Judicial Review and Courts Bill (Second sitting)

Janet Daby Excerpts

Committee stage
Tuesday 2nd November 2021 Public Bill Committees

[Tom Hunt (Ipswich) (Con)]

Q We understand that the Chief Coroner will be providing guidance to coroners on the proposed five measures in the Bill. Do you think that that will ensure consistency of practice across coroner areas, given that coroners are independent judicial office holders and that judicial decisions are for them to make?

André Rebello: Absolutely. We should bear in mind that coroners are judges like any other judge, and every judge is an independent judicial office holder. No other judge, other than a properly constituted appellate court, can tell another judge how to decide something or do something. However, it is important to have guidance to ensure consistency not only between coroners, but internally for each coroner. What you have to bear in mind is that every coroner determines the facts of the case on the very facts that are before the coroner. No two cases are actually the same. If the Chief Coroner is minded to issue guidance, that can only help to make these things work.

When you look at the provisions, the ability to merge coroner areas is something that has been long needed, because at the moment you can only merge unitary authorities, not parts of those authorities and that has delayed the coroner reform project. It is sensible that the disapplication of reportable deaths under covid continues because we are not out of the pandemic. On remote hearings, we should be brought in line with the Courts and Tribunals Service, with some guidance to ensure consistency, so that that facility is used where necessary, but not overused, because the rule of law and open justice is very important and people should be able to attend to see justice being done.

As we have just discussed, written inquests, without going into court, will have their need when coroners are struggling to get a court. The ability to discontinue cases when we have not ordered a post-mortem is long over needed. Occasionally, we will have a GP abroad who knows the cause of death and there is no one else qualified to give a cause of death. The only way the coroner could open up the facility to discontinue that case would be to order an unnecessary post-mortem. The proposal will enable coroners to open an investigation and when the GP returns, to discontinue and have the death registered.

That does raise another issue that the Bill does not cover, and I am sure that Members will be aware that the sunset clause in the Coronavirus Act 2020 expires in March next year. The law used to be that a doctor had to treat a patient in his or her last illness and, relying on regulation 41 of the births and deaths regulations, had to have seen the patient within 14 days of death, or seen the body after death. The Coronavirus Act gave an easement, enabling 28 days to be used, whereby any doctor had seen the patient and any other doctor could see the body after the death. It looks as if that part of the Coronavirus Act will expire before Parliament has a chance to bring into force the medical examiner and death registration provisions. There will be a big lacuna in the work coroners are carrying out. If doctors are not seeing patients face to face and cannot issue death certificates, far more cases will be unnecessarily reported to the coroner. If there is any way to continue that coronavirus easement on death certification, it would be greatly appreciated, particularly by the bereaved.

[Janet Daby (Lewisham East) (Lab)]

Q According to Transform Justice:

“Online pleas compromise open justice principles by removing the opportunity for the plea hearing to be witnessed/observed.”

It sounds like you may agree, Mr Rebello. To what extent do you think online pleas are compatible with the principles of open justice?

André Rebello: I am not sure that is a matter for a coroner, because I deal with inquisitorial proceedings in which there are no pleas.

Richard Leiper: This might relate to the Crown court part of the Bill, which I do not think either of us deals with. Online pleas would be an aspect of the criminal process.

[Janet Daby]

Okay, I will leave that for session 6.

[The Chair]

Three questioners wish to be called a second time. I will call them in the order in which they indicated.

--- Later in debate ---

[The Chair]

Order. Janet Daby.

[Janet Daby]

Q I will direct my question to Mr Clancy. In its briefing, Transform Justice says:

“Online pleas compromise open justice principles by removing the opportunity for the plea hearing to be witnessed/observed.”

What is your view on that?

Michael Clancy: I am not entirely sure that I can comment competently on what is happening in the jurisdiction of England and Wales. It is certainly the case that there have been trials in Scotland of not only online pleas, but online trials with juries distanced from the courtroom. I do not know whether Aidan O’Neill would have more practical experience. The situations in the two jurisdictions are quite different, and my latest information is that we have almost reached pre-covid levels of conduct of trials in Scotland, which may have an element of online activity.

Of course, there are distance issues with some courts in Scotland. I remember one solicitor describing the fact that being able to conduct trials or provide pleas to court from Inverness in three courts in rural areas over the online system was actually quite a boon. I do not know whether that goes so far as to answer your question, but it is an observation that I can make from the Scottish jurisdiction.

[Janet Daby]

Would anybody else like to respond?

Aidan O’Neill: Echoing what Michael Clancy has said, I would just say that, at least anecdotally in terms of the situation in Scotland, full criminal trials, rather than simply online pleas, seem to have been working quite well. In fact, in terms of satisfaction levels, jurors seem to quite like the idea of turning up at a cinema, rather than at a court, and being more comfortably seated and better looked after while still being able to see and, apparently, participate in the criminal trial that is taking place elsewhere.

That is not answering the detail of your question, which I think was more directed towards the idea of things going online meaning less public participation. I would have thought that that was really a matter depending on the software or program used to allow for greater observation by the public online. On some levels, it is easier for the public to participate when cases and trials are online, precisely because they do not have to go all the way into court—the physical location—to watch it. I am unsure whether that addresses what it was you were asking.

[Janet Daby]

Would you like to respond, Dr Tomlinson?

Dr Tomlinson: I have spent quite a lot of time looking at the online proceedings question in England and Wales, and there are lots of interconnecting challenges around the move to online hearings. I have not spent much time looking at the criminal context, but rather at the use of online proceedings in tribunals. The challenge there with open justice is that online proceedings can potentially enhance open justice in various ways, but also diminish it. There is a real need for clarification of strategy in terms of key things like open justice, but also other areas, such as digital exclusion, in the reforms that we are seeing.

[Angela Crawley]

Q My question is to Michael Clancy. In its report, the Law Society of Scotland outlined questioned the Government’s conclusion that a legislative consent convention does not apply to the abolition of Cart judicial reviews in respect of reserved tribunals in Scotland, and that judicial review is a devolved matter under the Scotland Act in section 126(4). Why does the Law Society of Scotland consider that a legislative consent motion is required? Will one be required for clause 2 of the Bill?

Michael Clancy: We do take the view that the provisions of clause 2 engage legislative consent, otherwise known as the Sewel convention, which would require the consent of the Scottish Parliament. The reason for that is a piece of law that is a bit complicated and a bit tricky. Nevertheless, you began by identifying that judicial review of administrative action is part of the definition of Scottish private law, which is contained, as you say, in section 126(4) of the Scotland Act 1998. That is a significant element in terms of recognising that it is a devolved matter exclusively; it is not split between the reserved areas of law and the devolved ones.

I freely recognise that the Government have taken steps in terms of new clause 11A(5) of the Tribunals, Courts and Enforcement Act 2007, which states:

“Subsections (2) and (3) do not apply so far as provision giving the First-tier Tribunal jurisdiction to make the first-instance decision could…be made by…an Act of the Scottish Parliament, or…an Act of the Northern Ireland Assembly passed without the consent of the Secretary of State.”

However, while the Scottish Parliament does not have the power to modify the law relating to reserved matters, paragraph 2 of schedule 4 to the Scotland Act makes provision that applies only to the rules of judicial review insofar as

“the rule in question is special to a reserved matter”.

Special to a reserved matter would of course be a rule that would relate to something like an immigration tribunal, employment tribunal or employment appeal tribunal. Those are the kind of tribunals that one would think about.

In the 2010 Supreme Court case of Martin v. Most, there was a decision that a general rule that applies to both a reserved and devolved matter is not special to a reserved matter. Therefore, our conclusion is that if we follow the rule in Martin v. Most we get to the position where the decision in Eba—in fact, all judicial review matters under Scots private law—engage the Sewel convention and would therefore require the consent of the Scottish Parliament to be complied with, because of course it is declared in section 28 of the Scotland Act that

“the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.”

Of course, section 28 provides that the UK Parliament can always legislate for Scotland. That is not in dispute. It is whether the Sewel convention is engaged. I hope that that answers your question.

Judicial Review and Courts Bill (First sitting)

Janet Daby Excerpts

Committee stage
Tuesday 2nd November 2021 Public Bill Committees

[Sir John Hayes]

Q I simply recommend that you read the Attorney General’s speech on this, delivered in Cambridge about a week ago, which sets out exactly why this matters and defines judicial activism pretty well. I make no more comment, but refer you to that.

Professor Feldman: Thank you. I shall read it with interest.

[Janet Daby (Lewisham East) (Lab)]

Q Returning to quashing orders, the Bill proposes the introduction of suspended quashing orders. They would allow the courts to give public bodies a certain amount of time to correct an unlawful act, instead of immediately striking it down. Could this have any negative implications for claimants in judicial review proceedings?

Dr Morgan: I think I just want to repeat what I said earlier, which is that it certainly could. To adopt Professor Feldman’s example, if the court suspends the effect of its order in an immigration case, you might have been deported by the time the order comes into force. Certainly it could cause serious problems for applicants in particular cases, but there are countervailing advantages, particularly where we are dealing with the general legislative scheme, which the court would otherwise immediately quash with retrospective effect. That could cause enormous difficulties in a very important area.

The Ahmed case was about quashing these freezing orders, made by requirement of the United Nations Security Council on suspected international terrorists. The court said that the whole legislative scheme had to be immediately quashed, as many Members will remember. It required emergency legislation to deal with it. In cases like that it could be beneficial, but it could cause a problem for a particular applicant. My earlier answer suggested how we might try and address it; Professor Feldman was right to say that damages and compensation are not always the answer, but they might be sometimes.

[The Chair]

Q Professor Feldman, do you want to comment on that?

Professor Feldman: I will just say that lying behind this there is a difficulty that faces people drafting legislation like this. The onus is to be general and to apply to all kinds of decisions and rules, whereas, in fact, quashing a rule has rather different implications from quashing an individual decision, so the approach to it has to be similarly different.

[The Chair]

Are you happy with that, Janet?

[Janet Daby]

Yes, that is fine.

[Marco Longhi (Dudley North) (Con)]

Q I am glad you mentioned immigration and asylum a few moments ago, because back in 2004 the Labour Government tried to remove judicial review by using a very broadly worded ouster clause. Does this not suggest that removing Cart JR, with a tightly worded ouster clause, is in fact just a moderate and proportionate step?

Dr Morgan: The context was slightly different. You could say the ouster clause before us in clause 2 is less extreme, because it allows for JR on certain very narrow grounds. That is one reason why the courts would be more likely to accept what is now proposed than the Labour proposals back then. Of course, they were never even enacted, let alone reached the courts, so it will be a nice hypothetical question about whether it would have survived scrutiny or not. All it shows is that this particular question of having a huge volume of challenges, very few of which succeed, is not a new problem. It has been there for at least 20 years. Successive Governments have wrestled with it.

Cart was a very noble attempt to hold a balance, but even some of the judges who decided the case—Lord Brown and Lord Hope—have now accepted that their solution has not worked and perhaps a more drastic solution, as in clause 2, is justified. I think if the judges themselves are accepting that they went too far, that is something Parliament should take careful note of.

Judicial Review and Courts Bill (Third sitting)

Janet Daby Excerpts

Committee stage
Thursday 4th November 2021 Public Bill Committees

[Andy Slaughter]

I am grateful to my hon. Friend, who makes exactly the right point. He did not hear me paying tribute to him when he was temporarily detained elsewhere. I am pleased that, as an experienced shadow Minister, he is on the Committee.

People in charge of public authorities should welcome judicial review, which, like many court and tribunal processes, is a way to scrutinise and improve decision making either directly through a challenge or because they want to avoid such a challenge. In my humble way, I remember the 10 years or so when I was running a local authority, and unless other members of the Committee were also in that position—there may well have been—I have probably been subject to more judicial reviews than anyone on the Committee. I must say that while we can take a view on the merits of an individual case, the process is generally beneficial for the authority. As my hon. Friend said, what have they got to hide?

[Janet Daby (Lewisham East) (Lab)]

Does my hon. Friend agree that judicial reviews are a part of the checks and balances on Government?

[Andy Slaughter]

I absolutely agree. It is an important part of those constitutional checks and balances, and it has become more important. In a country without a written constitution, it is totally appropriate that a common-law process such as judicial review should develop as it has. I do not mean that it is excessive or that it has grown out of control; it has simply moved with the times in a way in which our senior courts in particular are able to do. As I say, the Bill is a clear attempt to reduce proper accountability for state actions.

--- Later in debate ---

about the quashing of the development consent order. Applying a prospective-only quashing order remedy, it would be unclear whether ultimately the building works would go forward; probably they would, but we do not know that. However, the court may be obliged to make this order if it prevented the continuation of building works, as that might provide “adequate redress” for the claimant.

[Janet Daby]

Does my hon. Friend agree that all sorts of consequences arise from the proposed measures? They are likely to make things much more complicated and less clear, and to provoke further litigation.

[Andy Slaughter]

Yes, and I am grateful for that reminder. I have a little more to say on the Stonehenge case and I will mention one other case that is familiar to Members. However, my hon. Friend makes exactly the point: there is mischief caused here. However many times the Government say, “This is designed to simplify and extend the powers,” the less credible that seems when one looks at the actual nature and type of decisions that would be affected, and at how they would be affected.

In the Stonehenge case, the likely effect of the order would be to remove the possibility for collateral claims for compensation against the Government for their unlawful decision up to the date of the prospective order. All preceding activity, including expense in performance of any contracts that the judicial review court may not be fully aware of, if at all, are reliant on the unlawful decision would be considered lawful to the date of the order, even though the full contracts could not be completed. This could cause significant loss to contractors who were not present to make representations during the hearing, as they could potentially only claim for losses thereafter.

The other case I will mention is the Unison case, which is another important real-world example. It is worth considering the impact that prospective-only remedies could have had if they had applied in that case, which concerned, as I think all Members know, fees to access employment tribunals. Having found that Parliament could never have intended a clear derogation from the right of access to justice, the Supreme Court quashed the order that required individuals to pay to use the employment tribunal.

The remedial consequence of the quashing order was that the Government were required to retrospectively refund the claimants who had been charged fees. A prospective-only remedy in this scenario would have denied the claimants this refund and therefore would have been a serious injustice to the claimants, whose fundamental right to access to justice had been found to have been violated.

Judicial Review and Courts Bill (Fifth sitting)

Janet Daby Excerpts

Committee stage
Tuesday 9th November 2021 Public Bill Committees

Therefore I simply say that these amendments are unhelpful in terms of the Opposition’s stated intent of clearing the court backlog, unhelpful in failing to grasp the pressing problem of the constitutional imbalance that is emerging as a result of judicial activism, and unhelpful in terms of retaining the integrity of judicial review. And I say this, because I know that the hon. Member for Hammersmith is an experienced Member of the House and I appreciate that he has gone about his work with diligence—I see part of my duty as to bring light to his darkness. I am surprised that the hon. Gentleman has moved and spoken to these amendments, because I am sure that he will want to have a prevailing system that not only works, but is worthy of respect. In those terms, and not wishing to delay the Committee unduly, I strongly support the Minister’s position in resisting the amendments before us and strongly support, too, the proposals before the House to reverse the peculiar decision made in 2011, which is not unlike some other peculiar decisions that have emanated from the Supreme Court.

[Janet Daby (Lewisham East) (Lab)]

I am also inspired to speak in this debate. I think that I would be doing my constituents an injustice if I were not to say something on this really important issue. I give credit to the hon. Member for Glasgow North East, who tried to give more of a human approach, through the experience of the person who went through the court proceedings to do with Venezuela. I appreciate her attempt to do that, although it was not very well received by Government Members.

I just want to share a few things. I do not come from a legal background, but I do come from a social care background, and I have worked with refugees and asylum seekers in the past. People may or may not be aware of some of the really abusive situations that they face when they are travelling from their country of origin and try to find passage over here. Some of the stories that I am aware of involving young people and children, although the clause is not necessarily about children, are absolutely horrific. People are raped, abused and threatened at gunpoint to be silent. It is very disturbing to hear of those cases. When there is not enough evidence, or evidence is not being received properly, during the first court hearing and the second, but it is found, during the third hearing, that actually there is a clearer understanding and a clarity that then would go on to save somebody from suffering a level of persecution if they were returned to their country of origin, I think that is worth while.

I do not want to take up too much time, but I will briefly talk about just one case that I happened to work on when I was working as a social worker. It involved a person who was seeking political asylum at the time. He went through the process three times and eventually received status in this country. But on one occasion, his parent was very ill and on the brink of death, so he decided to go back to his country of origin. I am not going to name names or countries, because of confidentiality, but he went back to that country to try to see his mother. Then his wife frantically came to me to say, “He hasn’t returned home on his flight. He’s been missing for two days. Can you help?” At the time, I did not know what to do to help, but I contacted the embassy, and the embassy contacted the country, and found out this person’s identity and that he had been put in prison. It was almost as if the keys had been thrown away because they realised who he was. After the contact that I was able to make with the Government, they were able to put him on a flight back, because somebody showed some care in his situation.

My point is that we are talking about human beings and human lives. We are talking about saving people from persecution and death if they return to certain countries of origin. I am talking specifically about asylum seekers and people who need refuge in our country.

[Andy Slaughter]

We are debating the merits of clause 2 as a whole. We will not support clause stand part for two reasons. First, we believe that it insulates serious cases from judicial review, and not a small number of those. Secondly, it opens the door to wider use of ouster, which should be resisted, or at least examined closely.

As I listened carefully to the Minister and Government Back Benchers, I identified essentially two arguments. One is that in supporting Cart judicial review there is some element of special pleading—the fruit-based analogy, if we can put it that way. The second is that the clause would in some way address the court backlog. I said a bit about that, but let me deal with it briefly. I am not entirely sure how a relatively small amendment, in terms of cost and the number of cases, to the way judicial review works will assist with the Crown court backlog of 60,000 cases. The idea that the solution is to get rid of Cart judicial review rather than having sufficient Crown Prosecution Service prosecutors, defence counsel and recorders or, indeed, a sufficient number of courts is a fantasy. Can we not set that aside?

Judicial Review and Courts Bill (Sixth sitting)

Janet Daby Excerpts

Committee stage
Tuesday 9th November 2021 Public Bill Committees

[Alex Cunningham (Stockton North) (Lab)]

I beg to move amendment 45, in clause 3, page 4, line 29, at beginning insert—

“(1) Before this section may be commenced, the Secretary of State must—

(a) commission an independent review of the potential impact, efficacy, and operational issues on defendants and the criminal justice system of the automatic online conviction and penalty for certain summary offences as set out in Clause 3 of this Act;

(b) lay before Parliament the report and findings of such independent review; and

(c) provide a response explaining whether and how such issues which have been identified would be mitigated”.

This amendment would require a review of Clause 3 of this Bill before it is introduced.

Good afternoon, Sir Mark. It is, as ever, a pleasure to serve under your chairmanship. I would like to take this opportunity to welcome my hon. Friend the Member for Hammersmith back to his place on the shadow Justice Front Bench. It was my privilege to serve as Parliamentary Private Secretary to our wonderful Mayor of London, Sadiq Khan, when he was shadow Lord Chancellor and my hon. Friend was a shadow Minister. I was pleased to learn from him then, and continue to do so today. It is also good to welcome the Minister to his place as we face each other across the room formally for the first time. I hope that this will be the first of many such opportunities.

I do not underestimate the job that the Minister has taken on, given the crisis in our courts, the record backlog in the Crown court and elsewhere, and a Justice Department stripped of resources over the last decade. Just in case he tries to rely again on the covid pandemic as an excuse, let me point out that it was all in a terrible mess long before covid and long before he arrived in his post. Just one of the facts that I have picked up is that in 2010 there were 152,791 Crown court cases, which took an average of 391 days to complete; in 2019, there were 107,913 Crown court cases, which took an average of 511 days to complete. Clearly, the Minister has his work cut out. We wish him well with it and will be happy to offer our contributions and advice along the way.

I also pay tribute to the Committee Clerks for their, as ever, first-class professionalism and support as we prepared for this Committee stage.

My final thanks go to stakeholders outside the House, including Justice, Fair Trials and Transform Justice, among others, for their energetic and constructive scrutiny and input, which have been of great assistance in identifying potential concerns about the Bill’s practical implications.

Given the amendments we have tabled—the first of which I shall speak to in detail shortly—it will be no surprise to the Minister that the Opposition have reservations about clause 3. However, we do very much recognise the need for, and indeed the benefit of, potentially moving some court processes online, so I will share our concerns in the hope that the Minister can provide reassurances to quell them.

The clause will create an automatic online conviction and standard statutory penalty procedure, which will provide automatic online convictions as an alternative to the single justice procedure. Through this process, a defendant could opt to plead guilty online, which would result in an automatic conviction without the need for a hearing. The Bill’s explanatory notes state that, to begin with, the procedure will apply only to offences involving

“travelling on a train or tram without a ticket and fishing with an unlicensed rod.”

It is critical to note that secondary legislation approved by the affirmative procedure may make additional offences eligible.

As currently drafted, the clause has limitations. For instance, the defendant must consent to use of the process, so they retain the right to opt for an in-person hearing instead. Furthermore, the procedure is only available in respect of non-imprisonable summary offences where the accused was aged 18 or over when charged. Although we agree that these limitations, such as they are, are appropriate, there are a number of areas in which we think the safeguards built into the procedure need to go further.

The proposal to introduce online pleas was first made in the Prisons and Courts Bill in 2017. Transform Justice noted:

“It had not been subject to any public consultation then and still hasn’t.”

The assumption behind the clause, as with the expansion of written pleas, which we will come to in a later debate, is that a plea hearing is a straightforward and purely administrative hearing. It assumes that people will straightforwardly know whether they are guilty and will need no direction, assistance or support in pleading guilty to a criminal offence. I said earlier that this procedure is an online alternative to the single justice procedure, but there is an important difference. The single justice procedure allows defendants to choose to enter a plea in writing or online for the same types of offences that the automatic online conviction and standard statutory penalty will apply to—that is to say, summary or non-imprisonable offences.

Those who plead guilty and do not request a hearing under the single justice procedure are convicted and sentenced by a single magistrate on the papers before them, and the defendant has the chance to submit mitigating factors to inform the magistrate in writing. If a defendant fails to respond to the letter setting out the charge within the 21-day time limit, the single magistrate will hear the case without any input from the defendant or prosecutor. However, the Bill’s explanatory notes make clear that under the AOCSSP—is there a way of pronouncing that? I do not know—cases could take place entirely online and without the involvement of a magistrate.

Under the single justice procedure, the magistrate can decide that a case is not appropriate to convict under said procedure, which provides at least a minimal level of safeguarding within the process. However, under the AOCSSP, as Justice notes, there is

“no independent judicial (or indeed, human) oversight whatsoever. Moreover, defendants who use the AOCSSP procedure will face a binary choice, with no opportunity to submit mitigating factors if they plead guilty, unless they choose to decline”

the procedure and take the single justice procedure route instead.

The complete lack of human involvement in the process worries me. As a consequence, the Opposition have tabled amendments that seek to build into the process at least some level of safeguards. Although we agree completely with the Government that any online procedure should be optional, I also share Transform Justice’s scepticism, in that the defendant may not feel that they have much of a choice at all. How does the Minister think those pitfalls can best be communicated to the defendant?

The current introductory letter to the single justice procedure notice does not mention the option of pleading in court at all; it is only on page 3 of the following document that it comes up. To be honest, if I received one of these notices, even as the shadow Minister for such matters, I am not sure I would understand from the document that I had a genuine option to make my plea in a physical court hearing, rather than online or by post. Even when defendants understand that such a choice is available to them, I do not think that the information accompanying the note enables them confidently to make the best decision in their case. Some legal expertise is clearly required to know the benefits of pleading in court as opposed to pleading online. Again, I admit that even as the shadow Minister—I do not have any legal training at all; I am a journalist by profession—I would not be able appropriately to weigh the benefits of one course of action against the other. I hope the Minister understands what I mean. I am not trying to be obstructive or frivolous, but I think that the lay person receiving such a notice is currently not particularly well equipped to make a decision about their plea.

Transform Justice’s briefing calls on the Government to

“conduct and publish research on defendants’ understanding of the concept of viable defence and of mitigation, and of the factors to be taken into account in waiving the right to a ‘fair and public hearing’.”

That is an important point. The briefing also notes:

“The European Convention on Human Rights requires that in the determination of a criminal charge ‘everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’. It also guarantees specific minimum rights for those charged with a criminal offence, including the right to be informed of the nature and cause of the accusation, to defend yourself in person, and to have the assistance of an interpreter. The right to a fair and public hearing can be waived by the defendant, but only if they fully understand the charge and the implications of waiving their entitlement.”

Experiences of the single justice procedure suggest that many defendants will not fully understand the charges and the implications of waiving their entitlement to a public hearing. Research into such experiences could be an interesting and productive piece of work for the Department. I would welcome his thoughts on it, or, if his Department has considered the matter already, I would be grateful for more information about its work.

Another concern that has been raised about the expansion of the use of online pleas is that it may inadvertently drive an increase in the number of defendants without legal representation.

[Janet Daby (Lewisham East) (Lab)]

Given the significant changes that are taking place in how people plead—online, by post and so forth—does my hon. Friend think that the Government should conduct a public consultation? From what I have read, that is not happening.

[Alex Cunningham]

I am grateful to my hon. Friend for her intervention. She is correct, and she makes exactly the point that many of the people working in the sector are saying to the Government: we need better data and more examination of the data to drive the best legal system that we can possibly have.

There is a possibility that the expansion of online pleas may inadvertently drive an increase in the number of defendants without legal representation and, importantly, and as a consequence, worse outcomes for defendants. That concern was specifically raised by Transform Justice, which worries that encouraging defendants to plead online

“will lead to more defendants representing themselves … since the process of ‘doing it yourself’ may appear easy.”

I note that the current single justice procedure notice encourages the option of pleading online over the postal option. Pleading online, the defendant is told, is “quick and easy”. They are informed that they will receive a confirmation email, so that they know their plea has gone through—just like buying something from Amazon. The notice warns:

“You need to pay correct postage and allow enough time for delivery”.

That is helpful advice, but I worry that we are already seeing a push towards online pleas marketed as justice made easy for the defendant when that is not necessarily going to be the case. It may be easy, but it may deny them proper justice.

In fact, entering a plea can be a very complex decision. Transform Justice’s research on unrepresented defendants in the criminal courts found that entering a plea was one of the times when defendants without legal representation were most disadvantaged. As they note in their briefing,

“Unrepresented defendants did not understand when they had a viable defence and should plead not guilty, but also pleaded not guilty when the evidence against them was overwhelming, thus losing credit for an early guilty plea if convicted.”

I am aware that the explanatory notes to the Bill suggest that online pleas will be able to be entered only if the defendant has legal advice, and I understand that it is the Government’s intention that that would be done through the common platform. That would mean that the defendant would need to engage the services of a legal professional. However, I am concerned that that safeguard has not been put into the primary legislation. I will speak about that more fully in the debate on amendment 48 later this afternoon.

Even more worrying is the fact that paragraph 59 of the Bill’s impact assessment seems to suggest that that safeguard will be available only to those accused of more serious offences. As the Minister knows, the implications of a guilty plea, even for minor offences, can be significant, including a criminal record for life that can detrimentally impact employment prospects, among other things. I would be grateful for reassurances from the Minister that the online system will include information that ensures that the defendant is aware of all the possible impacts of choosing to enter a guilty plea. Again, I will speak to that point more fully in the debate on amendment 50.

--- Later in debate ---

[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.”

[Janet Daby]

The postal charge raises significant concerns. I know of constituency cases where people have changed address and their benefit letter has gone elsewhere, so they have ended up with frozen benefits. There will be huge problems ahead if things are sent by post and end up in somebody else’s postbox, or if people move and do not receive letters. I am particularly concerned about people with mental health issues and vulnerable people who, even if they do receive a letter, may not be able to interpret it.

[Alex Cunningham]

My hon. Friend is correct and gives excellent examples. I had an example a few weeks ago of a constituent who found out that he was likely to be locked up because he had not paid his television licence. He had not received the letter because he was no longer at that address. I know that he had a responsibility to inform people that he had moved on, but the fact that nobody tried to find him before it got to the point of court bailiffs turning up at the previous property to take goods away to pay his fines and court costs is a nonsense. Clearly, that can happen.

[Alex Cunningham]

Almost certainly. Our hon. Friend the Member for Lewisham East talked about people with mental health problems or disabilities who are all disadvantaged by these proposals, because no adequate system seems to be in place to ensure that they properly understand what they are doing and what is happening to them. If they do not understand, they may choose to ignore it and end up with a conviction and a criminal record, which has terrible ramifications for employment and all manner of other things, including even entering another country. If they have a criminal charge against them, they may not be able to go on holiday to some countries.

[Janet Daby]

I find all this deeply concerning. I wonder whether the Government actually want the postal charge system to work.

[Alex Cunningham]

The last thing I expect from my hon. Friend is cynicism. I am sure the Government want the justice system to work correctly, so it is time they looked carefully at this. As I develop my arguments, I will talk about the need for research and data, which is absent. We have asked for it in the past, but no specific data exists on why people choose to ignore or do not even respond in any shape or form to postal charges.

We do not know why so few people respond to postal charges. It does not seem sensible to expand the use of postal charges until we have more data on the issue. One reason that has been suggested is that many defendants do not even receive the letter. I have already talked about that; it might be sent to an old address, for example. Perhaps the person does not even understand the letter that they have received. The defendant, as we have discussed, might have a mental health condition or a neurodivergent condition that presents a barrier to understanding.

Although phone calls for someone on benefits are now on a freephone number, the initial calls to the HMCTS assisted digital advice on how to fill in a physical online form are charged at local rates. Yesterday I received from the Minister the answer to a written question on support for some vulnerable defendants. I asked what training prosecuting authorities who use the single justice procedure, and who are not the CPS, receive on disability and neurodivergent conditions. The response stated:

“The Ministry of Justice is not responsible for training prosecuting authorities and thus cannot speak to whether they receive training on disability or neurodivergent conditions. In response to the Neurodiversity in the Criminal Justice System: A review of the evidence report, the Ministry of Justice is taking a whole system approach and are working with HM Courts and Tribunal Service, HM Prison and Probation Service, Home Office, Department for Health and Social Care and the Welsh Government to”—

here is the key word for me—

“consider neurodiversity training for all frontline staff within the Criminal Justice System.”

Surely, Minister, it should not be “considered”. It should be a case of deciding how we ensure that it happens and that people across the criminal justice system are fully equipped and trained to deal with people in these circumstances.

For people on low incomes, I worry that the proposals present a significant and unnecessary barrier to engaging with the process. Does the Minister have any thoughts on remedying that? Earlier I looked at the AOCSSP, which seems to disproportionately affect those on low incomes. In a normal court hearing and under the single justice procedure, defendants sanctioned with a fine are asked to state their means, to enable the judge to adjust the fine if necessary. Under the online conviction procedure, everyone would be made to pay the same fine, because there would not be any information on which to base a different decision.

I understand that the equality impact assessment suggests that defendants on low incomes will be made aware of the option to opt for an in-person hearing instead, so that their financial position can be taken into account. I have already spoken about my concern that defendants would not understand that there is a real choice to opt into an in-person hearing, so I am not sure that this is a sufficient safeguard for those on low incomes. Does the Minister have any thoughts on any additional safeguards to protect those on low incomes from being further disadvantaged, since that is identified in the Government’s own impact assessment? Under the AOCSSP, could it be made much clearer that it would be preferable for someone who needs their financial situation to be taken into consideration to opt for an in-person hearing? Is the Minister aware of any existing data relating to whether those who have pleaded under the single justice procedure and the automatic online conviction process have been the recipients of heftier fines than those who attended in-person hearings?

Another possible barrier to effective engagement could surface for defendants with disabilities. The Equality Act 2010 requires public bodies to make reasonable adjustments for people with disabilities. I struggle to see how the AOCSSP will be able to support the use of reasonable adjustments. The Bill makes no provision for screening to see whether defendants will need reasonable adjustments to be made. I will speak to that point more fully in the debate on amendment 57, but it is important to consider the issue briefly at this point. Under the current process for a single justice procedure, defendants are asked to tick on the form if they have a disability. What if their disability has prevented them from opening the letter or understanding the form? How does the Minister think we can address that barrier to participation?

Judicial Review and Courts Bill (Seventh sitting)

Janet Daby Excerpts

Committee stage
Tuesday 16th November 2021 Public Bill Committees

[Alex Cunningham (Stockton North) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Rosindell. As the Minister said, the clause creates a new pre-trial allocation procedure similar to that of clause 6, whereby an individual would be able to indicate a plea in writing for all summary-only, indictable-only and triable either-way cases, but this time it is for children. Thus far on the criminal procedure changes in the Bill the Opposition have tried to work with the Government’s proposals to find a workable solution through amendments; however, that is not the case with clause 8, as we believe that it is wholly inappropriate for remote proceedings of this kind to be used in cases with child defendants. The law rightfully affords children additional protections and safeguards to reflect their inherently vulnerable nature, and propensity to plead guilty notwithstanding the evidence or potential defences, as shown, for example, in the evidence-based Justice Lab report on incentivised legal admissions in children.

The Minister outlined the theory of what will happen with this set of measures, but sadly the implementation of it could prove to be very different. The Bar Council opposes the provisions too, saying:

“We do not accept that a written procedure for indicating plea or determining mode of trial in the case of children will do anything other than impede access to justice for the most vulnerable cohort of defendants within the criminal justice system.

It has long been the position of the Criminal Bar Association and the Bar Council that the prosecution of children and young people requires wholesale overhaul to ensure that they only enter into the criminal justice system as a very last resort, if diversion and other interventions are unsuitable.

Representation of children and young people, and the courts that administer youth justice, need to be properly funded, regulated and restructured in order to be fit for purpose.”

The Bar Council goes on:

“At present, these courts are not fit for purpose, and all too often act as a gateway for vulnerable youths into more serious offending. It follows that moving to a written procedure will compound the situation, limiting the opportunities for lawyers working under a legal aid system to meet with vulnerable defendants and their families, signpost interventions by other appropriate agencies and identifying children and youths with additional needs. It will also impede the child and youth’s understanding of the seriousness of the process into which they have entered.”

I very much agree with the Bar Council’s assessment. There is much wrong with the youth justice system, and the provisions of this clause would exacerbate the existing issues rather than do anything to improve them. I would also like to seek further clarity on whether the provisions of this clause would allow online pleas for children, which would be seriously concerning. I emailed the Minister about it last week, and he responded with a note from officials. However, I wonder if he could provide some more specific guidance about it on the record.

Although it is not within the Bill itself, paragraph 181 of the explanatory notes states:

“Clause 8 inserts new section 24ZA of the MCA 1980 that enables a child or young person under 18 years who is charged with a triable either-way offence to be provided with the choice to indicate a plea in writing/online, without the need for a youth court hearing.”

We are opposed to the introduction of a written procedure for indicating plea or determining mode of trial in the case of children in any way, but have even stronger objections to an online procedure being introduced directly for them.

I share the concern of the Equality and Human Rights Commission, which says:

“The Commission is concerned that children as young as ten could be engaging with the criminal justice system through an online process insufficiently adapted to their needs and with minimal engagement from a parent or guardian. Children are already more likely to struggle to understand and engage with legal processes. Youth Court hearings provide an important opportunity to respond to the specific and additional needs of children. This is particularly important in light of recent evidence indicating that children are more likely to enter a guilty plea when they are not guilty.”

While the Bill provides that a parent or guardian should be aware of proceedings where they take place online, the Opposition are not convinced that that is sufficient to mitigate against the risks posed to children. As the EHRC briefing notes:

“The law currently provides that, where a child under sixteen is charged with a criminal offence, a parent or guardian must attend all proceedings save where it would be unreasonable to require them to do so. For cases where a plea is entered by a child under sixteen in writing or any part of the proceedings is to be conducted on the papers, the Bill only requires the court to ascertain whether a parent or guardian is aware that proceedings are taking place and where necessary provide that information.”

That is in new section 34A(1B) and (1C) of the Children and Young Persons Act 1933.

[Janet Daby (Lewisham East) (Lab)]

My concern about children above 10 years old being able to make an online plea is that when children use a computer and everything is very much virtual, it is a different level of interaction and can seem like a game. I agree with my hon. Friend’s point that their understanding of the process or their experience of making an online plea will be of a less serious nature. I also support his view that children are more likely to say that they are guilty because they are used to apologising, or they want to get out of the situation quickly. This is not the appropriate way forward.

[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.

--- Later in debate ---

If the accused behaves in a disorderly manner, the court would be able to proceed with the allocation hearing in their absence, without their legal representative needing to be there.

[Janet Daby]

Does my hon. Friend agree that children in particular are vulnerable, and that they should always have legal representation in any plea or pre-plea situation?

[Alex Cunningham]

I most certainly do. My hon. Friend knows that I will talk about children in the justice system forever, if I need to. It is absolutely critical that they are given every support. Not every parent is capable of offering the appropriate advice, so it is very important that legal representation is in place, in particular in the absence of parents.

Although the Bill previously expanded the circumstances in which an allocation hearing could take place in the defendant’s absence, it at least required that where the defendant was absent due to disorderly conduct, their legal representative would need to be present for the hearing to continue. However, the amendment removes the need for their legal representative to be present; instead, it empowers the court to proceed with the allocation hearing in cases where both the defendant and their legal representative are absent. I do not at all see the need for the removal of that important safeguard, and the Minister’s comments thus far have not convinced me. I wonder how many cases he expects those provisions to be used for.

Government amendment 4 would allow a magistrates court to move straight to the allocation stage if, under the provision inserted by amendment 2, it decides at the plea before venue stage to proceed in the absence of the accused or their legal representative, without needing to consider the merits of the proceedings in the absence of the accused. The court could therefore proceed with an allocation decision in the defendant’s absence, in which case the defendant would be deemed to have indicated a not guilty plea. Justice states that the amendments represent

“a significant alteration of the status quo”,

which permits plea before venue hearings and allocation hearings in the absence of the defendant only for reasons relating to the defendant’s disorderly conduct, or where the defendant consents via their legal representative to proceedings taking place in their absence.

The Opposition share Justice’s concern that clause 9 as a whole—especially with the Government amendments—may remove essential safeguards put in place for the accused’s effective participation in the proceedings, and instead prioritise alleged court efficiency over a defendant’s right to a fair trial. I do mean “alleged” court efficiency—as I will discuss in our next debates, I have concerns that some of the measures the Government are seeking to introduce to improve efficiency may in fact have the opposite effect. I am concerned that the Government amendments would expand the scenarios in which the court could proceed in the absence of a defendant’s legal representative at both the plea before venue stage and the allocation hearing.

I really do not understand why this is at all necessary. Plea and allocation decisions can have significant consequences for an individual and their liberty. It is right that every effort be made to ensure that defendants are properly engaged in their proceedings. The Minister knows that we are all too keen to support the Government in improving the efficiency of our courts, but it is important that the measures we introduce have a genuine evidence base and are not obviously detrimental to the rights of defendants and due process, and I think these amendments would fail both criteria.

The Opposition want an efficient court system every bit as much as the Minister does. However, I worry that if we get it wrong the measures will have the opposite effect. That said, we will not oppose the amendments at this stage, but instead will offer the Government an opportunity to improve the clause through our own series of amendments, to which I hope the Minister will be as accommodating as we have been to his.

Amendment 2 agreed to.

Judicial Review and Courts Bill

Janet Daby Excerpts

Report stage
Tuesday 25th January 2022 Commons Chamber

[Joanna Cherry (Edinburgh South West) (SNP)]

I commend the hon. Member for North Shropshire (Helen Morgan) for her excellent maiden speech, and for her excellent and pretty amazing by-election victory.

I rise to speak to amendments 1 to 3, 5 and 37, which stand in my name and those of other hon. Members. My sponsorship of these amendments arises from the legislative scrutiny of the Bill conducted by the Joint Committee on Human Rights. The Mother of the House, the right hon. and learned Member for Camberwell and Peckham (Ms Harman), who is the Chair of the Committee and who would normally speak to these amendments, cannot be here today because of her bereavement. I extend my deepest sympathies to her and her family, and I pay tribute to her late husband, the former Member for Birmingham, Erdington, who was a widely respected and loved man.

I remind hon. Members that the Joint Committee is a cross-party Committee, with half its members from the Commons and half from the other place, and we undertake legislative scrutiny of all Bills for their human rights implications. We have taken evidence from a number of people on this Bill, and we have been advised by our own legal experts. On 7 December last year we published a report, which was unanimous, so it had cross-party support from across both Houses. We concluded that if clause 1 were enacted, it would

“not guarantee that an individual would receive an effective remedy for a violation of their human rights.”

We recommended that the Government remove the requirement in the clause

“as it amounts to an unnecessary…intrusion into judicial remedial discretion.”

As I say, that is an informed view reached on a cross-party basis after taking evidence, and that would be the effect of amendments 1 to 3 if they were passed.

If amendments 1 to 3 are not passed, there is a fall-back position. We also recommended that the Bill be amended so that the courts would have to have regard to the convention rights of any person who would be affected by such a decision and the duty to provide an effective remedy for a human rights violation under article 13. That would mean that when courts decide to make a quashing order with suspended or prospective-only effects, convention rights would be required to be taken into account. That would be the effect of amendment 37, which I reiterate that we see as a fall-back if amendments 1 to 3 are not passed.

I turn to clause 2. The Joint Committee shares the view articulated by my hon. Friend the Member for Glasgow North East (Anne McLaughlin) about Cart judicial reviews. We reached the conclusion that judicial supervision of the upper tribunal protects against legal error. Only a small proportion of Cart judicial review applications are successful, but in some of them, individuals could be prevented from being wrongly removed from the United Kingdom to face the most heinous human rights violations in other countries.

We said that rather than taking a hammer to crack a nut in that way, the Government should

“introduce procedural reforms, such as changes to the time-limits for bringing Cart judicial review, and assess their impact, before pursuing the ‘nuclear option’ of ousting judicial review from Cart cases.”

We also said that

“every effort must be made”

to ensure that the initial decision-makers and the first-tier tribunal

“make the best possible decisions when cases are before them”.

That would limit the need for asylum seekers to rely on a third opportunity to have their application for permission to appeal considered, and it would be the effect of amendment 5.

Generally on ouster clauses, which other hon. Members have spoken about this afternoon, the Joint Committee on Human Rights said in our report:

“We are concerned by the Government’s indication that the ouster clause designed to reverse Cart will be replicated in other legislation”.

Clearly, we are concerned about the possibility of undermining the rule of law, which is essential for the protection and enforcement of human rights.

Before I sit down, I want to give my personal support to the amendments tabled on behalf of the Scottish National party, and to reiterate what I said on Second Reading. It is not constitutionally appropriate for the exclusion of review of upper tribunal permission to appeal decisions to extend to Scotland. The Under-Secretary of State for Justice, the hon. Member for South Suffolk (James Cartlidge), who is in his place, has conceded to me in a letter dated 10 November that clause 2 will alter the jurisdiction of the Court of Session. It is not for this place to alter the jurisdiction of the Court of Session—that is a contravention of not just the devolved settlement, but article 19 of the Act of Union.

The Minister will say, “Oh no—it is not a contravention of article 19 because it’s a regulation for the better administration of justice.” I am sorry, but in Scotland we do not see regulations that circumscribe the availability of justice to individual members of the public as something for the better administration of justice. The Law Society of Scotland has been clear that a legislative consent motion is required; none has been sought, and none would be granted for an interference with the jurisdiction of the Court of Session.

Finally, as I said on Second Reading, there is no evidence base for there being any mischief in Scotland in relation to Cart judicial review; we actually call it Eba judicial review because of our case. The evidence base that the Government presented was completely confined to cases in England. If clause 2 passes, that will just be another example of this Government overriding the devolved settlement, undermining the Union. Please, Minister, leave Scotland’s legal system to Scotland’s Parliament, where it belongs.

[Janet Daby (Lewisham East) (Lab)]

There has been a lot of turmoil on the Government Benches over the past few weeks—partygate, allegations of blackmail and now Islamophobia. But one thing remains consistent and there is one thing we can count on: the Government have their eyes set on authoritarian rule.

Just look at the recent legislation brought before this House. The Nationality and Borders Bill grants the Government power to strip citizenship without notice. The Elections Bill imposes mandatory voter ID, discriminating against deprived and disadvantaged communities. The Police, Crime, Sentencing and Courts Bill gives the Government the ability to suppress protest that they deem too noisy.

The Government’s own manifesto promised to protect the individual from an overbearing state, yet this Bill does the opposite, fortifying the Government’s power grab. Judicial review enables individuals to challenge the legality of decisions made by public bodies. It ensures that decisions are made in the right way. When honoured, it is a vital process in checking the power of the Government and it is often the sole key to justice for the most vulnerable.

Without judicial review as it stands, EU citizens would have been deported for rough sleeping, innocent NHS staff would have lost their pensions and a child’s cardiac surgery clinic would have been unlawfully shut down. But instead of strengthening judicial review, this Bill strangles it.

Clause 1 incentivises the use of prospective-only quashing orders. That would mean that when a judge overturned a decision that they deemed illegal, justice would be available only for subsequent claims going forward. The judgment would no longer be retrospective. Past victims hurt by illegal decisions would receive no compensation. That does not sound fair or right to me. This measure hollows out the power of judicial review and inevitably means that more justice will be left unaddressed. In fact, as the right hon. Member for Haltemprice and Howden (Mr Davis) said, the proposals

“tip the scales of law in favour of the powerful.”

Is that not the story of this Government—more money for the wealthy and powerful and an absent hand for those who need it the most? The whole point of a democracy is that the state should not be able to steamroll its citizens, particularly the most vulnerable.

[Madam Deputy Speaker (Dame Rosie Winterton)]

Just a little reminder: it is important to refer to the amendments as well as the clauses in the Bill, as we are at that stage of the proceedings.

--- Later in debate ---

[Andy Carter]

My hon. Friend is absolutely correct. The sentencing powers of youth courts are already far greater than those in magistrates courts for criminal offences. I do not sit in youth courts, but I have observed them and I know that the conversation and dialogue that takes places between the bench and the young person who finds themselves in court is very different. We do need a really broad, balanced bench in the youth court. I encourage the Minister to look at what support he can give to encourage employed people and young people to come into the magistracy.

The Young Magistrates Network—it is co-ordinated by a young magistrate, Luke Rigg, who has done a marvellous job of looking at this area—has made some very good recommendations, which I think HMCTS is now considering as part of its review. We need to ensure that any recruitment campaign is targeted, using social media, in the right places. I encourage the Minister to look at the school governors’ network, which has done a really good job of talking to employers about the value that somebody who is a school governor can bring to their business. I think that magistrates can also bring a tremendous amount to a business.

Since coming to this House, I have pushed for a number of things to happen in relation to the magistracy. I have raised three or four issues many times, so it is absolutely brilliant that the Minister is putting them all in the Bill. It is like all my birthdays coming at once: everything is happening on the right day. I am very supportive of the Bill. I thank the Minister for engaging with the magistracy and the Magistrates Association, for listening to JP colleagues and for the progress that we are making.

[Janet Daby]

It is always a pleasure to speak under your chairmanship, Mr Deputy Speaker. I fully support the Opposition amendments and the safeguards that my hon. Friend the Member for Stockton North (Alex Cunningham) outlined so eloquently, especially new clause 2 on online procedural assistance and new clause 3 on the review of the single justice procedure.

I will speak mainly about case backlogs and the online procedure rules in the Bill, but may I first say a few words in response to my constituency neighbour the hon. Member for Bromley and Chislehurst (Sir Robert Neill), the Chair of the Justice Committee? I was on the Justice Committee when it was looking at magistrates, and I remember many magistrates coming to meet us on the estate before covid.

I agree that we need to continue to appreciate our magistrates and make sure that they have the support they need to do their job extremely well. We also need to recognise that they have been vital during lockdown as key workers, in situations made extremely difficult by the backlogs that they have had to endure. I agree that we need younger magistrates and magistrates from more diverse backgrounds; as hon. Members may or may not know, there are also many judges from diverse backgrounds who want to be promoted up the ranks. We need to be mindful of ensuring a diverse bench of judges.

Mr Deputy Speaker, our

“criminal justice system is at breaking point.”

Those are not my words, but the words of Derek Sweeting QC, the then chair of the Bar Council. The backlog of criminal cases had pushed past 60,000 by June 2021 and is still increasing. To address it, we need to modernise our court systems. New technology can bring efficiency and help to address the backlog, but our drive to improve the court system should never come at the cost of safety or justice. For example, the online procedure rules set out in the Bill will enable more work to be completed remotely via the internet; one can see the immediate time-saving benefit, but the new rules risk excluding those without internet access or those who are less digitally literate. It is also vital that the online procedure rule committee that will shape the digital rules should reflect the diversity of Britain, which will help to protect the criminal justice system from further bias or any discrimination.

To ensure that all adequate safeguards are put in place, will the Minister commit to an independent pilot of the new technology before its general application? People in poverty do not necessarily have access to new technology, so we cannot take that access for granted or even assume that they are able to use the systems.

While it is important to explore modern solutions, we must not let that task distract us from the reality that our legal system simply needs more funding. There is no silver bullet to solve the crisis in our courts, and no magical technology will appear over the horizon to wipe away the vast number of backed-up cases. New technology and increased funding must go hand in hand. The National Audit Office recommended that £500 million of extra funding would be required between 2021 and 2024 to keep the backlog below 50,000. The Minister should follow that advice and promise that extra funding for our overburdened court systems.

[James Cartlidge]

It is a pleasure to follow the hon. Member for Lewisham East (Janet Daby), who makes a very good point about diversity. The new recruitment campaign that we have launched for magistrates this week is very clearly focused on attracting a more diverse audience of potential participants to consider joining the bench.



In fact, the Chair of the Justice Committee, my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), said that the increase in sentencing powers must not just be a backlog measure—and it is not. I will give a good example of that: on the day that we announced the change, I am reliably informed that “How do you become a magistrate?” was one of the trending searches on Google. The serious point is that the very fact of raising those powers shows our commitment to the magistracy and, in my view, will help to attract more people, because it shows how seriously the Government are taking it.