Judicial Review and Courts Bill (Seventh sitting)

John Hayes Excerpts

Committee stage
Tuesday 16th November 2021 Public Bill Committees

[James Cartlidge]

The hon. Gentleman has asked some very good questions. I accept that these are important points, so let me try to clarify some of them.

The hon. Gentleman asked about the statistics. We do not have precise data on failure to appear, and particularly about prediction of failure to appear in the context of these powers. The majority of defendants prosecuted for triable either-way offences who are sent to Crown court for jury trial are sent there by a magistrates court, rather than by the defendant electing. In 2019, magistrates courts sent 32,262 defendants to the Crown court for a jury trial; of those they decided not to send, 5,277 defendants elected for their case to be sent to be tried by a jury at the Crown court.

In 2019, of the 250,387 adult defendants scheduled to appear at magistrates court for a triable either-way offence, 41,968 defendants had a recorded outcome of failing to appear. However, as the hon. Gentleman will appreciate, it is extremely difficult to predict how this clause will affect those figures. Regarding the circumstances in which the decision could be revisited, to be clear, where a defendant has no knowledge of the proceedings brought against them through a summons or requisition until after a magistrates court has begun to try the case, they will be able to make a statutory declaration and restart the proceedings from the beginning, providing adults with another opportunity to elect for a jury trial.

The hon. Gentleman has tabled amendments 80, 81 and 82 in order to ensure that adult defendants are given the opportunity to provide a reason why they are not attending an allocation hearing, and to avoid the courts speculating as to what that reason might be. Amendment 83 would extend the same opportunity to children. The whole point of clause 9 is to give the courts powers to deal with defendants who deliberately delay proceedings and try to evade justice in a wider range of circumstances. These amendments would achieve the opposite by preventing the court from progressing cases in the absence of any communication from the defendant who has not attended. If no reason is given for the court to consider, the case simply cannot progress.

[Sir John Hayes (South Holland and The Deepings) (Con)]

I listened to the Opposition spokesman, and it seemed to me that he made a persuasive case. However, a few moments ago, the Minister introduced an important addition to this discussion in the form of a safeguard. He said very clearly that the accused could restart the whole process if they were not aware of the circumstances, so it seems to me that the people the Minister is describing who are malevolent or malign—who are deliberately trying to frustrate justice—will be caught by this clause, but those who are not will be protected by the safeguard. Perhaps the Minister should amplify or accentuate that safeguard, because it seems to be exactly what the Opposition spokesman was asking for.

[James Cartlidge]

My right hon. Friend, who is an expert on amplification, makes an excellent point. He is entirely right: there are safeguards—as with any safeguards, they are there to protect those who have been subject to inadvertent circumstances. They are not there to allow those who have deliberately avoided justice to do so: that distinction is absolutely crystal clear and important. My right hon. Friend has hit the nail on the head, as it were.

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[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.

[Sir John Hayes]

There are concerns about children in care. Again, the Minister makes a compelling case about the role of parents and guardians in respect of the clause and the amendment. However, many Members recognise that sometimes children in care are in very difficult circumstances. What provision will there be for those children and what consideration has the Minister given to their plight in those circumstances?

[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.

[Sir John Hayes]

I am grateful for the hon. Gentleman’s remarks, but I took from what the Minister said that he is going to go away and think about that. When a combination of a diligent Opposition and a brave Government Back Bencher raises an issue and the Minister has given—I will not say concession—that acknowledgement, the wise thing for an Opposition to do is to take that as a win and withdraw their amendment.

[Alex Cunningham]

I think the right hon. Gentleman almost makes my argument for me. The Minister does not actually know how the subsection will apply to a particularly vulnerable group of young people, those in care. Perhaps it is the Minister who should support the amendment.

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[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.

[Sir John Hayes]

I wish to add remarks similar to those I made about children in care. When the Minister sends a note, as he said he might, and gives this further consideration, perhaps he could also address this clause, as the same arguments I made earlier apply.

[James Cartlidge]

My right hon. Friend is correct; to be clear, this clause sits with the other clauses, as it contains safeguards relating to them. They are part and parcel of the same set. I will ensure that he receives the further information that he seeks.

[Sir John Hayes]

I am grateful to the Minister.

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

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As that demonstrates, HMCTS has already considered a huge range of support, and I do not think that such a duty is necessary. I believe that the measures in the Bill provide significant safeguards for those who are digitally excluded, and the amendments are simply not necessary. On that basis, I urge the hon. Member for Stockton North to withdraw the amendment.

[Sir John Hayes]

I was delighted to hear that in his earlier life the Minister was a kind of Wemmick figure to Mr Jaggers before his expectations were even greater and he came here. His account of carrying papers around the courts perhaps prepared him for the immense amounts of paperwork that one deals with as a member of the Government, from my memory of it. However, I could not disagree with him more on this part of the Bill, for three reasons.

The first is accessibility. There are profound problems with moving what was previously a personal connection or a written connection with any organisation or body to an online one. It is particularly disadvantageous for vulnerable groups, including people with learning difficulties, people with mental health problems, people with particular disabilities such as hearing loss, and the unsighted. The hon. Member for Stockton North mentioned the elderly too, and the Minister acknowledged that point in respect of his own parents, who he said were not as switched on to these matters as he doubtless is.

There are other issues too, such as security and confidentiality. There is an immense myth. I know that from having been in the IT industry and having been Security Minister. The combination of those experiences taught me a long time ago that online procedures and processes are very hard to secure beyond doubt, so I have great doubts about whether confidentiality can be maintained as it can by more conventional means.

Fundamentally, my problem is one of community. We have to ask in what kind of place we want to live, and how we want to conduct our lives. That applies to our work in Parliament, to the exercise of the law, and to business, as the hon. Member for Stockton North said. Personal interaction and the intimacy associated with face-to-face engagement are critical to framing and affirming our sense of community and connection with others. The more remote and anonymous we make that engagement, the more we will undermine that sense of what we share, so I have profound doubts about the whole move to online government, as I mentioned earlier.

The Minister is being extremely adroit in his handling of the Committee; indeed, I sent him a note to say how deftly he handled my earlier inquiries. I do not mean to patronise him, but I think he can be very proud of his performance. I have been in that seat many times, as he knows, and I know how tough it is. However, when I raised these matters previously he suggested—slightly untypically and rather clumsily—that I was regressive. He must know that the very concept of progress is suspect, because believing in progress means believing in a destination—a pre-ordained destination towards which we are all hurtling.

In truth, of course, that is profoundly philosophically unsound. I can only assume that, standing there under those dreadful Whigs in Gladstone’s Cabinet, the Minister has adopted the Whig theory of history that we are all merely actors who are acting out a script written for us by some other power. There is nothing regressive about my remark; there is perhaps something human about it. I want more politics on a human scale; I want it to be safe, secure and accessible to all, and I want it to affirm our sense of community and build on what we share.

For all those reasons, I seek extremely profound reassurances from the Minister—of the kind that he has offered previously, in the spirit that I recommended a few moments ago—that my constituents, particularly the most vulnerable, will not be disadvantaged by the legislation. The hon. Member for Stockton North alluded to geography. Well, some people in rural areas such as South Holland and The Deepings are not yet “online”, and I am sure that that applies to constituencies represented by Members on both sides of the Committee. I do not want those people to be at a disadvantage.

The Minister is right that during the pandemic we had to make do, and that did have some beneficial effects: it forced us to think about how we could perhaps do things more efficiently. In the end, however, I was desperate to get back to the business of meeting my constituents face to face, and of debating and engaging in person with colleagues in Parliament. I am sure that that applies to most right hon. and hon. Members in this House. Let us not hurtle down the road to moving everything online, only to look back in years to come and think, “My goodness! What have we done and what have we lost?”

[Andy Slaughter (Hammersmith) (Lab)]

I shall be brief. I felt half invited by the Minister to respond, but I will not tell a whole war story from the courts, as we used to do on the Justice Committee. I commiserate with him for his treatment by the Royal Courts of Justice; it is nothing personal that the windows are being shut in his face.

I will shock the Committee again: I agree with the right hon. Member for South Holland and The Deepings. I am afraid that I am one of those people who still carries large amounts of paper around and cannot quite manage otherwise. That is possibly why it is good that I am not a practitioner any longer: the courts have adapted quite well to new technology—practitioners, the judiciary and the senior judiciary in particular are extremely adroit in that respect. I agree entirely with my hon. Friend the Member for Stockton North that we have in common with the Government the intention to ensure that things are done as efficiently, quickly and economically as possible. I entirely agree that new technology has a big role to play in all that.

The Committee may hear a “but” coming. The “but” is that there are several ways, but two in particular, in which we must be very wary. First, there is the issue of access. We have all had to learn to deal with new technology, and an example of that is how we advanced our ability to do so under the stresses of covid. Zooming is as common to us now as face-to-face meetings.

[Sir John Hayes]

It is a mark of both the sense and sensibility of the scrutiny of the Committee that the hon. Gentleman should be defending the Minister and the Government’s position from my mild but profound attack. It is a good Committee where that kind of communion, if I may put it that way, can be enjoyed.

[Andy Slaughter]

I am going to impress the right hon. Gentleman even more in a moment by making a 180° turn and joining his critique of the Minister.

There may well be times when Zooming is more efficient and appropriate, but there will be many times when face-to-face meetings are more appropriate, including meetings with constituents. During the long debates that we had on the Legal Aid, Sentencing and Punishment of Offenders Act 2012, I cautioned many times that it moved too quickly to exclude people from the system in the name of efficiency. There is a danger that we will do that here.

The Minister fairly said that we must proceed with caution and be aware of some people’s digital limitations. It is easy to say that, but it is more difficult to ensure that it happens, because the same people who struggle with matters online are those who cannot make their voices heard, and they just disappear from the system. We have excluded people even though it was not intentional.

A second important category—coroners—was touched on. I will not say much now because I expect that we shall come on to the plans to move those online when we come to that section. The Minister will remember that Mr Rebello, senior coroner for the Liverpool and Wirral coroner area and secretary of the Coroners Society, said that he liked to have everybody in the room. He was not saying that for its own sake, but because there are times, when evidence is being heard or judicial decisions are being made rather than in administrative hearings, when it is important for people to be present. Although doing things remotely may have been the best that we could do during covid, that will not always be the case.

I simply caution that if justice is to be properly done, we should be cautious before we throw out the methods that have served us not just for decades but for centuries in assessing the quality of evidence, in advocacy and in ensuring that we get to the best result we can in every case. I hope that we will be as modern and efficient as we can, and use as much technology as we can, but not at the price of excluding people or of not seeing justice done.