Draft Civil Legal Aid (Amendment) (EU Exit) Regulations 2019
Lucy Frazer Excerpts(5 years, 3 months ago)
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The Parliamentary Under-Secretary of State for Justice (Lucy Frazer)
I beg to move,
That the Committee has considered the draft Civil Legal Aid (Amendment) (EU Exit) Regulations 2019.
It is a pleasure to serve under your chairmanship again, Sir Henry. The draft regulations form part of the Government’s preparations for the possibility of the UK leaving the EU without a deal. They will provide clarity to citizens and lawyers in the event of a no-deal outcome.
The draft regulations relate to EU directive 2003/8/EC, the EU legal aid directive, which creates reciprocal rights and obligations across member states. The directive’s application is limited to civil and commercial matters; it applies to cross-border disputes in which an individual domiciled or habitually resident in an EU member state requires legal services in relation to proceedings in another member state or enforcement of a decision or authentic instrument in another member state.
In a no-deal scenario, we would not benefit from any reciprocity from other member states in that context. The draft regulations will therefore remove the legislation that implements the EU legal aid directive, which will no longer apply to the United Kingdom. As a result, individuals domiciled or habitually resident in an EU member state who require legal services in relation to proceedings in England and Wales or Northern Ireland, or who wish to enforce a decision or authentic instrument in England and Wales or Northern Ireland, will be subject to the same scope, means and merits requirements as those domiciled or habitually resident in England and Wales, Northern Ireland or third countries.
After EU exit, legal aid provision for those domiciled or habitually resident in the UK who participate in proceedings in an EU member state will fall to each member state’s particular legal aid framework. Repealing the legislation that implements the EU legal aid directive will ensure legal certainty and clarity on legal aid entitlement. In addition, we will avoid a unilateral arrangement under which those domiciled or habitually resident in EU member states are treated more favourably than those domiciled or habitually resident in the United Kingdom or third countries.
The draft regulations will make a number of small technical amendments to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and the Access to Justice (Northern Ireland) Order 2003. References to “enforceable EU rights” will be amended to refer to “retained enforceable EU rights”; the term will be defined with reference to rights retained in domestic law by operation of the European Union (Withdrawal) Act 2018. This will enable the proper functioning of the exceptional case funding frameworks in England and Wales and Northern Ireland and, under LASPO, provision of foreign legal advice.
The draft regulations will also make some procedural amendments, one of which relates to whether an applicant for controlled work needs to attend a legal provider’s premises in person. At present, it is not necessary for an individual who is seeking legal aid for controlled work in England and Wales to attend a legal provider’s premises in person if they are present in or reside in the EU, if they cannot attend for good reason and if they can authorise someone to attend on their behalf. The draft regulations will change the exception so that those who reside within the EU will now be required to meet the same criteria that those who reside in third countries are expected to meet when they apply for controlled work and are not present in the UK.
A further amendment relates to licensed work. Again, those who reside within the EU will now be required to meet the same criteria that those who reside in third countries are currently expected to meet when they apply for licensed work and are not present in England and Wales.
The draft regulations will make provision for transitional arrangements for certain live matters under the repealed or amended legislation at the time of EU exit. Those matters will continue to operate under the same rules as before.
I should highlight the limited application of the draft regulations. In 2017 there were only 27 cross-border applications made between England and Wales and central authorities in other EU member states, of which 20 were from EU residents seeking legal aid in England and Wales. Although it is not possible to estimate precise amounts, we expect that any implications for the legal aid fund will be considerably small. In addition, a number of legal aid applications that are in scope as a result of the EU legal aid directive may have been made directly to the Legal Aid Agency or providers, not via central authorities, and it is not possible to identify those cases. Officials at Northern Ireland’s Department of Justice have confirmed that, although applications under the EU legal aid directive are not centrally recorded for statistical purposes, it has established that an estimated three applications were made in the last two years.
This SI is necessary in order to correct deficiencies in legal aid legislation in England, Wales and Northern Ireland that arise from the UK’s exit from the EU, including LASPO, the Access to Justice (Northern Ireland) Order 2003 and subordinate legislation. The Scottish Government are separately taking forward any required amendments to legal aid legislation. This legislation will simply enable us to continue going forward without the reciprocity that we have previously enjoyed and will not be afforded in the future. I commend the draft regulations to the Committee.
Lucy Frazer
I will make three points: two relate to the SI and the third is more global. First, it is extremely disappointing that, in opposing the regulations, the Opposition will not enable us to provide for a smooth transition by ensuring that our statute book is fit for purpose if we leave the EU without a deal.
Secondly, I am very disappointed by the suggestion from my friend, the hon. Member for Bolton South East, with whom I work very well, that the regulations will have a massive impact. What we are doing with the legislation is simple: we are ensuring that, as we leave the EU, its member states do not receive preferential treatment vis-à-vis other third countries. Under World Trade Organisation trade terms, we are not allowed to give preferential treatment to one portion of the world. We are ensuring that we do not give a more favourable position to EU member states. Under the SI, as with all the SIs introduced by the Ministry of Justice, individuals from those member states will still be able to get the same treatment as EU nationals in this particular provision of legal aid. They will still be able to get legal aid under the same conditions as our residents under LASPO, as long as the matter for which they are claiming is in scope and subject to means and merits.
Thirdly, the hon. Member for Bolton South East made a very broad point about other matters not relevant to the statutory instrument. We will debate those matters in due course. She mentioned the important point of civil jurisdiction and the enforcement of judgments, for which another SI will be introduced. She also mentioned family law. We, like the EU, think it is extremely important for us and the EU to get a deal to ensure that we have a reciprocal arrangement on family law. Indeed, a reciprocal arrangement on family law is one of the areas of mutual interest that the EU has identified and that it is willing to negotiate within a future framework. The matter under discussion, however, is a no-deal scenario.
Rushanara Ali (Bethnal Green and Bow) (Lab)
May I remind the Minister that it is extremely disappointing that her Government are still leaving the prospect of a no-deal situation over us? That is irresponsible and she should be concerned about that. My hon. Friend the Member for Bolton South East raised legitimate concerns about British nationals who will continue to live in the EU. The Minister needs to focus on that. Thinking simply in terms of WTO rules is not appropriate because British nationals will still live in other countries, and in that context, we will need partnerships that allow them to have access to justice.
Lucy Frazer
The best way to protect the citizens whom the hon. Lady talks about is to ensure that we have a deal. The Prime Minister’s deal will allow us an implementation period to negotiate the very points that the hon. Lady identifies. One of those points is an agreement in relation to families, on which we would be able to get a reciprocal arrangement in future.
Mr Robert Goodwill (Scarborough and Whitby) (Con)
Does my hon. Friend share my surprise that the shadow Minister, the hon. Member for Bolton South East, did not vote for that deal, especially given that 58.3% of people in Bolton voted to leave the European Union? The only way that we can guarantee that it will happen is to get the deal over the line.
Lucy Frazer
That is a very good point. I am sure hon. Members would like to continue discussing the very important SI before us, but I will commend it to the Committee.
Question put.
Draft Services of Lawyers and Lawyer’s Practice (Revocation etc.) (EU Exit) Regulations 2019
Lucy Frazer Excerpts(5 years, 3 months ago)
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The Parliamentary Under-Secretary of State for Justice (Lucy Frazer)
I beg to move,
That the Committee has considered the draft Services of Lawyers and Lawyer’s Practice (Revocation etc.) (EU Exit) Regulations 2019.
It is a pleasure to serve under your chairmanship, Mr Bailey. The draft statutory instrument forms part of the Government’s preparations should we leave the EU without a deal. The Committee should be aware that the Government have been hoping for a deal, but preparing at the same time for no deal, and, as part of those preparations, publishing a number of technical notices to outline the implications of a no-deal exit for citizens and businesses.
On 12 October the Government published a technical notice titled “Providing services including those of a qualified professional if there’s no Brexit deal”. That notice set out the implications of a no-deal exit for professionals in scope of the two EU directives on lawyers’ services and lawyers’ establishment. The draft instrument makes changes to the arrangements in England, Wales and Northern Ireland relating to those directives, and it remedies deficiencies in the relevant retained EU law arising from our withdrawal from the EU. Scotland will introduce its own legislation on the matter.
It is important to set out the current application of the EU directives. The lawyers’ services directive allows specified lawyers to provide regulated services in a member state other than the one in which they qualified—termed a host state—without the need to register with a host state regulator. Lawyers provide services under their existing professional title, which is otherwise termed their home state professional title. The directive clarifies the regulatory rules that are applicable and the conditions for providing those services in a host state.
The lawyers’ establishment directive allows specified lawyers in one member state to practise reserved legal activities on a permanent basis in another member state under their home state professional title, and the conditions for doing so. It also allows lawyers who are practising in another member state to be admitted to the profession in that member state after three years of practice in the law of that member state, without having to go through the usual qualification routes. European lawyers practising in the UK under the establishment directive must be registered with a UK regulator as registered European lawyers. As registered European lawyers, they have the right to own legal businesses without a UK-qualified lawyer.
The question that therefore arises is: what will change if we leave the EU without a deal? The answer is that the lawyers’ services directive and the lawyers’ establishment directive will no longer apply to the UK, and there will be no system of reciprocal arrangements under which EU and European Free Trade Association lawyers, including UK nationals holding EU and EFTA qualifications, can provide regulated legal services and establish on a permanent basis in the UK, and likewise for UK lawyers in the EU. It is the deficiency in the retained EU law caused by that lack of reciprocity that we are seeking to remedy.
First, I should say that EU and EFTA-qualified lawyers who have already successfully transferred into the English, Welsh or Northern Irish qualification will be able to retain their qualification and practice rights, but arrangements will be different in the future. In the event that the UK leaves the EU without a deal, our services trading relationship with the EU will be governed by World Trade Organisation rules. The general agreement on trade in services prohibits signatory states from giving preferential market access to any other signatory state in the absence of a comprehensive free trade or recognition agreement between them.
We therefore need to fix the deficiencies in the relevant retained EU law caused by the lack of reciprocal arrangements with the EU, while meeting our international obligations. As such, we will revoke the legislation that currently implements the EU framework, and EU and EFTA lawyers will be treated in the same way as other third-country lawyers.
The draft statutory instrument will helpfully provide a transition period to allow registered European lawyers time to comply with the new regulatory position. The transition period will run from exit day until 31 December 2020. It will allow registered European lawyers and those in the process of achieving registered European lawyer status by exit day to practise in the same way as they do now, but with time to adjust. The arrangement will also allow EU and EFTA lawyers with ownership interests in regulated legal businesses in England, Wales or Northern Ireland to adjust their regulatory status.
In conclusion, if we leave the EU without a deal, there will be a deficiency in retained EU law implementing the two lawyers’ directives, because of a lack of reciprocity. This statutory instrument fixes that deficiency. We take the upholding of international obligations very seriously, and it is our international duty to comply with such rules. In the event of no deal, aligning the rights of EU and EFTA lawyers with those of third-country lawyers will allow them to continue to access our world-leading services market, while ensuring that the UK complies with its international obligations.
Lucy Frazer
I thank the hon. Lady for the comments that she made at the beginning of her speech. It is always a pleasure to liaise with her, on these matters as on so many others. She was right to identify the importance of the legal services sector to our country, in terms of not only the amount that the sector brings to the economy, but the number of jobs that it provides. It is one of our country’s most successful industries, providing jobs up and down the country, and we in the Government and the Ministry of Justice absolutely recognise that.
We absolutely agree with the hon. Lady that it would be beneficial to have a future partnership with the EU, with continued reciprocal rights. That is why my Department and the Government more broadly have spent a considerable amount of time negotiating those matters in a future partnership with the EU over the previous months; that is why the Government put the deal that would have enabled a future relationship with reciprocal rights before the House last night; and that is why I voted for it. I hope that hon. Members will see that in the absence of a deal we need this statutory instrument to allow us to comply with our international obligations, including aligning and adhering to rules on reciprocal arrangements, while preserving the ability to promote the attractiveness of our leading legal services market.
Clive Efford (Eltham) (Lab)
I wonder what the Minister thinks about the situation in the House at the moment. Does she believe that there is a majority among Members of Parliament to leave the European Union with no deal? Rather than passing all this legislation, does she not think it would be more beneficial for the country if the Government were just to rule out using the option to leave with no deal? That would put the minds of a lot of businesses and industries at rest—
The Chair
Order. The hon. Gentleman is straying rather a long way from the detail of these particular regulations. I applaud him for his initiative and ingenuity, but I call the Minister.
Lucy Frazer
I, too, applaud the hon. Gentleman. I will end by saying that I commend the draft regulations to the Committee.
Question put and agreed to.
Bailiffs: Regulatory Reform
Lucy Frazer Excerpts(5 years, 4 months ago)
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The Parliamentary Under-Secretary of State for Justice (Lucy Frazer)
It is a pleasure to serve under your chairmanship, Mr Evans. I congratulate the hon. Member for Wolverhampton North East (Emma Reynolds) on securing the debate on a matter that I know has affected her constituents greatly, as she spoke to me about it a few weeks ago.
I pay tribute to all hon. Members for the quality and passion of the contributions today. As my hon. Friend the Member for Henley (John Howell) said, this is a timely debate because on 25 November the Government launched a call for evidence to inform their second review of the 2014 reforms that regulate enforcement agents, in order to ensure that that important area operates well. We have framed that call for evidence against the points that have been raised with us about how the system is not operating as it should. We have heard much today that will help us reflect on that call for evidence.
It is interesting that three colleagues—my hon. Friends the Members for North East Hampshire (Mr Jayawardena), for Harborough (Neil O'Brien) and for Hendon (Dr Offord)—all raised examples of bailiffs taking action against people who were not even the debtors.
Mr Jayawardena
I welcome the fact that the Government have agreed to review the matter. Does the Minister agree that it is important to stop innocent homeowners being caught up in the collection of debts that they have nothing to do with, including where those debts have been incurred through fraudulent credit card applications, as in the case of my constituent?
Lucy Frazer
That is a very interesting point, which I just highlighted—three of my hon. Friends raised the issue of whom the action is taken against. I know my hon. Friend feels strongly about this, and it is something he has talked to me about before.
Before I turn to the review in more detail, I want to set out a bit more about the subject of debt enforcement more broadly. Enforcement agent action has been, and is likely to remain, a highly divisive subject. People who experience debt problems represent a broad spectrum of society, including some who are extremely vulnerable and others who deliberately refuse to pay for products and services.
It is important to note the two points that were made in this debate by a number of Members. The hon. Member for North Antrim (Ian Paisley) and my hon. Friend the Member for Thirsk and Malton (Kevin Hollinrake) highlighted the need for people who owe money to pay their debts, because the recovery of debts is important to the economy and the justice system. My hon. Friend the Member for Redditch (Rachel Maclean) highlighted the good practice of a company in her constituency. The Government are committed to ensuring that all enforcement agents treat debtors fairly and operate responsibly and proportionately. Our role as a Government is to strike the right balance between ensuring that debts can be collected effectively while protecting debtors from enforcement agents’ aggressive behaviour.
With those principles in mind, and after an extensive period of research and engagement, the Government imposed significant extra regulation on the enforcement process and the behaviour of enforcement agents in April 2014. I am pleased that the hon. Member for Wolverhampton North East welcomes those reforms, which included a comprehensive code governing when and how enforcement agents can enter somebody’s premises; the safeguards to prevent the use of force against debtors; which goods agents can and cannot seize and, if necessary, sell; and what fees they can charge.
The reforms stopped enforcement agents entering homes when only children are present and introduced important safeguards for vulnerable debtors. They aimed to make all parties more aware of their rights and responsibilities and introduced a new certification process for enforcement agents to ensure that they are the right people for the job. They introduced mandatory training to ensure that enforcement agents have the skills required to perform the role. The Government undertook to review the implementation of the reforms after one, three and, if necessary, five years in order to check that they are working as intended. The review, which was published in 2018, found that the reforms had many positive benefits, such as better awareness of debtors’ rights and how to complain, as well as more clarity for debtors about the fees that can be charged, the processes that should be followed and where to go for advice. However, it also reported that debt advisers and debtors still perceive some enforcement agents to be acting aggressively and, in some cases, not acting within the regulations.
The Government take those concerns very seriously. While many enforcement agents work within the law, we will not tolerate any who pursue aggressive tactics and bad practice, who make people’s lives a misery and ruin the industry’s reputation. For that reason, we launched the call for evidence to shine a spotlight on the behaviour of enforcement agents. Many of the points that have been raised today are the subject of that call for evidence. The hon. Members for St Helens South and Whiston (Ms Rimmer) and for Wolverhampton North East highlighted the problem of threatening behaviour, which is part of the call for evidence. My hon. Friend the Member for Henley and the hon. Member for Wolverhampton North East raised the issue of complaints, which is also a subject for the call for evidence. The hon. Member for Coventry South (Mr Cunningham) and my hon. Friend the Member for Harborough raised issues about training—again, that is a matter for the call for evidence.
The independent regulator, which is part of our consultation, was raised by my hon. Friends the Members for Henley and for Harborough, and by the hon. Members for Coventry South, for Wolverhampton North East, for Leeds West (Rachel Reeves), for Croydon Central (Sarah Jones), for Ellesmere Port and Neston (Justin Madders) and for Makerfield (Yvonne Fovargue). The treatment of vulnerable people was raised by the hon. Member for Lewisham West and Penge (Ellie Reeves), and that is also covered in the call for evidence, which is running for 12 weeks until 17 February 2019. As part of that, we are meeting representatives from the advice sector to get a better understanding of the research they have conducted and their concerns, and we will also be talking to enforcement agents and creditors. However, the call for evidence is not just about collecting data; we are very keen to hear from people about their individual experiences. A number of hon. Members have shared the experiences of their constituents, whom I encourage to respond to our call for evidence.
I was very pleased to have had the opportunity to meet the hon. Member for Croydon Central and her constituents the Rogers family, who sadly lost Jerome following visits to their home by enforcement agents. Like others, I am pleased to see them here today. I thank them for their contribution to this important issue and for their continuing efforts to highlight this matter.
A number of hon. Members have suggested that the Government’s reforms should go further by introducing an independent regulator, and that there should be a simpler, free and independent complaints procedure. As set out in the call for evidence, we are considering these suggestions. The call for evidence asks whether independent regulation is needed and, if so, what form that should take and how it should be funded. We would welcome any input on all those questions. It also asks about the complaints procedure, as I have said.
In addition to reviewing the behaviour of enforcement agents, the Government are working more widely to help people who fall into problem debt by providing them with protection and ensuring that creditors are acting responsibly. For example, the Government are increasing funding for free debt advice via the Money Advice Service, which will spend £56 million this year to help more than half a million people. After consultation, and via regulations to be laid this year, the Government will implement their 2017 manifesto commitment to introduce a breathing space in order to give people in serious debt the right to legal protections from their creditors for up to six weeks. We will also introduce a statutory debt repayment plan to enable those with unmanageable debts to enter into an agreement to pay their debts in a realistic timeframe. The Ministry of Justice is a member of the Government’s Fairness Group, which works with the advice sector to look at the issue of fairness in Government debt management and in enforcement practices.
I would like to end by commenting on the cross-party support to address this important issue. It has been invaluable to me, and I am sure to others, to hear not only people’s tragic personal stories, but articulate and thoughtful arguments about the principle behind these issues.
Dr Offord
Will the Minister meet her colleagues in the Ministry of Housing, Communities and Local Government to discuss possession orders and assist local authorities in rehousing people before such a possession order is escalated to the High Court? That would ensure that they were removed from a property immediately, preventing the hardship and stress that many people experience.
Lucy Frazer
I note that my hon. Friend made a very eloquent speech on that subject, which we can of course look into.
Enforcement agents play an important role in recovering money. It is a matter of regret that some are not behaving as they should, and that many members of the public do not hold them in high regard. It is vital that the public have confidence in them.
I thank the hon. Member for Wolverhampton North East for the opportunity to respond to this debate, and I look forward to the finalisation and conclusion of the call for evidence on how we can take this matter forward.
Oral Answers to Questions
Lucy Frazer Excerpts(5 years, 4 months ago)
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Jo Stevens (Cardiff Central) (Lab)
The Parliamentary Under-Secretary of State for Justice (Lucy Frazer)
I believe that the hon. Gentleman is referring to our proposal to raise the small claims limit for employees’ personal injury claims to £2,000. That change is not only in line with inflation, but will give those affected the opportunity to be heard in an uncomplicated, accessible court, without the need for a lawyer if they so choose.
Gerald Jones
I thank the Minister for that answer. Could she inform the House why the Government are avoiding full parliamentary scrutiny by putting the most damaging part of the Civil Liability Bill, which raises the small claims limit, in a statutory instrument, rather than on the face of the Bill, where it could be properly scrutinised by the House?
Lucy Frazer
The Ministry of Justice always ensures that it brings measures to the House in a way that is appropriate for them. Of course this measure will have scrutiny; statutory instrument procedure involves the scrutiny of the House. This measure will ensure that people can access the courts in an accessible way, without the need to spend excessive amounts of money.
Jo Stevens
I refer the House to my entry in the Register of Members’ Financial Interests. I listened carefully to what the Minister just said, but what guarantee can she give us that the civil procedure rule committee will be able to consider the proposed small claims increase, which covers workplace injuries, independent of Government? Why can we not debate the measure on the Floor of the House?
Lucy Frazer
As we see from the questions raised today, there is an opportunity for Members to make points they wish to make. Our Department is always listening, and there will be scrutiny through the statutory instrument procedure in due course.
Sir Desmond Swayne (New Forest West) (Con)
Every time I am foolish enough to turn on the television, there are adverts from lawyers offering free advice on workplace injuries. Surely we cannot be in want of any more such advice.
Lucy Frazer
My right hon. Friend makes an important point. We are here to serve the people, and we are here to serve people who have claims. People can still bring their claims through a very simple process in our courts. I should also mention that the Ministry of Justice has brought forward and is progressing an online system for money claims, which is achieving a great deal of satisfaction among users.
Gloria De Piero (Ashfield) (Lab)
The Government have rightly exempted vulnerable road users from the proposed changes. However, two colleagues—say, two paramedics or two police officers—who are both injured at work on the roads could be treated quite differently, with one able to get legal advice and pay no cost to get compensation, and one having to fight insurers on their own, simply because one was injured on a motorbike and the other in an ambulance or squad car. Rather than hold working people to different standards, can the Government exempt all people injured in the course of their work?
Lucy Frazer
We are concerned about the injury that is suffered, not the person’s profession. As I said, this measure will help people to access courts. The small claims limit for other money claims is £10,000, not £2,000, and people will still be able to get justice.
Matt Western (Warwick and Leamington) (Lab)
David Linden (Glasgow East) (SNP)
The Parliamentary Under-Secretary of State for Justice (Lucy Frazer)
The withdrawal agreement will ensure a smooth and orderly departure from the EU on 29 March. It includes an implementation period until the end of 2020, during which existing civil and commercial judicial co-operation will continue. We have also agreed that the cases started before the end of the implementation period will be concluded under existing EU rules, and subsequent judgments in those cases will be enforced.
David Linden
Police Scotland currently benefits from a strong relationship with other EU partners, such as Europol and Eurojust, which is vital for dealing with the cross-border crime that takes place. What assurances can the Minister give me that Police Scotland will continue to have such direct links after Brexit?
Lucy Frazer
The hon. Gentleman makes an important point about Eurojust and Europol, which are under the direct remit of the Home Office, but we of course work closely with them. I was pleased to see references in the political declaration to mechanisms to ensure that the services and intelligence operations under them will continue.
Robert Neill (Bromley and Chislehurst) (Con)
The Minister will know that the Justice Committee has published two reports that set out some of the key areas that will be put at risk for British legal services, British companies and British citizens if we do not have legal continuity, should we face the regrettable event of a no deal. Is that why, perhaps, the Secretary of State was entirely right to write as he did in the Financial Times the other day?
Lucy Frazer
I know that my hon. Friend, as Chair of the Justice Committee, has done a significant amount of work on this issue, and I have been pleased to respond to a number of debates that raised these important issues. The deal will allow us to continue working closely with the EU, specifically on family matters, which are important to so many citizens. We will continue to press for broader civil jurisdiction arrangements.
Sir Edward Davey (Kingston and Surbiton) (LD)
Can the Minister confirm that the Brexit talks on co-operation on justice and security have not yet been concluded, and that the limited text on justice and security in the political declaration is not legally binding? Can she give the House her best estimate of how long, were the House to vote for the withdrawal agreement, it would take to conclude the specific Brexit talks on justice and security? One year? Two years?
Lucy Frazer
As the right hon. Gentleman will know, the political declaration sets out the framework for the negotiations that will go forward. I would encourage him to read the assessment the Government produced on 28 November on the security partnership, which compares the impact of the criminal justice and law enforcement proposals set out in the political declaration with a no deal scenario.
Mr Philip Hollobone (Kettering) (Con)
At any one time, there are about 5,000 EU nationals in our prisons, yet in the last six years, under the ineffective EU compulsory prisoner transfer agreement, only 217 have been sent back to prison in their own country. Will the Minister ensure that we can deport more EU nationals from our prisons once we leave the European Union?
Lucy Frazer
My hon. Friend makes an important point about prisoner transfer. Since 2010, we have removed more than 44,000 foreign national offenders from our prisons, our immigration removal centres and the community. Of course, the EU prisoner transfer provisions facilitate those arrangements, but we have other measures in place with over 100 other countries to ensure that we can continue prisoner transfers.
Joanna Cherry (Edinburgh South West) (SNP)
The political declaration makes no reference to the Schengen information system database or the European criminal records information system. Both Police Scotland and the Crown Office and Procurator Fiscal Service in Scotland are concerned about that, because both tools are fundamental to fighting and investigating crime. Can the Minister confirm that Scotland will lose access to these measures after Brexit?
Lucy Frazer
As I mentioned, the Prime Minister has made it clear that she is seeking to ensure that the measures that underlay them, and the co-operation within them, will continue as far as possible post Brexit.
I should mention, because the hon. and learned Lady often asks about liaison with the Scottish Government, that I spoke to my counterpart, the Cabinet Secretary for Justice on 29 November, and he reiterated to me how pleased he was with our engagement at official level on the negotiations with the EU.
Richard Burgon (Leeds East) (Lab)
The Government have created a Brexit crisis through their rotten deal, which is abhorred by both sides of the House. While the Prime Minister runs scared of democracy and delays the meaningful vote, Cabinet responsibility has broken down, with Ministers pitching their own plan B or even plotting leadership bids. Planning for future judicial collaboration with Europe is suffering as a result. The Justice Committee says the Government are providing “little detail or certainty” about future judicial co-operation. The Lords EU Justice Sub-Committee warns of a “worrying level of complacency”. When will the Secretary of State pay as much attention to dealing with this problem as he does to problems in his own party?
Lucy Frazer
My Department is making a lot of efforts to ensure we have the right deal. We have received £17 million for EU Brexit preparations. We have over 110 full-time employees, including newly recruited employees, working across deal and no deal. I would say, as the Lord Chancellor said in his FT article at the weekend, that the Conservative party is ensuring the future of our country, whereas the leader of the Labour party is just trying to make political points to ensure a general election.
Nigel Mills (Amber Valley) (Con)
The Parliamentary Under-Secretary of State for Justice (Lucy Frazer)
The Government are simplifying many application processes, making it much easier to initiate proceedings. Once a decision to get divorced has been made, one can now petition for a divorce online. Probate can be applied for online and a money claim can be issued, for up to £10,000, using our online courts process.
Nigel Mills
Will the Minister go a little further and say how she can make it easier for people to participate in proceedings once they have initiated them?
Lucy Frazer
My hon. Friend makes an incredibly important point. It is important not only to be able to initiate proceedings easily, but participate in them. Recently, we had early testing of full video hearings held in a tax tribunal, enabling the applicant and the respondent to not have to travel to court or take any time off work. In fact, Her Majesty’s Revenue and Customs was based in Belfast in those cases and the applicants were elsewhere in the country—and, in one case, in Greece. That small scale evaluation shows that participants found them convenient and easy to understand. They will not be appropriate for every case, but this is technology we need to consider.
Catherine West (Hornsey and Wood Green) (Lab)
The number of litigants in person has shot up. What urgent action is the Ministry of Justice taking to ensure proper representation for people across the board?
Lucy Frazer
Litigants in person do need support through our justice system, which is why, over the past few years, we have spent £6.5 million investing in helping them through the court process. Many of our reforms which form part of our £1 billion programme will make sure that forms are easier, applying to court is easier, getting to court and the whole process is easier for people whether they have a lawyer or not.
Jim Shannon (Strangford) (DUP)
Will the Minister outline any intentions to review the legal aid process, which currently does not allow middle class families to access legal redress due to a lack of ability to pay bills and thereby pay for legal help and assistance?
Lucy Frazer
As the hon. Gentleman will know, we are in the process of an extensive legal aid review, which will look at many aspects and report early in the new year. [Interruption.]
Mr Speaker
I hear the hon. Member for Huddersfield (Mr Sheerman) burbling from a sedentary position about the spirit of Christmas. I call Mr Barry Sheerman.
Mr Speaker
In my experience the hon. Gentleman is interested in every area of every policy in our public life.
Lucy Frazer
I have now heard that phrase three times in debates I have taken part in. The reason various cuts were made in 2010 was the perilous financial situation that our Parliament found itself in. We in the Department are looking extremely carefully at how we deliver justice for people. We are investing £1 billion in our core reform programme, while ensuring we use taxpayers’ money efficiently and well.
Ms Karen Buck (Westminster North) (Lab)
The Parliamentary Under-Secretary of State for Justice (Lucy Frazer)
I am grateful to the hon. Lady, who chairs the all-party group on legal aid and has done a lot of work in this area. We recognise that in some sparsely populated areas it is more difficult to find service providers, but the Legal Aid Agency regularly reviews market capacity to make sure there is adequate provision across the country and moves quickly to fill any gaps that it identifies. At the latest civil legal aid tender, the number of offices providing access to advice increased by 39% for immigration and asylum, by 188% for welfare benefits and by 7% for debt and housing.
Ms Buck
With homelessness up by 70%, with universal credit wreaking absolute havoc on housing costs and with 1 million properties unfit for occupation, why do the new figures reveal that there are 1 million people with no access to a legal aid-provided housing lawyer at all and 15 million people in areas where there is only one provider, raising huge issues of capacity and potentially conflicts of interest? Will the review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, when we finally get to see it, address that issue so that people everywhere in the country can have access to the legal aid services they need?
Lucy Frazer
The hon. Lady is right to identify the fact that dealing with housing issues is important. As at today’s date, there is at least one provider offering housing and debt services in all the 134 procurement areas except for seven, and the Legal Aid Agency is doing what it can to ensure that appropriate services are available in those seven areas. It is due to launch a further tender in areas where there is currently low access to services, and that tender will begin on 17 December.
Derek Thomas (St Ives) (Con)
Across Cornwall, access to a legal aid lawyer for housing and families is particularly difficult. I have raised that matter before. What can the Minister do to create a greater incentive for lawyers to take up that work?
Lucy Frazer
Cornwall is a sparsely populated area and there are difficulties there, but there is always access to the telephone service. It is right that we should look not only at face-to-face advice but at where technology can help to deliver legal advice to people.
Catherine McKinnell (Newcastle upon Tyne North) (Lab)
Lucy Frazer
The hon. Lady makes an important point about ensuring that we have support for those who are most vulnerable, but I would like to make two points on welfare benefits, which she has highlighted. First, the most important outcome for benefit claimants is that the decisions on their claims should be right first time. This avoids the need to go to court at all, and my Department is working closely with the Department for Work and Pensions to ensure efficient decision making. I have met the Minister twice to ensure that we get those decisions right first time. Secondly, while decisions on welfare claims significantly impact the lives of often vulnerable people, the claims are often not complicated. We are making changes to the tribunal system to ensure that those cases are handled simply, effectively and more quickly.
Wera Hobhouse (Bath) (LD)
Lucy Frazer
As I have recognised, there are areas of the country that suffer. The Legal Aid Agency looks at those areas, and re-procurement tender exercises are going out in seven of them.
Several hon. Members rose—
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
The Law Commission of England and Wales says that working people on low incomes are being systematically denied the right to a fair trial because of restrictive legal aid rules. When will the Government act in this shocking and shameful situation?
Lucy Frazer
The hon. Gentleman will have heard that we are doing a review of legal aid, which will be published early in the new year. I was interested to read the recent Scottish Government report on legal aid, which implements a number of the things that we are already doing, including using technology to help our court processes.
Richard Burgon (Leeds East) (Lab)
The current Prime Minister unleashed the Home Office’s hostile environment against migrants, and the Windrush scandal shows just how easily people can fall foul of this Government’s complex and cruel immigration rules. It is even tougher for those who have to navigate this hostile environment without legal advice, yet access to legal aid-funded immigration advice has fallen by 68% under the Tories, from 120,000 cases in 2010 to 39,000 cases this year. So do the Government regret scrapping such publicly funded legal advice that can save people from unfair decisions and deportations, and if so, will they reinstate it?
Lucy Frazer
The hon. Gentleman has not made that offer. The Opposition have made an offer in relation to welfare, but not, I note, in relation to immigration. Let me remind him that people can already get legal advice for asylum and non-asylum cases, and for cases involving detention, the Special Immigration Appeals Commission, domestic violence and trafficking. I want to make it clear to the House and to everyone who is listening that people are often not claiming legal aid because they do not believe they are entitled to it, because the Opposition and some others suggest that it is not available.
Dr Matthew Offord (Hendon) (Con)
Rachel Reeves (Leeds West) (Lab)
The Parliamentary Under-Secretary of State for Justice (Lucy Frazer)
We are determined to protect debtors from aggressive behaviour by enforcement agents while balancing that against the need for effective enforcement of debts. We launched a public call for evidence on 25 November to help us to understand the extent of the problem, and it is open until 17 January.
Neil O’Brien
A constituent of mine, John Stevens, lost thousands after he was threatened by bailiffs in connection with his son’s debt, which arose through no fault of his own. My constituent was never told his rights, and there was no independent regulator to which he could appeal. Given that 40% of people contacted by bailiffs are threatened or intimidated, will the Minister take action following the call for evidence to right those wrongs?
Lucy Frazer
I am sorry to hear about the experience of my hon. Friend’s constituent and I am happy to discuss the matter further with him. The 2014 reforms require bailiffs to send a letter before they visit to set out where a debtor can go for advice, but we want to ensure that that mechanism and others are working. We are asking that question in our consultation, so I encourage his constituent to tell us more about his experience in our call for evidence.
Rachel Reeves
I welcome the Government’s call for evidence. Since it was launched, the Minister has said that a small number of bailiffs are breaking the law. The truth is that a YouGov poll shows that a third of people contacted by bailiffs in the past year have experienced law breaking, so this is much more than a small problem. Will the Government therefore change the language and see where the evidence takes them, rather than concluding that a minority of bailiffs are behaving in this way?
Lucy Frazer
It is important to gather the evidence, which is what this consultation will do. As the hon. Lady will know, because she asked a question at the previous Justice questions when the Citizens Advice report had just come out, we want to examine the evidence fully, and we are asking for evidence not just from individuals, but from the enforcement agencies themselves. My officials have asked Citizens Advice for a meeting to discuss the content of the report, which identifies a large amount of inappropriate behaviour.
Kevin Foster (Torbay) (Con)
The Minister responsible for rehabilitation will be aware of the great work that groups such as St Mary Magdalene church in Torquay do with ex-offenders. That work could be enhanced if such groups could use the old Torquay magistrates court, which is still empty. Will he agree to meet me and representatives of the church to discuss how, if they acquired the building, they could make a real difference?
The Parliamentary Under-Secretary of State for Justice (Lucy Frazer)
I am happy to meet my hon. Friend to discuss that matter, and if any other colleagues wish to meet as well, I am sure they will do so.
Toby Perkins (Chesterfield) (Lab)
Mr Philip Hollobone (Kettering) (Con)
With which specific countries are the Government negotiating new compulsory prisoner transfer agreements?
Lucy Frazer
The Government already have agreements with around 100 countries in relation to prisoner transfers.
Dr Philippa Whitford (Central Ayrshire) (SNP)
Lucy Frazer
I think the hon. Lady will have been pleased to see a paragraph in relation to extradition in the future framework.
Sir Oliver Heald (North East Hertfordshire) (Con)
Ministers will be aware of the very low attainment in reading among prisoners. Is anything being done to try to improve the situation? I understand that the average reading age in a prison is 11.
Mr Stephen Hepburn (Jarrow) (Lab)
Lucy Frazer
Various changes were made as a result of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. As the hon. Gentleman will know, we are undertaking a significant review. My Department has met with more than 100 organisations or individuals to discuss the changes that were brought in and my Department will be reporting in the new year.
Ruth Cadbury (Brentford and Isleworth) (Lab)
Will the Secretary of State commit to implementing the recommendations of the independent Mental Health Act review to reform mental health tribunals and will the Government commit adequate resourcing to the recommendations?
Lucy Powell (Manchester Central) (Lab/Co-op)
Many of those convicted of murder under joint enterprise thought that they would be able to seek appeals of their convictions after the Supreme Court ruling that the law had taken a wrong turn. However, the recent loss of the Laura Mitchell case, the first brought by the Criminal Cases Review Commission, has shown that the appeal bar is impossibly high. What will the Government do about that?
Lucy Frazer
I know that the hon. Lady has campaigned very hard on this. I was very pleased to answer her debate shortly after my appointment. As she knows, the appeal bar is set in relation to all cases, not just in relation to this case, but I am very happy to discuss this issue in a meeting with her.
Peter Kyle (Hove) (Lab)
It was two years ago that the then Secretary of State for Justice agreed to outlaw the cross-examination of survivors of domestic abuse by the perpetrators of their crime, yet the misery goes on. When will the Government outlaw that?
Andy Slaughter (Hammersmith) (Lab)
When we debated legal aid last month, the Minister was expecting to publish the LASPO review before Christmas. It is already eight months late, so will she tell us the date on which it will now be published? Why are we not getting it until next year? What is the reason for the delay?
Lucy Frazer
I am happy to take the hon. Gentleman’s question. I remind him what he said to the Law Society several months ago—that it is important to take time to review this important subject. It is important and, as I have said, we have met over 100 organisations and individuals. We finished our final engagement with organisations at the end of last month and we will publish the review early in the new year.
Courts and Tribunals (Judiciary and Functions of Staff) Bill [Lords]
Lucy Frazer ExcerptsWednesday 12th December 2018
(5 years, 4 months ago)
Commons ChamberRead Full debate Courts and Tribunals (Judiciary and Functions of Staff) Act 2018 View all Courts and Tribunals (Judiciary and Functions of Staff) Act 2018 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Consideration of Bill Amendments as at 12 December 2018 - (12 Dec 2018)
Louise Haigh (Sheffield, Heeley) (Lab)
I rise briefly to speak in favour of the amendments tabled by my Front-Bench colleagues. I believe that safeguards need to be in place to ensure that people are properly qualified to make decisions and particularly that contentious decisions should be reviewed by a qualified judge. I want explicitly to address concerns about how this might transpire in the family courts. Several of my hon. Friends raised the concern in Committee that the family courts could be the most affected by potential delays and the perverse consequences of the measures in the Bill.
This is particularly relevant given the recent exposure of the case of Sammy Woodhouse. I am sure that colleagues will be well aware of her case. I know that the Minister is, and I am grateful to her for meeting Sammy and me last week. Mr Speaker also welcomed Sammy to Prime Minister’s questions last week. Her bravery in putting herself forward, in risking being held in contempt of the family court and in waiving her anonymity to speak about her experiences, so that we in this place can drive change, is inspiring. We owe it to her and to the many other survivors to ensure that we drive change and ensure that what happened to her and to too many other young women and girls never happens again.
Those young women and girls were failed by the state. They were failed by our legal system, by the police, by the Crown Prosecution Service, by local authorities and by government at every level, and now they are being failed yet again by our legal system. Our entirely permissive system, which allows anyone to make an application through the family courts, means that men who have been convicted of rape—in Sammy’s case, the father of her child, Arshid Hussain, is serving a 35-year prison sentence—can apply to the courts for access or visitation rights. Sammy’s case shocked the nation, but unfortunately it was not unique. Just yesterday, I spoke to another woman who had to respond and attend court after the man who was convicted of raping her and fathering her child had applied through the family courts from prison.
This could be prevented through a simple ban on any man convicted of fathering a child through rape applying to the family courts. I know that the Government are reluctant to bring this forward, out of concern for the convicted rapist’s article 8 right to a family life, but I am afraid that that simply is not good enough. I will always defend our human rights as enshrined in the Human Rights Act 1998 and the European convention on human rights—I say this on the day of the 70th anniversary of the universal declaration of human rights—but article 8 is a qualified right and not one that should override the rights of women and children and their safety. Surely, we should be starting from the presumption that if a child has been conceived through rape, the man should have no parental rights to that child and that we should allow such rights only in exceptional circumstances, not the other way round.
When I speak to victims of rape and survivors of child sexual exploitation in situations such as Sammy’s—women who have an almost uniformly terrible experience of the family courts—their feeling is one of betrayal and despair that every day is a battle in which they have to fight for their most basic rights. They are often forced to relive their traumatic experiences and justify themselves over and over, yet they are so often told about the rights of the men who have abused them and who can now click their fingers and drag their victims back through the courts to traumatise them all over again. Women such as Sammy, who have already given evidence, spoken out in criminal trials and been to hell and back, should not then live the rest of their lives trying to bring their children up in horrendously difficult circumstances with the threat of being dragged back through the courts once again to face the man who raped them. It may be the case that no judge would allow such access in any circumstances, but it is surely intolerable for women in this situation to have to face the man in court all over again, and I believe that we as a Parliament should make that crystal clear.
The family procedure rule committee met earlier this week to discuss the consequences of Sammy’s case and to consider amending practice direction 12C. I hope that the committee will be able to bring much greater clarity, but this is likely to be in relation to local authorities’ duty to notify in the case of a care order. That will not solve the problem, and I worry that, combined with the measures introduced in the Bill, it could bring greater uncertainty to the process and leave victims with even greater uncertainty and fear that their abusers might be able to weaponise the courts against them. As I have said, I am grateful to the Minister for meeting Sammy and me last week, but we were both really disappointed that the Government were not willing to take more immediate action to address this thoroughly intolerable situation. I hope that the Minister will be able to update the House on what action they have now considered and on the implications of the Bill for this important issue.
The Parliamentary Under-Secretary of State for Justice (Lucy Frazer)
It is an honour to take this Bill through its final stages. I should like to start by addressing some of the key points raised today by the hon. Member for Bolton South East (Yasmin Qureshi). She suggested that we were sneaking the Bill through the House. However, it was introduced seven months ago. Not only that, but it forms part of the Prisons and Courts Bill, which was introduced in this House in 2017 and which fell at the general election. The provisions in this Bill have been well known for some time. They have been debated in this House, and they are not being sneaked anywhere at all. The thrust of the hon. Lady’s speech was that this is a Bill about cuts, but it is certainly not. The Bill is part of our £1 billion court reform programme.
Neil O’Brien (Harborough) (Con)
My hon. and learned Friend is making an important point. In 2010, this country faced its largest budget deficit since the second world war, and all that my constituents want is value for money from the Government. The measures that we are taking forward today may not be the most exciting or sexy things that we will do this House, but they are a key part of value-for-money government.
Lucy Frazer
My hon. Friend makes an important point that has a number of aspects. First, my Department had to make cuts in 2010 because of the poor financial situation that we inherited from the Labour party. Secondly, it is important that we deliver justice fairly to those who are part of the justice system, but as he says, we also have a duty to the taxpayer. Overlaying those two points is a third point. Notwithstanding the position we inherited and notwithstanding our duty to taxpayers, my Department is undertaking a significant reform programme that is investing in our justice system. A couple of weeks ago, the Ministry of Justice held a conference at which more than 20 countries from around the world were represented. They talked about their own reform and modernisation programmes, but ours is one of the most ambitious. We are at the forefront of innovation, and we are investing in our justice system to bring it up to date in the 21st century.
Robert Neill
Is this not also important in the context of the speech by Lord Thomas of Cwmgiedd in the other place? He said that
“the operation of the criminal, civil, tribunals and family procedures rule committees has enabled us far more than any other state to keep our rules up to date.”
We need to continue to do that. That is why he stated:
“I urge the greatest caution in trying to put into primary legislation anything that restricts in this way the powers of the rule committees.”—[Official Report, House of Lords, 16 October 2018; Vol. 793, c. 425.]
Lucy Frazer
That is an important point. Our justice system is renowned throughout the world, thanks to its flexibility, which is enabled by the rules committees along with the other measures that allow us to develop our jurisdiction.
The hon. Member for Bolton South East finished by suggesting that we should listen and take the amendments on board, but we have listened and made amendments. We made amendments in the other place to include safeguards and improve the Bill.
Kevin Hollinrake
The Minister makes a good point about our duty to the taxpayer. Irrespective of this nation’s financial situation, we always have a responsibility to spend the taxpayers’ money wisely. As she knows, Northallerton magistrates court in my constituency will close. She has put in place some mitigation measures to help people to continue to have access to justice, but will she ensure that those measures are in place before the closure of that court?
Lucy Frazer
My hon. Friend and, indeed, Mr Deputy Speaker have campaigned hard about the closure of their local courts, and the dispensing of local justice is important in Northallerton, as it is in Chorley. My hon. Friend makes an important point, because, following campaigning by my hon. Friend and his constituency neighbour, my hon. Friend the Member for Richmond (Yorks) (Rishi Sunak), we committed not to close the court on the basis that we would do so only when the technology was in place to ensure that we could continue to deliver justice. We need to move with the times, but we must also ensure that people get fair procedures and justice in the tribunals.
Robert Neill
My hon. and learned Friend is being most generous in giving way. Does she also recognise that modernising and simplifying procedures saves money not only for the taxpayer, but for litigants? Part of access to justice is about reducing needless costs for litigants.
Lucy Frazer
That is an important point, because when we talk about what we have saved, we often mean what has been saved at the Ministry of Justice, but the reality is that ensuring that justice is served for the people who use it is at the heart of our reforms. Many of our changes have received positive feedback. In a recent trial at the tax tribunal, people were able to access justice from remote locations and not have to go to a physical court. That was well received, because people did not have to disrupt their day by physically entering court. Of course, that will not be appropriate for everyone, but we must ensure that we use the advantages of technology in the future.
Simon Hoare (North Dorset) (Con)
I am grateful to my hon. and learned Friend the Parliamentary Under-Secretary of State for Justice for giving way—[Laughter.] That bought us 32 seconds. I am interested in what she has said. Is she able to dilate—preferably at some considerable length—on the benefits that might accrue from people not having to go to court in rural areas, such as North Dorset, where public transport is scarce and where not everybody has access to a motor car? The changes could be of huge benefit to large, sparsely populated rural areas such as mine.
Lucy Frazer
My hon. Friend makes an important point, and I also represent a rural area. Interestingly, some of the greatest and most interesting innovations at our conference were from Australia, where the geography is an issue, and we can learn a lot from its procedures. Over recent years, 300,000 people have started engaging with our online services, which have been well received.
Simon Hoare
I am grateful. Can we read across from what my hon. and learned Friend says that she is making strong representations to ministerial colleagues at the Department for Digital, Culture, Media and Sport, to BT and to other providers to ensure that hotspots, blackspots, notspots—call them what you will—in rural areas that are poorly served by a reliable, speedy, robust internet will be filled to allow all our citizens to access justice and make representations using technology? With the best will in the world, if the technology is not there—I know that my hon. and learned Friend knows this—people will not be able to use it.
Lucy Frazer
My hon. Friend makes a second important point, which is that we cannot roll out and continue to use technology unless the technology actually works. I regularly talk to Her Majesty’s Courts and Tribunals Service and others about the importance of ensuring that the systems that we already have in place work well, so that the technology does not fail us when we are trying to hold court hearings.
Neil O'Brien
Further to the important point made by my hon. Friend the Member for North Dorset (Simon Hoare) about virtual and online courts and creating hassle-free access to courts for all constituents, can the Minister give us figures for the extent to which the change has helped to unclog our courts? One of the benefits of the Bill for my constituents is not just hassle-free access for them, but the fact that our courts will not be clogged up by the traffic cases and small beer that lead my constituents to wonder why serious criminals take years to be processed. Will the Minister give us some stats about the growth of virtual and online courts and what this Bill will do to those stats?
Lucy Frazer
I mentioned earlier that 300,000 people have already started engaging with our services online. They can apply for probate or divorce online, and many people are doing that. We also have our new online civil moneys claim court, which enables people to apply online and defend online. In one case in the first week after its launch, we had a settlement without people going to court at all. Technology will not only enable us to unclog our courts and get quicker hearing times, but give our constituents better access to justice because more people will be engaging with it. It will be cheaper for them to engage, and therefore more people will be able to access fairness and justice in the resolution of their claims.
I turn to the essence of the Bill and the Opposition amendments. Amendment 1 relates to clause 3(3), which provides for the use of the negative resolution procedure, which the hon. Member for Bolton South East suggested is not appropriate when dealing with the judicial functions of staff. However, the Government think that the amendment is inappropriate for several reasons. First, clause 3(3), which provides for the use of the negative resolution procedure, is not actually concerned with judicial functions. Clause 3(3) is in fact cross-referring to clause 3(2), which allows the Secretary of State to make
“consequential, transitional, transitory or saving”
provisions relating to authorised staff by way of regulations.
In reality, clause 3(3) allows us to amend references in secondary legislation to, for example, justices’ clerk—a post abolished by the Bill—to authorised officer. So far, we have identified over 200 references and over 60 pieces of secondary legislation that would need amendment, and there may be more. It is a standard clause for this type of provision. We know that that is the correct reading of the measure because the power to enable staff to carry out the judicial functions that the hon. Member for Bolton South East is concerned about is actually set out in the procedural rules made by the independent rules committees. This is clear from clause 3(1), which refers not to regulations but to procedure rules. The procedure by which the procedure rules are enacted is set out not in this Bill but in other legislation, namely the Courts Act 2003, the Civil Procedure Act 1997 and the Tribunals, Courts and Enforcement Act 2007.
Amendments 2 to 4 relate to the qualifications of those undertaking advice or judicial functions under the Bill. Amendments 2 and 3 require that any staff member who gives legal advice to lay justices or judges of the family court must be legally qualified and have more than three years’ experience post-qualification. Amendment 4 requires the same qualifications for any staff carrying out judicial functions.
The Government absolutely agree it is important that those who undertake functions in our courts are suitably qualified. As my hon. Friend the Member for Bromley and Chislehurst (Robert Neill) said, and as he has said on many occasions, our justice system is renowned throughout the world, and much of that is down to the experience and quality of our judiciary. Ensuring that those who work within our justice system have the right skills is fundamental to justice.
Neil O'Brien
Members on both sides of the House would agree that we have a world-renowned judiciary. In fact, Members are profoundly nervous when we see headlines in our papers calling judges, “Enemies of the People,” which we would all disavow. These are people who, day in and day out, do things in court that could cause them to be threatened. They are taking risks on behalf of the rest of us, and it is a high-quality system. With that in mind, and given the respect in which the judiciary are held by this House, does my hon. and learned Friend agree it is important that we do not accidentally do them down in this debate? Does she agree it is not right for the shadow Attorney General to suggest, I think unintentionally, that temporary judges may be less impartial than permanent judges? All our judiciary are high quality.
Lucy Frazer
That is absolutely right. As a former barrister, I appeared regularly before experienced judges, all of whom were full of integrity, undertaking important roles.
The hon. Member for Bolton South East suggested that all judges need qualifications of some kind. Of course, we have magistrates across the country who are doing outstanding jobs in our justice system. As my hon. Friend the Member for Harborough (Neil O'Brien) mentions, temporary judges, just like full-time judges and judges who operate on a permanent basis, are recruited because of their expertise and skill. They are trained, and they carry out their roles as they should.
Kevin Hollinrake
My hon. and learned Friend mentioned the fine work done by magistrates. Is there any way we could relax the requirements in order to increase the number of cases that may be considered by magistrates? I understand that magistrates are the most cost-effective part of the justice system.
Lucy Frazer
Magistrates undertake a significant number of roles, and they have vital responsibilities. In fact, they deal with over 95% of all criminal cases, the majority of which are less serious criminal cases, but they are very important. I am pleased recently to have attended the Magistrates Association conference, where I met a number of magistrates who are doing vital work across the country.
James Cleverly (Braintree) (Con)
I declare an interest, as my wife is currently going through the process to become a magistrate. I am struck by how the role of magistrates is so little understood. There are a number of people in my professional and personal circles who might make good magistrates, but they are unaware of the process or of the importance of the role. What more could be done to highlight the significant role that magistrates play in the criminal justice system?
Lucy Frazer
I am pleased to hear that Mrs Cleverly is undertaking this important role. My hon. Friend is right that it is important, and employers do understand. The Lloyds banking group recently won an award for encouraging staff to take time off to undertake this important role, and we need to do more to encourage employers to encourage their staff to take part in this important function.
Mr Deputy Speaker
Order. We need to move on now. I was very generous before, but magistrates have absolutely nothing to do with the Bill, as the Minister well knows.
Lucy Frazer
I am happy to come on to the three reasons why amendments 2 to 4 cannot be accepted. First, the amendments are not necessary. The functions are already being carried out, and carried out well, by those with lesser qualifications than those sought by the hon. Member for Bolton South East. The qualification requirements for legal advisers in the magistrates court and family court are currently set out in regulations made by the Lord Chancellor, as they have been since 1979, and amendments 2 and 3 would raise the qualifications bar significantly higher than the current regulations and would rule out a large proportion of Her Majesty’s Courts and Tribunals Service staff from giving legal advice in future.
James Cartlidge
There are many people in the Chamber with huge legal expertise. All I can claim is spending my year off as a junior outdoor clerk, for which the only qualifications needed were a ponytail and a cockney accent, as far as I could see. From my short experience I discovered the huge number of staff who make up our courts and keep them ticking along. They might be administrative functions, but we should not be afraid of reforming our courts to give those people greater roles that help them to make more of their career.
Lucy Frazer
My hon. Friend makes an important point. Not only is it important to ensure that the qualifications match the role, but these reforms will ensure good career progression for competent and organised staff. Similarly, in relation to amendment 4, it is already the case that some staff can exercise judicial functions in almost every jurisdiction except the Crown court. The range of functions they can carry out varies enormously, as my hon. Friend the Member for Thirsk and Malton (Kevin Hollinrake) pointed out earlier, from legally qualified legal advisers in the county court setting aside default judgments to non-legally qualified caseworkers in the lower tribunal dealing with postponement requests and issuing strikeout warnings.
Accepting amendment 4 would rule out a large proportion of those staff, who are already exercising judicial functions and who may have been doing either or both for a number of years. Such a loss of expertise would be particularly damaging and would impact on the service that Her Majesty's Courts and Tribunals Service can provide. The hon. Member for Bolton South East suggested that introducing authorised staff was damaging to justice, but I did not hear any examples of inappropriate action by any of our current staff who do not currently have those qualifications and who are already carrying out these roles.
Kevin Foster (Torbay) (Con)
The Minister is outlining well the position under the current regulations. Does she agree, therefore, that specifying the needed qualifications in primary legislation would be unwelcome when we already have a perfectly effective system that does not require such qualifications, which could then in future be changed by further primary legislation?
Lucy Frazer
That is the heart of the Government’s position, and it takes me neatly on to my second point. The Bill, as drafted, already ensures appropriate procedures are in place to ensure that parties are protected. Those points were clearly put by my hon. Friends the Members for Torbay (Kevin Foster) and for Bromley and Chislehurst—the Chair of the Select Committee on Justice always puts things clearly and cogently. The Bill rightly allows the relevant procedure rule committees to set the requirements relating to the necessary qualifications or experience of these staff in the future, depending on the functions they permit staff to carry out.
Kevin Hollinrake
This is an important point. Will my hon. and learned Friend come on to address not only the human cost if these amendments are accepted, with the potential for people in these roles at the moment to lose those jobs, but the financial costs of making those people redundant and replacing them with qualified people?
Lucy Frazer
Yes, those are important points. A large number of people already carry out these important roles and do so very well, and we would like to retain them.
Both the judicial functions that may be carried out by staff and the accompanying qualification requirements will be set out—it is just that they will be set out in the procedure rules, which are made by way of secondary legislation and are therefore subject to parliamentary scrutiny.
Neil O'Brien
Progressive politicians on both sides of the House believe in labour market progression; they believe people should be able to act up, do more, learn more, take their career further and earn more. By putting in primary legislation artificial demarcations that stop skilled people doing things they are capable of doing, we would be doing people down; we would be putting a limit on their aspirations. That is why we must reject these amendments.
Lucy Frazer
That is an important point. Some people are already carrying out these functions and doing them well, and they will be able to see a future career progression for themselves. The legal and other qualifications they should have will be set out, but they will be set out by the committees, which are judicially led and independent of Government, and include representatives of the legal professions, and court and tribunal users. As my hon. Friend the Member for Bromley and Chislehurst said, the judges placed on those are leading the procedure rule committees and have significant expertise. It is they who are best placed to assess the appropriate level of qualification or experience for authorised staff, in the light of the functions they choose to allow those staff to exercise.
My hon. Friend rightly said that the member of staff will not be able to give legal advice or exercise judicial functions until they have been authorised to do so by the Lord Chief Justice or their nominee, or by the Senior President of Tribunals or their delegate. Authorisations are therefore ultimately the responsibility of the judiciary, and those people will not authorise staff unless they are satisfied as to their competence.
Robert Neill
My hon. and learned Friend will know, and perhaps she will confirm, that the way this works in practice is that either the Lord Chief Justice or the Senior President of Tribunals makes the authorisation. Alternatively, in the case of the civil jurisdiction, for example, this will invariably at least go to the senior presiding judge or the presiding judges of the circuit. We are talking about people who, in their administrative role, never mind their judicial capacity, will have visited and met these—
Mr Deputy Speaker
Order. Minister, come on. And you have had three speeches already, Bob, you don’t need to stretch the imagination of the Chamber.
Lucy Frazer
My hon. Friend, the Chair of the Select Committee, was making an important point. The rule committees are—
Mr Deputy Speaker
Order. Some might think it is very important—[Interruption.] Order. Would the Minister like to sit down for a moment? In fairness, I am beginning to get a little frustrated with the people who were not here for all the speeches; we had no speakers in, and now everyone wants to come in with interventions. I have only got one Member now down to speak on Third Reading, so if people really want to make a contribution, they know what to do.
Lucy Frazer
I hope that more will put in to speak on this important subject. I wish to pick up on what my hon. Friend was saying, because he cited a number of speeches from the other place, where senior members of the judiciary were highlighting the appropriateness of the Government’s position. Lord Neuberger, former President of the Supreme Court, warned that these amendments would place
“a potential straitjacket on the ability to appoint the appropriate people to make appropriate decisions.”
He went on to reflect that there “will be many decisions” for which the experience set out in the amendments
“would be appropriate, but there will be others where less experience would be adequate for the decision-making.”—[Official Report, House of Lords, 10 July 2018; Vol. 792, c. 882.]
Thirdly, I come to an important point that has not yet been mentioned in the House. The amendments would limit flexibility should new routes to legal qualifications emerge. For example, one key change that we have made in the draft regulations that we published alongside the Bill is to include fellows of the Chartered Institute of Legal Executives, or those who have passed the necessary examinations to be a CILEx fellow, among those who can give legal advice. That is a progressive step, but if we were to accept amendments 2 and 3, it would be much harder to respond to such changes in the future, as we would have to amend primary, rather than secondary, legislation.
Furthermore, a legal qualification might not be the most relevant qualification for a particular judicial function. For example, it is more helpful for a registrar in the tax tribunal to be a tax professional by background, rather than a legal professional.
The hon. Member for Bolton South East raised a number of points on independence, and I wish to start by saying that I think the judiciary, whether sitting in court or in committee, has, as my hon. Friend the Member for Cheltenham (Alex Chalk) said when he was in his place, the highest level of independence and integrity.
The hon. Lady queried, both here and in Committee, the independence of authorised staff, implying that those with a legal qualification were more likely to be independent. Under the Bill, all court and tribunal staff who are authorised to exercise judicial functions will now be independent of the Lord Chancellor when doing so, and subject only to the direction of the Lord Chief Justice or their nominee, or the Senior President of Tribunals or their delegate.
The Bill also provides, for the first time, protections from legal proceedings and costs in legal proceedings and indemnities for all authorised staff when carrying out judicial functions, which will further safeguard their independence in decision making.
Finally, amendment 5 deals with the right of reconsideration of decisions taken by authorised staff in the courts. I wish to start by acknowledging that the hon. Lady and the Opposition have listened carefully to the points made in Committee; I note there is now no amendment dealing with decisions taken by staff in the tribunals, and I welcome that.
It is right that in some circumstances a party to proceedings may wish to have the decision reconsidered, but we remain opposed to the amendment for three reasons. First, the Bill already ensures that a right of reconsideration will be available when appropriate. We believe that the independent procedure rule committees—comprised, as I and others have said, of jurisdictional experts and experienced practitioners—are best placed to decide whether such a right of further reconsideration is needed and, if so, the form that that right should take.
Indeed, the procedure rule committees in the civil and tribunals jurisdictions have already included in their respective rules a specific right to judicial reconsideration for decisions made by authorised persons in appropriate cases. For example, the magistrates courts and the family court have their own existing mechanisms for reviewing various decisions, which amendment 5 would cut across.
Secondly, the right identified by the hon. Lady is too broad, even by her own admission. In speaking to amendments in Committee, she said that
“we accept and acknowledge that one should not be able to ask for reconsideration simply because one disagrees with the decision of the authorised person; one must have a cogent reason. There must be proper grounds for requesting a reconsideration.”—[Official Report, Courts and Tribunals (Judiciary and Functions of Staff) [Lords] Public Bill Committee, 4 December 2018; c. 17.]
I was delighted to hear those words, because the Government have also been arguing, both here and in the other place, that a blanket right of reconsideration simply would not work in practice. Yet amendment 5 would give a party in a case an automatic right to request that any decision made by an authorised person exercising the functions of a court be reconsidered by a judge, irrespective of the merits.
Thirdly, the approach we put forward is fair and balanced. The Government listened to concerns about ensuring there were adequate safeguards in the Bill. For that reason, we moved amendments on the right of reconsideration that were accepted on Report in the other place. They effectively require the rule committee, when making rules, to allow authorised staff to exercise judicial functions to consider whether each of those functions should be subject to a right to judicial reconsideration. Where a rule committee decides against the creation of a right of reconsideration, it must inform the Lord Chancellor of its decision and the reasons for it.
The hon. Lady also referred to the Briggs report, and I would like to touch on that very briefly. The recommendations made by Lord Justice Briggs are taken from the report “Civil Courts Structure Review”, the focus of which was the courts of the civil jurisdiction. While an unqualified right of reconsideration might have been appropriate to recommend for the civil courts, given their unique way of working it would be ineffective simply to transpose this recommendation on entirely different jurisdictions.
The civil procedure rule committee has built a right of reconsideration into its rules, but this will not necessarily be appropriate for other jurisdictions. It is for each jurisdiction, with the expertise it has within the rule committee, to decide what is right.
That approach has found favour in the other place. Lord Thomas, former Lord Chief Justice and former chair of the criminal procedure rule committee, said:
“I support what the Government seek to do and urge a substantial degree of caution in respect of the proposals brought forward by the noble Baroness”—
that is, Baroness Chakrabarti. He added that the Government’s approach provides the right balance:
“It gives discretion to a body that knows and has a lot of experience, but it contains that degree of explanatory accountability that will make sure that it does not do anything—even if we were to worry that it might—that goes outside a proper and just delegation”.—[Official Report, House of Lords, 16 October 2018; Vol. 793, c. 425-26.]
The Bill strikes the right balance between ensuring appropriate safeguards and transparency of decision making, and leaving the jurisdictional rule committees the discretion to determine the most appropriate mechanism for reviewing decisions by authorised people.
Finally, I would like to respond to the very important points made by the hon. Member for Sheffield, Heeley (Louise Haigh). I was very pleased to meet her and Sammy Woodhouse a week or so ago. She raised issues that are outside the scope of the Bill, but none the less what Sammy went through was harrowing and the hon. Lady made some important points. As she knows, I committed to look very carefully at the issues she raised and I assure her that we are doing that.
As the hon. Lady mentioned, we have already taken some steps. We have, as she alluded to, asked the president of the family court to look at the practice directions and he has committed to doing that with the rule committee. My officials have spoken to the Association of Directors of Children’s Services about whether it is appropriate to send further guidance to councils on the circumstances in which they should apply to court not to give notice of hearings to parties, such as happened in the Sammy Woodhouse case. The Department will continue to look closely at those issues.
For all those reasons, this is an important Bill that will ensure that we can bring flexibility to our judges, deploy them in the most flexible way, use their resources where they are needed and not when they are not needed, and ensure that those who operate our court system do so effectively and fairly for the people they serve.
The Ministry of Justice is putting users of the court at the heart of our reforms and of our programme on court reform. The measures will not only save on cost—that is not the primary reason for them, although it is important—but ensure that cases go through the system fairly and well. For those reasons, I urge the hon. Lady to withdraw the amendment.
Yasmin Qureshi
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment proposed: 2, in the schedule, page 6, line 36, at end insert—
“(aa) is a qualified solicitor, barrister or chartered legal executive with more than three years’ experience post-qualification, and”.—(Yasmin Qureshi.)
This amendment would stipulate that the minimum legal qualifications for authorised persons should be three years’ experience post-qualification.
Question put, That the amendment be made.
Madam Deputy Speaker
I can now inform the House that I have completed certification of the Bill, as required by the Standing Order. I have confirmed the view expressed in Mr Speaker’s provisional certificate issued earlier today. Copies of my final certificate will be made available in the Vote Office and on the parliamentary website.
Under Standing Order No. 83M, a consent motion is therefore required for the Bill to proceed. Copies of the motion are available in the Vote Office and on the parliamentary website, and have been made available to Members in the Chamber. Does the Minister intend to move the consent motion?
Lucy Frazer
indicated assent.
The House forthwith resolved itself into the Legislative Grand Committee (England and Wales) (Standing Order No. 83M).
[Dame Rosie Winterton in the Chair]
Lucy Frazer
I beg to move, That the Bill be now read the Third time.
This is a small and technical Bill, but it is a key component of our £1 billion programme of reform that will see our courts and tribunals modernised for the 21st century and, importantly, make access to justice quicker and easier for all. It is also the first step in the legislation that will underpin these reforms, as we will introduce further courts legislation as soon as parliamentary time allows.
The judicial measures in the Bill will enable greater flexibility in the deployment of judges. They will allow the senior judiciary to respond more effectively to changes in demand and to make better use of the skills and experience of the existing cohort of judges. This Bill will free up judges from the most routine tasks by enabling appropriately qualified and experienced staff in courts and tribunals to carry out a wider range of judicial functions than they can at present. Through these measures, the Bill will improve the overall effectiveness and efficiency of courts and tribunals and, importantly, it will reduce delays. This will ensure that we deliver a speedier resolution of matters, which is important in benefiting those who use our courts and tribunals system.
As I have said, this is a short Bill, so I will be brief, but I would not want to finish without thanking the hon. Member for Bolton South East (Yasmin Qureshi) and other Members of this House for the constructive way in which they have engaged on these issues. I pay tribute to the noble and learned Lord Thomas, the former Lord Chief Justice, and the noble and learned Lord Neuberger, the former President of the Supreme Court—they have been widely quoted in this House—for their wise counsel in the other place and for sharing their expertise on how the measures in the Bill will operate in practice.
I thank the Clerks and other parliamentary staff for helping the proceedings on the Bill to run so smoothly, and I extend my thanks to our hard-working Bill team, our private offices, our Parliamentary Private Secretaries and the Whips. It has been an honour to take the Bill through the House, and I look forward to seeing the important measures it contains being implemented in the coming months. On that basis, I commend the Bill to the House.
Courts and Tribunals (Judiciary and Functions of Staff) Bill [ Lords ] (First sitting)
Lucy Frazer ExcerptsTuesday 4th December 2018
(5 years, 5 months ago)
Public Bill CommitteesRead Full debate Courts and Tribunals (Judiciary and Functions of Staff) Act 2018 View all Courts and Tribunals (Judiciary and Functions of Staff) Act 2018 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 4 December 2018 - (4 Dec 2018)
The Chair
We will begin line-by-line consideration of the Bill. The selection list, which shows how the selected amendments have been grouped for debate, is available in the room. Amendments grouped together are generally on the same issue, or similar issues. Decisions on amendments will not take place in the order in which they are debated, but in the order in which they appear on the amendment paper. The selection list shows the order of debate; decisions on each amendment are taken when we come to the clause that the amendment affects. I will use my discretion to decide whether to allow a separate stand part debate on individual clauses and schedules following the debates on the relevant amendments.
Clause 1
Deployment of judges
Question proposed, That the clause stand part of the Bill.
The Parliamentary Under-Secretary of State for Justice (Lucy Frazer)
It is a pleasure to serve under your chairmanship, Sir Henry.
A key element of our reforms in relation to courts is ensuring that we have a justice system that works better for everyone, which includes making the best use of our judges’ experience, expertise and time. I should make it clear that the deployment of judges is a matter for the judiciary, and the Lord Chief Justice and the Senior President of Tribunals already have far-reaching powers to ensure that the right judges are deployed on the right cases, taking account of changes in case loads of different jurisdictions. However, there are five areas in which clause 1 would amend current legislation to increase that flexibility to deploy judges where they are needed.
The first change is about the temporary appointment of deputy judges to the High Court. The Lord Chief Justice already has a statutory power to appoint a person meeting the eligibility criteria as a judge of the High Court if their appointment is urgent, temporary and there are no other reasonable steps that could be taken to fill the gap. Those temporarily appointed judges are ordinarily existing, serving judges who have been appointed to a judicial office via the independent Judicial Appointments Commission process. Current legislation allows those appointments to facilitate business in the High Court or Crown court only. Clause 1(1) would widen that so that the person appointed could sit in any court or tribunal on which an ordinarily appointed deputy judge of the High Court could be deployed, such as the county court, the family court, the first-tier tribunal and the upper tribunal.
The second change in clause 1 relates to the upper tribunal. The Tribunals, Courts and Enforcement Act 2007 sets out which judges are judges of the upper tribunal and may therefore hear cases there. The definition comprises a number of different types of judge, such as circuit or district judges, but does not currently include recorders. As fee-paid judges, recorders have equivalent powers to circuit judges, and may sit in the Crown court or the High Court with appropriate authorisation. Allowing recorders to sit in the upper tribunal would allow the judiciary to make more use of recorders’ experience, expertise and skill, and would provide greater flexibility to meet business need.
The third change in clause 1 relates to chamber presidents in the first-tier tribunal and the upper tribunal. Currently, there is a restriction that prevents someone from presiding over more than one chamber of the first-tier tribunal or of the upper tribunal. Subsection (4) would allow a chamber president to be appointed to more than one chamber in the same tribunal. That would enable the Senior President of Tribunals to use the existing and future complement of chamber presidents to provide continuous leadership across all chambers without having to recruit and appoint a new chamber president immediately if there were a vacancy.
The fourth change in the clause relates to senior judges of employment tribunals. Currently, there are restrictions on where senior judges of employment tribunals may be deployed. The Bill will enable the presidents of employment tribunals for England, Wales and Scotland to sit in the Employment Appeal Tribunal, which will provide additional capacity for experienced judges to hear appeals. The Bill will also enable leadership judges— the presidents and vice-presidents of the employment tribunal Scotland, and regional employment judges of the employment tribunals—to hear cases in the first- tier tribunal and the upper tribunal, making more use of their experience and skill where needed.
The final part of the clause relates to flexible deployment with respect to arbitration. The Arbitration Act 1996 currently provides for certain judges of the High Court to sit as judge-arbitrators. That allows cases falling within the relevant jurisdiction of the High Court to be resolved via arbitration with the Lord Chief Justice’s permission. The clause extends the range of High Court judges who can sit as judge-arbitrators, and would also allow the Lord Chief Justice to delegate his functions in agreeing that judges can be appointed as judge-arbitrators. That will allow, for example, judges in the chancery division of the High Court, which has seen a growth in demand for arbitration in recent years, to resolve cases in that way. Those provisions, taken together, will contribute towards a modern and responsive justice system.
Yasmin Qureshi (Bolton South East) (Lab)
It is a pleasure to serve under your chairmanship, Sir Henry. While we accept the necessity for the clause, we have some concerns, which we hope the Government will take on board.
We accept that there are practical arguments for expanding the flexible deployment of judges, including temporary judges appointed outside the usual Judicial Appointment Commission selection process, to a wider pool of courts and tribunals. The appointment of temporary judges as a principle, however, should be approached with caution. It is important to view flexible deployment generally through the prism of the Government’s wider reforms and cuts, and plans for savings on judicial salaries.
We are concerned about that being used regularly as opposed to on an occasional basis. [Interruption.] Sorry, the Minister was looking very confused. We are concerned about the potential for a trend of too much reliance on temporary judges. The provisions should be used only to deal with urgent matters in the case of a shortage of judges, and the deployment of judges across different sectors should not become the de facto position.
Clearly, one of the things that the Government have not mentioned is what training provisions will be provided for judges moving out of their normal area of activity. If a Crown court judge is transferred to a tribunal, for example, what kind of training would they receive to deal with issues unique to the tribunal system—for example, on issues of disability, reasonable adaption for the purpose of disability legislation, and what could be considered discriminatory under equality legislation. Those are key issues unique to employment tribunals. We want to know and ensure that there are training provisions for that.
As a consequence of the clause, civil judges might come into the criminal courts and Crown courts. What training will be provided for them to deal with specific issues that are unique to the criminal court, such as admissions of previous convictions, which can sometimes be brought in against defendants, and go against the normal rules? What about issues of disclosure? If a failure to disclose material information is ruled inadmissible, it can cause the whole case to collapse. Those are some of the things that are unique to particular courts. I have used the example of the Crown court and the employment tribunals to demonstrate that there are things that are unique to those courts. While we will not oppose the clause, we ask the Government to provide some assurance that the Lord Chief Justice and the Lord Chancellor will make proper financial provision for those judges to update their skills and to receive professional training when they go into a different area of judicial function.
Lucy Frazer
I am grateful to the hon. Lady for making some important points. She can rest assured that the temporary appointments are temporary, and they can be made only if they are urgent and temporary and if no other reasonable steps can be taken to fill the gaps. I can also assure her about training: where judges are asked to sit in a new jurisdiction, further induction will be provided in line with the directions of the senior judiciary. The Judicial College is in charge of training, and it will continue to train our judges. Judges will also attend continuation training for all jurisdictions in which they sit.
Question put and agreed to.
Clause 1 accordingly ordered to stand part of the Bill.
Clause 2
Alteration of judicial titles
Question proposed, That the clause stand part of the Bill.
Lucy Frazer
No amendments have been tabled to the clause and no issues at all were raised in the other place, or on Second Reading in this place.
In summary, the clause is part of our reform to modernise our courts to ensure that court users know who is hearing the case, and what sort of case the matter is about. The clause therefore provides for amendment of judicial titles to reflect a change in the name of the court in which those judges sit. It also ensures that the title of that office and similar offices can be changed through secondary legislation in the future.
Subsections (1) and (2) change the title of chief bankruptcy registrar to chief insolvency and companies court judge. That reflects the change in the name of the other judges of this court and of the court itself. In 2017, the name of the court dealing with bankruptcy matters was changed to the insolvency and companies court to better reflect its work. Earlier this year, the titles of the more senior judges in that court were changed to reflect the change in the name of the court. The Bill therefore changes the title of the office of the senior judge to bring it in line with other judges of the court.
Subsection (3) enables the judicial titles of other senior masters and district judges of the senior courts to be changed in future by secondary, not primary, legislation, should it be necessary to do so. Changes of title may be required, for example, because of organisational changes in the courts and tribunals. The clause will correct an anomaly that prevents some judicial titles from being amended by ministerial order. Such judicial measures, while relatively modest, will contribute towards a more modern justice system.
Yasmin Qureshi
The clause seems to be a sensible one, so the Opposition have tabled no amendments to it.
Yasmin Qureshi
We tabled the amendment because the existing drafting of the clause appears to allow the delegation of judicial functions to authorised persons without going through an affirmative process—that is, without using secondary legislation. As the Bill stands, that would be done automatically. Bearing in mind that we have expressed concern about the whole system of the authorised person being delegated judicial functions, we believe that that should be done, if it comes to that, by means of a statutory instrument so that Parliament has a chance to discuss it. We would be able to make observations and it would not go through on the nod.
The issue of delegating judicial functions to authorised persons is important to us. At the moment, the Bill does not talk about who such people will be, what their qualifications are, what they will do, or what subjects and issues they can deal with. As the Bill is drafted and from what Ministers have said, the procedure committee is expected to make all those decisions. We do not accept that that should be the case. There are real issues that need to be determined through parliamentary discussion. These measures should be introduced through statutory instruments and not just be decided by the procedure committee as envisaged in the Bill. The procedure committee should listen to our concerns. We want more parliamentary scrutiny of this part of the legislation, through a statutory instrument.
Lucy Frazer
I am grateful to the hon. Member for Bolton South East for raising the issue and giving me the opportunity to respond, so I can satisfy her that her concerns are unfounded, I hope.
The power in clause 3(2) seems to have caused considerable confusion here and in the other place, so it might be helpful for me to explain how it works. That power does not permit the delegation of judicial functions to authorised persons—that is a matter for the procedure rules made by the independent rule committees. The power in clause 3(2) could not make such changes because it is a narrow power that is very clearly restricted to consequential, transitional, transitory or saving provisions—a concept that is well understood with many precedents. Those terms are construed strictly by the courts.
The power in clause 3(2) is needed because the procedure rules cannot be used to make all the necessary amendments to other secondary legislation—we will use regulations made under the clause to do that. The power is needed principally to amend references in secondary legislation from “justices’ clerk”, a post abolished by the Bill, to “authorised officer”. So far, we have identified more than 200 references in more than 60 pieces of secondary legislation that would need amendment, and there may be more.
The Government do not intend to use this power to amend primary legislation. Lord Keen gave an undertaking to that effect on Report in the other place. Therefore, there is no express provision for such amendments in clause 3. To accept this amendment would set an unhelpful precedent and would mean that valuable parliamentary time would have to be set aside to debate minor and consequential changes to secondary legislation. In a busy parliamentary Session, that would delay implementation of the provisions in the Bill. I hope that the hon. Lady is reassured and feels able to withdraw the amendment.
Yasmin Qureshi
Although I hear what the Minister says, we are not reassured and we will push the amendment to a vote.
Question put, That the amendment be made.
Yasmin Qureshi
My observations relate to when judges are dealing with an individual case. Of course, we know that they are independent, but when someone becomes part of an administrative body, a procedure committee or an arm of the state—I mean that in a loose way, not in terms of a formal relationship—sometimes the criteria that they look at are different from when they are dealing with an individual case presented before them.
I will give an example, albeit not one that relates to judges. The Crown Prosecution Service, an organisation for which I worked for a number of years—I still have friends who work in it, even though I left years ago—has had different people serve as Director of Public Prosecutions. However, prosecutors who have been there for a long time say that, bar perhaps two DPPs who were really concerned about ensuring that the department was fully financially resourced, and who actually fought hard for it to get resources, the other DPPs did not make that sort of effort. People do act for administrative purposes.
The reality is that senior people at the top of organisations, when they are doing administration and are running institutions, look at things such as money and financial administration, try to save as much money as possible, and try to push things along as quickly as possible, because that looks good in their statistics. Because of that, we would say that what we are asking for is not too weighty. We have tabled very reasonable amendments. The people who will make some of these enormous decisions should be legally qualified and—we will come on to this later—we should consider what kind of things they can actually do. I do not think there is anything wrong with giving a steer to procedure committees. They can deal with some of the other rules, but we should have some basic minimum standards.
Lucy Frazer
I, too, propose to deal with amendments 3, 4 and 5 together, as they all relate to minimum qualifications for authorised staff. Amendments 3 and 4 require that any staff member who gives legal advice to lay justices or judges of the family court be legally qualified and have more than three years’ experience post qualification. Amendment 5 makes the same requirement of any staff carrying out judicial functions.
The staff who currently give legal advice in the magistrates court and the family courts are justices’ clerks and assistant clerks. Assistant clerks, who are also known as legal advisers, currently provide the overwhelming majority of legal advice on a day-to-day basis. To be an assistant clerk at the moment one must be a barrister in England and Wales or a solicitor of the senior courts of England and Wales, have passed the necessary exams for either of those professions, or have qualified as a legal adviser under historical rules that were in place prior to 1999.
Jess Phillips (Birmingham, Yardley) (Lab)
The Minister is explaining who will get to decide whether we are flexible on this in the future, bit what I do not hear—what I do not hear in any of this Bill—is how we make sure that these changes mean improvements for the people who use these courts. While the judiciary and the people carrying out these functions certainly seem to have a voice in the changes being proposed, in terms of the changes I would like to see in the family courts, the voices of those people using the courts are nowhere in this Bill.
Lucy Frazer
That is a very important point. We serve the people through justice and the court system. The people who come to the courts to get justice are the people my Department is serving. In all our reform programme, we have a user-centred focus and consistently engage with users to improve our services. All the forms we have recently produced were produced with insight from users, which is why we have an extremely high satisfaction rate for the reforms we are making.
The hon. Member for Birmingham, Yardley makes an important and valid point, and I can tell her how users will benefit from this. She will have been in the House when questions were put to me about delays in the court system and about the time it is taking for certain hearings to come before the courts. We want to ensure that there are as few delays as possible and that justice is not only fair but speedily dispensed. These changes will allow functions to be operated by the appropriate people, and will enable us to get more swift, easy and quick justice for those who use our courts.
Andy Slaughter (Hammersmith) (Lab)
I am sure the Minister is sincere in her intention. My experience is that there is increasing delay. Part of that is caused by inexperience, perhaps because of the use of lay magistrates as opposed to district judges, who do not take command of the issue and do not timetable matters correctly. I am concerned about any decline in the level of experience. This is perhaps a question not of legal qualification but of experience in being able to manage and seize control of cases. I would rather see the greater control and scrutiny that the amendments would introduce.
Lucy Frazer
I am sorry if the hon. Gentleman has not experienced the appropriate level of judicial engagement or appropriate judgments in courts. I recently went to the family court in London, and I have been to courts across the country, and I have spoken to magistrates who operate in the family courts. The expertise and dedication I see is commendable. We can stand still, do nothing and just let our courts operate in the way they are operating, or we can sit back and reflect on how we can improve our court system. We are trying to do the latter through the Bill. We are trying to improve people’s experience of the courts, recognising that funds and resources are not unlimited and that we need to use them as well as we can. On listing, my Department is looking at a listing programme to ensure that lists operate as effectively as possible.
It is simply not necessary for all authorised staff exercising judicial functions to possess legal qualifications. The qualifications and experience staff need will depend on the nature of the work they carry out. Legal qualifications of the level that would be required by amendment 5 not only are far too high for the routine and straightforward case preparation tasks that we anticipate many authorised staff may carry out, but may not be the most relevant qualifications for staff in different jurisdictions. For example, it is more helpful for a registrar in the tax tribunal to be a tax professional by background than to be a legal professional. Where powers currently exist, rule committees already determine the qualifications staff need to exercise particular functions, and that works well. Such committees can focus qualification and experience requirements on what is most relevant to the work that those staff carry out.
Amendments 3, 4 and 5 would all set the bar for qualification prohibitively high and rule out a large proportion of Her Majesty’s Courts and Tribunals Service staff from giving legal advice or exercising judicial functions, even though they may have been doing either or both for a number of years.
Alex Chalk
Will the Minister be kind enough to address the issue of the approach we can expect judges to take in rule committees? It is my experience that they show themselves in court to be scrupulously fair and focused on justice. Does she agree that there is no reason to think they would abandon those principles when they sit out of court on a rule committee to make these important judgments?
Lucy Frazer
My hon. Friend makes an extremely valuable point. Rule committees are made up of members of the judiciary and legal professionals, who take their roles incredibly seriously. Lord Thomas said on Second Reading in the other place that
“it is important to stress the degree of control inherent in the Bill by the use of the rule committee. I was a member of and chaired…the Criminal Procedure Rule Committee, which I can assure you is a highly representative body with many representatives of the legal profession.”—[Official Report, House of Lords, 20 June 2018; Vol. 791, c. 2039.]
It is important to note his experience of sitting on and chairing a rule committee. I actually sat on an insolvency rule committee when I was at the Bar, and I do not think anyone mentioned costs. We were concerned with ensuring that the procedures we used in court day in, day out worked well, and that they worked well for our clients, too.
A loss of expertise would render the provisions in clause 3 and the schedule unworkable. I should add that a member of staff will not be able to give legal advice or exercise judicial functions until they have been authorised to do so by the Lord Chief Justice or their nominee, or by the Senior President of Tribunals or their delegate. Authorisations are therefore ultimately the responsibility of the judiciary, who will not authorise staff unless satisfied of their competence.
The Government’s position is consistent with the approach taken over many decades and is supported by both current and former members of the senior judiciary. Lord Neuberger, former President of the Supreme Court, said that the amendments place
“a potential straitjacket on the ability to appoint the appropriate people to make appropriate decisions.”
He went further, reflecting that there
“will be many decisions”
for which the level of experience set out in the amendments
“would be appropriate, but there will be others where less experience would be adequate for the decision-making.”—[Official Report, House of Lords, 10 July 2018; Vol. 792, c. 882.]
I want to reassure hon. Members that we have listened to the concerns expressed here and in the other place about linking the qualifications of staff to the judicial functions that authorised staff may carry out. That is why we added further safeguards to the Bill in the other place by restricting the functions that staff will be able to exercise. In the light of that, Lord Marks of Henley-on-Thames said:
“we are not persuaded that it is necessary for the authorised person exercising the remaining powers—some of which are trivial, some minor and some of more substance—to be a qualified lawyer or one of particular experience.”—[Official Report, House of Lords, 16 October 2018; Vol. 793, c. 414.]
Before I close, I would like to respond to a number of the points made by the hon. Member for Bolton South East in putting forward her amendments. She has mentioned for the second time in her submissions cost-cutting. What we are doing in the Bill is trying to achieve a position whereby judges are deployed in the most effective way to bring justice to the people whom they serve. We are trying to ensure that jobs are appropriate for those who carry them out, and that they have the appropriate qualifications. The hon. Lady suggested that only barristers, solicitors and judges—that is, people who are legally qualified—understand justice. That is self-evidently wrong. A large part of our criminal justice system is the justice dispensed by magistrates, who are volunteers and are extremely able. As I have said, many people are already carrying out the functions, and carrying them out well, in courts and tribunals across the country.
The hon. Lady mentioned court closures. Of course, this is not a debate about court closures; it is a debate about who carries out functions in the courts that operate. She also suggested that call centres are having a detrimental impact on justice. Our call centres are actually improving justice, because, as can be seen from the take-up rate, people are speaking to someone who can answer their concerns much more speedily. The satisfaction of people ringing up is improved as the pick-up time is improved, because it is now dedicated people picking up the phone, rather than people in courts, who have a large number of things to do.
I hope that the hon. Lady feels able to withdraw the amendment, based on the explanations that I have put forward.
Yasmin Qureshi
I thank the Minister for her response, but our position remains the same, and we ask for a vote on the amendment.
Question put, That the amendment be made.
Yasmin Qureshi
We could include the criterion of the impact on someone’s rights. When we look at a case, we can work out whether an adjournment or a particular issue regarding disclosure would have an impact. The legislation should have that as a criterion in determining whether there should be judicial reconsideration. Obviously, we assume that the procedure committee would set out a procedure whereby, when a person writes to the court to ask that something be reconsidered, it goes to a judge, who works out whether this was something that impacted on the person and should therefore be subject to reconsideration. The legislation does not do any of those things.
Although we accept that some administrative functions carried out by judges can be delegated to the “authorised people” defined in the Bill, when a judicial legal function is given to other people, there should be a right to ask for reconsideration of the decision if a litigant is unhappy with it. To avoid anything flimsy, we have helpfully put in the impact aspect, so that reconsiderations are not a matter of course but are limited to appropriate cases. We would leave it to the procedure committee to make rules as to what the procedure would be.
The amendments are perfectly reasonable. The Minister mentioned that some Lords in the other place said that the provisions were okay, but if we look at the Hansard, Lord Marks of Henley-on-Thames, Lord Pannick and others said that they had concerns, not just about the issue of 14 days’ reconsideration, but also in relation to the authorised persons. The Government have put all these things about judicial functions, delegated persons and authorised people into one clause, but concern was expressed in the other place about the need to make the legislation better. Those are my words.
We have gone further than some of the noble Lords in the other place, but we tabled the amendments not for the fun of it, but because we genuinely and sincerely believe that they would ensure that processes were carried out properly, justice was done properly, and properly qualified people would deal with issues. If there are decisions that people are unhappy with, they should have the right to ask for reconsideration within 14 days, if that is appropriate—or 21 days; I would be happy with whatever additional days the Government wished to add.
Lucy Frazer
As the hon. Member for Bolton South East has said, amendments 6, 7, 8 and 9 deal with the right of reconsideration of decisions taken by authorised staff in courts and tribunals, and amendments 6 and 7 would enable a party in a case to request that any decision made by an authorised person exercising the functions of a court or tribunal be reconsidered by a judge. It might be appropriate for there to be reconsideration of decisions, but the Government believe that the independent procedure rule committees, composed of jurisdictional experts and experienced practitioners, are best placed to decide if such a right of reconsideration is needed and if so, the form it should take.
The approach taken in the proposed amendments would impose across all jurisdictions the same blanket right of reconsideration with an arbitrary deadline of 14 days. That would not work in practice, especially for those functions that are entirely straightforward case management and preparation duties. Each jurisdiction has its own ways of working, and it is imperative that any mechanism for reviewing decisions is designed with those jurisdictional intricacies in mind.
The rule committees in the civil and tribunals jurisdictions, for example, already have included in their respective rules a specific right to judicial reconsideration for decisions made by authorised persons. The magistrates courts and the family court, however, have their own existing mechanisms for reviewing various decisions, which the amendments would cut across.
Furthermore, the amendments are unworkable. In the magistrates courts, legal advisers issue some 2.5 million local authority summonses every year. If a right of reconsideration, as laid out in the amendments, were imposed on the court, a defendant could apply to the court against the issue of the summons. That would inevitably delay the first hearing and would mean that the matter would need to be referred to a magistrate who would reconsider the decision to issue the summons alongside a legal adviser, and the outcome of that decision would need to be notified to the parties before the case could start. That would build significant delay and cost into the process.
There are already three ways for a defendant to challenge a case in which a summons has been issued in the magistrates courts. They can make an initial argument to the court hearing the case that the summons should not have been issued, contest the substantive application made by the local authority, or apply for a judicial review of the decision to issue the summons. Creating a mandatory right to judicial reconsideration is therefore unnecessary.
I have some sympathy with the intention behind the hon. Lady’s amendments, which is to ensure that the Bill contains adequate safeguards. For that reason, the Government moved amendments on the right of reconsideration that were accepted on Report in the other place. Those require the committees, when making any rules, to allow authorised staff to exercise judicial functions and consider whether the rules should include a right to judicial reconsideration of decisions made by authorised staff exercising those functions. That means the rule committees will have to consider whether each judicial function should be subject to a right to reconsideration. Additionally, the amended Bill requires that if a rule committee decides against the creation of a right of reconsideration, it must inform the Lord Chancellor of its decision and the reasons for the decision.
The measures in the Bill should also be read alongside the existing statutory provisions, which require the committees to consult such persons as they consider appropriate before they make rules. If a rule committee then chose not to include a right of reconsideration in its rules, it would have to notify the Lord Chancellor. The Lord Chancellor could then ask the committee to reconsider its decision, or, if he agreed with it, he could lay the rules in Parliament. We expect that he would set out the committee’s rationale for not including a right of reconsideration in the explanatory memorandum to accompany the statutory instrument. The Bill as amended in the other place therefore ensures much greater transparency in the decision-making process.
Alex Chalk
Those are reassuring words. Will the rule committee have the right to request when, in certain circumstances, an exercise of discretion that might otherwise be innocuous—say, for the sake of argument, granting an adjournment—could lead to a material impact on the rights of an individual, that there could be a right of review in those circumstances? Does the Minister follow? It is important that that flexibility is in place.
Lucy Frazer
I think that is right. It will be the rule committee that will set out the procedure and requirement for any reconsideration. If it considers what my hon. Friend has mentioned as an appropriate way forward, it could make those determinations.
The noble and learned Lord Thomas, the former Lord Chief Justice said:
“I support what the Government seek to do and urge a substantial degree of caution in respect of the proposal put forward by the noble Baroness”—
that is, Baroness Chakrabarti. He added that the Government’s approach provides the right balance:
“It gives discretion to a body that knows and has a lot of experience, but it contains that degree of explanatory accountability that will make sure that it does not do anything—even if we were to worry that it might—that goes outside a proper and just delegation”.—[Official Report, House of Lords, 16 October 2018; Vol. 793, c. 425-426.]
Amendments 8 and 9 relate to the right of judicial reconsideration and the substantive rights of parties to cases in the courts and tribunals. As I mentioned earlier, the amendments we made to the Bill in the other place now mean that the rule committees will, when making any rules to allow authorised staff to exercise judicial functions, have to consider whether each of those functions should be subject to a right to reconsideration. They would require that, in doing so, the rule committees should also consider whether the function in question would be capable of having a material impact on the substantive rights of the parties.
The amendments appear to have been prompted by concerns about the compatibility of the provisions in clause 3 and the schedule with the rule of law, the independence of the judiciary and article 6 of the European Convention on Human Rights. In the circumstances, the Government believe the amendments are unnecessary. The independent procedure rule committees have for many years been making rules about practice and procedure which impact on court users. In carrying out this public function, they must ensure that the procedure rules are compatible with fundamental rights, including rights under the convention. I note that the overriding objective of the criminal procedure rules, for example, explicitly refers to these rights.
Other safeguards in the Bill will help to ensure compatibility with the right to a fair trial. Most importantly, the Bill provides that all court and tribunal staff who are authorised to exercise judicial functions will now be independent of the Lord Chancellor when doing so, and subject only to the direction of the Lord Chief Justice or their nominee or the Senior President of Tribunals or their delegate.
The Bill also provides, for the first time, protections from legal proceedings and costs in legal proceedings and indemnities for all authorised staff when carrying out judicial functions, which will further safeguard their independence. We have, of course, strengthened these safeguards by limiting the types of functions that authorised staff will be able to exercise, through the Government amendments we made to the Bill on Report in the other place.
I hope I have reassured the Committee and the hon. Member for Bolton South East that there is no issue of compatibility between the measures in the Bill and article 6 rights, the rule of law or the independence of the judiciary. The Bill strikes the right balance between ensuring appropriate safeguards and transparency of decision-making, and leaving the jurisdictional rule committees the discretion to determine the most appropriate mechanism for reviewing decisions by authorised persons. I urge the hon. Member for Bolton South East to withdraw her amendment.
Yasmin Qureshi
I thank the Minister for her response, but our position remains the same and I therefore wish to press the amendment to a vote.
Question put, That the amendment be made.
Lucy Frazer
I beg to move amendment 1, in clause 4, page 4, line 6, leave out subsection (8).
This amendment would remove the privilege amendment inserted by the Lords.
This is a technical and procedural amendment to remove the privilege amendment made on Third Reading in the other place. The privilege amendment recognises that provisions in the Bill may infringe the privilege of the House of Commons with regard to the control of public money, and amendment 1 will leave out subsection (8), ensuring that the imposition of any charge resulting from the Bill is properly approved. In practice, the new powers the Bill will confer and the cost arising from them will be met by the Ministry of Justice.
Amendment 1 agreed to.
Question proposed, That the clause, as amended, stand part of the Bill.
Lucy Frazer
Clause 4 is technical in nature but it is important to give proper effect to the measures the Committee has considered. Subsection (1) confirms the short title of the Bill. Subsections (2) and (5) set out the commencement provisions, which will enable speedy and orderly implementation of the measures in it: clause 4 will come into force on the day on which the Bill is passed; clauses 1 and 2 will come into force two months after Royal Assent; and clause 3 and the schedule will come into force on a day to be appointed by the Secretary of State in regulations.
Subsection (4) allows the commencement regulations to make transitional, transitory or savings provision and to appoint different days for different purposes or areas, which will ensure that the rule committees are able to implement the proposals as they best see fit. Subsections (6) and (7) set out the territorial extent. Subject to certain exceptions, the provisions of the Bill extend and apply to England and Wales only. Where the provisions extend beyond England and Wales, this is in relation to tribunals, for which responsibility is currently reserved to Westminster. This is not the moment for debate about devolution matters, but I stress that we have undertaken extensive consultation with the devolved Administrations in preparing the Bill, and they agree with our analysis.
Subsection (8) is the privilege amendment inserted by the House of Lords, with which I have already dealt.
Clause 4, as amended, ordered to stand part of the Bill.
New Clause 1
Review of the delegation of legal advice and judicial functions to authorised staff
“(1) Within the period of three years from the coming into force of this Act, the Lord Chancellor must arrange for a review to be undertaken on the impact of the implementation of the provisions contained within section 3 and the Schedule to this Act.
(2) A report setting out the findings of the review must be laid before both Houses of Parliament.”—(Yasmin Qureshi.)
This amendment would require the impact of the delegation of judicial functions to be reviewed within three years of it coming into force.
Brought up, and read the First time.
Yasmin Qureshi
I beg to move, That the clause be read a Second time.
The new clause asks for a review of the impact of the legislation to be carried out within three years of the start of the Act, and that this be laid before both House of Parliament. The reason for that is, as mentioned earlier and in all debates in respect of the Bill, the Opposition have serious concerns about how the Bill will work out and about its impact on our justice system—in particular on litigants who go into court not legally represented, as often happens.
With the Act, there will be a more rapid use and deployment of judges from one sector to another, and we would like the Government to consider how that is working and its impact on our traditional court system. We believe that the functions the authorised people will be given and the issue of reconsideration will have a clear impact on what happens in both our criminal and civil courts.
Lucy Frazer
As the hon. Lady mentioned, the new clause is about reviewing the impact of the authorised staff provisions within three years of the Bill coming into force.
Reviewing laws is always important. We in the Ministry of Justice do not shy away from that. The question is what the appropriate form of that review is. As the impact assessment for these measures says, we have committed to working with the rules committees and the senior judiciary to monitor the impact of any future assignment of judicial functions and responsibilities to authorised staff. This is particularly important where the Bill enables provisions to be extended to a new jurisdiction; for example, the power of authorised staff to carry out judicial functions will be new to the Crown court. We therefore expect the criminal procedure rule committee to conduct a review of the provisions as it feels appropriate, and to draw on its impartiality and expertise in doing so.
In other jurisdictions, the exercise of judicial functions by staff is already kept under review by the relevant rule committees, by the senior judiciary and by Her Majesty’s Courts and Tribunals Service, where appropriate. For example, the civil procedure rule committee has undertaken a review of a pilot scheme in which a range of functions were delegated to legal advisers in the County Court Money Claims Centre. As a result of that, the committee decided to modify and extend powers. It has also agreed to a further pilot to allow legal advisers in the county court to make unopposed final charging orders. This will run to April 2020 and, again, will be reviewed before a decision is taken to extend it.
Those reviews and this approach to implementation are illustrative of how we expect these measures to be rolled out in the future: incrementally, with the necessary monitoring, and subject to review and evaluation before any further steps are taken. The rule committees are independent of the Government and their membership includes judges, legal professionals and representatives of voluntary organisations. They are best placed not only to make the rules for authorised staff exercising judicial functions, but to conduct the reviews of these measures in the future. I hope that I have provided the hon. Member for Bolton South East with the assurances that she seeks, and that she will withdraw the new clause.
Yasmin Qureshi
I thank the Minister for her response, but the Opposition will not withdraw our new clause. I ask that the Question be put.
Question put, That the clause be read a Second time.
Courts and Tribunals (Judiciary and Functions of Staff) Bill [Lords]
Lucy Frazer ExcerptsTuesday 27th November 2018
(5 years, 5 months ago)
Commons ChamberRead Full debate Courts and Tribunals (Judiciary and Functions of Staff) Act 2018 View all Courts and Tribunals (Judiciary and Functions of Staff) Act 2018 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 108-R-I Marshalled list for Report (PDF) - (12 Oct 2018)
The Parliamentary Under-Secretary of State for Justice (Lucy Frazer)
It gives me great pleasure to respond to the debate on this Bill, which, as many have said, is a small but important step in our court reform programme. As the Lord Chancellor set out in his speech, our courts together with our judiciary are respected throughout the world, but our courts and tribunals need to move with the times, and we have heard some excellent points today on how this Bill will improve our efficiency. I wish to respond to some of them.
As the excellent Chair of the Select Committee, my hon. Friend the Member for Bromley and Chislehurst (Robert Neill), said, the Bill’s measures are important technical reforms that require a statutory base. He highlighted the importance of the judicial process in general—the importance of each case to the individual whose case it is. These are important points that the Ministry of Justice must always bear in mind.
My hon. Friend the Member for Stoke-on-Trent South (Jack Brereton) was right to point out, as I have, that this is but one part of a suite of measures of court reform. I was grateful to the hon. Member for Bristol West (Thangam Debbonaire) for saying there is a great deal that is good in this Bill, and she asked a number of questions that I am happy to answer. She said it is important that there be no reduction in justice over all, and was concerned about court closures. As 41% of our courts are used at less than half their available capacity, we must think about whether it is sensible to spend more money on the court estate as opposed to other things; at present a fifth of our budget is spent on the court estate. The hon. Lady suggested that we were pushing through this legislation at a time when the House is thinking about other things. That is patently untrue; its measures were included in the Prisons and Courts Bill, which was going through this House but fell at the general election.
The hon. Lady also raised concerns that must be addressed about the immigration tribunals. I highlight to her the measures we are introducing to give court staff the ability to undertake some judicial and other functions. They are already in operation in some tribunals. In the first and upper tier tribunals, for example, there are already three tiers of staff authorised to exercise different judicial functions; the most basic functions of issuing standard directions at commencement of a case can be carried out by authorised staff members at some chambers; slightly more complex functions are undertaken by caseworkers; and the most complex of the delegated functions are generally reserved to registrars, who are legally qualified. The hon. Lady asked whether I have read “The Secret Barrister”, and I am happy to confirm that the Lord Chancellor and I read it many months ago, just as we read many other publications that affect our Department.
The hon. Member for Dwyfor Meirionnydd (Liz Saville Roberts) thought the measures were a cost-cutting exercise. They absolutely are not; we are asking ourselves how to use resources in the best way possible, how to deploy our judges as efficiently as possible, and how to ensure people get fair and swift judgment. That is not just our view; this is the view from Members across the House. As Lord Marks said in the other place,
“It seems to us relevant that the purpose of this part of the legislation is to increase efficiency and—hopefully, and to everybody’s advantage—the speed of decision-making within the court and tribunal systems, while making some cost savings in so doing.”—[Official Report, House of Lords, 16 October 2018; Vol. 793, c. 414.]
There are three key clauses in this Bill. One is clause 3 on authorised functions, which allows appropriately qualified and experienced court staff in civil, family and magistrates courts and the High Court, Court of Appeal, Court of Protection and tribunals to continue to carry out uncontroversial and straightforward judicial functions under judicial supervision. My hon. Friend the Member for Cheltenham (Alex Chalk) made an important point that I highlighted to the hon. Member for Bristol West: some court staff in these jurisdictions are already carrying out certain of these functions, but we are extending that to the Crown court and freeing up judges from the most routine tasks, ensuring that case preparation and management tasks are distributed at the appropriate level, or reserved to judges when that is proportionate.
As the right hon. Member for Kingston and Surbiton (Sir Edward Davey) highlighted, the Bill prevents certain judicial functions—for or example, committing someone to prison or serving injunctions—from being undertaken by authorised staff. As his colleague Lord Marks said in the other place, it is right that these should not be delegated.
The hon. Member for Bolton South East (Yasmin Qureshi) suggested that there would be limited scrutiny of officers. This ignores the reality of the Bill, because their tasks will be set by the rule committee, which will be independent, judicially led and therefore best placed to determine the functions of staff. The committee will have a broad membership, including judiciary, representatives of court users and legal professionals. Lord Thomas said in the other place that
“it is important to stress the degree of control inherent in the Bill by the use of the rule committee. I was a member of and chaired…the Criminal Procedure Rule Committee, which I can assure you is a highly representative body with many representatives of the legal profession.”—[Official Report, House of Lords, 20 June 2018; Vol. 791, c. 2039.]
The hon. Lady asked for three years’ post-qualification experience, but qualifications for staff giving legal advice should be set out in regulations, as they have been since 1979. Qualifications ought to depend on the functions involved, and many of the functions that staff currently exercise are straightforward and routine and do not require a legal qualification. An example would be the fixing of hearing dates. She also said that she wanted a statutory right for reconsideration, but many rule committees in the civil and judicial jurisdictions already have a right to reconsideration built in. Magistrates and family courts already have mechanisms for reviewing decisions. This is up to the rule committee, and if it decides not to create such a right, it must give its reasons to the Lord Chancellor, as the Bill states.
My hon. Friends the Members for Cheltenham and for North Dorset (Simon Hoare) talked about the independence of staff. The Bill introduces a statutory guarantee of independence from the Lord Chancellor for authorised Courts and Tribunals Service staff in all jurisdictions, and makes staff answerable to the Lord Chief Justice or the senior president of the tribunal, rather than the Lord Chancellor.
This has been a wide-ranging debate in which the technical matters of the Bill have been raised along with a large number of other matters, which I shall mention briefly. My hon. Friend the Member for Bromley and Chislehurst talked about the wider Bill; I should stress that the Lord Chancellor and I are keen to bring forward wider legislation in relation to courts, and we will do so as soon as parliamentary time allows. My hon. Friend the Member for Henley (John Howell) rightly advocated for the industry and parliamentary placement scheme, which the hon. Member for Plymouth, Sutton and Devonport (Luke Pollard) also raised with me in oral questions recently. It is an excellent scheme, and I encourage all those who are interested in joining it to do so.
My hon. Friend the Member for Cheltenham spoke about the importance of the judiciary, and he was absolutely right to highlight that point. Our judiciary is respected throughout the world, and we need to continue to attract the best talent to it. My hon. Friend the Member for Henley mentioned the importance of digitisation. We have a number of schemes in which we are bringing digitisation to our courts. For example, people can now apply online for probate, and petition online for divorce, and we are also bringing a significant amount of technology to the social security tribunal.
I would like to end by responding to the points raised by the hon. Member for Bolton South East and the hon. Member for Bradford East (Imran Hussain) on the shadow Front Bench. They suggested that we were not addressing the bigger issues, but I would like to remind the House that we have been looking at the important question of legal aid for a number of months. We are in the middle of a legal aid review, and we are aware of the issues that are being raised. We will report on that by the end of the year. Hon. Members also raised the issue of domestic violence. As they will know, we have recently consulted on that issue, and we will be bringing in a domestic violence Bill. As they are also aware, cross-examination in the courts will be covered by that Bill.
Finally, we recently consulted on our approach to court closures, and I would like to clarify a number of matters raised today in relation to court closures and finance. The hon. Member for Bolton South East suggested that petty sums were being raised by our court closure programme, which is not true. Since 2015-16, we have recovered £122 million from the court closure programme, all of which is being reinvested in our justice system, and have spent approximately £170 million on capital maintenance.
The Ministry of Justice is committed to continuing to protect the individuals who go through our justice system, and to making their experience better, speedier, fair and just, and it is on that basis that I commend the Bill to the House.
Question put and agreed to.
Bill accordingly read a Second time.
Endorcement Agents
Lucy Frazer Excerpts(5 years, 5 months ago)
Written StatementsRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Parliamentary Under-Secretary of State for Justice (Lucy Frazer)
The Secretary of State for Justice and I have launched a call for evidence on the implementation of reforms contained in the Tribunals, Courts and Enforcement Act 2007, introduced by the Government in 2014.
The Government are committed to ensuring that all enforcement agents (formerly known as bailiffs) treat debtors fairly and operate in a responsible and proportionate way. We also recognise that the enforcement of debt is necessary for both the economy and the justice system and that enforcement agents carry out a difficult role in often challenging circumstances. However, we have heard accounts of a minority of enforcement agents who use aggressive tactics and make people’s lives a misery. We are determined that such rogue practices should be stopped. To this end the Government will be actively examining the case for an independent regulator as part of the call for evidence.
The 2014 reforms aimed to provide protection to debtors from the aggressive pursuit of their debt from enforcement agents, while balancing this against the need for effective enforcement. They introduced a set of rules which detail what goods an enforcement agent can and cannot take, how and when they can enter premises and what fees they can charge. They introduced mandatory training and an enhanced court-based certification process for enforcement agents. They also provided safeguards for vulnerable people so they are able to get assistance and advice, and required enforcement agents to be trained to recognise vulnerable people.
The information gathered from our call for evidence will inform the Ministry of Justice’s second post-implementation review of these reforms.
The Government published the first post-implementation review on 2 April 2018. They found that the reforms had led to many positive changes. This included improved transparency and consistency, both in terms of the enforcement process and the fees charged by enforcement agents. The report noted, however, that some enforcement agents were still perceived to be acting aggressively and not complying with the new rules.
The paper includes questions about the complaints process following concerns raised that debtors are experiencing difficulties in making complaints about enforcement agents. We want to improve our understanding about the volume and nature of complaints about enforcement agents and how they are handled. We are also seeking views about whether the regulations around complaints sanctions need to be improved and if so how.
The paper also asks questions about the implementation of the regulations concerning: safeguards to protect vulnerable debtors; the new training and certification process for civil enforcement agents; the requirement for enforcement agents to send standardised letters to debtors; and the regulations about the recovery of commercial rent arrears.
A key part of the 2014 reforms was the introduction of a fee structure which clearly sets out what a debtor can be charged at each stage of the enforcement action. The fee structure was designed to incentivise debtors to settle their debt at the earliest stage possible. The paper includes questions about the impact of those reforms.
The Government intend to complete the review of the implementation of the 2014 reforms before making a decision about whether further reform is necessary. Any prospective policy options will be presented in a public consultation.
The call for evidence will collect evidence about the operation of both High Court Enforcement Officers and civil enforcement agents (also known as certificated enforcement agents or private bailiffs).
It will run for 12 weeks to 17 February 2019.
A copy of the call for evidence will be placed in the Libraries of the House and will be available online at www.gov.uk.
[HCWS1112]
Leaving the EU: Legal Services
Lucy Frazer Excerpts(5 years, 5 months ago)
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Westminster Hall is an alternative Chamber for MPs to hold debates, named after the adjoining Westminster Hall.
Each debate is chaired by an MP from the Panel of Chairs, rather than the Speaker or Deputy Speaker. A Government Minister will give the final speech, and no votes may be called on the debate topic.
This information is provided by Parallel Parliament and does not comprise part of the offical record
The Parliamentary Under-Secretary of State for Justice (Lucy Frazer)
It is a pleasure to serve under your chairmanship, Sir Christopher.
I congratulate my hon. Friend the Member for Huntingdon (Mr Djanogly) on securing this debate. I am grateful for the opportunity to take part in it, as the future of UK legal services and their promotion after we leave the EU is important. I am particularly delighted to respond to a debate of my hon. Friend, who not only has extremely ably occupied my role as a former Justice Minister, but is knowledgeable on this issue as a non-practising solicitor, the co-chair of the APPG on legal and constitutional affairs and a member of the Exiting the European Union Committee. I am also grateful to him and to his APPG for their thorough and helpful report.
In that report, the APPG and my hon. Friend recognise the significance of our legal sector. As he rightly said, it is a great success story. The sector is worth at least—it varies—£24 billion a year. The UK’s trade surplus in legal services has nearly doubled over the past 10 years and now accounts for about 10% of global legal services fee revenue. Importantly, the sector provides jobs—it drives employment by employing well over 300,000 people. Those jobs are found throughout the UK, although we also have a huge hub of specialist lawyers, many of whom support our vital financial services sector.
English law, as many people have said today, is the most widely used in the world, with 27% of the world’s jurisdictions using it. International firms want to operate in this country, which is why more than 200 foreign law firms have offices in the UK. UK-based firms also operate around the world, and nearly 7,000 practising solicitors from the UK work abroad. My hon. Friend is right to identify that people come here for their legal disputes because of the integrity of our judges, the professionalism of our lawyers and our respect for the rule of law.
My hon. Friend highlighted that the report recognises that
“Brexit will be the largest ever change to the UK’s legal framework and it presents both opportunities and risks for the legal sector.”
It also recognises that the ability of solicitors, barristers and chartered legal executives to practice as lawyers in the EU is important to lawyers and, as my hon. Friend Member for Bromley and Chislehurst (Robert Neill) mentioned, the people whom those lawyers serve.
As far as the transitional period is concerned, market access will remain the same. The draft withdrawal agreement provides that, during the implementation period, EU and UK professionals working in the UK or EU will continue to have their professional qualifications recognised. We set out in the future economic partnership White Paper our proposal for new arrangements for services and investment after we leave the single market. We must recognise that we will no longer be in the single market and that there will be implications for market access.
The outline political declaration made last week identifies:
“Ambitious, comprehensive and balanced arrangements on trade in services”.
Those go well beyond World Trade Organisation commitments. The political declaration also identifies the need for provisions on market access and the importance of non-discrimination, and records the need for arrangements on professional qualifications. Alongside that, the mobility framework will support businesses to provide services—that includes travelling freely without a visa for temporary business activity, for example.
The outline political declaration will be built on and finalised with the aim of producing a full political declaration, which we hope can happen before the end of the month. In a no-deal scenario, there will be no basis for reciprocity—registered European lawyer status, which allows European economic area lawyers to practice permanently in the UK under their home title, will be phased out after exit. New entrants will be able to seek recognition of their qualifications and be admitted to the UK profession in the same way as third-country lawyers. There will be a transitional framework until 31 December 2020 for EEA lawyers and business owners to transfer their qualifications or adapt their business model.
My hon. Friend the Member for Huntingdon and the hon. Member for Paisley and Renfrewshire North (Gavin Newlands) asked me what preparations my Department was making for no deal. As a competent Government, we are making preparations for no deal. We have issued two technical notices, we are preparing our no-deal statutory instruments and we received £17.3 million in the spring statement, which was allocated to our Department to make suitable arrangements. My hon. Friend the Member for Bromley and Chislehurst made important points about laws that we can take advantage of in the event of no deal. We will incorporate Rome I and Rome II into our laws and we will sign up to The Hague convention in our own right.
Beyond negotiations with the EU27, we are working with the sector to promote the benefits of market liberalisation. We want to ensure the continued pre-eminence of UK legal services and English law. The Government are committed to championing the legal services sector. We are building our international and domestic relationships and leveraging them to promote the sector overseas. We are working to improve legal services market access. We will seek opportunities in future trade agreements to include ambitious provisions for services.
My hon. Friend the Member for Henley (John Howell) was right to identify the importance of international arbitration. Companies often choose the UK as the seat of international arbitration, which is an important part of the sector. The Ministry of Justice is working across the board to prepare for the UK’s exit from the EU, as well as continuing to promote legal services on the international stage.
Rape Myths and Juries
Lucy Frazer Excerpts(5 years, 5 months ago)
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The Parliamentary Under-Secretary of State for Justice (Lucy Frazer)
It is a pleasure to serve under your chairmanship, Mr Hosie. I am grateful to the hon. Member for Stockport (Ann Coffey) for securing this incredibly important debate. She has done a significant amount of work to support young people in the criminal justice system and is a committed advocate for victims of sexual exploitation. Thanks to her hard work, all references to “child prostitute” were removed from legislation and the victims are properly recognised.
Rape is an extremely serious criminal offence that can lead to lifelong trauma for victims and their families. I take extremely seriously the great courage, support and perseverance it can take for victims to go through the criminal justice system in pursuit of justice—the bravery it takes to report the crime to the police, and the emotional strain and trauma of having to recount details of the incident to the police and then the CPS during the investigative stages. We know that the court process is often intrusive, uncomfortable and intimidating. It is vital that our court process should not aggravate and compound the victim’s experience.
In responding to this important debate, I will highlight the importance of evidence in this area, say what the Government are doing to protect rape victims, and finally look to the future. The hon. Lady, who began her speech with the facts she obtained in response to an FOI request, is aware of the importance of evidence and rightly highlighted a number of important statistics. She is right to underscore that more people are coming forward to report rape, which is very much to be welcomed, and to recognise that that huge social change followed much work by campaigners and a change in attitude towards women. She also highlighted that, despite that rise in reporting, the number of prosecutions has fallen. That is disappointing and worrying.
The hon. Lady said that convictions are falling. Although that is true for the period 2017-18, it is interesting to note that in June 2018 the conviction rate for sexual offences was at its highest in a decade, at 68%. It is therefore possible that, when cases reach court, they are more likely to result in a conviction. She also rightly pointed out that there are fewer convictions in cases where the complainant and the accused are known to each other and aged between 18 and 24.
In those circumstances, this is an important debate. We need to look into these issues to ensure that reports of rape are taken seriously at every stage of the process. At the heart of the debate are the questions why convictions are not being secured and why juries are not convicting. The hon. Lady said she believes there is reluctance on the part of juries to find young men guilty of rape because of rape myths in our culture. There is a fear that some believe that women who have drunk have only themselves to blame, and that juries acquit on the basis of their prejudices and attitudes to rape, rather than the facts and issues before them.
If that were right, it would be appalling. Women who come forward should have confidence that they will get justice. They should be judged on the facts presented to the court. It is important when we consider changing policy that those changes are driven by evidence, so I am pleased that we are currently analysing this important issue and looking at the reasons why juries come to their conclusions in rape cases. As the hon. Lady mentioned, Professor Cheryl Thomas, the leading academic expert on juries and jury research, is currently considering these issues. She has been commissioned by the president of the Queen’s Bench Division to conduct empirical research with jurors to help inform our understanding of the impact of rape myths and the development of future training and guidance for jurors.
Professor Thomas will be considering two things that are pertinent to this debate: first, to what extent jurors who have served on real trials believe myths and stereotypes about rape, and secondly, to what extent further guidance to jurors, in the form of educational materials, might be helpful in ensuring that myths and stereotypes are not applied in cases of rape or sexual offence. That evidence will help us to understand the bias of juries and help to inform policy in that critical area. Once we have the evidence base, we can consider the matters identified by the hon. Lady, who raised interesting and important questions.
Protecting women—particularly young women—when they go through the criminal justice system is vital to ensuring justice, and across Government we are taking a number of steps in that area at every stage of a woman’s journey. During the initial stages of a complaint the Metropolitan police has trained officers and frontline staff to deal with victims of rape when they first come forward, to ensure accurate recording. All CPS prosecutors who work on rape cases have specialist training on stereotypes, rape myths and consent. The CPS has almost doubled the number of specialist prosecutors in its dedicated rape and serious sexual offences unit, and it has enhanced training and improved the support that it offers to victims through criminal proceedings.
When a victim goes through court, we must ensure that they are protected and get justice. We are committed to rolling out pre-recorded cross-examination of vulnerable witnesses in Crown court centres in England and Wales. The review of disclosure by the Attorney General’s Office, published on 15 November, referred to the importance of ensuring that complainants are not subjected to unwarranted intrusion into their privacy, or deterred from reporting offences or participating in the criminal process. The 2018 “Crown Court Compendium” builds on existing guidance, giving more examples of possible directions and listing situations in which jury directions may be needed in a rape case. Judges can sit on sexual offences cases only if they have undertaken specialist training from the Judicial College. More broadly, we have protected funding of more than £6.4 million for 85 rape support centres across England and Wales, and we have committed to continuing investment—£4 million a year until 2020-21—in sexual assault referral centres.
Let me turn to the questions that the hon. Lady raised about solutions to this problem. She highlighted a number of important questions, and we are thinking carefully about how we can educate jurors in this area. As I mentioned, however, it is important that we approach this issue on the basis of evidence. The judiciary rightly maintain that any course of action should be well considered and informed by empirical evidence, and therefore we will await the outcome of the review by Professor Thomas before taking any steps.
The hon. Lady mentioned a number of important statistics, but it is worth pointing out that there is conflicting evidence on the behaviour of juries in rape cases. In the year ending December 2017, approximately 44% of 5,784 not guilty pleas for sexual offences resulted in a conviction—a higher figure than for robbery and offences of violence against the person. In the same year, the sexual offences acquittal rate was close to the average acquittal rate for all offences, at 56%, and that was lower than the acquittal rate for offences such as the possession of weapons and theft, which were both at 60%.
I am conscious that gender stereotypes unfortunately exist in our society, and I am aware of concerns that they can create an environment that enables violence against women and girls. As jurors are picked from society as a whole, it is possible that rape myths sometimes have an impact on juror decision making, but more research is needed firmly to establish that link. For that reason, I ask for the House’s patience while we await the results of research that is due to report in the new year. I will keep the hon. Lady updated on any developments, and I will be happy to meet her when that evidence is produced.
Question put and agreed to.