Motion to Take Note
That this House takes note of the resourcing and staffing of the courts in supporting the rule of law.
My Lords, I draw attention to my statement of interests in the register.
I am most grateful to those who have put their names down to speak in this short debate and I look forward to their contributions. This is particularly true of the maiden speech of my noble and learned friend Lord Saville of Newdigate, who I am confident will add to the importance of the debate. Both as a barrister and as a judge, he had an outstanding and glittering career. He was responsible for transforming our arbitration law as chairman of the committee whose report led to the Arbitration Act 1996. He contributed to the peace process in Northern Ireland by the report of the second Bloody Sunday inquiry, of which he was chairman. I assure the House that I, like many of his judicial contemporaries in the law, am sad that his public duties as chairman of that inquiry meant that his opportunities to give judgments—which would undoubtedly have developed the law, both as a Law Lord and a judge of the Supreme Court—were not as great as they otherwise would have been. I am sure I am not alone in looking forward to his contribution this afternoon with the highest possible expectations.
Finally on the topic of contributions to the development of our law system, I am glad that it is possible to express my pleasure in this debate that the noble Lord, Lord Faulks, is the Minister responding on behalf of the Government. These are times of extraordinary change in the political hierarchy and it is impossible to forecast what will happen next. So, just in case the Minister’s wisdom, industry, unfailing courtesy and general contribution to the administration of justice do not produce the results for which I hope, I should like, as the most senior judge—in age—present, to record my appreciation of his contribution.
Turning to the title of this debate, it is to be noted that it refers both to resourcing and staffing the courts and to supporting the rule of law. I accept that at present, resources for the public sector have to be tightly constrained. However, this requires the Government of the day to deploy the resources that are available selectively. In particular, I suggest, they should do so in a way that will best safeguard those institutions whose activities are of significant value to the well-being of the public of this country. High among those institutions are surely those involved in providing justice. I refer of course to our courts and judiciary, and to the officials by whom they are supported. They play a critical role in preserving the rule of law and thus our unwritten constitution.
During the 60-plus years in which I have been involved with the law, the importance of protecting the administration of justice, confirmed by the Courts Act 2003, has always been recognised—and I have always thought that it would continue to be recognised—as a matter of the greatest importance. However, recently I became increasingly concerned that the situation was changing, and changing dramatically for the worse. The resources available have, year after year, been dramatically reduced, and this is resulting in an alarming picture across the system. There are isolated exceptions—for example, the situation in the new Rolls Building for commercial and financial cases. However, the generality is uniformly bleak. There can be no dispute that the whole of the courts and tribunals and the buildings and systems that the Courts Service provides need profound modernisation.
For the general picture, I refer to the admirable House of Lords Library Note prepared for this debate, which excellently summarises the picture. It makes gloomy reading, although it rightly refers to recent government statements which promise a brighter future. However, I certainly cannot provide any assurance that the promised resources will be forthcoming, and I doubt whether the Minister will be able to do so either. Only a start has been made. Naturally, as this has involved the closing of court buildings, the action taken has not attracted applause, even if it is necessary. However, I urge anyone interested in the future of justice in this country to read that note. I also refer in particular to the acceptance by the Government of the need for action to improve the situation and the assurances that have been given that something will be done, including spending vast sums of money. As to the existing position, the note repeats the statement of Her Majesty’s Courts Service in its annual report of 2015 that,
“the level of service … at a court or tribunal is at best inconsistent and, at worst, frustrating, despite the continuing great efforts of our staff and the judiciary”.
The chief executive stated on 23 September 2015 that its systems were,
“no longer good enough to support the fair administration of justice”.
Surely that is a very worrying concession.
The note also refers to the Chancellor’s Autumn Statement of November 2015, in which he indicated that the Government were making available more than £700 million to modernise and fully digitise the courts. It referred to statements by two successive Lord Chancellors and Secretaries of State for Justice recognising the need for this scale of investment to achieve more effective and efficient courts and tribunals. What better confirmation could you have that the position of the justice system is at present, alas, in a sorry state than the fact that Mr Osborne, Mr Grayling and Mr Gove are at one in promising vast sums of money in the future? But when is this largesse to arrive? What economies will be required elsewhere? If it is dependent on existing buildings being sold, does Brexit mean that the calculations have to be revised?
I have one additional citation, this one being from the Master of the Rolls in respect of possible amendments to the CPR and Practice Directions of 19 May 2016. He states:
“The proposals in this consultation paper have been drawn up in response to the major pressures facing the Court of Appeal’s Civil Division. The pressures are such that last year I took the reluctant decision to increase significantly the hear-by dates for the court, to reflect the realities of longer waiting times for hearings and for appeals to be determined.
The problems are getting worse. The volume of appeals is continuing to rise. The court’s workload has increased by 59% in the past five years. There has been no increase in judicial resources. There is already a serious backlog of cases waiting to be heard and in addition there is a significant shortfall in the amount of judicial time required to deal with the amount of work coming into the Court of Appeal each year and the amount of judicial time in fact available to deal with it. This means that the backlog is growing year by year and delays in the Court of Appeal are becoming longer and longer.
This is a matter of serious concern within the Court. Justice delayed can be justice denied”.
To underline those remarks, I would add that, as is well known, the existence of backlogs breeds further backlogs that can exhaust the energy of any legal system. However, the proposed modernisation, even though it may be late in the day, is still very welcome. I hope that it will be provided and that it will be successful. If it is, we may avoid in the future the damage to the administration of justice that is now occurring. My hopes are, however, tempered by the fact that this year is the 20th anniversary of the delivery of my report on access to justice. It was favourably received by the then Lord Chancellor, the noble and learned Lord, Lord Mackay of Clashfern, and, although the procedural reforms that I recommended were implemented, I still await the implementation of the digital reforms which were to be provided. They could transform the situation.
I now turn to an area of concern where there is a problem which, if allowed to fester, could cause irreparable damage. I refer to our continued ability to persuade sufficient of our outstanding lawyers to give up their highly successful and profitable practices to become High Court judges. To understand the extent of my concern as to this, it is important to appreciate the central role that the High Court judiciary has played in the justice system in this jurisdiction. I appreciate that my former colleagues and other lawyers are well aware of this, but others may read Hansard and there may even be present a non-lawyer or two who would be assisted if I outlined the position.
High Court judges, besides being free from corruption and almost universally of high calibre, epitomise the independence that is the hallmark of our judicial system. They set standards of professionalism which are admired around the common-law and civil-law worlds. Their role includes conducting the most difficult criminal and civil cases, including judicial review. They continue to travel to different parts of the country on different circuits. In particular, presiding judges carry a heavy administrative responsibility in relation to local justice. The Lords Justices who sit in the Court of Appeal are appointed from among their number and in due course, with rare exception, it is former Lords Justices who are appointed to the Supreme Court. Their standing explains why the number of appeals from their decisions is much lower than in most other jurisdictions. There is much more that I could say about the many other tasks performed by High Court judges, but I content myself by saying their role is pivotal to the well-being of our system.
I found it extremely gratifying when I retired as Lord Chief Justice in 2005 that in many cases, if not all, despite the loss of income involved—usually a reduction of at least 30%—lawyers of exemplary calibre were prepared to apply to become High Court judges in sufficient numbers to fill vacancies as and when they occurred. Worryingly, there are now signs that the position is changing. It is not easy to find judges to fill vacancies. If this continues, it will be extremely damaging to our justice system. Talking to senior lawyers who I would expect to be in the frame for appointment, they tell me that they have decided not to apply. They give a combination of reasons for not doing so. Among them are that the burden of work has increased to an extent that makes the job appear unattractive even when compared with being in private practice. They complain of lack of support. While in the past the judicial pension was an attraction, changes in the tax regime mean that this has ceased to be the position. For the most successful lawyers, whom it is particularly important to recruit, a—no doubt unintended —consequence of the changes made in the pension tax regime is that they can be well advised to decline the judicial pension, and this is what some have done. As the Lord Chief Justice has recently pointed out, in some cases, as an effect of tax, High Court judges’ pensions can be substantially lower than those of a district judge.
Restrictions in the availability of legal aid have also had adverse consequences for the judiciary. They have made the task of presiding in court more difficult, with the judge, while trying to preserve a position of independence, having to assist unrepresented parties and give judgment on the evidence that he himself has elicited. I detect a feeling among potential candidates for appointment that judges’ contribution to society is not valued to the extent it was in the past, although judges still compare well in comparison to politicians in the popularity stakes. I have taken the message that has been given by the Front Bench and shall come to a conclusion.
As to what to be should be done, I suggest that the next Lord Chancellor would be well advised to appoint an experienced former judge to conduct an inquiry, and take soundings on the best measures to take. It is important that such measures are taken as soon as possible, because we must not let the present position fester longer. Being a judge is still a wonderful job—
I apologise to the noble and learned Lord. There are about two minutes spare in this two-hour debate and he has just taken them up, so I am afraid that we have to go on to the next speaker.
If the noble Earl had waited one minute, I could have saved one of those minutes, as I was just about to say that I still hope that judges will be appointed from the profession to the High Court Bench.
My Lords, I apologise for missing the first minute or two of this debate, due to bad timetabling. I am grateful to the noble and learned Lord, Lord Woolf, for securing this important debate and want to start by endorsing the comments that he made about the great appreciation of all the lawyers in this House, and indeed of the whole House, for the contribution made by the Minister to proceedings involving the rule of law and to wish him well. I also look forward keenly to the long-awaited maiden speech of the noble and learned Lord, Lord Saville of Newdigate.
When the noble and learned Lord, Lord Woolf, was Lord Chief Justice, the then Prime Minister, Tony Blair, announced his intention to transfer responsibility for prisons from the Home Office to what was to become the Ministry of Justice. The noble and learned Lord, Lord Woolf, led a delegation of the senior judges, of which I was one, to Downing Street to protest against this. One of the arguments that we advanced was that, if the prisons and the courts were funded from a single budget, the courts would be impoverished because of the demands of the prisons. Confronted with the powerful advocacy of the noble and learned Lord, Lord Woolf, Mr Blair reluctantly agreed to drop the idea. However, in 2007, when I had stepped into the shoes of the noble and learned Lord, Lord Woolf, the change was made without further consultation. Whether that change is responsible for the present under-resourcing of the justice system is debatable.
A few days ago, I was listening to Peter Clarke, the prison inspector, talking of the underfunding of the Prison Service. The picture he painted was horrifying. We have 30% fewer prison officers than five years ago, yet the prison population has grown to over 85,000. Last year, there were 20,000 assaults in prison, 3,000 of them serious, and there were about 100 suicides. Part of the problem is the inability on the part of the staff to prevent psychedelic drugs being smuggled into prisons. Prisoners are often locked up all day in barbaric conditions, two to a cell designed for one, with an unscreened toilet, and that is where they have to eat because it is too dangerous to allow them to leave their cells to go to a dining hall, let alone to take part in rehabilitation.
The reality is that the public sector is starved of resources across the board. The Government have to make hard and difficult choices when deciding on priorities—a point made by the noble Lord, Lord Bird, in his thoughtful address in this morning’s debate. As the noble and learned Lord, Lord Woolf, has demonstrated, one priority ought to have been, but does not appear to have been, ensuring that the terms and conditions of service of the senior judiciary remain sufficiently generous to persuade the most able candidates to renounce the rewards of private practice in favour of the Bench. The contribution made by the comparatively small cadre of senior judges to the maintenance of the rule of law is of the highest importance, as was so clearly exemplified in the discussion yesterday in Committee on the Investigatory Powers Bill. It is these judges who have to review the legality of executive acts, including acts of Ministers. It is these judges who are responsible for the worldwide reputation of our commercial court that contributes to so much of our foreign earnings.
Looking at the picture more broadly, the public sector is in, or at least approaching, a state of crisis. Does anyone believe that, if we go on as we are, we are ever going to be able to fund a decent prison service, or a fair and universal access to justice, or a health service capable of meeting the demands that are made of it? Radical measures are called for—measures that will not win votes but are called for by good government.
As to the prisons, is it not clear that we will not be able to provide decent prison conditions unless we substantially reduce the numbers of those in prison? Only then will we be able to provide the rehabilitation that is a primary object of imprisonment. At present, 50% of prisoners reoffend—or, more accurately, are caught reoffending—within 12 months of leaving prison. For young people, the proportion is higher.
How can the Government reduce prison numbers? For a start, they could release the IPP prisoners whose incarceration has long exceeded their tariffs. More radically, they could reduce the length of sentences overall. To this the Minister may make the usual response that sentence lengths are a matter for judges. That is true to an extent, but the overall scale of sentencing is determined by legislative action that ratchets up minimum sentences—and sentences have been greatly ratcheted up over my lifetime. They are much longer than is necessary to achieve the objects of deterrence, punishment and rehabilitation.
At present, the prosecution of historic sex offences is overburdening both the criminal justice system and the prisons. Imprisonment of historic offenders does not in general serve any need of rehabilitation, nor is it much of a deterrent. Its justification is punishment. Ideally, the public would wish to try and punish those who committed offences long ago, but where resources are limited, is this something we can afford? Or should we, as do other countries, have statutory limitation of prosecution for all except the most serious offences?
Should not alcohol be more heavily taxed to prevent, or at least reduce, the abuse that fills A&E departments on Saturday nights, causes long-term damage that the National Health Service has to deal with and results in crimes of violence that kill or injure and help to fill our young offender institutes? What of the modern problems of obesity, that all can see threatens to overwhelm our health? Should manufacturers be permitted to sell the sugar-laden food—and, more particularly, addictive drinks—that are causing not only our schoolchildren so much harm?
I have wandered a little from court resources, but the point I am seeking to make is that, the greater the demands on the public pocket, the less there will be to pay for the things that really matter—and access to justice is one of those. We have a new Government and it would be nice to think that the challenges posed by Brexit will cause them to focus on the need to take urgent steps to reduce demands on the public sector, where this is possible, in order to address what really matters. Unfortunately, I am addressing a far-from-crowded House late on a Thursday afternoon and not taking up residence at No. 10 Downing Street.
I have saved, I think, two minutes, which will be welcome.
My Lords, I congratulate the noble and learned Lord, Lord Woolf, on organising and leading this debate, and the Woolf judicial quintet, who we are privileged to hear and enjoy. I also congratulate the new Lord Chancellor and Justice Secretary on her appointment and wish her a successful period in office. I hope that she will not seek to replace the Human Rights Act with a weaker British Bill of Rights. That would be a mistake. It would threaten the unity of the realm, which the new Prime Minister rightly cherishes. I hope also that the noble Lord, Lord Faulks, will continue to lie upon his bed of nails and advise the new Lord Chancellor as he advised the previous Lord Chancellor, Michael Gove, as to what should be done in that area. The new Justice Secretary faces formidable challenges, many of which are highlighted in the Motion and speech of the noble and learned Lord, Lord Woolf. We must all wish her success: justice, justice, justice may she pursue.
The present British judges are the best in the world, but the new Justice Secretary will face a serious crisis affecting the rule of law, as explained so powerfully by the noble and learned Lord, Lord Woolf. Next year around half a dozen vacancies will arise in the Supreme Court of the United Kingdom when the present incumbents reach retiring age. It is essential to fill those vacancies with judges of the right calibre and experience from all parts of the country. The previous Justice Secretary proposed the employment of a new chair of the Judicial Appointments Commission, the noble Lord, Lord Kakkar. I hope that the new Prime Minister will agree to his appointment. He will have the task of encouraging well-qualified candidates to apply to be High Court judges, and as the House has already heard, that will depend in part on the support they will have on the Bench. It is essential that there are sufficient resources to enable courts and tribunals to function effectively and to make life on the Bench attractive. When I served on the Constitution Committee and the Lord Chief Justice gave evidence, in my questioning I explained my own failure to persuade senior and experienced practitioners, women and men, to apply to be High Court judges. I tried, I tried again, and I completely failed.
The chairman of the Bar Council, Chantal-Aimée Doerries QC, has explained in her letter the Bar’s concerns about the current level of investment in the courts and the administration of justice. She accepted that judicial salaries have never been able to match the earnings of the most successful practitioners, but she went on to point out the security afforded by judicial pensions as an important incentive to attract the best-quality candidates, without whom the risk of decline in the standing and quality of the judiciary is very real, as other noble Lords have explained. In the evidence of the Lord Chief Justice to the Constitution Committee in April this year, he pointed out that a new High Court judge will have a pension materially less than that of a district judge. That will lead to a decline in the standing and quality of our judiciary, with a knock-on effect on the quality of our courts and the rule of law.
The morale of both the Bench and staff in the courts service is low. The first Judicial Attitude Survey, conducted in September 2014, had an 89% response rate. Some 65% of all judges reported that morale among court staff is poor, while 40% reported that the level of administrative support is low. The Bar Council reports that courthouses are in a state of disrepair with poor facilities in courtrooms up and down the country. The failure to invest means that many courts have not been modernised and lack modern means of communication to provide for better access to justice.
Successive Governments have treated legal aid as the Cinderella of the welfare state, an easy target for Treasury raids. Yet access to justice is as important as access to healthcare. The swingeing cuts to legal aid and the imposition of court and tribunal fees have contributed to poor working conditions and threaten the rule of law. In the civil system the number of litigants in person has rocketed, with a 30% increase in family court cases where neither party has legal representation, and in 80% of cases at least one party does not have legal representation. Litigants in person result in emotionally charged courtrooms and delayed cases, which can have a profound effect on the effectiveness of court operations and hinder access to justice.
The situation is no better in the criminal courts. In May, the Public Accounts Committee warned that the Government,
“has exhausted the scope to cut costs without pushing the system beyond breaking point”.
In some areas, even if the court makes full use of its allowance of sitting days, there are not enough judges to hear all the cases, and the Ministry of Justice has been too slow to recognise where the system is under stress and to take action to deal with it.
The investment of £738 million in the modernisation and digitising process is essential and welcome. The online dispute resolution model has great potential and wide support, but clarification is urgently needed as to whether there will be funding available for legal representation or costs recovery. Without such funding, a two-tier justice system which, like the Ritz Hotel, is open only to the rich, violates the rule of law.
The Lord Chancellor is under a statutory duty to ensure that there is an efficient and effective system to support the carrying-on of the business of the courts. The new Lord Chancellor will have to persuade the new Chancellor of the Exchequer to enable her to perform that duty. By that, she and the Government will be judged.
My Lords, it is very nearly 20 years ago that I became a Member of this House, so I perhaps owe an explanation for the delay in making my maiden speech. I have some, but not complete, excuses. I arrived here as what was then called a Lord of Appeal in Ordinary. The suffix “in Ordinary” meant that I came here as a paid regular attender at this House for the purpose of conducting, or helping to conduct, the business of what was then the Judicial Committee. As a Law Lord I took the view, rightly or wrongly, that I was a member of the judiciary, rather than of the legislature, so I did not regard it as appropriate for me to take part in the legislative business of this House.
Soon after becoming a Law Lord I was invited by Parliament to conduct the Bloody Sunday inquiry. This lasted many years, some say too many, and by the time it had finished and we had produced our report the Lords of Appeal in Ordinary, or Law Lords as they were called, had been abolished and we had become Supreme Court justices, this time disentitled by statute from taking part in the legislative business of this House. It was only when I retired from the Supreme Court and retook the Oath before this House that I was able to take part in the business of the House. It was at that juncture—sadly, some years ago —that I ran out of excuses for having failed to make a maiden speech.
I want to say in the course of this speech what I know many who have made maiden speeches in the past have also said, but which I regard as very important: to express my respect and gratitude to those who work for your Lordships. To those who guard us, those who feed us, those who run our Libraries and other facilities, and those who administer the day-to-day business of this House, I say thank you for your unfailing efficiency, courtesy, kindness and, particularly in my case, patience. This House is dependent on all these people. They have never let us down.
I became a barrister as a result of a visit to the cinema when I was about 14. A friend and I skipped away from school to watch a film called “The Franchise Affair” at the local cinema. This starred Michael Denison as a dashing young lawyer whose expertise and relentless cross-examination won the case in court for his clients, and he walked away with the girl into the sunset. I thought, “This is the life for me”. So I worked away, I got to university, I read law and I became a barrister. I remained a barrister for many years before I became a judge.
But about 25 years ago, I saw that “The Franchise Affair” was to be shown on television. I thought that I must watch it, as it was a life-changing event for me. So I did, and I then realised my mistake—Michael Denison played the part of a solicitor, not a barrister.
This debate is in my respectful view one of very great importance. We pride ourselves on being a democracy, but the very basis of a democracy is the rule of law. The rule of law is a meaningless phrase unless there is in place a proper justice system. Just as in your Lordships’ House, we are wholly dependent on the staffing of the courts to provide a proper justice system. Thus, putting aside the kind but undeserved remarks of my noble and learned friend Lord Woolf about me, I can only say that I wholly share his concerns and worries, and those expressed by others this afternoon, about our justice system.
Back in Nazi Germany in the 1930s, judges were in effect told to ignore the rule of law and instead to decide cases on what was described as the basis of the spirit of the people. We do not want to go down that road.
When I was a Law Lord some years ago, we had an insurance claim at our house. I was in London, my wife was there and she took the telephone call. It was a very civil conversation, in the course of which my wife was asked what her husband did. “He’s a Law Lord”, she said. There was a slight pause and then the conversation went on and ended very happily. But right at the end, the lady adjuster said to my wife, “Could I ask you a question?”. My wife said, “Of course”. The adjuster said, “Could you tell me exactly what does a war lord do?”. I thank your Lordships for your patience and I am glad to say that I have saved three minutes.
My Lords, it is a considerable privilege and delight to be allowed to follow my noble and learned friend Lord Saville of Newdigate, and therefore be the first to congratulate him warmly on his most witty and distinguished maiden speech, although, of course, my noble and learned friend Lord Woolf has already pre-empted me and shot some of my foxes.
As all the lawyers present will know, my noble and learned friend Lord Saville was a wholly outstanding commercial practitioner and judge, and then, as all the world knows, he was plucked from the Appellate Committee of this House and dispatched to Northern Ireland to conduct the Bloody Sunday inquiry, which effectively occupied him for the next 12 years. I confess that when I read in the Times last week that my noble and learned friend had criticised Sir John Chilcot for excessive tardiness in taking seven years to produce the Chilcot report, I checked the date to ensure that it was not 1 April. However, that is a frivolous aside. As my noble and learned friend Lord Woolf has already said, the plain fact is that, prolonged and expensive though it was in the making, the Bloody Sunday report of my noble and learned friend Lord Saville was universally hailed as a masterpiece and received with acclaim. No doubt we lost a whole series of illuminating judgments on final appeals which he would otherwise have given here and in the Supreme Court. However, let us now hope that, following today’s maiden speech, he will give us the benefit of many more valuable contributions to the business of this House.
I, too, pay tribute to the Minister, whom I am sure we all fervently hope will remain in his place. Alas, a shake of the head indicates that we are to bid him farewell. I do so with great personal regret and can only hope that his successor begins to measure up to the achievements that he has recorded in his time in this House.
I pay tribute, too, to my noble and learned friend Lord Woolf for securing this debate and introducing it compellingly, as always he does—dare I suggest that he is in serious danger of becoming a national treasure? As so often in past years, in following him in giving judgment, essentially I am concerned with echoing what he said without adding any particularly dazzling insights of my own. Today I echo most particularly his emphasis on the crucial importance of a High Court Bench with the integrity and efficiency of the whole justice system—appoint the right people to the High Court Bench and the tone is set for a fundamentally sound system. How serendipitous it is, therefore, that this debate takes place in the very week that my noble friend Lord Kakkar has been appointed as the new chairman of the Judicial Appointments Commission—how glad and grateful we are that he is undertaking this hugely important role; he happily has a really excellent judicial vice-chairman in the person of Lord Justice Ian Burnett.
When I was appointed to the High Court Bench, now more than 30 years ago, I recall Louis Blom-Cooper, an old friend and adversary, congratulating me and then adding, “Remember that the office you hold is of the very first importance, but remember too that you yourself are of none”. It was no doubt a salutary caution against “judgitis”, a condition that he perhaps suspected I should be affected by. Sounder advice, perhaps, than to be told that a High Court judge’s task is to be quick, courteous and wrong, which is not to say that the Court of Appeal’s role is to be slow, rude and right, for that would be to usurp the function of the House of Lords—now of course the Supreme Court.
Frivolities aside, as my noble and learned friend Lord Woolf has made clear—and it is I think the experience of many of us—it is becoming ever more difficult to ensure that the right people are applying to the High Court Bench, the truly outstanding candidates whose great success as practitioners ensures that they enjoy the confidence and esteem of the Bar who will be appearing before them. The charge is ever more demanding; the administrative burdens placed on judges ever heavier; the likelihood of having to deal with all the problems of litigants acting in person for want of legal aid ever greater; the pension entitlement ever reduced—indeed in some cases, non-existent, because a judge who already has his pension pot cannot afford to take a pension later because he has to pay an initial large capital sum up front. How best to combat all this?
First, as my noble friend made plain, we need to do all we can to make the judges’ professional lives as satisfying and trouble-free as possible, in the way of IT, secretarial clerking assistance and indeed such comforts as still remain out on circuit in judges’ lodgings. I recognise that the limousines, the outriders, and the trumpeters of yesteryear are indeed a thing of the past, but for heaven’s sake let us at least continue to allow judges the peace and security that they need away from home and family as they try murders and other very serious cases around the country. It is imperative that they continue to go on circuit; there is no better way of maintaining professional standards, not least advocacy standards, in the provinces and disturbing the tendency that otherwise develops of a too-cosy relationship between the local Bar and local judges.
Secondly, I would urge consideration of a return to the higher retirement age that used to apply to the judiciary. My generation were allowed to sit until we were 75; some 20 years ago this was reduced to 70. To be able to continue sitting until 75 would go some way to compensating for the loss of pension rights and without disadvantage of any kind. It may be that, 20 years ago, older judges—myself not least—would have been found wanting in relevant, technical skills but this generation has no such problems. There is real value in lengthening the span of judicial careers.
Because for some years past, Lord Chancellors have no longer been able to tap a young successful Silk on the shoulder and persuade him, at whatever great personal financial sacrifice, to accept the Bench, those nowadays applying and being appointed to the High Court Bench have been older than in past times, even though now they have to do 20 years’ service to earn a full pension. It was 15 years when I was appointed, although in fact I served for 28. The Bench, including the higher appellate court, would undoubtedly benefit from somebody staying longer in post, retaining their expertise and experience and reducing the temptation which, regrettably, now exists of retiring earlier even than 70 to establish a practice and earn a fortune as an arbitrator.
In that connection, I would add this: able and successful practitioners at the Bar should be encouraged by judges, fellow Benchers and whoever has the reputation of the justice system at heart to apply to the Bench. They should, if necessary, be gently reminded of their public duty—they have done well out of the practice of the law; surely it is time to put something back into it. Demanding and financially unenticing though a judge’s life may be, I believe it to be deeply rewarding from other standpoints. One is no longer accepting a brief and arguing a case in which one may have scant faith; one is actually advancing the cause of justice and has the satisfaction of an important job well done and still, I believe, the prestige that goes with it.
In short, judges make a huge contribution to the public weal. No effort, and very little expense, should be spared in their recruitment.
My Lords, I rise with some trepidation as the only non-lawyer to speak in this debate. I am most grateful to my noble and learned friend Lord Woolf for providing the opportunity for me to draw attention to one particular specialist aspect of the resources available to our courts. I refer to the right to interpreting services and the way in which these services are provided. I declare an interest as a vice-president of the Chartered Institute of Linguists and put on record my sincere thanks to my fellow vice-president, Professor Tim Connell, for his invaluable help with background research on this topic. I am also grateful to the National Register of Public Service Interpreters for its briefing.
The right to interpretation is currently enshrined in EU law under Article 2 of the directive of the European Parliament dated 20 October 2010. This is several clauses long, so I shall quote just the first and last to summarise the key points. Article 2 reads:
“Member states shall ensure that suspected or accused persons who do not speak or understand the language of the criminal proceedings concerned are provided, without delay, with interpretation during criminal proceedings before investigative and judicial authorities, including during police questioning, all court hearings and any necessary interim hearings”.
The article concludes:
“Interpretation provided under this Article shall be of a quality sufficient to safeguard the fairness of the proceedings, in particular by ensuring that suspected or accused persons have knowledge of the case against them and are able to exercise their right of defence”.
I know that Her Majesty’s Government regard themselves as in compliance with this directive, although in practice the service has been less than satisfactory. In 2012, the MoJ awarded the contract for court interpreting services to ALS, later Capita TI. This met with fierce controversy, with 66% of qualified interpreters refusing to work under the new system because of reduced pay rates and lack of professional recognition. The MoJ’s objective was to make savings of £18 million a year and to rationalise provision, but as an article in the Law Society Gazette pointed out, this was a false economy because of the costs of rescheduling court hearings after inadequate interpreters had led to magistrates and judges deciding they could not continue. Problems included unqualified or underqualified interpreters and people with no experience of courts or the judicial system and its language. In one case, the so-called interpreter did not know the difference between murder and manslaughter. People with the wrong language turned up: in one case, a Lithuanian interpreter arrived for a Slovakian prisoner; fortunately, they both spoke Polish so they muddled through. Often no one turned up at all because of a flawed booking system.
An investigation into the service by the National Audit Office revealed serious and systematic problems, many of which were then addressed by the Government. In fairness, this did lead to improved performance by Capita, although many, particularly the organisations representing professional interpreters, have pointed out that the performance measures used mask significant variations in quality. I am not convinced that the savings we are told have been made as a result of modifications towards the end of the Capita contract take into account the true cost of court delays, case adjournments, repeated remands in custody for offenders, and other related expenses of underperformance.
A debate in the other place in June 2013 queried the £15 million savings that had been claimed and revealed that the courts themselves had made nearly 6,500 complaints about poor interpreting standards, and that in 2012 alone 608 magistrates’ court cases and 34 Crown Court cases were recorded as ineffective because interpreters were not available. Sir James Munby, President of the Family Division, criticised Capita TI for its “lamentable” failure to provide interpreters seven times in the course of a single adoption case between 2012 and 2014, as a result of which Capita TI was ordered to pay £16,000 in costs. In another example, district judge David Taylor in Bristol had to delay a hearing twice because Capita TI was unable to supply a Polish interpreter, even though there are more than 300 of them on the national register.
The MoJ’s own statistics reported that in 2015 there were 2,100 complaints about Capita’s service, the most common of which was “no interpreter available”. I was surprised to learn from a Written Answer in April this year that the costs for rescheduling cases are not recorded, so how the MoJ is actually monitoring any target savings is beyond me.
There are other important supply and resource issues to which I would like to draw the Minister’s attention. One concerns residency, an issue that was debated in more detail earlier today in this Chamber. This is a very good case in point: 27% of interpreters on the national register are non-UK nationals. If their residency status is not preserved as part of Brexit negotiations, this could have a dramatic negative impact on the availability of court interpreters for European languages.
Another issue is security clearance, where the MoJ and the Home Office appear to be at odds. In October 2012, the MoJ stated that all interpreters used by Capita TI were security vetted up to enhanced DBS level as a minimum. But the DBS, which comes under the Home Office, has told the National Register of Public Service Interpreters that it can see “no circumstances” under which an interpreter would qualify for enhanced clearance. As freelancers, interpreters have to face the additional hurdle of not having an employer to sign off the application, so some simply give up trying to square the various security circles on clearance and leave the profession. A solution to this impasse, recommended by the national register, would be to amend the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 by adding “interpreting in the public services” to the excepted professions in Schedule 1. Will the Minister commit to looking seriously at this proposal, or urge his successor to do so?
The recent announcement that the MoJ has awarded new contracts from this autumn to a different company, thebigword, is welcome, certainly in principle, as is the fact that a separate contract is to be awarded for monitoring quality. However, I would like the Minister’s assurance that a range of factors concerned with performance, quality and standards have been fully taken on board, in particular: the exclusive use of suitably qualified interpreters; sustainable terms and conditions of employment; independent auditing of quality and performance; and statutory protection of title. I would also like an assurance from the Minister that the Brexit negotiations will ensure there is no departure from, or diminution in, the right of anybody to interpretation in the criminal justice system, as currently guaranteed under the October 2010 directive.
I respectfully congratulate the noble Baroness on her exceptionally powerful and informative speech on a problem which, when it arises in the course of the trial process, is capable of completely derailing things. I declare an interest as a practising barrister. I, too, rise with some trepidation in following a string of noble and learned Lords, some of whom I have harassed from the Bar.
One aspect of The Rule of Law identified by the late Lord Bingham in his amazing book of that name is:
“Means must be provided for resolving, without prohibitive cost or inordinate delay, bone fide civil disputes which the parties themselves are unable to resolve”.
In the context of a discussion of the Legal Aid and Advice Act 1949, Lord Bingham cited this passage in support of the general proposition that the state should ensure access to justice:
“Just as the modern State tries to protect the poorer classes against the common dangers of life, such as unemployment, disease, old age, social oppression, etc., so it should protect them when legal difficulties arise. Indeed, the case for such protection is stronger than the case for any other form of protection. The State is not responsible for the outbreak of epidemics”—
and so on—
“But the State is responsible for the law. ... It is therefore the duty of the State to make its machinery work”.
Writing in 2010, Lord Bingham expressed concern about the changes in the late 1990s that, in substance, replaced legal aid with a structure that permitted conditional fee agreements and “after the event” insurance in respect of costs liabilities, which allowed successful claimants to recover the retrospective uplifts and premiums from the unsuccessful party.
Since then, as all the lawyers in the House will know, things have changed radically. In 2013, the structure that permitted the recovery of uplifts and premiums was swept away in accordance with the recommendations in the report of Lord Justice Jackson. Over the course of the 2010 to 2015 Parliament, the Government pursued a policy aimed at decreasing the net cost of the Courts and Tribunals Service through the introduction of, and increases in, various fees and charges. In its December 2013 consultation paper, the Ministry of Justice stated:
“Providing access to justice remains the critical objective”.
However, it also stated that those using the court system would be,
“expected to meet the cost of the service where they can afford to do so, and for certain types of proceeding would be expected to contribute more than the cost”.
The last phrase is rather remarkable, because it appears to amount to a concession that, in certain circumstances, litigants would be overcharged for what the state appears to regard as a sort of commercial service.
There is an obvious tension between access to justice and the imposition of a liability to pay substantial fees on the users of courts and tribunals. The new charging regime should itself be considered in the context of the major changes to funding arrangements, which are themselves very widely regarded as impairing access to justice. How do things presently stand? May I, in the time I have left, make one or two specific points that occurred to me as I read some of the available material?
The most contentious part of the new charging regime concerns fees for applications to employment tribunals. This subject will be debated in more detail in your Lordships’ House in a few days’ time. I want to make a few observations about it now, in the belief that certain issues that arise may be illustrative—I hope they are not—of a more fundamental problem. The fee structure introduced in 2013 in relation to employment tribunals differentiates between type A and type B claims, the latter being more complex than the former. In broad terms, it costs £400 to take a type A claim to a hearing before the tribunal and £1,200 to take a type B claim there. I have not been able to find anything emanating from the ministry—I may have missed it—to tell one how these figures were arrived at or to dispel the suspicion that they may have been plucked out of the air.
Access to justice is supposedly protected by a fee remission scheme. The applicant must first complete a not entirely straightforward form and there is a two-stage test. Disposable capital of £3,000 operates as an immediate disqualification. The point has been made to the Commons Justice Committee, which reported on court and tribunal fees about a month ago, that a significant number of applicants will have been made redundant or dismissed shortly before the making of the application, and may well have received a payment which would cause them to fail the disposable capital test. A single person who is not disqualified by that test must have a gross monthly income of no more than £1,085 to obtain full remission.
What may have been the consequence of introducing this charging regime? It is clearly established, in cases where the problem is considered and elsewhere, that there has been in broad terms a 70% reduction in applications to the tribunal since the introduction of these charges. The lawfulness of the charges has been challenged in judicial review proceedings. I will say nothing more about that, because it is travelling to the Supreme Court later this year, save to note that the main reason for the dismissal of the case in the Court of Appeal was the absence of clear evidence that individual potential applicants had been unable to afford the charges. The court described the overall picture of a large reduction in the number of claims as troubling. There is a certain irony in the fact that the ministry prevailed in that litigation because of a shortage of hard evidence, in that it began a review into the introduction of charges in this field in the summer of 2015. The ministry said that the review would be completed at the end of 2015 but it has not yet published the review, so far as I know.
The Justice Committee’s report makes moderately alarming reading. It recommends a substantial reduction in the fees, among other things. In the time available, I will pick out one point which particularly struck me. The Council of Employment Judges reported that many judges now hear no money claims at all. In this context money claims are typically claims for unpaid wages, notice pay, holiday pay and so on. The sums at stake tend to be relatively small, on one view—a few hundred pounds or so—but very significant to the individual concerned who may, to borrow a phrase, be just managing and whose life may be a struggle.
Let me try to move away from the dry stuff in the MoJ paperwork about meeting the costs of the service and imagine how things might look to someone who thinks that he or she is owed a few hundred pounds by their employer. There will be no access to legal advice. Obtaining fee remission is far from straightforward, if possible at all. Filling in the form in itself will deter quite a few. In many cases, remission is not available. The claimant then faces the prospect of paying about £400 to make good a claim which might be for the same sort of sum. This is a bet at even money, so to speak. However, 40% or thereabouts of employment tribunal awards are not fully enforceable so it is a bet at even money in circumstances in which the counterparty may not pay out at all.
Then, there is the daunting prospect of appearing unrepresented before a tribunal. In these circumstances, it is entirely unsurprising that the introduction of charges is deterring potential applicants. It may in theory be the case that the applicant could afford, just, to pay the charge but in the real world the claim will not be brought. This, your Lordships may think, is not acceptable. If the Government sought to legislate to remove the right of employees to bring small money claims of this nature, there would be outrage, but these charges may be regarded as substantially impairing and in many cases effectively removing that right, through the side or back door.
I have a number of other points with which I want to vex and harass the Minister. However, I am keeping an eye on the clock and am worried about strictures from that part of the House, so I shall have to attempt that exercise outside the Chamber.
Before I sit down, I respectfully echo, from the unlearned Bar, as it were, the many tributes which have been paid to the Minister by noble and learned Lords. I am very sorry to have detected, I think, that the noble Lord may be moving on. This House will be very much the poorer; he will be the richer.
My Lords, there has been an awful lot of trepidation about, and I join in that. My trepidation is very simple: I have sat and listened to a number of speakers who have said everything I wanted to say and said it more than once, so I am faced with the dilemma of whether to sit down.
On the one hand, I have had many conversations with the Lord Chancellor’s Department when saying something once seemed to fall on chronically deaf ears, and saying it twice, three or even four times never seemed to do the trick either, which is an encouragement to me to say everything I was going to say and therefore have it repeated. On the other hand, I see old friends here, including the noble Lords, Lord Faulks and Lord Thomas of Gresford, and I know perfectly well that if they had been the seventh speaker in a line of distinguished counsel and were going to say what everybody had said before, a few years ago I might very well have said, “Lord Thomas, do we really need to hear that again?”. Torn as I am, and full of trepidation as I continue to be, I will compromise and talk about only one thing, which the presence of the noble and learned Lord, Lord Mackay of Clashfern, who has just arrived, entitles me to do. That is the position of the High Court Bench.
I was asked to go and see the noble and learned Lord, Lord Mackay, way back in 1988. When he suggested that he might recommend me for appointment to the High Court, I thought that he had paid me an astonishing compliment and that what he was in effect offering me was a considerable honour. I also remember the conversation. I am sure he does not, and I hope the House will not mind this little reminiscence, because it was an example of the noble and learned Lord at his most amazing best. As the conversation was unfolding, I muttered slightly under my breath, as there was a little problem in that I had only recently been elected leader of my circuit. That gave me pause, to which the noble and learned Lord said, with all the wisdom and humour that he is notorious for, “Mr Judge—Igor—you are not really saying, are you, that there is nobody else on your circuit who could take on the role of leader of the circuit?”. Of course I had to deny that, as my circuit was fully adorned with people able to do it, so I accepted the appointment.
The situation that applied when I was appointed and for many years after, and the sense of honour that went with appointment to the High Court, have largely disappeared, for a number of reasons, some of which have been discussed. One is that I was tapped on the shoulder. I never made an application, I did not fill out a form and I was not interviewed. Presumably the Lord Chancellor had taken account of the way I did my work and everything about me—how I had been sitting as a recorder and so on—but I never made an application.
Now, it is not the application process alone, and there are gazillions of reasons why different people from the very brightest parts of the legal profession—in which I include solicitors as well as barristers—do not come to the High Court Bench. It does not matter what the reasons are, but there are many of them. However, reinforcing what the noble and learned Lord, Lord Woolf, said earlier, I have reason to believe that not every vacancy in the High Court Bench has been filled. That is not to say that there have not been many applicants—there have—but, if we are to maintain the standards that we require, only the very best will do, and we cannot have a deterioration in the quality of the High Court Bench as a result of simply putting bottoms on judicial seats.
Pause, and add this. We are losing good—admirable—judges at High Court and Court of Appeal level not merely because they have come to the age of 70, as to which I adopt everything that the noble and learned Lord, Lord Brown, said. People are retiring before they have got to 70, before they have attained the full pension that they would be entitled to. Losing people there itself tells the story. Why on earth are people retiring? It is a fascinating job. It is a wonderful responsibility. It is not always easy, but it is a remarkable opportunity to do something yourself in exchange for the joys you have had from your profession.
We have to find 15 new High Court judges next year. Over the next three years, the best estimate that can be made is that we will need about 40. They do not grow on trees. Unless the arrangements for appointment to the High Court Bench are addressed, and urgently, and whatever may be needed is provided to attract the brightest and best, we will suffer a steady diminution in its quality.
At the risk of repetition, these are the judges who decide whether the Government or large parts of our system have been acting unlawfully or lawfully—it is the rule of law. These are the judges who the Rolls Building, the commercial court and the Chancery Division have been attracting because of the quality of justice that is offered there—in particular, the independence of the judge and his or her integrity. When I retired, the sheer import to us of wealth through having a first-class legal system was worth not far short of 3% of gross domestic product. Let us not forget also that the most sensitive and difficult of trials—of terrorist cases and profoundly troublesome murder—are tried by a jury with High Court judges.
We cannot afford any diminution, yet we cannot afford not to fill these spaces. That problem has crept up on us unseen and unnoticed, except that we now know of distinguished men and women at the Bar who will no longer apply for a job of the kind that the noble and learned Lord, Lord Mackay, offered me all those years ago. It is a problem of which the present Lord Chief Justice is acutely aware. We have a new Lord Chancellor. We have a new chairman of the Appointments Commission. I fear they will have to work very hard and urgently to resolve the difficulty.
My Lords, I regret that the balance and good humour shown by the noble and learned Lord, Lord Saville of Newdigate, in his excellent maiden speech was not available to us during the testing times when we were discussing the legality of the war in Iraq and all the legislation that followed. I look forward to hearing a great deal more from him. I express my personal regret that the noble Lord, Lord Faulks, has decided not to continue in post. I can understand why he has taken that decision.
I also congratulate the noble and learned Lord, Lord Woolf, on securing this important debate and repeat what he said: the system is in a sorry state. The noble and learned Lord, Lord Judge, reminds me of the old Stafford Assizes Court. On the wall was a plaque which recorded the longest trial in English legal history—as I recall, it was a Victorian plaque, and I think it was 17 days, which is very different from the length of trials we get today. I blame the Xerox machine. It was when the Xerox machine came in that we were swamped with paper. Today that mass of paper is scanned and digitised by any sensible advocate, but the huge amount of material now put before counsel is quite out of scale to what happened before.
“Case management” is a good phrase, but what it actually means is constant visits to criminal courts on applications that are unnecessary and, more importantly, unpaid, such as bail hearings and plea and directions hearings. In the last case I appeared in, some two years ago, there were five such hearings for matters which could easily have been resolved over the phone or by email. Most were to inquire how the CPS was getting on with the disclosure of exhibits and unused witness material. Although I was appearing there for nothing to allow my junior to make a living by appearing in other cases, very often there were counsel for the prosecution and for other defendants who had nothing to do with the case who had simply had the papers thrust into their hands by the clerk of chambers the night before.
Problems seem to have arisen with prison production delays. Where is that prison van? How much time do you have to see your client before the hearing commences? Day after day you could have an extra cup of coffee in the canteen well knowing that your client had not arrived. The noble Baroness, Lady Coussins, referred to interpreters. In the case I referred to, the Farsi interpreter was saying whatever he wanted to say rather than translating what was going on. Fortunately my junior was a Farsi speaker, so that interpreter lasted a morning before he was replaced, but a whole day was lost as a result of the freelance interpreter who had been employed in that case. Witnesses get lost. You can always guarantee that if the police go off on a motorbike, that is the end of that. You will never see them again. Jurors are always late arriving and are sometimes not there at all, particularly in London. In the criminal courts, there are computer difficulties with out-of-date equipment and grudging use of equipment such as photocopiers, particularly for defence counsel.
Another issue is social inquiry reports. In my youth, the probation officer was pretty independent and you could reckon that he would give you a fair run for your money on behalf of your client. He now seems to be giving recommendations to the court about the risk to the public of the defendant being at large, very often without even seeing the defendant. That has happened in a number of cases in which I have been involved. Risk is the primary cause why sentences have increased to the extent they have, as the noble and learned Lord, Lord Phillips of Worth Matravers, pointed out. I agree that the level of sentencing has increased beyond all recognition.
There are other problems, including court closure. I come from a rural area. Rural transport is very difficult. It seems to be assumed by the Lord Chancellor that everybody has access to a car and does not have to rely on buses that go once a day. At one time, justice was brought to the people. Magistrates’ courts in my part of the world were held anywhere. I recall appearing in Pwllheli where they had to cover-up the snooker table before the court sat. The doughty clerk of that court was Mr William Lloyd George, later archdruid of Wales, who went under the bardic title of Ap Llysor, which means “son of a solicitor”. Justice came to the people. We had five assize courts. There are now two court centres in Caernarfon and Mold. In reading the Library Note, I was amused that the House of Commons Public Accounts Committee found that in north Wales there is a seven in 10 chance that a Crown Court trial will go ahead on the date specified. The same report says that in Manchester there is only a two in 10 chance of a trial going ahead on the date specified. That is disgraceful, and it just shows the lack of proper organisation that exists at that sort of level. Given the loss of time and wages for victims, witnesses and litigants, it is not surprising that the evidence given to the House of Commons committee was that only 55% of those who had been a witness were prepared to do it again. Some of them had waited for hours, while some were not told why they had been sent home—the defendant had pleaded guilty—so they were unwilling to be witnesses ever again.
My noble friend Lord Lester has dealt with legal aid. Legal aid exhausted me at the time of the coalition Government and I do not propose to go any further on that topic.
The Rolls Building is described by the noble and learned Lord, Lord Woolf, as an exception. I do not doubt for a moment the quality of justice that goes on in that building, which advertises itself as,
“the largest specialist centre for the resolution of financial, business and property litigation anywhere in the world … A centre of excellence for high value dispute resolution”,
“31 court rooms, including 3 ‘super courts’ to handle the very largest international and national high value disputes and 4 courts configured in ‘landscape’ format for multi party cases”.
It also says that it has:
“In court facilities for parties to use their own IT, including electronic presentation of evidence and cabled broadband”.
So when I appeared there some three years ago, I thought I was going to get Rolls-Royce treatment. Far from it. My experience was that it was light years behind the Old Bailey. The equipment was not available for giving an Excel presentation; I was told, “You can’t use that cable; it belongs to someone else who came here and left it behind”. The robing room contained the cleaning staff, who were eating their sandwiches and drinking cups of tea, and the toilets were filthy. I wrote to my noble friend Lord McNally about it at the time, and I hope it has improved.
We were in the middle of a case one day and the alarm system went off. A voice said that everyone had to leave the Rolls Building. There is a circular staircase but it was cracked and we could not get down it. I saw a sign saying “Emergency exit” so I headed for it, but I was stopped by a man in uniform who said, “This is for staff only”. “I could die,” I said, “you’ve got to let me through,” but no, it was for staff only. Ultimately I found myself outside, to discover that it was only an exercise. So do not talk to me about the Rolls Building as being the centre of everything that is good.
Much has been made in this debate about the judicial system. I do not have time to go into that. All I will say is that we need strong judges to deal with government, even more at this time than perhaps at any other. Michael Gove, before he departed, commented on 23 June 2015 that,
“dedicated court staff cope with those snow drifts of paper, archaic IT systems and cumbersome processes … it astonishes businesses and individuals alike that they cannot easily file their case online”.
What a pity that he departed for different pursuits.
The House of Commons Public Accounts Committee, in its report Efficiency in the Criminal Justice System in May 2016, said:
“Central government spending on the criminal justice system has fallen by 26%”.
Where has the money gone? Into prisons. They are building one in my home town, not far from where I live. I hope the new Lord Chancellor has time to buckle down and show that she can reform and run the system efficiently at every level.
My Lords, I refer to my interests as an unpaid consultant with my former legal practice, as well as a paternal interest as my daughter is a practising barrister and sits as a part-time deputy district judge. I congratulate the noble and learned Lord, Lord Saville, on his long-awaited maiden speech. We look forward very much to hearing more from him; on the basis of what we heard today, it should be illuminating. I was saddened to learn from the Minister that he has decided not to continue as a member of the Government. We have enjoyed our exchanges over the Dispatch Box for some considerable time and he is regarded with great esteem and affection throughout your Lordships’ House. We will miss him very much indeed. We look forward to whoever takes his place emulating his knowledge, wisdom and good humour.
I also echo the thanks extended to the noble and learned Lord, Lord Woolf, by other speakers for initiating this timely and important debate on a major aspect of what appears to be an unending programme of change in our legal system. Access to justice, the foundation of the rule of law, has been and is being effectively undermined in a variety of ways, notably by the curtailment of legal aid and the ever-rising costs imposed upon those who seek justice. The noble Lord, Lord Trevethin and Oaksey, referred to this aspect, and as he said, next week we will debate a regret Motion on the latest increase in court and tribunal fees, designed to generate still more than full-cost recovery, despite the palpable impact such increases have already wrought on, for example, employment tribunal applications.
The judiciary has repeatedly voiced concerns about the problems caused by unrepresented litigants across the whole system, perhaps occasioning particular concern in the area of family law, where as we heard from the noble and learned Lord, Lord Woolf, there are unrepresented parties in 30% of cases, and perhaps even more worryingly, 22% of child contact cases are in the same category. The delays in this area are particularly reprehensible given the sensitivity of the subject matter, but they are to be found across the whole system, civil and criminal law alike.
It is of course reasonable both to seek to reduce the costs of the system and to make use of modern technology, but not at the expense of justice itself. As we have heard, the pressures engendered by government policy reach to the highest level. Lord Dyson, in the report on appeals to the Court of Appeal, which marked the end of his distinguished tenure as Master of the Rolls, referred to the almost 60% increase in workload in the last five years, which other noble Lords referred to, with the trend still rising, no increase in judicial resources, a concomitant lack of judicial time, a growing backlog and ever longer delays. As he pointed out—and the noble and learned Lord, Lord Woolf, quoted—justice delayed is justice denied.
His report suggests changes in the Civil Procedure Rules, but it is disturbing that he also reports, following discussions with the Ministry of Justice, that there is no prospect of increasing the number of judges in the court. I had thought it possible that if Mr Gove had remained in office as Lord Chancellor, he might have undergone a Damascene conversion on this issue, as he did over the suitability of his erstwhile friend Boris Johnson to be Prime Minister. Let us hope that his successor will respond constructively. However, even if that were to prove the case, there are real doubts about whether it would be possible to recruit the most able potential judges, and these doubts apparently extend through the whole system. As we have heard, salaries and pension provision appear to have had an impact on the number of suitable applications for appointment, especially to senior positions. Can the Minister enlighten us as to the position at the moment and on whether, and in what way, current policy is addressing the recruitment issue?
The chairman of the Bar Council, quoted by the noble Lord, Lord Lester, echoes the concerns expressed in relation to pensions by the Lord Chief Justice in his annual review and cites the observation by the noble and learned Lord, Lord Thomas, to the Select Committee on the Constitution in April, that a new High Court judge will receive a significantly smaller pension than that of a district judge and in general, judges of the age of 58 or over will be excluded. Do the Government not realise the disincentive that has been created by this state of affairs?
A distinguished QC of my acquaintance illustrated the current position by reference to his own experience in the Court of Appeal. He referred to delays, which Lord Dyson made much of, but also to other issues. These include inappropriate listing. For example, a family property appeal was heard and rejected by a court comprising three members, whose expertise lay entirely in the realm of commercial law, leading to a further appeal. He complains of rushed hearings, even citing instances where the judgment appears to have been written in advance of the hearing, and he expresses concern over the proposal to abandon the right to renew orally a paper application seeking permission to appeal, having himself succeeded in such an application to a single Lord Justice after the initial application was dismissed—again, without reasons.
He raised another issue, which is that of diversity, suggesting that recruiting judges, especially in the higher courts, is made more difficult by the timing and timetabling of cases, which can seriously impact on family life and commitments.
The Government make much of the opportunities to generate savings through court closures and an increasing reliance on online solutions. In respect of the former, there is continuing concern, especially in relation to the magistrates’ courts, about the difficulties occasioned to parties and witnesses where long travelling times are involved—the noble Lord, Lord Thomas, referred to that.
There are also doubts about whether conducting cases online or by video is necessarily a satisfactory alternative. The Public Accounts Committee expressed concerns on this point, noting that Governments do not have a good track record in the realm of information technology. Of course, IT has a part to play, but in relation to civil claims, there is an assumption that we are all computer-literate, whereas this is palpably not the case—and I speak as someone who is at best semi-literate in these matters. The UK Association of Part-Time Judges also refers to the cost to parties of using the internet and accessing the equipment.
The association also drew attention to the problems that might be faced in eviction cases by people on benefit unable to access IT or attend court—concerns echoed by the Law Society. If, given the absence of legal aid and an inability to pay for legal advice, people seek to conduct their own cases, the support—which is often currently available on an informal basis—will be sorely missed. Justice, in its document, What is a Court?, published in May, referred to the need for diversely skilled, trained and empathic court staff, with IT support staff providing assistance in person. It also called for a more customer-focused approach, treating court users as clients, but it warned that the reduction in staff numbers, believed to have taken place and contemplated for the future, militates against this desirable aim.
So what is the Government’s target for staffing numbers and qualifications, and what is their assessment of the capacity of the system to cope with current demand and change? How do they respond to Justice’s claim that a wide range of court users have consistently highlighted the negative impact on the system, and on their morale, of reduced staff? I hope that the noble Lord will reply to the important questions raised by the noble Baroness, Lady Coussins, about interpreters.
It seems to me, and many others, that under this Government the road to access to justice is being paved with ill-thought-out and clumsy interventions. I hope that the noble Lord’s successor will enjoy some success in persuading the new Lord Chancellor to revisit this whole area and to change the direction of government policy. I hope also that he will continue to use his influence, which ought to be significant, from the Back Benches in your Lordships’ House to ensure that what he has tried to do from the Front Bench will be realised in practice.
My Lords, I begin by thanking the noble and learned Lord, Lord Woolf, for introducing this important topic. Understandably, it has ranged over the whole field of justice, both criminal and civil, and indeed it has touched on the prison population.
It is hard to disagree with very much that has been said by all noble Lords. The new Government have a considerable task to attend to. It was a particular privilege to hear the maiden speech of the noble and learned Lord, Lord Saville. He referred to the influence of “The Franchise Affair” on his career. Of course, there has been something of a franchise affair recently in this country, causing an extraordinary revolution in who runs this country and how it is to be run.
I thought—I do not know whether noble Lords will agree—that one of the former Prime Minister’s finest moments was his response to the extraordinary and influential report on Bloody Sunday and the way in which he acknowledged the findings of the noble and learned Lord, Lord Saville, as well as the very real bridge that he was able to build with communities in Northern Ireland following that. That towering achievement of the noble and learned Lord has meant that we have been deprived of many speeches in the House of Lords and in the Supreme Court. I fear that he would have rejected many of my submissions, but I am sure that it would have been a worthwhile exchange. We hope that in future there will be a great deal more from him in this new capacity.
Much attention has been paid to the importance of high-quality judges and the rule of law. In the relatively short time that I have had the privilege to be in this position, it has become apparent to me that the rule of law and the standard of our judiciary are pivotal to our reputation here and abroad. Everywhere one goes, our judiciary’s quality, incorruptibility, intellectual ability and ability quickly to come to conclusions are praised. The rule of law not only results in earnings to lawyers but, perhaps much more importantly, makes London in particular but also the rest of the United Kingdom a centre for those who wish to bring their disputes here. It results in an enormous amount of soft power for this country, as one sees whenever one travels abroad, to have a secure rule of law which is manned by such extraordinary judges. So the noble and learned Lord is quite right to emphasise the importance of our appointing the highest-quality judges.
The challenge for any Government is to ensure that people will apply to become judges. The noble and learned Lord, Lord Judge, referred to the old days of recruitment—the tap on the shoulder, much maligned—but it brought home to potential judges the sense of public duty that I think accompanies all judges when embarking on that voyage. Now there is an application process, and it is understandable that any judge will hesitate for some considerable time before deciding whether it is a sensible step to take.
No Minister in any Government can avoid the need to deal with the financial deficit, which of course means that all public servants have had to take considerable cuts in their income at whatever level, but it is important that high-quality public services continue to be delivered. The Government work closely with the Treasury and the Senior Salaries Review Body to consider how we make best use of the pay award to continue to recruit and retain high-quality judges, and are considering what options there might be in future to mitigate some of the concerns around remuneration. I know that the cogent points that have been made about pensions will be taken on board by the Ministry of Justice. It is crucial that we attract the best possible candidates, preferably from the most diverse sources possible—I take the point that the noble Lord, Lord Beecham, made about that—so that we can continue our reputation for high quality.
The noble and learned Lord, Lord Phillips, referred to the sad state of our prisons, and he was right. That is acknowledged by the Government—certainly, the Government who until recently ruled this country—and he will know that the former Chancellor of the Exchequer promised £1.2 billion for the building of new prisons, and a considerable amount of money has been passed to the prisons to ensure that the recent and regrettable outbursts of violence can in some way be contained. The plan is to give increasing autonomy to prison governors to allow them to deliver some of the greatly needed reforms in terms of education, access to courses and all those factors which can help in rehabilitation.
It was said, quite rightly, that sentences have increased. There are a number of reasons for this. Judges, of course, pass sentences that they consider appropriate, but I entirely accept that various Acts of Parliament can sometimes tie their hands. The noble and learned Lord, Lord Phillips, mentioned the IPP prisoners, which continue to be a source of considerable anxiety. The next Secretary of State and Lord Chancellor will no doubt have to consider whether it is appropriate to exercise the power that Parliament gave them to change that release test. I cannot, of course, anticipate what the response will be.
The cost of justice continues to be high. However, the availability of legal aid remains part of a civilised society. During the course of the last Government spending on legal aid reduced from over £2 billion to £1.6 billion per annum. It remains a generous system. Clearly, following LASPO there were significant changes in the way that legal aid was made available in a number of circumstances. There will be a review of LASPO in due course, and it will be for the Government to decide whether changes need to be made to satisfy the fundamental business of government of allowing proper access to justice.
Judges and court staff have to deal very often with litigants in person, which provides a considerable challenge. However, the court service has responded well in providing assistance, both online and at court, to enable litigants in person to have a better involvement with the justice system.
The House will be aware that a prison and courts reform Bill will shortly be introduced into the House of Commons and, in due course, arrive here. It will include vast numbers of changes to the court system, both criminal and civil, and will no doubt be scrutinised carefully in both Houses of Parliament. The idea is to make justice more accessible; to remove some of the unnecessary hearings about which we have heard so much; and to ensure that there is digital access where possible—although those who are digitally compromised may have to be accommodated within the system—to spare unnecessary court hearings.
The noble Lord, Lord Thomas, makes the understandable point that there can be difficulties sometimes in getting to courts in remote areas. This has been taken into account in the court closures. The relative informality which he described in court hearings may have to take place on certain occasions, and I am sure that the courts are prepared to deal with that. Increasingly, however, there can be communication to enable court users to interact in a far less formal and expensive way. I hope it will be only in rare circumstances that there needs to be a real judge in a real court and that that can be avoided.
The noble Baroness, Lady Coussins, referred to the important requirement for there to be interpreters in appropriate cases. The current contract for language services expires at the end of October and the Ministry of Justice has been progressing a procurement exercise for new contracts over the past few months. Preferred bidders have been identified and we are in the process of finalising commercial arrangements. The comments she makes about the inadequacies of the system will be taken into account. Clearly the instances she gives are far from desirable and ought to be attended to.
The noble Lord, Lord Lester, referred to the statutory duty of the Lord Chancellor, and he is right to do so. The new Lord Chancellor, along with her many other obligations, will have to bear that in mind. It should be an axiom as she approaches her obligations and ensures that the new legislation reflects that principle.
Fees are a necessary way, of course, for the justice system to function because the Ministry of Justice is an unprotected government department. The noble Lord, Lord Trevethin and Oaksey, referred to the problem with fees in circumstances where those who wish to use tribunals may not be able to afford to do so. I cannot give a date yet for when the review is going to be published. As to fee remissions, which were in place to mitigate some of the difficulties, a new digital service is in place to help with fee remissions by making it easier for court users to claim them. He and other noble Lords may be aware of the fact that there has been a vast take-up of the use of ACAS. That has prevented many cases reaching tribunals which perhaps should not have done. But clearly if there is a real problem with access to justice in terms of getting to tribunals, that is something which ought to be attended to urgently.
The noble Lord also made a point about the way in which legal aid has been eroded. Following the Jackson report, changes have been made to the way in which CFAs and ATE premiums work. Whatever faults there may be in the justice system, I think that a great deal of what Lord Justice Jackson recommended, and which was set out in Part 2 of the LASPO Act, has in fact been extremely successful. These are early days, but the cost of litigation was excessive. It meant that insurance premiums went up and far too much litigation was concerned with making profits for lawyers and others rather than it being about real disputes and claimants who should be obtaining compensation.
As I say, the new Lord Chancellor has a huge mountain to climb. I know that she will have assistance from an extremely dedicated staff in HMTCS. She has the co-operation of the Lord Chief Justice, who has been tireless in his attempts to assist the Ministry of Justice in identifying and progressing reforms. She will have the benefit of Lord Justice Briggs’s online court proposals. The first report has been received and the final report is due shortly. All these are potentially fertile ground for improvements that can be made, and it is hoped that they will provide the sort of court service which we ought to have in this country to maintain our reputation, to ensure that the rule of law flourishes as it should, to ensure that the reputation of our Government and the Ministry of Justice can be preserved, and to ensure that we attract the best possible people to work in it.
My Lords, I need say little except to thank all noble Lords who have taken part in the debate, including the gallant noble Baroness, Lady Coussins, who has shown that you do not need to be a lawyer to be an advocate. She expressed her arguments with great care. We have also had the privilege of hearing the reply of the Minister, which was up to his normal standards and so clearly indicated why we are going to miss him.