Criminal Justice and Courts Bill

Public Bill Committee, 25 March 2014.

Clause 24 - Instituting proceedings by written charge

Roger Gale (Conservative, North Thanet)

Hon. Members may remove their jackets if they wish to freeze to death.

Shailesh Vara (Conservative, North West Cambridgeshire)

I beg to move amendment 48, in clause 24, page 23, line 23, leave out subsection (4) and insert—

‘( ) In subsection (3), for “The” substitute “Where a relevant prosecutor issues a written charge and a requisition, the”.’.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss Government amendments 49 and 50.

Shailesh Vara (Conservative, North West Cambridgeshire)

May I say what a pleasure it is again to serve under your chairmanship, Sir Roger?

We start today with part 3. Clause 24 introduces a new way of commencing proceedings by way of a written charge and single justice procedure notice. The notice will be used instead of a requisition in cases that follow the new single justice procedure. In England and Wales, criminal proceedings can be started in various ways: a prosecutor can lay information before a magistrate and then apply for a summons or arrest warrant to secure the defendant’s attendance; the accused can be charged in person by the police in the police station and then bailed to attend or detained for court; or prosecutors can issue a written charge and requisition and then serve these on the defendant, usually by post.

Clause 24 amends section 29 of the Criminal Justice Act 2003, which deals with the last of these methods: criminal proceedings being commenced by way of a written charge and requisition. The clause introduces a notice called a single justice procedure notice, which will be used instead of a requisition in cases that will follow the new single justice procedure. The key difference is that a requisition, like a summons, requires a defendant to attend court. Under the new procedure, the single justice procedure notice requires the defendant to respond in writing to the allegation. Our aim is to introduce flexibility into the process for deciding cases under this new procedure so that they are dealt with as efficiently as possible. These amendments are necessary to ensure that we have that flexibility.

Any magistrates court should be able to try cases under the single justice procedure regardless of the area in which the case originated. In order to facilitate that, amendments 48 and 49 provide that a prosecutor must serve a single justice procedure notice on a designated court officer responsible for administering the process rather than a specific court. Amendment 50 is a consequential drafting amendment resulting from these changes.

Andrew Slaughter (Labour, Hammersmith)

It is a pleasure to serve under your chairmanship this morning, Sir Roger. When I move our first amendment, I will respond to the Minister with some opening remarks about this part of the Bill. We have no objection to these amendments but I have one question which may come up in later debate. According to the explanatory statement,

“prosecutors must serve a copy of a single justice procedure notice on a designated officer for a magistrates’ court… and not a specific court. This is to facilitate cases started in this way being dealt with in any magistrates’ court.”

I understand from that, that the Minister intends that, by using the new procedure, this can effectively be dealt with not just by a single magistrate, not just in whatever time and place is considered convenient, but in any court. Have I understood that correctly? If so, how can that possibly sit with the Government’s stated intention that this will still be open justice to which the press and other parties may have access? I understand that this can be in the context of no response and therefore with matters proceeding in absentia. None the less, I understood that the Government, perhaps wanting to have their cake and eat it here, wanted it still to be the case that, wherever the decision was being taken, although it might be a private room, the public had access.

I hate to refer to an individual magistrates court, because it has probably closed, but, notionally, if a case that had previously been tried in Bodmin magistrates court was now, for convenience—because there happened to be spare magistrates—being dealt with on the papers in the Carlisle magistrates court, that would seem to inconvenience anybody who wanted to attend.

Shailesh Vara (Conservative, North West Cambridgeshire)

I am happy to clarify that point. It is intended that this would be a senior magistrate, who could sit in any court. As will become clear as the debate continues on this clause, these will be low-level, routine offences. At the moment, it is rare for journalists to be in magistrates courts; the media cannot afford that, unless there is some very serious offence of huge public importance. In that case, it would not be dealt with by a single magistrate. There will be provisions, which I will come to later, for public knowledge of what is happening before the magistrate deals with a case, and of the result afterwards.

These are low-level offences. For example, somebody has a speeding offence and gets three points. In a large percentage of these cases people have pleaded guilty or simply not bothered to respond.

Andrew Slaughter (Labour, Hammersmith)

I entirely take the point. We are obviously going to have a longer debate about the type of offences and the principle of using a single justice. However, we have immediately hit on an important point: whether or not the offences are low level, there may be circumstances—it could be because there is some notoriety surrounding the defendant or for some other reason—when, despite the fact that the matter is being dealt with through the single justice procedure because no one has objected to that happening in the way set out in the Bill, there is still some interest in the case. It would seem perverse if that case were held in the circumstances that the Bill envisages in terms of not only location within a court room, but location in England and Wales. Has the Minister thought about that? If he has not, would he like to think about it now?

Roger Gale (Conservative, North Thanet)

That was a very lengthy intervention.

Shailesh Vara (Conservative, North West Cambridgeshire)

Thank you, Sir Roger. I have thought about it. No matter how high profile an individual may be, she or he is not going to be turning up in court to hear a magistrate pronounce that they will get three extra points on their licence. I refer the hon. Gentleman to the comments made by Richard Monkhouse when he gave evidence earlier in the Committee’s proceedings. He said—I am open to correction of the exact words here—that in many of the offences concerned, very few people actually bothered to turn up. At one point, he might even have said that no one turned up.

Andrew Slaughter (Labour, Hammersmith)

Perhaps nobody would turn up for three points on the licence, but if it is a totting offence, with a disqualification, or a TV licence offence or a fare evasion offence, that might attract public attention.

Shailesh Vara (Conservative, North West Cambridgeshire)

I fear that it would be the same in that case. This point will be expanded as the debate progresses. These are very low-level issues, possibly involving somebody who did not have a rail ticket, or a TV licence. The measure does not go beyond that. We will come to the possibility that somebody may lose their licence later. In those circumstances, the defendant will specifically be informed that there is a risk of losing their licence, in which case he or she can make representations and turn up.

Shailesh Vara (Conservative, North West Cambridgeshire)

I beg to move amendment 51, in clause 24, page 24, line 5, after ‘issue’ insert ‘written charges,’.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss Government amendment 52.

Shailesh Vara (Conservative, North West Cambridgeshire)

Clause 24 provides that only “relevant prosecutors” will be able to use the new single justice procedure. This includes public prosecutors already authorised to use the written charge and requisition process, such as the police, Crown Prosecution Service and Driver and Vehicle Licensing Agency. The Secretary of State can add to the list of relevant prosecutors by order so that TV licensing or train operating companies, for example, could use the new single justice procedure. In doing so, the Secretary of State can make clear that those prosecutors can use only the single justice procedure, without having access to the broader power to begin prosecutions by written charge and requisition. These amendments are purely drafting points, but are necessary to make it clear that relevant prosecutors who are limited to using the single justice process can issue a written charge only when they are also authorised to issue a single justice procedure notice. In this way, this amendment ensures that those “relevant prosecutors” who are not meant to have access to the requisition power are not inadvertently given it. I would like to think that hon. Members will see this as a sensible safeguard worth reinforcing.

Andrew Slaughter (Labour, Hammersmith)

I have no objection to this technical amendment. The Minister has used for the first time the phrase “relevant prosecutor”. Will he explain the rationale behind the move away from the term “public prosecutor” to “relevant prosecutor”? Those with suspicious minds may think that this is opening the door to prosecutors who are not directly employed by the public service.

Shailesh Vara (Conservative, North West Cambridgeshire)

There is a distinction between the two. It is pointed out in the Bill. “Relevant prosecutors” are, for example, TV licensing or train operating agencies. They would be restricted to simply having the right to serve this procedural notice, as opposed to other prosecutors, who could, for example, serve requisitions or summons.

Andrew Slaughter (Labour, Hammersmith)

I beg to move amendment 39, in clause 24, page 24, line 15, at end insert—

‘(11) No offences shall be triable under this procedure unless specified in regulations made by the Secretary of State and of which a draft has been laid before, and approved by each House of Parliament.’.

This is our first substantive amendment on part 3. It might be helpful if I outline the Opposition’s approach to this part of the Bill.

We come to it with good intent. We understand that the intention of much of part 3 is to save costs but also to improve efficiency. That certainly appears to be the intention of clauses 24 to 28 and clauses 32 to 35 on leave for appeals. It also appears that some of it is simply a response to a necessary updating of the law, whether that be in relation to strict liability and contempt proceedings in clauses 37 to 38 or the responsibilities of jurors in clauses 40 to 48. Although we are reliant on common law to keep us up to date through precedent and development by the courts, of course statute has to keep up as well. The Minister will find that, although we have a number of probing amendments, only some give us cause for concern. It must be said that some of these are primarily money-raising matters, whether that be the court charge in clauses 29 to 31 or, I suspect, the increase in the eligible age for jurors in clause 39, which has a cost saving attached to it.

We simply cannot see the point of some clauses—certainly as currently drafted. That includes clause 36 on wasted costs. We have some significant concerns where either we think there are unintended consequences or matters go too far. Depending on the Minister’s response to those amendments, we will see whether we press them to the vote. We are concerned about clause 29 and the compulsory nature of the court charge. We also have concerns about clause 44 and the ambit of what “prohibited conduct” means.

In relation to amendment 39 and the others on clauses 24 to 28, we wish first to clarify the circumstances in which this new procedure will be used: that is, for what type or what specific offences. Secondly, on clause stand part, we want to look at the principle underlying the change to single magistrates. Then a series of amendments looks at the organisation of the process in terms of attendance and information supplied to defendants, and also asks whether there is any mitigation of the right to a fair trial or to open justice.

We are not likely to press amendment 39 to a vote. The Minister will say that it is unnecessarily bureaucratic and, as the Government often say, that it will restrict the working of the process, because every time there were additions or deletions to those offences which could be considered, it would need to be done by affirmative procedure. That is not our intention. Our intention is to try to probe what the Government intend this new process to be used for. We will have a wider debate when we come to clause stand part and the new clauses on the integrity of the process, but it is useful before that to look at both the principle and the practice under which this quite radical change to the way that magistrates courts operate will take effect. Even if we say that we are not averse to the principle of what the Government are doing here, it is only right that we look at the possible consequences.

It so happens that in another Committee of the House—today, I think—an amendment will be proposed to the Deregulation Bill on decriminalising the offence of not possessing a television licence. I mention that because it is cited in the Government’s impact assessment and in several briefings, including that from the Magistrates’ Association, as perhaps the leading offence that would be covered by this procedure. I understand that the proposal is likely to have the support of both parties, so it is right to ask if it is envisaged that the decriminalisation process will not go ahead immediately, but will open the door to its happening without further legislation. I think we are talking here about one in 10 of all offences that go before magistrates courts.

A lot of what were previously considered criminal offences of a minor nature have already been moved elsewhere, particularly road traffic offences, which essentially are now dealt with by a civil process of fines and appeals. That may be envisaged for television licences as well and there appears to be a consensus about that. If that is the leading type of case, and if it will entail a substantial body of work, it would be helpful if the Government, in their response to the amendment, gave a fairly exhaustive indication of what type of offences are likely to fall within the ambit of this procedure.

Earlier, I mentioned fare evasion, another minor, unfortunately common offence dealt with by the magistrates court. In common with TV licence offences, it is often an offence of dishonesty, if the evasion is wilful. I note that one of the Government’s arguments is that this type of offence—which they class as a regulatory offence, and which will come before magistrates courts under the single justice procedure—is effectively victimless, in the sense that there is no aggrieved individual or family that suffers from it. That is part of the reason why this procedure will be used.

No offences are victimless in every sense: fare evasion costs both the transport system and other paying customers, and TV licence evasion costs the BBC as well as honest licence payers. I therefore do not agree that these are victimless offences. They are perhaps more minor than benefit fraud, but they are in the same category. The Government regard benefit fraud as a serious offence, and would not think about decriminalising it or subjecting it to the single justice procedure. What is the rationale for the classification of offences? Will this conflict with the Government’s other ambitions, including ambitions to move matters out of the criminal field and perhaps out of the courts altogether, to be dealt with by some extrajudicial process such as a fixed penalty?

This is significant because there seems to be consensus that it is wrong to send people to prison for not paying their TV licence. The effect on the revenue of the BBC is a separate issue, as is the motives of those who are suddenly terribly concerned about the ability of the poor to pay fines. If the Government are decriminalising matters, when we come to clause 29 they may want to consider whether imposing substantial additional financial burdens, which people may not be able to afford, actually amounts to criminalising the poor. Does that contradict what the Government are saying here?

As I said, one in 10 criminal prosecutions last year was for evasion of the TV licence. 155,000 people were convicted and fined, and I believe that only 51 were sentenced to custody. That is a small number, but there is consensus that custody is inappropriate, a view shared by the Magistrates Association. If this flagship policy for the magistrates courts goes forward, the immediate consequence may be that a large proportion of the cases that would have been dealt with by the single justice procedure will not be. With the way the Government are going, it seems likely that other offences may be either decriminalised or taken out of the magistrates courts altogether. What do the Government see as the future for this? There will obviously be implications for costs and for the alleged savings. I will leave those two points for the Minister to answer, and we will come on to the wider implications, because this is a clause stand part debate.

Shailesh Vara (Conservative, North West Cambridgeshire)

I thank the hon. Gentleman for indicating the Opposition’s line of thought regarding the general ambit of the issues being discussed today and on Thursday. I very much hope that, where issues are raised through amendments, I will be able to provide further information as it is required. In many instances, I very much hope that, as the hon. Gentleman suggested, the Opposition will not push the matter to a Division, because I will have given helpful information.

I note what the hon. Gentleman said regarding the proposals for the single magistrates court. He made much play of the issue of TV licences, and said that cases about TV licences constituted one in 10 of the cases being dealt with. For the record, I might say that that leaves nine in 10 cases still needing to be dealt with. A system that deals with 90% of cases is still formidable. That being said, I will not make any comment regarding TV licences. That debate is being had at the moment. As far as I am concerned, the current position is that people who avoid paying for TV licences are dealt with by magistrates courts. The debate is for another place and another date.

Andrew Slaughter (Labour, Hammersmith)

My understanding is that we are talking about one in 10 of all cases that go before magistrates courts, not in one in 10 of the cases that will be covered by the civil justice procedure.

Shailesh Vara (Conservative, North West Cambridgeshire)

Given that a large proportion of all cases that go to magistrates courts—I do not have the figure to hand—are of a low-level type, there is every justification for the procedure going ahead.

I want to emphasise to the hon. Gentleman and other members of the Committee that we are dealing with cases that members of the public, defendants or the press rarely turn up for. We have three magistrates sitting at the bench, lawyers and court clerks. The charge sheet concerning an individual in a case is read out, and at the end of it, the person is given a pretty standard sentence. All we are trying to do is ensure that that process is dealt with far more expeditiously. It is absurd that we have situations where defendants cannot even be bothered to reply to the notification given to them that there will be a trial. We are dealing with low-level cases, such as speeding and ticket or TV licence evasion.

Let me emphasise that we are dealing with non-imprisonable, low-level cases. If any individual wishes to plead not guilty, their case will be referred to magistrates courts, as is the case now.

Andrew Slaughter (Labour, Hammersmith)

We will discuss the details of the procedure. I have the figures here. There are about 1.64 million cases, about half of which may fall into the category that we are discussing, so we are possibly talking about one in five cases involving TV licences. The reason why I press the Minister to give a fuller picture of the type of offences involved is that there is a slippery-slope argument. It is all very well saying now, “It is just this and that.” I would like to be clear what offences the clause will cover, because we cannot make a decision based just on the Minister saying, “Oh, these are all trivial matters.”

Shailesh Vara (Conservative, North West Cambridgeshire)

The reason why I am not setting out the cases is that we will come to them later. The hon. Gentleman has tabled specific amendments.

The number of cases is huge, but there will be a rigid system. The prosecutor will specifically state that the cases are those in which individuals have not even bothered to reply saying whether they are guilty, or have simply said that that they are guilty, and for which the sentence is pretty routine. Hon. Members need to appreciate that if someone pleads not guilty, the procedure will not apply; the normal situation that we have at the moment will apply. In cases involving driving, if someone is at risk of losing their licence, they will be informed and asked whether they wish to make a representation, and they can do that.

I emphasise that the cases being dealt with by the clause are those that many people out there on the streets already think are being dealt with in offices. I think many would be horrified to know that there is a process where, if someone is going to get three points on their licence and a routine fine, there are three magistrates—distinguished people from the local community—sitting at a bench, with lawyers, court clerks and legal advisers, and where the lawyer will stand up and read out the charge, and the bench will say, “Three points will be given to this individual. Next.” It is an absurd situation and it does not stack up.

Valerie Vaz (Labour, Walsall South)

Does the Minister accept that some people are terrified when they receive a summons and may not deal with it? They may not have access to a lawyer or a citizens advice bureau, or have Cameron McKenna or anyone else to advise them.

Shailesh Vara (Conservative, North West Cambridgeshire)

I certainly accept it; that is the situation at the moment. Regardless of whether the single justice procedure goes forward, the scenario that the hon. Lady describes exists, and that will not change. We will come to the issue of people who, for example, have difficulty reading the documents that are sent to them. Her Majesty’s Courts and Tribunals Service will try to help them, but the system described by the hon. Lady exists and does not impact on what is proposed.

On the matters raised by the hon. Member for Hammersmith, I note that he first spoke of one in nine cases and then one in five. Let us not get bogged down in statistics, but let me give the Committee my figures. In 2012-13, the types of cases that we are referring to amounted to some 840,000 proceedings in Her Majesty’s courts—half of all summary proceedings in that year. The cost of administering such cases is estimated at £24.3 million per year.

Julie Hilling (Labour, Bolton West)

I thank the Minister for giving way, because I want to challenge his language, and the way he talks about speeding as a trivial offence. The most common cause of death of 15 to 24-year-olds is road traffic accidents, the majority of which are caused by speed. I am concerned that this process is trivialising road traffic offences even more, when we know that they are a major issue in our community today.

Shailesh Vara (Conservative, North West Cambridgeshire)

May I make it clear that I did not trivialise driving offences? I did not use the word “trivial”, and I hope that the hon. Lady recognises that point. To the extent that I may have given any such indication, it was not intended. I am simply talking about somebody who is driving along in a 30 mph area and suddenly exceeds the limit by a few miles per hour. Dangerous driving and injury by driving are subject to custodial sentences. The cases that I refer to are not. The proposal is for non-imprisonable cases, so the cases that the hon. Lady refers to would be dealt with, as at present, in a proper trial in open court, where the defendant can come along and plead guilty or not guilty. I am not referring to the types of offences that she refers to; I want to make that absolutely clear. I am happy for her to intervene if there is any uncertainty.

Julie Hilling (Labour, Bolton West)

I thank the Minister for that. He did refer to trivial offences, which included speeding, but I am grateful for his clarification. However, speeding is frequently totted up—I know we are coming to that in a moment—and needs to be challenged, but not by a secret courts method.

Shailesh Vara (Conservative, North West Cambridgeshire)

I have said a lot already in the past half-hour or so, so if I did use the word “trivial”, let me be clear about the context in which it was used. I was simply referring to people who speed in a relatively minor sense, as opposed to on the motorway and wherever it would be dangerous, so I am talking about the speeding that many members of the Committee may have committed and then ended up with three points on their licences. I want to make it clear that the procedure is not intended for dangerous driving and serious offences that could result in custodial sentences.

Yasmin Qureshi (Labour, Bolton South East)

I want clarification. When there is one magistrate sitting and going through the traffic papers, will there be a clerk or a prosecutor present?

Shailesh Vara (Conservative, North West Cambridgeshire)

The single magistrate will have access to legal advice, a clerk, or whatever assistance they may need. Whether there will be a magistrate sitting there, going through papers and dealing with the umpteenth hundredth identical type of case, while there is a legally qualified clerk sitting there reading a book, I do not know. The intention is that a single magistrate can sit and deal with relatively routine cases that appear in their hundreds and thousands on a regular basis. However, I emphasise to the hon. Lady that if a single magistrate needs legal advice or assistance, that will be available to them, and if they wish to discuss matters with their fellow magistrates, clearly that option will also be open to them.

Yasmin Qureshi (Labour, Bolton South East)

I thank the Minister for that clarification. That is exactly what my concerns were about. If it is correct that there will be just one magistrate—and we are talking about lay magistrates, not district judges, are we not?—sitting on their own, with hundreds and hundreds of files, without a lawyer or a prosecutor in the room, that will lead to difficulties, because quite often, even with the simple and straightforward matters that we are talking about, somebody could suggest that there were mitigating circumstances or exceptional hardship; any number of things could crop up.

Traffic court can also get very technical; I am not trying to give evidence here, but as someone who did a massive amount of traffic cases in my early career, I know that. For a single justice, having a legally qualified person present is, or should be, a must.

Shailesh Vara (Conservative, North West Cambridgeshire)

It will certainly be the case that the clerk will be sitting, so there will be a clerk who can give advice. The hon. Lady says that she has been involved in cases similar to those that we are discussing, but she was probably not involved in a lot of cases where somebody was going to get three penalty points; she may have been involved if somebody risked losing their licence, but if it was a routine matter she would not have been. The statistics show that thousands of the people involved in these cases do not even bother replying, let alone turning up in court.

Yasmin Qureshi (Labour, Bolton South East)

In the early days of my career, when I worked for the CPS, it was quite routine for junior prosecutors to have a pile of 200 or 300 traffic cases and to deal with them. However, what we had were magistrates and clerks. While I can accept that one magistrate is fine, if we do not have anybody present while that magistrate is going through a pile of traffic cases, that would lead to quite a lot of difficulties.

I remember a number of times when many technical issues arose that required legal advice to be given to the magistrate. If the magistrate is sitting by themselves and does not have knowledge of the law, how will they know that there is an issue to be examined? Quite often, I pointed out—even as a prosecutor—one way in which we had tried to get somebody to court, or a way of dealing with an issue, or that legal advisers could be present. The problem is that legal advisers are not qualified lawyers, as they used to be in the old days. Now most legal advisers in magistrates courts are actually non-qualified people, so they do not have the knowledge—

Roger Gale (Conservative, North Thanet)

Order. I am sorry; I am trying to be tolerant, and I am known to be the most mild-mannered of men, but interventions must be interventions, and brief.

Shailesh Vara (Conservative, North West Cambridgeshire)

As I said to the hon. Lady, a clerk will be present.

Amendment 39 would require the list of offences to which the new single justice procedure applies to be set out in secondary legislation. Our intention is for all summary only non-imprisonable offences to be in the scope of the procedure. Offences such as speeding, driving without insurance and TV licence evasion take up the majority of court time that is spent on these types of offences, and these are the types of cases that we expect the single justice to hear.

Andrew Slaughter (Labour, Hammersmith)

This is the problem. I have got that information in front of me. TV licence offences, fare evasion cases and summary motoring offences such as speeding and no-insurance cases—2,562 different offence types—are dealt with by magistrates. I do not expect the Minister to go through all of them, but it would be useful if he could indicate whether it is just those four types of offence that we should know about, or whether there are others we should know about.

Shailesh Vara (Conservative, North West Cambridgeshire)

Sir Roger, there comes a point when I think, “I’ve said this several times and I am struggling to find the wording.” The hon. Gentleman is right to say that there are more than 2,000 offences. We will come to that later, because another of his amendments, which I do not want to discuss now, deals specifically with stating what those offences are.

I am providing examples of the offences. Prosecutors will sift cases, identifying low-level ones that can be sorted and dealt with in that manner. The hon. Gentleman will forgive me, as I hope all Committee members will, for not being able to itemise right now which of the 2,000-plus offences will be dealt with in that manner. The intention is to provide a more modern, efficient way of reaching the right outcomes in such cases, without unnecessary expense to the public purse.

The hon. Member for Bolton South East spoke earlier about her experience of the CPS. I am not inviting her to speak, given that she has spoken about as much as the hon. Member for Hammersmith and I have. She spoke in her capacity as a CPS lawyer and I am minded to say that, in many cases, she will have stood up and read out the cases without a lot of opposition to what she had to say.

Julie Hilling (Labour, Bolton West)

I thank the Minister for giving way, because I am still confused. I do not understand whether the prosecutor could decide whether any of the 2,000 cases could be tried by a single magistrate or whether the Government will set the parameters that decide which cases can be tried. I am not clear, after his comments, whether that is so.

Shailesh Vara (Conservative, North West Cambridgeshire)

The judiciary is independent, as we all recognise. The Government are providing a legal structure and the criminal courts procedure rules will contain the detail about how the measure is to be implemented. Stakeholders will be involved, including the Crown Prosecution Service, the police, the judiciary and the magistrates themselves. Indeed, magistrates have been consulted. All those people will be involved in coming up with the proper guidance that will be used to identify to which types of cases the provision will refer from the 2,000-plus that are eligible.

I emphasise again that the cases involved will not be those that are likely to be controversial. Offences to which someone has pleaded not guilty will be dealt with under the existing system. I am talking about low-level, relatively routine cases that are dealt with on a standard level at the moment, in an absurd situation, with three benchers, lawyers, cases being read out, and the time and effort that goes with that. Legal advice will be available to the people concerned.

I say to the hon. Member for Bolton West and other Committee members, by way of conclusion, that the guidance will be clarified after proper consultation with all the stakeholders. Before we came up with the proposal, we spoke with a lot of people concerned.

Andrew Slaughter (Labour, Hammersmith)

Oh dear, I am less happy than when I started. The Minister is repeating himself—he is not answering the questions, but just repeating what is in his brief.

I shall leave it at this. I did not expect to have a full account of all the offences, but I did expect to be given more of a flavour of what was happening. I am not happy that prosecutors—this is what I understand from what the Minister has said—will sift through offences and decide which ones are suitable for the proposed procedure. I am not happy that that should happen because the man in the street thinks that it happens already—albeit he is wrong about that—or because some defendants are negligent or lackadaisical in responding.

The onus is on the Government to get the criminal justice system right. If they are going to make such a significant change, they need to be clear on what offences they are dealing with and why those are suitable for the procedure, and at least on what changes they can foresee at present. If a significant number of the offences under the procedure are already going out of the door at this point, I am not happy. However, I have said that I will not press the amendment to a Division. I beg to ask leave to withdraw the amendment.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss the following:

New clause 12—Instituting proceedings by written charge—

‘(1) Section 29 of the Criminal Justice Act 2003 (public prosecutor to institute proceedings by written charge) is amended as follows.

(2) In subsection (1), for “public prosecutor” substitute “relevant prosecutor”.

(3) For subsection (2) substitute—

“(2) Where a relevant prosecutor issues a written charge, it must at the same time issue—

(a) a requisition, or

(b) a two justice procedure notice.

(2A) A requisition is a document which requires the person on whom it is served to appear before a magistrates’ court to answer the written charge.

(2B) A two justice procedure notice is a document which requires the person on whom it is served to serve on the designated officer for a magistrates’ court specified in the notice a written notification stating—

(a) whether the person desires to plead guilty or not guilty, and

(b) if the person desires to plead guilty, whether or not the person desires to be tried in accordance with section 16A of the Magistrates’ Courts Act 1980.”

(4) In subsection (3)—

(a) for “and requisition” substitute “and the requisition of two justice procedure notice”, and

(b) after “the requisition” insert “or, as the case may be, the two justice procedure notice”.

(5) After subsection (3) insert—

“(3A) If a two justice procedure notice is served on the person, the relevant prosecutor must—

(a) at the same time serve on the person such documents as may be prescribed by Criminal Procedure Rules, and

(b) serve copies of those documents on the court.”.

(6) After subsection (3A) insert—

“(3B) The written notification required by a two justice procedure notice may be served by the legal representative of the person charged on the person‘s behalf.”.

(7) In subsection (4), for the words from the beginning to “public prosecutor” substitute “A relevant prosecutor authorised to issue a requisition”.

(8) In subsection (5), for ““public prosecutor”” substitute ““relevant prosecutor””.

(9) After subsection (5) insert—

“(5A) An order under subsection (5)(h) specifying a person for the purposes of this section must also specify whether that person and a person authorised by that person to institute criminal proceedings—

(a) are authorised to issue requisitions and two justice procedure notices, or

(b) are authorised to issue only two justice procedure notices.”.

(10) A person who immediately before the commencement of this section is—

(a) a person specified in an order under section 29(5)(h) of the Criminal Justice Act 2003, or

(b) a person authorised by a person so specified to institute criminal proceedings,

is to be treated after the commencement of this section as authorised to issue requisitions and two justice procedure notices (subject to the order specifying that person being varied or revoked).’.

New clause 13—Instituting proceedings: further provision—

‘(1) Section 30 of the Criminal Justice Act 2003 (further provision about method of instituting proceedings in section 29) is amended as follows.

(2) In subsection (1)—

(a) in paragraph (a), for “or requisitions” substitute “requisitions or two justice procedure notices”, and

(b) in paragraph (b), for “or requisitions” substitute “requisitions or two justice procedure notices”.

(3) In subsection (2)(b), after “further requisitions” insert “or further two justice procedure notices”.

(4) In subsection (5)—

(a) in paragraph (b), for “public prosecutor” substitute “relevant prosecutor”, and

(b) after paragraph (b) insert ”, and

(c) any reference (however expressed) which is or includes a reference to a summons under section 1 of the Magistrates’ Courts Act 1980 (or to a justice of the peace issuing such a summons) is to be read as including a reference to a two justice procedure notice (or to a relevant prosecutor issuing a two justice procedure notice).”.

(5) After subsection (7) insert—

“(7A) The reference in subsection (5) to an enactment contained in an Act passed before this Act is to be read, in relation to paragraph (c) of subsection (5), as including—

(a) a reference to an enactment contained in an Act passed before or in the same Session as the Criminal Justice and Courts Act 2014, and

(b) a reference to an enactment contained in such an Act as a result of an amendment to that Act made by the Criminal Justice and Courts Act 2014 or by any other Act passed in the same Session as the Criminal Justice and Courts Act 2014.”.

(6) In subsection (8)—

(a) for ““public prosecutor”, substitute ““relevant prosecutor””, and

(b) after ““requisition”” insert “two justice procedure notice””.’.

New clause 14—Trial by two justices on the papers—

‘(1) The Magistrates’ Courts Act 1980 is amended as follows.

(2) In section 11 (non-appearance of accused: general provisions)—

(a) in subsection (1), for “and (4)” substitute ”, (4) and (8)”, and

(b) after subsection (7) insert—

“(8) This section and sections 12 to 16 do not apply if and for so long as a written charge is to be tried by a magistrates’ court in accordance with section 16A.”

(3) After section 16 insert—

16A Trial by two justices on the papers

‘(1) A magistrates’ court may try a written charge in accordance with subsections (3) to (8) if—

(a) the offence charged is a summary offence not punishable with imprisonment,

(b) the accused had attained the age of 18 years when charged,

(c) the court is satisfied that—

(i) the documents specified in subsection (2) have been served on the accused, and

(ii) service of all of the documents was effected at the same time, and

(d) the accused has not served on the designated officer for the magistrates’ court specified in the two justice procedure notice, within the period prescribed by Criminal Procedure Rules, a written notification stating either—

(i) a desire to plead not guilty, or

(ii) a desire not to be tried in accordance with this section.

(2) The documents mentioned in subsection (1)(c) are—

(a) a written charge and a two justice procedure notice (see section 29 of the Criminal Justice Act 2003), and

(b) such other documents as may be prescribed by Criminal Procedure Rules (see section 29(3A) of the Criminal Justice Act 2003).

(3) The court must try the written charge in reliance only on—

(a) the documents specified in subsection (2), and

(b) any written submission that the accused makes with a view to mitigation of sentence.

(4) The court may disregard a written submission that is not served on the designated officer for the magistrates’ court specified in the two justice procedure notice within the period prescribed by Criminal Procedure Rules.

(5) The court may try the charge in the absence of the parties.

(6) The court may not remand the accused.

(7) If the resumed trial is to be conducted in accordance with subsections 10 (3) to (7), no notice is required of the resumption of the trial after an adjournment.

(8) A magistrates’ court acting under this section may be composed of two justices.

(9) A magistrates’ court not specified in the two justice procedure notice may try a written charge in accordance with subsections (3) to (8) as if it were the magistrates’ court so specified.

(10) Subsection (1) is subject to sections 16B and 16C.

16B Cases not tried in accordance with section 16A

‘(1) If a magistrates’ court decides, before the accused is convicted of the offence, that it is not appropriate to try the written charge in accordance with section 16A, the court may not try or continue to try the charge in that way.

(2) A magistrates’ court may not try a written charge in accordance with section 16A if, at any time before the trial, the accused or the accused’s legal representative on the accused’s behalf gives notice to the designated officer for the magistrates’ court specified in the two justice procedure notice that the accused does not desire to be tried in accordance with section 16A.

(3) If a magistrates’ court may not try or continue to try a written charge in accordance with section 16A because the conditions in section 16A(1) are not satisfied or because of subsection (1) or (2), the magistrates’ court specified in the two justice procedure notice or, if different, the magistrates’ court trying the written charge must—

(a) adjourn the trial, if it has begun, and

(b) issue a summons directed to the accused requiring the accused to appear before a magistrates’ court for the trial of the written charge.

(4) A magistrates’ court issuing a summons under subsection (3)(b) may be composed of two justices.

16C Cases that cease to be tried in accordance with section 16A

‘(1) If a magistrates’ court decides, after the accused is convicted of the offence, that it is not appropriate to try the written charge in accordance with section 16A, the court may not continue to try the charge in that way.

(2) If a magistrates’ court trying a written charge in accordance with section 16A proposes, after the accused is convicted of the offence, to order the accused to be disqualified under section 34 or 35 of the Road Traffic Offenders Act 1988—

(a) the court must give the accused the opportunity to make 5 representations or further representations about the proposed disqualification, and

(b) if the accused indicates a wish to make such representations, the court may not continue to try the case in accordance with section 16A.

(3) If a magistrates’ court may not continue to try a written charge in accordance with section 16A because of subsection (1) or (2), the magistrates’ court must—

(a) adjourn the trial, and

(b) issue a summons directed to the accused requiring the accused to appear before a magistrates’ court to be dealt with in respect of the offence.

16D Sections 16B and 16C: further provision

‘(1) If a summons is issued under section 16B(3)(b) or 16C(3)(b)—

(a) a reference in sections 11 to 13 to a summons issued under 20 section 1 is to be read, for the purposes of subsequent proceedings as regards the matter, as if it included a reference to a summons issued under section 16B(3)(b) or 16C(3)(b) (as the case may be), and

(b) the magistrates’ court that issued the summons under section 25 16B(3)(b) or 16C(3)(b) and the magistrates’ court specified in the summons are to be treated, for those purposes, as if they were in the same local justice area.

(2) If a summons has been issued under section 16B(3)(b) or 16C(3)(b), a justice of the peace may issue a summons directed to the accused requiring the accused to appear before the magistrates’ court specified in the summons under section 16B(3)(b) or 16C(3)(b) for the purpose specified in that summons; and subsection (1)(a) applies in relation to a summons under this section as it applies in relation to a summons under section 16B(3)(b) or 16C(3)(b).

(3) Where a summons has been issued under section 16B(3)(b) or 16C(3)(b), a magistrates’ court that afterwards tries the written charge or deals with the accused for the offence must be—

(a) composed as described in section 121(1), or

(b) composed of a District Judge (Magistrates’ Courts) sitting alone by virtue of section 26 of the Courts Act 2003.

(4) Where—

(a) the accused is convicted of an offence before a matter is adjourned under section 16C(3)(a), and

(b) the matter is tried after the adjournment by another magistrates’ court,

that other magistrates’ court is to be treated as if it were the court that convicted the accused for the purposes of section 142(2).

16E Accused not aware of two justice procedure notice

‘(1) This section applies if—

(a) a two justice procedure notice has been issued, and

(b) the written charge is being tried, or has been tried, in accordance with section 16A.

(2) The proceedings subsequent to the two justice procedure notice are void if—

(a) the accused makes a statutory declaration that the accused did not know of the two justice procedure notice or the proceedings until a date that the accused specifies in the statutory declaration,

(b) that date is a date after a magistrates’ court began to try the written charge,

(c) the declaration is served on the designated officer for the magistrates’ court specified in the two justice procedure notice within 21 days of that date in such manner as Criminal Procedure Rules may prescribe, and

(d) at the same time as serving the declaration, the accused responds to the two justice procedure notice by serving a written notification on that designated officer.

(3) Subsection (2) does not affect the validity of a written charge or a two justice procedure notice.

(4) A magistrates’ court may accept service of a statutory declaration required by subsection (2) after the period described in subsection (2)(c) if, on application by the accused, it appears to the court that it was not reasonable to expect the accused to serve that statutory declaration within that period.

(5) A magistrates’ court that accepts a statutory declaration under subsection (4) is to be treated as accepting service of a written notification that is served at the same time.

(6) A statutory declaration accepted under subsection (4) and a written notification treated as accepted under subsection (5) are to be treated as having been served as required by subsection (2)

(7) If proceedings have become void under subsection (2), the reference in section 16A to the period within which a written notification must be served is to be read as referring to a period that ends on—

(a) the date on which a written notification is served under subsection (2)(d), or

(b) if a magistrates’ court is treated as accepting service of a written notification by virtue of subsection (5), the date on which the written notification is so treated as accepted.

(8) If proceedings have become void under subsection (2), the written charge may not be tried again by any of the same justices.

(9) A magistrates’ court carrying out functions under subsection (4) may be composed of a two justices.”.’.

New clause 15—Trial by two justices on the papers: sentencing etc—

‘(1) In section 121 of the Magistrates’ Courts Act 1980 (constitution etc of a magistrates’ court), after subsection (5) insert—

“(5A) A magistrates’ court that is trying a summary offence in accordance with section 16A is restricted to the following in dealing with the accused for the offence—

(a) imposing a fine;

(b) imposing a penalty under section 102(3)(aa) of the Customs and Excise Management Act 1979 or section 29, 35A or 37 of the Vehicle Excise and Registration Act 1994 (penalties imposed for certain offences in relation to vehicle excise licences);

(c) ordering an amount to be paid under section 30, 36 or 38 of the Vehicle Excise and Registration Act 1994 (liability to additional duty);

(d) making an order under section 130(1) of the Powers of Criminal Courts (Sentencing) Act 2000 (compensation orders);

(e) ordering payment of a surcharge under section 161A of the Criminal Justice Act 2003 (victim surcharge);

(f) making an order as to costs to be paid by the accused to the prosecutor under section 18 of the Prosecution of Offences Act 1985;

(g) making an order as to costs to be paid by the accused by virtue of section 19 of the Prosecution of Offences Act 1985;

(h) ordering payment of a charge under section 21A of the Prosecution of Offences Act 1985 (criminal courts charge);

(i) making an order under section 34 or 35 of the Road Traffic Offenders Act 1988 (disqualification from driving);

(j) making an order under section 44 of the Road Traffic Offenders Act 1988 (endorsement of a driving record);

(k) making an application to the Secretary of State by virtue of section 24(1)(a) of the Criminal Justice Act 1991 (benefit deductions);

(l) making an attachment of earnings order under Part 3 of Schedule 5 to the Courts Act 2003;

(m) making an application for benefits deductions to the Secretary of State under Part 3 of Schedule 5 to the Courts Act 2003;

(n) making a collection order under Part 4 of Schedule 5 to the Courts Act 2003;

(5B) The limit in subsection (5) does not apply to fines imposed as described in subsection (5A).”.’.

I would not normally permit a stand part debate, because the issues covered by clause 24 have already been very thoroughly aired. However, I cannot deny the Committee the opportunity to discuss the meat of new clauses 12 to 15, and on that basis, I shall expect members to refer more to them than to the clause.

Andrew Slaughter (Labour, Hammersmith)

I am most grateful, Sir Roger, and I will follow your guidance.

Roger Gale (Conservative, North Thanet)

Order. I am sorry. I should also have indicated, for the benefit of everybody present who does not understand these arcane procedures, as I described them before, that the new clauses, if they are to be moved, will not be moved now. They will be moved at the point in the Bill at which they are reached, which is many pages ahead. For the moment, although they will be debated, they will not be voted upon this morning.

Andrew Slaughter (Labour, Hammersmith)

I am most grateful, Sir Roger. I understand. That is why these are presented as new clauses, rather than as amendments to clause 24. The effect of the new clauses goes to the heart of the proposal. They say that, throughout the process of trial and sentencing, rather than a single magistrate, there should be a minimum of two magistrates. To a large extent, that is the status quo. I accept that point and wait to be persuaded by the Minister that his scheme is better than the status quo.

Section 121 of the Magistrates’ Courts Act 1980— I am sure the Minister or his officials will correct me if I am wrong about this—states:

“A magistrates’ court shall not try an information summarily or hear a complaint except when composed of at least 2 justices unless the trial or hearing is one that by virtue of any enactment may take place before a single justice. A magistrates’ court shall not hold an inquiry into the means of an offender for the purposes of section 82 above…except when composed of at least 2 justices.”

We shall come this a little later, but it also states that

“a magistrates’ court must sit in open court if it is…trying an information for a summary offence…or holding an inquiry into the means of an offender for the purposes of section 82”.

It also says—I have the Minister explaining this to me—that:

“A magistrates’ court composed of a single justice shall not impose imprisonment for a period exceeding 14 days or order a person to pay more than £1”.

If it is the case that a single magistrate can impose sentences of imprisonment at the moment, that has escaped me. I may be wrong about that, but it would be helpful to have guidance, since it is a central contention of the Minister that there will be no power for a single justice to imprison.

The new clauses address the question of the Government’s intention in going to a single magistrate in that vast number of cases—perhaps 50% of all cases that currently come before a magistrates court. We know that that in turn is 95% of all cases that come before any criminal court in England and Wales. It is a significant step. That is where I disagree with the Minister, who has said about 14 times, “Oh, don’t worry, this is all very minor and trivial and it’s not going to make much difference.” It does make a difference, because we are talking about a trial process being handled by a single magistrate.

I have absolute admiration for the magistracy, as I am sure all Members present have, but a central tenet is that they are lay people. They are legally untrained people. The alternative to a bench of three magistrates—notwithstanding what it says in the 1980 Act, the normal bench is three magistrates—is a single district judge. We have seen a growth in the use of a single district judge. Some will say that is a good idea and some will say it is not, but it is accepted in the criminal courts that a single district judge can try both fact and law. However, a single magistrate cannot do so thus far. That is why I say that the proposal is a very significant difference. I suspect that the motivation behind it is partly financial and partly to do with the organisation of the magistrates court.

In April 2008, there were 29,419 magistrates. In April 2013, only five years later, there were 23,410. That is a drop of 6,000. There are simply far fewer magistrates around. We know not just that there has been the largest ever closure programme of magistrates courts, but that it is continuing. I bumped into the hon. Member for Bassetlaw (John Mann) on Budget day, and he was incensed because he had just found out that another programme of magistrates courts closures would affect his constituency. He said:

“By announcing its plan to close the courthouse today, only an hour after the budget, the Government is clearly trying to avoid a scandal by burying the story on a busy news day.

This is part of a concerted campaign to strip Worksop of its local justice facilities—we have seen exactly the same with the police cells.”

We have seen a decline in the magistracy. We have seen a decline in the number of courts, and we have also seen a decline in the number of cases coming before the courts. What is the motivation here? What is the rationale? The policy appears to conflict with other things that the Government are doing. As we saw earlier in the Bill when we looked at simple cautions, the Government are quite rightly wary of the increasing trend under all Governments over the past few years—probably for financial reasons—to move away from judicial scrutiny towards some form of administrative penalty.

When the Secretary of State announced the proposal for a single justice process—he loves announcing and re-announcing matters—he talked about the rubber stamping of foregone conclusions. That is a rather trite way to describe a trial process, but we know what he meant. According to an article from TheGuardian on 11 September 2013, he also said:

“where the police have used an out-of-court disposal, there is a role for magistrates in scrutinising that.”

The Government cannot have it both ways. They cannot say that we need less scrutiny by magistrates and that we need more scrutiny by magistrates.

The third contradictory statement that the Secretary of State made when announcing the policy was that the ambition was to free up magistrates courts to deal with more serious matters. In so far as that will take the pressure off, avoid delay and allow more time to consider existing trials and other serious matters that come before magistrates courts, so be it. But we also heard that 40% of cases sent to Crown court on sentencing following conviction result in sentences no longer than those that could have been imposed by magistrates. What are the Government doing about making that part of magistrates courts—the top end—more efficient at the same time as they are clearing out the bottom end?

A provision was introduced under the Criminal Justice Act 2003—the Government tried to get rid of it in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 but then thought better of it—to allow magistrates to impose a single sentence rather than a consecutive sentence of 12 months. We support that. The Government did not support it but then thought better of it. However, it still has not been introduced.

If the rationale of going to a single magistrate system is purely organisational—that is, there are not enough magistrates—can we know that? If it is designed to free up magistrates courts to take on more serious work, that would be very interesting and something that would have our support and that of the Magistrates’ Association, but there is no sign of that happening.

Alternatively, is this simply about cost saving? I will go back to the figure that the Minister used earlier. I think that he quoted £23.43 million as the administrative cost of dealing with regulatory cases. That does not take us very far. What are the intended savings by adopting the single magistrate process? Later in the impact assessment it appears to say that the saving will be between £35 million and £64 million—about £50 million on average over a 10-year period, so about £5 million a year. Is it right that about 20% of the current cost will saved? How robust are those figures? Given the range from £35 billion to £64 billion, they do not seem very robust. Is cost saving the primary intention here, or is it a by-product? We need to know more about how magistrates courts will operate in future.

Before summing up the Opposition’s concerns and to give the Minister some comfort, I will point out that I have listened not so much to what the Government have said, as to the Magistrates’ Association. Although it has reservations, which we will come to in later amendments, it is broadly happy with the principle of the single justice process. The Magistrates’ Association is getting a very raw deal from the Government at the moment in terms of representing the interests of magistrates. Work on guaranteeing civil rights and a properly functioning civil justice system has never been better, and I applaud the setting up of the all-party parliamentary group on the magistracy. I hope that it will be a forum for discussing these issues in a less bipartisan context.

We are concerned that most of the process will end up under the criminal procedure rules, rather than in primary legislation—the Government’s clearly stated intention. We are concerned that there will be less scrutiny of the process. The Government rather disparagingly mention in their commentary that there is too much reading aloud and that matters can be dealt with on paper. They have a point, but reading aloud allows the court to be properly apprised of the situation. Issues such as defendants’ means and mitigation, which can be supplied in writing, and assistance at the prosecution need to be considered. My hon. Friend the Member for Bolton South East made the point about assistance at prosecution, and we have an amendment on that later. All these matters will not be present in as robust a form as they are now, which implies less scrutiny individually and cumulatively.

If the Government are concerned about defendants not attending, perhaps we should ask why that is so. Trials in absentia are important, even on minor matters. We had a debate in the Chamber last week about the presumption of innocence in relation to a draft EU directive. We happened to agree with the Government on that occasion, because we did not see how the draft directive, which dealt partly with this issue, fitted comfortably with English law. That is not to say that trial in absentia would be welcomed; it is something that should be avoided at all costs. Later amendments try to ensure that more defendants attend and that they understand their rights and responsibilities. That, again, is the point made by my hon. Friend in relation to the way that people react to official documentation. The Minister rather dismissively said, “Oh, half these people do not bother to attend.” Perhaps he should ask why people do not attend. Part of the reason could be that the prosecuting authorities do not present their cases very well to people on the papers, rather than anything else.

We will come on to concerns about recording decisions and open justice. I have dealt with the Minister’s point about public prosecutors, but he is perhaps not taking this as seriously as he should. He will have received briefs, as I have, from leading civil liberties organisations on this subject. Most of their points we direct to other parts of the Bill, but I ask the Minister to look again at what both Liberty and Justice have told us about these matters. They quote the coalition agreement, which states:

“We will protect historic freedoms through the defence of trial by jury”.

They say:

“This proposal”—

that is, the single magistrate proposal—

“will significantly harm the principle of trial by jury as well as that of open justice—two cornerstones of the British justice system.

For centuries, the common law principle that defendants are tried by their peers has allowed justice to be dispensed fairly and in a manner that commands public confidence. Lay magistrates, who currently hear less serious criminal cases, are justified in accordance with the jury trial tradition on the basis that they are laypersons, neither legally trained nor professional judges, that act as peers. In recognition of this, the Magistrates’ Courts Act 1980 requires that criminal trial and sentencing is presided over by at least two magistrates. In practice three magistrates generally sit together and a mix in age, gender and ethnicity is sought as far as possible. Further magistrates are employed on a voluntary basis with only their expenses paid.

The implications of the reform proposed in clauses 24 to 28 should not be underestimated. Currently magistrates have only very limited powers when sitting on their own, restricted to: hearing remand applications and issuing search warrants and warrants for arrest. Magistrates’ panels on the other hand fulfil a substantial function in our criminal justice system and command significant power.

They hear and decide the outcome of cases (including both questions of law and fact) and pass sentence. They have the power to impose sentences of up to six months imprisonment as well as community penalties and fines of up to £5,000 per offence. While it is not currently proposed that magistrates should be able to sit alone and in private to determine cases that attract a sentence of imprisonment it is highly likely that once this procedure has been established further piecemeal reforms will be proposed”.

This is the important point:

“It is impossible for a single magistrate to form a ‘panel of peers’ and this will offend against the basic premise of trial by jury. Further, perceived flaws in the current lay magistracy system are addressed at least in part by the requirement that magistrates sit in open court and as a panel. These complaints will be exacerbated by the single magistrates process. Complaints about the current system include that the lay magistracy are not sufficiently representative of society; that magistrates should not be charged with reaching decisions of both fact and law, that there is wide discrepancy in magistrate sentencing, and that they rely too heavily on legal clerks”.

I raise those points—they are well made, and I cannot improve on the language—because we are losing the principle that magistrates are a jury and that the reason for two or three people putting their heads together is to get the same effect in miniature as a jury. If that element is removed, it does several things. First, as has been said, it removes the panel of peers; secondly, it removes a check that one magistrate may have on another. I happen to think that that is quite important in these volume cases, where it is easy to make mistakes. We all admire magistrates who, day after day, go through rather tedious and routine matters. However, it is just as important that they get those matters right, both by understanding the case and by making a finding of fact and sentencing appropriately. It is common sense that, if more than one person does that, one acts as a check on the other. We do not say three, but we do say two.

The other problem highlighted is that removing one or two lay magistrates changes the balance between the magistrate and the clerk. Everyone else is removed from the equation except the single magistrate and the legal clerk. That is a significant change in the balance of power and the balance of convenience between the parties.

I hope that those comments reflect why we think that the new clauses are necessary. They are not intended to be wrecking new clauses. They are not intended to pay lip service and then undermine the process. They are intended to make the Government make their case; I do not think that they have done so. I have mentioned trial in absentia. Although we are not signing up to the draft directive, we are of course signed up—despite the Lord Chancellor’s wishes—to the European convention on human rights. Any part of the criminal justice system must comply with article 6, which includes the right to a fair and public hearing and states:

“Where this right is waived, it must be established in an unequivocal manner and be attended by safeguards commensurate with its importance. In this particular type of case, it must be shown that the defendant understood what the consequences of a waiver would be.”

We have an amendment on that as well.

This is particularly important as legal aid is not available in such cases. I am not suggesting that it should be available; what I am suggesting—again, I take a point made by my hon. Friend the Member for Bolton South East earlier—is that the full onus is upon the individual to understand and deal with the situation, without really any assistance. I cannot think of any advisory agency that would advise on something of this kind. Therefore, a single magistrate process is not wholly appropriate.

I will leave it there for now. Will the Minister have another go at explaining why he thinks that this significant change in how the trial system works in magistrates courts should take place?

Robert Neill (Bromley and Chislehurst) (Con) rose—

Roger Gale (Conservative, North Thanet)

Order. Everything that has been said this morning has been in order. Were that not the case, I would have made that very plain. It is also not the Chairman’s job to seek to curtail debate in any way, shape or form; rather, it is to facilitate it. Fifty groups of amendments and new clauses and schedules must be completed by Order of the House—not of the Chairman of the Committee or even of the Programming Sub-Committee—by 5 o’clock next Tuesday. That limits the options slightly.

I suggest that perhaps the usual channels might wish to have a word with each other because the only options available are for the Committee to sit this evening—which is entirely possible and part of my duty is to take the Chair if required to do so—and on Thursday evening, when most Members wish to get back to their constituencies. So that perhaps limits the options a little further.

Both Tuesdays and Thursdays are open-ended—until the Government moves to adjourn—so if we are to sit in the evenings, the Officers of the House need to know because provision must be made to staff the Committee. A Chairman would also not expect to sit for more than three hours at a time without a suspension—again, for the well-being of the staff. Frankly, it is not the Chair’s job to look after the well-being of Members but simply to manage the business. I point that out now in case the usual channels wish to have a conversation.

Shailesh Vara (Conservative, North West Cambridgeshire)

Sir Roger, thank you very much. I, for one, have taken on board what you have said and I very much hope that, as well as the usual channels, others present will have done likewise.

I shall try for the final time to give reassurance to the Committee. I fully recognise that there is concern both in the Committee and among groups outside this place, but by taking up some of the examples that the hon. Member for Hammersmith has provided, I hope to allay some of his fears. He spoke of the existing power of a single justice to sentence people to imprisonment for a period not exceeding 14 days; he was right to do so, but that power is excluded from the proposed procedure. The single magistrate would have no such power because they would not be dealing with anything to do with prison.

A single magistrate has powers to remand someone in custody. That is far more significant than what we are proposing under the single justice procedure. We are proposing a system that is for summary-only, non-imprisonable offences. The courts will have the final decision on whether the case goes ahead under this procedure, and they may, if they so wish, decide to have the case dealt with according to the normal procedure that is available at the moment. The defendant can, at any time before trial, ask for her or his case to be heard before a traditional court, and that will certainly be the case with a not guilty plea.

The new clauses are intended to remove the provision to allow a single magistrate to hear offences under this procedure and replace it with two magistrates. We have high-quality magistrates in this country. I am confident that in simple, straightforward cases such as motoring offences, where the facts are straightforward and the defendant has often already pleaded guilty by post, our magistrates are capable of reaching a decision by themselves. A single magistrate deciding these cases will have to comply with the sentencing guidelines, which are very clear for such cases. I fail to see the benefits of two magistrates, as opposed to one, sitting with a legal adviser.

Bob Neill (Conservative, Bromley and Chislehurst)

I agree entirely with what my hon. Friend says, as would practitioners on the ground. Will he concede that it is precisely because of the safeguards he has outlined that the chairman of the Criminal Bar Association, giving evidence to us, said that he, speaking on behalf of the CBA, had no problems with the single magistrate procedure as proposed?

Shailesh Vara (Conservative, North West Cambridgeshire)

I am grateful to my hon. Friend for that intervention. He speaks with a huge amount of practical experience. He is right to remind us what the chairman of the criminal Bar told us in evidence and I am glad that that has been put on the record again.

The purpose of the single magistrate procedure is to introduce some flexibility into the way in which these offences are dealt with. A single magistrate could seek advice from another where that was thought necessary or helpful, and they will, of course, have the assistance of a legal adviser. Magistrates deal with such offences regularly and are perfectly capable of making a decision without having to consult a colleague. Magistrates are broadly supportive of these proposals, as they would free up their courts to focus on more serious and contested cases, such as shoplifting and public disorder—cases of the type that have the biggest impact on local communities. We will continue to work through all the implementation details with them and further develop the safeguards already in place.

The new clauses would also remove the provision that a court can decide a case under the single justice procedure other than in open court. That would undermine one of the main drivers behind the policy. We consider that the time wasted and the costs incurred in requiring magistrates to sit in open court when they decide cases is disproportionate in the type of low-level case that the procedure will apply to. Allowing a single magistrate to decide a case other than in open court introduces important flexibility, ensuring quicker resolution of such cases.

I note that the amendment would also allow a single justice to hear and consider evidence from a party to the case if they turn up when the single justice is considering the case. In practice, parties will not know when a case is going to be considered by a single justice under the new procedure, so it is extremely unlikely that such a situation would occur. I therefore ask the hon. Member for Hammersmith to withdraw his amendment.

Roger Gale (Conservative, North Thanet)

Order. There is no amendment to be withdrawn, because the new clause is yet to be moved. I mention this as a matter of technicality and a point of procedure.

Yasmin Qureshi (Labour, Bolton South East)

I rise to ask the Ministers to consider the practical application of the proposed provisions. The fact that there may be one magistrate is not such a big issue, but I ask the Ministers to consider the importance of the presence of either a clerk or a prosecutor—someone who is legally qualified or semi-legally qualified—

Shailesh Vara (Conservative, North West Cambridgeshire)

I have twice said that a clerk will be present.

Yasmin Qureshi (Labour, Bolton South East)

The Minister said that there would be access to one. [Interruption].

Roger Gale (Conservative, North Thanet)

Order. Hon. Members must not have conversations at the back of the room.

Yasmin Qureshi (Labour, Bolton South East)

I understood the suggestion to be that the single magistrate would be able to have access to legal authority or to a legal clerk, as opposed to having somebody present throughout the proceedings. That is the first point we should consider.

On a practical level, a magistrates court normally has set sessions for traffic court cases. At that point everything is in court, and a decision is made as to whether the case goes to trial or for sentence on another date. Who will make that decision when someone has sent in a written guilty plea? Normally, that is the only matter. When someone pleads guilty the case then goes over to another date for a hearing. At that point, who will do that determination? Will it be done by the clerk or by the prosecutors, or will it be done in the normal way by two or three magistrates, with a prosecutor and a legal adviser present? I want answers to those practical procedural questions.

The reason I ask the Minister to consider whether a magistrate who is dealing with these cases should at all times have a legally qualified person or a clerk with them, rather than be able to access one if they need to, is that these cases can be quite onerous in terms of paperwork. Also, problems arise quite often: these cases may be called straightforward, but I could tell the Committee about any number of so-called technical cases that were not straightforward. Let me give an example.

A case involving a defective tyre is considered to be simple. It carries three points, and one would not think that there would be an issue, but if one actually goes into what a defective tyre is and the circumference of the tyres has to be measured and so on, technicalities do arise. For that reason, contrary to what people think, cases such as defective tyres and overweight vehicles or axles can be complex. Road traffic legislation is very technical and can get very complicated. Although there may be three points for a defective tyre or having an overweight vehicle or the axle being too high, those kinds of issues can arise. For that one reason alone, a legally qualified person who knows exactly what they are doing should be present.

Sometimes when there is a whole load of cases, it is very easy not to realise what is happening in some of them. For example, there may be something in someone’s written explanation that qualifies as exceptional hardship or mitigation. These are the kinds of things a lay magistrate will have to deal with. I say without any disrespect that although there are good lay magistrates, in my earlier years I had experience of magistrates who perhaps do not have so much knowledge. To suggest that all lay magistrates know what they are doing and can go through a whole pile of traffic cases and even written guilty pleas without the presence of a lawyer or a clerk will lead to difficulties and problems. I ask the Minister to consider this.

Shailesh Vara (Conservative, North West Cambridgeshire)

A clerk will be present when a single magistrate is sitting, so the magistrate will have access to legal advice. Let there be no confusion: a clerk will be present.

All relevant stakeholders will be consulted, and we spoke to many of them before we came up with the proposals. We did not simply think them up in a back room somewhere; we have had detailed discussions with relevant people, who, broadly speaking, support the proposals, including the very people who will be taking the decisions: the magistrates themselves.

As I said, the cases are low level—lower level than a single magistrate can deal with at present. There are more than 23,000 magistrates, and many of them will not want to do such work. There will be a process. Again, we will speak with relevant people to ensure that the right people deal with the cases. We are putting in place a framework on which there is consensus. In terms of the minutiae, all the relevant people will be consulted, because we want to get it right. We do not feel that justice will be in any way impaired.

Andrew Slaughter (Labour, Hammersmith)

Believe it or not, we are quite supportive of the proposal. Many of the critics I quoted are also supportive of greater efficiency and simplifying a lot of the formalities in the process, and that is to a large extent what the clause does. We are concerned about a single point, which my hon. Friend the Member for Bolton South East raised: the cases may be complex and there is such a volume of cases that it places a huge onus on one person to sit there and get it right every time. Alright, there may be too many safeguards in the current system, with the parties represented, a prosecutor, three magistrates and the panoply of open court, but we have two concerns, one of which we will come to in a moment.

The other concern is that one magistrate is simply not enough. I will say no more now, because we will not oppose the clause. We will think about it when we come to decide on the new clauses. I am minded not to press the new clauses to a vote, but I want to place on the record our strong worries about such a radical change. I hope the Government will at least promise to review the situation and ask the agencies and organisations such as the Magistrates’ Association and HMCTS to ensure that the matter does not simply disappear from sight.

Roger Gale (Conservative, North Thanet)

At the appropriate time, it will be necessary for the hon. Gentleman to indicate that the new clauses are not moved—that is the expression.

Clause 25 - Instituting proceedings: further provision

Andrew Slaughter (Labour, Hammersmith)

The impact assessment states:

“In accordance with Government policy to make best use of the Criminal Procedure Rules, maximum allowance will be made for procedures to be determined by the Criminal Procedure Rule Committee, with only the most fundamental requirements and safeguards being on the face of the legislation.”

The clause essentially deals with the issue of criminal procedure rules, which, of course have a place. We are concerned about that intention in relation to important processes—I will not repeat why they are important processes; I think that is accepted by all members of the Committee—but it is wrong, as a matter of principle, to ensure that as much as possible is not in primary legislation.

Shailesh Vara (Conservative, North West Cambridgeshire)

The clause contains technical amendments on account of the modified method of initiating criminal proceedings by way of written charge and single justice procedure. The clause amends section 30 of the Criminal Justice Act 2003 to make technical modifications. It ensures that the criminal procedure rule committee can make provisions relating to the single justice procedure notice. This will ensure that both written charge processes are consistently applied. The committee’s goal is to simplify and streamline the way in which criminal cases are managed within courts to prevent avoidable delays.

In addition, the clause will insert new subsection (5)(c) into section 30 of the Criminal Justice Act 2003, so that existing references in legislation to summonses will be read as including the single justice procedure notice. Under the traditional method of initiating criminal proceedings, the summons is the document that requires defendants to attend court for the proceedings. The single justice procedure notice will create a different type of obligation on the defendant: to provide the court with written information. The new subsection will ensure that that new type of obligation is treated the same in legislation as the traditional obligation to attend. Those are merely technical changes arising out of clause 24.

Clause 26 - Trial by single justice on the papers

Roger Gale (Conservative, North Thanet)

Before I call Mr Slaughter to move amendment 40, let me say that I have looked carefully at the quantity and quality of the amendments to the clause and it is clear to me, even at this stage, that by the time we have worked through all the amendments, we shall have discussed most of the matters arising from the clause. I am therefore unlikely to call a clause stand part debate. If hon. Members wish to raise matters that do not necessarily relate directly to the amendments, they may do so, on the clear understanding that there will not be a clause stand part debate.

Andrew Slaughter (Labour, Hammersmith)

I beg to move amendment 40, in clause 26, page 25, leave out lines 27 to 32.

I am grateful for that indication, Sir Roger. We can be fairly brief in speaking to our amendments to the clause, as some of the ground has already been covered. That may give some comfort to the Committee and the usual channels.

Whereas it is perfectly proper for a trial to take place where there has been an acknowledgement from the defendant, it is not where there has been no response. The amendment deals with the in absentia point, which I have already covered. There is something obnoxious about trials proceeding in the absence of parties when the reason for that absence is not known. The Minister will no doubt say that situations where no notice was received can be dealt with after the event by statutory declaration, where there is some good reason, but that cannot be best practice. Best practice must be that the court is in possession of all the facts when trying a case. If the court has heard nothing from the defendant, it is likely that it is not in possession of all the facts, and the process would be imperfect.

In other jurisdictions trials in absentia are common, and happen on serious, even capital charges. Clearly, nothing like that happens in this jurisdiction. We try to set an example, ensure that the basic principles of fair trial are adhered to and conform with the principles of the European convention on human rights. I therefore suggest to the Minister that it would be appropriate to adopt the procedure only in cases where there has been a response from the defendant.

Valerie Vaz (Labour, Walsall South)

It is a pleasure to serve under your chairmanship, Sir Roger. To start with I wish to state that I was present at the first evidence session on 11 March, but my name was not listed in the formal minutes. I would like to correct the record.

I rise to set out my concerns about the clause and the provision that allows magistrates to sit as a single justice in certain circumstances. My concerns have two main grounds, and I hope to suggest a way forward—even to save costs. First, the provision offends the basic principles of the justice and legal system in this country. Secondly, it will not do what is intended, which is to save costs.

I was dismayed and disappointed by the Minister’s saying that he needs to speed up the whole process, because justice—like democracy—is hard fought, hard won and takes time, and we need to examine the issues carefully. Will justice be done or be seen to be done? I do not think so. It is one of our basic principles that cases—except security cases—are heard in open court and that we have open justice. In my view, the proposed procedure will undermine that principle. We are told that it will be used in straightforward cases, but that is all the more reason to have those cases heard in open court and not in some side room, as has been suggested.

I know that I am probably speaking as a lawyer now, but it is necessary to have the formality of a court, particularly when it is pronouncing a judgment or making an order. Although my hon. Friend the Member for Hammersmith has raised the issue of the number of offences and the list of offences, it is still not quite clear what they should be and what they are. I would be pleased to hear the list from the Minister. One suggestion is the simple, straightforward one of TV licence evasion, but that is a criminal offence and can be punishable with imprisonment. Almost 50 people a year—about one a week—are imprisoned for it. Also, there is an issue about TV licences, which we will not go into just yet.

To me, a single magistrate goes against what the magistracy was established for in the first place. The magistracy should provide two or three magistrates with a broad experience of life, from different backgrounds and reflective of society, to sit in judgment on a case. From Magna Carta—which we will soon celebrate—onwards, the accused has had a right to a fair trial. In every hearing, would a single magistrate have to indicate that the proceedings are article 6 compatible? They ought to do so. I have not been able to find in any of the clauses whether magistrates have to give reasons for their decisions, which they should do, if they are sitting as a single magistrate, in the proper administration of justice. Whether the offences they are considering are serious or not, they should all conform to the principle of justice being done and being seen to be done.

The clause will amend the Magistrates’ Courts Act 1980. New section 16A(6) of that Act says:

“The court may try the charge in the absence of the parties and, if a party appears, must proceed as if the party were absent.”

However, new section 16B(2) says that notice can be given to a designated officer that

“the accused does not desire to be tried in accordance with section 16A.”

So there will be a situation where the accused turns up at court right at the last minute and serves a designated officer. Can they stop the hearing? Apparently, the magistrates can say no.

What about saving costs, which is the key plank of the clause? What evidence does the Minister have that the procedure will save costs? This is not about a straightforward hearing, where all the evidence is there, let alone the accused. As we have heard, the accused could turn up at the last minute. If we look at the amendments to the 1980 Act we see that the clause is littered with situations where magistrates have to adjourn cases in certain circumstances. I point to new section 16D(3), or new section 16C(2), whereby a person has been tried under single magistrate procedure and the single magistrate wants to disqualify them but has to give them an opportunity to make “representations”, so if the person is not there, the case has to be adjourned. That will not save costs. It looks as if cases will be adjourned left, right and centre if someone turns up at the last minute, which they are likely to do, or if things get difficult.

If the single magistrate wants to issue a summons requesting that someone attend court, logically that defeats the purpose of having a hearing before a single magistrate, because new section 16D(3) says that if a single magistrate issues a summons, lo and behold, the case has to be tried by a district judge or two justices in open court. This is “simplified” procedure, but we have a procedure now whereby we could end up with a situation where the usual route—if it had been used in the first place—would have been much more cost-effective and efficient.

The single magistracy offends this country’s hard-won system of justice. My hon. Friend the Member for Bolton South East mentioned advice given by a clerk. If a clerk sits in a room with a single magistrate, there is no one to say whether they are interfering with the magistrate’s decision, which they cannot—there is case law to that effect. What about the advice? Two or three magistrates can stand up to a clerk and discuss a decision, or they can do so on their own if they are legally qualified, but a single magistrate might feel overpowered.

What about consistency of sentencing? There is not consistency of sentencing now, so how can we be sure that the relevant reasons have been taken into account in a closed courtroom? People go to open court for all sorts of reasons. They go to see how it works. They go as students, as jurors or because they have to defend themselves. That is all the more reason why all cases should be conducted in open court.

The Government have proposed the clause as if it is a simple, straightforward procedure, and it is clear from what I have set out already that it is not. Things can become much more complicated. The Minister said that he has had discussions with the Magistrates Association, but I do not know whether it completely supports the measure. There appears to be an assumption that we are talking about the simple, straightforward paperwork or box work that district judges undertake. These cases are not simple box work; they are much more complicated.

The Minister might consider it a way forward to have uncontested cases listed in the hearing list as floating cases that can float over a number of days, so that people are aware of whether they are going to be heard on a certain day. The cases could be put at the end of a hearing list when, say, two magistrates are sitting. That will not raise costs and there will be the benefit of having two magistrates consider such cases.

Lord Bingham said that magistrates are a “democratic jewel beyond price.” I urge the Government to think again about the clause and allow magistrates to do what they do best, which is to ensure that justice is done.

Shailesh Vara (Conservative, North West Cambridgeshire)

I thank the hon. Lady for her speech, which I know is based on conviction; I compliment her on that. I would like to give her some comfort, and I hope that by the time I have finished my few remarks, I will have succeeded in doing so.

Justice will be done, but we have to recognise that times have changed and, as the hon. Member for Hammersmith said, cases are being dealt with in volume. We need to acknowledge that many of those cases are routine. I emphasise that any defendant who wishes to have her or his case decided in open court can opt for that at any time up until the single magistrate has made their decision, provided that they have notified the court. The measure applies to more than 2,000 offences, and it would be impracticable to list all the offences that may be in scope, for the simple reason that—as we of all people know, as legislators—the list is ever-changing. Not everything on the list will qualify, because the relevant people will get together to set guidelines to ensure that only routine, summary and non-imprisonable cases will be dealt with in that way.

The hon. Lady refers to article 6, and yes, the clause is compatible with it, because anyone who wants to have their case heard in open court can do so. The measure is just for cases in which people have pleaded guilty or do not bother to plea. Indeed, the presumption at the moment is that all summary trials in the traditional magistrates court go ahead whether the accused is present or not. We have to be careful not to make arguments against the Government’s proposals when the systems actually exist now. That is important.

The hon. Lady mentioned costs. The total costs are estimated to lie in the range of £3 million to £14 million at 2013-14 prices over 10 years, in present value terms. That is split between transition costs and ongoing costs. The total benefits are estimated to lie in the range of £49 million to £67 million at 2013-14 prices over 10 years, in present value terms.

The hon. Lady mentioned people turning up at court. Under the single magistrate procedure, it is envisaged that a list will be published saying, “By x date, the following cases will be dealt with.” Nobody will know precisely on what day their case will be dealt with, so turning up in court will be difficult. However, they will know that their case will be dealt with by a future date and, after that date, the results will be made available to the public. We are looking further, given electronic devices and advancements in technology, at whether there is another way that the public can be informed about what has happened. We are exploring all possibilities in that regard. Any individual who wishes their case to be heard in open court has that right and can exercise it, right up to the point at which a decision is taken.

I leave the hon. Lady with some figures. Criticism is levelled at the new procedure, although a significant number of defendants fail to respond under the current procedure. For example, for summary motoring offence proceedings, some 52% of cases dealt with by the magistrates court are heard without a plea and in absentia.

Yasmin Qureshi (Labour, Bolton South East)

On a point of clarification, am I right in thinking that a date will be published by which someone’s case will be dealt with, rather than a date being published on which it will be dealt with? If that is so, somebody could, for example, be asked to declare whether they have a conviction when obtaining an insurance policy and, if they do not know when that happened, they could say “No, I haven’t”, although they could have one. Or an insurance company might ask, “How many points did you get?”, but the person would not know what was happening. Practical problems may be caused if a result is not published as and when it is given.

Shailesh Vara (Conservative, North West Cambridgeshire)

I want to be precise about my wording. Under the proposal, a particular case would be heard not before x date. For example, if the hon. Lady were up for speeding, under the proposal, her case would be heard not before, say, 20 April. The reason is that, clearly, there will be a volume of cases involved. There will be certainty that a case will be heard not before x date. However, after it is dealt with, there will be publication of what has happened. In respect of queries from an insurance company, an individual can, until the point when results are published, write to the court and say that they wish to have their case heard in open court, in the traditional way. It is important to recognise that an individual’s right to have their case heard in open court is there.

On individual cases, the hon. Lady needs to appreciate what I say. We are dealing with low-level cases; 52% of cases concerning summary motoring proceedings, for example, are heard without a plea. People who cannot be bothered to make a plea are hardly likely to want to seek the kind of information that the hon. Lady is seeking. I hope that she will settle for that. We may have to agree to disagree, because I am mindful that we are going around the same issue. I repeat that we are talking about low-level offences from a list of more than 2,000. To the extent that there are any queries, people could stand here for ever and a day raising this, that and whatever, but the point is that we are not talking about this, that and whatever case.

Yasmin Qureshi (Labour, Bolton South East)

I think that the Minister misunderstands my point. I am not talking about which cases are dealt with by what procedures. I asked for a clarification. Did I understand him correctly? Will the result not be published at the point when a decision is made—on that day? That is the only query. I was asking a technical, procedural question about the scheme.

Shailesh Vara (Conservative, North West Cambridgeshire)

The results will be made available as soon as is practical. Right now, people are heard, and then a list is made with the result. Given what I said earlier about being mindful of technology, openness and transparency, the hon. Lady can rest assured that the results will be made available to all and sundry as soon as is practically possible. We will speak to all the relevant people. The journalists who do not turn up for these kinds of cases—media organisations do not even have the resources to attend some of the more important cases—can apply at present, and will continue to be able to apply, for a list of results, and they will continue to get it. I emphasise—and conclude, I hope—that we are talking about relatively straightforward, low-level cases.

Valerie Vaz (Labour, Walsall South)

Will the Minister give way?

Shailesh Vara (Conservative, North West Cambridgeshire)

No, I will not.

Andrew Slaughter (Labour, Hammersmith)

I will not deal with the transparency point, because we have amendments on that coming up, but I think that this is a sensible amendment. It simply says that one should not be able to waive one’s right to trial by omission; that there should have to be some explicit act providing that waiver. I suspect that the Government’s reason for opposing it is not that they object to the principle, but that they fear they will not make sufficient cost savings if they go down that route, for the reasons the Minister has given—although, having heard a completely new set of figures on savings from the Minister, different from the one I read out from the impact assessment, I suspect that the Government have no clue about what the savings will be under this system. This is an issue of fair trial, but that specific point is probably better dealt with under amendment 45, so I will not pursue it. I beg to ask leave to withdraw the amendment.

Shailesh Vara (Conservative, North West Cambridgeshire)

I beg to move amendment 53, in clause 26, page 25, line 27, leave out ‘for the magistrates’ court’.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss Government amendments 54, 54A, 55, 56 and 60.

Shailesh Vara (Conservative, North West Cambridgeshire)

As I explained earlier, this procedure is intended to introduce a more flexible and efficient process for administering cases, so that they can be dealt with in any magistrates court, irrespective of where the offence originated. To facilitate that, we have ensured, through these amendments, that the single justice procedure notice identifies a designated court officer, who is responsible for administrating the process, rather than a specific magistrates court. We are also making it clear that while the cases remain uncontested and subject to the discretion of a magistrate conducting the procedure, they can be allocated to any magistrates court, rather than a specific court associated with a designated officer, or in a particular area.

Andrew Slaughter (Labour, Hammersmith)

I beg to move amendment 41, in clause 26, page 25, line 38, at end insert—

‘(c) a submission from the DVLA to inform the court of any penalty points endorsed on the defendant’s driver record.’.

This is a different kind of amendment. It is genuinely trying to be helpful in improving efficiency. All our amendments are trying to be helpful, but are about the principle of a matter; this concerns the practicalities. I am, however, cribbing from the written evidence submitted by the Magistrates Association, which points out the following, in relation to how the procedure operates now:

“The Bill requires the court to try the charge relying only on the documents served on the defendant and any written mitigation supplied by him…The court needs more than that to make the right decision about whether it should adjourn the matter, as required by statute, to consider disqualifying an absent defendant from driving. The court needs to know whether the defendant has sufficient points on his record that the current offence will make him a totter (liable to disqualification as having amassed 12 points). There is an automatic safeguard in using such information from the DVLA which was not supplied initially to the defendant with the written charge, because he can make further representations and mitigation in time for the matter to be considered again after the adjournment”.

We do not see this as an unfairness point, because we say that as long as the court is not losing cases among the hundreds in front of it, and if it has that information before it, it will properly adjourn the case and inform the defendant that he may be subject to disqualification. Totting is a big issue, because there are the peculiar circumstances where defendants manage to accumulate far more than 12 points. The issue of disqualification needs to be taken seriously—and I am sure that it is taken seriously by all magistrates when they look at the matter. However, it would be helpful to them to have all the information before them at the earliest opportunity, and this amendment specifically includes that among the evidence that will be presented.

I understand why the Government wish to be clear about what evidence is and is not admissible. It includes any defendants’ mitigation that may be there; we say that in addition, there should be a submission from the Driver and Vehicle Licensing Agency informing the court of any penalty points disclosed on a defendant driver’s records. That information may be before the court, but—this really is going back into the mists of time—I can remember doing road traffic cases, and that was honoured more in the breach than the observance. If you were defending somebody who turned out to have a considerably worse driving record than the court acknowledged and they got away with it for whatever reason, I am sure they thought that they had had a good result. However it brings the whole process into disrepute. That is the worst of it. At best, it causes delay and confusion in the process. This is intended to be a helpful amendment and I hope the Government can accept it.

Julie Hilling (Labour, Bolton West)

This gives me my first proper opportunity, Sir Roger, to say what a pleasure it is to serve under your chairmanship. This is a major issue for me and something that I have been dealing with for the last couple of years. I feel it may be a bit of a solution to the runaround I have been doing. I went to see Transport Ministers, who sent me to Justice Ministers, who sent me to the Sentencing Council, who sent me back to Justice Ministers, who sent me back to Transport Ministers. In all of that, I have made very little progress.

As I have already said today, I am concerned about trivialising driving offences and worry that these low-level cases can add up to some serious issues, particularly people choosing to continue to ignore driving law. How on earth can people tot up the number of points they do if they do not see themselves as above the law, able to ignore it and continue to drive as they want? I say this again, because it is really important: the most common cause of death for 15 to 24-year-olds in this country is accidents on the road, and in the majority of those cases, speed is an important factor.

The figure has gone down—I will give the Government that—but we have 8,000 people driving with more than 12 points on their licence. People are supposed to be not barred at 12 points only in cases of exceptional hardship, and the same reason cannot be used more than once. Losing one’s job is not a case of exceptional hardship. I do not therefore understand how people such as the Liverpool man with 47 points on his licence, or the Bolton driver with 27 points, can continue to drive. I do not know about those two individuals, but the cynic in me might say that there is something about being rich that enables people to plead exceptional hardship and to continue to drive with excessive points on their licence.

Let me give some examples. Zak Whitbread, the former Norwich City player, said that he needed his car to look for a new job. I am shocked that a premier league footballer could not afford to pay someone to drive him around or could not simply take a taxi, the train or a bus like the rest of us. Kieren Fallon, the jockey, said that he could not afford to pay a full-time driver. Why could he not share cars, book a taxi or do what the rest of us do? Alex Williams, the Tory candidate for Stretford and Urmston at the last election, got off because he said he could not afford to pay his £2,000 a month mortgage if he could not drive. The Squeeze singer, Chris Difford, even though he earns up to £100,000 a year, said that he could not travel up and down the country playing gigs, and the son of the singer Tony Christie said he would not be able to drive his dad to gigs. There are many more examples, but I will not delay the Committee with them.

The Bolton News did a survey recently of its readers. Eighty-three per cent. of respondents said that drivers with more than 12 points should always be banned. Public opinion says that it is wrong that people continue to drive with excessive points on their licence. Magistrates tell me that they need better guidance. The Transport Minister tells me that it was a problem with the DVLA but that it has been solved. It cannot possibly be solved if last year 8,000 people continued to drive with more than 12 points. The Justice Minister says that it is for the Sentencing Council. But, again, how come we have so many people driving with more than 12 points on their licence?

The amendment would at least ensure that the magistrate has up-to-date information. One of the concerns expressed by various Ministers throughout the Government is that people are not being banned at 12 points because the magistrate did not know that they already had 12 or 15 points. I do not say that everybody should be automatically banned at 12 points and that we should not have exceptional hardship, but to have exceptional hardship in so many cases where people have continued to breach the law is absolutely wrong. Therefore, I urge the Minister to accept the amendment. It makes absolute sense. It would ensure that at least one of the loopholes by which people are continuing to flout the law and drive with more than 12 points on their licence is closed. It is an exceptionally sensible amendment. I hope the Government listen.

Shailesh Vara (Conservative, North West Cambridgeshire)

To be fair, the Government have given the amendment serious thought. I want to emphasise that point. The hon. Lady may have the impression that I am in some way trivialising motoring offences. I am not. I want to put that on the record and make it abundantly clear. I am talking about a scale of motoring offences. The offences I am talking about—where there is no injury and simply an issue of speeding—are at the bottom of that scale. That is reflected by the fact that someone who commits such an offence will not be sent to prison but will get three points and carry on with their everyday activities. I am talking about the very low-level driving offences, not the very serious offences. The safety of the general public is paramount. The Government take road safety very seriously, which is why we have recently increased the maximum sentence for causing serious injury by dangerous driving to five years’ imprisonment.

Julie Hilling (Labour, Bolton West)

They may be minor speeding offences that would not amount to dangerous driving, careless driving or any of those other charges, but does the Minister accept that totting them up shows a disregard for the law? That is what the amendment addresses. I accept that he is not trivialising motoring offences.

Shailesh Vara (Conservative, North West Cambridgeshire)

I accept that there is a totting-up element, and that it is possible for people not to take seriously the rules and regulations that should be obeyed.

I will come to the amendment in a moment, but I want to conclude my remarks about the seriousness with which driving offences are treated. I hope the hon. Lady appreciates that some traffic offences take six months to deal with, from the offence to completion, and that that is a huge drain on the smooth running of the criminal justice system, taking focus away from more serious offences, some of which she has referred to. We find that unacceptable.

Our proposals are about getting poor drivers before the court and getting them dealt with more quickly. More serious cases, such as drink-driving and careless driving involving damage or injury, are likely to be too serious to be dealt with under the new procedure. The new procedure simply is not for such cases. Causing death by dangerous driving can be dealt with only in the Crown court. That continues under our proposals.

Amendment 41 would introduce a new requirement that the documents sent to the defendant with the single justice procedure notice should include a copy of the submission from DVLA to the court, informing the court of any penalty points on the defendant’s driver record. The purpose of the single justice procedure is to make the system more efficient. The amendment would create an additional—it does not currently exist—unfunded administrative burden on the criminal justice system.

Where cases are currently heard in the absence of the defendant, no advance notice is given of the state of their driving record. Indeed, it is the explicit responsibility of the holder of a driving licence to ensure that it is kept up-to-date by surrendering it as and when required, for details to be changed or endorsements to be added. If there are endorsements on a driving record that do not appear on the counterpart of the corresponding driving licence, the licence holder might well be committing a further, separate offence.

I share the concern of the hon. Member for Hammersmith about ensuring that defendants are protected under the procedure, but the amendment would afford them something that is not provided for in the current system, eroding some of the responsibilities that we all have as citizens. However, I agree that up-to-date DVLA information is important when it comes to deciding the sentence for such offences. I want to ensure that the drafting of the provisions is sufficient to enable a single justice to have access to such information in the same way that magistrates courts currently do. I would therefore like to consider the point further, with a view to tabling any potential amendments on Report.

Although, therefore, I cannot accept the amendment, I am grateful to have a spotlight on the issue of DVLA information. On the basis that we will consider the issue further, I ask the hon. Gentleman to withdraw his amendment at this stage.

Andrew Slaughter (Labour, Hammersmith)

I am sorry, Sir Roger; I was momentarily distracted by a tweet from the Minister for Policing, Criminal Justice and Victims. He has just tweeted his support and praise for magistrates. How opportune! It was a coincidence, I am sure.

Roger Gale (Conservative, North Thanet)

Thank you for sharing that.

Andrew Slaughter (Labour, Hammersmith)

I am grateful for what the Minister says, and I accept it. Some of the instances that my hon. Friend the Member for Bolton West was talking about would be times when the court was in possession of the full facts, and had made a judicial decision that there were exceptional circumstances. I agree with the view that that is right and should continue; magistrates should be entrusted with that power. However, many of the cases that she alluded to are extremely worrying, and one wonders how such circumstances can come about. I am talking about different circumstances, where administrative problems result in the court not being in full possession of the facts, or where it must take further steps and incur further costs to gain full possession of the facts. I think the Minister takes that point.

I do not accept the Minister’s argument about additional administrative costs. The offences may be low level, as the Minister has told us several times, but that is no reason for not getting things right, including for persistent offenders. I am grateful for the assurance that he will re-examine the issue, and on that basis I beg to ask leave to withdraw the amendment.

Andrew Slaughter (Labour, Hammersmith)

I beg to move amendment 42, in clause 26, page 26, leave out lines 5 and 6.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss amendment

Amendment 44, in clause 26, page 26, line 18, at end insert—

‘(12) Prior to a paper procedure the court must publish the cases to which it will apply and when it will take place, and

(13) Following a paper procedure the court must publish the outcome.’.

Andrew Slaughter (Labour, Hammersmith)

These are important amendments. I do not think it will be possible for the Minister to say in response that he has consensus on his side. I do not think I have read a briefing from any of the very learned parties that have put their minds to these clauses that is at ease with them. The amendments concern the principle of open justice. Amendment 44 is about reporting processes and transparency, so that it is clear what happens in proceedings. Amendment 42 is the more important and, depending on what the Minister says, it is my intention to put this amendment to the vote.

The Ministry of Justice’s impact assessment is a useful document, not least because it is so full of holes. It says:

“It is not the intention of this work that these cases should be heard ‘in private’, so work to mitigate any potential impact on open justice will take place to ensure that the public access to relevant case information is maintained. As part of the Government’s wider transparency agenda, we are also looking at further ways of making the court processes and outcomes more transparent to the public.”

That will not do. A vague assurance that, having removed half of the proceedings in magistrates courts from open court, they will then seek to mitigate that in some unspecified way is not good enough. I will pray in aid what the Magistrates Association says on this point. It is brief, but to the point:

“The MA is well aware that few members of the public attend to listen to and observe cases where the defendant is absent. However, it is a principle of British justice that cases are heard and that the results are made known in public and we would be sorry to see this principle abandoned, even for the cases which this Bill deals with. We would be concerned if the general public perception became that these cases were no longer criminal cases handled by magistrates with the same rigour as every other criminal case … MPs might like to consider whether these proposals will trigger an adverse public reaction among those who distrust politicians, are increasingly suspicious of police integrity and who say that the Government is at war with motorists. These proposals may present an open-goal to tabloid newspapers running campaigns on secret courts and roadside cameras being there for cash generating purposes rather than for road safety.”

I think a lot of those points will hit home with Members; they certainly do with me—my local authority makes £19 million profits out of traffic enforcement every year. Both Liberty and Justice make similar points in their submissions that this offends the basic concept of open justice. The PCS union who gave evidence made the same point:

“PCS is concerned that justice will not be seen to be to be done. Offenders will not even know which court is hearing the case. It will be difficult to discern which case an endorsement on a driving licence relates to.”

The intention behind amendment 42 is to leave out the part of clause 26 that deals with proceedings not in open court. The principle is very clear. We believe that all proceedings should continue to be in open court. We do not think that is a terribly onerous burden to impose on the new system. The Government give an assurance that:

“In order to preserve open and transparent justice, magistrates’ courts will continue to publish daily case lists on the day of the appointed hearings. These lists are currently, and will continue to be, available to local media. In addition the court will still be obliged to give certain case information to the public on request, as they are currently.”

The Magistrates Association points out that the Government’s assurance on this point is faulty. The association notes:

“Paragraph 12 of the same fact sheet speaks of the Government’s wider transparency agenda and its wish to make court processes more transparent to the public. However, this Bill provides for a single justice procedure notice which does not need to give a place and time for a court hearing and allows cases to be adjourned without notice.”

The association

“would be interested in any proposals that gave reassurance that there is a real commitment to open justice such as in terms of publishing case lists and outcomes.”

For that reason, amendment 44 would require the court to publish the cases prior to a paper procedure and to publish the outcome following that procedure. The Minister may say that that is the intention anyway, but I would rather see it in the Bill. I would rather know beforehand, first, exactly when cases are taking place, secondly, that those cases will be heard in open court and thirdly, that the decisions will be published thereafter. I cannot see what is difficult here.

For avoidance of doubt, in amendment 42 it is subsection (5) that we seek to remove:

“The court is not required to conduct any part of the proceedings in open court.”

I am interested to hear the Minister’s response on both of those points. Unless he can satisfy us on the central point of amendment 42, we will press that to a vote.

Shailesh Vara (Conservative, North West Cambridgeshire)

The amendments relate to the arrangements for ensuring open and transparent justice in cases heard under the single justice procedure. Amendment 42 would remove the provision that a court can decide a case under the single justice procedure other than in open court. That would undermine one of the main drivers behind the policy, as we consider that the time wasted and the costs incurred in requiring magistrates to sit in open court and decide cases is disproportionate in the type of low-level cases to which the procedure will apply. Allowing a single magistrate to decide a case other than in open court introduces important flexibility, ensuring a quicker resolution to these types of cases.

Amendment 44 would require case lists to be published, both of cases that will be considered by a single justice and of decisions reached by a single justice. The effect would be to lay down in primary legislation something that we believe is best left to criminal procedure rules and to general practice.

I fully agree with the intention behind the amendments. We have made it very clear that we must not lose transparency as a result of these reforms, and we cannot allow the new process to take place without any scrutiny, but I do not feel that the amendments offer an appropriate mechanism for achieving that. Local press do not have the resources to have reporters sitting through cases of this kind. In his evidence to the Committee, Richard Monkhouse stated that in his experience “very few” journalists or members of the public turned up to hear cases involving non-payment of TV licences, for example. It is of course vital that local media have access to information about what happens in the courts, and we will have mechanisms in place to ensure that the public have access to court decisions.

Julie Hilling (Labour, Bolton West)

I find it difficult to accept the Minister’s argument. The fact that a newspaper may not be able to afford to send a reporter to the court surely does not equate with the newspaper cannot send a reporter to the court? My concern with that is that we will be seen to be doing justice in secret, in a broom cupboard somewhere at the back of the building rather than openly and transparently. The concern should not be whether journalists and the public turn up, but whether they can turn up. We should not go down a path that reeks of secret courts.

Shailesh Vara (Conservative, North West Cambridgeshire)

My reference to journalists not turning up to court now was actually to cases where, in the not-too-distant past, they would have turned up, but we are talking about the types of cases that they did not turn up to in the distant past—before the internet came on the radar, in any event. The cases that would be dealt with by a single magistrate would not historically have been those that reporters attended.

I hear what the hon. Lady says about openness and transparency, but we are dealing with a specific type of case that occurs day in, day out. Last week I attended a function and was talking about the Bill with an individual, and she was surprised that such cases are dealt with in open court. She had assumed that, if she got three points on her licence, that would be dealt with by an official or a clerk sitting in a room. As I said, we are dealing with relatively low-level cases.

We intend to make court registers available to local media, and a protocol exists to facilitate that. There is also provision in the criminal procedure rules that obliges a court to give certain information in response to a third party request. We do not intend to publish court lists of cases to be heard that day in the precincts of the relevant magistrates court, which is currently done in relation to cases heard in courtrooms, because owing to the new procedure’s flexible nature, it will not be known which cases will be tried. However, we do intend to publish a list of the cases dealt with in a given period of time. We can include details of the plea in those cases, which will be more information than is currently available.

I am confident that, with these arrangements in place, the new procedure will provide a more efficient and also open and transparent process for reaching the right outcomes in these cases without unnecessary expense to the public purse. I therefore ask the hon. Member for Hammersmith to consider withdrawing his amendment.

Andrew Slaughter (Labour, Hammersmith)

I think that the Minister has given the game away: transparency is being sacrificed for flexibility. He mentioned local newspapers. I do not know whether he saw the Newspaper Society’s submission, but, in relation to this point, it said:

“We share the concern expressed during the Second Reading debate about the proposed departure of the fundamental principle of open justice, by the Bill’s introduction of a procedure whereby a single justice can try a case upon papers sitting in private and not in open court, especially as the decision reached not just upon guilty pleas received but on the grounds of non-response, without proof that the accused had received the relevant notices that legal proceedings had been instigated against them.”

It is clear where the press stand.

As I said, I do not intend to press amendment 44, although I wish that the Government would give further consideration to publicising the proceedings before and after the event, in particular because, as we discovered earlier, such matters could be heard almost anywhere and at almost any time.

Open justice is so fundamental that we are not prepared to withdraw amendment 42. The Minister has given no good reason, whether financial, organisational or practical, that can overcome that basic principle. We are on a slippery slope and the Government, I am afraid, have a poor record on secret justice. We will look at that again on clauses 32 to 35 and the effect of leapfrog appeals on closed material procedures. Those are serious and weighty cases. The Minister will, no doubt, say again that those are low-level cases, but we should not resile from the principle that justice must be seen to be done and that anybody can have, except in the most extreme cases, access to a court.

We have made substantial strides in recent years in further opening up the courts, including the family courts, which had in large part been closed. There is ongoing controversy—there are no Liberal Democrats present, but I was going to pay them a compliment on some of the work they have done on the Court of Protection, which is an ongoing scandal. In fact, I will go further, and pay the Daily Mail a compliment, because it has been excellent on the issue, not just on family courts but on closed material procedures. It is right that we rely on our press, whatever its faults at any other time, to ensure that there is maximum access. Yes, in their self interest, but also I think in the public interest, as well. I suspect that we will deal with a little bit of that this afternoon, when we look at the contempt provisions.

The Minister has provided absolutely no basis for undermining the principle of open justice. He will not think again, so we will press the amendment to a Division.

Andrew Slaughter (Labour, Hammersmith)

I beg to move amendment 43, in clause 26, page 26, line 7, leave out from ‘parties’ to end.

I will deal with the amendment fairly briefly. It is another of those practical and helpful amendments that I know the Minister prefers. Its purpose is to give flexibility to magistrates to hear from either party if they do attend and it would assist the court.

The Minister may blow my words back to me and say that it would be unfair or in some way improper if a process was going ahead with the defendant not having responded or the prosecution not expected to be there, and then one or the other turns up. I rely not on only good advice, again from the Magistrates Association, but on some of the comments made earlier by my hon. Friend the Member for Bolton South East, who has experience in such matters, in suggesting that the Government could be setting themselves up to fail.

The Government are imposing on a single magistrate, working with only the assistance of a clerk, a substantial burden of work, some of which may be highly technical or voluminous, where it is quite difficult to find the facts. If one of the parties is present, trusting the independence and the skill of the magistrate not to be unduly influenced by that party seems to be entirely sensible. Suppose that the prosecutor said, “The essence of this case is x,” and the magistrate, having been taken to a particular document, paragraph or section in the case before them, is able to see that that is the case; or suppose that the defendant, through mitigation or representation, clarified the matter. By drafting the clause to say:

“The court may try the charge in the absence of the parties and, if a party appears, must proceed as if the party were absent”,

the Government will have made a rod for their own back. We simply suggest deleting the second part of that sentence. That would still allow courts to try the charge in the absence of the party, but would give additional flexibility—that word on which the Minister has relied so much this morning, along with “low-level”.

Shailesh Vara (Conservative, North West Cambridgeshire)

The amendment would allow a single justice to hear and consider evidence from a party to the case if they turn up when the single justice is considering a case. In practice, parties will not know when a case will be considered by a single justice under this new procedure, so it is extremely unlikely that this situation would occur. In any case, there is clear provision in the Bill which states that when a person wants to be heard by a magistrates court, they are perfectly able to request a hearing. I hope that the hon. Gentleman will consider withdrawing this amendment.

Andrew Slaughter (Labour, Hammersmith)

That does not answer my point because, however rare it may be, if it does assist then it assists. However, in the interests of flexibility—shall we call it—I beg leave to withdraw the amendment.

Shailesh Vara (Conservative, North West Cambridgeshire)

I beg to move amendment 57, in clause 26, page 27, line 24, leave out from ‘be)’ to end of line 28.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss Government amendment 58.

Shailesh Vara (Conservative, North West Cambridgeshire)

The Government are clear that in circumstances where the single justice procedure is not appropriate, the case should return to a traditional magistrates court. New sections 16B and 16C of the Magistrates’ Courts Act 1980, inserted by clause 26, provide for this. In those cases, the single justice must adjourn the trial and refer the case to a traditional magistrates court. All the current rules about summary proceedings will apply to this traditional magistrates court, in particular the rules on the size of the bench and the requirement to sit in open court.

The traditional courtroom to which the case is referred and in which it is dealt with thereafter will not necessarily be in the same area in which the single justice sits. These amendments relate to the process by which that single justice can, where necessary, summons the defendant to a court in a different justice area if that would be more appropriate. This might, for example, be in the area where the offence took place, or closer to the defendant’s place of residence.

The first amendment would remove new section 16D(1)(b). That paragraph would have provided that the single justice issuing the summons and the traditional court specified in the summons are to be treated as being in the same local justice area. Having reflected since its drafting, we think the provision is unnecessarily complex and that the summary trial provisions will work across local justice areas. Because it is unnecessary, the wording should go.

The second amendment relates to the power of the justice of the peace to issue a further summons after the single justice has already issued a summons referring the case back to a traditional magistrates court. This is a supportive power, in case something goes wrong with the original summons. The amendment makes clear that the further summons can require the accused to appear before any magistrates court. This simply mirrors the power to issue the first summons. As with the first summons, the magistrates court would be in an appropriate area, for example where the offence took place or closer to the defendant’s place of residence.

The amendments are both about ensuring that when a case emerges from the single justice process to go before a traditional magistrates court, that court is appropriately located.

Shailesh Vara (Conservative, North West Cambridgeshire)

I beg to move amendment 59, in clause 26, page 28, line 5, at end insert—

‘( ) This section does not apply if the trial of the written charge has been adjourned under section 16B(3)(a) or 16C(3)(a).’.

Andrew Slaughter (Labour, Hammersmith)

I beg to move amendment 45, in clause 26, page 28, line 11, at end insert,

‘or that the accused did not understand the documents specified in 16(a)(2).’.

It is a pleasure and delight to see you back in the Chair, Mr Crausby. As you can see, we are making good progress, and we will no doubt continue to do so this afternoon.

Amendment 45 picks up on what we discussed under amendment 40 in what I hope is a slightly more refined way that is therefore more attractive to the Minister, regarding whether someone needs an explicit waiver. He rejected amendment 40 for what I am positive were financial reasons, so amendment 45 puts the proposal in a milder and more reasonable tone.

Just before lunch, the Minister was refining the process of making a statutory declaration, which is uncontroversial. Clearly, if someone is prepared to swear that they did not receive notice of proceedings, those proceedings should be set aside.

We feel that the Minister should go further than that, but only a little: if notice—a summons or the new documentation under the single justice procedure—was received, but for some reason, which is easily imaginable, the defendant did not understand the papers or what they had to do with them, and is prepared to swear to that by statutory declaration, the same rule should apply. That is why we propose to include in the clause the words,

“or that the accused did not understand the documents specified in 16(a)(2)”,

which are the documents to which I have already referred.

My hon. Friend the Member for Bolton South East spoke this morning about how legal documents may be intimidating or incomprehensible to even relatively educated lay people who receive them but are not used to receiving them. They have to, in many circumstances, follow a particular form, which may not be a common form, or which might not use language or be set out in a way that is easily understandable. The situation would clearly be worse if that person did not speak English as a first language, or if they had literacy problems. Let us imagine that the person being served with a summons had recently come out of prison and been starved of reading material by order of the Lord Chancellor over the past few years. There are all sorts of circumstances where that could happen.

If a defendant has received papers in the normal way and does not deny that they arrived at the address or had been served on them in some way, but did not understand what they were supposed to do and is prepared to make a statutory declaration to that effect, we say that that any proceedings should be voided, and there should be a rehearing.

The reason why that is important is article 6 of the European convention on human rights, which we mentioned this morning. Article 6 concedes—this is the distinction I drew between that and the draft declaration—that there are circumstances in which the right to attend trial may be waived. However, that must be established unequivocally and be attended by a safeguard commensurate with its importance. It must be shown that the defendant understood what the consequences of waiver would be.

The notice must therefore explain proceedings in clear terms, setting out what the single justice process must do. No doubt the legislation and the regulations made under primary legislation would do that. However, as I said this morning, where advice is unlikely to be available and where documentation may be confusing, it seems entirely reasonable to give a second chance to a defendant who says, “No, I did not understand that I was supposed to send the form back or that I was supposed to attend that particular court on that particular date to make representations or put them in writing.”

Shailesh Vara (Conservative, North West Cambridgeshire)

It is good to see you in the Chair again, Mr Crausby. There is no requirement to waive a right to trial in open court explicitly under the European Court of Human Rights. The Court recognises that tacit waiver can be compliant with article 6 if, for example, the accused has simply not sought to engage in the process.

Amendment 45 introduces another condition on which a defendant can make a statutory declaration so that, in addition to being unaware of the proceedings, the defendant can state that they did not understand the information contained in the single justice procedure notice and the accompanying documents. The associated documentation sent to defendants under the single justice procedure will be no more complex than the documentation which is currently sent in this type of case; indeed, we are confident that the flexibility offered by this new procedure will enable us to make the whole system for these cases more easily understood by defendants. Enclosed with the single justice procedure notice, the defendant will receive information explaining the offence which has given rise to the proceedings, the options available to them, and the consequences of not responding to the notice.

As with the existing process, prosecutors have developed strategies to identify those who may require further assistance and Her Majesty’s Courts and Tribunal Service are also considering, as part of the implementation planning, how it will continue to discharge its duty to provide assistance to unrepresented defendants.

It should be remembered that a defendant will have the right to request a traditional hearing in open court at any point before his or her case is considered by the single justice. If a defendant does not know about the case until after it has finished, they can make a statutory declaration to that effect, which will start the proceedings again from the beginning. I believe that the provisions provide magistrates courts with the flexibility they need to operate the single magistrate procedure effectively while ensuring that the rights of defendants are protected. I therefore ask the hon. Member to withdraw his amendment.

Andrew Slaughter (Labour, Hammersmith)

I hear what the Minister has said and am happy to beg leave to withdraw the amendment.

Clause 27 - Trial by single justice on the papers: sentencing etc

Andrew Slaughter (Labour, Hammersmith)

I beg to move amendment 46, in clause 27, page 29, leave out line 39.

Clause 27 deals with the sentencing powers of the single justice. I will not repeat the argument we made this morning that two heads are better than one. I am grateful that the list of sentencing options is quite comprehensive, unlike the list of offences, although it reveals what a raft and range of financial penalties a court can impose. We will have an interesting look at that when we come on to clause 29.

We have singled out the last of the options, which is discharging the accused absolutely or conditionally, and said that it should not be within the remit of the single justice. It is right to say that it is not the only non-financial penalty. The same argument could also apply to proposed new subsections (i) and (j), which refer to disqualification and endorsement offences. Absolute and conditional discharge, however, are singled out because they are different in kind, particularly from all the other financial penalties. Of course, there is an informal hierarchy of penalties in which a discharge would come below—that is, it is considered less severe than—a financial penalty. I would argue, however, that that is not always the case and that a discharge imposed by the court can often be a rather more finessed and complex sentence than a financial penalty.

In other words, the Opposition have no quarrel with a single justice being able to impose the different types of financial penalty, and even the disqualifications are likely to be quite mathematical—there will be a look at the driving record or circumstances, and at the defendant’s means. I think most magistrates would say that they have a ready reckoner for dealing with such matters and, subject to means, that there are some index amounts for separate offences depending on the defendant’s record and other matters.

In my experience, however, there may be exceptional circumstances for imposing a conditional or absolute discharge, perhaps even in cases that would appear to demand a more severe financial penalty. Exceptional circumstances might apply to the offence; the bench might find that there is technical guilt but very little culpability. Exceptional circumstances might apply on the part of the offender. For example, I have seen absolute discharges handed down almost certainly or explicitly so that there will be no repercussions under the Rehabilitation of Offenders Act 1974—that is, there will be no need to declare that particular offence. The court perhaps signals that there is a guilty plea, and that an offence has been committed, but that under all the circumstances, which may be exceptional, it has taken that view.

I simply say that there might be cases—not every case, of course—in which a court decides to impose an absolute or conditional discharge in the exercise of a considerable amount of discretion and where that is made more difficult when only a single justice is sitting. I could perhaps use the issue as a stalking horse in order to open up a wider debate, but I do not intend to do so because we have had a good canter over the terrain relating to where single justices are appropriate. I would like the Minister’s response, however, on how the Government can justify absolute or conditional discharge as a sentencing option to be included within the powers of a single justice.

Shailesh Vara (Conservative, North West Cambridgeshire)

Amendment 46 would remove the power to discharge the accused absolutely or conditionally from the list of sentences available to a single justice. As the hon. Gentleman said, in many respects we covered this territory earlier, but the intention behind clause 27 is that only defendants intending to plead guilty would be heard under the single justice process if the change were to have effect—although, of course, a single justice could find someone guilty and still discharge them. We covered similar territory earlier, so for the reasons already given, I hope that the hon. Gentleman will withdraw his amendment.

Andrew Slaughter (Labour, Hammersmith)

I had hoped for a little more than that, but I am not going to push on the matter at this stage, so I beg to ask leave to withdraw the amendment.

Clause 29 - Criminal courts charge

Andrew Slaughter (Labour, Hammersmith)

I beg to move amendment 98, in clause 29, page 30, line 7, leave out ‘must’ and insert ‘may’.

David Crausby (Labour, Bolton North East)

With this it will be convenient to discuss the following:

Amendment 99, in clause 29, page 30, line 8, leave out ‘in respect of’ and insert

‘of up to 50 per cent of total’.

Amendment 111, in clause 29, page 30, line 10, after ‘(3)’, insert ‘and (3A)’.

Amendment 100, in clause 29, page 30, line 11, at end insert—

‘(c) it being just and reasonable to do so in the opinion of the court’.

Amendment 112, in clause 29, page 30, line 15, at end insert—

‘(3A) An order must not be made—

(a) if in the opinion of the court it may affect a decision on plea;

(b) where enforcement costs are likely to amount to more than the value of the charge;

(c) in relation to any part of the hearing for which the defendant was not responsible;

(d) in relation to any appeal; and

(e) before a written means assessment has been carried out.’.

Amendment 102, in clause 29, page 30, line 28, at end insert—

‘(6) The court must give reasons for either imposing or not imposing court charges.’.

Amendment 103, in clause 29, page 30, line 30, leave out ‘must’ and insert ‘may’.

Amendment 104, in clause 29, page 30, line 43, leave out ‘must’ and insert ‘may’.

Amendment 105, in clause 29, page 31, line 10, leave out ‘must’ and insert ‘may’.

Andrew Slaughter (Labour, Hammersmith)

We are making some progress—we have already covered more clauses than we did in the entire morning sitting. We may slow down a little now, but this is an important clause and a substantial group of amendments. I see why they have been grouped, because if there is a common theme here it is the issue of discretion, or some mitigation on what appears, subject to what the Minister says to convince the Committee this afternoon, to be an unnecessarily compulsory and draconian power to impose a court charge which, unlike any other financial penalty save for the victim surcharge—the Minister will correct me if I am wrong—is not at the discretion of the court.

Amendments 98, 103, 104 and 105 would simply replace “must” with “may” to give the discretionary element. Similarly, amendment 100, which says that imposing a charge should be,

“just and reasonable … in the opinion of the court”

and amendment 102, which says:

“The court must give reasons for either imposing or not imposing court charges”

act as a form of brake, or an explanation that the court will need to delve into, in order to establish that this charge is being properly made, both of itself and at the appropriate level.

Amendment 99 would substitute,

“of up to 50 per cent of the total”

for the words, “in respect of”. In other words, it would limit the amount of the charge. That is a somewhat notional figure, because one does not know, of course, what the figure will actually be, but the intent of the amendment is clearly to say that where a court is levying a charge, it should take into consideration the large costs of the hearing. Here, we are in the criminal courts, not, I appreciate, in the civil courts, where the Government are seeking not just full cost recovery, but more than full cost recovery, in some cases.

This is new territory in a number of ways. One of these is a purely financial way, which is quantifying the level of the charge. There are all sorts of costs associated with court proceedings which may go far beyond the costs of the people who are present in court or the running costs of the court. Her Majesty’s Courts and Tribunals Service is a large bureaucracy, it is a very expensive service to run and if the sole motivation here is to mitigate those costs by getting losing criminal defendants to pay those costs, the Government ought to be clear about that, take one step back and say that it is not reasonable to expect, as the Government expect on the civil side, for all those costs to be recovered.

Amendment 112 goes into more detail and expresses specific circumstances in which it may be inappropriate to order a charge to be paid, such as

“if in the opinion of the court it may affect a decision on plea”.

I shall say more on that in a moment, but it is pretty self-evident. If one is talking about relatively minor offences and if there is a marginal decision to be made, it may well be that faced with the prospect of paying a substantial sum of money, as happens with parking fines where the doubling or quadrupling of parking fines happens with each challenge, the defendant may well decide that they are cutting off their nose to spite their face by going down that route. But that is the wrong approach. People should not be given any inducement to plead guilty when they may not be guilty.

I have received a parliamentary answer from the Minister today which says that the cost of the national compliance and enforcement service for the financial year 2012-13 was £49 million and that the total value of the debt estimated to be recoverable at 31 March 2013 was £320 million. The missing figure there is how much is due to be recovered. If he could provide me with that figure, I would be pleased to hear it. I have heard figures of £1 billion and £1.5 billion and all sorts of many-noughted figures here. The point is a good one. On the one hand there is the cost of the service. We may say a bit more about that when we reach clause 31. There is the actual debt that remains to be paid and then there is the debt that the Government think is recoverable. That appears to be £320 million. In appearing to be tough and punitive on defendants and in running after money that may not be there, the Government should take account of the balance between enforcement costs and the value of the charge.

Subsection (c) of amendment 112 reads:

“in relation to any part of the hearing for which the defendant was not responsible”.

That is easy to imagine. Parts of criminal trials often occur as procedural matters. It may relate to faults in the prosecution and cases where, as often happens these days, the prosecution has not got its tackle in order and there are delays to the process. If a trial is adjourned through no fault of the defendant and goes over to another day, will the defendant be expected to bear those costs?

Subsection (d) refers to

“in relation to any appeal”.

I would not like to see defendants discouraged from appealing. One of the rights retained under the new scheme that we discussed this morning is the full right of appeal. It is one of the strengths of the magistrates court system. It is one of the points of rebuttal to those who say that it is in some ways less accountable than jury trial to say that there is always an automatic full right of appeal. If there is to be a charge and no doubt a more substantial charge on appeal, which the clause allows for—this is even more relevant to subsection (a)—it is likely to put off the defendant who is unsuccessful at first instance. I will not say much about subsection (e) as a separate amendment deals better with the issue of means, which is clearly a crucial point here.

Let me develop the argument a little more. If the Minister says that this is low level or de minimis, I beg to differ as my colleagues and I did this morning. This is another substantial change. This may be apocryphal, in which case I apologise to the Chinese ambassador, but after executions in China the family of the executed person was asked to pay for the bullet. That is the first thing I thought of when I heard that convicted defendants, when they had suffered every other penalty that the court had to offer, would be asked to pay for the costs of their hearing.

Shailesh Vara (Conservative, North West Cambridgeshire)

That is a reflection of the hon. Gentleman’s mind rather than anything else.

Andrew Slaughter (Labour, Hammersmith)

The Minister says that that says more about me than it does about the criminal justice system. I use the story as an analogy, because I want him to think carefully about the issue. I want to pray in aid not only the people the Government do not like, such as the civil liberties organisations, but people the Government do like, such as the Magistrates Association, which stated:

“The MA advises the Government in the interest of justice to amend the proposals to allow the court discretion in imposing these fees. The court is in the best position to identify in which cases the ordering of payment of court costs would be inappropriate or unreasonable.”

It is polite, as usual, but I would put it in stronger language. It is slightly insulting to the magistracy to say, “We will decide that you must impose this particular charge.” Why should it not, like many other financial penalties, be a matter of discretion? The Magistrates’ Association

“would presume that in prescribing which cases will be exempted from this set of clauses, the Lord Chancellor would consult closely with...stakeholders. In those cases where the ordering of a court charge payment is appropriate, the MA would suggest a detailed and thorough scoping exercise must take place to ensure the systems in place are sufficient to deal with this additional layer of complexity in imposing fines without damaging the efficiency of case management or compromising the judicial duty to ensure sentences are proportionate in the totality.”

Those are quite strong words, and I do not see anything in the current legislation that provides for that. The association continues:

“In general, the MA supports the greater flexibility offered in relation to payment of fines which allows response to changes in an offender’s circumstances. However the MA is concerned that an additional layer of complexity is being added to a system at a time when the Government is planning to contract out the Compliance and Enforcement Service.”

We will come to that later. It adds:

“It is important that the necessary provisions are in place to ensure the system can ensure effective collection of fines and orders.”

That is not an endorsement of what the Government propose.

As I said, various separate charges can be levied, and this one is most akin to the charge for prosecution costs. We can compare it to prosecution costs. I will quote what Liberty said:

“There already exists a wide judicial discretion for costs orders in the criminal justice system in addition to a range of sentences and other post conviction orders that can impose financial liability. Section 18 of the Prosecution of Offences Act 1985 grants Magistrates and Crown Court judges a discretion to award prosecution costs against a convicted person ‘as it considers just and reasonable’,

as in our amendment, and it continued:

“Costs can similarly be awarded where a criminal appeal is dismissed in the Crown Court or Court of Appeal. The Practice Direction on criminal costs orders makes clear that costs should be ordered by the Court under section 18 of the POA only where the ‘court is satisfied that the defendant has the means and ability to pay.’ CPS guidance on costs...states that prosecution applications for costs should not be made if in the circumstances of the individual case ‘it would be unmeritorious or impractical.’ The guidance gives examples of where an application for costs would be inappropriate, including where ‘it will cause undue hardship e.g. where it is clear that the defendant suffers from a serious physical or mental illness’ or where ‘the defendant is in such dire financial circumstances that the Court are likely to consider the award of costs as oppressive.’ It further suggests that where a long sentence or a hospital order is made, a costs award need not be made.”

That is a well-thought-out, well-tried programme of how one addresses prosecution costs.

There is no discretion in the clause. It is a mandatory charge, irrespective of the circumstances of the individual or the nature of the case. I agree with Liberty’s view that it will have an oppressive impact. It will act as a disincentive to a not guilty plea. In effect, pleading not guilty means a longer sentence, which is accepted. It might mean a higher amount of prosecution costs and a higher contribution towards legal aid, and now it also means a higher court charge. For all those reasons, we say this is wrong.

I doubt that we will have a clause stand part debate. I am happy to develop my argument in the context of this first set of amendments because they go to the heart of the clause. If we were to have a clause stand part debate, I would wish to draw two points to the Minister’s attention. First, if the Minister is going to impose an additional penalty, is this the right use of the funds? Secondly, how much money does he think that he will get from this? I would like a cash answer, but it is also a rhetorical question. Will this be worth the candle?

I have read some of the briefs and have heard the evidence of some of the witnesses from prisoners’ organisations. Sadly, ex-convicts often come before the courts again, and whether or not they are ex-convicts, they are people of very limited means. I refer the Minister to the evidence of the Prison Reform Trust and the Howard League. The Criminal Justice Alliance evidence includes these comments:

“The imposition of this new charge is in addition to existing penalties and the court’s powers to require offenders to make payments including compensation for victims, the victim surcharge, prosecution costs and fines. Applying yet another charge to those sentenced by the court will increase their financial burden. Many offenders are reliant on benefits and paying this extra charge will either incur further debt or result in increased deprivation to the offender and their family. In a recent study when offenders serving community sentences were asked what would help them stop offending, 62% said having a job. … 48% of those in prison have a history of debt.

This charge is an additional burden for offenders and their families and must be seen in the light of recent benefit cuts. Inability to pay is likely to see offenders brought back before the courts and there is a danger of an escalation in punishment through the addition of this extra charge.”

On all the comparators—employment, cost of living and the likelihood of homelessness, of being in debt and of being the victims of crime themselves—offenders, people who are brought before the courts and convicted, are less likely than the public at large to be able to afford to pay the charge. I am sure that the Minister is aware of those points, but they do not seem to have been taken into consideration, as the proposed charge will be compulsory.

My other point is that I think that the Minister is a bit cheeky in taking this money and applying it to pay the courts of Her Majesty’s Courts and Tribunals Service. The Government have been lobbied for years now, certainly going back as far as the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and probably long before then, by the legal professions to levy a charge to mitigate the cuts in legal aid. I do not know if he saw the statement last month from the Criminal Law Solicitors’ Association, which rather irately said:

“For years legal aid defence practitioner groups…have suggested in written responses to various MOJ consultations and in high level meetings that a convicted defendant should contribute towards the cost of their legal aid. We said ‘We calculate that with a conviction rate of about 80%, ie 320,000 cases per annum, this measure would result in an annual saving of approximately £55.5 million. That is a saving of £222 million over a four year period.’ This has been repeatedly rejected by the MOJ as impracticable.

We very much welcome the fact that the MOJ suddenly is converted to the view that a contribution from Defendants is a fine idea but what a pity the amount recovered will not be spent towards relieving the hard pressed legal aid fund as we suggested but instead applied in the costs of running the courts.

The very court system that contrives to make legal aid lawyers and their clients lives a misery with expensive delays and inefficiencies that throwing money at will not cure and which abuses we have identified persistently.

We wonder was there any point of an expensive consultation process with legal aid lawyers on the issue of legal aid expenditure if the new potential income streams we identify are diverted to defray other expenditure. Why do the MOJ still insist that a £220 million cut (always an absurd figure) is required when failing to utilise Defendants potential contributions to their own defence?

Having now decided that such a contribution from the convicted is viable for collection we ask the MOJ to reconsider the application of this money and put it towards the relief of the hard pressed legal aid fund as we suggested. This will help maintain public access to Justice for our citizens in the face of State funded prosecutions.”

I do not share that view, as the Minister will understand. I do not think that he will collect very much money at all. I would be interested in his view on whether £55 million is a realistic figure, or what his alternative figures may be. However, I would be most interested in his observations on two points. Given the crisis in legal aid, why does he believe that it is more appropriate to offset the cost of the courts than to compensate in some part for the swingeing cuts that he is imposing on the criminal legal aid system?

Secondly, the proposal sends out terrible signals. I have seen some very sensible proposals, not just from the CLSA, but from the Bar Council and Law Society, both of which make the same point in their representations that the money should not be diverted to the Government; it should go to the legal aid fund.

How will the Government encourage co-operation? They are asking a lot of the professions. They are asking them to find hundreds of millions of pounds in savings as alternatives to proposals that the professions say are unworkable. The Law Society in particular has worked very closely with the Government and received quite a lot of criticism for doing so. If the Government say at the end of the day, “Thank you very much for your suggestions. We will take them and the money anyway, in addition to the cuts that we have made.” That seems to be a breach of faith and counter-productive in the long run, because the Government will get no further co-operation.

I should like the Minister to say, first, why he has chosen to apply an additional court charge and, secondly, whether the figures are accurate or whether he intends to collect some other sum of money. We were very vague this morning on figures for savings from the single justice process, so I hope that the Minister will be more precise.

Guy Opperman (Hexham) (Con) rose—

Andrew Slaughter (Labour, Hammersmith)

I give way.

Guy Opperman (Conservative, Hexham)

I decline the opportunity.

Andrew Slaughter (Labour, Hammersmith)

The hon. Gentleman is at least on the record now and it is nice to see him taking an interest in proceedings.

I mentioned perverse incentives placed by the charge on the defendant. I genuinely believe that may be the case. As Justice says,

“since further charges will be sought if a convicted person pursues an appeal, they may be unduly dissuaded from appealing by the potential costs of doing so. A restriction placed on access to a court or tribunal will not be compatible”—

the Minister will see what is coming—

“with article 6(1) ECHR unless it pursues a legitimate aim and there is a reasonable relationship of proportionality between the means employed and the legitimate aim sought to be achieved. Without significant justification beyond costs saving, and with little explanation of the operation of the costs recovery scheme, or any safeguards to protect the integrity of the criminal justice system, we consider the demand for court charges to be unprincipled, unjustified and unnecessary.”

A mandatory charge is certainly unnecessary. I made a comparison with the prosecution charge. I note, as others have, that there is no impact assessment. There are lengthy and detailed impact assessments on many parts of the Bill, but I am not aware that there is an impact assessment on this one. If I am wrong, the Minister will correct me. We like impact assessments because they give us a lot of ammunition. It seems bizarre that there is no impact assessment for the provision, which will impose a new and quite heavy financial penalty. Can we have one at some stage? That would be quite helpful.

I wish to make other points, but I think they can be dealt with under other amendments. I repeat that it would be helpful to get an idea of what the overdue debt is. Is it £2 billion? That includes a lot of money in confiscation orders—perhaps as much as two thirds of that sum. However, even if it is a third of that sum, it is a substantial amount of money. If only a third of that is likely to be recoverable, the Minister is whistling in the wind. What is his expectation of any additional recovery?

If the Bill is passed, the charge will be compulsory. The victim surcharge is a compulsory charge. Why would any reasonable court not look at an offender and decide that he or she cannot afford to pay any more? Why would the court not simply waive prosecution costs, attach a small financial penalty or mitigate in some other way? Either the Government will get a pyrrhic victory by imposing an additional charge that they cannot collect, or the overall sum of money to be paid to the state will be no greater, and the system will simply become more bureaucratic. I will come back to that again, if I may, but I have made a number of points that I hope the Minister will reply to.

Shailesh Vara (Conservative, North West Cambridgeshire)

I am happy to try to address the various points made by the hon. Gentleman. I confess that, while little of what he says surprises me, I was surprised today because, until recently, he had managed to avoid using the term “legal aid”. My hope that the whole day might pass without those two words creeping from his lips was, I am afraid, not to be.

Regarding legal aid, the charge that we are talking about here is focused on recovering the cost of courts from offenders. We have an established system to recover criminal legal aid costs incurred in a Crown court that requires convicted defendants to pay back up to the full amount of their costs where they can afford to do so. We have recently taken steps to strengthen that system, including with tougher powers to enforce debts.

I can confirm to the hon. Gentleman that the impact assessment is published on the Bill’s website. He has made a number of points regarding finance, to which I will return later in my comments, and I will provide the figures that he has asked for.

This group of amendments seeks to make a number of significant changes to the way in which the criminal courts charge would operate. We have designed the criminal courts charging scheme in such a way that the circumstances in which the charge is imposed are clear and transparent. The charges are clearly set out and reflect the costs reasonably attributable to each type of case. Offenders will be expected to pay at a rate they can afford. As a result, the scheme is straightforward to understand and explain to those affected by it.

The changes proposed by the amendments would not only make the scheme far more complicated and difficult to understand and apply, but create a number of additional problems, as I will explain.

Amendments 98, 100 and 102 to 105 would give the court discretion over whether to impose the criminal courts charge on a convicted adult offender. The court would be expected to decide whether it was just and reasonable to impose the charge and give reasons for its decision.

The UK justice system is one of the finest in the world, and our courts must remain independent and impartial. Providing the court with discretion over whether to impose the charge would risk creating a perception that our judges and magistrates were being given the ability directly to influence the funding of the criminal courts—a system of which they are an integral part and the success of which they have a vested interest in. We cannot permit the risk of such a perception.

With no clear indication of what the court should base its decision on, other than the broad definition of the imposition being “just and reasonable”, it could not be guaranteed that every offender would be treated in the same way. To accept the amendment would therefore create a significant risk of unequal treatment of different offenders, with important financial consequences for individuals.

If the concern is to protect offenders who are poor, or on low incomes, I can provide reassurance that a number of protections are already built into our proposals. When setting the rate of repayment for the charge and other court-ordered financial impositions, the court can take the means of the offender into account. Offenders will be able to apply to pay the charge by instalment and, if necessary, request to vary the rate of repayment subsequently, allowing them to manage their repayments and pay the charge back at a rate that is affordable to them. Further, offenders who play by the rules, who comply with payment terms and do not reoffend will be able to apply to have the charge cancelled after a specified period.

On amendment 99, I cannot understand the rationale behind the hon. Gentleman’s proposal to limit the charge to no more than 50% of the total cost that offenders impose on the courts. It seems to me that the Opposition do not object in principle to offenders paying back the costs that they have imposed on the criminal courts to relieve the burden placed on the hard-working taxpayer. If an offender has committed a crime and imposed a cost on our criminal justice system, it is right that they should be liable to pay back the full amount of costs reasonably attributable to that class of case.

Andrew Slaughter (Labour, Hammersmith)

I should like the Minister to address specifically the point that I made about whether the costs imposed would be the overall costs of the courts system, which might be much greater than the individual hearing-day costs. I will put to him a point that was put to me by magistrates. This will put a very high penalty on those guilty of motoring offences, because they tend to be the people who have the means to pay. If the Minister is seriously looking at full costs recovery in criminal proceedings, the only people he is likely to penalise are people of means, who will be predominantly people who are guilty of less serious—what he would call more trivial—offences who are probably already the financial victims of the criminal justice system, at least as they would see it.

Shailesh Vara (Conservative, North West Cambridgeshire)

What I mean by

“costs reasonably attributable to that particular class of case”

is that the criminal courts charge takes into account fixed costs such as the cost of running a court building, IT and administration costs, as well as other costs. It is not practicable to calculate the precise cost of each individual case, so we will set the charges to reflect the costs that are reasonably attributable to any class of case.

The Opposition’s concern may be to protect offenders on low incomes from significantly increased payments towards sums imposed on conviction. I have already outlined the various protections that we have built into our proposals to ensure that we avoid placing an offender in hardship as a result of the charge. The amendment is therefore unnecessary.

Finally, amendments 111 and 112 would change the circumstances in which the criminal courts charge would be imposed. The proposal to specify that an order to impose the courts charge should not be made if doing so would, in the opinion of the court, affect a decision on the plea is unnecessary. The courts charge will be imposed on all adult offenders convicted of an offence and will therefore come into play only once a verdict has been reached on whether the defendant is guilty or not guilty. So the charge will only be imposed long after the defendant has made a decision about the plea and only if he or she is found guilty.

There is also a proposal that the courts charge must not be imposed where the enforcement costs are likely to amount to more than the value of the charge. Given that the charge will be enforced in the same way as existing financial impositions, we think it unlikely that the costs would exceed the charge. Moreover, it would be impossible for the court to anticipate how much enforcement activity will be required to enforce the amounts being imposed. For those reasons, that component of the amendment is both unnecessary and unworkable.

In addition, amendment 112 would exclude from the courts charge costs associated with any part of the hearing for which the defendant was not responsible. The Government take the view that it is reasonable to expect offenders to contribute to the costs incurred by the courts as a result of their actions. The charge will be imposed only on those convicted of an offence, and there is no logical rationale for charging offenders for the costs of some, but not all, of the proceedings that led to that decision. I remind the hon. Members that the charges will be set up to the cost reasonably attributable to the type of case, rather than being based on a costs calculation on each individual case, which would be time-consuming and impracticable.

Under amendment 112, the courts charge would not be imposed in relation to any appeal. The principle underlying our courts charging proposals is that offenders should be expected to bear some of the costs that have been incurred by the criminal courts as a result of their actions. The Government therefore take the view that it is appropriate to charge offenders a contribution towards the cost of an unsuccessful appeal. However, I should stress that an offender who successfully appeals will not have to pay the charge. The amendment would insert a condition that the courts charge could not be imposed before a written means assessment had been carried out.

We already have systems in place to ensure that the court is provided with information about an offender’s means. The court uses this information when deciding whether and how much to impose for existing financial impositions. In future, the court will also be able to use this information to set the payment rate for the courts charge. Given that offenders will be able to apply to the court or fines officers to vary payment rates, we view the additional requirement proposed by amendment 112 as unnecessary.

The hon. Member for Hammersmith asked a number of questions about costs. Currently, about £50 million is spent on the enforcement of financial impositions each year. We have estimated that the criminal courts charge will cost an additional £20 million to enforce. We have modelled two illustrative sets of charges that are broadly based on the average cost for different types of case. We have used a lower set of charges limited to a maximum of £600 and a higher set of charges limited to maximum of £1,000. Those charges and the limits applied are purely illustrative. Exact levels will be informed by further analysis of the cost of each type of case at the point at which the charge is implemented. We expect the charge to be in the hundreds rather than thousands of pounds. We estimate that the policy has the potential to generate a net income of between £60 million and £85 million a year.

Valerie Vaz (Labour, Walsall South)

Can the Minister give us an up-to-date figure for the total outstanding criminal financial penalties?

Shailesh Vara (Conservative, North West Cambridgeshire)

I will come back to the hon. Lady on that.

Of the financial impositions imposed in the first quarter of 2012, 58% were paid within 18 months of the imposition. I have given a significant number of the figures for which the hon. Member for Hammersmith has asked.

Andrew Slaughter (Labour, Hammersmith)

I am grateful to get some figures, but I am alarmed. If I heard correctly, the cost of enforcement for the new charge is £20 million, compared with the current cost of the national compliance and enforcement service of £49 million. It is expected to collect £60 million to £80 million—

Shailesh Vara (Conservative, North West Cambridgeshire)

£85 million.

Andrew Slaughter (Labour, Hammersmith)

So the figure is about three to four times higher. How does that compare with the sum collected at the moment? How much is collected by the expenditure of £49 million on the national compliance and enforcement service?

Shailesh Vara (Conservative, North West Cambridgeshire)

The hon. Gentleman seeks to play with figures to suit his arguments, which so far have been demolished. It seems to me, Mr Crausby, that when you deduct some £20 million from £85 million—even allowing for the fact that the £20 million is at current rates and the £85 million is at 2019-20 rates—there is still a significant gain to the taxpayer. For the reasons I have set out, I urge the hon. Gentleman to withdraw the amendment.

Andrew Slaughter (Labour, Hammersmith)

I am not trying to attack the Minister. I am trying to get information. Let us say the figure of £20 million, as opposed to £60 million to £85 million, is correct. I was asking for the figure which compares with £49 million, which is the current collection cost. How much a year is being collected by the expenditure of that £49 million? I would expect it to be proportionately larger because it is an additional charge.

Shailesh Vara (Conservative, North West Cambridgeshire)

I am happy to give those figures to the hon. Gentleman. He will appreciate that this is a debate specifically on the criminal courts charge. The figures I have are more in line with that rather than charges and costs of a broader variety. If he wants figures of another variety, I am more than happy to try and provide them to him.

Andrew Slaughter (Labour, Hammersmith)

I have heard what the Minister said. I am interested to find out what those figures are. I am happy to wait and see what they may be.

I think the proposal is a mistake. I very much doubt—I will eat my words if it is the case in a year or two—that the Government will collect £60 million to £85 million with the charge. I say that without having any further figures in front of me—I just think that the figure has been given on a wing and a prayer. The Department has been asked to go and rifle every cupboard and think of every ruse to try and achieve the savings target the Lord Chancellor has adopted. This latest ruse is scraping the bottom of a barrel that has already been fairly comprehensively scraped.

We do not say as a matter of principle that there should be no contribution at all. We have reservations about the fact that the Government’s proposal is a departure that will mean an individual paying for a process that is really part of due process. It is a constitutional requirement. The criminal justice system must function properly, fairly and timeously. That is not the responsibility of those caught up in it—that is the caveat.

Robert Buckland (Conservative, South Swindon)

I am listening carefully to the claim that the measure is a departure. Would the hon. Gentleman not agree that the welcome introduction of the victim surcharge back in 2007—now amended by the 2012 regulations—was in itself a departure because it introduced a fixed charge as part of the proceedings? If he concedes that principle, are we not arguing about detail rather than principle, as he suggests?

Andrew Slaughter (Labour, Hammersmith)

As always, the hon. Gentleman makes an attractive argument, but it leads us down a dangerous path. There were specific reasons for the provision to which he refers—I cannot remember them, but I suspect they had support on both sides of the House. It was part of the process that has gone on under both Governments—it started under the Labour Government —of putting the victim more centre stage in the criminal justice system, as well as being a practical redress. It is seen as a part of the punishment or part of the redress element. That is what it clearly is. The Government’s proposal is a money-raising scheme. I am afraid it is a Ponzi scheme—it is a scheme that looks like it is going to raise a lot of money but is probably not going to raise very much money at all.

Shailesh Vara (Conservative, North West Cambridgeshire)

I have two points to make. First, may I correct some figures I gave earlier? They are broadly along the same lines. The net income is in the range of £65 million to £80 million and not £60 million to £85 million as I had indicated. The charge will be enforced in the same way as existing financial penalties. We estimate that that will cost up to £20 million, as I said, in addition to the existing enforcement costs.

My second point—I will be brief by way of intervention—is that the hon. Gentleman says the measure is a money-raising thing, but the aim is to ensure that convicts and criminals take responsibility. They have done wrong. They are using the court system. We are trying to make them accountable and responsible, and to ensure that they contribute towards the costs of the court system. I do not think there is anything wrong in trying to make criminals more accountable.

Andrew Slaughter (Labour, Hammersmith)

All sorts of problems are outlined in our amendments, including the unintended consequences that may arise. We have gone through those and I do not intend to pursue that argument. I said that there was a caveat, not that we would vote against the clause. However, we will vote in favour of amendment 98 on discretion. We could continue, but we have had a fairly good canter around the principle of the charge, whether there will be extra money and what should be done with it. I do not accept the Minister’s argument, but we will not die in a ditch over the imposition of a court charge. However, we are concerned that this is once again government by decree. The Government are telling the courts what to do on an issue that is clearly within their competence and should be within their discretion. On that basis, I shall press amendment 98 to a Division.

Andrew Slaughter (Labour, Hammersmith)

I beg to move amendment 101, in clause 29, page 30, line 11, at end insert—

‘(1A) A reasonable assessment of the defendant’s finances must be taken before a collection date for any court costs is decided.’.

I shall be brief. The Minister touched on this in his remarks earlier. He said he believes there is provision already for means assessment. It is a reasonable amendment and I ask him to accept it. I was inspired to table it by the hon. Member for South Swindon, who, on Second Reading, asked the Lord Chancellor:

“Will my right hon. Friend ensure that when this streamlined procedure is adopted, pre-hearing consultations take place with defendants about their ability to pay a fine? A proper written means test would enable realistic fines to be imposed, and to be much easier to collect than fines imposed by means of an exercise that would be theoretical without such information.”—[Official Report, 24 February 2014; Vol. 576, c. 55.]

That question was not knocked back by the Lord Chancellor—I think he said he would look at it. The argument against the amendment would be that it would be more bureaucratic, but I suspect that in the long run it will be beneficial. If I am right that the additional voluntary charge will be difficult to collect, the Government will be setting themselves less of a task if they set out with the best information about means and other circumstances.

In my earlier remarks, I ran through the sort of criteria that the Prosecution of Offences Act 1985 takes into consideration before a contribution to prosecution costs. I would expect to see the same sort of exercise in the Bill, not as to whether a charge should be made at all, because it may be compulsory, but as to what is a fair and reasonable level. I would then expect some of the other matters the Minister accepts to be taken into account, such as the cost of enforcement and whether part of it should be remitted. Those processes are in place for other types of financial penalty and I hope the Minister assures us that they will be in place in relation to his measure. There is no point in throwing good money after bad or in simply setting up large quantities of irrecoverable debt, which is what the Government seem to be doing. Will he give an undertaking and accept the amendment that there should be full attention to means?

Shailesh Vara (Conservative, North West Cambridgeshire)

The intention behind the amendment is understandable. An offender should be able to pay back the court’s charge at a rate that is affordable, given their individual circumstances. However, I am confident that the existing practices and legislation for the enforcement of court-ordered financial impositions, which will be extended to cover the enforcement of the criminal courts charge, serve the purpose the amendment seeks to achieve.

When an individual attends a hearing in the criminal courts, they are asked to provide information about their means. The courts also have the power to order convicted defendants to provide a statement of their assets and other financial circumstances. That information can enable the court to set an appropriate payment rate for the charge based on the offender’s income. The court can do that as part of making what is known as a collection order. It will be possible for the court to order that the full amount of the charge be recovered immediately from offenders who are able to pay. However, when an offender does not have sufficient means to pay at the point of imposition, they will be able to apply to pay by instalment. It is important to note that the onus is on the defendant to provide their means information to the court. If they fail to do so, the court is still ordinarily required to issue a collection order, which will outline payment terms for the charge, as courts do for all current impositions.

When an offender has provided information about their means to the court as requested, the court will be able to decide the payment terms for all impositions, including the courts charge. Even when that information is not available, the offender is able to contact a fines officer to present their means and agree a payment plan. In addition, an offender is able to contact a fines officer to request to vary the rate of payment if their circumstances change and they are no longer able to afford to pay at the rate initially set.

The intention behind the amendment might be to ensure that, when an offender has not provided information about their means, the court is obliged to make further inquiries of that offender. I think that gets the balance wrong. Offenders are given every opportunity to provide means information and the courts already have the power to request it, but the onus should be on offenders to provide that information. When offenders do not do so, I find it hard to see why we should stop the process of justice for the court to conduct a further investigation.

The enforcement process as carried out at the moment is all we need effectively to collect money owed to the court, and to take into consideration an offender’s finances in setting repayment terms for the criminal courts charge. I therefore ask the hon. Gentleman to withdraw his amendment.

Andrew Slaughter (Labour, Hammersmith)

I hear what the Minister has to say. I will not press the amendment to a vote, unless the hon. Member for South Swindon is keen to do so.

Robert Buckland (Conservative, South Swindon)

I am grateful to the hon. Gentleman for referring to the question that I asked, which relates to this and to general issues about enforceability. I hear what the Minister says. He is right to outline the existing powers, but it seems that we need to look at how statutory declarations about earnings are made. With respect, I do not think the amendment can answer that, but the question is probably for another day. That is because, once that is done, sanctions could follow for a mis-declaration. My worry is that we could end up stoking up more unenforceable penalties if we do not cover root and branch and look again at how we obtain the information.

Andrew Slaughter (Labour, Hammersmith)

I am grateful to the hon. Gentleman, who, as a sentencer, can probably see more clearly than I or the Minister what the risks are in the proposal.

The amendment is a probing amendment, designed to raise an issue. I hope that the Minister has heard not only what I said but what the hon. Member for South Swindon has said.

The problem occurs not only in the context of courts, but in child support and in many other areas of public life. I am sure that we all deal with constituents who are frustrated by it constantly. There are certain types of people—those who are self-employed, for example—from whom it is difficult to obtain means statements. However, we should not throw our hands up. We should not say, “Let us levy the fines and get on with it.” There has to be some credibility in the process.

We will talk about the collection process in a moment, so I will say no more now. I beg to ask leave to withdraw the amendment.

Andrew Slaughter (Labour, Hammersmith)

I beg to move amendment 113, in clause 29, page 30, line 28, at end insert—

‘(6) Where there is more than one defendant the charge shall be equally divided between defendants.’.

I can deal with the amendment briefly. It is slightly delicately phrased; the wording appears to ignore the issue of means, which I have just been banging on about.

The significance of the amendment is that, particularly given the rather senatorial rhetoric of the Minister about recovering money at all costs, there may be a temptation to double-recover—that is to say, particularly if there are a number of defendants and if it is determined that they have means, that more-than-full-cost recovery could be attempted. The sums of money levied could cumulatively, if not from individual defendants, raise more money than the trial proceedings or hearings cost.

Earlier I gave all the caveats related to the fact that there may be parts of proceedings or costs of proceedings that are no fault of the defendant, innocent or guilty, but which arise due to the inefficiency of the court or because of genuine legal considerations. It would be troubling if the charge was seen as a cash cow rather than as a way of simply adding penalties to someone who had been found guilty.

I will not press the amendment to a vote, but in responding, perhaps the Minister can tell us what he intends to do where there are multiple defendants in a case. What will he do, for example, if a defendant was a tail-end Charlie and played only a minor part in the case? Will that be taken into consideration when a charge is levied? If a lot of the proceedings did not concern that particular defendant, for one reason or another, however the indictment is set out, are those all points of mitigation when imposing a charge?

Shailesh Vara (Conservative, North West Cambridgeshire)

The amendment seeks to divide the payment of criminal court costs between defendants where there are two or more defendants convicted by the courts during a single hearing. It would create unnecessary complexity and result in offenders who have committed identical offences paying different amounts. The Bill, as currently drafted, will mean that each offender will be liable to pay the criminal courts charge. The precise amount of charge will be a matter for secondary legislation. Although the power will exist to charge offenders less when they are convicted at the same time as other offenders, the expectation is that each offender will pay the full amount.

Andrew Slaughter (Labour, Hammersmith)

Perhaps the Minister is about to answer this point, but I do not know what is in his brief. Of course there is a point to be made on means, but I am talking about how much an individual defendant bears responsibility for the cost of a hearing. That is what the courts charge is. Is the Minister saying that, irrespective of whether I take up half an hour or three days of a week-long trial, I will pay the same amount? That seems grossly unfair.

Shailesh Vara (Conservative, North West Cambridgeshire)

We are trying to have a system that is properly enforceable without being unduly complicated. We feel that this system is the fairest approach. Perhaps there would be a case for the amendment if the scheme being designed related to the precise costs incurred in a particular case, but that is not what we are proposing. Such a scheme would be far more complex and costly to administer. Instead, the proposal is for the court to impose preset charge levels at the conclusion of a case. The fairer approach is for a defendant to be charged for the amount associated with their type of case. There can be a range of factors that result in multiple defendants being tried in the same proceedings. The current provisions will be simpler to operate and simpler for offenders and the public to understand, and they will be fairer. I note what the hon. Gentleman says, but I hope he will withdraw his amendment.

Andrew Slaughter (Labour, Hammersmith)

I hope the Minister’s officials are taking note of the many things that I am saying, because I think there are some jolly good ideas here.

Robert Buckland (Conservative, South Swindon)

I am grateful to the hon. Gentleman for giving way. He is ever-patient. Could not his suggestions set an alarming precedent? When one is co-defending a case, one has to read the same amount of material and evidence. It may turn out that one’s respective client is a tail-end Charlie, but if we start differentiating, my worry is that it could start creeping into the fee system. That would not be a welcome development, bearing in mind that each defendant has to face the same evidence. We surely need to hold on to that equality.

Andrew Slaughter (Labour, Hammersmith)

I thought the hon. Gentleman was going to say that counsel’s attitude might be affected by the part they play in the trial, which would be adopting my argument about defendants who might be willing either to plead guilty or not to appeal in order to save themselves money. If we are talking about substantial costs, behaviour will be affected. My view is that the charges should be fair. He is perhaps knowingly pushing the analogy too far, but if he is right that the charges could affect the behaviour of professionals and the way in which the system works, it enhances my point that the Minister’s desperate search for cash might have unintended consequences. I think I heard the Minister say that he will go away and consider the matter. I take comfort from that, whether he said it or not.

I beg to ask leave to withdraw the amendment.

Andrew Slaughter (Labour, Hammersmith)

I beg to move amendment 106, in clause 29, page 32, line 26, leave out ‘person’ and insert ‘person over 21 years of age’.

The amendment would do what it says on the tin: the courts charge would not apply to young offenders. I do not know whether the Minister is in a generous mood and feels like making a concession, but I think the amendment is sensible. I read out some statistics earlier, and I now have some more. A third of people in prison do not have a bank account, more than half have been rejected for a loan and prisoners are 10 times more likely to have borrowed from a loan shark, in addition to all the indices on debt and homelessness. That is true for the offender population generally. I do not have figures for under-21s, but I suspect I can say without fear of contradiction that the statistics are more severe. Young people caught up in the criminal justice system are disproportionately likely to come from care, broken homes or poor homes. They are very unlikely to be in a good position. We used the phrase “whistling in the wind” earlier, and it is even truer in this case. The youth court, or even adult courts when considering younger people, will take everything about the young person into consideration. Having to consider a compulsory charge on top of everything else seems unnecessary. For those practical and social reasons, I suggest that the Minister accepts the amendment.

Shailesh Vara (Conservative, North West Cambridgeshire)

The amendment would have the effect of changing the definition of prison for the purposes of remitting the criminal courts charge. Under the amendment, offenders aged 18, 19, 20 and 21 would be eligible to have their charge remitted during a sentence of detention or imprisonment, provided that a specified period of time had passed. The effect of the amendment would also be that for such offenders, that period of time would not begin on their release from detention or imprisonment, but from the date that the last courts charge was imposed for the offender, or from the date they were last convicted of an offence.

The effect would be to start the clock for the limited payment period for the charge earlier. That would mean that offenders under the age of 22 could potentially have their charge cancelled sooner than offenders aged 22 and over, who are serving time in prison or a detention centre. The intention behind the hon. Gentleman’s amendment appears to be to exempt offenders aged up to 21 from having to pay the criminal courts charge where they are given custodial sentences. Whatever the case, acceptance of the amendment tabled and any amendment intended to have the effect I have just outlined would create an over-complex system for the remission of the criminal courts charge.

I am not convinced that it is right to make it easier for young adult offenders who commit a serious crime resulting in a custodial sentence not to pay the charge. Such offenders would be released from custody to find that the repayment period for the charge had expired, while those who commit a crime with no custodial sentence would be required to pay back the charge once convicted. It could be that the hon. Members are concerned about the rehabilitation of such offenders. I agree that that is an important issue. Indeed, it is one that is reflected in the criteria for remission of the charge. If, after a certain period of time, the individual owing the charge has complied with the payment and desisted from reoffending, the court will be able to cancel the outstanding balance of debt.

The Government are alive to the complex and varied needs of young adult offenders. However, it makes sense that adults are required to pay back the cost that they impose on society. The criminal courts charge and the period for its repayment will be applied to all convicted adult offenders equally. I ask the hon. Gentleman to withdraw his amendment.

Andrew Slaughter (Labour, Hammersmith)

The Minister is being rather steely. I cannot get a concession out of him at the moment, but I will not press the matter to a vote. I beg to ask leave to withdraw the amendment.

Clause 30 - Duty to review criminal courts charge

Andrew Slaughter (Labour, Hammersmith)

I beg to move amendment 108, in clause 30, page 33, line 5, leave out ‘3 years’ and insert ‘12 months’.

David Crausby (Labour, Bolton North East)

With this it will be convenient to discuss amendment 109, in clause 30, page 33, line 10, leave out ‘may’ and insert ‘must’.

Andrew Slaughter (Labour, Hammersmith)

The amendment is straightforward; I will speak briefly to it. I said at the beginning—I do not know whether the Minister accepted it—that this process is a departure from current practice. He is clearly wedded to it. He spoke strongly in favour of convicted criminals paying for the costs of their trial. Nevertheless, the provision for review shows that the Government are at least willing to look again at the effect of the process. My query is not whether they do that—obviously, they should—but whether they should do it sooner than after three years. If what we have said today is true, it will become clear sooner rather than later. If the Minister is not persuaded by 12 months, I would be interested to know why he has chosen three years.

I note that the changes will be made by regulation. I am not sure whether that is right either, when one is making these pretty fundamental changes to the criminal justice system, which we believe will have unintended consequences. I assume that they will be subject to affirmative procedure, as per subsection (6). We can live with that, but the time allowed is too long. The Minister may want to consider either justifying the three-year period, agreeing with us or suggesting some compromise.

Shailesh Vara (Conservative, North West Cambridgeshire)

The hon. Gentleman gives me a choice either to agree with him or to justify my three years. I will justify the three years.

At present, clause 30 will require the Lord Chancellor to carry out a review of the operation of the criminal courts charge three years after the provisions come into force. Amendment 108 would significantly reduce the period after which there would be a review, from three years to 12 months. The Government are confident that careful implementation planning will enable the policy to be successfully delivered. However, we recognise that the introduction of the charge is new and untested. The duty to review is therefore important, as it gives the Government an opportunity to determine whether the provisions are having the desired effect and providing value for money as anticipated. If the charge is not working as anticipated, there is a mechanism to repeal the provisions.

The intention is that the review will consider a number of aspects of how the policy is operating in practice, including an assessment of the costs of enforcement and the direct income arising from the policy. For these considerations to be robust and reliable, the review must be after a period that will allow the criminal courts charging provisions to bed in and produce reliable results that can usefully inform the Lord Chancellor’s decision. This will simply not be possible if the review is carried out after 12 months. At that point, it will not be possible to assess the cash income from the policy.

For offenders to be liable for the charge, their offence must have been committed after the policy has been implemented, and subsequently they must have been tried, convicted and paid off any other financial impositions before paying their criminal courts charge. The cash income is therefore expected to build gradually, and to analyse whether it comfortably exceeds the costs of enforcement, a three-year period is required. The simple question for the Committee is whether we want an evidence-based review or one based on incomplete evidence and guesswork. I have no hesitation in concluding that it must be an evidence-based review.

Amendment 109 relates to the mechanism for the repeal of the criminal courts charge in response to the review of the charge. The Bill will create a duty on the Lord Chancellor, if appropriate, to repeal by regulations after a review. There is a related power to deal with consequential and transitional matters in those regulations. This amendment would oblige the Lord Chancellor to make such consequential and transitional provisions. It is important that we consider in any repeal process the consequential and transitional issues of doing so. We might, for instance, need to consider whether offenders who have already had a charge imposed continue to make payments, or the case of someone whose proceedings have started but not finished at the point that the charge is repealed. That is a complex exercise, and I can assure hon. Members that any Government exercising the repeal power would consider these issues carefully.

I am not convinced, however, that we need a duty to create such consequential and transitional provisions. Sometimes, after careful consideration of the issues, it turns out that no such provision is needed. The general legal position or the Interpretation Act 1978 might already supply all the answers. If so, a duty to create unnecessary provisions seems wholly wrong. Hon. Members might be more concerned with the duty to repeal rather than the duty to make consequential provision. All I can do here is to point them to the wording used in subsection (3), which says that the Lord Chancellor “must”—not “may”—make regulations to repeal the criminal courts charge. So if the Lord Chancellor concludes that it is appropriate to repeal after having carried out a review, he is under a duty to do so. I cannot see what further reassurance hon. Members want. For those reasons, I urge the hon. Gentleman to withdraw the amendment.

Andrew Slaughter (Labour, Hammersmith)

I am broadly satisfied with what the Minister has said. I predict that once the charge is on the statute book, it will probably stay there because Governments are reluctant to forgo income, but I suspect that it will become a discretionary matter in due course. I shall leave it there for today. I beg to ask leave to withdraw the amendment.

Clause 31 - Variation of collection orders etc

Andrew Slaughter (Labour, Hammersmith)

I beg to move amendment 110, in clause 31, page 34, line 27, at end insert—

‘(7) The power to vary orders under this paragraph may only be exercised by an officer of court directly employed by HMCTS.’.

In addition to related provisions, the amendment would remove all doubt that the function of collecting fines under the clause must be carried out by directly employed staff of Her Majesty’s Courts and Tribunals Service for two reasons. First, we are unimpressed by the Government’s attempts so far to privatise the collection machinery, now going into overdrive. We note the relatively poor performance of those parts of the service that are already externalised and the inevitable loss of expert staff in such circumstances.

Our concerns, perhaps not surprisingly, were shared by the Public and Commercial Services Union when it gave evidence to the Committee on its first day. The PCS made a further point:

“Clause 31 allows an offender to apply to a fine office for the payment or reserve terms of a collection order to be varied. PCS notes with concern that the Ministry of Justice is currently considering bids for the outsourcing of the collection and enforcement of fines, costs and compensation. The implications of this are very concerning. This could mean officers exercising the power to vary orders of the court will be the employees of a private company”—

we can of course imagine which companies—

“and PCS opposes any extension of their powers at this time. Private companies should not be allowed to make judicial decisions.”

That is the essence.

A theme of part 3 is what we might call subsidiarity, for want of a better word—pushing things down to lower levels, to save costs or for proper, functional reasons. In the past, that has meant judicial decisions being pushed out, in an administrative way—something of which the Government are now critical. It now involves the exercise of substantial discretion by court staff. We do not oppose that per se, and we want an effective fines collection service, doing better than it does now, but we are concerned about outsourcing per se and outsourcing to the usual suspects.

We do not need to go over that ground again, because we did so last week. Several members of the Committee made heartfelt speeches expressing concern that we are now dealing not only with organisations that have failed—as Capita, for example, did on the interpretation and translation service—but with organisations that have failed deliberately and have deliberately withheld or extorted money, as happened with tagging and other contracts.

At least until such time as organisations that can be trusted carry out the functions, they should not be entrusted with the responsibility required under clause 31, which will have an impact not only on the judicial system but, as the Minister has quite properly said, on the difficult process of organising the collection of substantial sums of money. If we go to all the trouble of means-testing, of making proper assessments, of working through complex rubrics of what is charged for which part of the offence or what goes to which department and we hand over the administration and collection of that money to people who are not up to the job, that clearly is wholly self-defeating. So I hope—probably more hope than expect—the Minister to agree with me on the amendment.

Shailesh Vara (Conservative, North West Cambridgeshire)

I fear that it will remain a hope on the part of the hon. Gentleman. I certainly will not allow ideological differences to get in the way of a Government proposal that is basically good.

The amendment would prevent the power to vary an offender’s rate of repayment being exercised by anyone other than an officer of court directly employed by HMCTS. Fines officers already have the power to vary repayment rates for existing financial impositions prior to default. The changes in clause 31 will simply extend those powers to enable repayment rates to be varied after default and to vary them on less favourable terms to the offender only with the offender’s consent.

HMCTS has commenced a procurement process to identify an external provider for the future delivery of compliance and enforcement activity for criminal financial impositions. That will improve efficiency and the collection of financial impositions, as well as reduce the cost of the current service. There is nothing inappropriate about an external provider’s performing the powers used by fines officers to vary collection rates. A court will impose obligations to make payments, such as fines, compensation or, in future, the criminal courts charge. Fines officers will merely apply collection measures to satisfy that obligation, which is effective case management.

Moreover, it is firmly in the interests of offenders to empower the fines officer, whether that function is performed by direct employees of HMCTS or by an external provider, to vary the rate of repayment if appropriate in the circumstances. That will give crucial flexibility to adjust payment rates—for example, where an offender’s circumstances have changed, so enabling offenders to pay at a rate they can afford. If an external provider is prevented from exercising these important powers to vary offenders’ payment rates, the alternative will be for offenders to return to court to seek a variation, so incurring additional court costs, or to face the consequences of defaulting on payment, which might include the use of bailiffs.

The amendment may be motivated by a desire to afford sufficient protection to offenders—for example, to ensure that they cannot be required to pay at a rate they cannot afford. I reassure the Committee that the scheme, as amended by the Bill, will have safeguards in place to protect offenders. It will only be possible to vary the payment rate in a way that is less favourable to offenders with their consent; otherwise, the only variations allowed will be on terms more favourable to offenders. In addition, decisions on the variation of payment rates will continue to be appealable to magistrates courts, as they are at present.

The additional powers to vary payment rates under clause 31 will increase the likelihood of recovering a greater proportion of the debt owed by offenders, thereby reducing the burden on the taxpayer of the costs of running the criminal courts. For the reasons outlined, I ask the hon. Gentleman to withdraw his amendment.

Andrew Slaughter (Labour, Hammersmith)

I repeat that we think it the height of folly to give sensitive, difficult and at least quasi-judicial functions to organisations that cannot be relied upon to perform relatively simple mechanical and manual tasks. But the Government have got into bed with these organisations, which will no doubt stay there until such time as someone else kicks them out. I beg to ask leave to withdraw the amendment.

Clause 32 - Appeals from the High Court to the Supreme Court

Andrew Slaughter (Labour, Hammersmith)

I beg to move amendment 115, in clause 32, page 34, line 34, leave out subparagraph (a).

David Crausby (Labour, Bolton North East)

With this it will be convenient to discuss the following:

Amendment 114, in clause 32, page 34, line 37, leave out subparagraph (b).

Amendment 116, in clause 32, page 34, leave out from line 40 to end of line 7 on page 35 and insert—

‘(3A) Where the “alternative conditions” are satisfied, any party may apply to the Supreme Court for a certificate enabling an appeal to be made directly to the Supreme Court.

(3B) The “alternative conditions” are that a point of law of general public importance is involved in the decision and that—

(a) the proceedings entail a decision relating to a matter of national importance or consideration of such a matter;

(b) the result of the proceedings is so significant (whether considered on its own or together with other proceedings or likely proceedings) that, a hearing by the Supreme Court is justified; and

(c) the benefits of earlier consideration by the Supreme Court outweigh the benefits of consideration by the Court of Appeal.’.

Amendment 117, in clause 32, page 34, line 43, leave out subparagraph (a).

Andrew Slaughter (Labour, Hammersmith)

This is interesting stuff. We are not opposed in principle to these provisions, save in one respect, which is the ability to leapfrog in Special Immigration Appeals Commission cases. However, we have some reservations about the extent to which the Government are pressing ahead. Leapfrog appeals are not new, but the Government seek to relax substantially the circumstances in which they can take place.

These amendments consider the alternative conditions at clause 32(3). We do not have a great deal of difficulty with two of the conditions: first, that

“the result of the proceedings is so significant…that, in the opinion of the judge, a hearing by the Supreme Court is justified”

and, secondly, that

“the judge is satisfied that the benefits of earlier consideration by the Supreme Court outweigh the benefits of consideration by the Court of Appeal.”.

We have concerns about the use the term “national importance”, which I will come to in a moment. In any event, this should be a matter for the Supreme Court to consider. Amendment 116 would allow that to happen more clearly. In other amendments, we seek to narrow some of the criteria for leapfrogging—in particular, on consent.

I am grateful—as I am sure other members of the Committee are—for the briefing provided by Justice and by the Immigration Law Practitioners Association, which has a clear interest in both the tribunal side and the SIAC side. The suspicion is that the extent to which leapfrog appeals are being enhanced is motivated by certain specific cases that have troubled the Government—one might say HS2, or Abu Qatada. I am a great fan of HS2 but not of Abu Qatada, so it is not the result of those cases—

Shailesh Vara (Conservative, North West Cambridgeshire)

Better than the other way round.

Andrew Slaughter (Labour, Hammersmith)

The Minister is welcome to intervene. That may be something that we agree on.

Shailesh Vara (Conservative, North West Cambridgeshire)

Only on Abu Qatada.

Andrew Slaughter (Labour, Hammersmith)

We now find out that the Minister is not a great fan of HS2. We can talk about that outside. I gave those examples to reinforce the point that hard cases make bad law. The Government are reacting to a small handful of cases and saying, “We have to deal with these in a more summary fashion.” There is nothing wrong with the principle of leapfrog appeals or in cutting out stages. There is certainly nothing wrong with speeding up processes that are often too long.

Justice says:

“The Bill proposes to amend the current procedure which applies to leapfrog appeals to expand the circumstances when they will be available, to include cases where the first instance court considers that a case is one of ‘national importance’ and so significant that early consideration by the Supreme Court outweighs the benefits of consideration by the Court of Appeal. The second group of amendments would require an application to be made to the Supreme Court to approve of the use of the leapfrog procedure in these cases. It would also make the criteria proposed cumulative. The current approach in the Bill is modelled on the existing procedure for leapfrog. However, this test will provide for a much expanded set circumstances, more subjectively determined, when a curtailed provision for appeal is deemed appropriate. That the test hinges on a lower court’s assessment of national importance (determined most likely after hearing argument from a Government department or public agency) must be considered carefully.

While the Supreme Court will retain the power to refuse to hear an appeal and a route back to the Court of Appeal is maintained and a route back to the Court of Appeal is maintained, we are concerned that, in these cases, referral will put significant pressure on the Supreme Court to add cases assessed as ‘nationally important’ to its docket. The claims are, by their nature, likely to be subject to a high level of public scrutiny. Whether a route back to the Court of Appeal will realistically remain open in these circumstances is as yet untested. Parliamentarians should ask the Minister”—

I ask him now—

“to explain why the existing model for the management of leapfrog appeals is appropriate for the consideration of a much expanded group of cases when the existing requirement for the parties’ consent is removed.”

Justice makes a point that I think is self-evident:

“the Supreme Court has limited time and resources and must remain in control of its own listings, in order to ensure the fair management of its time and the prompt consideration of the most pressing issues for determination, whether according to the individual impact of an issue or the constitutional significance of any case.”

Also, there is a refining process. The Court of Appeal and the Supreme Court have different functions in the appellate process. Often the Court of Appeal process will define and refine the issues in a way that then makes the job of the Supreme Court not just easier but more pertinent. That is quite likely to be lost under this process.

As ILPA rightly points out,

“The clauses do not require the consent of the parties and clause 32 amends the Administration of Justice Act 1969 so that the need for the consent of the parties will be dispensed with in all cases…The parties are giving up a hearing before a court and should not be forced to do this. There are plenty of incentives for the parties to consent, including cost, speed and ensuring that the case is heard by the Supreme Court. Of particular concern would be cases where one party consents and the other does not.”

That was my earlier point. At the moment, the consent of both parties is needed. This process could, in theory, go ahead with the consent of neither party. However, if one party consents, it is overwhelmingly likely that it will be the Government who are pushing and pushing in these cases. We will come in another set of amendments to cases where going ahead with the process might be unwise.

This process will involve the Supreme Court in a lot of preliminary work that is better done elsewhere. We may just be creating a logjam at a different point in the process. Consequently, the Supreme Court should be given more discretion in relation to what cases it takes. Secondly, this provision reminds me of some of the language used in the Justice and Security Act 2013. The point about “national importance” is quite capable of being hijacked, not for political motives, but in a political case where the Government simply wished, perhaps under pressure from the press or members of their own party, to press on with a case when legal consideration said that that should not happen.

I caution the Minister on rushing headlong into this process. I commend our amendment to the Committee. I will not press it to a vote. It is another one of those issues that I would like the Government to respond to today, as far as they are able to, and to look at again. We are not dealing with a huge number of cases. We are talking about the highest court in the land, a court whose time is precious and whose role is specialised. There is a danger that either too many cases will end up there, because of determinations made by a court of first instance, or that the wrong type of cases will end up there, because of the “national importance” criterion in the Bill. I will not detain the Committee further, but those points are made at greater length in some of the briefings we have had. I am sure that those were shared with the Minister and his officials. I ask the Minister to say whether he can agree with our amendment today.

Shailesh Vara (Conservative, North West Cambridgeshire)

First, may I clarify for the record and the Official Report that my comments from a sedentary position referred only to Abu Qatada? It is not for the Committee to comment on High Speed 2. I would not want anyone to take anything out of context; I make no comment on HS2. That is not something for the Ministry of Justice to comment on in relation to criminal justice and courts. Having clarified the position, I return to the topic at hand.

Clauses 32 to 35 widen the scope for appeals from the High Court to be made directly to the Supreme Court, missing out the Court of Appeal. These are known as leapfrog appeals. The Government intend to allow a wider range of cases to leapfrog, to ensure that cases destined for the Supreme Court get there more quickly. To achieve this, clause 32 expands the circumstances in which a leapfrog can take place and removes the requirement for all parties to consent, which is essentially a veto on leapfrogging.

The Government consider that in a small number of important cases that cannot currently leapfrog, it is clear that leave to appeal to the Supreme Court will ultimately be sought, because the cases raise issues that are so difficult and important that they are very unlikely to be resolved below the highest level. These cases may take many years to resolve, as they move step by step through the court hierarchy. Those delays add to costs for all sides, and can damage public confidence in the effectiveness of the justice system. I believe that such cases should be determined more quickly and with fewer intermediate steps.

Clause 32 consequently amends section 12 of the 1969 Act to widen the circumstances in which a leapfrog appeal can take place. It would allow a case to leapfrog in three circumstances: first, if it raises issues of national importance; secondly, where the result of the case is of particular significance; and thirdly, when the benefits of earlier consideration by the Supreme Court outweigh the benefits of consideration by the Court of Appeal. Under the expanded criteria, it would still be necessary for the appeal to be on a point of law of general public importance, as the case would not otherwise be one for the Supreme Court at all. Consideration must also be given to the nature and implications of the case. Such cases could relate to a nationally significant infrastructure project, to the deportation of a person who is a risk to national security, or to a significant intellectual property issue with huge implications for business.

Clauses 33 to 35 will extend the possibility of leapfrogging to decisions of the upper tribunal, the Employment Appeal Tribunal and the Special Immigration Appeals Commission.

Andrew Slaughter (Labour, Hammersmith)

The Minister has put it much better than I could, but can he not see that the phrase “national importance” puts undue pressure on the courts, including the Supreme Court, to follow a political direction?

Shailesh Vara (Conservative, North West Cambridgeshire)

One of the greatest elements of our country is the historical tradition of an independent judiciary. In my dealings with the judiciary in the relatively short time in which I have been a Minister, one thing of which I have been convinced is that they are an independent group of individuals. They will continue to be so, and will do what they feel is right as prescribed by the law. They will not take any leanings of a political nature.

Andrew Slaughter (Labour, Hammersmith)

The Minister misunderstands me. Perhaps I used an ambiguous phrase in “political direction”. I did not mean that the Court would behave in a political way, but that it may have to take cases because there is a political imperative on the Government to push those cases towards the Court. It is not a question of what the Court then decides, but a question of whether the Court takes the case in the first place.

Shailesh Vara (Conservative, North West Cambridgeshire)

Courts will take cases if the law provides that those cases should be heard in those courts before those judges.

Valerie Vaz (Labour, Walsall South)

Does the Minister have an estimate of the number of cases that will end up in the Supreme Court, and does he intend to appoint more judges to it?

Shailesh Vara (Conservative, North West Cambridgeshire)

I am afraid that I do not have the estimate for which the hon. Lady asks. To the extent that such information is available, I will be more than happy to let her have it.

Clauses 33 to 35 will extend, as I said, the possibility of leapfrogging to decisions of the upper tribunal, Employment Appeal Tribunal and Special Immigration Appeals Commission. We would not expect leapfrogging to become the norm, and it should be used only in cases of major importance that would clearly reach the Supreme Court anyway. Such cases are inevitably those where there is most to lose from delay. Amendment 114 would retain the requirement for both parties to a case to consent to a leapfrog application where that application is made under the new, wider circumstances. Instead, by virtue of proposed new section 15(6) of the 1969 Act, which amendment 118, which we shall discuss later, seeks to create, there would be a new, limited exemption to the requirement for consent. This limitation would take effect where the Supreme Court had, after hearing oral argument, allowed an application for permission to leapfrog.

In the key cases I described, it may be that one party has an interest in seeking delay. That party would be unlikely to give their consent to a leapfrog, even if a swift resolution was in the wider public interest. That is why it is important to remove the requirement for the consent of all parties before a case can leapfrog. The measures will prevent one party from exercising a veto on an appropriate case being expedited, but the court would still be able to take into account the views of the parties.

Our clauses retain the current approach, in which both the judge at first instance and the Supreme Court must consent to an application before a leapfrog can occur. In the Government’s view, the judge at first instance has an important role in this process, and that point was supported by the senior judiciary in their response to the consultation. Amendments 115 to 117 would remove the possibility of the judge at first instance granting a certificate stating that an appeal was appropriate for leapfrog where leapfrog would take place under the new, wider circumstances.

The Government cannot support such a change for the reasons I have given, and because we fear that it might have the unintended effect of the Supreme Court facing an extra burden, not of leapfrog appeals, but of applications to leapfrog requiring oral argument. The Government’s view is that the approach set out in clauses 32 to 35 provides a balanced and sensible new approach to leapfrogging, with adequate safeguards built in. I ask the hon. Gentleman to withdraw his amendment.

Andrew Slaughter (Labour, Hammersmith)

I have set out my concerns, but I do not think that they have been addressed by the Minister. We will set out more of our concerns in the next group of amendments. For the moment, I am content to beg to ask leave to withdraw the amendment.

Andrew Slaughter (Labour, Hammersmith)

I beg to move amendment 118, in clause 32, page 35, line 18, at end insert—

‘(5) In section 15 (cases excluded from section 12) after subsection (4), insert—

(5) No certificate shall be granted under section 12 of this Act in any case where a declaration pursuant to section 6 of the Justice and Security Act 2013 (c. 18) has been made.

(6) No certificate shall be granted under section 12 of this Act without the consent of one or more parties unless by decision of the Supreme Court following an oral hearing.

(7) No certificate shall be granted under section 12 of this Act where one or more of the parties is unrepresented.”.’.

David Crausby (Labour, Bolton North East)

With this it will be convenient to discuss the following: Amendment 119, in clause 33, page 37, line 30, after subsection (4), insert—

‘(5) No certificate shall be granted under section 12 of this Act in any case where a declaration pursuant to section 6 of the Justice and Security Act 2013 (c. 18) has been made.’.

Amendment 120, in clause 34, page 39, line 30, after subsection (4), insert—

‘(5) No certificate shall be granted under section 12 of this Act in any proceedings where closed material proceedings under Rule 54 of the Employment Tribunals Rules of Procedure pursuant to Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (S.I 2004/1861) have been used.’.

Andrew Slaughter (Labour, Hammersmith)

I think I can deal with our further points in this debate. I give notice that I do not intend to press the amendment to a vote. We want to make clear our position in relation to appeals under the Justice and Security Act 2013. I will not speak to the amendment at great length, but we will want to vote on clause 35.

We set out in amendment 118 three exceptions, or cases in which leapfrog appeals cannot be allowed. We have already dealt with the issue of consent, notwithstanding what the Minister said in relation to that. I have already made the point that there are substantial incentives and inducements for both clients and practitioners to adopt a leapfrog process, where that is suitable. It is where there is an inequality of arms—where one party is allowed to force the other into the process—that it might be unsuitable. An example would be where, given the restrictions on legal aid—it is almost an hour since I mentioned that—arguments cannot be fully presented; one party does not have the same benefit, or strength of arms, as the other. In those circumstances, it may be unsuitable for a case to be leapfrogged before arguments have been properly developed. That is essentially the criterion in relation to representation.

It is increasingly common, even in serious cases, for one party—sometimes both, but I suspect in these cases it is the non-Government party—to be unrepresented. It really is pushing it to say that a litigant in person is able fully to explore the arguments and should, after a first instant decision, have the ability to go straight to the Supreme Court. The Court of Appeal is actually quite experienced in dealing with litigants in person—whether it should be is another matter—and with providing that refining process.

We have mentioned section 6 of the Justice and Security Act 2013 in relation to clauses 32 to 34; it relates to clause 35, too. The amendment would prevent leapfrogging in any case where a court or a tribunal had used the closed material procedure authorised under specific statutory frameworks, or under the 2013 Act. The Government clearly intend the procedure to be available in those cases, but there is concern that removing consideration by the Court of Appeal would inadvertently expand the number of claims subject to the closed material procedure that the Supreme Court is invited to consider. Supreme Court justices have expressed concerns about the use of the procedure. The ability of the Court of Appeal to narrow down a legal issue that requires determination by the Supreme Court is arguably crucial to minimising the number of closed judgments that the Supreme Court is required to make.

I am sure that the Minister is familiar with the judgment and what happened in the case of Bank Mellat; very reluctantly, the Supreme Court determined, I think for the first time, that it should sit in secret, but it decided, having heard the evidence, that that had not been a necessary step to take. It was quite clear from the judgment in that case that the step is severely disapproved of by the Supreme Court, and that it, above all other courts, should maintain the principle of open justice.

I do not intend to rerun arguments from the Justice and Security Bill; we are where we are on that. Partly because of the nature and circumstances of the cases that we are talking about, and because of the inevitable restrictions on one party in presenting its case, inevitably there cannot be a level playing field. The Government concede this, and conceded it in proceedings on the Justice and Security Bill; they just argued the balance differently from us. Under the proposal, there would not be the ability for both sides to develop their arguments in the same way. That point was made clearly, as one would expect, not only in the briefing from Justice, but by the Immigration Law Practitioners Association—very senior practitioners who have experience of all these types of cases.

Given the time, I will not repeat the arguments. For reasons that I have given relating to the inequality of arms point—that is, where one party is unrepresented, one party is pushing for the leapfrog and the other is disinclined, or one party is hampered by the closed material procedure—there should be specific exceptions to the carte blanche that the Bill gives to leapfrog appeals.

Shailesh Vara (Conservative, North West Cambridgeshire)

As we have just discussed, clauses 32 to 35 give effect to the Government’s intention of allowing a wider range of cases to leapfrog in order to ensure that cases destined for the Supreme Court get there more quickly by missing out the Court of Appeal.

Proposed new subsection (5) would preclude leapfrogging where a declaration was made by a court that the closed material procedure could be used in the proceedings, pursuant to section 6 of the Justice and Security Act 2013. Amendments 119 and 120 are probably intended to extend an equivalent limitation to the upper tribunal and employment tribunal respectively, though they would not achieve that intention as currently drafted. The Government’s view is that the exclusion would be harmful. Cases in which sensitive material is at issue to the extent that they result in the use of the closed material procedure can be extremely important, and should not be precluded from leapfrogging simply on the basis that such material is or has been at issue. The requirement for the consent of both the judge at first instance and the Supreme Court is, in the Government’s view, a sufficient safeguard against misuse.

Proposed new subsection (7) would preclude leapfrogging in any circumstances where one or more of the parties is unrepresented. That would, in the Government’s view, be unworkable. It would, for example, seem to allow one defendant among many to defeat a leapfrogging application simply by terminating their relationship with their legal advisers temporarily, or where they are fully qualified lawyers representing themselves. I ask the hon. Gentleman to withdraw his amendment.

Andrew Slaughter (Labour, Hammersmith)

Whether the amendment is defective in its drafting or has unintended consequences—I may be guilty of both—the Government should, rather than pushing the problem back to us, take it seriously and try to resolve it. The process will go ahead and we will see how it works. However, in our view, the provisions go too far. We will make our protest by picking up what is perhaps the most obvious case in which the loosening of the leapfrog process is inappropriate: the case of appeals from the Special Immigration Appeals Commission. I beg to ask leave to withdraw the amendment.

Clause 35 - Appeals from the Special Immigration Appeals Commission to the Supreme Court

Andrew Slaughter (Labour, Hammersmith)

For the reasons previously given, the Opposition believe that the clause should not stand part of the Bill, at least until the Government have justified why, given the particular circumstances relating to SIAC appeals, the new rules on leapfrogging should apply.

Clause 36 - Wasted costs in certain civil proceedings

Andrew Slaughter (Labour, Hammersmith)

I beg to move amendment 122, in clause 36, page 42, line 7, leave out ‘must’ and insert ‘may’.

I think that we have reached a low point in the Bill Committee for two reasons. First, the hon. Member for Cambridge made a fleeting appearance to vote in support of secret courts again, which I thought I had seen enough of—[Interruption.]. I will tell him when he graces us with his presence again. Secondly, we now come on to a clause that I cannot see the point of.

David Evennett (Conservative, Bexleyheath and Crayford)

He must be brief, then.

Andrew Slaughter (Labour, Hammersmith)

Yes, I will be brief actually. I really cannot see the point of this. In relation to wasted costs, the clause says:

“Where the court exercises a power under subsection (6) in relation to costs incurred by a party, it must inform such of the following as it considers appropriate”.

At the moment courts have, quite properly, discretion in relation to wasted costs. If they cannot have discretion on that, one has to ask where do they have discretion. What is the clause’s effect? Is it simply to restate that discretion, or to give the courts a nudge towards something that otherwise they might not do, or to give them a strong recommendation on not just making an order for costs, but reporting the offending party to the regulator or the director of Legal Aid Agency? I ask the Minister to explain which of those the clause intends to do, and then to explain the purpose or point of the clause. At the moment, we cannot see any reason for supporting it at all.

Shailesh Vara (Conservative, North West Cambridgeshire)

The clause forms part of the wider judicial review measures in part 4 of the Bill, which, among other things, intend to address the pursuit of weak cases that overburden public services and delay the progression of meritorious judicial reviews. The amendment would afford the court discretion to decide whether to notify the regulators or the Legal Aid Agency where it considers it appropriate to do so. The proposed amendment is unnecessary as the clause already gives the court discretion on whether it notifies the regulator and/or the Legal Aid Agency. I hope that the Opposition Members can be reassured, so let me briefly explain.

Wasted costs orders make a legal representative personally liable for costs of litigation incurred as a result of their improper, unreasonable or negligent behaviour. Despite such conduct amounting to a breach of duty to the court, there are currently no further formal consequences for the legal representative at fault. The Government’s view is that the implications of receiving a wasted costs order should be strengthened so that legal representatives are encouraged to consider more carefully the decisions they make both in handling claims and in deciding whether to pursue a case.

To be clear, the duty introduced by clause 36 requires the courts, where appropriate, to notify the relevant bodies when a wasted costs order is made. That mandatory requirement—the “must”—goes no further than requiring the courts to notify when they consider it appropriate. The discretion the amendment seeks to introduce is already in the clause as drafted. The question of whether it is appropriate to make such a notification will remain a matter for the court to determine, based on the facts of a case.

The Government are clear that the courts should consider making a notification in all cases in which a wasted costs order is made. We are also clear that it would not be proportionate to require automatic notifications and fully agree that whether or not a notification should be made is a matter for the courts to consider, based on the facts. Clause 36 has been drafted to achieve this and I ask the hon. Gentleman to withdraw his amendment.

Andrew Slaughter (Labour, Hammersmith)

I am not sure what the phrase,

“it must inform such of the following as it considers appropriate”,

does to change the status quo. I am not sure whether this does a great deal of damage, other than perhaps being slightly confusing. With all due respect to the Minister, his explanation did not make me any the wiser. I suppose we ought to vote against the clause for the sake of clear and concise legislation, but I shall not press it to a vote in order to make some progress. I beg to ask leave to withdraw the amendment.

Clause 37 - Strict liability: limitations and defences in England and Wales

Andrew Slaughter (Labour, Hammersmith)

I beg to move amendment 124, in clause 37, page 43, line 17, leave out from ‘proceedings’ to end of line 28.

This is quite a nice point, which I have taken from the Newspaper Society. I referred briefly to the society this morning, and it developed the point at length. I will not develop it at length, but clauses 38 and 39—which have our general support—arise from the clear and acknowledged problem of how the law of strict liability and contempt can be adapted to the age of social media and the internet. Both the Attorney-General and the Law Commission have investigated the issue and come up with a practical and relatively elegant solution. Before proceedings are active, the rules will effectively be remain the same, but after proceedings become active a notice would be served on publishers or distributors by the Attorney-General, and because of the much wider availability of written material, publication could then constitute a contempt. That is a reasonably sensible approach.

The Newspaper Society does not disagree: indeed it is relatively complimentary, saying that,

“the Bill acknowledges the concerns of the media expressed during the Law Commission consultation”,

and that it appreciates,

“that the Government has also decided against the introduction of any new specific power to order media organisations to take down or expunge material from their archives”.

However, it also says—and I think this is unarguable—that part of the problems that the Government foresee are dealt with by later clauses in the Bill. It says:

“From the point of principle, it is a potentially dangerous step for the Attorney General (a member of the Government of the day) to be given the statutory power to dispense notices to anyone—editor, publisher of newspapers, magazines, books or other material in any media, broadcaster, website owner, library, individual—suggesting that lawfully published archive material be removed from public view as a forerunner to court injunction and threat of contempt proceedings, with the service of that notice then removing a defence that would otherwise be available to the recipient if the server of the notice, the AG, chooses to bring contempt proceedings. It appears that it is the service and receipt of the notice, not the validity of the AG’s legal opinion as to contempt, that would actually deprive any or all recipients of any Defence”.

When I read that, I thought it was quite a good point. The society adds:

“Local and regional media organisations would be very fearful of incurring the financial costs of challenging the AG’s view or formally contesting a notice”.

It therefore suggests, and I have drafted, a change that would remove the Attorney-General’s notice from the process. This is a probing amendment, and we do not disagree with the drafting of the clause, but I would like to hear the Minister’s response to those genuine concerns raised by the media. Does he think the amendment would address those concerns?

Shailesh Vara (Conservative, North West Cambridgeshire)

The Government cannot agree to the amendment. Our proposals aim to strike a balance between the freedom to publish and a defendant’s right to a fair trial. Clause 37 protects the rights of publishers by ensuring that they do not have to monitor online archives constantly to check whether they contain material that may prejudice a trial that has started since the material was published.

A system is also needed, however, so that material that may prejudice a trial can be removed from the internet or elsewhere. To that end, clause 37 also creates a notice procedure that enables publishers and distributors to be made aware of seriously prejudicial material and to give them an opportunity to remove it so as to avoid proceedings for contempt of court.

Removing the notice procedure would mean that if potentially prejudicial material was available before court proceedings, and remained available after those proceedings began, the publisher or distributor would have a complete defence against contempt of court. It is vital that defendants should be tried by the courts, not by the media. The amendment would result in prejudicial material remaining available, which could increase the risk of an unfair trial. There would be no ability to bring contempt of court proceedings against a publisher. We do not believe that would achieve the right balance between rights. I therefore urge the hon. Gentleman to withdraw his amendment.

Andrew Slaughter (Labour, Hammersmith)

I will not press the amendment to a vote, but what is the Minister’s response to a Government Law Officer being able to intervene by issuing notices to small publishers and individuals?

Shailesh Vara (Conservative, North West Cambridgeshire)

Very simply, it is important to have a balance, and that balance is ultimately decided by the Government Law Officer. We are not trying to take sides in any way; we are trying to see that justice prevails, whether it is a small publisher or a big publisher.

Andrew Slaughter (Labour, Hammersmith)

I said that I will not press the amendment to a vote, so I beg to ask leave to withdraw the amendment.

Clause 39 - Upper age limit for jury service to be 75

Andrew Slaughter (Labour, Hammersmith)

I beg to move amendment 125, in clause 39, page 44, line 13, leave out ‘but under 76’.

David Crausby (Labour, Bolton North East)

With this it will be convenient to discuss amendment 126, in clause 39, page 44, line 17, leave out ‘subparagraph (b).

Andrew Slaughter (Labour, Hammersmith)

Both amendments would have the same effect, which is not to limit the age of jurors to 75, as the Government seek to do, but to put it at large, just as the voting age is at large. Some Members of this House are over the age of 75 and are still in robust health and spirits. They are often able to carry themselves with considerably more vigour and aplomb than many younger Members. I am moving this probing amendment to ask the Minister what the logic is for choosing 75 and whether that is the limit of the Government’s extension.

I have one other point, which will avoid the need for a clause stand part debate. A consequence of raising the age limit for jury service is that the Government will save money.

Robert Buckland (Conservative, South Swindon)

I appreciate the spirit of the hon. Gentleman’s amendment, but he is not seriously arguing that we should allow centenarians to be jurors, remarkable and wonderful though they are.

Andrew Slaughter (Labour, Hammersmith)

The logic of the Government’s position is that the age should rise with increasing longevity and improved health, and so on. I will not press the amendment to a vote and I am not saying that anybody of any age should be eligible, because that would create certain problems of its own, in terms of mental and physical health. I am asking why 75 is the cut-off and positing the view that this has more to do with saving money than with enfranchising, in the sense of jury service, those aged between 70 and 75.

I put it to the Minister—it is not in my amendment because of financial privilege—that if he is raising money, there will of course be a benefit to the economy generally, as acknowledged in the impact assessment, because there will be fewer people of working age, proportionately, on juries and they will be in productive work. I accept that. But there will also be a saving to the Government, because, on the whole, they will not be paying for loss of earnings to people over 70 who are sitting on juries. I think that that saving would be a significant sum of about £1 million a year. As the Government are looking around for money—they are particularly looking for money for Her Majesty’s Courts & Tribunals Service, because that is why we have the courts charge—so why not say that the money saved will benefit that service?

This is a probing amendment and I ask the Minister to explain his logic in choosing this age.

Shailesh Vara (Conservative, North West Cambridgeshire)

I note that this is a probing amendment and hope that the hon. Gentleman is not being unfair to those who may be beyond the present jury age but are active and fit and well able to serve as jurors.

The Government are increasing the age limit to make juries more representative of the adult population and to ensure that juries benefit from the experience and knowledge of those aged 70 to 75. Amendments 125 and 126 would abolish the upper age limit of jurors entirely. I disagree with the amendment, as the Government’s view is that, over the age of 75, an increasing proportion of people would find it difficult to sit as jurors and would therefore be more likely to seek to be excused jury service. Rather than put them through the process of applying for excusal, and spend taxpayers’ money dealing with that additional administrative burden, it is right to set the age limit at 75.

According to the latest figures published by the Office for National Statistics, the healthy life expectancy of both men and women at age 65 in England and Wales is now at least 10 years. The selection of jurors should reflect that fact. That is why it is fair to expect people aged up to and including 75 to sit as jurors if summoned.

The hon. Gentleman mentioned estimated savings. It is currently estimated that the economic net benefit of raising the jury service age limit to 75 is £19 million to £39 million, at 2013-14 prices, over 10 years. That estimate depends on a number of assumptions about the number of people over 70 who will serve as jurors.

I hope that the hon. Gentleman asks leave to withdraw his amendment.

Andrew Slaughter (Labour, Hammersmith)

I am happy to do so. The Minister did not say whether he wanted to snaffle the money for himself, but I take it from his silence on the matter that he is content to let the Treasury take it, as it does with all things.

I beg to ask leave to withdraw the amendment.

Clause 40 - Jurors and electronic communications devices

Andrew Slaughter (Labour, Hammersmith)

I beg to move amendment 128, in clause 40, page 44, line 22, leave out ‘surrender’ and insert ‘limit the use of’.

We now come to a series of clauses that deal with new offences applying to jurors, several of which arise from the Law Commission report. We have only questions to ask about, or probing amendments to table on, the majority of the clauses. However, we have a particular problem with clause 44, which we will come to in a moment.

We had two interesting witnesses on this subject. One was Professor Ormerod from the Law Commission, who was able to tell us how the Law Commission had come to its conclusions and how far its recommendations had been followed by the Government in drafting the legislation. The other was Professor Cheryl Thomas, who told us, perhaps from a more pragmatic stance, about how jurors behave and how effective the clauses might be in practice.

In the light of the evidence from both those witnesses—and perhaps especially Cheryl Thomas—we thought that we might be being a little heavy-handed with jurors in drafting some of our amendments. Jury service is one of the most important functions that a citizen performs. It places a huge responsibility on people in deciding the guilt or innocence of their fellow citizens. I shall not wax lyrical about it at this time in the afternoon, but I do think that we have to treat jurors as adults. Despite the great explosion in social media, on everything from laptops to iPads—which I see in use around the room now—and mobile phones, it has always been the case that we have had to put our trust in jurors. We have to make their responsibilities clear to them and then, in effect, leave it up to them, with some sanctions for breach.

Insisting that electronic devices are taken away from jurors, rather than clearly defining the limits of their use, goes against the grain of placing our trust in our fellow citizens performing that job. We heard about the practical considerations, such as building cabinets and other safe storage, and what would happen if a juror received an urgent message, about relatives who are ill in hospital or other important events. The issue could be more easily dealt with by simply instructing jurors clearly that they are not to use mobile devices within the precincts of the court—in the jury room or outside—in any way that is likely to interfere with the trying of the case on exactly the terms that the judge has instructed, which is without any extraneous involvement. It should not be necessary to treat jurors like schoolchildren and deprive them of their devices.

Robert Buckland (Conservative, South Swindon)

The hon. Gentleman makes some reasonable points about the dangers of a blanket approach. It would be wholly undesirable if in every case a judge, as a matter of course, ordered the removal of devices. However, subsection (2) provides that an order may only be made if the judge considers it

“necessary or expedient in the interests of justice, and…proportionate”.

Is there not enough discretion built in to avoid the grim scenario that he portrays?

Andrew Slaughter (Labour, Hammersmith)

The hon. Gentleman has a point. I am sure that we can trust jurors to act maturely, in the same way—I hope—as we can trust the judiciary to act proportionately.

Sarah Champion (Labour, Rotherham)

On that point, Professor Thomas said that she was concerned that the judge would be put in a difficult position when he had to make the decision, because it would alter his relationship with the jury. Does my hon. Friend agree with Professor Thomas’s point that what we need is a standard court procedure that operates in every court and deals with jurors’ possession of electronic devices, rather than leaving it to a subjective view?

Andrew Slaughter (Labour, Hammersmith)

To be honest, I have sympathy with both points, but we must either have rigid guidelines to be followed or leave it to the good sense and proportionality of the judge. That is what lies behind the amendment. I do fear, notwithstanding what I have just said, that removal could become the norm. It is easier to err on the side of safety. It is a possible distraction or temptation, if any issue is raised by the prosecution or the defence in the case, for the judge to take that course of action rather than risking the possibility of infringement or retrial. That is why I took the view that there should be clear directions rather than physical actions, such as ordering the surrender of mobile devices or, as in the next clause, the search of a juror. Some of the clauses begin to affect the important relationship between judge and jury, which I think is my hon. Friend’s point. If the judge is seen as the cop or the schoolteacher, that does not bode well. I am grateful for the acknowledgment from both sides that that point needs to be dealt with.

Mike Kane (Labour, Wythenshawe and Sale East)

Here we are, with the great honour of being elected Members of this House on a Committee that decides law. That is so important that I think we should give up our electronic devices, each and every one of us. Hands up any Committee members who have not looked at social media today or used an electronic device in that capacity. No hands went up, for the record, so we have all used such devices today.

Most contempt of court comes from the Contempt of Court Act 1981, which, as the Law Commission points out, predates the internet. For anyone who does not know, that is a means of electronic communication between people. That Act was introduced in 1981, and I sent my first e-mail in 1988. That was way before the advent of social media.

Two cases spring to mind when I examine the matter. One is that of Kasim Davey, a 21-year-old juror on a serious trial who indicated on Facebook that he was going to find the defendant guilty. It was wrong to do so, but he was a 21-year-old using social media; he knew no better. It makes me wonder whether the court had pointed that out forcefully enough. Are we educating people, and jurors in particular, forcefully enough about the use or abuse of social media during a trial?

Robert Buckland (Conservative, South Swindon)

The hon. Gentleman is making a good point, but the truth is that judges make those directions day in, day out. The judicial college, as it now is, looks at and revises the way in which judges issue directions to the jury. At the beginning of each trial, judges will warn jurors about the dangers of using the internet, and of substituting that for listening to the evidence in the case. That young man, foolish though he was, would no doubt have been told before he took that step.

Mike Kane (Labour, Wythenshawe and Sale East)

No one over 75 years of age would have made that mistake. In the other case, Joseph Beard was looking up on Google how long the trial on which he was a juror would last. In and of itself, that was probably not disastrous or likely to affect the outcome of the trial, but unfortunately he also came across information on the internet about the number of victims that the alleged fraud had affected, and he imparted that information to his fellow jurors. That is where it all went wrong. The trial had to be abandoned after five weeks, and I dread to think how much it cost. However, I have to agree with the hon. Member for Hammersmith that surrendering mobile devices, in this day and age, is not the way to tackle such abuse and contempt.

Robert Buckland (Conservative, South Swindon)

I will briefly add my comments, serving as I do from time to time as a Crown court recorder. I reiterate point that I just made, that judges will issue strong directions to jurors not to use the internet for the purposes of research or use social media during the trial. That also means the times when they are out of court during adjournments and when the court is not sitting—in the evenings, for example.

I would envisage that the power proposed in clause 40 will be relevant in situations where, for whatever reason, a matter such as the inappropriate use of an electronic device has been brought to the court’s attention and that causes the judge concern about the general effect on the jury. Some parts of a trial are particularly sensitive. The most sensitive is when the jury is in retirement. At that point it is important that jurors’ access to and use of electronic devices should be as limited as possible, consistent with their rights to know what is happening in an emergency. It is surely not beyond the wit of man and woman for the courts, through the ushers, to make sure that jurors get messages about family emergencies or other concerns that may crop up while they are in retirement. At the same time, the jurors’ consideration of the evidence will be preserved, their role as jurors will be preserved and they will not be exposed in any way to the sort of questions that I am afraid are cropping up more and more because of increased use by jurors of electronic devices.

The measure should be seen as a way of protecting not just the system but jurors themselves from the consequences of the rash and foolish actions of a small minority. Unlike the hon. Member for Hammersmith, given the discretion built into the system I do not think the clause will open the door to the schoolroom scenario that he painted. Judges can be trusted to use their good sense and to build a decent rapport with jurors. Frankly, if a judge does their job properly and builds that rapport, the powers in the clause will be used more rarely than might have been suggested by the tone of this debate.

Shailesh Vara (Conservative, North West Cambridgeshire)

I hope very much that by the end of my remarks I will have given comfort to those on both sides of the House who have raised concerns. I believe that “limit the use of”, the phrase in the amendment, would not provide the clarity required in the Bill. It could, for example, mean that a jury is told to switch off any electronic communication devices when in the jury room. That, of course, would allow jurors to retain their devices in the jury room, even in a situation where a judge thought that the interests of justice required that jurors should not be using their smartphones or tablets during deliberations.

The amendment falls short of providing certainty that a device is not available during deliberations. Leaving that open to interpretation would result in uncertainty for the judiciary and for jurors. We agree with the Law Commission recommendation that devices should be surrendered. Judges have discretion to take account of the circumstances when making an order, and can make an order only when one is necessary or expedient in the interests of justice, and is proportionate to that aim.

The order by a judge that devices be surrendered is also limited in the periods it may specify. For example, the order may not remove a device from a juror when they are going home at the end of the day. Therefore, the inconvenience caused to a juror by having to surrender their mobile phone or other device will be limited. There are safeguards in the legislation to ensure that any inconvenience would occur only where it was necessary to ensure that a trial operated fairly.

Sarah Champion (Labour, Rotherham)

Will the Minister give way?

Shailesh Vara (Conservative, North West Cambridgeshire)

I am keen to make some progress, so I will not. [ Interruption. ] That is an issue for the hon. Lady. Most of us have been here.

The amendment does not adjust other provisions relating to surrender of devices and hence is technically flawed.

As I say, the power to order the surrender of devices will be used only to serve the interests of justice, and it is of the utmost importance that those interests are properly served. I believe that can be done only with the certainty that comes from removing devices from jurors. I therefore cannot agree to the amendment and I ask the hon. Gentleman to withdraw it.

Andrew Slaughter (Labour, Hammersmith)

In the light of the interesting debate that we have had, I beg to ask leave to withdraw the amendment.

Clause 41 - Jurors and electronic communications devices: powers of search etc

Andrew Slaughter (Labour, Hammersmith)

I rise to make the same point, which is that the power of search is intrusive. Again, it further erodes the relationship of trust between the juror and the court system, including the judge. Of course I accept what has been said about the provisions being used in extremis, or at least in rare circumstances; I just put that forward as a word of caution. We do not intend to oppose the clause.

The rest of the debate is in Hansard.