Chief Coroner: Annual Reports

Alex Chalk Excerpts

Thursday 5th November 2020 Written Statements

[The Parliamentary Under-Secretary of State for Justice (Alex Chalk)]

I am pleased to lay and publish the Chief Coroner’s combined sixth and seventh annual reports to the Lord Chancellor on the operation of coroner services under section 36 of the Coroners and Justice Act 2009 (“the 2009 Act”). The joint report covers both 2018 to 2019 and 2019 to 2020.

Publication of the sixth report was delayed last year, and in the light of the emerging covid-19 pandemic at the start of 2020, it was considered preferable to postpone its publication until later in the year and release it as a joint edition with the seventh report.

In particular, the Chief Coroner’s report sets out:

The work that he as well as coroners, their officers and their staff have achieved to manage the effects of the covid-19 pandemic;

The continuing work to promote consistency in the resourcing of and practices in coroner offices across England and Wales;

The training and guidance that coroners and their officers have received and the engagement with a wide range of stakeholders; and

Recommendations to improve coroner services further.

Annexed to the report are the Chief Coroner’s revised “A Model Coroner Area” blueprint, the list of cases over 12 months old reported to the Chief Coroner and tables of senior and area coroners’ salaries.

I am very grateful to His Honour Judge Mark Lucraft QC for building so effectively on his previous achievements as well as those of his predecessor, His Honour Sir Peter Thornton QC. I also thank him for his excellent and much appreciated service since October 2016 as he now moves on to become the full-time recorder of London. I am particularly grateful that he continued to serve as Chief Coroner over the last months to guide and support coroners in facing the incredibly difficult challenge of the covid-19 pandemic.

I am grateful too to all coroners and their officers and other staff, for having supported the Chief Coroner to improve services for bereaved people and for their valued and continuing frontline work. Their work in managing the impact of the pandemic on their own services but also more widely, in support of their local resilience fora, has been inestimable.

The report will be available online at: https://www.gov.uk/ government/publications/chief-coroners-combined-annual-report-2018-to-2019-and-2019-to-2020

[HCWS558]

Oral Answers to Questions

Alex Chalk Excerpts

Tuesday 3rd November 2020 Commons Chamber

[Navendu Mishra (Stockport) (Lab)]

What steps he is taking to help ensure access to justice.

[The Parliamentary Under-Secretary of State for Justice (Alex Chalk)]

Access to justice is a fundamental right and the Government are committed to ensuring that individuals can get the timely support that they need to access the justice system. In 2018-19, we spent £1.7 billion on legal aid for those who needed it. In response to the destruction caused by covid-19, we have introduced measures that include scheduling more than 100 additional Saturday court sittings each month; providing funding to not-for-profit providers of specialist legal advice, such as law centres; and rolling out the cloud video platform to enable remote hearings in all civil, family and criminal courts.

[Bambos Charalambous]

The Government have failed to provide any significant additional support for legal aid practitioners. The breaking point for many firms is likely to come in 2021, especially as the volume of completions in the Crown court remains low. Many legal aid firms and practitioners urgently need financial support to survive, so will the Government announce new measures to support legal aid lawyers over the second national lockdown?

[Alex Chalk]

Legal aid lawyers do a magnificent job of ensuring access to justice. I am pleased that the Government have been able to roll out support through furlough and so on, but it is also important that in this second lockdown the courts are continuing. It is really important to note that the magistrates courts are dealing with more cases than they are receiving, and the Government have accelerated CLAR 1, the first criminal legal aid review, which means that defence solicitors, for example, are being paid to review unused material—something that did not happen under a Labour Government.

[Daniel Zeichner]

We know that too often the courts are clogged up partly because too little has been done to minimise crime in the first place, which is why it is astonishing that in Cambridgeshire the number of police community support officers is to be halved, particularly at a time when they have a key role to play in covid compliance. Will the Minister join me in condemning those cuts and demanding that they be withdrawn?

[Alex Chalk]

I am grateful to the hon. Gentleman for his question, but I hope he will welcome the fact that this Government are recruiting an additional 20,000 police officers. It is those officers who will crack down on crime and ensure that people who rob innocents and cause violence end up getting their just deserts.

[Navendu Mishra]

Court users deserve the fullest protection from covid while they access justice, as do the staff who serve them, yet there have been an alarming number of outbreaks at courts and tribunals throughout the country, including at Manchester magistrates court and others near my constituency. Does the Minister agree that by failing to consult properly with the staff union, the Public and Commercial Services Union, over risk assessments, the courts service risks making a bad situation much worse?

[Alex Chalk]

I pay tribute to the staff of Her Majesty’s Courts and Tribunals Service whom I had the privilege of meeting when I went to Isleworth Crown court. It is the staff who are keeping courts running in extremely difficult circumstances: they are the ones who have ensured that the perspex is there, that the jury retirement rooms are properly socially distanced and that the jury assembly points are well administered. I pay tribute to them for what they are doing, and it is a testament to their achievements that the courts will continue to do what they do best: dispensing justice in our country.

[Karl Turner (Kingston upon Hull East) (Lab) [V]]

Equality before the law is a fundamental right, but for the vast majority of people in the country who are not eligible for legal aid, that right does not actually exist. Facing a difficult winter, even greater numbers will find themselves trapped in the justice gap of being forced to choose between legal representation and the basic essentials, as 94% of working single parents—mainly women—already do. What is the Minister going to do to ensure that the rights that we hold dear actually exist in practice?

[Alex Chalk]

The hon. Gentleman is absolutely right that ensuring access to justice is of fundamental importance, which is why, when we saw that the law centres, for example, were going to have difficulties during this pandemic, we answered the call and provided them with the funding. I was also able to speak to a great number of them to reassure them about the work that they were able to continue doing. That was the right response to take, and we are proud of the actions that we took.

[Chi Onwurah (Newcastle upon Tyne Central) (Lab)]

If he will bring forward a strategy to support victims affected by court delays as a result of the covid-19 outbreak.

--- Later in debate ---

[Rushanara Ali (Bethnal Green and Bow) (Lab)]

If he will bring forward a strategy to support victims affected by court delays as a result of the covid-19 outbreak.

[The Parliamentary Under-Secretary of State for Justice (Alex Chalk)]

We continue to make significant progress on criminal courts’ recovery. Since August, magistrates courts have consistently completed more cases than they are receiving. In the Crown court, millions of pounds have been invested in perspex screens, technology and Nightingale courts to enable thousands of hearings to be listed each week. Significant progress, too, has been made to accelerate the roll-out of the section 28 pre-recorded cross-examination service to support alleged victims to give their best evidence.

[Chi Onwurah]

Rape is a violent and devastating crime, putting enormous pressure on its victims, who may view the trial of their rapist as a second violation. Across the north-east, rape victims are waiting months and months for their trials to start and Northumbria police and crime commissioner Kim McGuinness tells me that that is putting enormous strain on their mental health. What support is the Minister providing, specifically to victim support organisations such as the sexual exploitation hub in my constituency, and what is he doing to make sure that more trials can take place?

[Alex Chalk]

The hon. Lady is absolutely right to raise this point, and I am grateful to her for doing so. We take this extremely seriously. Of the £76 million that we allocated to victims’ organisations, a full £20 million was rolled out through PCCs to provide the community support that she refers to, but that did not emerge from a clear blue sky. We were also providing money for independent sexual violence advisers to support victims as they progress through the criminal justice system. The critical thing is to keep the courts going during this pandemic. That is what we are doing when others might not have done, and we are proud of what Her Majesty’s Courts and Tribunals Service is providing.

[Dame Diana Johnson [V]]

In Hull North, levels of antisocial behaviour in areas such as Orchard Park, Beverley Road, Pearson Park, Princes Avenue and Kingswood have been growing, and the perpetrators behave as if they were beyond the reach of the justice system and the law. What discussions has the Minister had with his counterpart in the Home Office about a specific strategy for communities where antisocial behaviour is growing to work with victims affected by court delays, and will he meet me to discuss what more can be done?

[Alex Chalk]

I am grateful to the hon. Lady for her question. Let the message go out in Kingston upon Hull that people who want to perpetrate antisocial behaviour should understand that the courts are operating, that the police are there to make arrests and that justice will be done. That is what is being delivered during this pandemic, thanks to the hard work of plenty of people. On her final point, of course, I would be delighted to meet her to discuss this matter further.

[Rushanara Ali]

I hope the Minister will meet with me as well to discuss this matter. The delays, as my colleagues have already said, have meant that victims of serious violent crime, such as rape, sexual abuse and other kinds of crime, are facing a double threat: first of the crime and then of the delay. That is causing huge trauma. In the context of half a million unheard cases, can the Minister specifically state how many of the 200 additional court venues have been provided and how much additional funding has been provided to deal with the additional crisis caused by coronavirus?

[Alex Chalk]

Let me deal with this point about courts. Because so much money has gone into providing perspex and so on, the number of courtrooms available for trials is higher than the baseline. That is important. Even before this pandemic, we had increased by 50% the amount of funding that was going into rape support centres, because we recognised the importance of providing that support. We will continue to support individuals through independent sexual violence advisers and through providing that capacity in our court system so that victims can get the justice they deserve.

[Peter Kyle (Hove) (Lab)]

The court backlog is not just a number; it is a tragedy for every victim who is awaiting justice. The Tory PCC for Hertfordshire wrote to Ministers back in June to say that victims were pulling out of trials and that criminals were walking away scot-free as a result. How many crimes need to go unpunished before Ministers will come before the House with a plan backed up by targets and resource so that criminals are brought to justice?

[Alex Chalk]

I regret that the hon. Gentleman has not read the plan that has been published, because if he had, he would know that in the magistrates courts the backlog is being eroded, because disposals have exceeded receipts since the end of July, and that the number of trial courts is higher than the baseline. If he had read the report, he would know that. This Government are keeping courts running and ensuring that justice will be served.

[Nick Smith (Blaenau Gwent) (Lab)]

What assessment he has made of the effect of the Government’s three-tier local covid-19 alert levels on the operation of the courts.

Ministry of Justice: Legal Aid Spending

Alex Chalk Excerpts

Thursday 22nd October 2020 Westminster Hall

[The Parliamentary Under-Secretary of State for Justice (Alex Chalk)]

It is a pleasure to serve under your chairmanship, Ms McDonagh. I congratulate the Chair of the Justice Committee, my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), on securing the debate and on opening it in such a full, balanced and helpful way.

In preparing this speech, I looked back at previous debates, and what a joy it was to see that the hon. Member for Westminster North (Ms Buck) secured a debate here in 2010. The hon. Member for Hammersmith (Andy Slaughter) was there, as indeed was the right hon. Member for Tottenham (Mr Lammy). There was a rather lovely moment when the hon. Member for Hammersmith paid tribute to the hon. Member for Westminster North’s

“unrivalled record in pursuing such matters”—[Official Report, 14 December 2010; Vol. 520, c. 207WH.]

If she had an unrivalled record in 2010, it is even more unrivalled now. I genuinely congratulate her on the work she has done over so long in raising these issues.

I begin by emphasising some important points that have been made powerfully but bear emphasis. Legal aid stands as a pillar of our constitution and a bulwark of our freedoms. For a great many people, it operates out of sight; they may go through their entire lives without encountering it, and in that way it is not like the NHS or schools or policing. However, for those who do encounter it, its importance is immediately understood. Legal aid ensures that the guilty are convicted and the innocent walk free; that those facing conviction, punishment and disgrace on the accusation of the state will have those allegations properly tested. It is there to ensure that the rights and liberties of ordinary citizens, often created by this Parliament, are upheld. To paraphrase Lord Reid in the Unison case, legal aid ensures that statutes are not rendered a dead letter.

I echo the points that the hon. Lady for Westminster North made about practitioners. She referred to the good will, dedication and vocation of those who practise in legal aid work, and I cannot use any better words. She put it very well. They are not fat cats. I make the point, as I made in an earlier debate, that those who act in these cases, or indeed any cases, may very well not agree with their clients on the substance of what is being advanced, but they know that their first duty is to the court and their second duty is to their client. They must defend those interests and fight that case, within the law, without fear or favour. Those principles underpin why the Government spent £1.7 billion last year funding legal aid for those who need it. It is imperative that we properly protect this support and that it continues to be available in the future.

The hon. Member for Hammersmith asked me to concede that funding is less now than it was in 2012. That is a fact, so he is right about that. In fairness—I pay tribute to the entirely appropriate tone that the debate has been conducted in overall—in 2010 there was a sense that, whichever Government came into power, there were going to be some cuts. However, the question at this stage, as we take stock, is what legal aid should be required for and to what extent. That is a careful consideration that we intend to apply.

Over the past few months, the importance of the advice and legal sectors has been brought into sharp focus. My officials and I have been engaging extensively with various organisations across the advice sector throughout this period, and I know how challenging it has been for providers and their service users alike. I also know how many providers and practitioners across England and Wales have gone above and beyond to ensure that vulnerable people across society can continue to get the help they need.

As a Government, we have tried to support that work as best we can over this difficult period. I am delighted that, as my hon. Friend the Member for Newbury (Laura Farris) pointed out, we were able to secure £5.4 million of emergency funding for the not-for-profit advice sector, to ensure that providers across England and Wales were able to adapt their operations and continue to provide their important services. In the early days of the pandemic, we understood that almost half the law centres in England and Wales were facing potential collapse, and I am extremely pleased that our funding helped to prevent that outcome. I do not suggest for a second that it solved all problems, but I hope it is fair to say that it was of some significant assistance.

I am also grateful for the close working relationships we have built with actors across the sector to ensure that funding can be utilised in the most effective way possible. Beyond the funding, we made a number of changes to support legal aid providers in the short term, including changing rules for payments on account and ensuring that providers can claim the same for remote hearings as they can for face-to-face hearings. In August we announced additional funding of up to £51 million for criminal defence lawyers through the criminal legal aid review.

Respectfully, and notwithstanding the point that can always properly be made that there needs to be more, £51 million is a significant sum. The point that I would gently make is that that was the first occasion when people were being paid for reviewing unused material. As practitioners in this room no doubt well understand, it is those hours spent between 10 o’clock at night and midnight reviewing the unused material that all too often discloses that critical point that allows them to advance in court the key issue that might lead to the acquittal of their client. That is now being remunerated in a way that it was not before.

I have very limited time, so let me try to deal with the issue of sustainability. Although I maintain that we have made some positive changes in the time available, I think everyone here would acknowledge that there is more to be done to ensure that the legal aid and advice sector thrives into the future. Many of us here will be well aware of the challenges faced by the sector, and we do not seek to suggest that they do not exist or to downplay them. The demands on providers, and indeed on the courts, are high and will likely remain high over the coming months as the covid-19 recovery gathers pace. Those impacts will no doubt be felt across society.

We are already doing important work in this space, and we want to go further in the coming months. As has been trailed, I recently launched our new legal support for litigants in person grant, which builds on the more than £9 billion that the MOJ has invested. There are some who would say, as did the hon. Member for Enfield, Southgate (Bambos Charalambous), who is no longer in his place, “Look, it’s not enough.” I understand why he says that, but we need to look forensically at what it is going to develop. The answer is that law does not stand still, just as the rest of the world does not stand still. There are other mechanisms by which legal advice and assistance can be delivered using technology, and we must be alive to that.

In some of the excellent conversations that I have had with law centres, they have started to recognise that maybe their catchment area of need is not simply the area around, say, North Kensington for North Kensington Law Centre or the area around Hammersmith for the Hammersmith and Fulham Law Centre—which, incidentally, I know fine well the hon. Member for Hammersmith has spent many years supporting. Is there scope for technology to widen that catchment area, to broaden access to justice?

We have also launched a new project considering the issues relating to the wider long-term sustainability of the civil legal aid system. I am only too well aware that many practitioners and stakeholders say that this is a long-standing issue, but now, of course, it has been made more pressing due to the current situation, and we are taking a broad look at the system. Some hon. Members have raised the point about fee levels, and that is fair. In addition to considering the fee levels, we will look at structural issues such as the delivery model for civil legal aid and will seek to improve the remote delivery of advice where appropriate, to ensure support is available for those in hard-to-reach places, learning both from what has worked well during the pandemic and what has worked less well.

I have only a minute left, sadly, and I want to give my hon. Friend the Member for Bromley and Chislehurst time to speak. I could have talked about the means test review. I wanted to talk about CLAR, the accelerated areas, the courts estate, which is getting more money, and my principal passion, early legal support and advice. I am absolutely of the view that intervening early makes a huge difference.

Let me end by saying that covid-19 presents a great challenge to our way of life, perhaps unknown in the modern era outside wartime. Other priorities will likely dominate the headlines—jobs, schools, hospitals, debt—but in a nation of laws, legal aid is vital, now and in the future. Legal aid work will never provide the personal financial rewards for practitioners of a commercial or chancery practice, and nor should it, but we need a system that continues to attract lawyers of sufficient calibre, prioritises acute legal need, achieve redress and improves people’s lives. That is the platform for those priorities that I have set out today.

[Sir Robert Neill]

Even I can’t be that short.

Lord Chancellor’s Oath and the Rule of Law

Alex Chalk Excerpts

Wednesday 14th October 2020 Westminster Hall

[The Parliamentary Under-Secretary of State for Justice (Alex Chalk)]

It is a pleasure to serve under your chairmanship, Mr Twigg, and to respond to a debate back here in Westminster Hall. I congratulate the hon. and learned Member for Edinburgh South West (Joanna Cherry) on securing the debate and thank her for her wide-ranging but tightly-argued important representations. I have 12 minutes to respond to her points, which were made quite properly at greater length, and I hope she will forgive me if I am unable to touch on every point she raised.

As its title indicates, this debate focuses on the Lord Chancellor’s oath and the rule of law. It is important to note a point that will not be lost on the people in this Chamber, but which bears emphasis: the role of the Lord Chancellor is different from that of the Law Officers who provide legal advice to the Government and assist them to find lawful and proper ways to achieve policy objectives. The Lord Chancellor does not provide legal advice to the Government of the day. His duties, while very important in their own right, are different.

The Lord Chancellor’s oath, as we have heard, was set out in the Constitutional Reform Act 2005, which preserved the principle of the “rule of law”, and as the hon. and learned Lady has already stated, it continues:

“I will respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible.”

As is immediately apparently, the Act does not define specifically the constitutional duty in respect of the rule of law. To say there are arguments might be overstating it, but there are certainly differences of emphasis about the scope and content. The 2014 report of the House of Lords Constitution Committee, which has been referred to, discussed this very issue of scope. Interestingly, it was Dominic Grieve who said in his evidence that the duty was

“currently considered to relate to his or her department, rather than an overarching guardianship role”.

However, as the hon. and learned Lady said, Lord Falconer took an entirely different view, and the Committee overruled and thought that it was wider.

The Cabinet manual is silent on this particular topic. It refers to the role of the Law Officers in

“helping ministers to act lawfully and in accordance with the rule of law”,

but it makes no mention of the Lord Chancellor’s duty in that respect.

One thing that is tolerably plain is that the role has evolved since the judicial roles fell away. As the report noted in paragraph 63, because of those changes,

“the roles of other individuals and institutions have taken on a greater importance in this respect.”

None of this is in any way to downplay the role of the Lord Chancellor, which remains very important, but that role has to be set in a wider context.

So, that is about the scope.

What about the content? The hon. and learned Member for Edinburgh South West and others, including my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), the distinguished Chairman of the Justice Committee, have referred to Lord Tom Bingham’s magisterial work, “The rule of law”, in which he identified the core principle of the rule of law as being

“that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts.”

As the hon. and learned Lady said, Lord Bingham went on to outline eight principles; we have heard reference to the eighth today. It is also correct to say that other formulations exist; for example, Professor Lon Fuller wrote a distinguished treatise on the authority of law.

Even if lawyers debate its precise parameters, the expression “the rule of law” is generally accepted to include the principle that all people and institutions are subject to and accountable to law that is fairly applied and upheld. It is important that we do not disappear down a rabbit hole on this. The expression is apt to include: one, equality before the law, which is the point that the right hon. Member for Tottenham (Mr Lammy) powerfully made; two, access to independent and impartial justice; and, three, a Government subject to the law, which is a point I will return to. These principles are indeed the bedrock of the freedoms and protections we enjoy in a modern and mature democracy. The hon. and learned Member for Edinburgh South West is a lawyer, the right hon. Member for Tottenham is a lawyer, and so is the Chairman of the Justice Committee. I recognise that lawyers play an important role in upholding those principles. As we know in this Chamber, lawyers have a primary duty, indeed an overarching duty, to the court. Thereafter, they are obliged to fight their client’s corner without fear or favour, and that means doing their best within the law to defend their clients’ interests, and doing so whether or not they agree with the substance of the claim, or indeed the matter.

The Lord Chancellor made comments that particularly resonated with me in his Temple speech at the opening of the legal year earlier this very month. He said that

“it is wholly wrong for any professional to be threatened, harassed or worse, attacked simply for doing their job—we must call it out and deal with it. And make the point that those who attack people providing a professional service will be subject to that very same Rule of Law.”

I entirely agree with that.

Of course, the rule of law is not a purely British notion, although we might like to be proprietorial about it. Students of history will remember that the future President of the United States, John Adams, famously took on the role of defending British soldiers accused of the Boston massacre at the end of the 18th century. It was a deeply unpopular thing for him to do personally, but he was absolutely right to do it.

Let me turn now to the principles that I have rehearsed. The first is equality before the law. Let me take the opportunity to restate the Lord Chancellor’s commitment to our long-standing tradition of ensuring that rights and liberties are protected domestically, and that our international human rights obligations are fulfilled. This was mentioned by the hon. and learned Member for Edinburgh South West as regards Northern Ireland. As the Lord Chancellor set out in his letter to the Chair of the Joint Committee on Human Rights:

“The UK remains committed to the convention”—

that is, the European convention on human rights—

“and will continue to abide…by our obligations under it.”

After all, and I am sure that we all know this, it was a Scots Conservative lawyer, Sir David Maxwell Fyfe, who played a central role in the formulation of the first draft of the convention after the horrors of the second world war.

The important point that I want to make is that the convention contains a number of rights, not all of which I will restate here. One of them, of course, is article 14, which determines that

“The enjoyment of the rights and freedoms set forth in the European Convention on Human Rights and the Human Rights Act shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

That matters, because it is relevant to article 6, which for lawyers is perhaps the pre-eminent article in the convention—I suppose that the right to life is quite important as well—and that is the right to a fair trial. Our courts must do justice and uphold the fairness of proceedings without discrimination. The Lord Chancellor himself is very conscious of that, and I pause to note that he has himself sat as a recorder of the Crown Court.

My second point—I will speed up—is about access to independent and impartial justice. An independent judiciary is the cornerstone of our constitution and democracy. Our judges are selected following a rigorous, independent, merits-based process, which is key to maintaining the quality, integrity and independence of the judiciary. Our constitution recognises that. A point that is sometimes lost is that judges of the High Court and above cannot be removed from office without an address passed by both Houses of Parliament. Judges are also largely immune from the risk of being sued or prosecuted for what they do in their capacity as a judge. They also benefit from immunity from being sued for defamation for the things they say about parties or witnesses in the course of hearing cases. They can and must dispense justice fearlessly, without fear or favour. They do that magnificently well, and we are extremely fortunate to have them. The protections exist for a good reason, and the Lord Chancellor jealously guards them.

The Government are subject to the law. In his speech earlier this month—the one at Temple Church at the opening of the legal year, to which I referred—the Lord Chancellor said:

“Sometimes a lawyer will find the argument they advance to be at odds with the Government of the day—but it frankly is a strength of our mature democracy underpinned by the Rule of Law that such debates can occur.”

Reform, which I accept that the right hon. Member for Tottenham takes issue with, is not, we would submit, automatically to be rejected. Many arrangements can benefit from a considered examination, and the Chair of the Select Committee made that point particularly powerfully. The independent—I stress the word “independent”—review of administrative law endeavours to look at that, but let me say this: the baby will not be thrown out with the bathwater. Judicial review is at the heart of the rule of law in this country. It allows citizens to challenge the Government and other public bodies. The Lord Chancellor is clear that the Government need to be challenged.

I listened to the points made by the hon. and learned Member for Edinburgh South West about the panel to which she referred, which had a former Supreme Court judge, Dominic Grieve, Lord Howard and others—including Jessica Simor, I think. Reference was made to ouster clauses, and I want to make the point that there is nothing in the relevant sections that seeks to ouster completely judicial review. Indeed, if a challenge were brought on the basis of procedural impropriety or all the other familiar grounds, those are not ousted. It is important to keep those concerns in proper context.

On the provision of resources, I know the Lord Chancellor is personally committed to supporting the courts through this pandemic. I mention that because it is part of his oath—adequate resources. My hon. Friend the Member for Aylesbury (Rob Butler) was absolutely right. People seem not to have picked up this point, but the magistrates courts are doing an incredible job. Since the end of July, disposals have exceeded receipts, and that is to their great credit. We accept that it is much more difficult in the Crown court, but the boost that has gone into increasing the amount of technology in the system, and indeed the maintenance budget, is very welcome. It replicates a tripling of funding. We are making progress across all jurisdictions. The scale of the challenge is unprecedented, even if the current volume of cases is not, and it could be necessary to look to further creative solutions in the future.

I shall turn to UKIM in the minute that I have left available to me. The hon. and learned Member for Edinburgh South West is right: Catherine Barnard did say that the very existence of the Bill is a breach of duty of good faith. She said there is a strong argument to that effect, but, respectfully, there are strong arguments in all sorts of directions. As the Chair of the Select Committee said, that is not of itself dispositive.

Before turning to part 5 of the Bill, let me state in general terms that the Bill has been designed to offer businesses the certainty they need and to protect trade and jobs in every part of the UK. I do not accept for a moment that it undermines the devolved settlement, notwithstanding the powerful points that were made. When the hon. and learned Member for Edinburgh South West mentioned Donald Dewar, I pause to recall that, yes, he is sometimes referred to as the “father of the nation”. However, I remember his son saying of his father, with great power, in a 2014 article in the Daily Record:

“If he was with us today, dad would be an eloquent and passionate campaigner for Scotland to keep her place within the union.”

I hope the hon. and learned Lady will forgive me for making that point. The key point about part 5 of the Bill was set out by the Government on 17 September. It would be used

“only in the case of, in our view, the EU being engaged in a material breach of its duties of good faith or other obligations, and thereby undermining the fundamental purpose of the Northern Ireland Protocol.”

Let me close by thanking the hon. and learned Member for Edinburgh South West for securing this important debate. On a personal note, I am very pleased that the Lord Chancellor is in post. He has practised as a lawyer and served as a recorder, and he understands the law’s central role in a fair, free and ordered society. The rule of law matters, and the Lord Chancellor has an unshakeable commitment to uphold it.

[Derek Twigg (in the Chair)]

Joanna Cherry, you have nine seconds.

Private International Law (Implementation of Agreements) Bill [Lords]

Alex Chalk Excerpts

Committee stage & 3rd reading & 3rd reading: House of Commons & Committee stage: House of Commons & Committee: 1st sitting & Committee: 1st sitting: House of Commons & Report stage: House of Commons
Tuesday 6th October 2020 Commons Chamber

We believe that the Labour amendments to new clause 5 provide the Government with a constructive and reasonable approach. The amendments allow the Government to achieve the objective they claim is behind new clause 5: to implement the Lugano convention while also protecting parliamentary scrutiny. Nothing in these amendments, or any of the other amendments, hinders the Government in their stated aim. Indeed, they serve no other purpose than to protect parliamentary scrutiny. If the Government vote against them, they will be voting for, as the hon. Member for Huntingdon quite rightly said, one of the largest potential power-grabs ever seen by the Executive in this Parliament. I hope that this Government do the right thing and show that they do indeed value the role of the House and the role and value of parliamentary scrutiny.

[The Parliamentary Under-Secretary of State for Justice (Alex Chalk)]

It was a great pleasure to listen to the powerful advocacy of the right hon. Member for Tottenham (Mr Lammy). Unfortunately, on this occasion, I am unable to agree with him, but out of courtesy to him I will explain why.

It is a real pleasure to address the Committee of the Whole House on a Bill which, while technical, is of great importance. Private international law is not just an arcane and abstract legal construct. As my hon. Friends the Members for Broadland (Jerome Mayhew), for Derbyshire Dales (Miss Dines) and for Aylesbury (Rob Butler), among others, have indicated, it is a very real framework for the dispute resolution of cross-border civil and family justice matters that affect families and businesses in our country. Indeed, the hon. Member for Midlothian (Owen Thompson) made the point that every time we enter into one of these agreements we strengthen the international rules-based order. That is a point we should not lose sight of either.

I am very grateful for the quality of the debate that we have witnessed today, as well as on Second Reading. It has been, if I may say in all sincerity, a debate of conspicuous clarity and ability. I really do appreciate the interest that has been shown in these important matters. I thank colleagues from across the Committee for the time they have taken to prepare the amendments and for the explanations that they have provided. Even where the Government take a different view—which, as I say, I will come on to explain—I recognise that these are serious amendments that have been tabled in good faith in an endeavour to improve the legislation.

Let me begin, if I may, by turning to amendments 5 and 6, new clause 5, new schedule 4 and amendment 7. Taken together, these amendments, in effect, restore the implementing power that was deleted in the other place and reverse the consequential amendments that flow from their deletion. The ability to be able to implement PIL agreements in a timely and effective manner is important. One of the things that really shone out from the excellent contributions that we heard was the word “agility”, which was used by my hon. Friend the Member for Derbyshire Dales in referring to the context of family agreements, and by my hon. Friend the Member for Broadland and, indeed, by my hon. Friend the Member for Henley (John Howell) in talking about the Singapore mediation agreement. That agility is important. It is what allows the UK to be a credible negotiating counterparty, so that if British Ministers agree a PIL agreement—which, incidentally, strengthens the international rules-based order—it can be brought into effect in an agile way.

If indeed, as we all appear to accept, such agreements are good for citizens and businesses, we want to make sure that there is no undue delay in rolling out those benefits. There is a public interest in ensuring that implementation and scrutiny mechanisms are proportionate—again, a word that shone out from the contributions we have heard—in striking the important balance between timely implementation and appropriate scrutiny. If I may make one point about the contribution by the right hon. Member for Tottenham, I think it is fair to say that he did not dwell particularly on the scrutiny procedures that are in place. I will develop that a little bit, and I hope that will put his mind at rest. I do not suppose that I will be able to get him to join us on the Government Benches, but I live in hope.

The provisions are necessary and proportionate because the agreements are recognised across the House as manifestly in the public interest. If I may say respectfully to my hon. Friend the Member for Huntingdon (Mr Djanogly), one of the principal points he made actually, I suggest, undermined his argument. He said, “These are very rarely party political.” The right hon. Member for Tottenham said, “I don’t recall it being vaguely contentious.” He is absolutely right. These agreements are not contentious.

Indeed, if we look at the previous Lugano convention in 2007, or at the previous Hague conventions, which we are introducing under clause 1, nobody ever prayed against them. Equally, on the old Lugano convention—the 1988 one, which preceded the 2007 one—I think only three of their lordships spoke in the other place, there were no amendments and nothing was said here. We must ask ourselves: if my hon. Friends accept that this is non-contentious, why go for what might be perceived to be the disproportionate step?

[Mr Djanogly]

I intervene only because the Minister suggested that I said something. I may have said that this is not party political, but that does not mean to say that it is not important, complicated and potentially contentious—but not for party political reasons.

[Alex Chalk]

But ultimately, my hon. Friend cannot have it both ways. If we accept that it is not contentious, it is important that the mechanisms that are in place are proportionate to that. Indeed, the Opposition knew this when they were in government, because of course all these rule-making powers were on the statute book and they did not repeal them. There was the Administration of Justice Act 1920, the Foreign Judgments (Reciprocal Enforcement) Act 1933, the Maintenance Orders (Reciprocal Enforcement) Act 1972—I could go on. They stayed on the statute book because they are not really offensive to the constitutional balance that we enjoy, but not only were they not repealed; they were used.

The right hon. Member for Tottenham knows that because he was the Minister at the time. He was Minister at the Department for Constitutional Affairs when the British Government used the Foreign Judgments (Reciprocal Enforcement) Act 1933 to bring into force an international agreement with who? With Israel. He knows that because he was the Minister at the time. Who was the Lord Chancellor at the time? Lord Falconer. The right hon. Gentleman cannot very well say that these are a monstrous and egregious affront to our constitution when they were used, because they were used a second time in 2007. They created a power to give effect to bilateral agreements with the United States on reciprocal enforcement of family maintenance orders.

Just to complete that point, not only were those powers used; the right hon. Gentleman, for whom I have enormous respect, created new ones of his own. In 2005—[Interruption.] He is laughing, but he knows it is true. He was the Bill Minister on the Mental Capacity Act 2005, which, incidentally, on this very rainy weekend I had a chance to re-read. That Act created a wide delegated power to introduce international agreements in that area.

I do not want to labour this point too much, but I had a chance to look at proceedings in Committee on that Bill, during which a Conservative hon. Member talked about that specific power and effectively asked the right hon. Gentleman, “Is he sure that he wants to do this?” He added:

“Those in another place get very excited about any sort of Henry VIII clause.”

The right hon. Gentleman responded, effectively, “Don’t worry,” saying that

“they are technical and necessary provisions.”––[Official Report, Mental Capacity Public Bill Committee, 4 November 2004; c. 406-407.]

Is not that precisely the point? What was technical and necessary when he was in government has now become an egregious affront to our constitution.

[Mr Lammy]

The very able Minister has put his argument, but I remind him that under the previous Labour Government, we were in the European Union. This debate is about being outside it, and the best architecture for scrutiny in this House in those circumstances.

[Alex Chalk]

But the point is that when we were in the European Union and the European Union had competence to enter into PIL agreements, those would be brought into effect in the United Kingdom via the doctrine of direct effect. What role did this Parliament have? None. We are seeking to introduce much more by way of parliamentary scrutiny—the points, respectfully, that the right hon. Gentleman did not advert to. First, there is the CRaG procedure, and secondly there is the affirmative procedure.

I am at pains to mention that because I talked just a few moments ago about the Israeli agreement and the United States agreement. How did those come into force? Not through the affirmative procedure, not even through the negative procedure, but through an Order in Council. In other words, normal hon. Members—mere mortals like most of the people in the Chamber—had no say at all; just Privy Counsellors. We therefore respectfully say that it does not lie in the mouth of the Opposition to raise these concerns.

My hon. Friend the Member for Bishop Auckland (Dehenna Davison) made the point powerfully that this precedent, which the Opposition understood when they were in government, recognises that there is an opportunity cost. If we start filling up the parliamentary timetable with such legislation, which everyone accepts is not controversial, there is less time and less space for schools, hospitals and transport, etc.

On the point about criminal offences, which was made powerfully by the Chairman of the Select Committee, my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), this is an area where it is important to move cautiously. We will continue to reflect on the range of views expressed. I agree with him that an awful lot of offences are created by statutory instruments, but we need to take care, none the less.

[Sir Robert Neill]

I am grateful for the Minister’s observations in relation to criminal offences, and I will take him at his word as far as that is concerned. I know that he will want to take away, perhaps, how we deal with that proportionately.

The Minister refers to the value of the affirmative procedure, as is proposed. That, of course, is used when the PIL treaty first comes into force in our domestic law, but often these treaties or agreements can be modified as they go along. Can he help me with the concerns raised by the Bar Council and the Law Society about how the proposed scrutiny regime would deal with, for example, declarations that are attached to international agreements when we bring them into force? Such declarations can sometimes modify or limit their scope. Secondly, how will we deal with model laws, which are now often used in international trade negotiations?

[Alex Chalk]

If I may respectfully say so, that is an excellent point. That is one of the reasons why we seek to frame things this way, because one of the points my hon. Friend made most powerfully is that there are shortcomings in the Lugano convention. He talked about the Italian torpedo, but there are others, some of which Lord Mance referred to in the other place, for example.

How are we to be expected, in an agile and proportionate way, to address those changes, supposing they are negotiated, if we effectively have to have a new Act of Parliament each time? With respect, that would be wildly disproportionate. It would clog up this place unnecessarily, because there may be very good opportunities to improve those agreements and get them on to the statute book.

Let me deal with this business about Lugano, in amendments 1 to 4, 8 and 9, new clauses 1 and 2, new schedule 1, new schedule 3, new clause 5 and amendments (a) to (g). First, it is premature to put Lugano into the Bill while our application is outstanding, even if amendment 2 specifically includes reference to this being contingent on the UK’s accession. It is also inadequate—this is the point I was adverting to—as additional provisions will be required, mostly of a procedural or consequential nature, to properly implement to Lugano convention into domestic law.

For example, the civil procedure rules might need to be changed. What if Lugano is improved, as I indicated? What, also, if our application is unsuccessful? We may then need to move quickly. With whom will we want to move quickly? As my hon. Friend well knows, Norway, Iceland and Switzerland have published statements of support for our Lugano application, and that may be a route we would want to go down.

The most important point is that we have, and indeed should have, ambitions beyond Lugano. We must stay at the forefront of developments, whether the Singapore convention on mediation, as my hon. Friend the Member for Henley (John Howell) powerfully referred to, or the Hague convention on recognition and enforcement of foreign judgments in civil or commercial matters, also known as Hague ’19.

I advert to the fact that the Bill properly complies with the devolution settlement. We take that extremely seriously. As the hon. Member for Midlothian (Owen Thompson) indicated, both the Scottish Parliament and the Northern Ireland Assembly have passed legislative consent motions for the Bill, and the Welsh Government have agreed that an LCM is not required as PIL is almost entirely reserved. There is a small exclusion for Cafcass Cymru, but that is really it.

The right hon. Member for Tottenham spoke about the super-affirmative procedure, and I accept this amendment was submitted in the spirit of trying to be helpful. I entirely acknowledge that. These proposals are contained within paragraph 4 of new schedule 3, tabled by the Opposition, and there is a similar proposal in new schedule 2, although the SNP new schedule would introduce a super-affirmative scrutiny power only for Lugano. I respectfully make the point, and I appreciate that this is to the hon. and learned Member for Edinburgh South West (Joanna Cherry), but why would we need a super-affirmative scrutiny power for Lugano, which we have been operating for years? That is not very obvious to me.

The bar for the super-affirmative scrutiny procedure has always been high. Let us look at the context. Section 85 of the Northern Ireland Act 1998 provides for a super-affirmative procedure for regulations that deal with changes to reserved matters as set out in that Act. The Human Rights Act 1998 provides for such a procedure for remedial orders that deal with legislation that has been found to be incompatible—declarations of incompatibility. Under the Public Bodies Act 2011, a super-affirmative procedure is needed for orders that abolish, merge or change the constitutional funding arrangements. I dealt with those quickly, but the point is that super-affirmative procedure is reserved for matters of key constitutional importance. We must not forget that in the case we are discussing, we have the additional CRaG brake.

If we drill into the detail of super-affirmative procedure, it creates additional stages, but I query whether it results in improvements to the proposed regulations. Instead, it simply delays. It would also create a potential discrepancy between England and Wales and the devolved jurisdictions. One could easily imagine a situation whereby two litigants lived five miles either side of the border and the cases were dealt with differently, to the disadvantage of a litigant in England, because the Scottish Parliament had got on with it and simply brought an agreement into force. That would be unsatisfactory. I do not suggest that that is what the right hon. Member for Tottenham intends, but I fear it could be a consequence.

New clauses 1, 6 and 7 deal with laying the report. New clause 6 would require a report to be laid in Parliament before the UK ratifies an agreement. New clause 7 would require the Government to lay a report in Parliament for 10 House of Commons sitting days before a draft statutory instrument was laid. I accept the need for clear and detailed explanations, but it is not immediately obvious that new clause 7 would add anything to the current process. All SIs are already accompanied by an explanatory memorandum. I dug one out to prepare for the debate. It deals with the Civil Jurisdiction and Judgments Act 1982. It runs to 18 pages and is very detailed and helpful. Other than requiring the information 10 days earlier, I cannot see that new clause 7 would make a difference. We should not forget that an SI is typically laid several weeks before the House gets to debate it. None the less, I accept the point that my hon. Friend the Member for Bromley and Chislehurst made about the need to reach out to distinguished practitioners and jurists. It is right that we should do that, and I am keen for that happen.

I am very grateful for the consideration of the Bill in Committee. I share the desire to ensure that PIL agreements that we wish to join and domestically implement are appropriately scrutinised. All Governments must balance the need for scrutiny with the need to move in a timely manner to ensure that British citizens can enjoy the benefits of PIL agreements as soon as it is properly possible to provide for them. Those benefits are significant, and if the House gets the balance wrong, our citizens will be denied them by an unnecessarily labyrinthine process.

The proposed procedures provide for scrutiny of a delegated power using an affirmative SI together with the CRaG procedure to implement the agreements. That is a balanced and proportionate approach.

[Sir Robert Neill]

Before the Minister sits down—

[Alex Chalk]

Just in the nick of time.

[Sir Robert Neill]

Perhaps the Minister can help my hon. Friend the Member for Huntingdon (Mr Djanogly) and me. I understand what the Minister is saying, and none of us wishes to create a labyrinthine process. Does he accept that it may be necessary to learn from experience with CRaG as we go forward? Are the Government closing their mind to the idea that we could seek refinements and improvements to the CRaG process as we operate it? The answer might help us.

[Alex Chalk]

I thank my hon. Friend for raising that point. There is no doubt that the CRaG process is evolving and maturing. Proper points have been made about the need to consider it and how it should evolve over time. I certainly do not want to shut my eyes or my ears to my hon. Friend’s proposals.

The Bill takes a balanced and proportionate approach. I therefore invite hon. Members to support the Government amendments and reject the remainder.

[Mr Djanogly]

The debate has been interesting and gone some way towards creating a more common understanding of the important issues at stake, the balance between efficient process and appropriate parliamentary scrutiny, and why, as I have argued, we need a more modern process of scrutiny for PIL treaties as much as for the ministerial orders that are derived from them.

--- Later in debate ---

[Alex Chalk]

I beg to move, That the Bill be now read the Third time.

Let me start by thanking all the right hon, hon. and , in particular, learned Members from all parts of the House for their careful scrutiny of the Bill at each stage of its passage. A variety of opinions have been expressed, and I value all the contributions made on these important issues. We have been fortunate, throughout the passage of this Bill, that the debates have been genuinely enriched by the experience and expertise of the speakers, both in this House and in the other place. One thing that has been raised time and again from all involved is an acknowledgement of the importance of private international law and the real-world impact it can have on our constituents.

I have to accept that historically that acknowledgement has not always been in place. A former Lord Chancellor, Lord Hailsham, who introduced a key piece of private international law legislation, the Civil Jurisdiction and Judgments Bill, into the House of Lords in 1981 opened the Second Reading debate by saying:

“I rather feel that it should be accompanied by a Government health warning. There is nothing whatever that I can do to make my speech short, and those who expect to find it of throbbing human interest will, I fear, be wholly disappointed.”—[Official Report, House of Lords, 3 December 1981; Vol. 425, c. 1126.]

But of course we know in this House that this is extremely important. Reciprocal private international law rules provide a framework to enable UK businesses, families and individuals to resolve their difficult and challenging situations. They help to avoid confusion for all parties, by preventing multiple court cases from taking place in different countries on the same subject and reaching potentially different conclusions. Such reciprocal rules also allow for the decisions of UK courts to be recognised and enforced across borders. All of this helps to reduce costs and anxiety for the parties involved. It is therefore vital that in future our country is able not only to continue to co-operate on private international law matters with existing partners, but to implement in our domestic law new agreements that are fit for the 21st century.

The Bill underpins our ambition to deliver real and tangible benefits for the United Kingdom—for our citizens—both now and in the years to come. I reassure Members on a point that I know they realise but that can never be emphasised enough: although private international law can support and underpin cross-border trade, the Bill is not about the implementation of free trade agreements. The terms on which trade between two countries takes place are clearly outside the scope of the Bill.

Over the next few years, we face the challenge of replacing and updating the UK’s private international law framework, recognising our regained competence in this area of law. Although we have not yet agreed, as between this House and the other place, on how best to scrutinise future agreements, I am now confident that there is an eagerness to do so effectively. That eagerness recognises the overwhelming public interest of such agreements.

More broadly, I am pleased that, whatever the outcome of ping-pong, we will have in place legislation that allows the UK to realise the future opportunities in this area of law. I think all parties in this House are agreed not only that we want the UK to remain at the forefront of delivering justice internationally and to ensure that our legal services sector continues to flourish, but that we want to ensure that we are at the forefront of the international rules-based order—we want to see it strengthened and we want to play our part.

I conclude simply by thanking all Members for their contributions. I commend the Bill to the House.

DRAFT SERVICES OF LAWYERS AND LAWYER'S PRACTICE (REVOCATION ETC.) (EU EXIT) REGULATIONS 2020

Alex Chalk Excerpts

Tuesday 22nd September 2020 General Committees

[The Chair]

Before we start, I remind everyone that social distancing applies in this Committee as elsewhere. The little blue markers indicate where you can sit. Please observe all the other rules and regulations that the House has set out. If you make a speech, it would be very helpful to Hansard if you sent your notes by email to [e-mail].

[The Parliamentary Under-Secretary of State for Justice (Alex Chalk)]

I beg to move,

That the Committee has considered the draft Services of Lawyers and Lawyer’s Practice (Revocation etc.) (EU Exit) Regulations 2020.

May I begin by saying what a pleasure it is to serve under your chairmanship, Mr Gray? The draft instrument relates to the recognition of legal qualifications and European lawyers’ practice rights, and forms part of the Government’s preparations for the end of the transition period. It will revoke and replace our existing legislation, which was made in 2019 in preparation for the UK leaving the EU without a withdrawal agreement and is now consequently out of date.

The regulations remedy the deficiency in retained EU law, as such law makes provision for reciprocal arrangements with the EU that will no longer exist. Consequently, by applying that principle of reciprocity, the regulations will remove from our domestic legislation in England, Wales and Northern Ireland any preferential practice rights for EU, European economic area and Swiss lawyers permitted under the EU frameworks for lawyers, so that they are treated in the same way as third-country lawyers after the transition period. I should stress that EU, EEA and European Free Trade Association-qualified lawyers who have already successfully become solicitors or barristers before the end of the transition period will be able to retain their qualifications and related practice rights.

The Committee will be aware that the Government have signed agreements with the EU, the EEA-EFTA states and Switzerland, which contain arrangements regarding the UK’s withdrawal from the EU. Those agreements make provision for EEA and Swiss nationals living and working in the UK, and vice-versa. The instrument will give effect to provisions in those agreements relating to lawyers’ practice rights and the recognition of legal qualifications for EEA and Swiss lawyers in scope of the agreements. Let me be clear: Scotland will be taking forward its own legislation on this matter.

Before I turn to the detail of the instrument, I will briefly set out the background. EU law currently enables UK, EU and EFTA lawyers from one state to establish and practise in another state under their home state professional title, without necessarily having to requalify in the other state. The lawyers’ services directive allows specified lawyers to provide regulated legal services in a member state other than the one in which they qualified—termed a “host state”—without the need to register with a host state regulator. Lawyers provide services under their existing professional title, which is otherwise termed their home state professional title. The directive clarifies the applicable regulatory rules and the conditions for providing services in a host state.

The lawyers’ establishment directive allows specified lawyers from one member state to practise reserved legal activities on a permanent basis in another member state, under their home state professional title, and sets out the conditions for doing so. It also allows lawyers who are practising in another member state to be admitted to the profession in that member state after three years of practice in a host state, without having to go through the usual qualification routes. A European lawyer practising in the UK under the lawyers establishment directive must be registered with a UK regulator as a registered European lawyer—or REL, as they are referred to. As RELs, they have the right to own legal businesses without a UK qualified lawyer.

In 2019, in preparation for the UK leaving the EU without a withdrawal agreement, the Government made legislation that removed the preferential practice rights of EU and EEA-EFTA lawyers in England, Wales and Northern Ireland to come into force on exit day. I will refer to that legislation as the 2019 regulations. A further amending instrument was made—again in 2019—to implement parts of the Swiss citizens’ rights agreement, in readiness for exit day.

The 2019 regulations and the 2019 amendment regulations were not designed to come into force at the end of the transition period under a withdrawal agreement—in other words, they were put in place for no deal, in the event that no withdrawal agreement was secured. Given that the UK secured a withdrawal agreement and a separation agreement with the EEA-EFTA states, as well as the citizens’ rights agreement with Switzerland, some provisions in the 2019 regulations are either no longer needed or will not function correctly. Furthermore, additional provisions are needed to implement the relevant provisions of the agreements relating to lawyers. As such, we require new legislation to correct those deficiencies.

The draft instrument will revoke the 2019 regulations and the 2019 amendment regulations, as well as the domestic legislation that implemented the lawyer-related EU directives, subject to the transitional provisions required to implement the arrangements relating to lawyers in the agreements. Those are the European Communities (Services of Lawyers) Order 1978 and the European Communities (Lawyer’s Practice) Regulations 2000.

The lawyers’ services directive and lawyers’ establishment directive will no longer apply to the UK. There will be no system of reciprocal arrangements under which EU and EFTA lawyers—including UK nationals holding EU-EFTA qualifications—can provide regulated legal services and establish on a permanent basis in the UK and vice-versa for UK lawyers in the EU, so it is a balanced arrangement. The instrument therefore remedies a deficiency in retained EU law as such law makes provision for reciprocal arrangements with the EU that will no longer exist, while ensuring that we meet our obligations under the withdrawal agreement and the other previously mentioned agreements.

As I have indicated, EU and EFTA lawyers will be treated in the same way as other third-country lawyers who wish to practise in England and Wales or Northern Ireland. The instrument will also implement provisions in the EU withdrawal agreement and EEA-EFTA separation agreement that allow applications made before the end of the transition period to join one of the legal professions in England and Wales or Northern Ireland to be completed under the current rules.

In addition, the instrument will implement provisions in the Swiss citizens’ rights agreement for Swiss lawyers within the scope of that agreement—who are established, registered and providing services in England and Wales or Northern Ireland under their Swiss professional title—to retain their current rights, so long as they remain registered. The instrument will also implement a transition period of four years from the end of the transition period for Swiss lawyers to register as an REL and practise under their Swiss professional title, or to apply to join one of the legal professions in England and Wales or Northern Ireland under the terms of the Swiss citizens’ rights agreement.

Additionally, the instrument will implement provisions that allow lawyers who are established and employed in Switzerland to continue to provide temporary services under the lawyers’ services directive for up to 90 days in a year, for at least five years, when under a contract agreed and started before the end of the transition period. The instrument will also implement provisions in the agreements to facilitate regulator-to-regulator co-operation in relation to applications for admission to the host state legal profession, and in relation to registration and regulation of an REL under the Swiss citizens’ rights agreement. The instrument will make further provision to enable regulators in England and Wales and Northern Ireland to complete any ongoing disciplinary proceedings against EU and EEA-EFTA lawyers that commenced before the end of the transition period.

To conclude, the regulations are a necessary element of preparation for the end of the transition period, and I commend them to the Committee.

--- Later in debate ---

[Alex Chalk]

I thank the hon. Gentleman for his remarks and for his support for these necessary regulations. Yes, the United Kingdom recognises that we are an open society, particularly when it comes to legal practice, and we want that to continue. We want to be a country that continues to attract the brightest and best lawyers from around the world, as long as they are, as he rightly indicates, properly qualified and this is the appropriate place for them to practise.

We will continue to remain an attractive part of the world, because we believe in upholding the rule of law. Long may that continue. I thank members of the Committee for their valuable contributions to the debate, and I commend the regulations to the Committee.

Question put and agreed to.

Oral Answers to Questions

Alex Chalk Excerpts

Tuesday 22nd September 2020 Commons Chamber

[Mick Whitley (Birkenhead) (Lab)]

What assessment he has made of the effect of the covid-19 outbreak on service users and victims in the criminal justice system.

[The Parliamentary Under-Secretary of State for Justice (Alex Chalk)]

The Government are determined that victims should receive the help and support they need to cope and recover during the pandemic. In addition to existing funding, the Government have provided £76 million to support victims of modern slavery, domestic abuse and sexual violence, as well as vulnerable children and young people. We have set up the victims and witnesses silver command, which consists of the Victims’ Commissioner, the Domestic Abuse Commissioner and others, to identify needs fast and deliver support to the frontline.

[Mick Whitley]

Even before the pandemic, young people often endured terrible conditions on the prison estate, and things have grown much worse since the pandemic began. Many young people have found themselves locked up in their cells for 22 hours a day and face-to-face learning has ended. Education and training play an essential role in reducing reoffending and improving the wellbeing of prisoners. Will the Ministry of Justice consider introducing virtual rehabilitation and education classes while prisoners remain under tight restrictions due to covid?

[Alex Chalk]

I was expecting a question about victims, but the hon. Gentleman rightly raises an important issue about prisons. The answer to the point he raises is: yes, we are doing it.

[Mr Speaker]

It might help victims if you did; I think that is the answer.

--- Later in debate ---

[James Daly (Bury North) (Con)]

What steps his Department has taken to improve criminal legal aid provision.

[The Parliamentary Under-Secretary of State for Justice (Alex Chalk)]

I hugely value the work of criminal defence lawyers, who play a vital role in upholding the rule of law, testing prosecution evidence and ensuring that the innocent walk free. To support the profession through the pandemic, we sought to improve the cash flow for it by making it easier to draw down payment for work already collected, halting the collection of debt by the Legal Aid Agency and relaxing LAA contract requirements to ensure that more staff can be furloughed.

[Gareth Bacon]

According to Government figures, in 2010-11 there were 1,861 firms with criminal legal aid contracts, whereas now there are only 1,138, which represents a 39% decrease. In addition, there appear to be significant recruitment shortages in the profession. According to the Solicitors Regulation Authority, in 2017 fewer than 3% of 11,000 trainee solicitors were working in criminal law. That raises real issues as to people’s ability to access justice. What plans does my hon. Friend have to address this decline?

[Alex Chalk]

My hon. Friend raises an important point. We want criminal law and criminal defence to be an attractive, sustainable profession, which is why we put £23 million into the advocates’ graduated fee scheme last year, which can benefit solicitor advocates, and why we put, as the first wave of criminal legal aid, up to £51 million into the profession. It is a great and important job, and we want people to go into it.

[Dr Ben Spencer]

I thank the Minister for his answers. Equity of access to justice is a central tenet of the rule of law. Does he agree that is it essential not only that everyone who needs it has access to legal aid, but that it is set at a level that does not disincentivise lawyers from taking on legal aid cases?

[Alex Chalk]

My hon. Friend makes a crucial point. Anyone in this Chamber could be accused of a crime they have not committed, and we need to ensure that there are lawyers who can take on the cases, challenge the prosecution and evidence, and ensure that justice is done. That is why we have the criminal legal aid review, and we want to ensure that that independently led review secures a sustainable profession into the future, so that justice can be done in the future.

[James Daly]

I applaud the Minister for his ongoing efforts to ensure that we have a viable and sustainable criminal legal aid sector. Will he work with all stakeholders to ensure that fee income is increased, as he knows it is the single most important issue to every firm of criminal law solicitors in the country?

[Alex Chalk]

I particularly thank my hon. Friend, who has been such a powerful champion of criminal defence. He is absolutely right. It has to be a system that offers rates that are attractive to people coming into the profession. Crime lower work—that critical work at police stations and in the magistrates court—has to be properly remunerated. The vital work that he has done in the past and that his colleagues do needs to be recognised and rewarded.

[Karl Turner (Kingston upon Hull East) (Lab) [V]]

Again, we have heard warm words from the Dispatch Box. I am sorry to have to spoil the Justice Secretary’s birthday, but the truth is this: the Government simply have not got to grips with the crisis in legal aid, and those on the front line of our criminal justice system know it. Nearly two years on from the announcement of a criminal legal aid review, the plan for accelerated items has only just been published. That sticking plaster might just have sufficed before covid, but for a justice system already on its knees, it is woefully insufficient, and victims, defendants and practitioners alike are paying the price. Will the Minister put a stop to the dither and delay, recognise the urgency of the situation, and commit to expediting the remaining stages or at the very least come up with a realistic timetable?

[Alex Chalk]

I thank the hon. Gentleman for his question. I like the hon. Gentleman, but I am afraid he is completely wrong. This is the Government who have put money into the profession. Let me tell him one thing: under his Government, does he know how much money was paid for unused material for advocates? Not a penny piece. This is the Government who are putting money into the profession. That is the way it is going to stay.

[Olivia Blake (Sheffield, Hallam) (Lab)]

If he will make a statement on his departmental responsibilities.

Private International Law (Implementation of Agreements) Bill [Lords]

Alex Chalk Excerpts

2nd reading & 2nd reading: House of Commons
Wednesday 2nd September 2020 Commons Chamber

[The Parliamentary Under-Secretary of State for Justice (Alex Chalk)]

I want to begin by expressing my gratitude to all Members who have contributed to the debate, with speeches of conspicuous clarity of thought. It is clear that across the House there is proper concern about the balance that exists between the powers of the Executive and the powers of the legislature. I will return to that, because it is absolutely right that those important points are engaged with fully. But first let me make some brief introductory remarks, setting the stage for why this matters and why, indeed, the Government are taking the approach we are.

As others have indicated, the Bill might at first glance appear somewhat dry and academic, but, as my hon. Friend the Member for West Bromwich West (Shaun Bailey) noted, it is of great practical importance for the lives and livelihoods of individuals and businesses in all our constituencies. It is also important—this point should not be lost—for the international rules-based order, which we can and must consolidate and strengthen in the months and years ahead. My hon. Friend the Member for Henley (John Howell) made the excellent point about the urgency of a mediation agreement, but in summary this Bill provides a legal framework for resolving cross-border disputes, and that framework provides legal certainty about jurisdiction, recognition and enforcement for both businesses and individuals whose legal affairs cross borders.

As has been noted, it benefits individuals where, for example, the relationship with the former partner has broken down but both parties need to resolve the child contact arrangements where one parent lives overseas. Such cases have arisen in my constituency surgery in Cheltenham. They are very painful cases, and are more painful still without these rules in place. It benefits businesses, too, for example where suppliers are abroad and the parties want to know that the agreement to litigate any dispute in a particular country will be honoured and upheld internationally, and it matters that when our jurisdiction is chosen by the parties in a commercial agreement other courts and states will recognise and enforce that jurisdiction. That is really what matters.

How does this Bill achieve that? In essence, in two ways: first, it carries over international treaties that we were parties to by dint of our membership of the EU; and secondly—this is the point that has attracted the most attention in this debate—it creates a mechanism for us to participate in future agreements and, in doing so, to strengthen the international rules-based order for the benefit of all our citizens. I just want to underscore that point. There is a countervailing public interest in our being able to do that in a timely and efficient way, because the longer that we delay in implementing these arrangements, the longer the delay in strengthening the international rules-based order.

It is important to be clear what the Bill is not about. The Lord Chancellor did that before me, but it is right that I underscore it. It is not about trade agreements. Private international law agreements remain distinct from free trade agreements both in content and scope. As hon. Members well understand, FTAs are agreed between countries, and they remove or reduce tariffs and other restrictions on most goods traded between them to allow easier market access. FTAs rarely, if ever, contain specific private international law provisions.

Promoting international recognition of jurisdiction and enforcement is important because the UK is the chosen court centre for so much of the world’s litigation: 40% of all global corporate arbitrations used English law in 2018, 75% of cases in the UK commercial court in the same year were international in nature and English law is the leading choice of law for commercial contracts. That is underpinned by the excellence and integrity of our judiciary and the calibre of our legal practitioners. It is right to pay tribute to them, and I am pleased to have the opportunity to do so.

As a result, our successful legal sector contributed £26.8 billion to the economy in 2017 and employs over 300,000 people. To sustain that, we in the United Kingdom must be ready to contribute more than ever to the international rules-based order. For the UK to remain a progressive force in the field of private international law, we must be able both to negotiate and then to implement into British domestic law modern agreements with our international partners once the UK has decided to become bound by them.

The hon. Member for Strangford (Jim Shannon) made the point—he will forgive me for paraphrasing—“Look, will the British Government impose things on Northern Ireland?” The answer to that is no. Just as we recognise, of course, the distinct and distinguished legal arrangements that exist in Scotland, so it is in Northern Ireland, and no doubt that is what lay behind the legislative consent motions. While it would be the British Government who negotiate the agreement, the decision on whether to bring it into force is a devolved matter for the Ministers in Scotland and, indeed, in Northern Ireland, respectively.

Let me turn to what the Government are proposing to do in respect of clause 2 as was, before the other place removed it. The reintroduction of the delegated power to implement private international law agreements into domestic law via secondary legislation is necessary, proportionate and constitutionally appropriate. My hon. Friend the Member for Huntingdon (Mr Djanogly), in a characteristically eloquent speech, referred to this at one stage as, I think, the largest potential power grab for some time. I think that was his point, but I respectfully suggest that that needs to be placed in some wider context.

Let me first underscore the point that was touched on by my hon. Friend the Member for West Bromwich West, but also by the Lord Chancellor. Lest we forget, the arrangements that prevailed when we were in the European Union operated a bit as follows: the European Union, on behalf of all the member states, would go out to negotiate these agreements, and having reached an agreement with another country, it would fall to the UK Government in effect to implement it. How would that take place? It would take place either under the doctrine of direct effect, which lawyers in this Chamber will remember stems from the case of Van Gend en Loos, which essentially means—[Interruption.] The right hon. Member for Walsall South (Valerie Vaz) perhaps remembers; I am not sure.

The case of Van Gend en Loos means that, so long as such an agreement satisfies certain appropriate criteria, it would take effect in this country with no parliamentary intervention at all. In other words, hon. and right hon. Members would be entirely ousted from the process of its taking effect in the United Kingdom. However, even if it did take effect by way of direct effect, the effect of section 2(2) of the European Communities Act 1972 means that it would be Ministers using the negative resolution procedure who brought it into effect in this country.

[Joanna Cherry]

Of course that is accurate, but as I said earlier, the whole point of Brexit was to take back control. If that is really what Brexit was about, why are the Government reintroducing clause 2 without any of the compromises that I and others have suggested? The whole project of leaving the EU was about taking back control—so we are told—yet the Government are taking that control, rather than giving it to the House or indeed the people.

[Alex Chalk]

When we talk about taking back control, it is important to note that in future it will not be the EU but the British Government negotiating private international law agreements. I am simply pointing out that when the EU negotiated the arrangements and Parliament had no role at all, it did not seem to attract any concern in this place, yet when it is the British Government negotiating them on behalf of the UK, it seems to create difficulties.

[Mr Djanogly]

rose—

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[Alex Chalk]

I will come to the hon. and learned Member’s second point in a moment, but first I will let my hon. Friend come in on this point.

[Mr Djanogly]

The difference is that in the EU the Parliament has a vote and a potential veto on international trade agreements. My hon. Friend is arguing in effect that we move back to the position before we were in the EU. I think the point the hon. and learned Lady is making, which I would back up is, that we do not want to go back to what we had before we were in the EU; we want to move forward and have a system that is relevant to today’s democracy.

[Alex Chalk]

I take that point completely. I will answer it by touching first on what the situation was before we entered the EU and then on how it ought to evolve in a way that I hope meets my hon. Friend’s concerns. He is right—others have touched on this—that arrangements were in place prior to our entering the EU, albeit on a bilateral basis, for us to enter into these sorts of agreements. Two have been touched on because they have been used quite recently: the Foreign Judgments (Reciprocal Enforcement) Act 1933 and the Maintenance Orders (Reciprocal Enforcement) Act 1972.

It is worth taking a moment to consider them. How is the first Act used in practice? In 2003, it was used for us to enter into a PIL agreement with Israel that had a significant impact: namely British courts would have to give effect to what magistrates courts in Israel said. Yet how was that brought into force in the UK? Was it brought into force through an Act of Parliament? No. Was it was brought into force through the affirmative resolution procedure? No. It was brought into force through an Order in Council. It states:

“Her Majesty, in exercise of powers conferred on Her by section 1(4) of the Foreign Judgments (Reciprocal Enforcement) Act 1933, is pleased, by and with the advice of Her Privy Council, to order”—

and then she gave effect to this private international law Bill. My point is simply that this procedure, which was used in 2003, is far inferior to what we are introducing in clause 2. We are doing away with any idea of an Order in Council, which we accept would be too old fashioned. The appropriate way to apply scrutiny in this House is through the CRAG procedure and the affirmative resolution procedure.

The second Act was used in respect of a US agreement in 2007 as a result of which an Order in Council had the effect that an order on maintenance would have to be given effect in the UK. How was that PIL agreement given effect in the UK? It was not through an Act of Parliament but again through an Order in Council, and again we are going beyond that in this Bill.

In dealing with this matter, I want to make one final and very important point. Not content with simply using Orders in Council to introduce PIL agreements in the past, in fact the House has legislated in recent memory to include more scope to introduce PIL agreements by way of delegated legislation. First, the House passed the Insolvency Act 2000, which created a power to introduce regulations in 2006. Secondly—this is the final point that I will make on this issue, but it does seem relevant—the House passed the Mental Capacity Act 2005. That Act created powers to make further provision as to private international law. Paragraph 32(1) of schedule 3 states:

“Regulations may make provision—(a) giving further effect to the Convention”—

that is the convention on the international protection on adults—

“or (b) otherwise about the private international law of England and Wales in relation to the protection of adults.”

In other words, it was being created in 2005.

[Mr Djanogly]

I appreciate that, but it did not provide a statutory instrument for looking at international financial bonds, insolvency law or other jurisdictional issues; it was focused on that specific area. The point that has been made by many hon. Members this afternoon is that this is too broad.

[Alex Chalk]

I accept my hon. Friend’s point, but the way it has been framed thus far is, “Look, this is constitutionally unprecedented.” It is not constitutionally unprecedented, and that ought to be borne in mind.

The distinguished Chair of the Justice Committee, my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), made the proper point about criminal laws, and I recognise that that is something that we should look at carefully. It would be going too far to suggest that delegated legislation is not used to introduce criminal laws. An extremely distinguished paper was produced by academics at the University of Glasgow which went so far as to say that the overwhelming majority of criminal offences are created by delegated legislation, particularly where they are highly specific, technical, environmental offences and so on, so it is not without precedent at all, but I recognise that the point requires consideration.

In short, the Bill will future-proof our legislative requirements in this area for the years to come, while at the same time ensuring that UK businesses, individuals and families can continue to benefit from an efficient and effective framework to help resolve cross-border disputes. It will also ensure that our domestic laws can keep up to date with the latest developments in private international law in international forums, and that the UK can implement any agreements it intends to join in a timely manner while maintaining appropriate parliamentary oversight. I commend this Bill to the House.

Question put and agreed to.

Bill accordingly read a Second time.

PRIVATE INTERNATIONAL LAW (IMPLEMENTATION OF AGREEMENTS) BILL [LORDS]

Motion made, and Question put forthwith (Standing Order No. 83A(7)),

That the following provisions shall apply to the Private International Law (Implementation of Agreements) Bill [Lords]:

Committal

1. The Bill shall be committed to a Committee of the whole House.

Proceedings in Committee, on Consideration and up to and including Third Reading

2. Proceedings in Committee of the whole House, any proceedings on Consideration and any proceedings in legislative grand committee shall (so far as not previously concluded) be brought to a conclusion one hour before the moment of interruption on the day on which proceedings in Committee of the whole House are commenced.

3. Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion at the moment of interruption on that day.

4. Standing Order No. 83B (Programming committees) shall not apply to proceedings in Committee of the whole House, to any proceedings on Consideration or to other proceedings up to and including Third Reading.

Other proceedings

5. Any other proceedings on the Bill may be programmed.—(Leo Doherty.)

Question agreed to.

[Mr Deputy Speaker (Mr Nigel Evans)]

We will now suspend the sitting for three minutes; those who are leaving the Chamber should do so carefully.

Oral Answers to Questions

Alex Chalk Excerpts

Tuesday 14th July 2020 Commons Chamber

[Marion Fellows (Motherwell and Wishaw) (SNP)]

What recent discussions he has had with the Scottish Government on proposals to update the Human Rights Act 1998.

[The Parliamentary Under-Secretary of State for Justice (Alex Chalk)]

We regularly engage with the Scottish Government, as well as the Welsh Government and the Northern Ireland Executive, on a range of justice-related matters, including human rights. The Government committed to looking at the broader aspects of our constitution, including updating the Human Rights Act. I can assure the hon. Members that, once the work on the Human Rights Act review commences, the implications for the devolved Administrations will be closely monitored.

[Stuart C. McDonald [V]]

I thank the Minister for that answer. At Justice questions on 9 June, the Lord Chancellor told us that he was working on that independent review into the operation of the Human Rights Act, but given how hugely significant the Human Rights Act is to the devolved settlements of Wales, Northern Ireland and Scotland, does the Minister agree that any changes to that Act would need full consultation, not just monitoring, and the consent of the devolved Administrations?

[Alex Chalk]

Yes, of course. Scotland has a distinguished and distinct legal system and of course it would need to be consulted in that way. I do wish, though, to make one point crystal clear: whatever amendments may come to the Human Rights Act, the United Kingdom remains committed to membership of the European convention on human rights. That will not change.

[Angela Crawley [V]]

Can the Minister outline the relationship between the independent review of the Human Rights Act and the proposed constitution, democracy and rights commission, as well as the terms of reference for the independent review and whether the devolved Administrations, including the Scottish Government, will be consulted about those terms of reference?

[Alex Chalk]

I thank the hon. Lady for her question. There is a manifesto commitment to look at updating the Human Rights Act, which is now—what?—20 years old or so, but we have yet to set the terms of reference. Of course it is the case that, as we go forward in that process, the implications for the distinguished and distinct, separate legal jurisdiction of Scotland must be taken into account, and that is exactly what we will ensure takes place.

[Marion Fellows [V]]

Can the Minister confirm what criteria will be used to appoint members to this independent review? Will it include members with expertise in the human rights regime in Scotland, and will civic society organisations from Scotland be able to submit evidence and participate in the review?

[Alex Chalk]

I thank the hon. Lady for her question. Of course, it is axiomatic that membership of that committee, which has yet to be settled, must include those who have the wherewithal to comment on precisely the points she indicated, including the impact upon Scotland. I would want to see that being the case and, indeed, in respect of the other jurisdictions as well. We have to make sure that, as we go forward, we respect and recognise the differences that exist in the United Kingdom in this most important regard.

[Joanna Cherry (Edinburgh South West) (SNP)]

The Scottish Government have plans to pass a new human rights Act incorporating economic, social, cultural and environmental rights in the devolved areas. Does the Minister agree that it is unfortunate that, at a time when the Scottish Government are working to expand the rights of people living in Scotland, at least in respect of devolved areas, the UK Government are perceived as threatening to diminish human rights protections in respect of reserved matters and across the United Kingdom?

[Alex Chalk]

Can I thank the hon. and learned Lady for her question? She will, I hope, acknowledge that perceptions are not always borne out by reality. The United Kingdom Government remain committed to the European convention on human rights, and nothing that will take place by way of an update or any proposals that emerge will threaten that fundamental point. We are a nation of laws. We are committed to upholding human rights. That is the way it is going to stay.

[Joanna Cherry]

I thank the Minister for his answer and I hear clearly his assurance that the United Kingdom remains committed to the ECHR, but of course it is the Human Rights Act that gives people living in the United Kingdom the ability to avail themselves of the rights protected by the convention in the United Kingdom’s domestic courts. If, in updating the Human Rights Act, the Government have no intention of abrogating the domestic law that gives effect to the ECHR, why are they allowing the perception that they might do so to undermine the chances of securing an agreement with the European Union on future co-operation on law enforcement and judicial co-operation on criminal matters?

[Alex Chalk]

The hon. and learned Lady is right that, of course, the Human Rights Act does provide the power for individuals to assert and invoke those rights, but if we are committed to the convention, we are also committed to article 13 of the convention, which is the right to an effective remedy. The courts play an important role in allowing citizens to invoke and assert their convention rights. That will continue.

[Laura Farris (Newbury) (Con)]

What steps his Department is taking to tackle radicalisation in prisons.

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[Robbie Moore (Keighley) (Con)]

What steps his Department is taking to increase support for victims of crime.

[The Parliamentary Under-Secretary of State for Justice (Alex Chalk)]

We are committed to ensuring that victims of crime receive the support that they need now, during covid, but also in the future. We are recruiting an additional 20,000 police officers, investing in the Crown Prosecution Service, and rolling out £76 million to support victims of sexual violence and domestic abuse, as well as vulnerable children.

[Jacob Young]

I thank my hon. Friend for that answer. Victims of domestic abuse in Redcar and Cleveland are supported and helped by fantastic local charities such as EVA Women’s Aid and Foundation. Will he outline how his Department are strengthening support services for domestic abuse and ensuring that they have the funding that they need?

[Alex Chalk]

I thank my hon. Friend for that excellent question. I also thank the domestic abuse charities, including EVA Women’s Aid, for the fantastic work they do in supporting victims of crime. We are committed to ensuring that vital support continues as we ease lockdown restrictions. In response to the pandemic, the Ministry of Justice has distributed £22 million to date as part of the package for charities supporting vulnerable people. As announced at the Prime Minister’s hidden harms summit in May, we have also committed to developing a funding strategy for all victims of crime, including domestic abuse, which will look at the longer-term sustainability of funding.

[Robbie Moore]

Previous figures published by the Department for Education have shown that more than 18,700 suspected victims of child sexual exploitation were identified by authorities in 2018-19. Several grooming cases brought to court have revealed abusers targeting vulnerable girls, particularly those in care, supported accommodation or with learning difficulties. It is gut-wrenching to hear, but the reality is that it is still happening. Will my hon. Friend confirm that he is dedicated to forming a joined-up support approach with police forces, local NHS services and children’s services to identify support for these victims, but also with the aim of preventing such abuse?

[Alex Chalk]

I thank my hon. Friend for that excellent question. Child sexual abuse and exploitation are truly abhorrent, and the Government are dedicated to taking precisely the joined-up action that he urges on us to prevent abuse and provide support for victims. The Government’s victims strategy outlines our commitment to improve support for victims of child sexual abuse to help them to cope. The Children and Social Work Act 2017 introduced the most significant reforms in a generation, requiring local authorities, clinical commissioning groups and the police to form multi-agency safeguarding partnerships.

[Richard Graham (Gloucester) (Con)]

What steps his Department is taking to increase access to justice.

[The Parliamentary Under-Secretary of State for Justice (Alex Chalk)]

Access to justice is a fundamental right and this Government are committed to ensuring that everyone can get the timely support they need to access the justice system. We have removed the mandatory element of the telephone gateway to support access to advice, and we continue to prioritise work to provide a new £3.1 million grant that will further enhance legal support for litigants in person. In 2018-19, we spent £1.7 billion on legal aid, and in response to disruption caused by covid we are providing £5.4 million in funding to not-for-profit providers of specialist legal advice.

[Richard Graham]

I support strongly what the Government are doing in funding law centres and providing much more information online for our constituents, but how does my hon. Friend think we can access the services where needed of an asylum lawyer at the Gloucester Law Centre? Also, will he ensure that the only magistrates court in our county—in his Cheltenham constituency—will be well funded, so that it can operate efficiently for years to come?

[Mr Speaker]

I think the answer will be yes.

[Alex Chalk]

The answer is yes—thank you for pre-empting it, Mr Speaker—but first, may I welcome my hon. Friend’s support for the Gloucester Law Centre, which does fantastic work? The £3 million grant will allow law centres to increase their capacity to provide advice for those who need it. We are also considering the longer-term sustainability of providing legal aid more widely, including for asylum cases, to which he rightly adverts; my officials are working closely with stakeholders on this. As you rightly trailed, Mr Speaker, on court maintenance, we have announced a tripling of funding for repairs and upgrades to include £30 million for the roll-out of the latest video technology. That will be welcomed in Cheltenham and, indeed, Gloucester.

[Karl Turner (Kingston upon Hull East) (Lab) [V]]

Legal aid lawyers are being asked, yet again, to carry the can for a decade of mismanagement on the part of successive Tory Ministers. Lawyers are now expected to work extended hours for no extra pay to clear the half a million backlog of criminal cases caused by savage cuts. Legal aid lawyers do not support extended or flexible operating hours, but why would they? Their patience and good will have been stretched too far. Ministers know full well that the underfunded justice system means justice denied, so what—if any—representations has the Justice Secretary made to the Treasury for more funding; or is it simply that he just does not care?

[Alex Chalk]

Absolutely nothing could be further from the truth. The Government are committed to this. I was a practitioner in 2010 and I well remember when Labour was in government and Labour Members derided the “gravy train” of legal aid. We will never do that, because we recognise its importance. This Government have eased the rules on hardship and interim payments to enable the early drawdown of payment for work done, and for solicitors we have doubled the number of opportunities to seek payment on account. This is really important: we are accelerating work on CLAR—the criminal legal aid review—because we want to put between £31 million and £51 million into the profession as soon as possible. That funding will be released before too long.

[Lilian Greenwood (Nottingham South) (Lab)]

What progress he has made on implementing the recommendations of the Lammy review, “An independent review into the treatment of, and outcomes for, Black, Asian and Minority Ethnic individuals in the Criminal Justice System”, published in September 2017.

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[Derek Twigg (Halton) (Lab)]

If he will undertake a review of the process of appealing a coroner’s decision not to hold an inquest.

[The Parliamentary Under-Secretary of State for Justice (Alex Chalk)]

We recognise the importance of bereaved families being able to seek an independent review of a coroner’s decision. Section 13 of the Coroners Act 1988, as amended, provides for the Attorney General to make or authorise an application to the High Court to consider whether an inquest should be held where a coroner has not held one. Individuals can also bring claims for a judicial review of a coroner’s decision. The Justice Committee has recently opened an inquiry into the coroner service, and we will consider its report and recommendations.

[Derek Twigg]

The new senior coroner for Merseyside has agreed an inquest into the death of Laura Higginson in my constituency. The family’s request for an inquest under the previous coroner was turned down, despite new evidence being available. If the original decision had not been changed, then the family’s only option would have been to resort to a judicial review. Will the Minister look again at repealing section 40 of the Coroners and Justice Act 2009 to see whether we could have a much easier and less expensive way of families being able to challenge coroners’ decisions?

[Alex Chalk]

I thank the hon. Gentleman for his campaigning work in this regard. He is absolutely right that Mrs Higginson’s sad death in 2017 is now subject to an inquest, for the reasons that he indicated. I thank him for the parliamentary questions that he has submitted on this issue. It is not absolutely right to say that the only option is a judicial review. For the reasons that I indicated, people can petition the Attorney General, and indeed the Solicitor General, for that to take place. But he raises an important issue, and of course we keep this under consideration. I cannot tell him that there are immediate plans to do as he suggests, but we will of course consider it.

[Elliot Colburn (Carshalton and Wallington) (Con)]

What plans he has to reduce reoffending rates.

Draft Human Rights Act 1998 (Remedial) Order 2019

Alex Chalk Excerpts

Wednesday 1st July 2020 General Committees

[The Parliamentary Under-Secretary of State for Justice (Alex Chalk)]

I beg to move,

That the Committee has considered the draft Human Rights Act 1998 (Remedial) Order 2019.

It is a pleasure to serve under your chairmanship, Sir Charles. The draft remedial order was laid before this House on 15 October 2019, in the last Session of Parliament. It was laid to implement the decision of the European Court of Human Rights in the case of Hammerton v. United Kingdom.

The draft order amends section 9(3) of the Human Rights Act 1998 to enable damages to be awarded under the Human Rights Act in respect of a judicial act done in good faith which is incompatible with article 6— the right to a fair trial—of the European convention on human rights. It provides the power to award damages where a person is detained and would not have been detained for so long, or at all, were it not for the incompatibility.

The Government consider this limited amendment to be an appropriate balance that implements the judgment of the European Court of Human Rights and takes into account the views of the Joint Committee on Human Rights, while also respecting the important constitutional principle of judicial immunity and the constraints provided by section 9(3) of the Human Rights Act, namely the right to an effective remedy.

To turn to the background of Hammerton v. United Kingdom, the particulars of the case are that, in 2005, Mr Hammerton was committed to prison for three months for contempt of court, after breaching an injunction and undertaking during child contact proceedings. However, he was not legally represented at the committal proceedings, due to procedural errors. The Court of Appeal quashed the finding of contempt and the sentence, finding that he had spent extra time in prison as a result of procedural errors during his committal proceedings, which were such that his rights under article 6, the right to a fair trial, were breached.

In 2009, Mr Hammerton lodged a claim for damages in respect of his detention. The High Court held that the lack of legal representation had led to Mr Hammerton spending about an extra four weeks in prison. However, he was unable to obtain damages to compensate for the breach of article 6 in the domestic courts, because section 9(3) of the Human Rights Act does not allow damages to be awarded in proceedings under the Act in respect of a judicial act done in good faith, except to compensate a person to the extent required by article 5(5) of the convention, which is on deprivation of liberty.

In 2016, the European Court of Human Rights considered the case and found a breach of article 6. The court also found that the applicant’s inability to receive damages in the domestic courts in the particular circumstances of his case led to a violation of article 13, the right to an effective remedy, and awarded a sum in damages. That sum has been paid. We are obliged, as a matter of international law, to implement the judgment of the European Court of Human Rights and, in this case, to take steps to implement the judgment in respect of the breach of article 13, to ensure that similar violations will not arise in the future.

To set the draft order in context, the Human Rights Act gives individuals the ability to bring proceedings to enforce their convention rights, or to rely on those rights in other proceedings, and gives courts and tribunals the ability to grant any relief or remedy within their powers, as they consider just and appropriate. I pause to note, as I am sure is not lost on anyone in the Committee, that the European Court of Human Rights is completely different from the European Court of Justice, which of course has no jurisdiction over the United Kingdom any more.

The award of damages is often not necessary to afford just satisfaction for breaches of convention rights. In the majority of cases in which a judicial act done in good faith leads to a violation of an individual’s convention rights, it can readily be remedied by an appeal and other forms of relief, such as release from custody. Therefore, it will be only on rare occasions that the statutory bar in section 9(3) of the Act will constitute a barrier to a victim receiving an effective remedy, as required by article 13 of the convention.

The bar on paying damages in cases such as this one is in primary legislation and, to implement the judgment, it is necessary to amend the relevant primary legislation, in this case the Human Right Act 1998. The Act sets out the procedure for remedial orders, such as the one we are discussing today, and in 2018 the Government laid a proposal for a draft remedial order to make a narrow amendment to section 9 of the HRA.

That amendment provided for damages to be payable in respect of a judicial act done in good faith where, in proceedings for contempt of court, a person does not have legal representation, in breach of article 6, that person is committed to prison, and the breach of article 6 results in the person being detained for longer than he or she otherwise would have been. The Government considered that that addressed the specific findings of the court, while at the same time taking account of the need to preserve the important principle of judicial immunity—a constitutional principle that should rightly be preserved.

In November 2018, the Joint Committee on Human Rights reported on the draft remedial order and was of the view that the proposed amendment was too narrow and did not fully remove the incompatibility of section 9 with article 13. It recommended that we consider redrafting the order to make damages available for any breach of human rights caused by a judicial act where otherwise there would be a breach of article 13, whether or not that leads to a deprivation of liberty. In other words, the Committee said we were not extending it enough and should go broader than the specific facts of the case.

In response, the Government accepted the point that other situations could arise outside committal proceedings where a judicial act done in good faith could potentially amount to a breach of article 6, where that breach could result in the victim spending longer in detention than they should, and where damages would be unavailable, contrary to article 13. The order before the House today is slightly wider in scope, taking into account the need to balance addressing the incompatibility identified by the European Court of Human Rights with the need to protect the principle of judicial immunity. I am grateful to the Joint Committee on Human Rights for its scrutiny of the order and its careful consideration of the more recent draft order issued, and we welcome the Joint Committee’s recommendation that Parliament approve the order.

Hon. Members will have heard me mention just now the need to protect the principle of judicial immunity, and I want to say a few words about that. Judicial independence and the principle of judicial immunity must be protected, and any intrusion needs to be stringently justified. That is why we engaged with the judiciary to ensure that it was fully sighted on the judgment and our plans for the remedial order.

Finally, given that the Human Rights Act 1998 applies to the whole of the United Kingdom, the order would apply UK-wide. Officials have worked closely with the devolved Administrations during the process.

The order ensures that, in certain limited additional circumstances where our domestic courts find that a judicial act done in good faith has breached an individual’s article 6 rights to a fair trial and led to them spending longer in detention than they should, the courts are able to determine and properly consider whether an award of damages should be made for any such breach.

--- Later in debate ---

[Alex Chalk]

I thank the hon. Member for Hove and my right hon. Friend the Member for Clwyd West (Mr Jones) for their helpful observations, which I will deal with in turn. On the reassurances that were sought about the Government’s adherence to the principle of an independent, impartial judiciary, I am more than happy to give those cast-iron assurances.

Indeed, it was because of specific concerns about the need to uphold the impartiality and independence of the judiciary that we were extremely careful to ensure that, in so far as there was any encroachment on judicial immunity, it was as modest and proportionate as possible. On that basis, the JCHR actually asked us to go further, but we are taking a small C conservative approach in that regard, because we recognise that a key bulwark of our freedoms in a free democratic society is the impartial judiciary which is, in the overwhelming majority of cases, of unimpeachable integrity. Long may that continue.

The steps that we are taking today are modest and proportionate. They are designed simply to ensure that our convention obligations are adhered to. On the points helpfully made by my right hon. Friend, it is absolutely right to say that Professor Ekins has identified an issue in the legislation, but some important countervailing representations can be made. First, in respect of the section 10 power that he refers to, which provides to Ministers the power to ensure that in effect legislation takes effect only in so far as it is in compliance with the convention, it would be odd if that power were to exist in respect of all other legislation but not the Human Rights Act itself.

Secondly, when the Human Rights Act was enacted, its whole purpose was to ensure that the legislative framework that existed in the UK was compatible with the convention. That is why it creates powers for making declarations of incompatibility and so on. Again, it would be curious if the very vehicle that is intended to ensure compatibility is itself a roadblock to compatibility. That cannot be right and cannot have been the intention of Parliament in 1998.

The third point that we would pray in aid is that the Joint Committee on Human Rights, which, as the hon. Member for Hove said, considered the matter with care, also reached the conclusion that the Government have the power—the vires, to use the jargon—to amend the Human Rights Act in this way. Overall, the steps that we are taking are modest, proportionate and calibrated. This House should see its way to making these modest adjustments in the way that I have set out.

Question put and agreed to.