proceedings—how they begin, how they proceed, or what the interests of the various parties would be. Yet, if there is just one practitioner, who could be a barrister, a solicitor or a legal executive—each of whom have different perspectives on how the system operates, how it impacts on clients, other parties and so forth—there will not be the wealth of knowledge, even with consultation with people who do know, to enable effective online rules. The composition of the committee is my single greatest concern.”––[Official Report, Judicial Review and Courts Public Bill Committee, 2 November 2021; c. 37, Q41.]

That is clear and wise counsel, I would say. The concern that Mr Leiper expressed is shared by many in the sector and, indeed, by the Opposition. I thank the Public Law Project, JUSTICE and the Legal Education Foundation for their expertise and constructive assistance in scrutinising this clause. This set of amendments looks at the membership of the online procedure rule committee, mostly with a view to expanding it to include additional professionals with relevant experience. I would be interested to hear from the Minister in relation to each amendment whether it represents the kind of regulation change that he anticipates may be brought in via the negative procedure.

Amendment 60 would require the Lord Chief Justice to appoint an authorised courts and tribunals staff member to the online procedure rule committee. JUSTICE has recommended that the OPRC should feature an authorised courts and tribunals staff member, as defined in the Courts and Tribunals (Judiciary and Functions of Staff) Act 2018. The effect of that 2018 legislation is to allow individual rule committees to delegate functions that were traditionally judicial in nature to non-judicial court staff.

For example, in the context of the online court, JUSTICE understands from HMCTS that the pilot of legal advisers within that service will allow them to make various procedural determinations, including case progression directions, for defending claims. Given the extent to which procedural functions in online courts are to be delegated to authorised courts and tribunals staff and the concomitant need for those staff to understand and apply relevant procedural rules, would it not be prudent to include their voice in the drafting of the relevant rules? The Opposition agree that that would be a very sensible addition to the OPRC, and I hope the Minister will agree.

Amendment 61 would further expand the membership of the OPRC to include two IT experts, where now it only includes one. As it stands, the Bill places significant responsibility on a lone information technology expert. As the Public Law Project puts it,

“To imply that there is one information technology expert who can be the source of truth for digital procedure is incorrect as there are lively debates in that sphere.”

Limiting the committee to only one information technology expert presents a risk that a particular view of the capability and role of information technology in the justice system will take precedence. We think that expanding the Committee to include a wider range of expertise in information technology and internet portals would be a valuable contribution to ensuring that the online procedure rules are suitably futureproofed.

Amendment 62 would again expand the membership of the OPRC—this time, to include someone with experience representing the views of people who are digitally excluded. Currently, the online procedure rule committee does not include any members who would be able to represent the views of digitally excluded people or have expertise in the specific challenges that digitally excluded people might encounter if they needed to be a party to proceedings under the online procedure.

I spoke about this issue in our debate on clause 18, but I will stress the point again. In making the online procedure rules, it is important that we do not negatively impact access to justice for those with vulnerabilities or conditions, or who are digitally excluded for any reason. I think this would be a most important voice on the committee and I hope that the Minister will agree with me that it would add great value to its work.

Amendment 91 would increase the membership of the online procedure rule committee by requiring the Lord Chancellor to appoint a person with expertise in accessible service design. Again, we believe this would be an extremely valuable perspective to include on the committee.

I know the Minister wants these reforms to have a positive impact on justice; including a professional with experience in accessible service design would ensure that the online procedures can be used by the widest range of persons possible, which is surely an aim that the Government share with us. As I said earlier, I am keen to hear from the Minister on whether his Department has considered the addition of any such members to the Committee. If not, is it something he foresees being introduced under the negative procedure as outlined in the Bill? If the latter is true, I suggest that an easier route would be to include them now in the primary legislation.

Amendment 64 is slightly different. It would require the Lord Chancellor and the Lord Chief Justice to have due regard to the ethnic and gender balance of the online procedure rule committee when making their appointments. I understand that in Committee and on Report in the Courts and Tribunals (Online Procedure) Bill, Lord Beecham tabled an amendment, introducing a requirement that

“The Lord Chancellor must ensure that gender balance is reflected on the Online Procedure Rule Committee.”

Amendment 64 is tabled in that spirit, but goes further, adding that the racial diversity of the committee must also be considered.

JUSTICE’s working party report, “Increasing Judicial Diversity”, found that reducing homogeneity in the legal system is important for both legitimacy and quality of decision making. Ensuring gender balance in the creation of new rules committees would serve as a positive step towards that aspiration. However, the Opposition agree that there is no reason why that should be prioritised any more than racial diversity, especially given the dreadful disparities in the legal profession.

A recent report by the race working group of the Bar Council found that barristers from ethnic minority backgrounds, particularly black and Asian women, face systemic obstacles to building and progressing a sustainable and financially rewarding career at the Bar. Indeed, they found that a black female junior barrister with the same level of experience as a white male junior bills £18,700 a year less on average, and an Asian woman £16,400 less. That is clear evidence that addressing racial diversity within the legal profession must be an urgent priority for the Government. The amendment provides one opportunity to address some of these disparities, and I hope the Minister will take it.

[James Cartlidge]

The amendments in the group all relate to the membership of the new online procedure rule committee. The Bill provides for a committee of six members, of whom three are judicial members appointed by the Lord Chief Justice and three are non-judicial members appointed by the Lord Chancellor. The range of members will ensure that the new committee will have expertise in the law and the provision of lay advice and information technology. That will equip it to produce straightforward, easily understood court rules, which will support the online procedure.

When the committee comes to develop rules for courts and tribunals, it will be able to consult or seek advice from those with relevant qualifications, and create working groups including persons with relevant experience and expertise, such as in service design or representing those who are digitally excluded. That is in line with how existing rule-making committees work.

The committee is specifically designed to be small and agile in its decision making. Adding additional members at the outset will detract from that. Any need for additional expertise to inform the committee’s decision-making process that may become apparent through experience can be addressed through the power in clause 23, which enables the Lord Chancellor to amend clause 21 to change the required membership of the committee. I suggest that a more flexible approach would be preferable to adding the additional members proposed in amendments 60 to 62 and 91.

Amendments 29 and 28 would require the online procedure committee to include a person of experience and with knowledge of the Scottish legal system appointed by the Lord President of the court of session. The OPRC will be responsible for making rules across civil and family courts in England, Wales and the specified tribunals. The vast majority of the committee’s work, certainly at the outset, is likely to concern procedure for online court proceedings in England and Wales for which a dedicated member of the committee specifically with expertise in Scottish law would, with respect, not be so well equipped to contribute.

When the committee comes to develop rules for tribunals, which would currently include Scottish employment tribunals, it will be able to consult or seek advice from those with relevant qualifications, and to create working groups including persons with relevant experience and expertise. This is in line with how existing rule-making committees work. The need for a distinct Scottish contribution in the decision-making committee through membership can be addressed through the power in clause 23, which enables the Lord Chancellor to amend clause 21 to change the required membership of the committee. That is a better solution than requiring a Scottish member at the outset, since work is continuing towards the devolution of tribunals for Scotland.

Amendment 64 would require the Lord Chancellor and the Lord Chief Justice to have due regard to the ethnic and gender balance of the online procedure rule committee when making their appointments. We can all agree that, as the refreshed public appointments diversity action plan states, drawing public appointees from all aspects of the society that they serve

“will improve the quality of our public services overall.”

I do not, however, consider it necessary to include the specific duty embodied in this amendment in the appointment process for this rule committee alone. Compared with the other committees that, like the online procedure rule committee, are covered by the action plan and the governance code for public appointments under the supervision of the Commissioner for Public Appointments, the OPRC is designed to be small and agile to address rules that can be updated quickly, keeping step with technology changes to meet the expectations of 21st century court users.

The OPRC requires a range of expertise to complement new technology and online working. When making appointments to the OPRC, the Lord Chancellor and Lord Chief Justice will follow the standard process in line with the civil procedure rule, family procedure rule and tribunal procedure rule committees.

I hope I have reassured the hon. Gentleman about the proposed membership of the committee, and that the Bill has built in significant flexibility should its expertise not be sufficient. I therefore urge the hon. Gentleman to withdraw the amendment.

--- Later in debate ---

[Alex Cunningham]

I beg to move amendment 63, in clause 21, page 38, line 14, at end insert—

“(6A) Before appointing a person under subsection 3(c) the Lord Chief Justice must—

(a) consult the Lord Chancellor, and

(b) obtain the agreement of the Senior President of Tribunals.”

This amendment makes the appointment of the authorised court and tribunal staff member to the Online Procedure Rules Committee subject to consultation with the Lord Chancellor and agreement of the Senior President of Tribunals, mirroring the current requirements in relation to judicial appointments to the Committee.

I will be briefer in dealing with this amendment than I have been on anything else. This straightforward amendment relates to amendment 60, and would make

“the appointment of the authorised court and tribunal staff member to the Online Procedure Rules Committee subject to consultation with the Lord Chancellor and agreement of the Senior President of Tribunals, mirroring the current requirements in relation to judicial appointments to the Committee.”

As I said in my previous speech, the Courts and Tribunals (Judiciary and Functions of Staff) Act 2018 allows individual rule committees to delegate functions that were traditionally judicial in nature to non-judicial court staff. Therefore, we think it would be appropriate to appoint this member in line with the process for the members appointed under subsection 3(b) of clause 21.

[James Cartlidge]

This amendment would make

“the appointment of the authorised court and tribunal staff member to the Online Procedure Rules Committee subject to consultation with the Lord Chancellor and agreement of the Senior President of Tribunals, mirroring the current requirements in relation to judicial appointments to the Committee.”

As I said when we discussed the previous group of amendments, the committee is to be comprised of six members: three are judicial members, to be appointed by the Lord Chief Justice, and three are non-judicial members, to be appointed by the Lord Chancellor. To alter the composition of the OPRC, the Lord Chancellor is required to consult the Lord Chief Justice and the Senior President of Tribunals. That requirement is in line with the existing rule-making committees. The reason for including this power is that, as the scope of the online procedure rules increases, it may be necessary to expand the committee’s membership or widen its expertise in order to assist in making rules for different online procedures. I therefore urge the hon. Member to withdraw his amendment.

[Alex Cunningham]

I am pleased to hear the Minister talk about the possibility of the committee being expanded in future, and the process for doing so. That is heartening: it is certainly something that needs to be looked at. In those circumstances, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

[James Cartlidge]

To recap, clause 21 provides for the membership of the online procedure rules committee and its powers. It also includes the procedure for appointing members. The committee is to comprise six members, of whom three are to be appointed by the Lord Chief Justice: one person who is a judge of the senior courts of England and Wales, and two persons, each of whom is either a judge of the senior courts of England and Wales; a circuit judge or district judge; a judge of the first-tier tribunal; a judge of the upper tribunal; an employment judge; or a judge of the employment appeal tribunal—a fair selection. The Lord Chancellor is to appoint the committee’s non-judicial members: one person who is a barrister in England and Wales, a solicitor of the senior courts of England and Wales, or a legal executive; one person who has experience in, and knowledge of, the lay advice sector; and one person who has experience in, and knowledge of, information technology related to end users’ experience of internet portals.

Before appointing a person, the Lord Chief Justice must consult the Lord Chancellor, and must also consult the Senior President of Tribunals or—in the case of a person to be a tribunal judge member—secure the agreement of the Senior President of Tribunals. Similarly, the Lord Chancellor must consult the Lord Chief Justice and the Senior President of Tribunals and, in the case of a practitioner member, must also consult the relevant authorised body. The range of members for which this clause provides will ensure that the new rule committee will have expertise in the law, the provision of lay advice, and information technology. This will help equip it to produce straightforward, easily understood court rules, which will support the online procedure, which, as far as possible, will be embedded in the online software.

Question put and agreed to.

Clause 21 accordingly ordered to stand part of the Bill.

Clause 22

Powers of the Online Procedure Rule Committee

Question proposed, That the clause stand part of the Bill.

--- Later in debate ---

[James Cartlidge]

Clause 22 provides that the online procedure rules committee has the same rule-making powers that are available to the civil, family and tribunal rule committees. It will therefore have the full range of powers appropriate to any proceedings for which it may make online procedure rules. The committee may also apply any other rules of court. That is to ensure that any rule that is included in the current civil, family and tribunal rules and other rules of court may be used and modified as appropriate to ensure that the online procedure may operate as intended. It does not, however, enable the committee to make procedure rules for procedures that are not subject to the rule-making powers specified in the clause. For example, it may not make online Court of Protection rules because the clause does not give it power to do so.

Question put and agreed to.

Clause 22 accordingly ordered to stand part of the Bill.

Clause 23

Power to change certain requirements relating to the Committee

[Alex Cunningham]

I beg to move amendment 92, in clause 23, page 41, line 14, leave out subsection (5) and insert—

‘(5) Regulations under this section are subject to affirmative resolution procedure (see section 45(3)).”

This amendment would make regulations under clause 23 subject to the affirmative resolution procedure.

--- Later in debate ---

[Alex Cunningham]

I am grateful to the Minister for his response. As I outlined at the beginning of my speech, this is a huge power grab by the Executive.

[James Cartlidge]

indicated dissent.

[Alex Cunningham]

The Minister laughs and shakes his head, but it is a huge power grab by the Executive, which is all the more reason why we need to ensure that there are protections in the Bill for people within the system. I also say to the Minister that, as I pointed out in my speech, there is a lack of consistency in the approach in different parts of the Bill. I suspect that the Government may well have to repeat some of the work that they have done on the online procedure rule committee, so they might have to correct that on Report. I will leave the Government to do that.

In trying to persuade the Minister that we should apply the affirmative procedure in a much greater way, I do not believe that, as he says, there is sufficient scrutiny by Parliament through the processes that he proposes in the Bill. Far greater powers are passed back to Parliament with the alternative procedure, but I have listened to what the Minister has said and can possibly look forward to amendments on Report. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

[James Cartlidge]

To recap, clause 23 enables the Lord Chancellor to alter the composition of the online procedure rules committee in the future, but only with the concurrence of the Lord Chief Justice and the Senior President of Tribunals. The Lord Chancellor must also consult the head of civil justice, who is Sir Geoffrey Vos, the deputy head of civil justice, who is currently Lord Justice Birss, and the President of the Family Division. Any changes are made by negative resolution.

This is an important provision, because it allows the committee to change, vary or extend its membership as circumstances change and online provisions develop. It also reflects the powers available to existing rule committees. This power is useful, in that it will allow the committee to extend its membership as circumstances change. The power is precedented in other rule committees— for example, it has been used to ensure that the Civil Procedure Rule Committee and the Family Procedure Rule Committee include a judicial member with particular experience of proceedings in Wales. I recommend that the clause stand part of the Bill.

--- Later in debate ---

[Alex Cunningham]

Briefly, and with reference to what I said before, we believe that the clause leads to a democratic deficit. It is a power grab by the Executive, but we look forward to seeing how it progresses at later stages of the Bill and in the other place.

Question put and agreed to.

Clause 23 accordingly ordered to stand part of the Bill.

Clause 24

Process for making Online Procedure Rules

Question proposed, That the clause stand part of the Bill.

[James Cartlidge]

Clause 24 outlines the process for making online procedure rules, which mirrors the process by which civil procedure rules, family procedure rules and tribunal procedure rules are made. The clause requires the committee to hold a meeting before making or amending rules, unless it is inexpedient to do so, and to consult any persons that it considers appropriate. Before being submitted to the Lord Chancellor for approval, rules drafted by the committee must be signed by at least three members, with one of the signatories being the Chair, or by a majority of members. The Lord Chancellor may disallow any rules, but must give written reasons for doing so.

This safeguard reflects similar powers available to the Lord Chancellor in relation to civil, family and tribunal rules. The powers have never had to be used, but it is none the less right that an equivalent power is available in relation to the online procedure rules. It would be interesting to know whether the hon. Member for Stockton North would still think they are a power grab if they are never used. I recommend that the clause stand part of the Bill.

Question put and agreed to.

Clause 24 accordingly ordered to stand part of the Bill.

Clause 25

Power to require Online Procedure Rules to be made

Question proposed, That the clause stand part of the Bill.

Judicial Review and Courts Bill (Seventh sitting)

Debate between James Cartlidge and Alex Cunningham

Committee stage
Tuesday 16th November 2021 Public Bill Committees

[Alex Cunningham]

Yes, computers may be learning tools for children, but they are also their game world. Those of us who have families or grandchildren know that to be very much the case. It is so easy to press buttons and tick boxes, and I am really concerned, as is my hon. Friend, that young people may well think, “Let’s take the easy way out. Let’s just tick the box, and let’s get this over and done with. Then I can forget about it.” Unfortunately, they cannot forget about it, because they can end up with a criminal record, even if they are not guilty of the offence of which they have been accused. That is all the more reason why we need to review this clause in some considerable detail.

Of course, the issues applying to children under 16 do not apply to 17-year-old children. Furthermore, article 40(2)(b) of the convention on the rights of the child sets as a minimum standard the right that a child hearing be held in the presence of legal or other appropriate assistance and, unless not in the best interests of the child, his or her parents or legal guardian. In addition, the UN Committee on the Rights of the Child recommends

“that States parties explicitly legislate for the maximum possible involvement of parents or legal guardians in the proceedings”.

This clause does the direct opposite. We do not believe that it makes adequate provision to protect the rights of children in the justice system. It is not appropriate that the important safeguards that exist for children should be watered down in that way through the provisions in clause 8. As such, we will oppose the inclusion of the clause in the Bill.

[James Cartlidge]

I appreciate where the hon. Members for Stockton North and for Lewisham East are coming from, in the sense that of course we have to be careful in matters involving children. It is fair to point out, however, that these are not revolutionary changes of procedure. In my view, there will certainly be cases where, particularly for vulnerable people, the online environment is more suitable in many ways, because after all they will have legal representation.

I will explain clearly exactly what the clause does, what the safeguards are and where the discretion lies, to try to ameliorate some of the concerns. At the moment, there would be the plea before venue and allocation decision procedures for children of 10 to 17-years-old, which can be completed only at a court hearing. The Bill enables those procedures to be completed in writing online via the common platform without the need for a hearing, as is clear.

On the safeguards, defendants will need a legal representative to proceed with online plea and allocation. That is an important safeguard that will remain firmly in place due to the accessibility restrictions created by the common platform and the stipulations in secondary legislation under the criminal procedure rules. Courts will need to provide information explaining the written procedure, the choices available to defendants and the effects of those choices. If a defendant fails to engage with an invitation to proceed in writing or online, the court will default back to a traditional first hearing. Clause 13, which we will come to, applies with regards to requiring and enabling the court to ascertain whether the parent or guardian is aware, and if they are not, to provide them with the relevant information.

Finally, in terms of discretion, it is the defendant’s discretion to proceed with online indication of plea and allocation in writing or online, so they can still have a traditional hearing. It is also the court’s discretion to withhold or disapply online indication of plea and allocation in writing, if it thinks that is appropriate in the circumstances. There are significant safeguards in place.

It means that we will have greater consistency, but I accept what the hon. Member for Stockton North is saying, which is why we have been keen throughout the debate on these clauses to stress the important safeguards and discretions that exist. I hope that, on that basis, hon. Members can support the clause.

Question put, That the clause stand part of the Bill.

--- Later in debate ---

[James Cartlidge]

I have tabled these amendments to correct some errors in the Bill, which would prevent this measure from having the desired impact. When it comes to triable either-way offences, the procedures for plea and allocation are invariably completed in immediate succession of each other in the same court hearing. The primary purpose of clause 9 is to enable the court to complete preliminary pre-trial proceedings in the absence of a defendant in a wider range of circumstances than the law currently allows. That will help to ensure the timely progression through the criminal justice system of cases that would have otherwise stalled indefinitely where a defendant deliberately disengaged.

As currently drafted, clause 9 does not afford the same extended set of circumstances to proceed in absence for the plea procedure as there will be for the subsequent allocation procedure. That will in effect act as a legislative roadblock that prevents the courts from being able to make use of the new powers that clause 9 provides. Therefore, these amendments will ensure that the court has the same powers to proceed in the absence of a defendant for both the plea and the allocation decision procedures. Where the court decides that it is in the interest of justice to proceed in a defendant’s absence, it will be assumed that the defendant has pleaded not guilty, and the court will allocate the case for a trial.

A further amendment rectifies a drafting error in clause 9 to ensure that it remains consistent with current law, whereby there is no requirement for the presence of a legal representative when a court decides to proceed with allocation, having removed a disorderly defendant from the courtroom.

These amendments will allow the clause to work as intended, maximising the benefits for the criminal justice system. Clause 9 will continue to ensure that the court cannot proceed in absence unless it is satisfied that it is in the interests of justice to do so.

[Alex Cunningham]

I thank the Minister for his explanation of the need for a raft of amendments to his own Bill.

Clause 9 will introduce additional circumstances in which the magistrates court could continue with the proceedings in the defendant’s absence in triable either-way cases. This applies to adults, and there are similar provisions for children. I will speak on our general concerns in the debates on the Opposition amendments.

I again thank Justice for its assistance in highlighting potential concerns in this area. Currently, the Magistrates’ Courts Act 1980 provides that the process for triable either-way cases begins with a plea before venue, where an adult defendant is required to appear in a magistrates court to indicate whether they wish to plead guilty or not guilty. Thereafter, if the defendant pleads not guilty or refuses to state a plea, the case proceeds to the allocation hearing. That involves deciding whether the case should be tried in the magistrates court or the Crown court. The defendant is required to be present for both the plea before venue hearing and the allocation hearing. However, in both scenarios there are two circumstances where the court can proceed in the defendant’s absence: where the defendant has legal representation and the court considers that, by reason of the defendant’s disorderly behaviour, it is not practicable for the proceedings to be conducted in their presence—the legal representative will of course act on the defendant’s behalf—or where the defendant gives consent via their legal representative for proceedings to take place in their absence.

Clause 9 would introduce additional circumstances where the magistrates court could proceed with the allocation proceedings in a defendant’s absence in triable either-way cases. In its current form, the Bill does not introduce any changes to the way plea before venue hearings are conducted for triable either way cases. In addition to the two existing circumstances that I have mentioned, clause 9 would empower the magistrates court to now proceed and allocate the case without the defendant’s input in cases where the defendant does not engage in writing or does not appear at their hearing without an “acceptable reason”, provided that the court is satisfied that the defendant has been properly served. The allocation decision would be made on the basis of an assumed not guilty plea—the Minister said that—and the court would proceed to allocate the case to the magistrates court or Crown court. Defendants, however, will continue to have an opportunity to elect for a trial in the Crown court until the start of the summary trial.

Government amendment 2 will now allow a magistrates court to continue with the proceedings in cases where the defendant does not appear at the plea before venue hearing in a wider range of circumstances. The circumstances mirror those proposed for allocation hearings as set out in clause 9(3), including where a defendant does not appear at the hearing without an acceptable reason. The amendment proposes changes to section 17B of the Magistrates’ Court Act 1980, which currently empowers magistrates courts to proceed with the plea before venue hearing

“in the absence of a disorderly but represented accused”—

one of the two exceptions to the general rule mentioned earlier.

However, the amendment does not include any requirement for a defendant’s legal representative to be present, which is currently provisioned in the Bill for the allocation hearing, although the Government propose removing it through amendment 3. A number of other circumstances in which the plea can go ahead in the defendant’s absence also do not require the defendant’s legal representative to be present.

--- Later in debate ---

[Alex Cunningham]

I beg to move amendment 58, in clause 9, page 23, line 41, at end insert—

“(1G) In a case within subsection (1A)—

(a) the accused may, at any time before the taking of a plea in the summary trial, apply to the court for the question of the mode of trial to be reopened;

(b) the court may, if it considers it in the interests of justice to do so, accede to the application and arrange a hearing under paragraph (c);

(c) if a hearing takes place under this paragraph and the accused appears at it, the court is not to proceed to summary trial by virtue of subsection (1A), but is to proceed in accordance with subsections (2) to (9) of section 20 above.”

This amendment would allow defendants to reopen the allocation process and elect for jury trial up to the point of taking a plea in a summary trial if the court considers it in the interest of justice to do so.

I will be very brief. Members will understand why we tabled amendment 58—simply to introduce another safeguard for the use of the new powers under clause 9. The amendment provides defendants with an additional opportunity to reopen the allocation process and elect for a jury trial where this provision is used. That would save the summons or proceedings from being void should a defendant have to make a statutory declaration under section 14 of the Magistrates’ Court Act 1980. It does not go as far as the Law Society suggests in keeping the matter of electing for a jury trial open unless the defendant has explicitly waived that right, but it at least provides an additional opportunity for the defendant to reopen the matter. It is critical that we do everything possible not just to protect the integrity of the new way of working but to ensure that justice is done. I look forward to the Minister’s response.

[James Cartlidge]

As the hon. Gentleman says, the amendment would enable an adult defendant to apply to a magistrates court to re-open an allocation decision taken in their absence to try an either-way offence summarily and thus provide the defendant with another opportunity to elect for a jury trial. Such an application could be granted provided it was done before the start of the summary trial and the court considered that it was in the interests of justice.

Clause 9 already provides that important safeguard, albeit with two minor differences. First, the amendment will not explicitly require the court to consider the reason why the defendant failed to appear at the allocation hearing when considering whether it is in the interests of justice to re-open the allocation decision. That is an important provision: it recognises that there will be legitimate reasons why a defendant fails to appear—if they were gravely ill in hospital or were genuinely unaware of the proceedings against them, for example. However, it also recognises that allowing defendants to deliberately hold up proceedings by absconding on bail or refusing to leave their cells does not serve the interests of justice.

Secondly, the amendment gives absent defendants who were represented by a legal representative at their allocation hearing the opportunity to make an application to re-open the allocation decision. Clause 9 already ensures that if a legal representative is present at the allocation hearing but is unable to signify an absent defendant’s consent to a summary trial, the case must be sent to the Crown court for jury trial anyway. This amendment would simply provide defendants with a further means of deliberately delaying proceedings.

The amendment undermines the purpose of clause 9, which aims to tackle deliberately obstructive defendants who are intent on denying victims justice, while protecting the trial rights of those who are genuinely unaware of proceedings. I therefore urge the hon. Member to withdraw his amendment.

--- Later in debate ---

[Alex Cunningham]

I beg to move amendment 84, in clause 9, page 24, line 21, leave out subsection (4).

This amendment would remove cases involving children and young people from the provisions of Clause 9.

Again, I will be relatively brief. I remain surprised, given what we have discussed already, that the new proposed procedures for adults will, through clause 9(4), apply to children. Given our debate on previous clauses, it will be no surprise to the Minister that this causes me and the Opposition some considerable unease. It introduces a power for the court to proceed with allocation proceedings in a child’s absence. Children are considered inherently vulnerable. While the Bill recognises children’s increased vulnerability and additional requirements, it is not specified how their rights will be appropriately safeguarded.

The Opposition have tabled amendment 84, which would remove subsection (4) and thus limit the provisions of the clause to cases not involving child defendants. I am interested in the Minister’s thoughts as to why the procedure needs to be extended to cases involving children at all. I imagine the number of cases to which it would apply would be relatively few in number anyway, although the Minister may have some data to show otherwise. If so, I would like to hear of it and gain some understanding as to why, once again, the Government want to apply adult criteria to children. Without sufficient reassurances from the Minister, I intend to press the amendment to a vote.

[James Cartlidge]

The amendment would prevent clause 9 from applying to cases involving children. I do not have those statistics to hand, but I will see if I can endeavour to find them for the hon. Gentleman.

I want to start by acknowledging the hon. Gentleman’s concerns about the application of the clause when it comes to children. As I said before, I recognise the sensitivities here, which is why we have emphasised safeguards, and I fully agree that it is vitally important that we protect the interests of children in the criminal justice system.

Subsection (4), which the hon. Gentleman proposes to remove, has been specifically drafted for children. It takes into consideration that defendants under the age of 18 have an extremely limited role to play when it comes to allocation hearings, given that they do not have the same rights as adults to elect for a jury trial at the crown court. It recognises children’s increased vulnerability in the criminal justice system and provides additional safeguards. For example, the additional new circumstances that will enable the allocation of children’s cases in their absence are far more limited than those provided for adults. In addition to the existing exception of disorderly conduct, the clause specifies that the court can only proceed to allocate in a child’s absence where the child has been invited, but failed, to provide an online indication of plea and either the court is satisfied they were served with a notice of the hearing or the child has already appeared at court on a previous occasion to answer the charge. The court must consider whether there is an acceptable reason for the child’s absence and must be satisfied it would not be contrary to the interests of justice for the hearing to proceed in the child’s absence.

The provision must be viewed in the context of existing safeguards in primary legislation. When a child is arrested and held in police detention, the law requires that a parent or guardian must be notified as soon as possible. If a summons and postal requisition is served, it will always be sent to their parent or guardian. When the case is then brought before a youth court, the law will continue to enable the court to require a parent or guardian to attend during all stages of the subsequent proceedings where that is deemed appropriate.

[James Cartlidge]

My right hon. Friend makes a very good point. It is difficult to have specific clauses for children in care in that sense, but I will give consideration to that important point and provide him with further information.

Courts also have a statutory duty to have regard to the welfare of children. They will always have the discretion as to whether to proceed to allocate in a child’s absence. We recognise that in the majority of cases, the courts may not deem it appropriate to proceed if a child is absent from the plea and allocation hearing. However, the clause provides the court with an important means of progressing a case involving a child where it is in the interests of justice to do so. I therefore urge the hon. Member for Stockton North to withdraw the amendment.

[Alex Cunningham]

I am grateful to the right hon. Member for South Holland and The Deepings for raising the issue of looked-after children. He helps to illustrate further why subsection (4) is inappropriate and why we support its removal. The Minister talked about the court being satisfied that notice has been served on the child. I am not sure how the court determines that, because children can always spirit things away and parents do not always find out until much later down the process.

--- Later in debate ---

[James Cartlidge]

Just to clarify the point about our not knowing, we are talking about primary legislation setting out the core changes. The most important part, as always, is that there is discretion in the courts and that is inherent in almost all aspects of proceedings in the courts. I have great faith in the judiciary in these matters. The courts have discretion over whether to apply these—and other clauses that we have been talking about which have similar measures—to children and so on. Whatever the detail in respect of the most vulnerable children—I think I have answered some of that—the most important part is the discretion that exists which is inherent in our legal system.

[Alex Cunningham]

I too have tremendous confidence in our judiciary, but this is an additional power that it does not require. I suspect if it was consulted, it would not particularly want it either, unless the Minister has evidence to the contrary. I maintain that it is totally unnecessary.

[James Cartlidge]

The hon. Gentleman will know that the judiciary will not set out explicit views on proposed legislation. Of course, we have the Law Society, the Bar Council and other important stakeholders, and we feel that there has been significant consultation on these matters. I would add that there is detail to come in the normal way through the procedure rules which is then agreed by negative resolution. I will write further to my right hon. Friend the Member for South Holland and The Deepings and happily share that with the hon. Gentleman if he so wishes.

[Alex Cunningham]

I am grateful for that, but again, the impacts on different groups of vulnerable children have not been fully thought through. It does not take into consideration what happens when a child fails to appear and perhaps nobody is aware that the child has been charged. I remain very concerned about the amendment and we will press it to a vote.

Question put, That the amendment be made.

--- Later in debate ---

[Alex Cunningham]

I beg to move amendment 85, in clause 9, page 25, line 5, at end insert—

“(5) If the court proceeds with the allocation decision procedure in the absence of the accused, the accused must continue to have the opportunity to plead guilty at any time before the start of the summary trial and still receive the full credit had he pleaded guilty at the first stage of the proceedings.”

This amendment would ensure that the accused is entitled to the full credit that they would have received had they pleaded guilty at the first stage of the proceedings.

Another area of concern is that the Bill could remove the potential for any credit or reduction in sentence to which the defendant would have been entitled for pleading guilty. That is because magistrates would be able to proceed to allocate the case on the basis of an assumption that the individual wishes to plead guilty. Currently, courts have the power to reduce a sentence if a defendant pleads guilty. A defendant who pleads guilty at the first stage of proceedings, defined as up to and including the allocation hearing, can benefit from a maximum reduction of one third of the sentence that would have been imposed if the case had progressed to a trial.

Justice notes:

“It is therefore beneficial to seek engagement from the defendant as to how they would like to plea rather than make it easier for Magistrates to assume based on the uncertain criterion of an ‘unacceptable reason’, since the measures may result in cases progressing whereas they otherwise may not have. This is counterproductive and may in fact result in cases being disposed of in a less efficient manner. This would therefore represent a significant disadvantage to both defendant and the criminal justice system.”

If we want a more efficient system, we should make sure that the measures will actually deliver one. For these reasons, the Opposition have tabled amendment 85, which would ensure that the accused is entitled to the full credit they would have received if they had pleaded guilty at the first stage of the proceedings, but where the court proceeds in their absence and presumes a non-guilty plea and they later affirmatively plead the contrary.

I would welcome the Minister’s assurances that full credit for a guilty plea would still be available in these circumstances. As we know, where appropriate, a defendant pleading guilty at an early stage saves the court time and money and can save the alleged victim and their family the stress and difficulty of a trial. We would not want to disincentivise appropriate pleas because the credit would be reduced due to the proposals in the Bill.

[James Cartlidge]

Amendment 85 seeks to ensure that a defendant, whose case is allocated in their absence, is still entitled to the full reduction on their sentence that they would have otherwise received had they appeared at court and pleaded guilty at the first available opportunity. The location of the amendment in the new legislation means that it would only apply to children. However, as the hon. Gentleman’s explanatory statement makes reference to all “accused” persons, I hope that I have correctly understood that the amendment was intended for both child and adult defendant alike.

The safeguard that the hon. Member’s amendment intends to implement is already provided for under the existing Sentencing Act 2020 and the Sentencing Council’s guidelines for both child and adult defendants. The early guilty plea provisions of the guidelines are intended to support the efficient administration of justice and the early resolution of cases. The key difference is that the existing guidelines take into account the reasons why the defendant’s plea was delayed—which I believe is the right approach—rather than reducing the sentence irrespective of why they failed to appear.

Currently, where a defendant fails to appear at a plea and allocation hearing, the case stalls until the defendant appears; under the new provisions a case can progress. Defendants who fail to attend for allocation and then later plead guilty will create inefficiencies in the system; the court and prosecution will expend time and effort preparing for a trial that is not required, and victims and witnesses—who we should not forget—will be caused anxiety and inconvenience because they are told to attend court. In such circumstances, it is right that defendants should not always be entitled to the full reduction of one third off their sentence.

[Alex Cunningham]

The Minister just used the phrase “not always”. Could he expand on that, please?

[James Cartlidge]

The existing law and Sentencing Council’s guidelines provide that magistrates’ courts must consider whether there are particular circumstances which otherwise made it unreasonable to expect a defendant to have indicated a plea at an earlier stage in the proceedings. This means that defendants who fail to appear at the plea and allocation hearing for legitimate reasons will continue to be entitled to the full reduction of one third off their sentence—just to be clear. I therefore urge the hon. Member to withdraw the amendment.

[Alex Cunningham]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause, as amended, stand part of the Bill.

[James Cartlidge]

As I have said, this is an important clause. We have considered the amendments, and I understand the motivations of the hon. Member for Stockton North, but just to remind us, under the current law, a magistrates court cannot reach a decision in the absence of an adult defendant about whether to allocate a triable either-way case for summary trial at magistrates court or jury trial at Crown court.

Until that decision is made, the case cannot progress any further. The only exceptions to the rule are if the defendant has agreed, through their legal representative, that the court can proceed in their absence or if the defendant’s disorderly conduct in the court means that it is not practicable to proceed in their presence.

That means that the timely progression of cases through the criminal justice system can stall indefinitely when defendants deliberately disengage from the proceedings—for example, by absconding on bail or refusing to leave their cell when held on remand. That can have serious negative impacts on victims and witnesses and cause serious delays to justice. In some cases, it may lead to witnesses withdrawing their support for the prosecution, causing cases to collapse and allowing perpetrators to go unpunished.

Clause 9 will enable magistrates courts to decide mode of trial for such cases in the absence of defendants in a wider range of circumstances than the law currently allows for, where the defendants fail without good cause to appear at court for their allocation hearing. Any decision to allocate in absence will be subject to the interests of justice test.

Adult defendants will retain the right to elect for a jury trial at Crown court up until the start of any subsequent summary trial, depending on why they failed to attend the allocation hearing. Defendants with legitimate reasons for failing to appear will get another opportunity to elect before the start of a summary trial allocated in their absence.

Although defendants under the age of 18 do not have the same right as adults to elect for a jury trial at Crown court, there are still occasions when a court will need to reach an allocation decision in a child’s absence. The current law only provides one exception that allows for this: where it is not practicable due to a legally represented child’s disorderly conduct before the court. Subsection 4 provides additional new circumstances—albeit far more limited than those provided for adults—that will enable the allocation of children’s cases in their absence in a way that acknowledges their increased vulnerability and provides additional safeguards to those already in the youth justice system.

[Alex Cunningham]

Briefly, the Minister has heard our arguments in relation to children throughout this. That, of course, remains our principal concern around this clause. I would ask that—whether for children or adults—the Government look again at the various safeguards that are in place, to see if there are opportunities for them to be improved. Again, the Government are concentrating on the difficult defendants rather than the wider range of defendants within the court system, even if they do have an opportunity at a later stage to elect for that particular type of trial. Despite our reservations about children, we will not oppose the clause, but we hope that the Government will reflect on the many things we have said, particularly on young people.

Question put and agreed to.

Clause 9, as amended, accordingly ordered to stand part of the Bill.

Clause 10

Sending cases to Crown Court for trial

Question proposed, That the clause stand part of the Bill.

[James Cartlidge]

Measures in this Bill will clear away obstacles in current legislation standing in the way of the courts carrying out more of their administrative case management outside of the courtroom. Clause 10 will help to deliver that by removing the legal requirement that defendants charged with indictable offences must first appear before a magistrates court to be informed that their case is being sent to the Crown court.

Under existing law, where a defendant has been charged with an indictable-only offence, such as conspiracy to defraud, and there is no other reason to hold a hearing—for example, to consider issues of bail—then a court hearing is surely superfluous. The defendant will be sent to the Crown court for trial regardless of his or her consent.

Similarly, in triable either-way cases, where a defendant has engaged with the court in writing or online and elected for a Crown court trial, equally there would be no need to hold a hearing. This provision will help to streamline criminal procedures by reducing the need for physical appearances in the magistrates court and removing unnecessary hearings. However, this is a discretionary power. A magistrates court will only exercise that power where it considers it appropriate and in the interests of justice to do so and no issues, such as bail, need to be considered.

Question put and agreed to.

Clause 10 accordingly ordered to stand part of the Bill.

Clause 11

Powers of Crown Court to remit cases to the magistrates’ court

Question proposed, That the clause stand part of the Bill.

--- Later in debate ---

[James Cartlidge]

Clause 12 amends existing legislation relating to the power of the youth court to return defendants who have turned 18 before the start of trial to the adult magistrates court or to send them to the Crown court. Although the power is already operationally possible, the clause makes the process for exercising it much clearer. It also enables such decisions to be made other than in open court where appropriate, provided that the youth court serves certain documents on the defendant.

The clause also provides that, where the youth court proposes to remit a person to the adult magistrates court for an offence triable either way, the court must give the defendant the opportunity to elect for a jury trial. It also provides that the criminal procedure rules should set out the circumstances when joined cases or co-defendants are to be sent to the Crown court along with the main offence.

The clause aims to ensure that new provisions for adults, which enable cases to be sent to the Crown court without the need for a hearing, are replicated in the youth court system.

[Alex Cunningham]

As the Minister outlined, clause 12(3) inserts proposed new subsection (1D) in section 47 of the Crime and Disorder Act 1998, empowering the youth court to transfer the proceedings without an in-person hearing if the accused turns 18. Organisations that campaign on youth issues have raised several concerns about this cliff-edge clause.

Moving into the adult courts system can have a number of knock-on impacts on sentencing and the spending periods associated with convictions. It is therefore significant, and it is important that the accused is involved in the hearing. I am not convinced that it is appropriate to proceed with such a hearing in the absence of the accused via a written procedure. As the backlog continues to grow, more youths are likely to cross the significant age threshold while their case is still travelling through the justice system.

The Minister will be as concerned as I am by the backlogs in the youth courts, although they are not as significant as those in the adult system. The Minister of State, the hon. Member for Louth and Horncastle (Victoria Atkins), confirmed in her answer to my written question No. 58390 that the average time taken to deal with youth cases had doubled recently from 52 days in April 2020 to 102 days in June 2021.

Sadly, no up-to-date figures are available. I suspect, given inaction and the pandemic, that the period of time for youth cases to be heard will have grown along with others. If it is taking months on end to get youth cases into court, it follows that more and more young people could be transferred to the adult courts. With the magistrates court backlog as it is, there could be further delay in getting the case to court, with young people being forced to lead their lives on hold, not knowing their fate. That is all the more reason why the Minister should think again about the new measure he wants to introduce.

I would welcome the Minister’s thoughts on how we can mitigate the cliff edge at the end of the youth justice system. It seems to me that simply proceeding with this jump on paper, without engaging the defendant, does the opposite. Yes, the person may be an adult by the time they get to court, but they were children at the time of the alleged offence. I repeat what I said about clause 9: we must do everything possible to ensure that justice is done and that children are properly protected.

[James Cartlidge]

I stress an important point to colleagues about children. I am afraid that it is a fact that they can commit very serious crimes. Although, in all aspects of the justice system that deal with younger people, we have to be cognisant of vulnerabilities, they have to face justice as well under our system as it is configured.

Let me deal with the point about whether the provision would lead to more cases of a defendant who has turned 18 after committing the offence being sent to the adult system. As the power already exists, the provision is not intended to result in any such increase. Alongside the provision to enable the Crown court to remit cases back to the magistrates court, the clause aims to ensure that courts have the discretion to ensure that cases are always heard in the most appropriate venue.

[Alex Cunningham]

Will the Minister make a statement on the record about his view of children being transferred from the youth court to adult courts, having committed the crime as a child? What is his position on those transfers?

[James Cartlidge]

The hon. Gentleman knows that this is not a new matter. When that is the case, when it comes to sentencing, the court will have to take into account the age at which the offence was committed. That is the most important point we need to remember.

Question put and agreed to.

Clause 12 accordingly ordered to stand part of the Bill.

Clause 13

Involvement of parent or guardian in proceedings conducted in writing

Question proposed, That the clause stand part of the Bill.

[James Cartlidge]

Under the current law, when a defendant under 16 years old is charged with a crime, or is for any other reason brought before a court, the court must require a parent or guardian to attend court at all stages of the proceedings, unless it would be unreasonable to do so. When a defendant is 16 to 17 years old, the court may require a parent or guardian to attend.

The purpose of the provision is to ensure that this important safeguard applies to the new written and online procedures in the Bill—for example, when a child is invited to indicate a plea online, or receives a written notification that the court has decided to send their case directly to the Crown court.

Clause 13 provides that, having regard to the circumstances of the case, the court must ascertain whether the parent or guardian of a child under 16 years old is aware of any written or online proceedings and, if not, to provide them with information about the proceedings. The court may do this for children aged 16 to 17 years old. Where it is appropriate to make a parent or guardian aware, the clause also requires the courts to provide them with information explaining the new written and online procedures, including the choices available to the child, and the effects of those choices.

[Alex Cunningham]

Given what I have already said about the need for full and proper safeguards for child defendants involved in the criminal process, I am sure it will be no surprise to the Minister that the Opposition are minded to oppose the clause. I will not go over again matters debated on clauses 8 and 12, but I wish to share the additional concern of the Bar Council, which says:

“Many parents of children coming into the criminal justice system have literacy issues and are often themselves vulnerable adults. Securing their involvement in writing, as a ‘safeguard’ for a child or youth, who is also to be dealt with by way of a written process, is an insufficient safeguard for the administration of criminal justice.

Face-to-face hearings that require the attendance of the parent, guardian or responsible adult mark the gravity of the proceedings. They also allow for further opportunities for appropriate intervention by relevant agencies on behalf of vulnerable children and youths, or in support of parents or guardians that need help and guidance, for which the legal representative is often the point of referral.”

I agree with that entirely, and clause 13 contributes to the watering down of the vital safeguards for child defendants. We are therefore unable to support it.

[James Cartlidge]

To be fair to the hon. Gentleman, he is being entirely consistent. He will appreciate that it would be odd and inconsistent if we were to keep the other clauses and remove this clause, given that it has safeguards in relation to those clauses. Notwithstanding the fact that he has some overarching concerns, he will appreciate that it would be odd for us to remove it in those circumstances.

--- Later in debate ---

[Alex Cunningham]

We now move to part 2, chapter 2 of the Bill, which sets up powers to make online procedure rules for specified proceedings in civil, employment, family and tribunals to be started, conducted, progressed or disposed of by “electronic means”. The Opposition recognise the importance of expanding the use of online procedures in our court processes, and its role in making the system more efficient and cost effective, and so are broadly supportive of the provisions of this chapter.

However, we seek some reassurances about the provisions for digitally excluded individuals in the Bill. Research by Lloyds Bank shows that 16% of the UK population lack basic digital skills and are unable to

“participate in a digital society.”

It is vital that these people are not left behind by the provisions in this Bill.

The amendments aim to introduce further safeguards and accountability and scrutiny mechanisms at points we think may be appropriate, so as to ensure the measures do not preclude practical access to justice. I look forward to hearing what the Minister thinks of them.

The amendments relate to the parts of the Bill that refer to

“persons who require online procedural assistance.”

I thank Justice and the Public Law Project for their assistance and input. This phrase is used at a number of points in the Bill, including at clause 18(3)(a), which requires

“Powers to make Online Procedure Rules…are to be exercised with a view to securing…that practice and procedure under the Rules are accessible and fair,”.

Clause 18(4) states:

“For the purposes of subsection (3)(a), regard must be had to the needs of persons who require online procedural assistance.”

Clause 24(4) states:

“In deciding whether to allow or disallow rules,”—

made by the Online Procedure Rule Committee—

“the Lord Chancellor must have regard to the needs of persons who require online procedural assistance.”

Clause 27 places a duty on the Lord Chancellor to arrange for support that is

“appropriate and proportionate for persons who require online procedural assistance.”

Such persons are defined in Clause 31, which states

“‘persons who require online procedural assistance’ means persons who, because of difficulties in accessing or using electronic equipment, require assistance in order to initiate, conduct, progress or participate in proceedings by electronic means in accordance with Online Procedure Rules;”.

The Bar Council’s briefing for Second Reading noted:

“It is unclear if “persons who require procedural assistance” is a socio-economic, physical, mental or other difficulty.”

It also recognises that this

“seems to raise potential equality and diversity issues.”

Justice is also concerned that the definition is “unduly narrow and unclear”. Although the Opposition support the inclusion of the duty to arrange support for persons who require online procedural assistance, we share the concern that the current definition of such persons undermines the effectiveness of the duty. Justice explains that people may be able to access or use electronic equipment but may still be unable to effectively engage with or participate in online proceedings for other reasons—for example, people who speak English as a second language, people with learning difficulties, cognitive or sensory impairments, and those who require different modes of communication, such as braille or sign language. Furthermore, digital exclusion can be situational, because people

“who might normally be confident online may struggle with online services when faced with crises such as divorce or debt which reduce people’s confidence and capability.”

Those are some of the findings from Justice’s excellent 2018 report, “Preventing Digital Exclusion from Online Justice”, of which I am sure the Minister is aware. Justice also notes that it is unclear whether the definition as currently drafted would include people who are able to use electronic equipment but do not have access to the internet—for example, because they cannot afford the data, as opposed to the equipment, such as a phone, tablet or computer. Will the Minister please provide some clarification on this point? I hope the intention is that the definition will cover such scenarios.

In its 2018 report, Justice argued for the need to provide effective support to those who are digitally excluded, in order to realise the full potential of online justice services and improve access to justice for many people. In the report, Justice used the term “digitally excluded” to describe people who, for reasons such as

“an inability to access the internet or digital services, lack of basic digital skills, or problems with confidence and motivation”,

experience difficulty in engaging with computers and online processes. We think reflecting that meaning in the legislation would ensure that the duty to provide support to those who need it would be most effective and would encompass all those who may need assistance. To that end, amendment 89 inserts a new definition into clause 31, stating that

“‘persons who are digitally excluded’ means persons who, for reasons including their inability to access the internet or digital devices, lack of basic digital skills, or problems with confidence and motivation, experience difficulty in engaging with computers or online processes.”

Amendments 86, 87 and 88 insert the phrase

“persons who are digitally excluded”

in the place of

“persons who require online procedural assistance”

at the points I mentioned previously. The Opposition and Government have the same intention here: to provide support to those who need it, so that no one is precluded from accessing justice. I hope the Minister can see where we are coming from and will look favourably on the amendments.

I turn now to new clause 2, which is another approach to dealing with some of the concerns. It simply clarifies the nature of online procedural assistance, and I would be grateful if the Minister could address each of its subsections and tell the Committee whether they are matters that he and his team have already considered, and whether he envisions that the Bill as drafted would cover them. Does the duty on the Lord Chancellor currently include consideration of other factors that intersect with digital exclusion, such as age, poverty, disability and geography? The right hon. Member for South Holland and The Deepings was helpful on these issues in an earlier debate, when he spoke up for older people. I am sure that he, too, will want answers to our questions and, I hope, a few of his own.

Will the assistance cover both advice and technical hardware, and will it be available throughout the proceedings? Will persons receiving the assistance be able to do so via either a remote appointment or an in-person appointment at a site local to them? For those whose first language is not English, will assistance be provided through interpretation or translation, as appropriate, in a language that is familiar to the party or potential party? Will the assistance be monitored and evaluated at regular intervals? If so, how and by who? We want to be able to offer the Government keen support for the proposals, so I look forward to the Minister’s response to the concerns we have raised.

[James Cartlidge]

I am grateful to the hon. Gentleman for giving us the opportunity to talk through the issues of digital exclusion. These are important issues. As colleagues know, much of the Bill, particularly once we go beyond the judicial review clauses, relates to digitisation and I feel very strongly that digitisation has many benefits.

Colleagues will remember the evidence from the Scottish Law Society. One of its most interesting points was how, in Scotland, its experience had been that the use of video technology and so on had kept justice going during the pandemic. That has certainly been the case in England and Wales. I appreciate that the hon. Gentleman is not saying otherwise—he is looking at those who are excluded. In principle, in many ways digitisation can enhance access to justice. In the greatest collective challenge to access to justice that this country has seen for many decades—the pandemic—digitisation maintained access to justice when otherwise many more cases would have been stuck and the backlog would have been even worse.

I have two points to make on a personal note. I am not a lawyer by background, but I spent my year off as an outdoor clerk in the High Court, carrying bundles of paperwork around the Royal Courts of Justice, from window to window. Some were shut in my face, because it was not the right window or the person was going off for lunch—it is quite common, actually. There has always been an enormous amount of paperwork in the system, as the hon. Member for Hammersmith, who I believe was a barrister, will know. Trying to reduce those bundles will take time. In the Crown court in particular, we will still see large bundles of papers. We will still have large paper packs for the jury to look at; in many ways, that is still the most effective method. Stripping out the paperwork and increasing digitisation will have its moments of frustration for practitioners and staff. It will have its downsides. The system will never be perfect, but in general and in principle digitisation enhances the system.

The second personal point is about my business idea. Mr Rosindell, you will know about house prices in London. The idea was to enable groups of friends who were renting to buy property together. It was for flatmates to buy and was called “Share to Buy”. Once we had come up with it and had approached a lender, who was supportive, we realised that the problem was how to get people to apply. We decided that the only way to do it was online. At that time, there were not really online mortgage applications. We thought at great length about what to do if people do not have internet access and want to make a paper-based application. Obviously, that scheme is not as significant as the legal system, but the same principles apply. I am a great believer in the ability of the digital sphere to enhance accessibility, to increase people’s access to important things, alongside having the appropriate safeguards and support, which are the two key words.

We recognise that those who are digitally excluded may need assistance in starting or progressing their case online. Therefore, HMCTS has set up a digital service that is designed with and for users to help navigate the justice system. It will be supported through HMCTS user contact functions, who will issue guidance and help on the journey through the service over the phone and related call-centre channels, such as web chat. As I said in discussion on earlier clauses, HMCTS recently awarded a national contract to deliver positive and practical solutions to support users and break down barriers to digital inclusion across civil, family and tribunal jurisdictions.

Although the measures seek to direct as many users as possible through primary digital channels, some users may have problems accessing digital services. The hon. Member for Stockton North made some quite specific points about geography, age and disability. We recognise that some users may have particular problems. As I noted in the previous discussion, paper forms will remain available, and work is ongoing to review and simplify those forms. HMCTS will ensure users receive equal service no matter what channel they use to engage.

Amendment 86 would require regard to be had to the needs of persons who are digitally excluded when making online procedure rules, changing, as a number of the amendments would do, the terminology “require online procedural assistance” for that of being “digitally excluded”. Amendment 87 would require the Lord Chancellor to have regard to the needs to persons who are digitally excluded when allowing or disallowing online procedure rules to be made.

The duty to have regard to the needs of those who may be digitally excluded is addressed in clause 27, which requires the Lord Chancellor to make provisions for those who require additional support. Through that measure, court users will be supported through their online journey in person and remotely. When considering whether to allow or disallow rules, the Lord Chancellor must have regard to those who require online procedural assistance.

Amendment 88 would require the Lord Chancellor to arrange for the provision of appropriate and proportionate support for persons who are digitally excluded. The measures already seek to ensure appropriate and proportionate support for persons who are digitally excluded or who, in the Bill’s terms,

“require online procedural assistance”

so that they are able to engage with online procedures. That includes assistive technology, such as a screen reader, and simplifying language to ensure that users understand what they are required to do.

--- Later in debate ---

[Alex Cunningham]

I appreciate the Minister’s sharing information about his past career; it is fascinating to find out what people have done in their previous lives. Perhaps one angle of his business could have been encouraging people to move to the north where, instead of buying a share in a house for £150,000, they could buy a lovely three-bedroom semi-detached house in Stockton; have access to our wonderful newly opened Globe theatre; and be 30 minutes from the Yorkshire moors, 40 minutes from the Yorkshire dales and only an hour from the Northumberland coast.

[James Cartlidge]

Very quickly, because it is incredibly relevant, I assure the hon. Gentleman that our business was entirely national. The reason that it was able to operate nationally, in every part of the country, is because it operated online.

[Alex Cunningham]

That is why we welcome the way that we can move forward, even in the world of justice. We can move online as much as possible, but the Minister knows how much we have been pressing on the issue of safeguards.

The right hon. Member for South Holland and The Deepings was concerned that some people in his area, as in other areas of the country, might not have access. When he talked about face-to-face meetings and the importance of community, it struck me that he said that he did not want us to underestimate how important that is and to undermine those personal relationships. I have maintained throughout my contributions to the Committee that we do not want justice to be undermined as a result of moving online.

The Minister spoke about the Scottish experience. It did keep it going, but for those who had access to systems. He acknowledged the need for appropriate support and recognised that more detail must be provided. We look forward to seeing that detail in future.

My real concern is that some of the language in the Bill is a little on the soft side. I would rather see it more clearly defined and nailed down, to ensure that the people who are most likely to be excluded from digital services are given all the support they need, which might even mean providing them with the data that they require to use the systems that are available to them.

In the light of the debate, however, I do not intend to press any of the amendments to the vote, but I say again that some of the language is soft. We need that detail and I hope that there will be no devils in it. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Ordered, That further consideration be now adjourned.—(Scott Mann.)

Judicial Review and Courts Bill (Sixth sitting)

Debate between James Cartlidge and Alex Cunningham

Committee stage
Tuesday 9th November 2021 Public Bill Committees

[The Parliamentary Under-Secretary of State for Justice (James Cartlidge)]

That’s not much, though, is it?

[Alex Cunningham]

That depends how much beer a journalist drinks these days; I think we used to put away many more pints than desk-bound journalists tend to now.

The process makes it easier for offenders to escape notice. [Interruption.] I hear the Minister acknowledge that that is the case and I look forward to hearing his proposals to ensure that we have the open justice we all strive for. He has said that he takes issues of transparency and open justice seriously, and I do not think this is an intentional consequence of the Government’s proposals, but it is potentially serious. Will he confirm that some measure of external scrutiny will still be possible under the AOCSSP? Will listings for all cases and their outcomes at least be made available to all? If not, it will be a serious blow to open justice.

I would be grateful for the Minister’s thoughts on the suggestion that the AOCSSP could form a barrier to effective participation in the justice system. As Transform Justice notes,

“All online conviction processes will start with a postal charge. These charges are sent through ordinary mail and there is no proof of their receipt”—

no proof whatsoever. It continues:

“The fact that two thirds of defendants do not respond by submitting a plea indicates that any criminal process which relies on defendants responding to a postal charge seems to present significant barriers to effective participation.”

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[James Cartlidge]

Hear, hear!

[Alex Cunningham]

I am glad the Minister is pleased. The amendment would mandate the Secretary of State to commission and lay before Parliament an independent review of the potential impact of the AOCSSP on defendants and the criminal justice system, its efficacy and operational issues.

I have spoken at some length about the numerous concerns raised about the procedure, and sought the Minister’s reassurance on many of them. The most appropriate form of reassurance would be an independent report into the impact of the procedure. The procedure marks quite a significant shift in the way we handle criminal cases and would establish the principle for all summary and non-imprisonable offences to be automated through an online plea, conviction and penalty website. The Opposition recognise the need to explore how we can deploy technology in the criminal justice system, but we do not agree that it can be done without a robust evidence base, especially when we are dealing with changes that potentially pose a threat to defendants’ rights, access to justice and the principle of open justice.

As JUSTICE has noted, the evidence base for the procedure is poor and none of the reports that the Government refer to in the Bill documents—Sir Robin Auld’s 2001 “Review of the Criminal Courts”, Sir Brian Leveson’s 2015 “Review of Efficiency in Criminal Proceedings” and the Government’s own 2016 consultation, “Transforming our Justice System”—explores the real world consequences and risks inherent in the procedure. Furthermore, the 2016 Green Paper, in which the Government first proposed the introduction of an online conviction system, stated that the system should be using three offences before any decision was taken to make it permanent. It noted:

“We propose to test the system with a small number of summary, non-imprisonable offences in the initial phase of introducing the online conviction and fixed fine scheme, which would be: Railway fare evasion; Tram fare evasion; Possession of unlicensed rod and line. If this initial phase is successful, we plan to bring other offences, particularly certain road traffic offences, into the system in future.”

[Andy Slaughter (Hammersmith) (Lab)]

It does seem to be a bit of a feature of this Bill. When we were dealing with clause 2, we heard that the abolition of the Cart judicial review was to be a template for other offences, and the same is happening here. Does my hon. Friend agree with me that it is slippery slope? [Interruption.] I hear the Minister snorting from a sedentary position—

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[Alex Cunningham]

My hon. Friend is entirely correct. That is why we have tabled the amendment, which would require data and proper research to be conducted, so the Government have something by which to measure their success or otherwise in introducing the procedure. My real concern is that future offences may well just come through the secondary legislation route, where the amount of scrutiny is somewhat limited. The Government propose using the procedure in the Bill initially for these offences, but nothing in the Bill suggests that the testing procedure the Government committed to in 2016 will actually be used to assess the procedure. Can the Minister confirm otherwise? That would be welcome.

As Transform Justice has pointed out, there is no evidence in the public domain about the online motoring conviction system, which was introduced in 2015. There is no public access to the postal charge paperwork, nor to the online form. There is no public data on how many people respond to the postal charge—we covered that point already—or how many complete the form online. There is also no data on how many people plead guilty or not guilty, or on the sanctions received.

The Government consulted on the automatic online conviction proposal in 2016, and many of the respondents raised concerns. None have been allayed in the interim. Indeed, the single justice procedure, which the procedure builds on, had only been in use for one year when the Government consulted on the online procedure. Since then, much more information about the workings and indeed failings of the single justice procedure has come to light. The Government have not explained how the current issues with the single justice procedure would not simply translate across to the AOCSSP procedure, or even be exacerbated, given the removal of any human oversight. JUSTICE has also said that it is not aware of any similar system deployed in other jurisdictions from which any advantages or disadvantages could be studied.

For those reasons, the Opposition believe that amendment 45 is vital. Significant changes to our justice system should be evidence based, and making evidence-based decisions now will save the Government and the justice system a lot of problems further down the line. I appreciate that I have sought rather a lot of information from the Minister thus far, but we are very keen that we go down the route where we get it right. I look forward to hearing the Minister’s thoughts.

[James Cartlidge]

It is a pleasure to have you back in the Chair, Sir Mark, after your brief absence. That was a very important set of questions. Obviously, I am speaking particularly to amendment 45. Other amendments have been tabled to the clause and I think we will end up covering everything. I will try to answer the main questions, but hopefully by the time we get to stand part we will have broadly covered all the key questions.

I am grateful to the hon. Gentleman for his welcome, and wish the same to him. He has a different style and approach from the hon. Member for Hammersmith, but they make an interesting pair, and I look forward to further jousting and deliberations on the Bill. The hon. Member for Stockton North said that it is not all the pandemic. He is right: most of the difficult decisions about funding criminal justice had to be made in the 2010-15 Parliament. There is a good reason for that. It was not a pandemic; it was inheriting a catastrophic economic position because of the mismanagement of the previous Government.

[Alex Cunningham]

You had been in power for five years.

[James Cartlidge]

I am talking about 2010. The hon. Gentleman knows full well that there is no parallel universe in which difficult decisions did not have to be made. Had Labour stayed in power in 2010, they would have made significant cuts to the Ministry of Justice. That is a fact, but we are here today and looking to the future, and the future is digital. Digitalisation offers many ways to improve and streamline justice, but of course we must ensure that safeguards are in place. I will come to a few of the specific questions, and then to the amendment.

Probably the most important question is what happens if the defendant does not receive notification of the charge or conviction. How will they respond? What do we do? We may be confusing two procedures. There is the single justice procedure, and there is the new procedure—I simply call it the automatic procedure. The hon. Gentleman is right: even the acronym is impossible to remember, let alone the full name. In the SJP, it is worth stressing that defendants who have no knowledge of proceedings brought against them via summons or requisition until after a magistrates court has begun to try the case will be able to make a statutory declaration to restart the proceedings—that is, for example, if the correspondence was sent to the wrong address. To reassure all colleagues, in the automatic procedure, the person considered has to opt in. If they do not receive notification, that procedure will not be used. It is fairly straightforward, and an important safeguard.

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[Alex Cunningham]

I am interested in the issue of people having a day in court or saving a day off work. Many people will make the wrong decision when they come into contact with the justice system in that way. Is there not a real concern about individuals who do not know what they are doing, who may have mental health problems or other disabilities, and who cannot make the right decision? A day off work would not actually matter.

[James Cartlidge]

To be clear, I am not talking about a day off work. If they go into court, the issue is not having the income—for example, if someone is self-employed. It may be less of an issue for someone who is permanently employed; it depends on their contract. I think it is important for people to have the option, particularly if they are time poor. I stress that it is a choice.

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[Liz Twist (Blaydon) (Lab)]

rose—

[Alex Cunningham]

rose—

[James Cartlidge]

Hang on, there were simultaneous interventions. I will give way to the hon. Member for Blaydon.

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[James Cartlidge]

If I address that, I will be straying into the territory of future amendments. If the hon. Gentleman will forgive me, I should say that we will cover those issues in considerable detail.

I will now crack on with the remainder of my comments about amendment 45, which is about a review. I appreciate that this is a very new type of procedure for dealing with certain minor offences and that we cannot be certain of its impacts. However, we are committed to reviewing the operation of the procedure, which is why we are proceeding with caution.

Only three offences have initially been proposed for prosecution under the new procedure: failure to produce a ticket for travel on a train; failure to produce a ticket for travel on a tram; and fishing with an unlicensed rod and line. As part of this initial implementation phase, we will carefully monitor and review the potential impacts of the procedure before we consider whether to extend it any further. The procedure has a number of safeguards, which I will set out in further detail when we discuss the next group of amendments and during the stand part debate. I want to stress that the procedure is entirely optional and that it will remain the defendant’s choice whether they wish to proceed with an automatic online conviction or opt for a traditional hearing in court.

[Alex Cunningham]

I am grateful to the Minister for his response and recognise that there are other issues to cover, which I mentioned in my speech; there are other amendments as well.

I am pleased to hear the Minister commit to carrying out a proper review of the procedure, as that is what the amendment sought. I see no need to press it to a vote. I thank him for his input and look forward to developing some of these issues during debates on the remaining amendments. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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[Alex Cunningham]

Indeed, that is very much the case. The Minister talked about how a conviction made by a magistrate in the absence of a defendant can always be challenged down the line. I do not see where that fits with respect to this, and I hope the Minister will explain it.

I stress that I do not think that this is the ideal safeguard for identifying individuals with vulnerabilities—legal professionals are trained primarily in the law, not to identify issues relating to vulnerabilities. I have already said that that is not their responsibility and I do not want the Government to think that the Opposition are advocating placing that safeguarding burden on the legal profession. We are certainly not doing that. We are, however, in favour of more safeguards being built into the system. This is an important safeguard for all defendants, not just those with vulnerabilities.

As I said earlier, I am aware of the Government’s intention for online pleas to be entered via the common platform, which I understand might seem to address the concerns we express here. As it is not in the primary legislation, however, we do not feel sufficiently reassured, which is to say nothing of the ongoing issues with the common platform—I understand the senior presiding judge has told Her Majesty’s Courts and Tribunals Service to halt the roll-out until it has been stable for at least three weeks.

I appreciate that the Government have looked at the matter, but I want to ensure that this works in some way, even if we do not agree with the method. I would therefore welcome the Minister’s thoughts on strengthening the safeguards in the legislation.

[James Cartlidge]

I will come to the specific amendments, but, once again, some wider points have been made. An interesting one, made by my right hon. Friend the Member for South Holland and The Deepings, was about whether the broad thrust of policy should be somehow to regress towards being more paper based than online.

That was a serious point. It was interesting that, in evidence, Aidan O’Neill from the Scottish Law Society—I asked him about the Scottish experience of the pandemic and use of technology, although my right hon. Friend will know of other areas of his expertise—made some positive observations about how technology had in many ways enabled access to justice to be maintained during the pandemic, precisely because people who would otherwise not be able to appear in court or take part in tribunals or other cases were able to do so because of the technology.

My view is that, while we have to have safeguards—I therefore totally agree with the hon. Member for Stockton North that we should go through the details of the safeguards—in principle we should never discount the sense in which technology gives more access to justice. After all, a generation of people do not have printers—they work not off paper, but off their phone. They might even feel slightly excluded if they cannot do things online.

That might seem like a strange point and, as my right hon. Friend the Member for South Holland and The Deepings said, some older generations might find that extraordinary. To be clear, however, someone could be not even analogue, but completely paper-based in how they work. My parents are pretty much like that if I am completely honest. These offences obviously exist in the single justice procedure, which is paper based. Or, as I have said throughout, people could simply opt to have their case heard in court in the traditional way.

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[Alex Cunningham]

I am grateful to the Minister for his response. We have tabled these amendments because we want to be helpful—we are not trying to be difficult. We want to ensure that there is fair justice with fair access, and that justice is done for everyone at the end of the day.

I accept much of what the Minister said, but I still have real concerns about the information provided and the systems for providing that information. He has referred to what is included in the Bill, but I am still very concerned about how people will get the right information from the right person in order to make the correct decision, and I am most concerned about the vulnerable.

The other issue, raised by my hon. Friend the Member for Blaydon, is about what the next tranche of offences could be. Will we get to a point where more serious offences will fall under that process and will be recordable offences, which will have all the impacts on employment that we described earlier?

[James Cartlidge]

To be clear, I think the next amendment is very specific on that point, and I will definitely cover it.

[Alex Cunningham]

I am grateful to the Minister. On that basis, I will withdraw amendment 46, but will press amendment 47 to a Division. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: 47, in clause 3, page 4, line 29, at beginning insert—

“(1) Before this section may be commenced, the Secretary of State must publish statutory guidance which sets out how prosecutors should provide and explain to defendants any information contained within the required documents in an accessible way.”—(Alex Cunningham.)

This amendment will mandate the Secretary of State to publish guidance for prosecutors on how to ensure that defendants fully understand the information provided to them.

Question put, That the amendment be made.

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[Alex Cunningham]

I beg to move amendment 49, in clause 3, page 5, leave out lines 33 to 35 and insert—, 

‘(4) An offence may not be specified in regulations under subsection (3)(a) unless it is—

(a) a summary offence that is not punishable with imprisonment; and

(b) a non-recordable offence, which excludes any offence set out in the Schedule to the National Police Records (Recordable Offences) Regulations 2000/1139 (as amended).”

This amendment would exclude any offences which are recordable from the automatic online conviction option.

I come to the Opposition’s final amendment to clause 3, although we have already strayed into the territory that this covers. Amendment 49 would exclude any offences that are recordable under the new procedure. I understand that the Government intend the procedure to apply only to summary or non-imprisonable offences, but we think that this needs to be further restricted.

Examples of recordable offences that the new procedure could cover include the offence of failing to provide for the safety of children at entertainments under section 12 of the Children and Young Persons Act 1933 or the offence of exposing children under 12 to the risk of burning under section 11 of that Act. Others are the offence of drunkenness in a public place under section 91 of the Criminal Justice Act 1967 and the offence of selling alcohol to a person who is drunk, under section 141(1) of the Licensing Act 2003.

Particularly topical, given that the Police, Crime, Sentencing and Courts Bill is in Committee in the other place, are the offence of failing to comply with conditions imposed on a public procession under section 12(5) of the Public Order Act 1986 or the offence of failing to comply with conditions imposed on a public assembly under section 14(5) of the Public Order Act 1986. The threshold for committing these offences will become significantly lower upon the introduction of part 3 of that Bill, where individuals could inadvertently commit an offence by causing “serious unease” or “noise”. Yet more examples relate to the sale of alcohol to children under the Licensing Act and a range of football offences, including the use of missiles and the chanting of racist language.

Those are just some illustrative examples. I do not believe that these sorts of offences are really appropriate for the new procedure, mostly because, as I have mentioned in my earlier speeches––it is important, so I stress it again––the consequences of conviction can still be extremely serious. The Government’s apparent justification for removing any human oversight in the procedure is that it will apply only to minor offences where the defendant faces no risk of imprisonment. But as Fair Trials points out,

“The absence of the risk of imprisonment should not, on its own, be a justification for trivialising criminal justice processes. Criminal convictions, even for minor offences (other than certain types of traffic offences), can have far-reaching and very serious implications on people’s lives and opportunities. The existence of a criminal record can, for example, seriously undermine someone's chances of finding employment, especially in certain sectors and professions (including nursing, social care, child-minding and teaching), accessing educational and training opportunities, obtaining certain types of insurance, or the ability to travel to certain countries. For those who are non-UK citizens, criminal records can affect the right to remain in the country.”

The Opposition believe that it is crucial that the procedure applies only to those offences for which convictions are unlikely to have these impacts on individuals’ rights and opportunities.

Justice has noted that it is likely that the new procedure

“as it currently stands, would act to incentivise individuals to plead guilty out of convenience, regardless of whether they have an arguable case. Without legal advice, this risk is all the more profound [and]… many will not fully appreciate the impact a conviction could have on their lives and future prospects.”

By limiting the new procedure to non-recordable offences only, we would ensure that automated convictions are limited only to the most minor offences, which do not appear on most criminal record checks. That would be a vital safeguard in the online conviction procedure.

I do not think we will be overly limiting the use of the new procedure if we include that further limitation. Between 40% and 45% of all criminal offence convictions each year are for non-recordable offences, so a significant proportion of cases could still be dealt with. I look forward to hearing the Minister’s thoughts.

[James Cartlidge]

This interesting amendment covers some of the questions from earlier. Clause 3 provides that only certain non-imprisonable and summary-only offences can be specified as eligible for the new automatic online procedure. Amendment 49 would restrict it further to non-recordable offences. That is straightforward enough.

I reassure the hon. Gentleman that the initial three offences proposed under the new procedure—failure to produce a ticket for travel on a train, failure to produce a ticket for travel on a tram, and fishing with an unlicensed rod and line—are non-recordable offences. In fact, the vast majority of eligible offences in scope are non-recordable, with only a couple of exceptions. There is currently no intention to extend the procedure to any recordable offences. Once we have reviewed how it operates, we might consider extending to other similar non-recordable offences, such as certain road traffic offences—for example, low-level speeding and driving without insurance. Clause 3 enables us to do so.

However, for an offence to be appropriate, it would have to be relatively straightforward and simple to prove, with no complex grounds and a high degree of consistency in sentencing. Prosecutors would also have the discretion, based on the individual facts of any given case, to not offer the option of the procedure for an eligible offence if they felt it would not be suitable. Furthermore, any extension of the procedure to additional offences would be subject to the affirmative procedure and done by regulations, which would have to be approved by Parliament.

[Alex Cunningham]

That was a very interesting response. I think the Minister was confirming that what is in the amendment will, in fact, be the case going forward and that the Government will not seek to introduce any offences that would be recordable in the scenario I described. I ask the Minister why he does not accept the amendment if that is the Government’s intention. I invite him to intervene on me.

[James Cartlidge]

That is very kind of the hon. Gentleman. In this situation it is very standard to have a Bill with what is effectively a pilot. I would not quite say that it is formally a pilot, but it is effectively trialling these three non-recordable offences and will be reviewed.

However, as I said, any extension of the procedure to additional offences would be subject to the affirmative procedure and done by regulations that would have to be approved by Parliament. That is a very standard way of operating. We think that is more flexible. I do not want to invite a conspiracy that says there is a clear plan to move very soon to including recordable offences. As I say, there is currently no intention to extend the procedure to any recordable offences. We think that this way of legislating is perfectly standard. The amendment is not necessary.

[Alex Cunningham]

I am afraid that although I accept that the Minister is an honourable man, I would like to see this measure nailed in legislation so that a future Government cannot start to introduce recordable offences. There is no guarantee from what the Minister said that that will not happen. New Ministers can change things. The amendment will ensure that they cannot go beyond the guarantee that the Minister has offered today, and I intend to press it to a vote.

Question put, That the amendment be made.

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[Alex Cunningham]

I will be brief and will not repeat the points made by my hon. Friend the Member for Hammersmith on open justice and the requirement for safeguards. I have two points to make, which relate to our previous debate. First, although I feel my trust in the Minister building this afternoon as time goes on, sadly I do not trust a future Conservative Minister who may well decide to use the powers that the Minister is attempting to take to himself to do things that I would hope none of us would approve of, through having a series of online cases that could lead to recordable offences. That could have an impact on people’s lives. For that reason, it is important that we do not support the clause.

Secondly, there is the issue about the information that defendants have. The Minister was at some pains to point out what is already in the Bill. The fact that vulnerable people may not get the support, or not even be identified if they use this particular system, is of great concern. That is the second reason, in addition to those that my hon. Friend the Member for Hammersmith mentioned, why we will not support the clause.

[James Cartlidge]

Again, some very interesting points have been made. I was only appointed not much more than a month ago—

[Alex Cunningham]

You’re doing a grand job.

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[James Cartlidge]

I should point out for the record, as I spoke to him privately, that I did discuss that intervention from the Chair of the Justice Committee, and explained to him what I am about to explain now.

Amendment 51 would raise the age of eligibility for the section 12 procedure—often referred to as “pleading guilty by post”—from 16 to 18 years of age for cases where the defendant is charged at a police station. The section 12 procedure has been available as a suitable means of summary-only prosecution against defendants aged 16 and over since 1957, as I believe the hon. Member for Stockton North rightly said. I am not aware of that having raised any particular issues of concern for child defendants during that time. In a case where the defendant is summonsed or charged by post and intends to plead guilty, the section 12 procedure provides the option to do so by post rather than having to attend court. The subsequent hearing will still take place in open court and the defendant can still attend if they wish, so this is not about online procedure as such.

This procedure is primarily used for minor offences, such as driving without due care or littering, and has seen a sharp decline since the introduction of the single justice procedure. Once again, the hon. Gentleman noted that point. The purpose of clause 4 is to ensure that prosecutors can also offer that long-established procedure for suitable cases where a defendant is charged in person at a police station. That will maintain the same age criterion that exists for prosecutions initiated by summons or postal charges for 16 to 18-year-olds. Prosecutors will decide whether it is appropriate to provide a defendant with the option to proceed with the section 12 procedure, and summons and postal requisitions served on children will always be sent to their parent or guardian, which will include details about the section 12 procedure if it has been offered.

When a child is arrested and held in police detention, existing primary legislation also requires that a parent or guardian must be notified of that as soon as possible, and legislation will continue to enable a youth court to require a parent or guardian to attend during all stages of the subsequent proceedings at court where that is deemed appropriate. The amendment would create confusion by applying different rules to a well-established procedure simply because the defendant is charged in a different way. It also ignores the safeguards in place to ensure that the rights of children are protected. I therefore urge the hon. Gentleman to withdraw the amendment.

[Alex Cunningham]

I am grateful to the Minister for his response. I make no apology for always raising every issue in relation to children when the Government are trying to convert them into adults. There are many more serious examples of that in the Police, Crime, Sentencing and Courts Bill, which is going through in the other place. The Minister will not be aware of this, but I spoke at length in the Committee on that Bill against the creation of adults from children. While I accept what he says about this being a relatively minor example in comparison to elsewhere, it is important that the Government recognise that children are children, and not adults. I worry at times that we will see childhood further eroded in matters of justice going forward.

[James Cartlidge]

Just for clarity—this is what I explained to the Chair of the Justice Committee—I can quite understand that, at face value, it looks from the Bill as if this is uniquely being set at the age of 16 compared with the automatic procedure, which is set at 18. Of course, they are very different things, so I hope the hon. Gentleman appreciates that it is purely a consistency matter within a well-established procedure—although admittedly, within the Bill next to the other part, it is easy to see why these questions have been raised.

[Alex Cunningham]

That is exactly the reason why I will not push the amendment to a vote, but I make the point again that we cannot go forward in this country’s justice system moving more to converting children into adults when they are 16 or 17 years of age. I worry that we will see further proposals that will be far more damaging to young people in the future, so I will continue to prosecute this matter, and the Minister will get very bored of me over the coming months as I do so. In the circumstances, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

[James Cartlidge]

I will give a short exposition, because it is important to clarify the point that I emphasised in my last intervention. Section 12 of the Magistrates’ Courts Act 1980 is a long-established procedure, providing defendants with the option to indicate a guilty plea in writing to a summary-only offence. In such cases, defendants can also agree to be tried, convicted and sentenced to a fine at a court hearing, which neither they nor the prosecution have to attend. However, a magistrates court cannot impose a custodial sentence without bringing the defendant before the court. Nor can they impose a driving disqualification in the defendant’s absence without adjourning the case and giving the defendant an opportunity to attend a hearing.

Under the existing law, the procedure can only be applied to defendants whose prosecution is initiated by way of a summons or postal requisition. Clause 4 will change that, so that it can also apply when a defendant is charged in person at a police station and bailed to attend court for their first hearing. In circumstances, for example, where a defendant decides to plead guilty by post without having to attend the hearing, clause 4 also provides the court with a power to discharge the defendant from the need to surrender on bail. That means that prosecutors will be able to apply the procedure to suitable cases that would have otherwise been excluded simply because of the way in which the prosecution was initiated.

In all cases, opting to plead guilty in writing and be convicted and sentenced in absence will continue to remain entirely voluntary for defendants. The police and other prosecutors will continue to have the discretion to decide whether it is appropriate to apply the procedure to any case. Furthermore, all the current restrictions on the imposition of custodial sentences and driving disqualifications will still apply. Therefore, a defendant’s appearance at a traditional court hearing will always be available where necessary, or if the defendant desires it. Clause 4 is one of a number of measures the Government are bringing forward in the Bill to simplify criminal procedures and make our courts more efficient for its users.

Question put and agreed to.

Clause 4 accordingly ordered to stand part of the Bill.

Clause 5

Extension of single justice procedure to corporations

Question proposed, That the clause stand part of the Bill.

--- Later in debate ---

[James Cartlidge]

The hon. Gentleman is engaging—he is an engaging fellow and I am engaging with him. I am more than happy to do that. I understand his request for a meeting. I would be more than happy to meet him to discuss some of the questions he has raised about the single justice procedure. If I do not answer them in my reply, I hope that we can go into them at that juncture. That is important.

The new clause would require a review and report into the effectiveness of the single justice procedure before the Act could be commenced. The single justice procedure is a more proportionate way of dealing with straightforward, uncontested, summary-only non-imprisonable offences, which almost exclusively result in a financial penalty. Previously in such cases, defendants tended not to engage at all and trials often went ahead without them. Many of these cases reach the court simply because the defendant has ignored other more informal ways of resolving the matter, such as a fixed penalty notice. We introduced this more accessible procedure as a way of encouraging defendants to engage with the court process.

It is a matter for prosecutors to decide whether it is appropriate to prosecute a defendant under this procedure, but various safeguards are built into the process. All defendants can veto the procedure and choose a hearing in open court. In addition, the magistrate can decide to refer the case to open court if they think that it cannot be dealt with appropriately using the procedure. Defendants who choose to use the procedure have access to support throughout the process, either by telephone or face to face. The single justice procedure written notice and online process have been designed with input from users and a wide range of organisations at public user events. Her Majesty’s Courts and Tribunals Service is constantly working to improve the documentation and has developed a clearer and more concise single justice procedure notice and information pack, copies of which I will share. That was recently piloted and is now being implemented.

There is a specific question relating to disability and accessibility needs in the form. To my knowledge, the single justice procedure does not in practice disadvantage any particular group. Defendants who choose to opt into the single justice procedure will be carefully guided through the process and will have access to both telephone and face-to-face support. For those who decide to proceed with a hearing, the necessary adjustments will be made at court in the usual way.

I am aware that concern has been raised that the single justice procedure lacks transparency. However, the criminal procedure rules oblige courts to give certain additional information on cases upon request from the media and other interested third parties. This applies to single justice procedure cases as well. To improve transparency arrangements, a list of pending SJP cases is published each day on a common platform that is available to the public online.

I am also aware that concerns have been raised about errors, as they were by the hon. Gentleman. Errors can occur in any system and there are processes in place to correct them. I am not aware of any evidence to suggest that the error rate is higher under the single justice procedure than under ordinary court procedures. As with all types of cases that magistrates courts deal with, if an error is made by the court, whether upon conviction or sentence, the court will always notify the defendant and correct it, following the case being reopened. Similarly, the defendant has the automatic right of appeal to the Crown court against conviction and sentence. If a defendant was unaware of the proceedings, they are entitled to make a statutory declaration that revokes the conviction and recommences the proceedings.

Given the safeguards in place and our commitment to continually review and improve the single justice procedure processes––

[Alex Cunningham]

The Minister appears to be coming to the end of his remarks and I want to press him on the unlawful convictions under the coronavirus legislation. Is the Department moving to ensure, or at least to encourage, proactivity in getting these people’s convictions removed?

[James Cartlidge]

One reason that I am more than happy to meet is that we can go through more detail. There are a range of issues here that I would need to discuss with the hon. Gentleman.

On the new clause, I can see no reason for a formal evaluation and certainly not one that would delay the implementation of all provisions in the Bill. I therefore urge the hon. Gentleman to withdraw the new clause.

Clause 5 makes it clear in law that the single justice procedure can be used to prosecute legal persons such as corporations as well as individuals. Often, corporations are charged with offences that are suitable for the single justice procedure, such as lorry overloading. The clause ensures that a corporation can benefit in the way that an individual can from the speed and convenience of having such cases dealt with under this procedure.

[Alex Cunningham]

I appreciate the Minister’s response on new clause 1. We can all accept that the SJP is not perfect. We are trying to persuade him of the need to look at data and consider how well it is working, when it is not working and where the problems are. I have illustrated where I think some of them are. The Minister is only a month into his role and is doing a grand job so far. It is important that these issues are explored and not just shoved to one side. I am grateful for his offer to meet and I am sure that will happen.

I will just make one final point on transparency. It needs to be better. There are some good things happening already, but the Minister recognises that transparency is an issue and I look forward to seeing the changes that he might make in the future. I have already covered the issue of unlawful convictions.

--- Later in debate ---

[Alex Cunningham]

Clause 6 adds new sections to the Magistrates’ Courts Act 1980 that enable defendants to engage with the plea before venue and allocation procedures in writing, rather than in court. The new sections apply in cases involving a defendant aged 18 or over who has been charged with an either-way offence. This effectively creates a new pre-trial allocation procedure, whereby an individual will be able to indicate a plea in writing for all summary-only, indictable-only and triable either-way cases. This would remove the need for a defendant to attend an allocation hearing in person, as is currently required. The provisions under the clause are not mandatory and a defendant could attend a physical hearing if they wished to do so.

As with other measures in the Bill, the Opposition are not necessarily completely opposed to clause 6, but we need further reassurance from the Minister and possibly amendments that would introduce safeguards into the procedure. That is because, as the Minister will be aware, deciding how to plead and deciding where a case may be heard can have significant consequences for a defendant. One example would be if a defendant chooses to proceed to the Crown court in a triable either-way offence. They may receive a harsher sentence than in a magistrates court, because of the greater sentencing powers of the Crown court.

Decisions regarding plea and the venue of criminal trials are crucial ones that determine the course of the trial and have serious implications for the rights of the defendant, which can be extremely difficult to reverse. Fair Trials states:

“In particular, pleading guilty amounts to a waiver of the accused’s right to a trial, and all the defence rights that are related to trial processes. Although the Bill purports to enable accused persons to only make an ‘indication’ of their plea, which can later be revoked, Fair Trials has doubts that many defendants would do this, unless they benefit from effective legal assistance.”

I will speak further about legal assistance when we discuss amendments 53, 54, and 55.

Fair Trials goes on to say:

“Moreover, the right to a public hearing with the presence of the accused person is of fundamental importance not only to the defence, but also to the public. First appearances in court are crucial stages of the criminal justice process, where important decisions regarding criminal cases and the rights of the accused are made. Clause 6 will mean that many of these hearings will effectively take place in secret....it is crucial that there are sufficiently strong safeguards to ensure that defendants entering their pleas online, or via written procedures make adequately informed decisions.”

The Bar Council believes that hearings that involve indicating plea and determining mode of trial should remain as in person. It explained in its briefing ahead of Second Reading:

“Moving to a written procedure would ultimately impede access to justice for defendants who are often vulnerable due to a range of additional needs, and a disproportionate number of whom (relative to the overall population) have literacy issues, and some of whom may not speak or read English as a first language… Any criminal charge is serious, an either way offence self-evidently so. Moving to a written procedure for an indication of plea and mode of trial increases the probability of defendants, even if entitled to legal advice, suffering a disadvantage. Consequently, there is good reason to question the fairness of such written procedures and we do not believe therefore that it would be in the overall interests of justice or efficiency to adopt such a new approach... Further, the early plea and mode of trial hearings are some of the most procedurally complex in the criminal justice system. In order to ensure that defendants are able properly to navigate the various issues which such hearings present, it is essential that they are able to secure representation at the moment at which they are required to make—and inform the court of—key decisions.”

The Bar Council also referred to the crucial role that criminal solicitors and junior barristers often play in the magistrates court in referring vulnerable defendants to support services that can offer them help. That possible moment for intervention is clearly lost when such hearings are no longer in person.

That is a serious catalogue of concerns levelled against the clause. I appreciate that it is not the Minister’s intention to cause those potentially extremely adverse consequences, but the reality is that potentially many thousands of defendants will face those and suffer worse case outcomes.

The Opposition understand the concerns and share the reservations of Fair Trials and the Bar Council, but we first seek assurances from the Minister that appropriate safeguards will be put in place. Amendment 52 would require that all accused persons whose cases are considered for the written or online procedure are subject to a health assessment, so that only those who are considered not to have vulnerabilities or disabilities are able to indicate their pleas remotely. That is for the same reasons that I outlined in my speech on amendment 57 to clause 3, so I will not rehearse all the arguments again. We are again concerned that the Bill does not address the risk of vulnerable defendants indicating pleas with insufficient knowledge and understanding of the implications. We therefore seek some form of screening safeguard to be put in place.

Amendment 56 would require the expansion of online pleas and online indication of pleas to be piloted in two areas of England and Wales, and the pilot evaluated with published results, before any further changes are introduced. Transform Justice’s briefing notes suggest that

“encouraging online pleas could act as a driver to lack of legal representation, worse outcomes, and exacerbates efficiency issues encountered later in the justice process such as difficulties obtaining full disclosure from the prosecution.”

The Equality and Human Rights Commission said in its briefing that the provisions for pleas in writing

“risk the ability of people with certain protected characteristics to effectively participate in criminal proceedings”.

Given those serious concerns about the impact of the proposals on effective participation in the justice process, the changes should be piloted in two police force areas and an evaluation of the costs and impact of the changes, including on disabled people, should published before wider roll-out is considered. I am interested to hear what safeguards the Minister has considered for the new allocation procedure for adult defendants. As I have said, plea and allocation hearings can have major impacts on case outcomes, and I am sure he agrees that it is vital that we get the procedure right before it is rolled out across the country.

[James Cartlidge]

The amendments relate to vulnerable defendants using the provisions in clause 6 that allow adults to indicate a plea online. To be clear, I share the concern of the hon. Member for Stockton North to ensure that vulnerable defendants, including those with disabilities, are able to engage effectively with online procedures. That is why we have built a number of safeguards into all the criminal procedure measures in the Bill, including this one.

Amendment 52 would ensure that a court cannot invite a defendant to indicate a plea online unless it has been provided with a physical and mental health assessment indicating that the online procedure will not impede the defendant’s ability to effectively participate in proceedings. It will be a matter for the court, in any case, to decide whether it is appropriate to invite the defendant to indicate a plea online before their first hearing. Not all defendants will be offered the option of engaging with the court online before their first hearing, and the courts will do so only where they consider it appropriate. Defendants will be under no obligation to accept an invitation to proceed online and can choose to discuss these matters at a traditional court hearing if they so wish.

Where a defendant fails to engage online, the proceedings will simply default back to existing court-based procedures. Those who do choose to indicate a plea online will be given information about the procedures available, how they work, the consequences if followed, and the need to obtain legal representation. They will only be able to enter a plea and allocation decision through their legal representative. As they do currently, legal representatives can help to identify if the defendant has any vulnerability that would mean that they cannot understand the process. Furthermore, any online indication of plea will remain just that—an indication. A defendant will be able to withdraw it. They still have to appear before a court to enter a binding plea where the court will be able to assess the extent to which they are making an informed decision. The court can set aside earlier steps in proceedings where it decides that a defendant has not made an informed decision when indicating a guilty plea online, and that indication of guilt cannot then be admitted as evidence against them in later proceedings.

Amendment 56 would require a pilot of the online indication of plea procedure to be undertaken and evaluated before the procedure is implemented to assess the impacts on defendants and, in particular, vulnerable defendants. I share the concerns of the hon. Member for Stockton North about impacts on defendants but do not agree that a pilot is necessary. We have undertaken an equality impact assessment and have built a number of safeguards into the online procedures to protect vulnerable defendants. As with all criminal procedures, the operation of this new procedure will be closely monitored by the Criminal Procedure Rule Committee. I have already set out the safeguards we have built into these procedures so that defendants will not be disadvantaged by engaging with the court in this way, and to ensure that any impacts are positive in minimising the stress of having to attend court unnecessarily. I therefore urge the hon. Gentleman not to press the amendments.

[Alex Cunningham]

The crux of this matter is the defendant making an informed decision. The Minister referred to that. Coupled with that is the need for appropriate legal advice. The Minister also alluded to that. I do not know how we ensure that the person understands that they need to seek legal advice before participating in this process. However, given what the Minister has said, I am content and beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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[James Cartlidge]

The amendments would all add further safeguards to clause 6, which allows adults to indicate a plea online. As I have said, I share the concerns of the hon. Member for Stockton North that defendants can engage effectively with online procedures. In the previous group of amendments, I set out the numerous safeguards included in the provision, which also apply here.

Amendment 54 would require that defendants who are given the option to provide an online indication of plea for an either-way offence are informed about the real-world consequences of pleading guilty to a crime at court and what it could mean to get a criminal record. The hon. Member for Stockton North is right that the prospect of a criminal record is not something that should be taken lightly. Clause 6 already ensures that the court must provide important information about the consequences of giving or failing to give an online indication of plea. I must stress again that this is an indication of plea and is not binding. That means that a defendant will have to appear at a subsequent court hearing to enter a binding guilty plea before they can be convicted. The court will need to be satisfied that the defendant has made an informed decision.

Defendants will also be able to withdraw an indication of guilty plea, and that previous admission of guilt cannot be used against them. They will require a legal representative to engage online, who I would fully expect to explain the serious implications of pleading guilty at court and getting a criminal record. If the courts decide that it would be appropriate to provide any additional information to defendants invited to plea online, the legislation enables this to be done under the criminal procedure rules. The Criminal Procedure Rule Committee was created by Parliament precisely for the purpose of making detailed rules of procedure for criminal courts in a flexible way. Delegation to the Committee is widely accepted as appropriate for this sort of secondary legislation.

Amendment 53 would provide that a court cannot invite a defendant to indicate a plea online unless the court is satisfied that the defendant has engaged legal representation. It is our intention to ensure that defendants seek legal representation at the earliest opportunity in all criminal proceedings. As I have said, they will already require legal representation in order to indicate a plea online. That is because the online procedures are made possible through the common platform, which is not accessible to defendants.

Amendment 55 would require prosecuting agents, such as the Crown Prosecution Service, to obtain proof that a defendant had received all the necessary information sent to them by the court about the new written procedure for indicating a plea online for an either-way offence. There are already procedures in place to ensure that information is sent by the court securely and to the correct correspondence address of the intended recipient. These procedures will continue to be followed as normal. I appreciate that there may be occasions when an invitation does not reach the recipient, but that will not disadvantage any defendant. After all, it is up to a defendant if they want to provide an indication of plea online. If they do not—because they choose to ignore the invitation or never received it in the first place—the proceedings will simply begin, as they do now, at the scheduled first hearing. The absence of a response will not be held against them.

I remind the hon. Member for Stockton North that it is also our intention to ensure that defendants seek legal representation at the earliest opportunity in all criminal proceedings. They will need to do so in order to indicate a plea online. Their legal representative will be qualified to ensure that they understand the procedure, have all the information they need to make an informed decision and understand all the consequences that come with it. It would be disproportionate and inefficient to mandate the prosecutor to obtain proof of receipt for each and every invitation that was sent by the court, especially when we have all these safeguards in place, paired with the fact that some defendants will have absolutely no intention of engaging online, opting for a traditional first hearing instead.

[Alex Cunningham]

I have a simple question about receipt of the charge. Through the post office, people can have a recorded delivery and actually sign for a letter. Why are the Government resisting that? They would know that the person had definitely received the charge, because there would be a signature saying that they had.

[James Cartlidge]

There are pluses and minuses to that approach. To repeat the point I made earlier, if they never received the notice in the first place, the proceedings would simply begin, as they do now, at the scheduled first meeting. In that sense, there is not a fundamental difference. I think I have covered all key points on this group of amendments and I urge the hon. Member not to press them.

[Alex Cunningham]

I will not detain the Committee long. I listened carefully to what the Minister said about doing everything possible to make sure that the defendant accesses legal support. I would prefer to see that on the face of the Bill to make sure that it definitely happens, so I will push amendment 53 to a vote but not press amendment 54 or 55.

Question put, That the amendment be made.