Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) (Amendment) Order 2016

Lord Faulks Excerpts

Monday 13th June 2016 Lords Chamber

Moved by

[Lord Faulks]

That the draft Order laid before the House on 14 April be approved.

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, I beg to move that the Committee has considered the draft Access to Justice Act 1999 (Destination of Appeals) Order 2016, which I will refer to as “the civil order”, and the draft Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) (Amendment) Order 2016, which I will refer to as “the family order”.

The orders are intended to address the workload of the Court of Appeal and are made under Section 56 of the Access to Justice Act 1999. They have been consulted upon with members of the senior judiciary, as is required by Section 56. As their titles suggest, the orders make provision in respect of the routes of appeal from judicial decisions in civil and family proceedings. I will start with the civil order.

The civil order replaces the Access to Justice Act 1999 (Destination of Appeals) Order 2000. If made, the order will remove the current distinction made for certain proceedings between interim and final decisions, so that appeals from all decisions of a particular level of judge will follow the same route and, as far as possible, lie to the next level of judge. This is the key amendment made by the order. The civil order also reflects amendments made by the Crime and Courts Act 2013 to Section 5 of the County Courts Act 1984, which widened the definition of “judge of the county court”.

The 2000 order currently makes provision for routes of appeal where a route is not already provided in other legislation. In particular, the order makes provision for an exception with regard to appeals against final decisions in claims which are allocated to the multi-track and appeals from decisions in specialist courts; for example, proceedings under the Companies Acts. At present, these appeals lie directly to the Court of Appeal, in some cases circumventing both the county court judge and the High Court, irrespective of the level of judge who made the decision to be appealed. This exception might well have been thought appropriate at the time that the 2000 order was debated, but there is no doubt that both the county court and the High Court have the requisite level of expertise to determine such appeals irrespective of whether the decisions appealed are interim or final. In the meantime, valuable judicial and administrative resources in the Court of Appeal are being lost to matters that can quite properly be determined in the lower courts.

Turning to the detail of the civil order, the Ministry of Justice has worked with the senior judiciary to ensure that these amendments will work, and we are grateful to them for their assistance. Although the civil order may appear quite detailed, its effect is to simplify the routes of appeal so that appeals from decisions of district judges sitting in the county court will lie to a circuit judge, except in respect of appeals in proceedings under the Companies Acts, which will now be determined by the High Court; appeals from decisions of circuit judges will lie to the High Court; appeals from decisions of masters and district judges sitting in the High Court will lie to a High Court judge, except in proceedings which have been allocated to the small claims track of the Intellectual Property Enterprise Court, where an appeal will lie from a decision of a district judge to an enterprise judge; and appeals from decisions of High Court judges will continue to lie to the Court of Appeal. The result will be that cases will be considered at the most appropriate level of court, which, in turn, will result in a more efficient use of available judicial resources.

Recent amendments to Section 5 of the County Courts Act 1984 significantly increased the number of judges who might sit in the county court, and list no fewer than 25 judicial officeholders, including certain tribunal judiciary, who may do so. In reflecting this reform, and to ensure that the correct route of appeal is applied in each case, the civil order also recognises that when sitting as a judge of the county court, some of that number will be accorded a level of seniority commensurate with that of a circuit judge, while others will be accorded that of a district judge.

I should add that the amended order will not undermine the judicial power to order that an appeal be transferred to a higher appellate authority should the circumstances of the case merit it. Also, as is apparent on the face of the civil order, the new arrangements are not intended to affect the rules relating to second appeals, which will continue to lie to the Court of Appeal.

The aim of this new civil order is to clarify and simplify the appeals process to ensure that the route of appeal in civil proceedings lies to the next level of judge. This should reduce the number of appeals that are lodged in the Court of Appeal and reduce pressure at that court by making best use of judicial time, ensuring that cases are heard in the most appropriate level of court.

I now move on to the family order. This order amends the Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) Order 2014, which I will refer to as the 2014 order, to route certain family court appeals away from the Court of Appeal to the High Court. The order also includes consequential amendments to the Family Procedure Rules 2010. Those rules set out the practice and procedure that is to be followed in family proceedings in the family court and the High Court.

Family proceedings in England and Wales are dealt with primarily in the family court, with the High Court also having jurisdiction to hear such cases. The default route of appeal from a decision of a judge of the family court would be to the Court of Appeal. However, the 2014 order already makes provision for appeals from decisions of certain judges in the family court to be routed to a different, higher, level of judge in the family court. For example, an appeal from a decision of a district judge in the family court already lies to a circuit judge in the family court.

The family order will amend the 2014 order so that appeals from certain decisions of circuit judges and recorders in the family court will lie to the High Court rather than to the Court of Appeal. It has been laid in response to concerns about the quantity of appeals currently being made to the Court of Appeal. Ministry of Justice statistics published in June 2015 show that family-related appeals to the Court of Appeal increased by over 200% between 2008 and 2014. Appeals must be dealt with in ways proportionate to the grounds of complaint and the subject of the dispute, while ensuring effective access to justice.

The changes proposed under the order mean that, rather than an appeal hearing taking place before a court of up to three Court of Appeal judges, appeals routed to the Family Division of the High Court will be heard by a single, specialist and experienced High Court judge. It is clear that this change will reduce the senior judicial resources required for these types of appeal and, by moving some work to the High Court, the Court of Appeal will be better able to manage cases of appropriate weight for that court.

Routing certain appeals to the High Court instead of the Court of Appeal should also lead to a reduction in the time it takes for these appeals to be heard and, by reducing the number of appeals going to the Court of Appeal, I hope this change should also benefit the flow of cases in that court. This will allow for more effective and expeditious determinations in other appeals, for example public law appeals relating to children.

The senior judiciary was consulted on these proposals in November 2015. It was supportive of these proposals and its views were key in determining the content of the order. We also consulted 10 key stakeholders, including the Law Society, Bar Council and the Council of Her Majesty’s Circuit Judges, who were broadly supportive of our proposals and whose responses helped us to finalise the policy position. Further details in relation to the points raised in the consultation responses are summarised in the Explanatory Memorandum to the family order.

The amendments to the 2014 order made by the new family order will apply to appeals from decisions of the family court made by circuit judges and recorders in all proceedings, including appeals from decisions made relating to contempt of court, with some exceptions. Those exceptions are: appeals from decisions made on appeal in the family court, so as not to create an extra level of appeal; appeals from decisions made in proceedings under Part 4 or 5 of the Children Act 1989, for example appeals against orders placing a child in the care of a local authority; appeals from decisions under the Adoption and Children Act 2002, including adoption and placement order appeals; and appeals from decisions relating to contempt of court linked to the above proceedings.

In the case of appeals relating to proceedings under Parts 4 and 5 of the Children Act 1989 and those under the Adoption and Children Act 2002, the consequences of the state intervening in a family’s life, the fact that the relationship between a parent and their child may be completely severed and the child’s status changed by adoption, and the complexities arising in these proceedings are considered so serious as to merit these types of appeal continuing to be heard by the Court of Appeal.

To summarise, appeals must be dealt with in ways that are proportionate to the grounds of complaint and the subject of the dispute, while ensuring effective access to justice. The amendments made by the family order will allow that to happen. By moving some work to the High Court, the Court of Appeal will be better able to manage cases of appropriate weight for that court.

I should add that, as well as these measures to improve the flow of work through the Court of Appeal, the Civil Procedure Rule Committee has recently launched a further and separate consultation outlining proposals to raise the threshold for permission to appeal to the Court of Appeal and remove the automatic right of oral renewal for permission to appeal where permission has been refused on the basis of the documents in the case. The consultation closes on 24 June.

If the proposals under consultation, which I have described to the House, are accepted then they will apply to appeals to the Court of Appeal in both civil and family cases. This consultation, along with these two orders, form a suite of reforms to improve efficiency in the civil courts. We are grateful for the ongoing work of the judiciary in our efforts to achieve this. Noble Lords will be aware that judicial recruitment is the responsibility of the Lord Chancellor. That of course means ensuring that he meets his statutory obligation in respect of appointments, but also keeping workload under review—as he does—to ensure that enough judges are available to hear appeals within a reasonable timeframe.

Noble Lords will wish to know that the Lord Chancellor’s decisions are informed by a so-called complement group made up of senior judiciary and HMCTS officials who examine the business need at all levels of the judiciary and advise the Lord Chancellor on the optimum complement. Both orders respond to concerns about the volume of appeals directed to the Court of Appeal and they will ensure that cases and appeals are being heard in ways that are proportionate to the grounds of the complaint and the subject of the dispute. I beg to move.

[Lord Beecham (Lab)]

My Lords, when these orders were debated at the Third Delegated Legislation Committee, for all of 13 minutes, with an opening in the Commons by the Minister responsible there of two minutes, my honourable friend Christina Rees expressed support for the changes, which had the backing of the senior judiciary, as we have head, recognising the need to reduce the workload on the Court of Appeal. It took a freedom of information request from the Law Society, apparently, to reveal that almost half of the 646 trials adjourned in that court were adjourned because of a lack of judicial resources.

Can the Minister explain why the Government allowed the number of cases to increase by 59% in the last five years without increasing resources or taking action of the kind embodied in this order? Is there a particular category of case which is responsible for this increase? To what extent, if any, has the reduced availability of legal aid in both family and other proceedings had a bearing on the matter, particularly given the number of unrepresented parties? Can he answer the question asked by my honourable friend and not answered by the Minister in the other place, as to the evidence base for the assertion that:

“The High Court has the capacity to absorb the extra appeals, thus lowering waiting times”.?

She also asked to what extent these changes meet the four requirements made by Lord Justice Briggs for easing the load on the Court of Appeal, namely increasing the court’s resources, reducing its workload, improving its efficiency and—I hope this would not be the case—deliberately reducing the quantity and quality of the service.

Somewhat disconcertingly, the Minister in the Commons admitted that, on their own, the changes,

“will not necessarily address any backlog of work held by the Court of Appeal, but they will ensure that the backlog does not continue to increase and that cases are dealt with at an appropriate level and as swiftly as possible”.—[Official Report, Commons, Third Delegated Legislation Committee, 8/6/16; col. 6.]

What does that mean in terms of the number of cases that will go to the Court of Appeal, as compared with the present situation, and as to the waiting time for hearings in that court? Needless to say, the so-called impact assessment, as is all too often the case, fails to supply the relevant information.

The Explanatory Memorandum to the family proceedings order refers to the consultation carried out by the Ministry of Justice and referred to by the Minister with a range of 10 stakeholders, albeit none from court users, as opposed to the judiciary and legal professionals. The consultation responses “broadly supported” the rerouting of appeals from circuit judges and recorders in family proceedings to a High Court judge rather than the Court of Appeal. But what does “broadly” mean? Did any of the consultees raise questions about resources or target times for hearings?

Finally, to what extent will the Ministry of Justice monitor progress under this new regime, both in terms of the cases to be heard in the High Court as now prescribed, and in relation to the effect of the reduced workload in the Court of Appeal? I trust that we will not be waiting for three or more years before the position is reassessed, particularly given that the changes are principally directed at a significantly sensitive area of law—the family area. I should declare a paternal interest inasmuch as my daughter sits as a part-time deputy district judge.

[Lord Faulks]

I am grateful for the questions posed by the noble Lord and I congratulate his daughter on the contribution that she is making to the administration of justice. I am sure that she, like all judges, will be feeling the pressure that heavy workloads can create. The noble Lord asked if any consideration had been given to whether the lower courts could cope with additional work. The answer is that HMCTS, as is its responsibility, is fully aware of and supportive of the changes, and the Ministry of Justice has been working with the senior judiciary, who are supportive of the measures and keen for the order to come into force.

The noble Lord suggested that there has been a somewhat tardy response to what was clearly something of a crisis in the build-up of cases and the capacity of the Court of Appeal to deal with them. I am sure he will understand that any Government will have to be careful before depriving any litigant of their rights of appeal, which are well established, and will have to satisfy themselves, after the appropriate level of consultation, that restricting or changing the routes of appeal is in fact in the interests of justice and will not prejudice the interests of a particular appellant, while of course bearing in mind the fact that justice must be administered in an efficient way. The noble Lord will see that there has been a nuanced response in terms of the appeal process, so some of the appeals that I outlined in my opening remarks will still go straight to the Court of Appeal, where it is considered that that is appropriate. So this has not been an across-the-board response.

As to the consultation, there was a requirement for the Ministry of Justice to consult with the Lord Chief Justice, the Master of the Rolls, the President of the Queen’s Bench Division, the President of the Family Division and the Chancellor of the High Court before making the order. All specifically indicated that they were content with the provisions, and their views were key in determining the content. But in addition to the consultation with the senior judiciary required by statute, the Ministry of Justice held a wider consultation on these proposals with 10 key stakeholders: the Council of Her Majesty’s Circuit Judges, the Association of District Judges, the Magistrates Association, the Chief Magistrate, the Bar Council, the Association of Lawyers for Children—very much, I respectfully suggest, representing the consumer—the Justices’ Clerks’ Society, the Family Law Bar Association, the Law Society and Resolution. That was a pretty broad series of bodies to consult before deciding on the appropriate changes to the arrangements.

[Lord Beecham]

My Lords, I am grateful to the Minister for supplying that information, but perhaps he could advise the department that in future when it sets out a position on these matters, it should give a rather fuller account of the consultations it has carried out—because it does not appear in the documentation that has been put before us.

[Lord Faulks]

I am tempted to say better late than never—but, in any event, the information is available, and I hope that it has satisfied the understandable curiosity that the noble Lord had about the extent of the consultation.

On the management of resources—clearly something that is a responsibility of the Government—this is an estimation. Of course one can never be precisely sure about how many people will be appealing. I do not have any figures on whether the increase in appeals is related to any of the matters that the noble Lord suggested. On the face of it, it seems somewhat unlikely that the reduction in legal aid in certain areas would result in there being more appeals. It could result in more or fewer appeals—but none the less, there has been an increase. As I also indicated, there is a consultation shortly to close as to whether there ought to be a change in the threshold for allowing an appeal to be launched in the first place. The Government are waiting for the response to that before deciding the next step.

On the question of backlog, the answer is simply this: we do not want to deprive anybody retrospectively, as it were, of a right to appeal that they had, so it will take a little time for the changes, which we think will improve matters, to take effect. Nothing very dramatic will happen until this order takes effect and we can reroute the appeals in the way we suggested.

On the question of monitoring progress, we will do so. If necessary, we will make appropriate changes to ensure, in so far as possible, that the administration of justice is efficiently carried out. We will continue, as we have done, to consult the judiciary—not only the heads of division, but various other bodies—to ensure we do this in the best way we can.

These are important changes. The appeal process is fundamental to civil and family jurisdictions. We feel we have the balance right. This should help to deal with the volume of appeals currently being made to the Court of Appeal and will make a significant difference to the progress of appeals prospectively after the order comes into effect. We also take the view that the order will clarify and simplify the process to ensure that the route of appeal is to the next level of judge. The family order will mean that certain family appeal hearings take place before a single, specialist and experienced High Court judge.

I hope that I have answered the questions the noble Lord asked. I beg to move.

Motion agreed.