Authorised court and tribunal staff: legal advice and judicial functions

Courts and Tribunals (Judiciary and Functions of Staff) Bill [Lords] – in the House of Commons at 1:58 pm on 12th December 2018.

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Photo of Yasmin Qureshi Yasmin Qureshi Shadow Minister (Justice) 1:58 pm, 12th December 2018

I beg to move amendment 1, in page 3, line 28, leave out subsection 3 and insert—

“(3) A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before Parliament and approved by a resolution of each House.”

This amendment would require that where statutory instruments delegating judicial functions to authorised persons are brought they would be subject to the affirmative procedure.

Photo of John Bercow John Bercow Speaker of the House of Commons, Chair, Speaker's Committee on the Electoral Commission, Chair, Speaker's Committee for the Independent Parliamentary Standards Authority, Chair, Commons Reference Group on Representation and Inclusion Committee

With this it will be convenient to discuss the following:

Amendment 2, in the schedule, page 6, line 36, at end insert—

“(aa) is a qualified solicitor, barrister or chartered legal executive with more than three years’ experience post-qualification, and”.

This amendment would stipulate that the minimum legal qualifications for authorised persons should be three years’ experience post-qualification.

Amendment 3, in the schedule, page 8, line 31, at end insert—

“( ) is a qualified solicitor, barrister or chartered legal executive with more than three years’ experience post-qualification, and”.

See explanatory statement to amendment 2.

Amendment 4, in the schedule, page 11, line 12, at end insert

“and if they are a qualified solicitor, barrister or chartered legal executive with more than three years’ experience post-qualification”.

See explanatory statement to amendment 2.

Amendment 5, in the schedule, page 11, line 32, leave out subsection 67C and insert—

“67C Right to judicial reconsideration of decision made by an authorised person

A party to any decision made by an authorised person in the execution of the person’s duty as an authorised person exercising a relevant judicial function, by virtue of section 67B(1), may apply in writing, within 14 days of the service of the order, to have the decision reconsidered by a judge of the relevant court within 14 days from the date of application.”

This amendment would grant people subject to a decision made under delegated powers a statutory right to judicial reconsideration.

Photo of Yasmin Qureshi Yasmin Qureshi Shadow Minister (Justice)

I rise to speak in support of amendment 1 and the other amendments. We are being encouraged to wave through this wafer-thin Bill, which is both narrowly constrained and obscurely drafted. This is a Bill that sneaks through changes that will change unconstitutional double delegation—that is, of legislative power to unaccountable judges sitting on procedure rule committees and of judicial powers to non-independent courts and tribunal staff.

Let us begin with clause 3, which delegates judicial functions to authorised staff. This provision must be understood in the context of a wider court reform agenda and the austerity measures that seek to make significant cuts. These efficiencies, generated through the proposed reforms, arise not only from the reduction in the size of the courts estate, but from savings on judicial salaries. Ultimately, the Bill seeks more justice on the cheap.

The Bill will ensure that judicial powers are delegated to non-independent courts and tribunal staff. The procedure rule committee is primarily made up of senior judges, who would ensure relatively little external public scrutiny of this delegation of judicial functions to non-judicial employees of Her Majesty’s Courts and Tribunals Service. That is a really important point.

The Bill provides that regulations under clause 3 must be made under the negative resolution procedure. In effect, this will allow new rules of court stipulating which judicial functions can be delegated and to whom, and the requisite qualifications or experience that an authorised person must have to take on these judicial functions, but, as the Bill stands, such a delegation will come into force without any real parliamentary scrutiny. In essence, by providing that the regulations in the Bill are to be made under the negative resolution procedure, the Government are avoiding proper scrutiny by a democratically mandated legislature here in this place.

Our amendment, which is supported by the Bar Council, would ensure more constitutionally appropriate accountability and scrutiny, through the affirmative resolution procedure, of these sweeping regulations. These regulations concern powers to make rules stipulating which judicial functions can be delegated and to whom, and the qualifications and experience required before a member of the administration can be given these judicial functions. Without careful scrutiny and additional safeguards, the Government’s drip-feed approach to court reform will erode some of our most fundamental institutions and our understanding of the rule of law.

Photo of John Howell John Howell Conservative, Henley

Will the hon. Lady comment on whether the qualification provision will raise the bar significantly above that in current regulations for such people and whether that will put at a disadvantage people already carrying out those functions?

Photo of Yasmin Qureshi Yasmin Qureshi Shadow Minister (Justice)

We are talking about two different things. The authorised persons are to have delegated to them many judicial functions, and it is only appropriate that they have some experience. In those circumstances, three years’ post-qualification experience is not a big ask, obligation or burden. We are asking for the minimum, and we are being very reasonable and practical about it. We are only surprised that the Government are not taking our concerns on board and changing the rules.

Photo of Jim Cunningham Jim Cunningham Labour, Coventry South

One reason we need proper scrutiny is the tendency towards rationalisation of the courts, which eventually means long waiting times—that cannot be justice for anyone waiting for a trial. There have been endless cases of this now, and it is getting worse, not better. Does my hon. Friend agree that that is not fair on the victim or the perpetrator?

Photo of Yasmin Qureshi Yasmin Qureshi Shadow Minister (Justice)

My hon. Friend is spot on. That is one of our concerns about the Government’s proposals.

We need a process that requires transparent and public scrutiny in this House of the scope of future delegated powers. The safeguards the Opposition seek on the powers created by the Bill are not unreasonable and would not interfere with the notion of reasonable delegation of non-contentious administrative functions; they simply press for further oversight and accountability.

Our amendments providing that the authorised persons must be solicitors, barristers or chartered legal executives with more than three years’ post-qualification experience have been recommended and drafted by the Law Society and are supported by the Bar Council. In other words, all the practitioners in the country are supporting and asking for these changes, and I ask the Government, even at this late stage, to consider adopting them. In the circumstance, we believe them to be the minimal ask of the Government. It is a lower qualification threshold than what is currently required of pupil supervisors, or indeed of solicitors, to supervise an office.

It is worth remembering that authorised staff are not subject to the training, experience, ethos and oaths of professional judges, and could be performing judicial functions while also—this is really important—being employed directly by HMCTS. This raises genuine questions of independence.

Photo of Kevin Hollinrake Kevin Hollinrake Conservative, Thirsk and Malton

We are talking about taxpayers’ money. Does the hon. Lady not accept that where such tasks are routine—say, straightforward case preparation—the people performing them should not need a legal qualification?

Photo of Yasmin Qureshi Yasmin Qureshi Shadow Minister (Justice)

These people will be performing judicial tasks and functions and so will need to be appropriately qualified, which is why we have tabled the amendments.

Photo of James Cartlidge James Cartlidge Conservative, South Suffolk

It is my understanding that these are mainly interlocutory functions, not actual judgments or significant judicial functions.

Photo of Yasmin Qureshi Yasmin Qureshi Shadow Minister (Justice)

No, as we understand it, although it is envisaged that some of these tasks will be procedural, others will be very important to people whose rights are affected. We might think, for example, that requests for adjournments are straightforward, but they are not. As practitioners and former practitioners will know, they can be complicated, because when a judge decides whether to grant one, they take into consideration a host of things, so it is important that the person be appropriately qualified.

We accept that the procedure rule committee will be able to iron out some of the questions about what are judicial and what are administrative functions, but the main thing is that these people will be carrying out judicial functions and deciding some difficult issues, and it is only appropriate that they be qualified and appropriately experienced.

Photo of Andrew Slaughter Andrew Slaughter Labour, Hammersmith

My hon. Friend is absolutely right. We discussed this in Committee. Interlocutory case management often has a large bearing on what happens in a case; it can alter what happens in a case and it can alter cost decisions. In their own way, such decisions are as important as purely judicial decisions. The Government’s proposal might be a false economy, so I support what she is saying.

Photo of Yasmin Qureshi Yasmin Qureshi Shadow Minister (Justice)

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.

Photo of Bob Neill Bob Neill Chair, Justice Committee

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.

Photo of Yasmin Qureshi Yasmin Qureshi Shadow Minister (Justice)

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.

Photo of Alex Chalk Alex Chalk Conservative, Cheltenham

The hon. Lady is getting perilously close to suggesting that judges will do justice when they are inside a court, but will be incapable of ensuring that justice is done when they are outside a court, on the procedure rule committees. Will she make it crystal clear that judges will always, in all circumstances, want to do justice, and can be trusted to do so?

Photo of Yasmin Qureshi Yasmin Qureshi Shadow Minister (Justice)

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.

Photo of Yasmin Qureshi Yasmin Qureshi Shadow Minister (Justice)

I have taken a number of interventions, and I will make some progress now. Otherwise we will be going round in circles on the same point.

The Bill provides for judicial functions to be delegated to authorised staff across the criminal, civil and family courts and tribunals. However, it also states that while those staff will be independent of the Lord Chancellor when carrying out the delegated functions, they will remain court staff, and will not take the judicial oath of independence. It is surely important for those who will be making any type of judicial decision to take that oath. They cannot be described as independent when they are employed by the court in which they will serve.

There might, for example, be economic pressures. The court might want to get rid of cases very quickly, within a certain period. The promotion prospects of those who are employed directly by the courts will, of course, be affected, and, unlike judges, they will not be governed by the oath of independence, the Bar rules and the Law Society rules. People who are making judicial decisions should be appropriately qualified, with the proper ethos and the proper rules that apply to solicitors and barristers, and to which members of the legal profession, such as me, must have regard.

Our amendment 5 would ensure that a party to any decision made by an authorised person exercising a relevant judicial function, or the function of a tribunal,

“may apply in writing, within 14 days of the service of the order, to have the decision reconsidered by a judge of the relevant court within 14 days from the date of application.”

We will be quite happy if the Government want to increase the period to 21 days, or reduce it to fewer than 14, but we want people to have a right to judicial reconsideration of a decision made by an authorised person. We cannot understand why the Government do not want to accept the amendment.

The statutory right of reconsideration would allow any party to a decision made by an authorised person to have that decision reconsidered by a judge, as recommended by Lord Justice Briggs in his 2016 “Civil Courts Structure Review: Final Report”. The right is already provided for in, for example, tribunal procedure rules. Lord Justice Briggs said:

“The creation of an extensive right to have the decisions of Case Officers considered by a judge has from the outset been regarded as the natural safety valve for concerns about what was...described as the delegation of judicial functions to persons who are not judges”.

We are asking for a minimum safeguard. The right of reconsideration would have the benefit of freeing an authorised person from the obligation to produce detailed reasons for every decision, as would be the case if the right of appeal, for example, were created. It has the additional benefit of going further than a right of review by guaranteeing judicial oversight of a decision.

More importantly, that statutory right would ensure compliance with article 6 of the European convention on human rights, which refers to the right to a fair trial. Decisions that affect people’s rights must be made by an independent and impartial person, and that person cannot be a member of court staff or employed directly by a tribunal. We consider this to be a proportionate safeguard that would be relevant to the new powers created by the Bill, given the provision in article 6 that the determination of a person’s civil rights and obligations, or any criminal charge against them, must be undertaken by an independent and impartial tribunal established by law.

The requirement for independence would apply not only to the tribunal, but to any judge or other officer authorised by law to exercise judicial power. As the Ministry of Justice acknowledges in its human rights memorandum on the Bill,

“In considering independence...guarantees against outside pressures are relevant—as is the question whether the body presents an appearance of independence”.

In the memorandum, the MOJ suggests that it is intended that

“case management decisions which it is proposed these authorised members of staff will be able to take will be uncontentious and not of sufficient importance to engage Article 6”.

However—I say this particularly to those who have practised in law and have attended court, and my hon. Friend Andy Slaughter made the point earlier—case management decisions can have a significant impact in shaping the ultimate outcome of a case. For example, a decision on the appropriate timescales within which a party should take a step in proceedings may be significant, as failures to comply with a timescale will lead to some or all of the party’s case being struck out.

Furthermore, the Ministry of Justice’s factsheet on the delegation of functions to non-judicial staff states:

“In future, we expect that authorised staff may be able to carry out a…range of…functions” and responsibilities,

“including case management powers and some mediation roles.”

That suggests that what is envisaged is more than a delegation of purely procedural powers to authorised persons. In effect, a mediation role is almost like a judicial role, and people who have not been properly trained and are not properly qualified should not be mediating between the parties to the proceedings. Even in its own paper, the Ministry of Justice seems to expect those staff to play a much bigger role in decision making.

Labour Members strongly believe that Parliament must have a role in ensuring that the new system of delegation proposed in the Bill includes a backstop protection—the word “backstop” has been used a lot in the last few weeks—of the right to a fair trial. Our amendments have been endorsed by the Law Society, the Bar Council and the Equality and Human Rights Commission. They propose a statutory right to judicial reconsideration for any party to a judicial decision made by an authorised person or non-judge. This would afford stronger protection of the right to a fair trial, and would guarantee the independent and impartial determination required by article 6. Another of our amendments seeks to ensure that, in drawing up the rules on reconsideration, the procedure committee must consider which functions and decisions could clearly have a material impact on the substantive rights of the parties.

The safeguards we are calling for are not unreasonable; they are minimal if we understand that the provisions in this so-called “uncontroversial” Bill have the potential to profoundly impact on our justice system. But to truly understand the impact of this Bill, we have to look at it in the context of the Government’s wider austerity agenda. The double delegation of powers that the Government are intent on introducing is a slippery slope that, without proper controls, puts rights at risk. We can resist this—and we do. Without further careful scrutiny and additional safeguards, this Bill has the potential to erode long-established legal rights.

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.

Photo of Bob Neill Bob Neill Chair, Justice Committee 2:15 pm, 12th December 2018

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, 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.

Photo of James Cartlidge James Cartlidge Conservative, South Suffolk

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.

Photo of Bob Neill Bob Neill Chair, Justice Committee

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.

This is an important matter, but I hope that the House will not be lured into setting an undue restriction that, with every respect to the intentions of the hon. Member for Bolton South East, could give the impression that Parliament did not trust the independence of the judiciary, because that would certainly not be correct, or that it sought needlessly to circumscribe the way in which judges operate their courts. It is fundamental that we as party politicians—that is effectively what virtually all of us are—should not interfere in the way in which judges organise their workload and the staffing of the courts. As well as being impractical and unhelpful, that could also set an undesirable precedent in which Parliament, as well as setting the statutory framework in which judges operate, sought to delve too closely into the control of the everyday operations of an independent judiciary and court system.

Photo of Louise Haigh Louise Haigh Shadow Minister (Home Office) (Policing) 2:30 pm, 12th December 2018

I rise briefly to speak in favour of the amendments tabled by my Front-Bench colleagues. I believe that safeguards need to be in place to ensure that people are properly qualified to make decisions and particularly that contentious decisions should be reviewed by a qualified judge. I want explicitly to address concerns about how this might transpire in the family courts. Several of my hon. Friends raised the concern in Committee that the family courts could be the most affected by potential delays and the perverse consequences of the measures in the Bill.

This is particularly relevant given the recent exposure of the case of Sammy Woodhouse. I am sure that colleagues will be well aware of her case. I know that the Minister is, and I am grateful to her for meeting Sammy and me last week. Mr Speaker also welcomed Sammy to Prime Minister’s questions last week. Her bravery in putting herself forward, in risking being held in contempt of the family court and in waiving her anonymity to speak about her experiences, so that we in this place can drive change, is inspiring. We owe it to her and to the many other survivors to ensure that we drive change and ensure that what happened to her and to too many other young women and girls never happens again.

Those young women and girls were failed by the state. They were failed by our legal system, by the police, by the Crown Prosecution Service, by local authorities and by government at every level, and now they are being failed yet again by our legal system. Our entirely permissive system, which allows anyone to make an application through the family courts, means that men who have been convicted of rape—in Sammy’s case, the father of her child, Arshid Hussain, is serving a 35-year prison sentence—can apply to the courts for access or visitation rights. Sammy’s case shocked the nation, but unfortunately it was not unique. Just yesterday, I spoke to another woman who had to respond and attend court after the man who was convicted of raping her and fathering her child had applied through the family courts from prison.

This could be prevented through a simple ban on any man convicted of fathering a child through rape applying to the family courts. I know that the Government are reluctant to bring this forward, out of concern for the convicted rapist’s article 8 right to a family life, but I am afraid that that simply is not good enough. I will always defend our human rights as enshrined in the Human Rights Act 1998 and the European convention on human rights—I say this on the day of the 70th anniversary of the universal declaration of human rights—but article 8 is a qualified right and not one that should override the rights of women and children and their safety. Surely, we should be starting from the presumption that if a child has been conceived through rape, the man should have no parental rights to that child and that we should allow such rights only in exceptional circumstances, not the other way round.

When I speak to victims of rape and survivors of child sexual exploitation in situations such as Sammy’s—women who have an almost uniformly terrible experience of the family courts—their feeling is one of betrayal and despair that every day is a battle in which they have to fight for their most basic rights. They are often forced to relive their traumatic experiences and justify themselves over and over, yet they are so often told about the rights of the men who have abused them and who can now click their fingers and drag their victims back through the courts to traumatise them all over again. Women such as Sammy, who have already given evidence, spoken out in criminal trials and been to hell and back, should not then live the rest of their lives trying to bring their children up in horrendously difficult circumstances with the threat of being dragged back through the courts once again to face the man who raped them. It may be the case that no judge would allow such access in any circumstances, but it is surely intolerable for women in this situation to have to face the man in court all over again, and I believe that we as a Parliament should make that crystal clear.

The family procedure rule committee met earlier this week to discuss the consequences of Sammy’s case and to consider amending practice direction 12C. I hope that the committee will be able to bring much greater clarity, but this is likely to be in relation to local authorities’ duty to notify in the case of a care order. That will not solve the problem, and I worry that, combined with the measures introduced in the Bill, it could bring greater uncertainty to the process and leave victims with even greater uncertainty and fear that their abusers might be able to weaponise the courts against them. As I have said, I am grateful to the Minister for meeting Sammy and me last week, but we were both really disappointed that the Government were not willing to take more immediate action to address this thoroughly intolerable situation. I hope that the Minister will be able to update the House on what action they have now considered and on the implications of the Bill for this important issue.

Photo of Lucy Frazer Lucy Frazer The Parliamentary Under-Secretary of State for Justice

It is an honour to take this Bill through its final stages. I should like to start by addressing some of the key points raised today by Yasmin Qureshi. She suggested that we were sneaking the Bill through the House. However, it was introduced seven months ago. Not only that, but it forms part of the Prisons and Courts Bill, which was introduced in this House in 2017 and which fell at the general election. The provisions in this Bill have been well known for some time. They have been debated in this House, and they are not being sneaked anywhere at all. The thrust of the hon. Lady’s speech was that this is a Bill about cuts, but it is certainly not. The Bill is part of our £1 billion court reform programme.

Photo of Neil O'Brien Neil O'Brien Conservative, Harborough

My hon. and learned Friend is making an important point. In 2010, this country faced its largest budget deficit since the second world war, and all that my constituents want is value for money from the Government. The measures that we are taking forward today may not be the most exciting or sexy things that we will do this House, but they are a key part of value-for-money government.

Photo of Lucy Frazer Lucy Frazer The Parliamentary Under-Secretary of State for Justice

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.

Photo of Bob Neill Bob Neill Chair, Justice Committee

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.]

Photo of Lucy Frazer Lucy Frazer The Parliamentary Under-Secretary of State for Justice

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.

Photo of Kevin Hollinrake Kevin Hollinrake Conservative, Thirsk and Malton

The Minister makes a good point about our duty to the taxpayer. Irrespective of this nation’s financial situation, we always have a responsibility to spend the taxpayers’ money wisely. As she knows, Northallerton magistrates court in my constituency will close. She has put in place some mitigation measures to help people to continue to have access to justice, but will she ensure that those measures are in place before the closure of that court?

Photo of Lucy Frazer Lucy Frazer The Parliamentary Under-Secretary of State for Justice

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.

Photo of Bob Neill Bob Neill Chair, Justice Committee

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.

Photo of Lucy Frazer Lucy Frazer The Parliamentary Under-Secretary of State for Justice

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.

Photo of Simon Hoare Simon Hoare Conservative, North Dorset

I am grateful to my hon. and learned Friend the Parliamentary Under-Secretary of State for Justice for giving way—[Laughter.] That bought us 32 seconds. I am interested in what she has said. Is she able to dilate—preferably at some considerable length—on the benefits that might accrue from people not having to go to court in rural areas, such as North Dorset, where public transport is scarce and where not everybody has access to a motor car? The changes could be of huge benefit to large, sparsely populated rural areas such as mine.

Photo of Lucy Frazer Lucy Frazer The Parliamentary Under-Secretary of State for Justice

My hon. Friend makes an important point, and I also represent a rural area. Interestingly, some of the greatest and most interesting innovations at our conference were from Australia, where the geography is an issue, and we can learn a lot from its procedures. Over recent years, 300,000 people have started engaging with our online services, which have been well received.

Photo of Simon Hoare Simon Hoare Conservative, North Dorset

I am grateful. Can we read across from what my hon. and learned Friend says that she is making strong representations to ministerial colleagues at the Department for Digital, Culture, Media and Sport, to BT and to other providers to ensure that hotspots, blackspots, notspots—call them what you will—in rural areas that are poorly served by a reliable, speedy, robust internet will be filled to allow all our citizens to access justice and make representations using technology? With the best will in the world, if the technology is not there—I know that my hon. and learned Friend knows this—people will not be able to use it.

Photo of Lucy Frazer Lucy Frazer The Parliamentary Under-Secretary of State for Justice 2:45 pm, 12th December 2018

My hon. Friend makes a second important point, which is that we cannot roll out and continue to use technology unless the technology actually works. I regularly talk to Her Majesty’s Courts and Tribunals Service and others about the importance of ensuring that the systems that we already have in place work well, so that the technology does not fail us when we are trying to hold court hearings.

Photo of Neil O'Brien Neil O'Brien Conservative, Harborough

Further to the important point made by my hon. Friend Simon Hoare about virtual and online courts and creating hassle-free access to courts for all constituents, can the Minister give us figures for the extent to which the change has helped to unclog our courts? One of the benefits of the Bill for my constituents is not just hassle-free access for them, but the fact that our courts will not be clogged up by the traffic cases and small beer that lead my constituents to wonder why serious criminals take years to be processed. Will the Minister give us some stats about the growth of virtual and online courts and what this Bill will do to those stats?

Photo of Lucy Frazer Lucy Frazer The Parliamentary Under-Secretary of State for Justice

I mentioned earlier that 300,000 people have already started engaging with our services online. They can apply for probate or divorce online, and many people are doing that. We also have our new online civil moneys claim court, which enables people to apply online and defend online. In one case in the first week after its launch, we had a settlement without people going to court at all. Technology will not only enable us to unclog our courts and get quicker hearing times, but give our constituents better access to justice because more people will be engaging with it. It will be cheaper for them to engage, and therefore more people will be able to access fairness and justice in the resolution of their claims.

I turn to the essence of the Bill and the Opposition amendments. Amendment 1 relates to clause 3(3), which provides for the use of the negative resolution procedure, which the hon. Member for Bolton South East suggested is not appropriate when dealing with the judicial functions of staff. However, the Government think that the amendment is inappropriate for several reasons. First, clause 3(3), which provides for the use of the negative resolution procedure, is not actually concerned with judicial functions. Clause 3(3) is in fact cross-referring to clause 3(2), which allows the Secretary of State to make

“consequential, transitional, transitory or saving” provisions relating to authorised staff by way of regulations.

In reality, clause 3(3) allows us to amend references in secondary legislation to, for example, justices’ clerk—a post abolished by the Bill—to authorised officer. So far, we have identified over 200 references and over 60 pieces of secondary legislation that would need amendment, and there may be more. It is a standard clause for this type of provision. We know that that is the correct reading of the measure because the power to enable staff to carry out the judicial functions that the hon. Member for Bolton South East is concerned about is actually set out in the procedural rules made by the independent rules committees. This is clear from clause 3(1), which refers not to regulations but to procedure rules. The procedure by which the procedure rules are enacted is set out not in this Bill but in other legislation, namely the Courts Act 2003, the Civil Procedure Act 1997 and the Tribunals, Courts and Enforcement Act 2007.

Amendments 2 to 4 relate to the qualifications of those undertaking advice or judicial functions under the Bill. Amendments 2 and 3 require that any staff member who gives legal advice to lay justices or judges of the family court must be legally qualified and have more than three years’ experience post-qualification. Amendment 4 requires the same qualifications for any staff carrying out judicial functions.

The Government absolutely agree it is important that those who undertake functions in our courts are suitably qualified. As my hon. Friend Robert Neill said, and as he has said on many occasions, our justice system is renowned throughout the world, and much of that is down to the experience and quality of our judiciary. Ensuring that those who work within our justice system have the right skills is fundamental to justice.

Photo of Neil O'Brien Neil O'Brien Conservative, Harborough

Members on both sides of the House would agree that we have a world-renowned judiciary. In fact, Members are profoundly nervous when we see headlines in our papers calling judges, “Enemies of the People,” which we would all disavow. These are people who, day in and day out, do things in court that could cause them to be threatened. They are taking risks on behalf of the rest of us, and it is a high-quality system. With that in mind, and given the respect in which the judiciary are held by this House, does my hon. and learned Friend agree it is important that we do not accidentally do them down in this debate? Does she agree it is not right for the shadow Attorney General to suggest, I think unintentionally, that temporary judges may be less impartial than permanent judges? All our judiciary are high quality.

Photo of Lucy Frazer Lucy Frazer The Parliamentary Under-Secretary of State for Justice

That is absolutely right. As a former barrister, I appeared regularly before experienced judges, all of whom were full of integrity, undertaking important roles.

The hon. Member for Bolton South East suggested that all judges need qualifications of some kind. Of course, we have magistrates across the country who are doing outstanding jobs in our justice system. As my hon. Friend Neil O'Brien mentions, temporary judges, just like full-time judges and judges who operate on a permanent basis, are recruited because of their expertise and skill. They are trained, and they carry out their roles as they should.

Photo of Kevin Hollinrake Kevin Hollinrake Conservative, Thirsk and Malton

My hon. and learned Friend mentioned the fine work done by magistrates. Is there any way we could relax the requirements in order to increase the number of cases that may be considered by magistrates? I understand that magistrates are the most cost-effective part of the justice system.

Photo of Lucy Frazer Lucy Frazer The Parliamentary Under-Secretary of State for Justice

Magistrates undertake a significant number of roles, and they have vital responsibilities. In fact, they deal with over 95% of all criminal cases, the majority of which are less serious criminal cases, but they are very important. I am pleased recently to have attended the Magistrates Association conference, where I met a number of magistrates who are doing vital work across the country.

Photo of James Cleverly James Cleverly Deputy Chair, Conservative Party

I declare an interest, as my wife is currently going through the process to become a magistrate. I am struck by how the role of magistrates is so little understood. There are a number of people in my professional and personal circles who might make good magistrates, but they are unaware of the process or of the importance of the role. What more could be done to highlight the significant role that magistrates play in the criminal justice system?

Photo of Lucy Frazer Lucy Frazer The Parliamentary Under-Secretary of State for Justice

I am pleased to hear that Mrs Cleverly is undertaking this important role. My hon. Friend is right that it is important, and employers do understand. The Lloyds banking group recently won an award for encouraging staff to take time off to undertake this important role, and we need to do more to encourage employers to encourage their staff to take part in this important function.

Photo of Simon Hoare Simon Hoare Conservative, North Dorset

Everything I do is short, Mr Deputy Speaker.

We are all, thank God, living longer. At some point, might there be merit in reviewing the retirement age both for our judges and our magistrates? With people taking early retirement and so on, the receptacle of wisdom should not be lost to the courts, particularly taking the point raised by my hon. Friend James Cleverly on the difficulty of finding people to fill these posts.

Photo of Lindsay Hoyle Lindsay Hoyle Deputy Speaker and Chairman of Ways and Means, Chair, Panel of Chairs, Chair, Standing Orders Committee

Order. We need to move on now. I was very generous before, but magistrates have absolutely nothing to do with the Bill, as the Minister well knows.

Photo of Lucy Frazer Lucy Frazer The Parliamentary Under-Secretary of State for Justice

I am happy to come on to the three reasons why amendments 2 to 4 cannot be accepted. First, the amendments are not necessary. The functions are already being carried out, and carried out well, by those with lesser qualifications than those sought by the hon. Member for Bolton South East. The qualification requirements for legal advisers in the magistrates court and family court are currently set out in regulations made by the Lord Chancellor, as they have been since 1979, and amendments 2 and 3 would raise the qualifications bar significantly higher than the current regulations and would rule out a large proportion of Her Majesty’s Courts and Tribunals Service staff from giving legal advice in future.

Photo of James Cartlidge James Cartlidge Conservative, South Suffolk

There are many people in the Chamber with huge legal expertise. All I can claim is spending my year off as a junior outdoor clerk, for which the only qualifications needed were a ponytail and a cockney accent, as far as I could see. From my short experience I discovered the huge number of staff who make up our courts and keep them ticking along. They might be administrative functions, but we should not be afraid of reforming our courts to give those people greater roles that help them to make more of their career.

Photo of Lucy Frazer Lucy Frazer The Parliamentary Under-Secretary of State for Justice

My hon. Friend makes an important point. Not only is it important to ensure that the qualifications match the role, but these reforms will ensure good career progression for competent and organised staff. Similarly, in relation to amendment 4, it is already the case that some staff can exercise judicial functions in almost every jurisdiction except the Crown court. The range of functions they can carry out varies enormously, as my hon. Friend Kevin Hollinrake pointed out earlier, from legally qualified legal advisers in the county court setting aside default judgments to non-legally qualified caseworkers in the lower tribunal dealing with postponement requests and issuing strikeout warnings.

Accepting amendment 4 would rule out a large proportion of those staff, who are already exercising judicial functions and who may have been doing either or both for a number of years. Such a loss of expertise would be particularly damaging and would impact on the service that Her Majesty's Courts and Tribunals Service can provide. The hon. Member for Bolton South East suggested that introducing authorised staff was damaging to justice, but I did not hear any examples of inappropriate action by any of our current staff who do not currently have those qualifications and who are already carrying out these roles.

Photo of Kevin Foster Kevin Foster Conservative, Torbay

The Minister is outlining well the position under the current regulations. Does she agree, therefore, that specifying the needed qualifications in primary legislation would be unwelcome when we already have a perfectly effective system that does not require such qualifications, which could then in future be changed by further primary legislation?

Photo of Lucy Frazer Lucy Frazer The Parliamentary Under-Secretary of State for Justice

That is the heart of the Government’s position, and it takes me neatly on to my second point. The Bill, as drafted, already ensures appropriate procedures are in place to ensure that parties are protected. Those points were clearly put by my hon. Friends the Members for Torbay (Kevin Foster) and for Bromley and Chislehurst—the Chair of the Select Committee on Justice always puts things clearly and cogently. The Bill rightly allows the relevant procedure rule committees to set the requirements relating to the necessary qualifications or experience of these staff in the future, depending on the functions they permit staff to carry out.

Photo of Kevin Hollinrake Kevin Hollinrake Conservative, Thirsk and Malton 3:00 pm, 12th December 2018

This is an important point. Will my hon. and learned Friend come on to address not only the human cost if these amendments are accepted, with the potential for people in these roles at the moment to lose those jobs, but the financial costs of making those people redundant and replacing them with qualified people?

Photo of Lucy Frazer Lucy Frazer The Parliamentary Under-Secretary of State for Justice

Yes, those are important points. A large number of people already carry out these important roles and do so very well, and we would like to retain them.

Both the judicial functions that may be carried out by staff and the accompanying qualification requirements will be set out—it is just that they will be set out in the procedure rules, which are made by way of secondary legislation and are therefore subject to parliamentary scrutiny.

Photo of Neil O'Brien Neil O'Brien Conservative, Harborough

Progressive politicians on both sides of the House believe in labour market progression; they believe people should be able to act up, do more, learn more, take their career further and earn more. By putting in primary legislation artificial demarcations that stop skilled people doing things they are capable of doing, we would be doing people down; we would be putting a limit on their aspirations. That is why we must reject these amendments.

Photo of Lucy Frazer Lucy Frazer The Parliamentary Under-Secretary of State for Justice

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.

Photo of Bob Neill Bob Neill Chair, Justice Committee

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—

Photo of Lindsay Hoyle Lindsay Hoyle Deputy Speaker and Chairman of Ways and Means, Chair, Panel of Chairs, Chair, Standing Orders Committee

Order. Minister, come on. And you have had three speeches already, Bob, you don’t need to stretch the imagination of the Chamber.

Photo of Lucy Frazer Lucy Frazer The Parliamentary Under-Secretary of State for Justice

My hon. Friend, the Chair of the Select Committee, was making an important point. The rule committees are—

Photo of Lindsay Hoyle Lindsay Hoyle Deputy Speaker and Chairman of Ways and Means, Chair, Panel of Chairs, Chair, Standing Orders Committee

Order. Some might think it is very important—[Interruption.] Order. Would the Minister like to sit down for a moment? In fairness, I am beginning to get a little frustrated with the people who were not here for all the speeches; we had no speakers in, and now everyone wants to come in with interventions. I have only got one Member now down to speak on Third Reading, so if people really want to make a contribution, they know what to do.

Photo of Lucy Frazer Lucy Frazer The Parliamentary Under-Secretary of State for Justice

I hope that more will put in to speak on this important subject. I wish to pick up on what my hon. Friend was saying, because he cited a number of speeches from the other place, where senior members of the judiciary were highlighting the appropriateness of the Government’s position. Lord Neuberger, former President of the Supreme Court, warned that these amendments would place

“a potential straitjacket on the ability to appoint the appropriate people to make appropriate decisions.”

He went on to reflect that there “will be many decisions” for which the experience set out in the amendments

“would be appropriate, but there will be others where less experience would be adequate for the decision-making.”—[Official Report, House of Lords, 10 July 2018;
Vol. 792, c. 882.]

Thirdly, I come to an important point that has not yet been mentioned in the House. The amendments would limit flexibility should new routes to legal qualifications emerge. For example, one key change that we have made in the draft regulations that we published alongside the Bill is to include fellows of the Chartered Institute of Legal Executives, or those who have passed the necessary examinations to be a CILEx fellow, among those who can give legal advice. That is a progressive step, but if we were to accept amendments 2 and 3, it would be much harder to respond to such changes in the future, as we would have to amend primary, rather than secondary, legislation.

Furthermore, a legal qualification might not be the most relevant qualification for a particular judicial function. For example, it is more helpful for a registrar in the tax tribunal to be a tax professional by background, rather than a legal professional.

The hon. Member for Bolton South East raised a number of points on independence, and I wish to start by saying that I think the judiciary, whether sitting in court or in committee, has, as my hon. Friend Alex Chalk said when he was in his place, the highest level of independence and integrity.

The hon. Lady queried, both here and in Committee, the independence of authorised staff, implying that those with a legal qualification were more likely to be independent. Under the Bill, all court and tribunal staff who are authorised to exercise judicial functions will now be independent of the Lord Chancellor when doing so, and subject only to the direction of the Lord Chief Justice or their nominee, or the Senior President of Tribunals or their delegate.

The Bill also provides, for the first time, protections from legal proceedings and costs in legal proceedings and indemnities for all authorised staff when carrying out judicial functions, which will further safeguard their independence in decision making.

Finally, amendment 5 deals with the right of reconsideration of decisions taken by authorised staff in the courts. I wish to start by acknowledging that the hon. Lady and the Opposition have listened carefully to the points made in Committee; I note there is now no amendment dealing with decisions taken by staff in the tribunals, and I welcome that.

It is right that in some circumstances a party to proceedings may wish to have the decision reconsidered, but we remain opposed to the amendment for three reasons. First, the Bill already ensures that a right of reconsideration will be available when appropriate. We believe that the independent procedure rule committees—comprised, as I and others have said, of jurisdictional experts and experienced practitioners—are best placed to decide whether such a right of further reconsideration is needed and, if so, the form that that right should take.

Indeed, the procedure rule committees in the civil and tribunals jurisdictions have already included in their respective rules a specific right to judicial reconsideration for decisions made by authorised persons in appropriate cases. For example, the magistrates courts and the family court have their own existing mechanisms for reviewing various decisions, which amendment 5 would cut across.

Secondly, the right identified by the hon. Lady is too broad, even by her own admission. In speaking to amendments in Committee, she said that

“we accept and acknowledge that one should not be able to ask for reconsideration simply because one disagrees with the decision of the authorised person;
one must have a cogent reason. There must be proper grounds for requesting a reconsideration.”—[Official Report, Courts and Tribunals (Judiciary and Functions of Staff) [Lords] Public Bill Committee, 4 December 2018;
c. 17.]

I was delighted to hear those words, because the Government have also been arguing, both here and in the other place, that a blanket right of reconsideration simply would not work in practice. Yet amendment 5 would give a party in a case an automatic right to request that any decision made by an authorised person exercising the functions of a court be reconsidered by a judge, irrespective of the merits.

Thirdly, the approach we put forward is fair and balanced. The Government listened to concerns about ensuring there were adequate safeguards in the Bill. For that reason, we moved amendments on the right of reconsideration that were accepted on Report in the other place. They effectively require the rule committee, when making rules, to allow authorised staff to exercise judicial functions to consider whether each of those functions should be subject to a right to judicial reconsideration. Where a rule committee decides against the creation of a right of reconsideration, it must inform the Lord Chancellor of its decision and the reasons for it.

The hon. Lady also referred to the Briggs report, and I would like to touch on that very briefly. The recommendations made by Lord Justice Briggs are taken from the report “Civil Courts Structure Review”, the focus of which was the courts of the civil jurisdiction. While an unqualified right of reconsideration might have been appropriate to recommend for the civil courts, given their unique way of working it would be ineffective simply to transpose this recommendation on entirely different jurisdictions.

The civil procedure rule committee has built a right of reconsideration into its rules, but this will not necessarily be appropriate for other jurisdictions. It is for each jurisdiction, with the expertise it has within the rule committee, to decide what is right.

That approach has found favour in the other place. Lord Thomas, former Lord Chief Justice and former chair of the criminal procedure rule committee, said:

“I support what the Government seek to do and urge a substantial degree of caution in respect of the proposals brought forward by the noble Baroness”— that is, Baroness Chakrabarti. He added that the Government’s approach provides the right balance:

“It gives discretion to a body that knows and has a lot of experience, but it contains that degree of explanatory accountability that will make sure that it does not do anything—even if we were to worry that it might—that goes outside a proper and just delegation”.—[Official Report, House of Lords, 16 October 2018;
Vol. 793, c. 425-26.]

The Bill strikes the right balance between ensuring appropriate safeguards and transparency of decision making, and leaving the jurisdictional rule committees the discretion to determine the most appropriate mechanism for reviewing decisions by authorised people.

Finally, I would like to respond to the very important points made by Louise Haigh. I was very pleased to meet her and Sammy Woodhouse a week or so ago. She raised issues that are outside the scope of the Bill, but none the less what Sammy went through was harrowing and the hon. Lady made some important points. As she knows, I committed to look very carefully at the issues she raised and I assure her that we are doing that.

As the hon. Lady mentioned, we have already taken some steps. We have, as she alluded to, asked the president of the family court to look at the practice directions and he has committed to doing that with the rule committee. My officials have spoken to the Association of Directors of Children’s Services about whether it is appropriate to send further guidance to councils on the circumstances in which they should apply to court not to give notice of hearings to parties, such as happened in the Sammy Woodhouse case. The Department will continue to look closely at those issues.

For all those reasons, this is an important Bill that will ensure that we can bring flexibility to our judges, deploy them in the most flexible way, use their resources where they are needed and not when they are not needed, and ensure that those who operate our court system do so effectively and fairly for the people they serve.

The Ministry of Justice is putting users of the court at the heart of our reforms and of our programme on court reform. The measures will not only save on cost—that is not the primary reason for them, although it is important—but ensure that cases go through the system fairly and well. For those reasons, I urge the hon. Lady to withdraw the amendment.

Photo of Yasmin Qureshi Yasmin Qureshi Shadow Minister (Justice)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: 2, in the schedule, page 6, line 36, at end insert—

“(aa) is a qualified solicitor, barrister or chartered legal executive with more than three years’ experience post-qualification, and”.—(Yasmin Qureshi.)

This amendment would stipulate that the minimum legal qualifications for authorised persons should be three years’ experience post-qualification.

Question put, That the amendment be made.

The House divided:

Ayes 246, Noes 308.

Division number 279 Courts and Tribunals (Judiciary and Functions of Staff) Bill [Lords] — Authorised court and tribunal staff: legal advice and judicial functions

Aye: 246 MPs

No: 308 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Question accordingly negatived.

Photo of Lindsay Hoyle Lindsay Hoyle Deputy Speaker and Chairman of Ways and Means, Chair, Panel of Chairs, Chair, Standing Orders Committee

I have now to announce the result of the deferred Division on the question relating to the Independent Parliamentary Standards Authority. The Ayes were 513 and the Noes were 13, so the Question was agreed to.

Amendment proposed: 5, in the schedule, page 11, line 32, leave out subsection 67C and insert—

“67C Right to judicial reconsideration of decision made by an authorised person

A party to any decision made by an authorised person in the execution of the person’s duty as an authorised person exercising a relevant judicial function, by virtue of section 67B(1), may apply in writing, within 14 days of the service of the order, to have the decision reconsidered by a judge of the relevant court within 14 days from the date of application.”—(Yasmin Qureshi.)

This amendment would grant people subject to a decision made under delegated powers a statutory right to judicial reconsideration.

Question put, That the amendment be made.

The House divided:

Ayes 243, Noes 312.

Division number 280 Courts and Tribunals (Judiciary and Functions of Staff) Bill [Lords] — Authorised court and tribunal staff: legal advice and judicial functions

Aye: 243 MPs

No: 312 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Question accordingly negatived.

Photo of Rosie Winterton Rosie Winterton Deputy Speaker (Second Deputy Chairman of Ways and Means)

Consideration completed. I will now suspend the House for no more than 5 minutes in order to make a decision about certification. The Division bells will be rung two minutes before the House resumes. Following my certification, the Government will table the appropriate consent motion, copies of which will be made available in the Vote Office and will be distributed by Doorkeepers.

Sitting suspended.

On resuming—

Photo of Rosie Winterton Rosie Winterton Deputy Speaker (Second Deputy Chairman of Ways and Means) 3:50 pm, 12th December 2018

I can now inform the House that I have completed certification of the Bill, as required by the Standing Order. I have confirmed the view expressed in Mr Speaker’s provisional certificate issued earlier today. Copies of my final certificate will be made available in the Vote Office and on the parliamentary website.

Under Standing Order No. 83M, a consent motion is therefore required for the Bill to proceed. Copies of the motion are available in the Vote Office and on the parliamentary website, and have been made available to Members in the Chamber. Does the Minister intend to move the consent motion?

Photo of Lucy Frazer Lucy Frazer The Parliamentary Under-Secretary of State for Justice

indicated assent.

The House forthwith resolved itself into the Legislative Grand Committee (England and Wales) (Standing Order No. 83M).

[Dame Rosie Winterton in the Chair]

Photo of David Linden David Linden SNP Whip 3:51 pm, 12th December 2018

I beg to move, That the Committee sit in private.

Photo of Rosie Winterton Rosie Winterton Deputy Speaker (Second Deputy Chairman of Ways and Means)

I am afraid I cannot accept that motion because the hon. Gentleman is not a member of the Committee.

Photo of David Linden David Linden SNP Whip

On a point of order, Dame Rosie. I am grateful for your indulgence. Can you clarify that the reason why I cannot move that motion is that I represent a constituency in Scotland, and am rendered a second-class Member of the House by the legislative apartheid that is English votes for English laws?

Photo of Rosie Winterton Rosie Winterton Deputy Speaker (Second Deputy Chairman of Ways and Means)

The point is that the Legislative Grand Committee represents Members of Parliament from England and Wales. In no way does that imply that the hon. Gentleman is second-class.

I remind hon. Members that if there is a Division, only Members representing constituencies in England and Wales may vote.

Resolved,

That the Committee consents to Clause 2 of the Courts and Tribunals (Judiciary and Functions of Staff) Bill [Lords] as amended in the public bill committee.—(Lucy Frazer.)

The occupant of the Chair left the Chair to report the decision of the Committee (Standing Order No. 83M(6)).

The Deputy Speaker resumed the Chair; decision reported.

Photo of David Linden David Linden SNP Whip

On a point of order, Madam Deputy Speaker. Before we return from the Legislative Grand Committee, my understanding is that, as a Member representing a Scottish constituency, while I may not be able to move a motion, I can contribute verbally. Is that correct?

Photo of Rosie Winterton Rosie Winterton Deputy Speaker (Second Deputy Chairman of Ways and Means)

I am afraid that the hon. Gentleman has rather missed his chance.

Photo of David Linden David Linden SNP Whip

I stood to catch your eye.

Photo of Lucy Frazer Lucy Frazer The Parliamentary Under-Secretary of State for Justice 3:54 pm, 12th December 2018

I beg to move, That the Bill be now read the Third time.

This is a small and technical Bill, but it is a key component of our £1 billion programme of reform that will see our courts and tribunals modernised for the 21st century and, importantly, make access to justice quicker and easier for all. It is also the first step in the legislation that will underpin these reforms, as we will introduce further courts legislation as soon as parliamentary time allows.

The judicial measures in the Bill will enable greater flexibility in the deployment of judges. They will allow the senior judiciary to respond more effectively to changes in demand and to make better use of the skills and experience of the existing cohort of judges. This Bill will free up judges from the most routine tasks by enabling appropriately qualified and experienced staff in courts and tribunals to carry out a wider range of judicial functions than they can at present. Through these measures, the Bill will improve the overall effectiveness and efficiency of courts and tribunals and, importantly, it will reduce delays. This will ensure that we deliver a speedier resolution of matters, which is important in benefiting those who use our courts and tribunals system.

As I have said, this is a short Bill, so I will be brief, but I would not want to finish without thanking Yasmin Qureshi and other Members of this House for the constructive way in which they have engaged on these issues. I pay tribute to the noble and learned Lord Thomas, the former Lord Chief Justice, and the noble and learned Lord Neuberger, the former President of the Supreme Court—they have been widely quoted in this House—for their wise counsel in the other place and for sharing their expertise on how the measures in the Bill will operate in practice.

I thank the Clerks and other parliamentary staff for helping the proceedings on the Bill to run so smoothly, and I extend my thanks to our hard-working Bill team, our private offices, our Parliamentary Private Secretaries and the Whips. It has been an honour to take the Bill through the House, and I look forward to seeing the important measures it contains being implemented in the coming months. On that basis, I commend the Bill to the House.

Photo of Imran Hussain Imran Hussain Shadow Minister (Justice) 3:56 pm, 12th December 2018

I, too, thank all hon. Members who have participated in the proceedings on the Bill today and throughout its passage for the considered and learned contributions they have made. I also thank the Public Bill Office, as well as organisations such as the Law Society, the Bar Council and Justice for the expertise and support that they have provided throughout these proceedings.

From the outset, we have made clear our reservations about the measures contained in the Bill: the fact that there is no proper parliamentary scrutiny of the delegation of powers to non-judicial staff; the fact that there are no minimum qualifications and experience for staff to whom powers are delegated; and the fact that there is no statutory right to reconsideration by a judge of the decisions made by authorised staff. We have been clear that we are not opposed to the principle of reform and change to our courts system. However, we cannot support the changes in this Bill without the protections that we, the Bar Council and the Law Society, among other organisations, and legal professionals have called for. Unfortunately, on these matters, we feel that we have been ignored, and therefore we will oppose the Bill on Third Reading today.

Judges hold considerable power in our courts system. They have the power to commit individuals to prison, to detain, to repossess, to grant injunctions and to issue search orders, among many others, and it takes judges years to develop the experience and qualifications necessary to wield these powers. That is why we should not take the handling of powers given to them lightly, yet that is precisely what the Government are doing in this Bill. They are passing powers currently exercised by the judiciary to authorised court staff and, most crucially, they are doing so without sufficient scrutiny. The delegation of powers exercised by the procedure rule committees will be done under delegated legislation, with no more safeguards than using a motion under the negative procedure. This is not simply a procedural matter, as the Government have stated today, but one that has the potential to change the nature of our justice system.

Under the Bill, authorised staff will find themselves able to wield considerable power. Although some decisions might seem insignificant, no court decision is small or inconsequential. The smallest decision’s implications can reach far beyond the here and now, well into the advanced stages of a case. We can easily see authorised staff making decisions that are contested because the procedure rule committees, not Parliament, are granting them the power and functions. The Government should have accepted our amendment today to require that when statutory instruments delegating judicial functions to authorised persons are introduced, they are subject to the affirmative procedure, allowing Parliament the necessary scrutiny, but they chose not to do so.

The lack of scrutiny of delegated powers and functions is even more worrying considering the lack of qualifications and experience that the Bill requires to wield them. We rightly expect a minimum standard of our judges, and so do the public. We expect that decisions in our courts are made by those with experience and the necessary qualifications, which is why we have restrictions and a thorough vetting process for those who wish to become members of our judiciary. Justices of the peace—magistrates who do not hold a legal qualification—nevertheless have considerable life experience and are still advised by trained, experienced and qualified legal staff. The Government, however, have imposed none of these requirements of experience and qualification on authorised staff.

In the Public Bill Committee in the Lords, the Minister responsible stated that the minimum standards we sought to impose then, and sought to impose in the Public Bill Committee in this House and again earlier today, would be more restrictive than those that are currently imposed on people providing legal advice in magistrates and family courts. However, that is no excuse and there is no reason why, when authorised staff are making decisions that were previously made by trained and experienced judges, we should not be upholding a higher standard. The Government counter that the decisions being made by authorised staff will be limited and that they will not be contested, but they cannot give that guarantee here today, for even the most basic decisions—extending time for service and taking pleas—may give rise to contention.

Even if we were to provide tight restrictions in the Bill for decisions that were delegated to ensure that they were not contested, that would not alter the fact that even non-contested elements of cases require experience—a view supported by Sir Brian Leveson in his review of the efficiency of criminal proceedings. Furthermore, if staff were legally trained and qualified, they would still be without the benefit of the experience that our judges hold through their many years of service in our legal system. That is why experience is just as crucial here as qualifications, as shown by our amendments and by the support that they received from the Bar Council. There was no reason why the Government could not accept the amendments on this issue, and no reason for them not to hold authorised staff to a higher standard when they are granted the power to make decisions. Clearly, however, the Government thought otherwise of the Bar Council’s expertise.

Our final point is that the Bill fails to provide sufficient safeguards for the decisions that are made by authorised staff, with no statutory right to judicial reconsideration. Clearly, the Government have not taken heed of the warning to be vigilant when judicial powers are being exercised by non-members of the judiciary. The explanations that they have provided in their factsheets—that delegated decisions will not be contested—are insufficient, as are the safeguards provided by the procedure rule committees, which are too open to pressure to reduce the right to reconsideration to ease pressures and backlogs in the courts.

Any legal decision made in our courts must be open to review and appeal. It is a fundamental principle of the rule of law, and the decisions made by authorised staff should be no different, yet the Bill does not uphold that spirit by failing to make available a statutory right to reconsideration. In failing to provide that statutory right, the Government have undermined the expectation of the public that legal decisions will be made by a judge or can be reviewed by a judge, and they have undermined our courts and judicial system in the process.

The Bill is a poor replacement for what should have been a thorough Bill filled with real courts reform. We are disappointed that the Government have failed to take up the baton of reform and to change their punitive legal aid cuts, which have left thousands unable to exercise their right to access to justice, created barren legal aid deserts and allowed legal rights to degrade to the point where they are no longer worth the paper they are written on. They have failed to change course on a courts closure programme that forces people to travel miles, at great cost and difficulty, to get to their closest courts and uphold their rights, and they have failed to address the urgent need for protection for domestic violence victims being cross-examined and questioned in the family courts by the very same people who subjected them to the abuse.

Photo of Keith Vaz Keith Vaz Labour, Leicester East

My hon. Friend is making a powerful speech, and I agree with everything he has said. There is one other aspect that I am sure he as a constituency MP, like me and others, has faced, which is the delays experienced by our constituents in the immigration tribunal, some having to wait up to two years for a decision on whether they can bring spouses into the country. Does he agree that the Government have failed to act to clear the backlog?

Photo of Imran Hussain Imran Hussain Shadow Minister (Justice)

My right hon. Friend is a distinguished parliamentarian and, as ever, makes a really important point. It is not within the remit of the Bill—one of the problems with the Bill is that its narrow scope prevents important issues such as the one he raises from being discussed—but I absolutely agree with him.

The Bill is a shadow of what it could and should have been and fails to provide protections and safeguards on the changes the Government have introduced. It is on these grounds—the lack of protections for courts, judges and people seeking justice—that we will oppose the Bill today.

Photo of Bob Neill Bob Neill Chair, Justice Committee 4:06 pm, 12th December 2018

It is a pleasure to follow 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.

Photo of Imran Hussain Imran Hussain Shadow Minister (Justice)

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.

Photo of Bob Neill Bob Neill Chair, Justice Committee

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 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.

Photo of Andrew Slaughter Andrew Slaughter Labour, Hammersmith 4:10 pm, 12th December 2018

Let me begin by saying that it was indeed a pleasure to serve on the Bill Committee, not least because of its brevity. I think that the Minister alluded to that when she described it as a small Bill. It is a small Bill, but I am afraid it is also a rather inadequate and unsatisfactory Bill. I am not going to repeat the excellent speech made by my hon. Friend Imran Hussain, but he was absolutely right to say that there were no adequate safeguards, and that the nature of the delegation of functions has not been specified sufficiently for us to feel certain that we can support it.

As my hon. Friend observed, the most disappointing aspect of the Bill is that it represents just the shards, or the remains, of the legislation on this subject that we were promised. We hear a great deal about the—is it the £1 billion programme of investment in digitisation in the courts? However, the Bill goes nowhere towards addressing this. Nor does it deal with the oft-raised concerns of Members about how that is being funded and about funding through court closures.

Let me give one brief example. You will understand why I picked this example, Madam Deputy Speaker. This week I asked the House of Commons Library for a list of court closures since 2010. It gave me a list of 156 courts and buildings that had been closed since then, but one figure stood out. Hammersmith magistrates court accounts for nearly 20% of the entire saving that the Government have made during that time. Some courts have been sold for £1, but Hammersmith magistrates court was sold for £43 million. Perhaps the Government are rubbing their hands and saying what a valuable contribution that is to the reform agenda.

Let me make these points to the Minister, if the Minister will listen. I will wait until I have her attention.

A couple of years ago, the Minister’s predecessor, Sir Oliver Heald, called me in for a tête-à-tête and showed me a planning brief for what would happen to Hammersmith magistrates court after it was sold. Apparently, it was to become a mixed housing development. The Minister may like to know that it has now been sold to the developers of an 850-bedroom hotel, who are currently awaiting planning consent.

I would like the answers to two questions, not necessarily today but at some point. First, how much did the Minister’s Department spend on drawing up that detailed planning brief and marketing it for a purpose which has now gone completely by the board? Secondly, notwithstanding the large capital receipt, does she believe that it is fair recompense for a site on which, apparently, there is to be an 850-bedroom hotel? In fact, two will be built on one site. This shows the folly of the way in which the Government are conducting their programme of investment and disinvestment. When courts are closed, the detriment to communities is obvious, and in the case of Hammersmith magistrates court the closure did not take place for operational reasons; its purpose was purely to generate a capital receipt.

The Bill will no doubt be passed today, despite our assertive opposition to it, but we will return to more serious matters on a subsequent occasion. We must subject the Bill to further scrutiny, and the Government must present the House with proposals for legislation to deal with the serious questions of how that digitisation and so-called reform programme is or is not working, and what the cost to our community is of the loss of well-established and vital court facilities.

Photo of John Howell John Howell Conservative, Henley 4:14 pm, 12th December 2018

I spoke on Second Reading and pointed out the extent to which the courts were undergoing reform. A number of Members have commented on that today and I will not go over what I said in that earlier debate again. It is understood that we are seeing a major reform process and the work of Lord Briggs on this is well understood, but to judge the effectiveness of those reforms and this Bill we must determine whether it passes two tests. First, does it make it easier and swifter to obtain justice? Secondly, does it provide better access to justice? The Bill passes both tests.

The Bill provides better access to justice by making sure that is quicker and swifter, and achieves that by freeing up judges’ time to focus on the most pressing cases. As I said on Second Reading, when I was on the Industry and Parliament Trust course I sat with judges and was able to see their enormous workload. Anything we can do to help free that up has to be a very good thing.

I echo, too, the comments of my hon. and learned Friend the Minister on the planning and housing courts. I have sat with a judge on a planning court, and I thought it achieved a tremendous amount in bringing things together. I take particular pleasure in the work Lord Thomas has done on this, as a former Lord Chief Justice and a reforming Lord Chief Justice. He went out of his way to help reform the system and I am glad he is still doing so. The comments of Lord Neuberger have also been excellent.

I assure the Minister that I support this Bill.

Photo of Julian Knight Julian Knight Conservative, Solihull 4:17 pm, 12th December 2018

I commend my hon. Friend John Howell on his excellent speech.

It was a great pleasure to serve on this Committee. Despite the toing and froing there was also a lot of cross-party agreement in the Committee; it must be acknowledged that there was some real working together.

The Bill opens up greater flexibility and will over time open up new technologies and the ability to deploy them in order to provide better access to justice. I had a fantastic briefing from the Ministry of Justice where officials went through all the things that will go live over the next few months and years in terms of accessing justice online. I was greatly encouraged by that. I pay tribute to my hon. and learned Friend the Minister who has piloted that and is a champion of it, and who has made real headway in that regard. It will make a real difference on the ground.

The delegation of judicial functions, as my hon. Friend Robert Neill said, is a logical follow-on from the Briggs report. These changes will save £6 million. There will be greater access to justice and greater use of technology. I hope that that £6 million gets ploughed into some of the schemes my colleagues have spoken about. The Ministry of Justice does a fantastic job on what are, we must acknowledge, limited resources due to the financial situation we inherited.

I am happy to support the Bill, and full speed ahead.

Question put, That the Bill be now read the Third time.

The House divided:

Ayes 302, Noes 233.

Division number 281 Courts and Tribunals (Judiciary and Functions of Staff) Bill [Lords] — Authorised court and tribunal staff: legal advice and judicial functions

Aye: 302 MPs

No: 234 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Question accordingly agreed to.

Bill read the Third time and passed, with amendments.