December 4th 2012 saw an interesting exchange in the House of Lords between Labour peer Lord Beecham, and Lord McNally speaking for the Government, specifically the Ministry of Justice. We were offered two very different views of the service levels achieved by the Court of Protection and the Office of the Public Guardian.
The actual subject of debate was a proposed amendment to the Crime and Courts Bill to the effect that ‘the Lord Chancellor shall conduct a periodic review into the courts and tribunal service, including the public guardianship office’.
A transcript of the debate follows. It is quite long, but is very informative; and will be of particular interest to anyone who has, or may have, dealings with the Court of Protection e.g. via an application for a Deputyship.
Lord Beecham (Labour)
My Lords, this amendment echoes an amendment which I moved and which was debated in Committee requiring a review into the Courts and Tribunals Service. At that time, the amendment suggested that an annual review should take place. In supporting the thrust of the amendment, the noble and learned Baroness, Lady Butler-Sloss, queried whether an annual review was sensible, given the scope of the proposed review, and this amendment recognises that she indeed made a very good point. It now merely suggests a periodic review rather than an annual review into the Courts and Tribunals Service in its widest sense.
The noble Lord, Lord McNally, who replied to that debate, indicated that there was already a duty on the Lord Chancellor to ensure the efficiency of the courts service and to report annually thereon, and indeed that the Courts and Tribunals Service and the Office of the Public Guardian also issued annual reports. That of course is true, but that answer really ignores the fact that the whole system is undergoing seismic change as a result of legislation already passed and currently under discussion in this House and, shortly, in the other place.
In my view and that of the Opposition, what is required is a systematic and regular, although periodic rather than annual, review of the whole system, not a series of separate, unconnected reports dealing with different parts of the system. The amendment clearly envisages not merely a report on the efficiency of the system but matters that are coming to the fore in the light of the Government’s policy, as enacted and as are being enacted in relation to “ease of access and user and practitioner satisfaction, and specifically the impact of court closures on court users and access to justice”.
Those matters affect various parts of the system and, in my submission, it is essential, particularly in the light of changes to the legal aid system, to measure the impact, to review the possible difficulties, some of which are already beginning to emerge, and, if necessary, to correct them.
Various parts of the system have slightly different track records. In Committee, I mentioned concerns about the Office of the Public Guardianship and the Court of Protection. The noble Lord, Lord McNally, will recall that when we were discussing the matter-he and the Bill team were good enough to afford me some time to do that-he said that he had only recently been approached by someone else with a concern about the Court of Protection. In Committee, I referred to some publicity about the court: a patient at the court complained that it had cost him £50,000 due to poor investment control.
Perhaps I should renew my declaration of interest: I am now an unpaid consultant with my former firm of solicitors, where I was senior partner. I had there the conduct of a long-running case in the Court of Protection-long-running in the sense that the case arose out of clinical negligence and birth defects. The young patient is now 18 years of age. From time to time, I have had difficulty in obtaining responses from the Court of Protection; difficulty over the regularity and utility of supervision of the case in relation to financial and other matters; and a general feeling that many practitioners with wider experience of the Court of Protection felt that the move of staff to centres in Nottingham and Birmingham has not assisted the efficiency of the court.
Here, by definition, we are dealing with the problems of vulnerable children and adults and those who are appointed to look after them as deputies under the general supervision of the court. That is one important example where, in my view, there needs to be a periodic review linked to other issues. As I have already mentioned, there has been a change to the legal aid system. The noble and learned Baroness, Lady Butler-Sloss, referred in Committee to the problems that she envisaged in the family court with unrepresented litigants having to appear on their own behalf. There is widespread concern among the judiciary at all levels that that may well result in a clogging up of the court system as people struggle with presenting their own cases and having to be assisted by the court in the absence of proper advice.
In addition, a wide-ranging closure programme of magistrates’ courts in various parts of the country has led to difficulties with witnesses and parties attending a more distant court. It seems to me that it would be proper to measure the impact of that in terms of access to justice.
Another area of concern relates to some of the processes involved under the single court that now exists. We have county court buildings and we have a single county court. In principle, there is nothing wrong with that but, as I pointed out in Committee, the Government have not really followed the recommendations of Lord Justice Jackson, whose report, as we have noted on previous occasions, has been cherry picked in a variety of instances. In this case, the concern arises out of the problems of litigants and their legal representatives issuing proceedings. Lord Justice Jackson proposed that there should be regional court centres but, as he said clearly, it would,
“be wrong to compel everyone to issue proceedings at regional centres. Litigants who wish to issue claims in person at their local county court and to pay fees at the counter should be free to do so”.
That does not happen, which has serious consequences.
I referred in Committee to the problems at the Salford Centre in particular, which is where money claims are issued. The Minister replied, no doubt on the basis of advice tended to him, that things had started slowly but were getting better. Yet the Law Society Gazette on 25 October reported:
“Almost two-thirds of users of the Salford civil claims centre rate the service as poor”,
and a third considered that it got worse rather than better over the past few months. One contributor in a comment to the Law Society Gazette said:
“Salford is a good example of the Government trying to deal with things in a very proficient and one stop shop way. In reality its a total disaster which needs overhauling urgently and made to be more accountable and efficient. Starting with the right staffing levels would help, as well as more dedicated phone staff and someone who even answers in a reasonable time”.
Solicitors frequently complain about having to wait for two, three, weeks or perhaps more for their claims to be processed. That cannot be satisfactory.
We have a situation in which in its various component parts the system is under great pressure. That is exacerbated by some of the changes that the Government, for their own no doubt worthy reasons, have sought to bring into effect. I cannot agree with the answer given by the Minister on the last occasion that there was a system of reporting that in its component parts meets the requirements of a thoroughgoing review. That is particularly in relation to what is happening to access to justice for litigants of all types and the efficient processing of their claims, and in relation to the Court of Protection for the long-term arrangements for effective supervision of its substantial case load of vulnerable people.
I hope that the Minister can give some clear assurances about this. It is not asking a great deal to invite the Government periodically to keep matters under review and assess how their own legislation is working on a regular basis rather than simply in respect of those matters that have recently been enacted. It could be simply on the basis of post-legislative review. Some of these matters might ultimately fall within that five-year period but others would not because the legislation in some instances is long-standing. To treat the whole system as one that requires review seems an efficient way of dealing with the concerns of the profession and the public about this aspect of our judicial system. I beg to move.
Lord McNally (Minister of State, Justice; Liberal Democrat)
… The noble Lord, Lord Beecham, referred in particular to the Court of Protection and the Office of the Public Guardian-and indeed we had talks on this. The noble Lord raised his concerns in relation to the operation of the Court of Protection and the Office of the Public Guardian. He will recall that I wrote to him about this in July this year. Let me be clear. I recognise that there were concerns. The Court of Protection and the Office of the Public Guardian deal with some of the country’s most sensitive cases and it is important that they operate effectively and efficiently. When the Mental Capacity Act 2005 was implemented, both the Court of Protection and the Office of the Public Guardian faced a significant increase in the number of applications for court orders and applications to register enduring powers of attorney and lasting powers of attorney, with which the then IT system struggled to cope. In addition, the court was hampered by a shortage of judges. This resulted in a build-up of cases waiting for judicial decision.
However, things have improved considerably since then. The Court of Protection rules were changed to enable applications to be dealt with by authorised court officers in non-contentious cases. To date, this has resulted in fewer than 100 cases having a waiting time of 10 days or more, meaning that the majority of cases are resolved in a timely fashion. Furthermore, Clause 19 of and Schedule 13 to the Bill will increase flexibility in the deployment of judicial resources, thus increasing the number of judges who have the ability to sit in the court. The Court of Protection has also embarked on a programme of continuous improvement to remove waste and inefficiency from the administrative process.
In April last year, the Office of the Public Guardian commenced a major change programme as part of the Ministry of Justice’s wider Transforming Justice agenda. A key element of this is the development of a new, more robust and flexible IT system that will enable the agency consistently to meet the increasing demand on its services while also radically improving the quality of those services. The Public Guardian has initiated a fundamental review of the supervision regime to ensure that the Office of the Public Guardian is supervising court-appointed deputies in the most appropriate way. This review is considering how to focus efforts on supporting those deputies who may need more assistance and, where there are no concerns, enabling deputies to fulfil their duties with minimal intervention. Where issues are brought to the attention of the Office of the Public Guardian, the intention is to deal with these swiftly and thoroughly. Currently, 98% of complaints are resolved and responded to within 10 working days. Furthermore, the court is now issuing applications within five days instead of four weeks and it processes complete and uncontested cases from start to finish on average within 16 weeks instead of 21 weeks. The Court of Protection is also the only court in London to have achieved Beacon status.
In summary, I believe that the direction of travel is positive for both the Court of Protection and the Office of the Public Guardian. However, we remain committed to providing the best service possible and protecting the interests of the vulnerable.
The noble Lord, Lord Beecham, also mentioned the County Court Money Claims Service based at the Salford Business Centre. Again, I recognise the concerns raised. The introduction of the County Court Money Claims Centre seeks to enable the Courts and Tribunals Service to make the very best use of its administrative resources and provides court users with a more efficient and consistent service across England and Wales. Our ultimate goal is to move to electronic processing in all but a minority of cases. Centralising the money claims centre in Salford, which deals with paper based claims, is a stage in that evolution, one that is long overdue and which follows long-established private and public sector practice. …
I hope that, given my response to the review suggested by the noble Lord, Lord Beecham, and, in particular, my response to the comment of the noble Lord, Lord Pannick, the House will recognise that, yes, we are carrying out quite radical reforms but that they are joined up and we are taking action to improve and remedy defects where we have found them. As I said in my opening remarks, the idea that this process will not be kept under the very closest review and that Parliament will not have access to the outcomes of that review is mistaken. I therefore hope that the noble Lord will not press his amendment.
Lord Beecham (Labour)
My Lords, I am grateful to the Minister for a very full reply. In particular, I am pleased to hear his assurances in respect of the most recent performance of the Court of Protection. We will have to see whether that trend continues in the future. …