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

Yasmin Qureshi Excerpts

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

[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 thank the hon. Gentleman for that helpful intervention.

Rather conveniently, the Government have left out measures that would provide a legislative framework for the increased use of online technology in the courts—their justification for closing so many courts and axing so many court staff. Indeed, we know that Her Majesty’s Courts and Tribunals Service is working at pace on the introduction of online justice services: the civil money claims service was made available to the public in April 2018 and the online divorce application procedure was rolled out nationally in May this year.

Although we would, of course, not seek to refute the fact that modern technology has undoubted benefits, we do have to ensure that it is used carefully and without generating more confusion or distress around the process. It should be about investing to improve our services; it should not be a smokescreen for cuts and closures. As such, it is only right that the effects of digitisation should be researched intensely and costed to ensure the best possible outcome. The Government have not yet confirmed that that has happened and still seem intent on this path, without considering potential concerns.

We are by no means against modernisation. We all want justice to be done in the most cost-effective manner and we all believe that the court system must meet the demands of the 21st century, but there is real concern that the Government are trying to bypass necessary legislative scrutiny in this policy area. We must see a thoroughly researched digitisation programme included in primary legislation, to ensure that written and online processes are undertaken appropriately.

The Bill is a missed opportunity. It should have included clear principles to guide the future of online court procedures and a modernisation programme that could have been fully debated in the House today. Instead, we are told that more legislation will eventually follow to encompass all that. This fragmentary approach—or what has been described by one legal commentator as a “legislative drip-feed”—is deeply unsatisfactory. In May 2018, the National Audit Office published a report that concluded that delays in the introduction of primary legislation have created a significant degree of uncertainty, and that Her Majesty’s Courts and Tribunals Service “faces a daunting challenge” in delivering the technological and cultural change needed to modernise our courts and tribunals.

Since 2010, the Government have closed literally hundreds of courts and cut thousands of vital staff. Our research suggests that 80% of the courts sold so far have on average raised little more than the average UK house price. That causes concerns about long-term damage to access to justice for civil litigants and, indeed, victims of crime. It will also have an obvious and long-lasting effect on the principle of local justice. The cuts have led to an increase in the number of people forced to represent themselves, a problem further compounded by cuts to legal aid. When unrepresented members of the public turn up to seek justice as litigants in person, it increases costs and delays for everyone. As we have said in the past, it is the most vulnerable who will bear the heaviest costs—young mothers who are unable to find childcare, the elderly who find long journeys difficult, or the disabled. The court closures will prohibitively reduce access.

Will the Government pause their programme of court closures while new technologies and online courts are being tested and wait to see the full findings of their pilots to assess the impact of the changes to our courts system? Will the Lord Chancellor commit today to restarting the programme of court reforms only once the House has finally had an opportunity to fully scrutinise the plans in primary legislation? We have concerns about the Bill as it stands and will not be supporting it today, but we will table amendments in Committee.

As we heard from the Minister, clause 3 delegates judicial functions to authorised staff. This provision must be understood through the lens of a wider austerity agenda that seeks to make significant cuts. These cuts are being made through a process of court closures and through savings on judicial salaries. Other proposals include the relocation of many case-management functions, which, as we know, currently take place in court buildings, with the benefit of on-site judicial supervision.

Our concern is that decisions would move to new off-site service centres. There is an implication that, given that off-site nature, those service centres would be supervised by authorised staff, not judges. That is deeply problematic for us, not least because we would have scenarios in which authorised staff who were not subject to the training, experience, ethos and oaths that a member of the judiciary is, would be performing direct judicial functions while being employed directly by Her Majesty’s Courts and Tribunals Service.

The issue raises obvious questions about accountability and independence. It is also worth noting concerns that the people involved may be subject to administrative pressures that require the meeting of targets. Given the ideological cuts agenda driving this reform, it is vital that the Bill makes provision for safeguards to protect the standard of decision making by authorised staff, to ensure that the quality of the judicial process and the experience of those who use the court are maintained.

Although we accept that there is some scope for freeing up judges by allowing the most straightforward decisions to be delegated to authorised staff, the intended future limits to any such delegation do not appear to be in the Bill. Instead, they are supposed to be decided by the procedure rule committee. That means that if the Bill passes in its current form, there may be limited external scrutiny of how widely judicial functions are being carried out by people who are not in fact judges, but who work for Her Majesty’s Courts and Tribunals Service.

I wonder whether the Lord Chancellor is aware of the serious implications for the rule of law and the independence of our judicial decision making. In his opening speech, he touched on the fact that our judicial legal system is considered to be one of the best in the world and is used by many countries, many companies, and many litigants; it makes up about £28 billion-worth of trade. Will that be affected by this downgrading of our judiciary? We believe that such a shift would not meet the expectations held by members of the public about the level of experience and the independence of those making judicial decisions about their rights. Unless limits are placed on those who can be authorised and on what powers can be given to those authorised persons, the Bill could change the very nature of our justice system.

[Mr Gauke]

The hon. Lady is right to raise the importance of our judiciary, but I hope that we can reach a consensus on that. Does she not recognise that the Bill has the support of the judiciary? Senior retired judges have spoken in support of it in the other place, and it has been welcomed by the senior judiciary.

[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.

[Jess Phillips (Birmingham, Yardley) (Lab)]

Does my hon. Friend share my concern about always listening to eminent legal practitioners in the Lords? I am certain that, quite recently, they have made some mistakes.

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[Yasmin Qureshi]

I thank my hon. Friend for her intervention. Those things do occur.

Let me go back to my earlier point. We believe that limits should be placed on those who can be authorised and on what powers can be given to those authorised persons. The Bill will change the very nature of our judicial system. We want a system that requires transparent and public scrutiny of the scope of future delegated powers by those in this House. That is important and I am surprised that hon. Members who are democratically elected wish to take away that element from the Bill.

We on the Labour Benches are seeking to push for a number of safeguards, the first of which places limits on the delegation of these judicial powers to non-judicial personnel. We intend to press for further oversight and accountability and will be laying down amendments to that effect. It should also be noted that the procedure rule committee has, for many years, undertaken some excellent work, but the delegation of judicial functions cannot be thought of as a simple procedural matter for a rule committee—rather, this is something worthy of secondary legislation in this House.

The reforms that the Government are seeking to introduce through the Bill are designed primarily to cut costs, but, as the Bill stands, there is a risk that the procedure rule committee will be placed in the difficult position of balancing pressures to save costs against maintaining fundamental rights. Amending the Bill so that the procedure rule committee must at least consider the impact on rights would provide important protections both for the rights of the citizen and for the integrity of the committee. We ask the Government to consider that any decision made by someone who has been delegated judicial functions should be open to a full reconsideration or review by a judge. That would guarantee that purely procedural matters could be dealt with more efficiently; if any decisions were deemed contentious, however, they could be reviewed by an experienced and appropriately qualified judge.

We also note that the Government’s late amendment in the other place obliged the procedure rule committee to consider making rules to determine which of the functions performed by authorised staff could be subject to a party’s right of reconsideration by a judge. However, that does not satisfy our concerns. Indeed, it is simply replicating the fundamental problem of the Bill. By placing the obligation on the rule committee, it delegates a legislative duty to the same unaccountable body. Consequently, we will be pushing ahead with our amendment, supported by the Law Society and the Bar Council, that proposes a statutory right to judicial reconsideration for any party to a decision by an authorised person. We will also seek to ensure that, in drawing up the rules on reconsideration, the rule committee must consider which functions and decisions will be clearly capable of having a material impact on the substantive rights of the parties. I reiterate that we respectfully disagree with the noble and learned Lords in the other place.

In the Ministry of Justice’s explanatory notes on delegation to staff, it is stated that decisions are unlikely to involve contested matters, yet this is not in the Bill. I remind the Lord Chancellor that case management decisions are essential judicial functions that should not necessarily be delegated. We need to ensure that the decisions that impact on the fairness of the process remain within the remit of the judges.

We also have concerns about the lack of minimum qualification for the authorised staff, particularly where staff are not legally qualified or sufficiently experienced to undertake such functions effectively. The Law Society has suggested that the requirements for qualification, training and experience should be set at three years’ post-qualification, as a solicitor, barrister or chartered legal executive for all types of functions, and that that approach should be consistent across all courts and tribunals. I know that the Lord Chancellor has disagreed with this, but I ask him again to agree with the Law Society’s recommendation that a minimum requirement of three years’ post-qualification as a solicitor, barrister or chartered legal executive is appropriate for court staff who are to be delegated judicial functions. Will he also provide assurances that provisions in the Bill that allow the delegation of judicial functions will only be considered where staff have appropriate legal qualifications?

A further omission from the Bill—this point has been made by Women’s Aid—is the provision prohibiting the cross-examination of victims of domestic violence that we all looked forward to in last year’s aborted Bill. The stark evidence from groups such as Women’s Aid is that this gap in the law is being used as a further means of control and abuse. We are concerned that such provisions are not now in the Bill. Will the Lord Chancellor tell us when the Government will bring this particular provision to Parliament so that we can deal with it and have a law in our statute book to bar people from cross-examining victims of domestic violence?

[Jess Phillips]

Those of us who have campaigned were expecting to see in the Bill some of the things that have been promised, such as the banning of cross-examination. Senior members of the judiciary have themselves called for that measure, but find that current legislation ties their hands. Given that it is not in this Bill, I am certain that Ministers will tell us that it will be in the domestic abuse Bill that will be brought forward. Why will women have to suffer this experience between now and whenever that legislation comes forward? Why is the provision not in this Bill?

[Yasmin Qureshi]

I thank my hon. Friend for her work on raising these issues. She is absolutely right. Why is the provision not in this Bill? It was in last year’s Bill, which was aborted because of the general election. It should not be that difficult to put it into a legislative framework.

Let me give an example of something that happened a few months ago in the family courts. Two spouses had an issue about the custody of their child. The female plaintiff had made allegations of domestic violence and sexual abuse against her husband, and it was obvious that the male respondent wanted to cross-examine her. However, the judge had to step in to ask the question on behalf of the male respondent. The case then went to the High Court, where the judge said that it was really not appropriate for members of the judiciary to have to intervene in such cases. The provision should already be on the statute book. We have talked about it for so long and it is not that difficult; it should be on the statute book as soon as possible.

To truly understand the impact of the Bill, we must look at it in the context of the Government’s wider austerity agenda. As it stands, the Bill has the potential to have a profound impact on our justice system. The double delegation of powers that the Government are intent on introducing is a slippery slope that, without proper controls, puts rights at risk. Without further careful scrutiny and additional safeguards, the Bill has the potential to erode long-established legal rights.

The amendments that Labour tabled in the other House were reasonable, sensible and practical, and we really cannot see why the Government cannot adopt and accept them. The Bill has limitations. The Government should listen to us and others who want to improve it, and accept our amendments, which have the support of the Law Society and the Bar Council, so that we protect our judicial system.