Chairman
Examination of Witnesses (Questions 1-19)
TUESDAY 11 MARCH 2003
MR MICHAEL
NAPIER, MS
VICKI CHAPMAN,
MR STEPHEN
HOCKMAN QC AND
MR BRIAN
O'NEILL
1. Good morning and welcome to you. You are
the first witnesses to appear in public session before this Committee
as it sets about a range of tasks which have been waiting to be
done we think for some time. This session and the two sessions
of evidence on the Courts Bill really are designed to enable Members
in the Commons to be aware of issues which still arise on the
Courts Bill as it comes towards the end of its stages in the Lords
and to act as a pre-legislative process before the Commons sets
to work on the Bill. So, we are particularly glad to have two
of the principle user groups, the Law Society and the Bar Council,
and I believe that you probably both want to make a short opening
statement and we very much welcome that and look forward to hearing
from you. Which of you would like to begin?
(Mr Napier) We did not toss a coin and
my learned friend has just pointed in my direction, Chairman,
so who am I to disagree? Chairman, thank you for the invitation
to give evidence at the historic moment of first opportunity to
address your Committee. The Law Society has produced a short briefing
document that we hope will assist you and your colleagues. On
the whole, we are supportive of the majority of this Bill and
we really have three areas that we would like to address probably
during questions but I will just flag them up for you, if I may.
The first is the concept of full cost recovery which we understand
to be a Treasury policy. In Clause 87 of the Bill, Lord Hunt put
down an amendment that was passed. We hope that it will survive
the parliamentary process. It says that, in prescribing fees,
the Lord Chancellor shall have regard to the need to facilitate
access to justice. We think that requirement fits very neatly
with the other welcome requirement in the Bill that the Lord Chancellor
must consult when he is settling court fees and that consultation
goes nowadays to the Civil Justice Council, or it will do when
the Bill becomes law, and the Civil Justice Council is an important
body with which the Law Society has good relations. So, the concept
of full recovery of costs for the funding of the courts worries
us a great deal because it affects citizens and litigants in person
and so forth. That is one of the areas we would like to address
in questions. Linked with that is the courts and tribunals modernisation
programme which takes us straight to resources and the very considerable
amount of money that would be required to implement the IT programme
that was said to be the other half of the Woolf reforms on which
the Law Society gave a lot of cooperation. A bid was put in for
a substantial amount of money from the Treasury in the spending
round. That bid was not met other than to a relatively modest
degree and we are very worried indeed that the second limb of
the Woolf reforms, that is IT in the courts, will suffer because
of lack of resources. The debate on that was illustrative of the
views of the Lord Chief Justice and the Master of the Rolls and
I would commend that debate to you when you are considering this
Bill further. The third item that we would be happy to address
relates to periodical payments. This is the method of compensation
for the victims of accidents, particularly serious accidents,
and this is an area of the law of damages that we very much welcome.
There are two areas of difficulty however in it that we hope will
come under scrutiny during the parliamentary process. One relates
to the review of damages and the other relates to what is known
technically as `Part 36' offer to settle. How one copes with that
successful part of the civil procedure rules under the Woolf reforms,
and how that can dovetail with periodical payments is an important
part of this welcome reform to avoid the problem of a windfall
to relatives when somebody dies before the life expectancy that
the actuaries say will be the date when the fund of money should
run out. So, changing from a lump sum award to periodical payments
we welcome and hope that is something we can discuss with you..
(Mr Hockman) Chairman, we too are absolutely delighted
to be here and thank you very much for the opportunity. May I
begin by congratulating you on choosing this particular issue
as your first topic. If one looks at the Lord Chancellor's web-site,
he identifies there four main subjects with which his Department
is concerned: judicial appointments, legal aid, law reform and,
above all, the administration of the court system. So, I think
there is a very good case for saying that the court system is
the principal matter with which the Lord Chancellor's Department
is concerned and this Bill, one would have thought, is probably
the most important reform of the court system for a very long
time. So, you really are starting at the top, as it were, and
that is surely entirely appropriate. May I, like Michael Napier,
just highlight two or three of the key issues which we think you
might find it helpful to concentrate upon. I would label the two
main areas of concern as being these: firstly funding; secondly,
accountability. As regards funding, I think this can be broken
down into two main areas. Firstly, numbers; secondly, facilities.
As regards numbers, a very basic point when you are looking at
the administration of the court system is how many courts there
are. Does the Department have the funding to maintain and indeed
preferably to enhance the number of courts which exist or is there
the risk that, as a result of this merger between the higher courts
and the magistrates' courts, the number of courts will reduce
and that local justice will therefore be less available? You might
like to know that, according to figures which the Department itself
supplied during the course of last year, over the last five years,
some 90 magistrates' courts and some 20 country courts were closed
including 29 magistrates' courts in the year 2001. So, there are
already risks to the availability of local justice. No doubt,
in many such cases, there are significant arguments about rationalisation
which could be put forward, but it seemed to us that that was
an issue that you might want to focus on as being a very basic
point of concern. Secondly, as regards facilities, Mike has already
spoken about information technology which is a key point. I think
there have been improvements in this area in the last year or
two, but I hope it would not be an unfair generalisation to say
that most of our courts are still maintaining paper files in relation
to cases. The major transformation which Lord Woolf foresaw when
he made his report on civil justice whereby all cases would be
electronically logged from start to finish I do not think has
happened or is anywhere near happening as yet, so that is one
important point. A second important point with which we are very
concerned is the question of security. That, too, is ultimately,
I suppose, a funding question. Everyone knows about the incidents
that have occurred in recent times when defendants have jumped
out of the dock and launched projectiles in the direction of the
Bench and matters of that kind. Some of them have caused serious
injury, even to very popular judges!
Ross Cranston
2. We hope it is not going to be witnesses before
this Committee!
(Mr Hockman) I think our projectiles were removed
from us before we came in! So, that is a serious issue. The practical
points that arise from this my colleague, Mr O'Neill, will deal
with, but they include such matters as the structure of the dock
and the staff and perhaps Brian, who is an expert in this area,
might say something about that later on. A further point, if I
can just highlight it, are the facilities for the public. After
all, the courts are there for the benefit of the public. Anybody
who has ever spent time in court as a court user knows that most
courts are not exactly luxury hotels. If you are being paid to
be there, perhaps you could say that you have to put up with a
little inconvenience, but the vast majority of people who use
the courts are not being paid to be there and the facilities for
them, even in terms of basic things like somewhere to hang your
hat and coat and somewhere to have a cup of coffee, are sometimes
lacking. Again, it is a question of funding and of course one
recognises the huge pressures on public funding that exist and
the prioritisation that is necessary. So, those are some remarks
on the funding issue. Just to touch finally on our second main
theme, the question of accountability. The Bill, as you know,
sets up new bodies called Courts Administration Councils, CACs
for short—I will not follow any attempt at punning which
has already occurred in some of the debates on this subject. These
are potentially extremely interesting and potentially I would
suggest very useful and worthwhile bodies, but there is a question
as to exactly what their remit will be. What will the balance
be between policy and administration on the one hand and matters
more directly related to the court itself on the other, and how
far will the judiciary and indeed any of the professions who are
represented get drawn into policy and administration which would
not normally be their responsibility? We know that the judiciary
are concerned about this and there is an interesting potential
area of discussion to be had in that area. Perhaps, by way of
introduction at least, that is more than sufficient. Thank you
very much.
Chairman
3. Is there any reason to suppose that embracing
magistrates' courts within a centralised system would lead to
them being better or more efficiently administered than under
the present system?
(Mr Napier) If I had a strong view about the content
of the Bill insofar as it relates to magistrates' courts, I would
be better able to answer that question. I think on general principles
that what is proposed in the Bill goes in the right direction.
That would be my answer.
(Mr Hockman) I think on that very central point, it
is important to remember that we had the inquiry by Lord Justice
Auld and the unification of the two sides of the court system
under one central agency was a key recommendation of his which
we, as the Bar Council, certainly support. So, we have no problem
with that and indeed it flows from a very searching examination
of the system as a whole. It is really a question of how it is
done, how it is going to be funded and how it is going to work.
4. You raised the issue of the Court Administration
Council and the potential for the judiciary to become involved
in decisions it is not normally involved in and vice-versa with
other professional groups becoming involved in matters that are
really preserved to judiciary, but is any of that going to happen
or is the Court Administration Council going to be a talking shop
regularly ignored by the centralised administration?
(Mr Napier) I would hope not. The model that we have
lived with for some time has been the Court Users' Committees,
particularly in the civil courts, which have worked pretty well:
the local profession, the judges, the staff, the users, the voluntary
agencies and so forth all coming together. I think there is a
precedent that if the so-called CACs get off to a good start,
they will bring together those who need to express views about
the operation of that particular part of the court system.
Mr Cunningham
5. Given the recent re-organisation certainly
over the last 18 months, do you see the re-organisation as being
more efficient? Do you think that some of the court closures should
actually have happened?
(Mr Napier) Wherever courts are closed, there is always
a local outcry, whether it be from the local profession or particularly
from the public. If access to justice—and I am principally
thinking in the civil sense but I know that magistrates' courts
are uppermost in your mind—and witnesses getting to court
conveniently and travelling is to mean real access to justice,
when courts are closed, there is always a worry. Within the Law
Society, we hear from our members who seek to serve courts in
rural areas and clients and witnesses in rural areas that the
closure of courts does cause a problem. On the other hand, rationalisation
of the court system has to be understood as a proper way forward,
particularly if—and I was at Walsall last week where there
is a pilot project for a business centre, and again I am talking
civil—information technology is introduced to make it work.
That will not necessarily help members of the public travel to
courts. So, that is a worry. The so-called access deserts are
a worry, indeed.
6. You mentioned the civil part but what about
the criminal side of it?
(Mr Napier) If you are talking about witnesses getting
to court, it does not matter whether it is civil or criminal.
It is very important for people not to have to travel 30 miles
to get to court when that is inconvenient during the working day,
and the cost of it and so forth. There is always a price to pay.
There is always a downside whenever a court is closed, but I do
not think that the Law Society goes so far as to say "no
closure of courts at any price". One has to accept that some
rationalisation is necessary.
7. Recently in the West Midlands—and I
am sure you are aware of it—I am told that there was a dispute
and that it was probably the first time the staff have actually
been in dispute with their employers; what was that all about?
(Mr Napier) I am afraid I do not know. I am not aware
of that one. Vicki?
(Ms Chapman) No.
Mr Cunningham: There certainly was a
dispute and industrial action.
Chairman
8. Perhaps when we see the justices' clerks
next they can tell us.
(Mr Napier) The court staff in all courts do a tremendous
job under extremely difficult circumstances and the judges with
whom I rub shoulders are constantly praising the staff but complaining
about lack of resources and the pressures that people are under.
Again, it always comes back to resources.
9. Does the Bill make it too easy to close a
court? Could it be amended in a way which would provide better
safeguards?
(Mr Napier) I come back to the choice phrase of "access
to justice". In the same way that Lord Hunt neatly snuck
his amendment through to get access to justice as a criterion
for raising court fees, I would hope that the parliamentary passage
of this Bill might include that little phrase frequently and closure
of courts is an appropriate area.
Keith Vaz
10. May I just raise a supplementary question
on closure. What is your estimate as to the number of courts that
will close as a result of the passage of this Bill? Do you have
a big research department in the Law Society with all these bright
people?
(Mr Napier) One of whom is sitting next to me.
11. Then you must have done some research into
this.
(Ms Chapman) I am afraid that we have not done any
research into this and we do not have any estimate and, if I could
just go back to what Mike was saying earlier, the key criteria
in any decision about court closure has to be access to justice
and it has to be about what that will mean for the people in the
local area and whether or not they can get to whatever the next
nearest hearing centre is. One of the things that we are hopeful
of as part of this re-organisation is looking at the whole of
the estate of the court service, looking at the civil courts,
the criminal courts and the tribunals, and trying to ensure that
there are hearing centres that people can get to when their cases
are being heard.
12. But there is no doubt that courts will close
as a result of this Bill being passed?
(Ms Chapman) I think that the court closure programme
will continue as a result of the continued modernisation and indeed
there will probably be pressure for more court closures as there
is pressure for more rationalisation but, in all of those cases,
the key consideration at a local level has to be what is going
to be the impact on people in this area of this closure, should
it go ahead or not?
(Mr Napier) May I just follow that to make the point
that I do not believe that court closures are dependent on this
Bill. I have here the Court Service Modernising the Civil and
Family Courts which was the basis for the bid of money that
went in to the Treasury. There are maps and graphs and all the
kind of material that Mr Vaz might be looking for when he asked
the question to find out what courts would be closed. This is
a rationalisation programme but it cannot operate closure or improvement
without resources.
Mr Soley
13. I have two questions, the first being the
number of courts issue. It seems to me that the group most vulnerable
are actually in family courts. Families having to make their way
to a court that is further away seems to be more problematic given
the nature of some of the cases that they deal with. First of
all, do you think that is right and will you be looking at the
needs of families attending at those courts? My second question
is regarding what Mr Hockman was saying about user-friendly courts
because it seems to me that there is a tension between the need
to close some of the older courts which I accept need to close
and designing and building new and more user- friendly courts.
Do you think that we can actually deal with the user friendly
issue in some of our older courts or are they beyond redemption?
(Mr Hockman) Firstly, I do very much agree that the
resolution of family disputes is an extremely important area and
is certainly an area where you need to have local courts and they
will be magistrates' courts and country courts. So it is at that
level that we are really speaking when we think about family disputes.
The relevant provisions in the Bill, I think, are Clause 3 which
gives the Lord Chancellor a general power to provide court houses
and so forth and, as you will recall, the power which was originally
expressed in terms of the word "may" was amended in
the Lords so as to insert the word "shall", that he
shall provide such court houses that he thinks appropriate. I
am not sure how significant a change that is but it was certainly
flagging up the importance that is attached to this which manifestly
the Department will be extremely well aware of. The other clause
which is relevant as far as magistrates' courts are concerned
is Clause 25 which provides that the Lord Chancellor may give
directions as to the places at which magistrates' courts may sit.
I am not sure that there is any way in which the legislation itself
can be beefed up. Again, I think it is really a question of how
it is implemented. On the issue of old courts versus new, I am
afraid that I am myself unashamedly conservative on this topic
in the sense that I think that most old courts are far more user
friendly than the office blocks that sometimes replace them and
that all you really need is a room where people can wait with
adequate chairs and tables and coat hooks and decent facilities
for tea and coffee, but it is surprising how many places are lacking
in even those facilities. Most young barristers remember their
early visits to some London magistrates' courts. I suspect that
many of the places we used to go to no longer do operate as magistrates'
courts but I am sure that, up and down the country, there are
still many courts where the facilities could do with a lot of
improvement.
Mr Dawson
14. Just on the topic of family courts, in the
Law Society's brief for the second reading in the Lords, you refer
to the lost opportunity really to bring together the administration
of the magistrates', county and high court functions in family
law and I just wonder if you have been able to pursue that any
more during the course of the Bill and what sort of response you
had had.
(Ms Chapman) No, we have not pursued that any more
during the course of the Bill. I think our concern is that we
very much welcome the whole administration for the magistrates',
county and high court, but actually you would need to unify the
family courts and take the whole estate together and we thought
there was a lost opportunity, but we have not pursued the matter
any further during the passage of the Bill. As I am speaking,
may I use the opportunity to come back on the point about old
courts. I do think there is an issue with the old courts which
can often be about access, by which I mean physical access. One
of the problems with some of the old court buildings is that they
are very old buildings and they are not good for physical access
for elderly people or people with disabilities. One of the advantages
perhaps of modernising the court estate will be being able to
create courts that are fully accessible. I think your point about
families is absolutely right, but the real issue is about vulnerable
people and their ability to access, so you are talking about people
with childcare responsibilities and people with disabilities and
people without their own vehicles. Those are the people who are
most severely hit whenever a local court is closed and they therefore
have to travel further to the nearest court.
Chairman
15. It might be a good point just to add something,
if you wanted to, about court security before you move on to another
issue because it does fall within this general area.
(Mr O'Neill) As you know, Part IV of the Bill, Clauses
46 to 52 headed "Court Security", introduces what at
first blush appear to be certain new powers but which in reality
only put the existing powers of the security agencies on a statutory
footing. There are two aspects of security which are of concern.
Firstly, the security personnel who have responsibility for prisoners
and, secondly, those security personnel who have responsibility
for the remainder of the building and for persons within the building.
In essence, that comes down to a question of the quality of the
personnel employed by the particular security agency. How fit
and able is the individual concerned and how motivated is he or
she to intervene if remunerated at a very low rate of pay? If,
for example, you are a Securicor member of staff earning £13,500
in inner London, you may not feel terribly inclined to tackle
the armed robber attempting to make his way out of the dock and,
frankly, who could blame him or her at that rate of pay? Levels
of remuneration therefore are of great concern in this area and,
as the Committee will know, the original plan of the Lord Chancellor's
Department was to establish a courts constabulary which would
employ former members of the services and former members of the
police force and the like as a formal courts constabulary rather
than individual security agencies. Funding for that laudable project
was not available from the Treasury, hence the provisions contained
within the Bill. We are all aware of the attempted escapes, attacks
on judges, lawyers and other court users. To that end, since the
very serious attack upon Her Honour Judge Goddard a little over
two years ago at the Central Criminal Court, some introduction
has been made of more secure docks within some buildings, but
even that has been a very slow project and anyone reading The
Times I think two weeks ago today would have read about an
attack on His Honour Judge Wadsworth in the very same building
when a prisoner in the dock fired a projectile at him and it narrowly
missed him. The concern with regard to court security is not of
course confined merely to the criminal courts. Disputes in the
civil courts and the family courts, many of which are very isolated
buildings or isolated rooms within buildings given over to other
purposes with minimum security, give rise to even greater emotions
and tensions than those which you find in the criminal courts.
A parent being separated from his or her children is inevitably
going to feel volatile and emotional. Quite often, these incidents
occur in these isolated county courts which have little or, in
reality, no security at all. So, it is a matter of very considerable
concern to both branches of the profession, not for our own sakes,
although we declare a degree of self-interest, but for other court
users, members of the judiciary and members of the public at large.
16. Are the powers in the Bill sufficient? Is
it then simply a matter of resources and commitments to tackle
the security issue or are there things which ought to be in the
Bill that are not there?
(Mr O'Neill) The powers in the Bill might be sufficient
if one could have confidence that the type of people being employed
to be court security officers would be sufficiently able-bodied
and sufficiently motivated to carry out that task. Chairman, all
you and any of the members of your Committee have to do is take
a short walk across Parliament Square to the very fine building
that is Middlesex Guildhall Crown Court and see the people who
work there as court security and the type of open, user-friendly,
easily vaultable docks which are in most of the courts.
Dr Whitehead
17. In the parliamentary brief for the second
reading in the House of Lords, the Law Society suggested that
there are some concerns about the idea that fines officers may
have power to increase fines or indeed have the matter listed
in court where the defaulter has failed to pay. You suggest that
there may be an issue in terms of whether the ability to pay is
linked to that power. Do your concerns remain?
(Ms Chapman) I think we were very reassured by the
Lord Chancellor's comments during the second reading debate where
he made it clear that the fines and any increase in fines for
non-payment would be set by the court. So, there is no issue there
about fines officers actually setting the increases as they would
be set by the court. He also made it very clear about the way
the fines officers would exercise their discretion and that there
would be rights of appeal. I think we still do have a concern
about the idea of a reduction in fines for early payment only
because that is likely to impact unfairly on those who do not
have the resources to be able to make an early payment perhaps
because they are dependent on a very low income to make payment
from. In terms of powers of fines officers themselves and the
way they exercise those, I think we were very reassured by the
comments from the Lord Chancellor on the second reading.
18. Do you think conversely that the threat
of an increased fine would be a sufficient deterrent to defaulters?
(Ms Chapman) It is very difficult because of course
people default for different reasons. It may well be a sufficient
deterrent for those who are simply not paying because they choose
not to. Obviously there is an issue when people are not paying
because they cannot or they have difficulties in paying and I
think there we will have to see how the fines officers exercise
their discretion. In a sense, it will be a matter of seeing how
it works in practice to be able to see whether there is a difficulty
or not rather than with the powers they actually have. I think
the powers are fine; it will be the exercise in practice that
will be an issue.
19. Do you think the proposals for right of
appeal against the decision are good and effective?
(Ms Chapman) Yes. There is clearly a process for people
to be able to appeal against a decision and go back to the court.
An appeal will be particularly exercised if people felt that the
fines officers were not exercising their discretion fairly, for
example if they were enforcing extra payments on people without
looking properly into the circumstances as to why they defaulted
on payment. Again, I think that will be a matter of seeing how
it works in practice rather than any fault with the Bill.
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