Motion to Consider
My Lords, as noble Lords may be aware, this statutory instrument is required as a consequence of the creation of the new family court and single county court. Section 17 of the Crime and Courts Act 2013—the 2013 Act—establishes a new family court and a single county court for England and Wales, both of which came into being on 22 April 2014. Since the creation of the single family court, the county court and magistrates’ courts no longer have family jurisdiction.
The 2013 Act made amendments to a large number of Acts in consequence of the creation of the family court, and further consequential amendments to primary legislation were made in an order made and laid on 12 March 2014. That order included amendments to the Legal Aid, Sentencing and Punishment of Offenders Act 2013 which enabled the provision of legal aid for advocacy in the family court. However, amendments were not made to the Access to Justice Act 1999 to include similar references to the family court; it was thought that it did not need amending as it had been repealed. This was an oversight as amendments are required to that Act. Although it was repealed by LASPO, it was saved for certain purposes and still applies to some pending cases. These amendments are required to enable the provision of legal aid for advocacy in the family court.
At the debate in Your Lordships’ House on 3 March on the order making consequential amendments to legislation to create the family court, the noble Lord, Lord Beecham, who I see in his place, brought to our attention a possible gap in the legislative provision concerning interest payable on debts resulting from orders made in the family court. The order we are debating here today makes amendments to legislation to fill that gap to allow for interest to be automatically carried on certain orders made by the family court in the same way as it would have been carried when such orders were made by a county court.
Noble Lords may recall that the independent Family Justice Review recommended the setting up of a single family court as the three-tier structure was complicated, inflexible and difficult for families and other court users to navigate. The creation of the new family court was complex. It required amendments to a large number of Acts and required an extensive package of secondary legislation. It was also part of the largest family justice reforms for a generation, with provisions contained in the Children and Families Act 2014 coming into force at the same time which firmly put children at the heart of the system.
Section 59 of the Crime and Courts Act 2013 enables the Lord Chancellor to make by order such amendments to enactments as he considers appropriate as a consequence of that Act. The amendments made in Article 3 of this order are required to enable the provision of legal aid for advocacy in the family court, in circumstances set out in secondary legislation, and to remove references to matters which will no longer be dealt with in the magistrates’ courts. The equivalent amendment to LASPO has already been made. Once this instrument has been made, we will bring forward the necessary amendments to the secondary legislation under the Access to Justice Act 1999, which will complete the process of amending legal aid legislation in consequence of the creation of the family court.
The amendments made in the rest of this order concern interest payable on judgments or orders made in the family court. I must repeat my thanks to the noble Lord, Lord Beecham, for raising this issue in a previous debate. On that occasion, I promised to write to the noble Lord, which I did after the debate. As I set out in my letter, the Government acknowledge that there is a gap in the legislation for the family court, which provisions in this order seek to close.
The current situation is that if the new family court makes an order for lump sum provision under the Matrimonial Causes Act 1973, Section 23(6) of that Act means that the court can at the same time order that the sum should carry interest. Therefore, there is some provision for interest to be made payable in the family court, but this is not automatic. To allow for interest automatically to be carried on certain orders made by the family court, in the same way as it would have been carried when such orders were made in the past by a county court, amendments are required to Section 74 of the County Courts Act 1984 and to the County Court (Interest on Judgment Debts) Order 1991.
The current provision allows for interest on financial provision orders for a spouse or child of more than £5,000 automatically to run from the date of the order where it was made in the county court. However, as the county court no longer has the power to hear family proceedings, amendments are needed to allow this to be applied in the family court. The amendments made by Articles 2 and 4 to 8 of this order achieve that end while making it clear that the provision regarding interest does not apply if another enactment provides that interest should not run. The amendments made by Articles 5, 7 and 8 also reflect the fact that there is now a single county court with national jurisdiction for England and Wales rather than a series of individual county courts.
We undertook to fill the gap identified by the noble Lord, Lord Beecham, as soon as parliamentary time allowed. The amendments required to legal aid legislation have been developed quickly to rectify an oversight. I hope that noble Lords will consider this draft order so that these gaps can be filled as soon as possible. I beg to move.
My Lords, I am glad that in just under four years’ membership of the House, I have at last been able to persuade the Government to do something. I hope that this is the start of a trend for the last 12 months of the Government’s life. I would not dissent from the Minister’s proposal in these amendments, but I feel it is necessary to reflect a little on what is happening in the family court system because some worrying factors are emerging.
I cannot now recall whether the Minister was in his place in the Chamber during that part of the debate on the Queen’s Speech in which I spoke. I have no doubt that the noble Lord, Lord Taylor, will be replying in due course to some of the points I made, but some of them were around the business of the family court and, in particular, how the court is now operating. I am not speaking so much about the geographical location aspect—although that is a factor of some concern because now we have designated courts hearing these matters as opposed to just the local magistrates’ court which previously would have dealt with matters—but more particularly of the impact of the legal aid changes.
The Minister rightly referred to the fact that there is some legal aid available but, as noble Lords might recall, there was an extensive argument about the fact that a significant number of cases would fall outside the scope of legal aid, and it would appear that that is beginning to have a significant impact in turn, as was predicted, on the number of litigants in person in family court matters. I think the figure nationally has now risen to 52%. In the north-east, 61% of people in the family court are now unrepresented. That is apparently already causing significant delays to develop. Given the particularly sensitive area in which these cases are brought—disputes in the family are necessarily sensitive—that is an extremely unwelcome development. Of course, I cannot ask the Minister today to give any assurances about that matter, but I hope that he can say that the Government will be looking at the impact in terms of delay and the administration of justice in this sensitive area and will assess the position. It seems to me that that need not wait much longer because the legal aid impact has now been perceptible for some time, as these figures demonstrate. I hope the Government will take a look at the number of cases and the length of delays that are occurring and at whether any action can be taken to put that right because without that the reorganisation of the court structure will not achieve its objectives, which were to simplify the system and to make it more accessible and more efficient. That cannot be the case if unrepresented parties are clogging the courts, requiring adjournments and requiring the court effectively to intervene to run the case, as it were, when previously the parties would have had representatives who were capable of doing that and perhaps even of negotiating properly before the matter reached the court.
Having said that, we do not object to the order as laid but hope that the matters I have referred to today, which others have raised elsewhere, can be looked at and a response ultimately given.
My Lords, I am grateful to the noble Lord, Lord Beecham, who modestly did not acknowledge his own part in one part of the changes that we are proposing by this statutory instrument. As to litigants in person and the problems that they could cause in family justice, as the noble Lord would expect, I cannot comment on particular local difficulties. I understood him to be saying that his quarrel was not so much with the structure as with the practical difficulties that could be encountered by unrepresented litigants, with possible delays that might flow from that.
The Government want to help people to reach their own agreements outside court, when that is appropriate or safe. It is the case, and always has been, that people have to attend court on occasions, and the Government are taking a number of steps to assist litigants in person. We have provided funding to, among others, the Royal Courts of Justice and the Citizens Advice Bureau to develop and expand what is known as CourtNav—an application that helps selected users to complete applications to the courts in an effective way—and to Advicenow, to update a number of its guides, as well as to the Personal Support Unit, to provide free independent assistance to people facing proceedings without legal representation in civil and family courts. The Courts Service and the Ministry of Justice have also provided easy-to-understand practical information about family mediation, making an application to court and attending hearings. This has included updating leaflets available to court users and a number of videos have been made available online. I am sure that the noble Lord would like to have a look at those videos to assess their quality.
Judicial training is being delivered to support the implementation of the new private law programme—and this is an important feature. A key focus of the training is to ensure that judges, magistrates and legal advisers are better equipped to support litigants in person through the court process. I do not pretend that judges would not on the whole prefer litigants to be competently and well represented by lawyers, but as noble Lords are aware we are operating on a restricted budget and cuts have had to be made.
As to the number of litigants in person in family proceedings, I cannot give precise figures, but there have always been litigants in person in the family justice system. It is true that Her Majesty’s Courts & Tribunals Service data show a reduction in private law children disposals where both parties were represented in October to December of 2013, compared with the same period the previous year. Although the number of litigants in person has increased since LASPO came into effect, available data show that the time that cases are taking has remained steady. In private law, the average number of weeks to disposals remains steady at 16 to 18 weeks, but the Government are monitoring the situation and continue to do so very closely. The noble Lord is right to raise the issue—it is a source of anxiety—but I reassure him and other noble Lords that the Government are well aware of potential problems and will keep a close eye on the matter.
To sum up the statutory instrument, the order provides the vires by which legal aid may be provided for advocacy in a family court. It allows the Legal Aid Agency to provide legal aid for advocacy in the small number of cases that may still be before the family court under the old Access to Justice Act 1999, and it also allows interest to be automatically carried on certain orders made by the family court in the same way as it would have been carried when such orders were made by county courts. I commend the order to the Committee.