Children, Schools and Families Bill

Part of Oral Answers to Questions — Defence – in the House of Commons at 7:45 pm on 11th January 2010.

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Photo of Henry Bellingham Henry Bellingham Shadow Minister (Justice) 7:45 pm, 11th January 2010

It is always a pleasure to follow Mr. Sheerman, who is an eminent Chairman of the Select Committee. I listened with great interest to what he said. He contributes a huge amount to debates on education and to Second Reading debates on education Bills.

I declare an interest as a lawyer and I shall focus on part 2 of the Bill, but I shall also say a few words about the main part of the Bill. We can of course wholeheartedly support some provisions in the Bill. For example, I support the improvement in, and widening of, the appeals system for children with special educational needs, and the idea that academies should be exempt charities. However, what the Bill reveals most starkly is the fundamental divide between the Government and the Opposition when it comes to trusting the teaching profession and professionals generally.

We trust professionals to get on with their jobs and to deliver high professional standards without the need for extremely detailed, top-down prescription. Unfortunately, the Bill is far too prescriptive, the result being that it will mean more bureaucracy and litigation, a reinforcement of the risk-averse culture, and a stifling of professional self-esteem. That very damaging approach flows through and characterises so much of the Bill. The result is that the good parts of the Bill are overshadowed by top-down micro-management.

The Government believe very firmly that Ministers and Whitehall always know best. On the other hand, my hon. Friends on the Opposition Front Bench and I take the view that the way to raise educational standards is to reduce the target culture and bureaucracy and truly trust the profession.

My starting point on part 2 of the Bill is that the rules governing family proceedings must protect children's welfare. That is why a substantial element of privacy is essential, but there is a big difference between privacy and secrecy. Privacy means allowing reasonable access and reporting while protecting the welfare and interests of children, as happens every day in the youth courts in this country. Secrecy is a totally different matter, because it means holding proceedings completely in camera.

For a number of years, there has been growing concern about the lack of transparency and openness in the family courts. It is interesting that the campaign run by The Times in the summer of 2008 was welcomed not only by the different fathers groups, which protested vigorously, but by the legal profession, which had a big input. At the time, the president of the family division, Sir Mark Potter, and a number of eminent High Court judges, said that the lack of openness and transparency was damaging the reputation and image of the family courts. Those judges knew that they were dispensing justice to a very high standard indeed, and furthermore that the vast majority of decisions being made in the family courts were correct, but unfortunately, their reputation and that of their courts were coming under pressure and being tarnished by adverse criticism by a small minority of litigants.

Sir Mark Potter addressed the proposals for more openness and transparency in a letter at the time of the campaign. He said:

"Not only would it enable the court's reasoning to be understood; it is likely to justify decisions in the eyes of the wider public. It will certainly ease the frustration felt by many judges that they cannot respond to criticism in the media based on one-sided accounts by aggrieved parents".

That was the view of Sir Mark Potter; what he said at that time, which was echoed by many other family judges, was absolutely spot on.

We had a whole series of consultation papers from the then Department for Constitutional Affairs, now the Ministry of Justice. We also had a number of other initiatives from the Government. The broad conclusion was that the obvious way to improve transparency and openness was to allow the press and public into family courts, albeit subject to appropriate reporting restrictions and, obviously, the ultimate discretion of the judge. We had a false start with the Government statement in 2007, when they said that they would not go as far as was originally suggested, which triggered the campaign by The Times. We then had the statement by the Secretary of State for Justice, in December 2008, when he announced that the media would be allowed to attend family hearings, subject to the discretion of the judge and reporting restrictions. He then announced that written judgments would be piloted.

I am slightly concerned about the two pilots-the first involves the magistrates courts in Leeds and the magistrates courts and county courts in Cardiff, the second the magistrates courts and county courts in Wolverhampton. Anonymised judgments and reasons will be placed in the public domain, which is something for which we have argued for some time. However, it is incredibly important to get the details correct and ensure a proper and comprehensive evaluation of the pilots. I am slightly concerned that the Bill is moving too quickly and that we should have a chance to conduct a proper evaluation of those pilots before moving to the next legislative stage, with the provisions in the Bill.

As I have mentioned, I broadly support most of part 2 of the Bill. However, I am concerned that many of the revisions are incredibly complex. I declared an interest as a lawyer at the start of this brief contribution, but I had to read the various clauses and the explanatory notes, as well as talk to friends at the family Bar, to get a handle on those revisions, which are very complex. I support what the Secretary of State said about the phasing and the sunset review, but the scope and effect of the revisions are, in places, most uncertain. Unfortunately, the simplicity, clarity and workability of the youth court model has not been followed or emulated in the Bill. It is interesting to read what the Newspaper Society, the Society of Editors, the Press Association, ITN and the BBC said in their recent letter to MPs:

"If journalists are not confident in the application of the rules, they may be deterred from reporting the family courts at all and the central objective of this entire project-greater public accountability and scrutiny-may be" put at risk. This is not an attempt to volunteer to serve on the Committee, but there is certainly a great deal of scope for making the provisions less complex and more easily understood.

I want to say a quick word about the default position contained in clause 32(2), which is that unless it is specifically exempted by the Bill, any publication could be in contempt of court. Surely that is the wrong way round. Surely it would be better to reverse that default judgment, so that there was a presumption in favour of all instances of such information being published, unless prohibited by the court. After all, that is exactly what will apply to the publication of orders. I see no logic in saying that the same should not apply to the publication of judgments. Perhaps the Minister could comment on that in his winding-up speech.

On the anonymity provisions, obviously it is essential that minors and certain other individuals should be subject to anonymity. However, my reading of the Bill is that it extends anonymity to all parties involved or referred to in proceedings, other than paid, professional expert witnesses. Surely automatic anonymity should be limited to the key parties, with the judge having the discretion to extend that more widely if need be. I very much hope that the Minister will look into that issue and that it might be picked up in Committee. Perhaps he could also talk to his colleagues in the Ministry of Justice about the pressure that the extra requirements of the anonymity framework are likely to put on Her Majesty's Courts Service. Will it require extra resources? What effect will that pressure have?

The Government originally said that they would not reverse Clayton v. Clayton. However, it is my understanding that the Bill will do just that. Could the Minister also comment on that in his winding-up speech?

It is vital that the concerns of the many organisations involved, such as Resolution and the Law Society, are considered and dealt with. It is important that we should get part 2 right, because it is hugely significant. We owe it to a vulnerable part of the community-the children who appear in the courts-to ensure that part 2 is well crafted and has the support of as many people as possible working in the courts.

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