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

Robert Neill Excerpts

2nd reading: House of Commons
Tuesday 27th November 2018 Commons Chamber

[Mr Gauke]

I very much agree. We have a judicial system that is widely respected around the world for its independence and excellence, and that must long continue. I suspect that my hon. Friend is hinting at the question of how we can get more outstanding candidates to apply to the judiciary. It is right that we should address that challenge. He is right to suggest that this is one of our strengths as a country. It will be important in the years ahead as we leave the European Union that our legal system should continue to be widely respected. I believe that there are great opportunities for the UK to become even stronger as a legal centre, and I am keen for that to happen.

[Robert Neill (Bromley and Chislehurst) (Con)]

Will the Secretary of State give way?

[Mr Gauke]

I will certainly give way to the Chair of the Justice Committee.

[Robert Neill]

The Secretary of State makes an important point about the balance that needs to be struck in these areas. He has given an example of the use of artificial intelligence being appropriate for the checking of documents, and work on dealing with disclosure parameters has already been successfully piloted by the Serious Fraud Office. Would he concede that there is a distinction to be drawn between those essentially transactional but important operations, such as disclosure searches, and the application of human judgment that should be brought to, for example, a charging decision by the SFO? Does he agree that any determination of the facts or issues of a case should clearly be done by a human judge, having heard the arguments, and that their workload could be slimmed down but not replaced by the use of AI?

[Mr Gauke]

I agree. I note that my hon. Friends are all quick to make the case for the importance of the skilled human being in these circumstances, and rightly so. We must remember that technology is our servant and not our master.

I make these points because our court reform programme is being undertaken in the context of an embracive technology and the Bill is an aspect of that programme. I will digress no further because it is not essentially a technology-based Bill. However, to follow up on the point made by my hon. Friend the Member for Bromley and Chislehurst (Robert Neill), the importance of skilled individuals will continue to be key, and the Bill will ensure that the time of our most skilled individuals—our judges—is deployed as efficiently as possible.

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[Yasmin Qureshi (Bolton South East) (Lab)]

Before I open my speech, I wish to tell the House that today is Lancashire Day. On 27 November 1295, Lancashire sent its first Member of Parliament to attend King Edward I’s model Parliament. The day is well marked and celebrated in Lancashire.

We have been waiting for the arrival of court reform legislation ever since the Government promised in the Queen’s Speech last June a Bill to modernise the court system. One can imagine that expectations were high, but instead we were left disappointed when this wafer-thin Bill, which is both narrowly constrained and obscurely drafted, was finally published. Indeed, most of its provisions were included in the Prisons and Courts Bill that was shelved more than a year ago. That Bill devoted 38 clauses and 13 schedules to the courts and judges, whereas this Bill has just three such clauses followed by a single schedule. As Lord Judge once said of another Government move, it is

“a little too late and…quite a lot too little”.

[Robert Neill]

I intervene only in fairness to the distinguished legal journalist Mr Joshua Rozenberg, for that was his phrase that the noble Lord Judge was quoting.

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[Yasmin Qureshi]

I accept that the senior judiciary, some of whom are in the House of Lords, have said that the Bill is a good thing. However, practising lawyers, barristers, solicitors, the Bar Council and the Law Society have said that it is not right, and that the amendments that we will propose should be considered.

There is disagreement in the judicial community about the Bill. [Interruption.] I will just wait until the Lord Chancellor has dealt with his question. The Lord Chancellor and the practitioners here must be aware that, when judges are involved in delegated functions or non-court sitting judgments, they are making judgments on difficult issues and complex matters of law—for example, a case management hearing, or even something such as asking for an adjournment. We do not know, but, at the moment, the Bill suggests that such work could be done by delegated staff.

When someone asks for an adjournment, all kinds of complications could be involved; there could be issues relating to failure of disclosure and so on. According to the Bill as it stands, many issues would be given to a delegated person. That is one reason why we are asking for clarification about who those people will be, what powers they will be given, and, more specifically, what training they will be given. Although some senior members of the judiciary in the other place have said that the Bill is a positive development, the practitioners on the ground, at the moment, do not agree.

[Robert Neill]

I understand what the hon. Lady is saying, and I am not unsympathetic to her point, but, in fairness to the senior judiciary, is it not worth pointing out what was said by the two noble lords who spoke on this matter? Lord Neuberger of Abbotsbury, the recently retired President of the Supreme Court, counselled that it would be unsatisfactory to reduce the flexibility of these proposals, pointing out that there will be many decisions where requisite experience is required, but others where less experience is necessary. Lord Thomas of Cwmgiedd, the previous Lord Chief Justice, pointed out that the procedure rule committee had practitioners on it who acted independently. He said:

“Experience has shown that detailed restrictions on procedures are a very real fetter on the administration of justice.”—[Official Report, House of Lords, 20 June 2018; Vol. 791, c. 2039.]

Those are very serious counsels by two very distinguished recently retired judges.

[Yasmin Qureshi]

I have respect for the senior judiciary, of course, but Parliament should have control over what is being delegated. Taking away judges’ positions and powers is a matter that should be debated in this House. We do not think that it is a matter for the procedure rule committee. We would have a much better idea about what it should be looking at. I think that we will disagree on this issue.

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[Robert Neill (Bromley and Chislehurst) (Con)]

It is a pleasure to follow the hon. Member for Bolton South East (Yasmin Qureshi) and my right hon. Friend the Lord Chancellor.

In this debate, there is a danger of allowing the ideal to become the enemy of the good and the deliverable. I rather share the regret of the shadow Minister that this is not a larger Bill. I was a great supporter of the Prisons and Courts Bill that was lost prior to the 2017 election, as were all Members on the Treasury Bench today. There were clauses in the Prisons and Courts Bill that I hope will be brought back soon, and the prevention of cross-examination of victims in domestic abuse cases is certainly one of them. It is important not only that that issue be resolved, but that the court-appointed advocates who undertake that work be properly remunerated, and I say that in the context of the ongoing review of legal aid. It will be necessary for those advocates to prepare the cross-examination with particular care, because such cases always require a particular degree of sensitivity.

Removing the ability of the complainant in person to cross-examine is right and proper, but proper means—proportionate with the equality of arms—must be put in place and properly funded to enable the trial to be conducted fairly. I understand the Lord Chancellor’s point that it may not be appropriate to put that in this Bill, but that is not a reason not to bring forward the fully thought through and worked out provisions at the earliest possible opportunity. That is a digression from this worthwhile Bill, which does a number of valuable things, some of which I will mention.

Reference has been made to the debates in the Lords. The Lord Chancellor was right to say that proceedings in the Lords were conducted in a particularly constructive and co-operative spirit. Maybe that was because of the very high percentage of lawyers participating in the debates in the other place. It was a civilised and careful consideration of the Bill, in which I think there was—with respect to the Opposition Front Bench—rather less attempt to politicise some of these provisions than we have heard this afternoon. Many of the measures in the Bill are important and technical reforms that require a statutory basis, and should be welcomed.

I noticed the discussion of changes to judicial titles during the debates in the other place. If I have a slight regret about this Bill, it is one that I share with the noble Lord Mackay of Clashfern about the abolition of the title of justices’ clerk. I can understand why that is proposed, but having practised in the criminal courts for 30-odd years, I have a certain affection for the title, as did Lord Mackay. But that change goes with this Bill, so maybe it is a price that has to be paid for modernity. Perhaps I am being uncharacteristically reactionary in regretting the disappearance of the title of stipendiary magistrate as well. I always thought that “Mr St John Harmsworth, stipendiary magistrate at Marlborough Street” had a greater ring to it than “Mr St John Harmsworth, district judge (magistrates courts)” might ever have done, but I suppose the change did give a certain degree of standardisation.

We have been talking about appropriate levels of qualification. There was a time when justices’ clerks did not have to be legally qualified. I do not say that was a good thing. I remember appearing quite often, as a very young barrister, at Billericay magistrates court in Essex in front of the last non-legally qualified justices’ clerk in the country. He had some sort of grandfathered rights that went back to a time when one could do 10 years as a justices’ clerk and that was regarded as giving one the qualification for appointment. [Interruption.] I see that my hon. Friend the Member for Cheltenham (Alex Chalk) is much shocked by these things. We had to be terribly robust in those days. I remember that I managed to persuade that justices’ clerk to dismiss a case at half time on the basis that a rice flail was not an offensive weapon per se, because it might have had a legitimate use for flailing rice. Whether that was going to happen on Basildon high street, I am not sure.

We have moved on, and the justices’ clerks are much more professional now, and much more fully integrated, so despite my regret about the loss of the title, the new one does reflect more adequately the role that they now have as legal advisers to a very important part of our system—the lay judiciary. In fact, the Justice Committee heard evidence from representatives of the Magistrates Association today regarding the updating of our previous report on the magistracy. They can play a critical role in this. I think that they broadly welcome the attempts at modernisation of practice and procedure that this Bill will assist.

[Alex Chalk]

Like the Chairman of the Justice Committee, I welcome these measures to modernise the process. However, this should not be allowed to distract from what remains a fundamental problem, which is that there are not enough people coming into the judiciary. We need to ensure that they are properly incentivised to do so and rewarded for doing so, because the backlog of cases in the Court of Appeal and elsewhere will not be resolved by these measures alone. Does he agree?

[Robert Neill]

I totally agree. These are useful, practical measures on their own, but they are by no means a solution to the problem. In fact, they are but a very small part of the solution.

I am a bit concerned by some of the Law Society’s suggestions in briefings that some of the broader programme of courts reform is posited on making savings in judicial posts and appointments of about £37.5 million. I hope that the Lord Chancellor—or the Under-Secretary of State for Justice, my hon. and learned Friend the Member for South East Cambridgeshire (Lucy Frazer), when she responds to the debate—will be able to set our minds at rest on that. We can make savings by using staff qualified at the appropriate level in what one might term purely interlocutory or procedural matters, but all the decisions on issues of substance in any case—whatever the sum involved or whatever the nature of the charge, in a criminal case—have impacts on the individuals concerned, and they should, in my judgment, be taken only by properly qualified lawyers in an open court process. That is important.

We cannot allow the valuable nature of this Bill to take away from the fact that we need an injection of resource into the criminal justice system. We are seeing a shortfall in appointments to the High Court bench on a regular basis. A number of hon. Members have talked about the integrity of our justice system and the importance of its legal standing, and the quality of the judiciary is key to that. We also see difficulties in making sufficient appointments—full time, at any rate—to the circuit bench. It is easier with recorders, I grant, because they are able to sit part time, but there is a real issue there.

There is also a real issue, as my hon. Friend the Member for Cheltenham knows, about morale. I think that the Lord Chancellor and the Under-Secretary of State understand that and take it on board. I do not expect them to be able to wave a magic wand and solve everything overnight, but it is important to stress these things. Technical changes are useful as far as they go, but they cannot underpin what is essentially a people-based system.

[Ms Harriet Harman (Camberwell and Peckham) (Lab)]

I pay tribute to the excellent work that the hon. Gentleman’s Committee does on these and many other issues. I agree that there were perhaps things in the Prisons and Courts Bill that have not found their way into this Bill. He may agree that we should, none the less, take the opportunity of this Bill to try to sort out the problem of the previous sexual history of victims in rape trials being dragged through the court and used by the defence in an irrelevant way to undermine the complainant’s evidence, sometimes when applications are not even made to introduce this material. Does he agree that this Bill is an opportunity to deal with that problem? We know that this is happening, and it undermines getting rape convictions.

[Robert Neill]

I very much respect the point that the right hon. and learned Lady is making, but I must say to her frankly that I am not convinced that this Bill is the appropriate vehicle for dealing with that issue, although it is a real one, simply because the Bill is very tightly drawn in scope and relates to function. What she wishes to do—I understand why she may wish to do it—would have significant impacts on the operation of the law of evidence, which is a consideration that deserves to be looked at on its own. We probably have a shared view as to what we might want to achieve, but I am not sure that this Bill would be the right one to achieve it.

We do need to look very carefully at the whole approach to the way that previous sexual conduct is dealt with in rape and other sexual offence cases, but we also have to bear in mind—I say this as somebody who prosecuted and defended in these cases—that we should not assume that these issues will never be relevant to the key issue in the case. A balance has to be struck, and very often that is a decision that can only be taken by the trial judge in the light of the submissions made by the parties. I would not want us to restrict the ability of the trial judge to make that decision, because they are best placed to do that. However, the right hon. and learned Lady’s point about failure to follow the procedures and make proper application in advance, and enforcement of those procedures by the judiciary, is an important one that we certainly ought to take forward.

[Ms Harman]

Can I go back to plan B, then? Even if the hon. Gentleman thinks that the Bill is not the right place to address such a considerable evidential problem—and there is controversy around this—would he not, at the very least, like to see tucked in under clause 3, “Functions of staff”, an obligation on staff to record, when an application under section 41 of the Youth Justice and Criminal Evidence Act 1999 is made, what evidence was brought forward and what the result of the application was? There is an absence of evidence about what the courts are actually doing. That enables them to say that there is not a problem, when evidence such as that brought forward by Vera Baird, the police and crime commissioner for Northumbria, says that there is a problem. Does he agree that this Bill could at least get us recording that very important information?

[Robert Neill]

That is a very interesting and constructive point, because we do want to have an evidence base. Again, the only caution I have is this: is it appropriate to do that through a form of statute, or is it better done through placing that requirement in the criminal procedure rules? I am going to talk about the procedure rules in a moment. Either way, there should be a means of capturing that information, and I am very sympathetic to doing so. Perhaps the right hon. and learned Lady and I could talk with others about the best way forward on achieving that, because it should certainly be possible, with modern court technology.

[John Howell]

May I take my hon. Friend back to where he left off? Does he agree that the threat to the use of English law around the globe comes about from the efficiency or otherwise of the judges, and that the more that judges are unable to be efficient in giving a judgment, the more there is a threat to the use of English law? Does he agree that this Bill goes a long way towards trying to sort that out?

[Robert Neill]

Yes, I do. That is very important, and that is why it is not surprising that experienced former judges have expressed a view on this. We have referred to the former President of the Supreme Court, Lord Neuberger, and the immediate past Lord Chief Justice, Lord Thomas of Cwmgiedd. I note also the observations of Lord Thomas’s predecessor, the noble Lord Judge. They all supported the thrust of this Bill in enabling more flexible deployment of judges within tribunals and the assignment of procedural matters to non-judicial court staff. They also warned about not unduly fettering the ability of the court procedure rule committees, which have on them practitioner representatives who are able to set matters in the light of their practical experience. That is absolutely right, and it in no way contradicts the point made by my hon. Friend the Member for Cheltenham about the need to have the requisite number of top-class members of the judiciary. I agree with my hon. Friend the Member for Henley (John Howell) that this is a sensible and proportionate Bill.

I want to touch on a couple of other points that relate to the issues legitimately raised by both the Law Society and the Bar Council. It is possible to meet their concerns in a proportionate way. I think it is fair to say that the Bar Council and the Law Society’s main issue, in terms of the scope of the Bill, has been the relationship to authorised staff. They make a fair point about the underlying issue of the courts modernisation programme, which I will touch on later. There was an acceptance in the other place that some types of procedure and hearing do not require a legally qualified person to deal with them.

However, we have to ensure that when the procedure committee draws up the rules around this—I welcomed the Government’s amendment, which gives greater clarity about how that will operate and makes it easier to achieve—it is not, as my hon. Friend the Member for Cheltenham said, placed in the invidious situation of trading off access to rights against costs. I have sympathy, therefore, for what underpinned the concern raised by the hon. Member for Bolton South East (Yasmin Qureshi), though I do not advocate the same solution. That balance cannot be allowed to be swayed unduly in terms of the transactional or the financial.

The right of reconsideration is worthy of consideration, and I hope the Government will look seriously at it. It is a question of the appropriate level at which to pitch that. Some of the matters that it is proposed be delegated are almost entirely procedural in nature. We should distinguish between delegating to a court official a procedural matter, such as granting an extension in time, which many of us probably think is not the sort of thing where the fundamental rights of a party are so affected that it requires reconsideration, and something that goes to the issue of the case, such as a summary judgment. The way forward is to give the rules committees the ability to reflect those distinctions, rather than to try to spell things out too much in statute.

It has been suggested that there should be a form of benchmark against which the rules and procedures operations are carried out. That may be worthy of consideration by Ministers, and it may be discussed in Committee. I would not want to tie people’s hands, but we could have some form of benchmark against which that is done, without falling into the trap that Lord Thomas, Lord Judge and Lord Neuberger counselled against, of overly restricting, over-legislating and tying the hands of the judges.

I take issue with the Opposition on this point. It is not right or desirable for politicians—who, by their nature in our system, are partisan animals—to seek to constrain too much the operation of the rules or procedure of the desirably and deliberately independent courts. We have to be careful about how we achieve a balance. Our job is to set the policy and legislative framework within which the courts operate, but if we get too far into the detail, we run the risk of trespassing on judicial independence, and also on efficiency.

There are good aspects to the Bill that I hope the House will take forward. I intervened on the hon. Member for Bolton South East to point out that it was Mr Joshua Rozenberg, the well-known journalist, who coined the phrase

“it is a little too late and quite a lot too little.”

In fact, to be wholly accurate, it was Lord Marks, a Liberal Democrat shadow Minister, who quoted it in the other place. It is a very good phrase, but it is harsh on the Bill. The Bill does good work within the scope that it seeks, but that does not mean we should not support the Lord Chancellor and his Ministers when they seek, as I am sure they will, to find the appropriate legislative time to bring forward measures on a number of other aspects of the former Prisons and Courts Bill, which was lost in the Dissolution.

The right hon. and learned Member for Camberwell and Peckham (Ms Harman) and I have discussed some matters of criminal and family law in domestic violence cases that it is important for us to tie up. I stress strongly that much of these reform proposals stem from the excellent reports of Lord Justice Briggs and Lord Justice Leveson. Their reports were seminal in suggesting a modernising way forward, but taking that way forward requires the underpinning of statute. I urge the Lord Chancellor, who has been very patient in listening to us all, to make it a priority to persuade the business managers to find time for the legislative vehicle that will enable the modernisation of the court procedure rules on all civil matters to be brought forward. The Leveson proposals could have statutory underpinning in the same Bill. There is a real sense of uncertainty, referred to by the Law Society and the Bar Council, about the statutory underpinning for this ambitious courts programme. That was also picked up by the National Audit Office in its inquiry.

I welcome the Bill, and I support it as a valuable and worthwhile step forward, but—I think the Lord Chancellor would be the first to accept this—it is only one part of the programme that we need to deliver. We ought to get the Bill through the House as swiftly as possible and then move on to the next step. I note that Second Reading in the Lords lasted just under two hours, which shows that we can be both erudite and remarkably brief, which is perhaps an improvement on some debates we have here.

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[John Howell]

I am sure some Members are distracted by that, but I am incredibly pleased that neither she nor I are, and that we are going to concentrate on the Bill in a very big way.

I mentioned in an intervention on the Lord Chancellor that I was actually the first Member of Parliament to go on the Industry and Parliament Trust fellowship in law. It was a particularly enlightening experience. I cannot remember the number of days that I was allocated, but I doubled the number of days I spent on it, because I spent most of the time sitting alongside judges, on the bench, listening to what they did. The number of different courts I saw was tremendous—I remember starting in the commercial courts, which I will come back to in a little while. They represented such a technological advance on all the other courts I sat in on, and that was a really good thing to see.

To go back to a point I made to my hon. Friend the Member for Bromley and Chislehurst, the first thing that came out of that experience of sitting alongside judges was an absolute admiration for their integrity and for what they did and how they did it. The second thing was an understanding of how overworked they are. As non-lawyers, we perhaps tend to think of judges just turning up, sitting and listening to the case, and giving judgment, but the amount of preparation that goes into hearings is phenomenal. That was a good thing to see and experience, and it applied whether it was the bankruptcy court or the Court of Appeal, in which I sat on two occasions.

The point I made to my right hon. Friend the Lord Chancellor earlier was about the speed of justice. I am not a great advocate of speed in itself, but I think there is a threat to English law: not Brexit, but the ability of our courts to dispense justice on a timely basis. When I sat in with judges, I saw that they were often so preoccupied with the minor administrative elements of their role they did not have time to dispense justice in what I would consider a timely manner. That was the case whether I was sitting in a higher court or, in particular, in a tribunal—I will come on to tribunals in a moment. Efficiency in making judgments and delivering English justice is one of the hallmarks of the justice system and one that we lose at our peril. If that point alone is made, it is made well.

One issue I would like to raise, which may at first not seem immediately applicable to the Bill, is the age of judges. I believe it does apply to the Bill, because consideration is being given to other people taking on judicial functions. The point about age has also been raised in relation to the magistracy, and it also applies to lords justices and others. When the Lord Chief Justice appeared before the Justice Committee last week, we asked him about the age of justices and he explained that there were mechanisms by which they could be extended beyond the age of 70 in certain capacities. However, that is an artificial cut-off—if we were stopped from being MPs at 70, I think there would be shouts of horror. Some of us—I am nowhere near that age now—would consider that we were being cut off in the prime of our life. The same is the case with judges. They have acquired a tremendous amount of experience, principally as barristers. They have had a lot of judicial experience, and they are just coming to the point where they can use that experience in the best possible way. I therefore think it is necessary to look at extending the age at which judges retire to beyond 70. To be able to do that, we must look at the courts in a holistic way.

[Robert Neill]

My hon. Friend makes an important point. The coalition Government, as I am sure he will know, increased the age at which members of the public could sit as jurors to 75. It seems quite bizarre that a lay person who is fit, healthy and willing to serve can sit as a juror up to the age of 75, but people of that age cannot sit as a judge of the High Court, the Court of Appeal or the Supreme Court—unlike in the United States, where they can go on for a considerable time.

[John Howell]

I am not sure I would like to follow the experience of the United States in this matter, but my hon. Friend makes an absolutely first-class point. There needs to be a consistent approach to the age at which we can use people or force them to retire.

There is a lot to be said for the system in the Bill that would enable people to undertake some activities undertaken by judges. As an aside, I said that I am a non-lawyer, but I am currently seeking to extend my ability to undertake arbitration—I hope that that does not cut across or invalidate what I am saying. Such an ability is an important element of the mix that needs to be taken into account when we are looking at the judicial system as a whole.

When I was involved in sitting with judges for the fellowship, I was very much aware of the difference between courts in digitalisation and technology. In the commercial court, the system was utterly brilliant. I sat with a judge who was listening to an English law case in Portuguese. The transcript of the English translation appeared almost instantaneously on his laptop on his desk in front of him. The use of technology to get information out was absolutely fantastic. As I said to the Lord Chancellor, however, employment tribunals might as well have still been using the quill pen, they were so antiquated—not the judgments being made, but how the courts were organised and delivered justice. If we want access to justice, it is absolutely essential that the process of digitalisation in courts is seen through to the end. It materially influences access to justice.

When I sat in the Court of Appeal, prisoners appealed their sentences via video link. It was clearly not a good idea to bring the prisoners into court, so video links were used all the time to great effect, enabling judgments to be made. There were some discrepancies. For example, it took some time to get the focus right for some prisoners. I understand that that was due to the camera equipment, rather than the features of the prisoners.

When I started my work as chairman of the all-party group on alternative dispute resolution, I had the opportunity to speak to Lord Briggs about his proposals for the justice system as a whole. The Bill moves us closer towards what Lord Briggs was after, but it does not take us all the way to it. For example, the digitisation of divorce is welcome, but his proposal for online courts is very valuable. I know that that is controversial among lawyers, but it is important to enabling both the delivery of justice and access to justice. I would like that process to be extended beyond the scope of the Bill, so that we can receive and transmit electronic evidence in the handling of individual court cases. Anything that can move the legal profession into the 21st century is to be welcomed.

If I may, I would like to give a plug to the Industry and Parliament Trust fellowship. Having been the first to go on it, I recommend that hon. Members absolutely do so. The experience of sitting alongside judges is absolutely first class. My first appearance in court—if I can put it that way—was in a commercial court. I went to the court with the judge. We were just about to go through the door and I said, “I shall just go and sit at the back of the court.” He said, “What do you mean? You’re sitting up next to me in the court.” It was a great shock to me—

[Robert Neill]

A great shock to the defendant.

[John Howell]

It was a great shock to the barristers, particularly when I sat in the planning court and the barrister was well known to me. We played a little trick on him by coming in through different doors so that he was unaware of who we were.

The point of all that is that it is a very valuable training scheme. The more that people can go on it, the more there will be an understanding of the issues raised in the Bill and of the need to bring the courts into the 21st century.

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[Imran Hussain (Bradford East) (Lab)]

I draw hon. Members’ attention to my entry in the Register of Members’ Financial Interests, and I start by acknowledging some of the excellent contributions from Members across the House. My hon. Friend the Member for Bristol West (Thangam Debbonaire) passionately made a plea, and a very important point, on the impact on some of the most deprived and how we should always mitigate that. The hon. Member for Bromley and Chislehurst (Robert Neill), the much respected Chair of the Justice Committee, made a very important point about the right to reconsideration, which I will come on to in greater depth.

[Robert Neill]

I am grateful to the hon. Gentleman for giving way, because it gives me the chance to do justice to his hon. Friend the hon. Member for Bolton South East (Yasmin Qureshi), and to remind the House of my entries in the Register of Members’ Financial Interests, which I should have done before. The hon. Lady and I had a minor debate about whether Lord Judge or Lord Marks quoted Joshua Rozenberg. We have now worked out between us that Lord Marks quoted him in a debate on this Bill, but that Lord Judge quoted him in a debate on another occasion—so they both quoted him, and he has been quoted twice here.

[Imran Hussain]

I am grateful to the Chair of the Justice Committee; he has saved me some time, because my hon. Friend the Member for Bolton South East (Yasmin Qureshi) asked me to clarify that matter in my speech.

I also acknowledge the contribution from the hon. Member for Henley (John Howell), who rightly made the point about a consistency in approach across the judiciary and did so very well. The hon. Member for Stoke-on-Trent South (Jack Brereton) spoke passionately about making our justice system the best in the world—which it already is, although we can improve it through further and better technology.

When the Government brought the Prisons and Courts Bill to the House, they declared an intention to reform our courts and judicial system. When that Bill fell because of the Prime Minister’s ill-fated decision to call a general election, they restated their intention for reform and brought this Bill before us. In opening the debate today, the Lord Chancellor spoke about court reform, new and innovative technology, and sweeping modernisation, yet the content of the Bill does not match his words. It is devoid of any substantial change that will encourage greater access to justice, and it wilfully omits—and even seeks to avoid—debate on the huge, pressing concerns present in our courts system. When seen in the wider context of the Government’s austerity agenda and cuts to the justice system, it seems to be less about reform and more about squeezing as much money as possible from the courts.

Even at first glance, this is a minimal, even empty, Bill—a view that is vindicated upon reading it in more detail. It contains provisions to extend the redeployment of judges, to rename some of the judiciary and to allow an increased use of the delegation of judicial functions to non-judicial staff. While all those measures have value, in no way do they capture all that is needed to reform our courts and judiciary. They are measures taken by a Government intent on introducing a drip-feed of legislation in the absence of their parliamentary majority, avoiding scrutiny. Not only have they omitted anything substantial, but they have drafted the Bill to avoid some of the most pressing issues facing the justice system. It makes no mention of measures to address legal aid cuts, court closures, judicial vacancies or the protection of domestic abuse victims. It is here where the real failures of reform lie.

On legal aid cuts, access to justice has been decimated. Spending has fallen by one third from £2.5 billion to £1.6 billion per year, and the number of civil legal aid cases has fallen from more than 500,000 in the year to April 2013 to just under 150,000 in the year to April 2017. Vulnerable people are being left unable to defend themselves in areas as fundamental as housing, employment, immigration and welfare benefits, and unnecessary costs are being created for the taxpayer as cases are going to court that could have been resolved earlier. Further costs for the public purse arising from cuts are causing issues such as poor health, homelessness and debt. When people lack the money or knowledge to enforce their rights, those rights are worth nothing more than the paper they are written on, yet the Bill fails to mention legal aid or the urgent need to reverse the changes imposed by the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

On court closures, the Bill is silent and has closed down discussion on this equally vital issue for people’s access to justice. It fails to address the significant £1 billion-plus courts reform programme that is being pushed through, as the Lord Chancellor stated earlier—but without any proper scrutiny. Since 2010, the courts and tribunals estate has changed significantly, with hundreds of courts having been closed in the name of austerity, and that has hampered people’s ability to access justice.

Many claimants and defendants must now travel miles to access justice and uphold their rights, the Government having closed their local courts, but many lack either the transport or the finances needed to do so and as a result have lost what should be their guaranteed right to justice. The Government argue that their modernisation programme reduces the need for an expansive courts estate, but we are clear that courts reform should increase access to justice, not ignore its erosion, and that any modernisation of our courts system must not be a smokescreen for cuts and closures that will cause long-term damage to access to justice.

As mentioned earlier, the Bill should have done much more to address the appalling situation of victims of domestic violence being subjected to questioning by those who assaulted them. Women’s Aid found that almost one in four of survey respondents had been cross-examined in this way. That unacceptable situation puts the victims of abuse through yet more torment and hardship, for no conceivable reason. It is cruel and barbaric. Measures to prevent it from happening and protect victims are supported by campaign groups on women’s rights and domestic violence, including Women’s Aid, but yet again such measures are absent from the Bill, despite having been in the Prisons and Courts Bill. There is no excuse for the Government’s not having included such measures in the Bill: that should shame them. I hope they can explain when such measures will be introduced to rectify the situation.

Where there is change, it is change that the Government have failed to impose with sufficient protection, and it is here that we will seek to amend the Bill. On a point of clarification, I should say that my hon. Friend the Member for Bolton South East did not mean to say earlier that we opposed the Bill: we will be abstaining today and tabling amendments in Committee. We are determined to deliver change and reform to the courts and judiciary, even if through the Government’s piecemeal efforts, but we are equally determined that it not be done at the expense of the judiciary, legal protections or judicial independence.

As the Government seek to delegate judicial functions to non-judicial staff, they must be careful of their use; they must not overuse non-judicial staff or use them as substitute judges to fill the significant number of judicial vacancies, which have risen to critical levels on their watch. Judges must absolutely remain at the top of their hierarchy in the courts, and their position must not be undermined by non-judicial staff assuming more and more of their functions. Granting further powers to non-judicial staff not only risks undermining the judiciary, but runs the even more dangerous risk of delegating serious judicial functions to unqualified staff.

It is important for the Bill to contain provisions that prevent excessive delegation, protect the reputation of the judiciary, and protect claimants, prosecutors and defendants from unqualified decisions. The Government ceded amendments to impose in primary legislation some restrictions on the type of judicial functions that authorised staff can discharge, but we need a strong further commitment; I hope that the Lord Chancellor and the Minister will strengthen their stance in that regard.

There are also insufficient protections for the expertise of our judiciary. Those would be provided through the imposition of a minimum standard on staff to whom decisions are delegated. The Government argue that authorised staff will not be making substantial decisions, but in his review of efficiency in criminal proceedings Sir Brian Leveson states that even non-contested elements of cases require experience, and Lord Briggs has said in his report that even if authorised staff are legally trained and qualified, they will not benefit from years of judicial experience in delivering the quality of services that is currently delivered by judges.

It is therefore extremely important that the decisions being delegated to authorised staff are appropriate to their experience and qualifications, as the prospect of non-qualified, inexperienced staff carrying out judicial functions is all too real and worrisome. When such staff make decisions, it is also vital for those decisions to be subject to a statutory right to judicial reconsideration.

The Government state in their factsheet that the functions and responsibilities delegated to authorised staff will be uncontested, but it is easy to see how that could shift in the future to authorised staff making contested decisions, particularly in the absence of a clear definition of what delegation can be given. Justice has said that some of the functions anticipated for authorised staff, such as extending time for service and taking pleas, may well give rise to contested matters and have consequences for cases. It is therefore essential for the Government to impose a statutory right to reconsideration for decisions taken by authorised staff—a view supported by the Bar Council. In not imposing such measures when the public have a real and reasonable expectation that significant contested decisions in a court will be made by a judge—or, if not, that there will at least be a right of appeal or review before a judge—the Government are also playing fast and loose with the public’s trust in the judiciary and the rule of law.

The Government may claim that the procedure rule committees could and would impose similar safeguards in any rules that they produce, but that is simply not good enough, given that their amendments fail to offer sufficient guarantees of a right of review. We think that, and so does the Bar Council, which believes that a further amendment is necessary to abate its concern that the Government could exert pressure on the PRCs to reduce the right of reconsideration to increase the turnover of cases and clear the backlog. We are adamant that any backlog must not be cleared through the removal of a fundamental legal right of reconsideration.

Let me end by confirming that we will abstain today, but look forward to the Government’s seriously considering our amendments in Committee. The Lord Chancellor opened the debate in a spirit of collaboration. I assure him that all our amendments are very reasonable, and I am sure that he is an amiable chap who will view them in the same light. If the Government want to deliver a worthwhile Bill, they must listen to these arguments, not throw them aside. They must consider them in Committee before returning the Bill to the House.

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

Robert Neill Excerpts

3rd reading: House of Commons & Report stage: House of Commons
Wednesday 12th December 2018 Commons Chamber

[Yasmin Qureshi]

I thank my hon. Friend, a former shadow Justice Minister, for his intervention, and I take his point.

We acknowledge that the relevant procedure rule committee will set out the procedural requirements for who can carry out the procedures, but we also know that these committees are predominantly made up of senior judges, so this will have implications for the independence of judicial decision making.

We also believe that such a shift will not match the expectations held by members of the public on the experience and independence of those making judicial decisions about their rights.

[Robert Neill (Bromley and Chislehurst) (Con)]

The hon. Lady referred to the independence of the judges. Is not the whole virtue of this proposal that the rules governing who should be delegated what functions will be made by judges, and should not be made by politicians in any circumstance? Lord Thomas of Cwmgiedd, the former Lord Chief Justice, observed:

“Experience has shown that detailed restrictions on procedure are a very real fetter on the administration of justice.”—[Official Report, House of Lords, 20 June 2018; Vol. 791, c. 2039.]

He counselled against too much restriction of the kind that is being proposed.

[Yasmin Qureshi]

The procedure rule committee obviously has a place in our judicial system, and we accept that judges and others are involved in it, but everyone knows that there are times when, because of financial pressures, services are cut to the bare minimum. We believe that, to protect our judicial system, the functions concerned should be clearly set out, and those that will have an effect on someone should be decided by an authorised person with a legal qualification.

[Yasmin Qureshi]

We are not suggesting that judges will somehow not be independent. As I have said, I have the highest regard for our judiciary in court, although from time to time we might disagree with the decisions that judges reach. In the real world, however, there are often targets to be met and financial constraints to be considered. We are saying that when the procedure rule committee is making rules, it should be guided by Parliament.

[Robert Neill]

rose—

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The Government must take notice of the clear limitations of this Bill. They should listen to those who seek to improve this Bill and accept our amendments to ensure that we protect our judicial system.

[Robert Neill]

I hope I shall make a better stab at my speech than I did of being a Teller earlier.

I rise to oppose these amendments, tempted though I am by the way in which they were proposed by the shadow Minister, the hon. Member for Bolton South East (Yasmin Qureshi), whom I respect as a fellow lawyer. However, I do have to say that she seeks to go further than is appropriate and seeks to put a needless restriction on the ability of the procedure committee in particular to come to the appropriate balance. I have very great respect for the views of both the Law Society and the Bar Council—I say that with reference to my entry in the Register of Members’ Financial Interests as a non-practising barrister and a consultant to a law firm—but ultimately the scheme envisaged by the Government is a right and balanced one, and reflects in particular the views of the senior judiciary, which I think is important because ultimately it is the judges who are best placed to decide the appropriate level of delegation. They are the people who work day to day with these staff; they see day to day the nature of the boxwork—as it is sometimes called—and the other things that come in.

For these reasons, when the matter was debated in the other place, both Lord Thomas of Cwmgiedd, the recently retired Lord Chief Justice, to whom I have already referred, and Lord Neuberger of Abbotsbury, recently retired president of the Supreme Court, counselled against an undue restriction on the operation of the civil procedure rule committee, already a well established body of the kind the Opposition seek to bring in. I think they also broadly supported the overall thrust of the Bill.

The hon. Lady referred to austerity. That is not the objective of this Bill; there has been a long-standing proposal to modernise the civil justice system. She referred to the work done by Lord Justice Briggs, for whom I have the greatest respect. The Bill is a logical follow-on from the Briggs report, and it is necessary if we are to achieve modernisation and make the courts more accessible for litigants. This is an entirely sensible Bill; that is why the judiciary has pushed for these sorts of proposals, and why Lord Thomas said that he “warmly” welcomed it. It will save some £6 million; he regards that as a realistic figure. That is important in the context of the available resources for the courts system. We all accept that the courts are under pressure, and this is a sensible way forward that does not impede the basic requirements of access to justice or fairness.

Lord Thomas said two further things that we should bear in mind. He spoke about the developments in civil procedures; the rule committee has been an important part of that over the last 15 to 20 years, so it is not as though the committee were unused to dealing with these matters. The committees bring together representatives of the legal profession. As a former practitioner, I agree with his description of that committee as

“a highly representative body with many representatives of the legal profession. Certainly, the committee will always try to reach a view by consensus—when I was a member of it for more than six years there never was a division; we always managed to agree.”—[Official Report, House of Lords, 20 June 2018; Vol. 791, c. 2039.]

Most experienced practitioners will be aware of that. I think we can say the same of the criminal procedure rule committee; these are very well established bodies, and judges do not forget that they are judges when they are there.

It is a little unworthy, I say with respect, to suggest that the judiciary—we have talked about the senior judiciary chairing these bodies—would acquiesce in an inappropriate level of delegation for a purely financial consideration. They would be going against their judicial oaths. I do not think for one second that the hon. Lady really means to say that they would do that. The amendments would, however, put needless constraint on the committee’s work. That is why I quoted before and quote again Lord Thomas’s observation:

“Experience has shown that detailed restrictions on procedure are a very real fetter on the administration of justice”—[Official Report, House of Lords, 20 June 2018; Vol. 791, c. 2039.]

In the other place, he gave a number of examples that I need not give here showing why that could be counterproductive.

It is also worth considering the speech of Lord Neuberger. He pointed out the following:

“There are two protected factors: one is that nothing can be done without it being in the rules, and the second is that the Lord Chief Justice needs to give his or her authorisation to the person who makes the decision.” .”—[Official Report, House of Lords, 20 July 2018; Vol. 792, c. 887.]

Those are important safeguards.

[James Cartlidge]

My hon. Friend speaks with great expertise. What he is saying goes back to the point raised earlier about the possibility of the functions that are delegated having legal significance. Presumably if that was the case, they would not be delegated to start with.

[Robert Neill]

That is precisely right. It is inconceivable that any Lord Chief Justice would give his or her consent to a delegation that was inappropriate or would put the interests of justice at risk. I never sat as a deputy district judge—they used to be called deputy registrars in my day, so long ago was it—in civil matters, but I have many friends who do, and a great deal of what is called boxwork, with which at least some on the Treasury Bench will be familiar, was of a very administrative kind. We expect the district judges in a busy county court to deal with that, whereas it seems perfectly reasonable for many of these matters, which are often of a very interlocutory nature, to be dealt with by an experienced member of court staff who has been in the service for many years. We are not talking about the ultimate determination of the case in any of these matters. That is why Lord Neuberger referred to that safeguard or protection, and the protection that that would be laid before Parliament.

Lord Neuberger made another important observation on the attempt, as it seems to me, to fetter the discretion of the committee. He posed a rhetorical question, as perhaps senior judges and other lawyers tend to do:

“Whether it is right to provide in such clear terms, and such uncompromising general terms, for the circumstances and requirements for”

appeals—which is what he was talking about—seems to him to be questionable. He was making this point:

“Having chaired the Civil Procedure Rule Committee for three years, I can say, as has been quoted in relation to its criminal equivalent by my noble and learned friend Lord Thomas, that considerable care is given to ensure that all the requirements of justice are met. It is very rare, if ever, that I can remember a decision being arrived at which was not arrived at by consensus.”

These questions are considered, not only by the judiciary but by practitioners, including members of the solicitors’ profession and members of the Bar. Plaintiffs’ and defendants’ interests are represented on these committees, as are both ends of the profession—solicitors and barristers—and all levels of the judiciary, from the High Court bench through the circuit bench to the district bench. This is a broad-based body and, as Lord Neuberger said, these

“details should be worked out…by the rule committee”.—[Official Report, House of Lords, 10 July 2018; Vol. 792, c. 890 to 891.]

I think that that is a forceful argument for leaving the proposals as the Government intended.

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[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.

[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.

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[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.

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[Robert Neill]

It is a pleasure to follow the hon. Member for Bradford East (Imran Hussain). We have had a constructive and civilised debate on both sides. I do not agree with all his conclusions, but none the less it has been a good debate. I particularly congratulate my hon. and learned Friend the Minister on the stellar way in which she has taken the Bill through all its stages. I am sure that it will not be the last time she does that.

I support the Bill. I would have liked a bigger Bill, and I would like not to have lost the Prisons and Courts Bill in the 2017 Dissolution, but we are where we are, and this is a valuable step forward. I particularly welcome my hon. and learned Friend’s commitment to introducing further legislation. As she and the House know, this is part of the very important courts modernisation programme, particularly on the civil side, and builds on the work of Lord Briggs of Westbourne. I know that those involved in his review are most anxious that the remaining statutory underpinnings for the updating of procedure rules and other matters be introduced as a matter of urgency, and I urge her to do that as soon as the legislative timetable permits.

I think that the Bill strikes the right balance. I would take issue with the hon. Member for Bradford East over the suggestion that the judges, exercising their oath of office on the procedure rule committees, would allow themselves to be swayed by considerations of convenience or financial matters in deciding upon the appropriate scheme of delegation. There is not a shred of evidence in the history of our modern judiciary to suggest such a thing, and it does a disservice to the judiciary. We should trust the judges.

[Imran Hussain]

I want to make it absolutely clear that—as I am sure the hon. Gentleman, who is Chair of the Justice Committee, will accept—no one in the Opposition is challenging in any way, shape or form the good standing of the judiciary. The point, which has been made time and again, is that certain matters are within the remit of the procedure rule committees, but there are others that this House and the other place should have scrutiny of.

[Robert Neill]

I thank the hon. Gentleman for what he has said, and I entirely accept the intentions behind it. We will have to differ on the question where the line should be drawn between which decisions are appropriate for Parliament to decide and which are appropriate for the judiciary, but I am grateful for the sentiments that he has expressed, which I am sure have reassured us all.

I am happy to proceed on the basis of recent advice from senior judges who have been referred to in the debate and on the basis of what is in the Bill. It will make savings, and at this point perhaps I can put in a plug to the Minister. It might be appropriate, for example, to use that £6 million-plus to restore the funding for the Family Drug and Alcohol Court National Unit. I particularly regret that we have lost some of the emphasis on problem-solving courts following the loss of the Prisons and Courts Bill. Perhaps, given that we now have a unified planning court, we could also consider the Lord Flight’s suggestion in the other place for the establishment of a unified housing court.

Having made those suggestions for what might happen in future, I will end by saying that I welcome the Bill and will support it today.