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

Lord Beecham Excerpts

2nd reading (Hansard): House of Lords
Wednesday 20th June 2018 Lords Chamber

[Lord Beecham (Lab)]

My Lords, I refer to my interests as an unpaid consultant of my former firm of solicitors and as the father of a practising barrister who specialises in employment and housing law and who would, I think, be very interested in the suggestion by the noble Lord, Lord Flight, of a housing court—a suggestion with which, with my other hat on, as a local councillor with concerns about these matters, I would also concur.

The National Audit Office report Early Progress in Transforming Courts and Tribunals, published six weeks ago, begins with a set of key facts, identifying the Government’s expectation of savings of £265 million a year from 2023-24 onwards, with a staff reduction of 5,000—one third of the current staffing—and 2.4 million fewer cases held in physical courtrooms. The NAO describes the change as,

“a very significant challenge”,

with changes,

“far broader than those in comparable programmes in other countries”.

The timetable has been extended from four years to six, interestingly without changing the budget, and this is still shorter than the smaller programmes of this kind in other countries.

Moreover, the Infrastructure and Projects Authority concluded in its latest assurance review that successful delivery of the programme is in doubt. It avers that less progress overall has been made, such that a spending gap of between £61 million and £177 million has appeared, depending on whether the Treasury will allow earlier underspending to be carried forward, while costs have increased and planned benefits reduced. The NAO points out that Her Majesty’s Courts and Tribunals Service still needs to develop how the services will work and that,

“stakeholders do not fully understand how the reformed services will work in detail”.

It concludes that a lack of clarity has contributed to delays and programme failings.

The NAO adds:

“Failure to sustain commitment from all delivery organisations will significantly reduce the likelihood of success and the benefits achieved … Delivering change on this scale at pace means that HMCTS risks making decisions before it understands the system-wide consequences”.


To cap it all, it asserts:

“The benefits claimed so far by HMCTS exceed expectations but risk putting pressure on its ability to maintain services”.


It concludes that, while it has improved,

“its governance and programme management … there is a long way to go”,

and warns of major risks in a number of areas.

This damning critique may resonate with Members who recall the fanfare with which the coalition Government launched the disaster entitled universal credit—or discredit, as I and many others afflicted by the problems are apt to describe it. But the National Audit Office does more than list these problems. It states:

“The scale of the challenge is increasing and the programme is under significant pressure to meet what is still a demanding timetable”.


It makes four critical recommendations, to which I invite the Minister to respond. It says HMCTS should allow enough time to engage with affected parties within the justice system, to consult widely and respond to the results, to provide more detail of how the system will work and to carry the staff along with it. It says HMCTS should resist pressure to claim savings until planned changes are fully embedded. It says HMCTS should provide greater transparency on objectives and progress. Finally, it says HMCTS should work with the department and the Treasury to address the system-wide consequences of planned changes. In more general terms, the NAO suggests that there should be greater transparency on the Government’s objectives and progress, and clarity on how plans are adapted in response to risks.

We are, after all, dealing with a system through which 4 million cases pass yearly: 1.7 million criminal court matters, 1.9 million civil cases and 250,000 family court cases. Thanks to the massive cuts in legal aid and advice, which have led in some areas of law and in different parts of the country to the creation, in effect, of a desert of professional legal support, too many people have to struggle unaided with their legal problems or are driven to rely on claims management companies, the nefarious activities of which featured in our recent discussions on the Civil Liability Bill.

Inevitably, these changes in both the criminal and civil areas are impacting on the supply of qualified professionals, as well as the number of litigants acting in person, causing considerable delays in the court process. But we also have to consider other difficulties which are increasingly confronting people with legal problems. The court closure programme may be saving money for the Ministry of Justice, but it is increasingly impacting on court users in terms of cost and lengthy travelling times—an issue raised by the Law Society, which points to the impact on vulnerable court users in particular. More than 200 courts have been closed since 2011. Yet the MoJ has made the curious decision to close Cambridge magistrates’ court, which already has videolink technology. It seems a rather strange choice for closure.

No doubt the Government’s response will be to talk up the impact of increasing the use of digital technology in the conduct of legal processes—very much part of their reform programme—but I suspect I am not alone among Members of your Lordships’ House in struggling with this new and constantly developing world and being ever grateful for what used to be PICT and is now PDS, the Parliamentary Digital Service, rescuing me from time to time. I find myself in the position exemplified by Groucho Marx, who once declared:

“A child of five would understand this. Send someone to fetch a child of five”.


Even children of that age could probably match my performance—and, I suspect, others’—and therefore, almost certainly, that of many of those who will be having to rely on that approach as people involved in the justice system. I fear that, as we have learned from the introduction of universal credit and the dreadful record of the Home Office, the digital world is not one within which everybody is comfortably able to manage.

The Equality and Human Rights Commission draws attention to both pros and cons of the modernisation programme. It welcomes the opportunity to improve accessibility for some disabled people by providing alternatives to attending court in person; I would add some family cases, where one party, perhaps the wife or mother, cannot be face-to-face with an abusive partner—the sort of area that the noble Baroness was concerned about. But it has concerns that,

“people with certain protected characteristics are excluded by digital processes, and that video-link hearings and online courts negatively affect access to justice and fair trial rights. There are also implications for principles of open justice and for public confidence in the justice system”.

One wonders, too, how far these developments will take us. Will we see the development of a “Justice Alexa”, initially providing advice but ultimately deciding cases? The Law Society has expressed concerns that new technology has not been fully tested and evaluated, while court closures proceed in any event. It urges that before embarking on a significant court closure programme and much-increased reliance on new technology and online courts, there should be a full evaluation of these developments. Will the Government agree, and with what sort of timescale in mind? In any event, what is the Government’s estimate of the cost of the new technology on which £100 million has already been spent, or of the likely receipts from the sale of court buildings? As we have heard, 80% of those that have been sold only realised sums equivalent to average house prices—hardly a financial bonanza likely to contribute significantly to the programme.

We are at one with the Government in their intention to modernise the court system, with the important caveat that the objective must be to facilitate access to justice—including the areas raised by the noble Baroness, Lady Newlove, about victims of domestic violence—not merely to engender visible financial savings at the possible expense of those who really need the protection of the law.

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

Lord Beecham Excerpts

Committee: 1st sitting (Hansard): House of Lords
Tuesday 10th July 2018 Lords Chamber

[Lord Pannick (CB)]

My Lords, I pay tribute to the noble Lord, Lord Marks, for managing to table an amendment to this anodyne Bill that raises an issue of real significance. I say simply that it is a remarkable achievement for the Government to bring forward a Bill on courts and tribunals that ignores all the serious problems facing our justice system, not simply diversity but the recruitment crisis, the crisis in legal aid, the appalling state of the judicial estate and the vital need for modernisation.

[Lord Beecham (Lab)]

My Lords, I concur with the remarks of the noble Lords, Lord Pannick and Lord Marks. I remind the House that I have a parental interest in these matters in that my daughter is a barrister and sits as a part-time district judge. We support the amendment, particularly because of the concern about both gender and ethnic representation in the judicial system, which is currently well below what should be expected.

I have only one reservation about the amendment, which is that it calls for a report to be laid within a year of the Act passing. That does not seem to be a reasonably long enough period in which to judge the extent to which progress is being made. I would have thought that if the Government were disposed to accept the principle here, and I hope they would be, a more realistic period of two to three years would be one in which we would be able to genuinely measure whether there was an impact that all of us around the House would wish to see. Subject to that, we certainly support the principles of the amendment and I hope the Government will look at it sympathetically.

[Baroness Vere of Norbiton (Con)]

My Lords, this amendment would require the Secretary of State to assess and report on the impact on judicial diversity of the measures before noble Lords today.

The judiciary already has wide powers to deploy judges between jurisdictions in our courts and tribunals. The judicial deployment measures in the Bill are intended to amend existing legislation in specific areas to enhance these powers to ensure that judges continue to be deployed where needed and appropriate. Being able to make the best use of judges’ time and expertise to react to changes in case loads of different jurisdictions has benefits for all court and tribunal users.

The measures are targeted to specified judicial roles and are intended to fill gaps in existing deployment measures. They are therefore limited in scope. As the measures are about how our existing judiciary may be deployed, they do not impact directly on new appointments to the judiciary.

Implementing these measures will largely follow existing processes by which the senior judiciary authorise judges to sit in additional courts or tribunals. In the interests of fairness and transparency, where it is appropriate in accordance with the circumstances of each case, deployment decisions will be taken following an expression of interest exercise across the eligible pool of judges.

Increases in flexible deployment may enable individuals to gain valuable experience in sitting in other jurisdictions. For example, the measure which provides for the 14 senior employment judges also to be judges of the unified tribunals may enable them to demonstrate their competencies across a broader range of case types. This may in future result in more diverse appointments to higher courts and tribunals.

I am sure that all Members of your Lordships’ House would agree with many or most of the remarks of the noble Lord, Lord Marks. I, too, have a long-standing interest in this area. However, I was struck by the assumption he sometimes seems to hold that only women have caring responsibilities. I hope he will agree that men should care, too.

I am happy to place on record this Government’s commitment to working with the judiciary and the Judicial Appointments Commission to increase judicial diversity. We have seen gradual improvements in gender and ethnic diversity since 2014, but we know that there is more to do to improve judicial diversity at all levels. For example, the representation of men and women from BAME communities has increased from 6% to 7% in the courts and from 9% to 10% in tribunals, and the first BAME judge was appointed to the Court of Appeal in 2017. The judiciary publishes annual judicial diversity statistics, and this year’s publication will take place on Thursday.

It is important for the quality, independence and impartiality of our judges that we always appoint the most talented candidates on merit. We know that there are many talented potential candidates from a diverse range of backgrounds and we want to encourage and support even more of them to apply for judicial office. That is why the Ministry of Justice strongly supports the work of the Judicial Diversity Forum and works as part of the forum alongside legal professional bodies, judicial representatives and the Judicial Appointments Commission to co-ordinate action to increase judicial diversity.

In April we announced funding for a pre-application judicial education programme, PAJE, which will provide information and support to those considering a judicial role, and will be targeted in particular at those from underrepresented groups. This is very much a partnership project, and the Ministry of Justice is working closely with the Judicial College, members of the judiciary, the Bar Council, the Law Society and the Chartered Institute of Legal Executives to finalise the programme content. We anticipate that the first candidates will be able to participate in PAJE in early 2019.

There are several other initiatives and support schemes for potential candidates from diverse groups that are run by the Judicial Office and the legal professions, and supported by the Judicial Appointments Commission. These include outreach events, judicial-run workshops and mentoring schemes.

The Lord Chancellor is personally committed to working with the Lord Chief Justice and the chair of the Judicial Appointments Commission to consider all practical actions that would impact positively on diversity, assess the impact of our existing activities and measure progress. The Lord Chancellor appears regularly before the Justice Select Committee and the Lords Constitution Committee on matters relating to the judiciary, including diversity. We think that this is the appropriate and proportionate way of advising noble Lords on actions that we are taking to improve judicial diversity.

I hope that what I have said has reassured the noble Lord of our commitment to improving judicial diversity—