Children, Schools and Families Bill

I should declare my interest as a barrister, albeit one who has not practised for quite a long time. Part 2 of the Bill was not debated in Committee. Unfortunately—indeed, scandalously—it is not going to be debated this evening either. That is a great pity, because it contains significant changes. In our view, those changes should have formed a separate Bill in its own right, rather than being tacked on to this important Children, Schools and Families Bill. This is a shabby way in which to treat those involved in the family courts, from the judges through to all the other professionals, including those who work for the Children and Family Court Advisory and Support Service and the expert witnesses who appear in the family courts day in and day out, as well as the families and children themselves. The Opposition have consistently argued for more openness and transparency in the family courts. We have also regularly emphasised the need for greater consistency between the courts. The press have been allowed into the youth justice courts for the past 70 years, and Judge Nicholas Crichton pointed out to the Public Bill Committee that they have always been allowed into the family proceedings courts, which are of course magistrates courts. Furthermore, the press are allowed into the Court of Appeal when family cases end up there on appeal. Where the problem lay was in the county courts and the family division of the High Court. Our family courts play a vital role in our justice system, but confidence and trust in them is eroded if their work is constantly shrouded in secrecy. That is exactly what has happened in the past. That is why we pressed the Secretary of State hard to take action, and we warmly welcomed his announcement in December 2008 of the new rules that were to come into force in April 2009. The rules of court were then changed to allow media attendance in all family courts, subject to reporting restrictions and to the court having the power to exclude completely, where appropriate. That was a significant step forward. We are, however, in the very early days of the new regime. It was combined with the piloting of written judgments. The pilots commenced in November last year, so they have been running for only a short time. They are being undertaken in the magistrates courts in Leeds, and in the magistrates and county courts in Cardiff. There were originally plans to have a third pilot in the magistrates and county courts in Wolverhampton. I hope that the Minister will be able to explain what has happened to that third pilot, as it has not yet started. The whole idea behind the pilots was for anonymised judgments and reasons to be placed in the public domain. The benefits of that would be assessed, as would the resource implications of the measures. This was also discussed in the evidence-gathering sessions of the Public Bill Committee, in which Sir Mark Potter, the president of the family division, pointed out that the annual costs would be about £2 million. We are talking about a significant, although not huge, amount of money, at a time when the courts' budgets are under a lot of pressure. On the other hand, it is important that we get this right, as it represents another far-reaching step. Our view is that these measures require a full, thorough evaluation. What is the point of running a pilot if it is not studied and evaluated? We always assumed that the Government would allow the new arrangements to settle in before moving on to the next stage, which would be to amend the primary legislation on reporting restrictions and look into media attendance at placement and adoption proceedings. However, that is the essence of the provisions in part 2. We never dreamt that the Ministry of Justice would amend primary legislation by tacking on various clauses to another Bill, right at the fag-end of this Parliament, when the Government knew that there would be no time to debate these important proposals properly. The Public Bill Committee took evidence on part 2 from a number of experts who work in the family courts on a regular basis. The list was impressive. The president of the family division, Sir Mark Potter, gave evidence, as did Judge Nicholas Crichton, a well-known judge from the inner London family proceedings court, as well as Barbara Esam from the National Society for the Prevention of Cruelty to Children and a number of other experts. A key point is that, although they supported in principle much of what is in part 2, they all agreed that it was hideously complicated and that not enough thought had been put into it. If we look at what the Government and those of us who want to see more transparency in the family courts are trying to achieve, we see that three key questions are involved: when can the press attend; what can they report; and what documents can they see? The answers are, in some ways, quite simple. I entirely accept that there are additional questions to be asked in relation to the third point about documents, because affidavits and skeleton arguments are increasingly relevant, and we must ask whether the press should have copies of them. It is also worth pointing out that insufficient attention has been paid to ancillary relief in the debate on transparency. This raises a specific issue, because financial information, some of which is highly confidential, is provided under compulsory disclosure. The Government should certainly look into that more carefully as the debate moves forward. On the question of how complicated the provisions are, I was struck by something that Sir Mark Potter said in his written note. He reinforced his point in his oral evidence as well, but in his written note, he stated:""The Bill is very complex. The technical and interlocking nature of its provisions places the judges, the parties and the media in an unsatisfactory position likely to lead to a number of practical difficulties concerning Judges' decisions to impose, or refuse to lift, restrictions in individual cases. In cases of high interest, parties and the media are likely to raise substantial queries and argue individual points in relation to the reporting of evidence which will necessitate the expenditure of precious judicial time in resolving them rather than getting on with the case."" He also went on to explain that part 2 was needlessly complicated. Her Majesty's Government have achieved something that I thought was virtually impossible—namely, they have united everyone from one end of the spectrum to the other on this matter. That is certainly an achievement. As I said, it would have been better to give these early reforms a chance to work and to get bedded down. Then, we could have taken a step back to see exactly when it would be necessary to amend the primary legislation. It would have been far better to do that by means of a separate family proceedings Bill. Given that the Government have already announced that they are going to carry out a major review of the family justice system, would it not have been better to allow that review to complete its work? A new family proceedings Bill will undoubtedly come out of that process, and these provisions could have formed an important part of it. We did not debate part 2 in Committee, yet the Government have already come up with a number of complicated amendments to it. They are completely rewriting their original part 2. Perhaps the Minister will think I am churlish to say that, however, because many of their amendments are ones that we asked for and that we support. Nevertheless, this is a chaotic situation, and it is causing a great deal of concern. We are where we are, however, which is why we have tabled a number of new clauses and amendments. I want to speak first to new clause 2. Clause 40 currently introduces phase 2 of part 2—that is, schedule 2. Schedule 2 contains various amendments that alter the treatment of sensitive personal information. Under clause 40 as it stands now, however, the Lord Chancellor cannot make an order to commence schedule 2—or, indeed, schedule 5—unless he or she has carried out a review of this part of the Bill and set out its conclusions in a report to Parliament. That cannot take place for 18 months and it has to be done through an affirmative resolution on a statutory instrument. There are various flaws in the procedure. That is why we tabled our own new clause, which builds on clause 40 by requiring the Lord Chancellor to commission a fully independent review of the operation of part 2 and of the impact of the new changes of April 2009 that allowed the media access to the courts. Furthermore, there is a third safeguard, because no review can take place until a full and separate review and an evaluation of the pilots has taken place. New clause 2 is similar to the Lib-Dem new clause 19. In fact, original amendments 28 and 29 have been migrated into new clause 2. The Government's solution in amendment 123 goes some of the way, but it is simply not adequate because it talks only about an independent person carrying out the review and consulting the public. In our opinion, that is just not good enough. Our new clause 2 is logical; it is in no way bureaucratic, and it contains sensible additional safeguards. I urge all hon. Members to support it. We have tabled other new clauses and amendments. If we debated them all tonight in an open-ended way, I would still be speaking in two and a half hours' time, which I have no intention of doing, as I want to hear what the Minister has to say about the Government amendments and many of my hon. Friends want to speak. This shows what a ridiculous situation we are in. It would do us all a disservice if this Bill got on to the statute book without proper debate in at least one of the Houses. I suggest that the chance of getting the proper debate it needs in Parliament is now very slim indeed. New clause 7 states that the court will""only permit publication of information relating to a case in family proceedings"" after a judgment has been made. To some extent, this is the Sir Mark Potter amendment, as he felt very strongly about the issue, as he explained to the Committee in some detail when he gave oral evidence on 21 January. Let me quote what he said in response to a question asked by my hon. Friend the Member for Crewe and Nantwich (Mr. Timpson), who is an expert on the subject and may speak later if he is able to catch your eye, Madam Deputy Speaker. Mark Potter said that""one of the judiciary's concerns is the fact that it is the habit…of the press to drop in on the first day and see what the case is about. In so far as they will report that case, they will do so in terms of what is open. Whether it is public or private law proceedings, an applicant may open a case high, as we put it, make a number of often quite important and unpleasant allegations relating to parties in the case, or make exaggerated claims about the child. Those will get reported. Then time passes. Perhaps the judgment is given and publicised in anonymous terms two or three weeks later. There is no obligation on the press to report that. It might be that quite a different situation is found to have existed as a result of what happened, but because we are in a situation of a first-day attendance, and what is news today has passed tomorrow, an unfair and difficult position is left—quite apart from the welfare of the child concerned."––[Official Report, Children, Schools and Families Public Bill Committee, 21 January 2010; c. 126, Q206.]" He went on to say:""It is indeed only by being there all the time, seeing the whole shape and knowing what is at the end that you achieve anything."––[Official Report, Children, Schools and Families Public Bill Committee, 21 January 2010; c. 130, Q210.]" Interestingly enough, that particular view was echoed by Bob Satchwell. He is the director of the Society of Editors, who was at completely the opposite end of the spectrum and has consistently argued for and lobbied in favour of even more transparency and openness—issues encapsulated in part 2. He said on the same day:""However, unless you hear the whole detail of the case, and unless you are able to put those sides of the case, you lose the point of fairness of a report. So you must have some basic information in there, which is not available at the moment."––[Official Report, Children, Schools and Families Public Bill Committee, 21 January 2010; c. 130, Q210.]" Another who reinforced the point about getting the judgment of a case before there is any reporting by the media was Dr. Julia Brophy, the director of the centre for family law and policy at Oxford university. A number of my hon. Friends met her and were very impressed. She said:""Unless the media are simply in at the end of a case, at the final hearing, and can look at the case in its entirety, they will not be ""able to present a balanced picture."––[Official Report, Children, Schools and Families Public Bill Committee, 21 January 2010; c. 135, Q217.]" That is exactly what we are trying to do. The answer to these concerns—they are very real concerns indeed—is very simple: it is our new clause 7. We feel strongly that it satisfies the point, but the Government have unfortunately completely failed to look at and address the concerns put forward by Sir Mark Potter and these other experts. I urge the Government to recognise that there is still time to address those concerns. They should accept our new clause 7. It deserves support because it is extremely simple and straightforward; there is no reason why it would not work very neatly and very well. I ask the Minister to accept it, because it would go a long way to satisfying and answering the fears expressed very eloquently by all the witnesses when they gave evidence to the Public Bill Committee on 21 January. I think that the Minister herself was present at the Committee; she asked some questions at the end of it. I am sure that she will agree with me that these real concerns need addressing. Let me move on to new clause 8. It is very simple, modest and sensible and is designed to ensure that part 2""shall not apply to uncontested adoption proceedings"." I should declare an interest because my wife and I have an adopted child. We understand very well the sensitivities involved in adoption, which were summed up very well by the president of the family division when he said:""In private adoption proceedings which are not contested and do not involve abuse, the unanimous decision of judges and absolutely everyone is that there is no legitimate reason for the press to be present. So many sensitivities are involved, largely for parents, as well as the child, and it is simply not a matter the public deserve to know about, so far as the intimate details are concerned."––[Official Report, Children, Schools and Families Public Bill Committee, 21 January 2010; c. 139, Q232.]" I certainly endorse that 100 per cent. Quite why the Government have not addressed those points, I do not know. I am afraid that it is probably a function of the Government coming to this issue with a whole lot of amendments at a very late stage. As I have said, they have completely rewritten part 2 and missed out a number of points. We are here to help them. New clause 8 would certainly answer this particular concern. If the Government are in a charitable mood tonight, they will certainly accept this simple and straightforward new clause. It is perfectly harmless and it does exactly what those experts want to see built expressly into the Bill. Our new clause 9 expands on the short interpretation description contained in clause 41(1). It is also sensible and pragmatic, and the good news is that the Government have looked at our earlier amendment, which migrated into new clause 9, and have now come up with their own amendment. They copied our provision almost word for word in their amendment 130. I would like to say a big thank you to the Minister. She said a while ago that the Government were here to help and they have certainly been helpful in this particular case. We must not do anything other than give praise where praise is due. I must also not sound churlish when I say that our new clause is slightly better and superior to the Government's amendment because our provision contains two additional safeguards in (a) and (b), which cover identification possibilities by way of pictures in the media and by way of recording people's voices. I urge the Minister to change the Government amendment or at least urge the other place to have a close look at what we would achieve by our new clause. We are almost at one on this, but not quite, so going that extra little distance would be a great relief to Conservative Members. As to the other Government amendments, I accept that the Government have listened to a number of legitimate concerns. On the other hand, as I mentioned a moment ago, they have completely rewritten this part of the Bill with no debate in Committee whatever—not a single minute was spent debating it in Committee. We support most of the Government amendments. Some cover points that we raised in correspondence with the Minister, some pick up on points put during the evidence-gathering session, while others pick up points made in various written statements and documents made available to the Committee. The Minister has considered some of those points and come up with various amendments. However, some of the amendments are pretty weighty, and I find it worrying that they were introduced so suddenly, given that all the issues could have been thought through carefully at an earlier stage. Amendment 111—the "Nelson"—deals with fairly wide-ranging contempt-of-court criteria, amendment 126 adds another defence to contempt of court, and amendment 131 concerns the definition of how a person is involved in proceedings. It is ridiculous that such weighty matters should be put before the House at this late hour. I hope that the Minister will explain exactly what the amendments will do. We have given our pledge that we will not vote against them, because they are broadly in line with what we have asked for, but there is extra detail that is very substantial and complicated. I hope that she will explain exactly how the amendments will improve the Bill in the way that the Government have claimed they will, and how they will make it more acceptable to the various groups involved. We have pressed the Government for a long time to address the whole issue of transparency and openness in the family courts. We agreed that the April 2009 changes were excellent, but suggested that it would have been better had we paused at that stage. What is the point of pilots unless they really are pilots, and are assessed properly? At the time, we told the Government "Take a step back. Look at stage one. Look at the excellent announcements that you made about the changes in April 2009, and assess the way in which they are working on the ground. Talk to everyone involved in the family courts. The pilots only started in November; evaluate them, perhaps a year later, and consider the resource implications in a professional and focused way." If the Minister had listened to us at the time, we would not be in this muddle, but would be moving forward at a sensible, constructive and decent pace. However, the Government have panicked for some reason. They have tacked these clauses on to a Bill that is not theirs, and have managed to unite everyone against what are, in many respects, quite reasonable proposals because they are so complicated. We are trying to make the Bill much less complicated. We are trying to make part 2 more effective and acceptable. There are strong arguments for dropping it completely, but if the Government will not do that, I implore them to accept our amendments—particularly amendment 2, on which I hope the House will vote, but also amendments 7, 8 and 9. I hope that Members on both sides of the House will support us in the vote on new clause 2, which would go some way towards making this part of the Bill more effective and acceptable.