Court Closures: Access to Justice

Debate between Alex Chalk and Robert Neill

Thursday 20th June 2019 Commons Chamber

[Robert Neill (Bromley and Chislehurst) (Con)]

It is a pleasure to follow the hon. Member for Enfield, Southgate (Bambos Charalambous), my fellow Justice Committee member, and I congratulate him on securing this debate on a very important topic. I was happy to have been a supporter of his application for the debate, and I am grateful to the Backbench Business Committee for giving us this opportunity.

Access to justice is a fundamental issue. It is not just a transaction issue between the parties to a case; it is fundamental to the running of a civilised society. It ought to be regarded as not just a transactional matter between individuals either, but as something that is the warp and woof of the checks and balances that make our society work. Therefore, the right to have access to justice is a fundamental civic right of every individual and it is important that we aim to produce a system that achieves that without unreasonable obstacles.

Of course, we are obliged to garner public funds with care and make sure they are spent wisely, but it is equally important that the state has an obligation to provide an accessible justice system as part of its duties to protect its citizens. Therefore, we perhaps need to take a step back and look at what we do in relation to courts and other justice issues in the context of that overarching principle.

The issue of court closures has been of real concern to Members in all parts of the House, and for legitimate reasons. I do not say that every court closure is an unreasonable step, and I do not say that every court that was in existence when I started at the Bar is viable now. I appeared in some pretty unsatisfactory old magistrates courts and county courts up and down the country, where there was no means of separating witnesses from defendants for example. In some cases there might have been victims of crime present, and the facilities for having a conference with a client in any sort of confidentiality were non-existent. I actually had a conference in a lavatory once in an old magistrates court in East Anglia because there was nowhere else where we could not be heard by either the prosecutor or prosecution witnesses. It was pouring with rain outside so that seemed to be the easiest way to do it—I did not charge any extra, not even a penny. Courts like that should not be in use.

So there are good examples of where it was right to have got rid of old and inappropriate stock, because people who go to court as witnesses and as parties to civil proceedings are entitled to a basic level of service. Therefore, some rationalisation is legitimate and sensible but it must be balanced against the need for proper accessibility and to maintain, particularly in criminal, but also in family and civil, proceedings, a sense of local justice. I will return to that.

The courts rationalisation programme is often seen as part of a broader programme of court modernisation and rationalisation. As I have said, I do not have a problem with the overall thrust of that programme, which was endorsed by the Lord Chancellor, the Lord Chief Justice and the Senior President of Tribunals. It is based upon sound principles. It stems from two significant reports by distinguished judges: Lord Briggs’s report into civil procedure, and the report of Lord Justice Leveson—Sir Brian Leveson—in relation to criminal procedure. May I say in passing that both of those judges have given very great service to our judiciary? Lord Briggs later went to the Supreme Court and Sir Brian Leveson retires tomorrow as president of the Queen’s Bench Division. I pay tribute to the work he did; he has been one of the exceptional criminal jurists and criminal judges and practitioners of our generation, and the country as a whole owes Sir Brian a very great debt for his public service.

So these were well-founded principles and they had good judicial input into their design. The problem is that, as many witnesses have told the Justice Committee in the course of inquiries into the programme and related topics, there is concern that the outworking of that programme places more emphasis than it should on costs and savings rather than on improving services for parties to the hearing and the court user.

The chairman of the Magistrates Association, Mr John Bache, gave evidence to our Committee only a few weeks ago to the effect that, of course, there is always a balance to be struck—we want both fairness and efficiency in a justice system; nobody wants only one or the other. However, he and his members are concerned that in some cases at present the balance tips too far towards efficiency at the cost of fairness, and that cannot be the right way around.

[Alex Chalk]

My hon. Friend is making an excellent speech. In the course of this debate we have talked about convenience for defendants and witnesses, but ought we not also to consider convenience for magistrates? Magistrates give of their time to help in the community and perform an invaluable role, but if they have to travel huge distances that will inevitably provide a disincentive. The Government should be very alive to that in making these changes.

[Robert Neill]

My hon. Friend is absolutely right, and as he will know the Committee, of which he was for a time a distinguished member and for whose work I am very grateful, recently published a report into the magistracy that deals with a number of challenges facing the magistracy. It is convenient that I refer to this point, given that 90-odd% of criminal cases are dealt with by magistrates, who, as he says, are unpaid—they are volunteers; they are the bedrock of the criminal justice system. The point of a magistrates system is that they are lay people—mini juries, in effect—delivering local justice. Defendants are thereby judged by one’s peers, not only in the sense of one’s status in society, but in the sense that they come broadly from the community from which they themselves come.

That has always been fundamental to our system in criminal work. The difficulty has been the number of pressures on the recruitment of magistrates, and one, which was identified to us by the Magistrates Association and other witnesses, is the effect of court closures. Where they become as drastic as they have in some cases, they act as a disincentive to magistrates to continue on the bench, as travel times are much longer than they were. They can also skewer recruitment patterns for new magistrates. A number of studies indicate that the drop-out rate for magistrates in rural areas, where courts often sit only in the county town, is more marked and that there is a tendency in areas where the court has moved to an urban centre for magistrates to be recruited predominantly from the surrounding town areas rather than the rural areas.

Imprisonment for Public Protection

Debate between Alex Chalk and Robert Neill

Tuesday 11th June 2019 Westminster Hall

[Robert Neill (Bromley and Chislehurst) (Con)]

As always, Sir Edward, it is a pleasure to see you in the Chair. I congratulate the hon. Member for Slough (Mr Dhesi) on securing an important debate on an important subject.

I am delighted to see the Minister in his place. He has had a long and distinguished career at the criminal Bar, so he will know, as well as any of us who have seen this type of sentencing in practice, that this is an unconscionable situation, which is the result of a policy in the past that was well intended but, frankly, an error. That error was corrected, but not corrected retrospectively, hence the decision reached by the High Court and the Supreme Court that they could not interfere with sentences that, at the time they were issued, had been lawfully given, as the then Lord Chief Justice, Lord Thomas, said. However, that does not remove the political and moral conundrum that faces us.

The right hon. Member for Delyn (David Hanson), a fellow member of the Select Committee, very fairly points out, as we accept in our Select Committee report, “Prison population 2022”, that there will indeed be a number—perhaps a significant number, but I suspect not a majority—of IPP prisoners who are unlikely to be safe to be released in any significant period of time and perhaps never. I suspect they are a minority, but there will be some. Nobody has an issue with that, but certainty is important for them and for the victims of their grave crimes, so that they know that that will be the case.

[Alex Chalk]

In those circumstances, the defendants probably ought not to have been sentenced to an IPP in the first place, but to a life sentence. If that is the case, the correct thing is to put that right rather than continue with the fiction that they are on an IPP with a tariff that they have long since superseded.

[Robert Neill]

My hon. Friend is absolutely right. His experience at the criminal Bar leads him to the same conclusion as mine leads me to. Given that the situation is unacceptable for the reasons that have been highlighted by the right hon. Member for Delyn, and highlighted in detail by my hon. Friend the Member for Banbury (Victoria Prentis), my fellow Select Committee member, it is unacceptable that we should leave a situation in which some people are in limbo.

One such case was illustrated in our Select Committee report in evidence from the sister of an IPP prisoner who died after a self-harm incident in prison. That individual

“often found himself in prisons that did not offer the specific type of rehabilitation he needed with no support or guidance on how to move to a prison that offered them. If there ever was a ray of hope with regards to this it was often lost owing to the lack of feedback on progress, the resource being changed or even closed down.”

That leads me to conclude, first, that we need to ensure that the prison regime offers proper rehabilitative and therapeutic offender management courses to those in a position to benefit from them. That requires a steady and stable regime within the prisons, which is not yet always the case in many institutions. Secondly, it implies a greater degree of monitoring of the specific needs of IPP prisoners to make sure that they are moved to establishments where courses are available. Thirdly, it means moving away from the current practice whereby IPP prisoners are very often not allowed to seek transfer to open institutions, which gives the Parole Board the difficulty of not having been able to test their behaviour and therefore the risk of reoffending in open conditions. The board has to take the difficult risk, in public perception terms, of either keeping those prisoners locked up perhaps needlessly or releasing them immediately without their having experienced open conditions. All that needs to be addressed.

The Parole Board gave evidence to us that certain mechanisms currently available to it could be made more use of. I urge the Minister to speak urgently to the chair of the Parole Board about speeding up, for example, the ability to prevent needless recall for technical reasons by, as has been pointed out, suspending the period of supervision after four years of good behaviour on licence—a specific and sensible proposal—and removing the cancellation of the licence after 10 years on licence. In many cases, that would be significantly more than the minimum term that they were sentenced to by quite a multiple. Those are sensible things that could be done.

Also, we have to grasp the nettle that, as Lord Thomas of Cwmgiedd rightly said, Parliament needs to grasp. We must either make resources available so that proper rehabilitation can take place or change the test for release. That would certainly need to be consulted upon, but it is something we need to set out because it has been very highly set at the moment. And/or we could change the statutory provision, as my hon. Friend the Member for Cheltenham (Alex Chalk) said, so that people can be re-sentenced under the current sentencing practice and procedures to a determinate sentence. In the worst cases, that will no doubt be life, or sometimes significant and at other times less significant determinate sentences, but the IPP prisoners, their families and the victims of the offenders will know precisely what the regime is and what the rules are that relate to the release.

That ought not to be too difficult to achieve. I cannot think for one moment that there would be opposition to that in any quarter of this House, were the Government to seek to find a legislative opportunity to introduce that. I earnestly urge my hon. and learned Friend the Minister—I know he is a reformer at heart and recognises the need to move these matters on—to make the case as strongly as he can within Government to find the time to take the fairly modest steps that would rectify an injustice that is a needless blot upon our system.

Disclosure of Youth Criminal Records

Debate between Alex Chalk and Robert Neill

Thursday 28th March 2019 Westminster Hall

[Robert Neill]

I entirely agree with my right hon. Friend; that is precisely the problem. The disclosure system is an immensely blunt instrument and forgets that, as well as being a punishment, any sensible criminal justice system must encourage reform and rehabilitation. Whatever the no doubt good intentions behind it, the way the system operates is counterproductive in that regard.

[Alex Chalk (Cheltenham) (Con)]

For people who perhaps did not have the most advantaged background, let us suppose there is a fight in a school playground that leads to the police being called. That might lead to a conviction for actual bodily harm that is non-filterable. Yet, if they had been born in more affluent circumstances, I am quite sure the police would never have been called and that person would never have gone on to have their life blighted in the same way. Does my hon. Friend agree that we must ensure that this fact is not an impediment to social mobility?

[Robert Neill]

My hon. Friend makes a characteristically significant and thoughtful point. I can think of instances both from my constituency casebook and from childhood friends of mine who got into exactly that situation. That is not what the system was intended for. He is right that it is without doubt discriminatory in a number of regards.

--- Later in debate ---

[Robert Neill]

We talked about extending the initiative to all public sector vacancies, and I can see the logic of making this a condition of public procurement more generally. It is an interesting point that the right hon. Lady fairly raises. Like her, I would be interested to hear the Minister’s response. These levers are within the Government’s gift and there would be no requirement for primary legislation or anything of that kind.

Against that background, we were disappointed in the Government’s response. It was not entirely negative, but it did seem to us to lack a degree of urgency. It cited the litigation on criminal records that was ongoing at that time in the Supreme Court as a reason not to go into too much detail on most of our important recommendations. There was almost a predictive text response of, “It would not be appropriate to consider these matters until there has been an authoritative judgment from the Supreme Court.” That has now changed, as I will come to.

I recognise and welcome the positives in the Government response. The Government accepted parts of the report, in particular the commitment to improving information and guidance and exploring options for promoting Ban the Box—one of those has been suggested by the right hon. Member for Dwyfor Meirionnydd (Liz Saville Roberts)—and there is willingness to work with the insurance industry to ensure that it operates more fairly in relation to spent convictions. I say to the Minister that that is all good, but we need more.

A concern for us was how policy is difficult to drive forward because it sits uneasily between the Ministry of Justice and the Home Office. That is a classic case of a desirable change falling through the gap between two Departments. If we are committed to more cross-governmental working, more could and should be done.

[Alex Chalk]

My hon. Friend is making a powerful speech, and I pay tribute to his leadership of the Select Committee. He has not touched so much on the conclusions in the report about people aged between 18 and 25. The report said that consideration should be given to extending the filtering to young people. My view is that that is a bridge too far and we should focus purely on under-18s, but does he want to say anything about whether he thinks we should look at a filtering system for young people in that category?

[Robert Neill]

As my hon. Friend will remember from his time on the Committee, that is linked to earlier work in relation to young adults in the criminal justice system. I made the point earlier that we now know from overwhelming evidence that maturity and desistance from crime tend to kick in, particularly among young males, at age 25 or so. That is where that suggestion comes from. I agree. Rome was not built in a day, and we have to operate the system in a way that maintains public confidence and the confidence of employers where there are legitimate grounds for caution. Let us be honest: sometimes there are, and there always will be. We put the point in the report as part of the broader context. I hope that when, in due course, we get time to debate important issues of domestic legislation, rather than having the groundhog approach that we seem to have on other matters at the moment, perhaps that more holistic approach to young offenders will be appropriate, but it is not a reason to hold back the specific recommendations that we make about younger people, which we suggest should be moved urgently.

The Supreme Court judgment was cited as a reason for the Government not wishing to commit themselves. I understand that, but the Supreme Court has given its judgment, so the Government can move forward with a clear conscience. That judgment was of course in the joined cases of P, G and W and Lorraine Gallagher, who, being overage, could be named in that context. All the cases challenged various aspects of the filtering regime and dealt with a number of the issues to which we have referred. They all involved people who had been convicted of or reprimanded for relatively minor offending, and the disclosure of their criminal records had created barriers to employment, or there was a reasonable expectation that they would do so in the future.

The Court of Appeal concluded that the multiple conviction rule and the serious offence rule, without a mechanism for refinement, were not

“in accordance with the law”

as required by paragraph 2 of article 8 of the European convention on human rights, which protects the right to respect for private life, as they did not allow proportionality to be considered in any particular case. It is that bluntness and lack of proportionality that we think now need to be addressed urgently.

The Government, to our regret, appealed against that decision rather than acting on the Court of Appeal suggestions. They lost in the Supreme Court on the principal matters. The legal approach was somewhat different. They succeeded in one appeal but, broadly, the Supreme Court agreed that there should be a declaration of incompatibility under the Human Rights Act 1998 against the multiple convictions rule. We call upon the Government to deal with that declaration of incompatibility and reform the law accordingly to bring it into accordance with our convention obligations and, frankly, the requirements of the 1998 Act.

Similarly, the mandatory disclosure of childhood reprimands was upheld in the Supreme Court, but on different grounds. Lord Sumption, who gave the Supreme Court’s lead judgment, looked at the second part of the test for lawfulness under article 8(2) of the convention, on whether the measure is

“necessary in a democratic society”.

In other words, he looked at whether the measure is proportionate. It failed that test.

Lord Sumption found that the legislation involving strict, predefined categories could in principle be proportionate, and that most of these could pass the test. However, he went on to decide that two features of the regime were disproportionate: the blunt instrument effect of the multiple conviction rule, and allowing the disclosure of reprimands for serious offences when they were given to children. Those are two specific areas where it seems to us that there is no excuse at all for the Government not acting to fall into line with the judgment of the Court. We believe there is good reason for them going beyond that, too.

Since then, we have been in correspondence with the Government, drawing attention to these facts and the incompatibility, as we see it, of the Government’s current stance with the Supreme Court judgment. We urge the Government to deal with our outstanding recommendations and, in particular, to set out what steps are being taken to ensure that the DBS suspends the unlawful elements of the current regime without delay. We seek from the Government—perhaps the Minister can help us today—an update on how they now intend to address those elements of the regime to ensure that it fits the legal proportionality test in a meaningful and workable way.

The debate comes against that background. The Secretary of State replied, as always, in courteous terms, but mentioning the need to balance giving employers necessary information, which I concede, with respect to the individual’s right to private life. The Government said they will consider the Committee’s recommendations, but need to fully consider the implications of any change. They said that they are not able to respond formally at this time. When will they be able to respond formally? Lives are being damaged at the present time by this needless failure to comply.

That is why we are pressing for urgent action. The Government can deal with this very easily, it seems to us. They can use section 10 of the Human Rights Act to present to Parliament a remedial order to amend those parts of the disclosure regime that are incompatible with article 8 according to the Court’s judgments. Remedial orders to amend legislation and remove any incompatibilities can be statutory instruments. That does not, therefore, involve primary legislation and the time that that would involve. There is precedent for statutory instruments having been used on a number of occasions.

If the Government do not take that step, they cannot really expect anything other than further legal challenge, and I do not want to see the Government putting themselves in that position. I hope they will take those remedial orders to bring our law into compliance, and that they use the opportunity to make an urgent and comprehensive review of the whole regime, particularly the impacts on those who offend as young children or young adults. That is long-overdue for all the reasons that a number of right hon. and hon. Members gave in interventions. I hope that sets the scene and enables colleagues to participate and raise their points, which may even shorten things as the debate goes along.

Courts and Tribunals (Judiciary and Functions of Staff) Bill [Lords]

Debate between Alex Chalk and Robert Neill

2nd reading: House of Commons
Tuesday 27th November 2018 Commons Chamber

[Robert Neill (Bromley and Chislehurst) (Con)]

It is a pleasure to follow the hon. Member for Bolton South East (Yasmin Qureshi) and my right hon. Friend the Lord Chancellor.

In this debate, there is a danger of allowing the ideal to become the enemy of the good and the deliverable. I rather share the regret of the shadow Minister that this is not a larger Bill. I was a great supporter of the Prisons and Courts Bill that was lost prior to the 2017 election, as were all Members on the Treasury Bench today. There were clauses in the Prisons and Courts Bill that I hope will be brought back soon, and the prevention of cross-examination of victims in domestic abuse cases is certainly one of them. It is important not only that that issue be resolved, but that the court-appointed advocates who undertake that work be properly remunerated, and I say that in the context of the ongoing review of legal aid. It will be necessary for those advocates to prepare the cross-examination with particular care, because such cases always require a particular degree of sensitivity.

Removing the ability of the complainant in person to cross-examine is right and proper, but proper means—proportionate with the equality of arms—must be put in place and properly funded to enable the trial to be conducted fairly. I understand the Lord Chancellor’s point that it may not be appropriate to put that in this Bill, but that is not a reason not to bring forward the fully thought through and worked out provisions at the earliest possible opportunity. That is a digression from this worthwhile Bill, which does a number of valuable things, some of which I will mention.

Reference has been made to the debates in the Lords. The Lord Chancellor was right to say that proceedings in the Lords were conducted in a particularly constructive and co-operative spirit. Maybe that was because of the very high percentage of lawyers participating in the debates in the other place. It was a civilised and careful consideration of the Bill, in which I think there was—with respect to the Opposition Front Bench—rather less attempt to politicise some of these provisions than we have heard this afternoon. Many of the measures in the Bill are important and technical reforms that require a statutory basis, and should be welcomed.

I noticed the discussion of changes to judicial titles during the debates in the other place. If I have a slight regret about this Bill, it is one that I share with the noble Lord Mackay of Clashfern about the abolition of the title of justices’ clerk. I can understand why that is proposed, but having practised in the criminal courts for 30-odd years, I have a certain affection for the title, as did Lord Mackay. But that change goes with this Bill, so maybe it is a price that has to be paid for modernity. Perhaps I am being uncharacteristically reactionary in regretting the disappearance of the title of stipendiary magistrate as well. I always thought that “Mr St John Harmsworth, stipendiary magistrate at Marlborough Street” had a greater ring to it than “Mr St John Harmsworth, district judge (magistrates courts)” might ever have done, but I suppose the change did give a certain degree of standardisation.

We have been talking about appropriate levels of qualification. There was a time when justices’ clerks did not have to be legally qualified. I do not say that was a good thing. I remember appearing quite often, as a very young barrister, at Billericay magistrates court in Essex in front of the last non-legally qualified justices’ clerk in the country. He had some sort of grandfathered rights that went back to a time when one could do 10 years as a justices’ clerk and that was regarded as giving one the qualification for appointment. [Interruption.] I see that my hon. Friend the Member for Cheltenham (Alex Chalk) is much shocked by these things. We had to be terribly robust in those days. I remember that I managed to persuade that justices’ clerk to dismiss a case at half time on the basis that a rice flail was not an offensive weapon per se, because it might have had a legitimate use for flailing rice. Whether that was going to happen on Basildon high street, I am not sure.

We have moved on, and the justices’ clerks are much more professional now, and much more fully integrated, so despite my regret about the loss of the title, the new one does reflect more adequately the role that they now have as legal advisers to a very important part of our system—the lay judiciary. In fact, the Justice Committee heard evidence from representatives of the Magistrates Association today regarding the updating of our previous report on the magistracy. They can play a critical role in this. I think that they broadly welcome the attempts at modernisation of practice and procedure that this Bill will assist.

[Alex Chalk]

Like the Chairman of the Justice Committee, I welcome these measures to modernise the process. However, this should not be allowed to distract from what remains a fundamental problem, which is that there are not enough people coming into the judiciary. We need to ensure that they are properly incentivised to do so and rewarded for doing so, because the backlog of cases in the Court of Appeal and elsewhere will not be resolved by these measures alone. Does he agree?

[Robert Neill]

I totally agree. These are useful, practical measures on their own, but they are by no means a solution to the problem. In fact, they are but a very small part of the solution.

I am a bit concerned by some of the Law Society’s suggestions in briefings that some of the broader programme of courts reform is posited on making savings in judicial posts and appointments of about £37.5 million. I hope that the Lord Chancellor—or the Under-Secretary of State for Justice, my hon. and learned Friend the Member for South East Cambridgeshire (Lucy Frazer), when she responds to the debate—will be able to set our minds at rest on that. We can make savings by using staff qualified at the appropriate level in what one might term purely interlocutory or procedural matters, but all the decisions on issues of substance in any case—whatever the sum involved or whatever the nature of the charge, in a criminal case—have impacts on the individuals concerned, and they should, in my judgment, be taken only by properly qualified lawyers in an open court process. That is important.

We cannot allow the valuable nature of this Bill to take away from the fact that we need an injection of resource into the criminal justice system. We are seeing a shortfall in appointments to the High Court bench on a regular basis. A number of hon. Members have talked about the integrity of our justice system and the importance of its legal standing, and the quality of the judiciary is key to that. We also see difficulties in making sufficient appointments—full time, at any rate—to the circuit bench. It is easier with recorders, I grant, because they are able to sit part time, but there is a real issue there.

There is also a real issue, as my hon. Friend the Member for Cheltenham knows, about morale. I think that the Lord Chancellor and the Under-Secretary of State understand that and take it on board. I do not expect them to be able to wave a magic wand and solve everything overnight, but it is important to stress these things. Technical changes are useful as far as they go, but they cannot underpin what is essentially a people-based system.

Leaving the EU: Legal Services

Debate between Alex Chalk and Robert Neill

Wednesday 21st November 2018 Westminster Hall

[Robert Neill]

That is entirely right. Some of the worst examples, before we developed the mutual enforceability of judgments, related to child abduction. In cases involving non-EU states, in which we are a third country, the parent here—frequently the mother—was at a significant legal disadvantage and did not have the protections that we have under the current arrangements, particularly the recast Brussels arrangements. I am glad that my hon. Friend has raised that issue.

I want to make two other points very briefly. First, I support my hon. Friend’s point about English law. Those of us who have practised know that, because of the reputation of our system, it is almost the norm to find English law clauses in international contracts. We want that to continue, but it is concerning that the Bar Council and the Law Society have been reporting evidence—so far anecdotal, but strong—that the uncertainty and the risk of a crash-out arrangement without contractual continuity is leading some firms to advise their clients to have clauses excluding English law from contracts. It would be extremely troubling if that were to persist. The longer the uncertainty, the greater the risk.

Simmons & Simmons, a leading law firm, conducted a survey of clients in Germany, France, Italy, Spain and the Netherlands to look at what the courts in those countries might adopt if we were a third country and could not rely on the current arrangements. It reported that 88% of clients—people abroad buying British services—thought that the Government needed to make an early public statement to remove uncertainty, and 50% said that, without that, they would be inclined to move away from choosing English law or jurisdiction clauses. The situation is urgent, so I will back the withdrawal agreement because it will get us into a transitional arrangement, which will give continuity for that period. More importantly, contracts will run beyond the date on which we leave, and significant commercial litigation will almost certainly take more than two years to work its way through. I hope that those issues will also be taken on board.

Will the Minister consider a couple of suggestions by the City of London Corporation and TheCityUK, to which I am grateful, about failsafe devices—I do not like to use the word “backstop”, because it has certain controversial associations—that we could have in parallel with seeking to get the withdrawal agreement through and get into the transition period? It has been suggested that it would be reasonable to look at a means of copying the text of the Rome I and Rome II regulations into our own private international law. Those regulations, of course, determine the applicable law for contractual obligations. As well as seeking the transition, many lawyers think it would be advisable to copy those texts—in parallel, I suggest, as a belt and braces operation—which are much superior to anything that went before, into our law. It is also important that we consider re-signing The Hague convention as an independent party. That would be a failsafe, not my preferred objective, but we need to have those eventualities in mind. That would assist with certainty.

In her Mansion House speech, the Prime Minister talked about the Lugano convention. I think that most people would concede that Lugano, in its original form, is nothing like as good or effective as Brussels I and II in their recast form. They are the gold standard that my hon. Friend the Member for Huntingdon referred to. Will the Minister take away the idea that, to get us anything like as good as we have under Brussels, any Lugano would have to be a Lugano plus plus plus?

[Alex Chalk (Cheltenham) (Con)]

I am grateful to my hon. Friend, the Chair of the Select Committee on Justice, for giving way. The comments made in this debate bear a striking similarity to those made in the debate that followed the production of the Committee’s report. That just goes to stress the urgency of the situation. Law firms cannot wait forever to get a degree of certainty; the time for action is fast running out. Does he share my concerns about that?

[Robert Neill]

I agree that there is a danger of us becoming a legal version of groundhog day in these debates. I know that the Minister is absolutely committed to achieving continuity, but there is a real sense of frustration among practitioners because, although there are warm words, promises and statements of intent, and a Brexit law committee in which practitioners are involved is being set up, none the less, despite those strong wishes, the detail on future arrangements remains extremely scarce. If the Prime Minister succeeds in moving us on to the next stage, as I hope she does, it is absolutely critical that that detail is fleshed out at the earliest stage. I hope that we will take the opportunity of strengthening the political declaration that comes as part of the package with the withdrawal agreement, as the Prime Minister said today, so that it makes more reference to legal services in particular.

Future of Legal Aid

Debate between Alex Chalk and Robert Neill

Thursday 1st November 2018 Westminster Hall

[Robert Neill (Bromley and Chislehurst) (Con)]

It is a pleasure to serve under your chairmanship, Sir Henry. I start by referring to my declaration in the Register of Members’ Financial Interests. I thank the hon. Member for Hammersmith (Andy Slaughter) for securing this debate on a very important topic.

I make no bones about approaching this debate with a rather personal stake. Before I came to this place, the whole of my working life had been as a barrister practising in the criminal courts, almost invariably publicly funded by legal aid to defend or by the Crown Prosecution Service or the Serious Fraud Office to prosecute. I hope I can recognise that this is not merely an academic matter. These things affect the lives of every one of our constituents and every Member of this House, regardless of party. I hope I will be able to approach the debate in that spirit.

It is a long history that we have to review. LASPO is just one step in the changes to legal aid that we have seen over the years. The hon. Member for Huddersfield (Mr Sheerman) referred to the famous quote by Mr Justice Mathew, later Lord Justice Mathew. At the turn of the 20th century, he said that the courts of England are open to all like the Ritz hotel. I am sure the hon. Gentleman was not actually there at the time—I was not either—but it has become a stock phrase. The point, however, is that Mr Justice Mathew was being ironic; for those who did not have means, there was precious little access to the courts of England at that time.

After that period, we developed a system of legal aid over a number of years. I accept that I was to some degree a beneficiary of that system, but the system was necessary to ensure that justice was done. Thereafter, it may be argued—I think it was part of the rationale behind LASPO—that in some areas, the system did not work as efficiently as it might. I can think of rolled-up conspiracy trials that went on for about six months, where two barristers for each defendant would ask about one question a week. Frankly, that was not an expenditure that could be justified, and it was not targeting things in the right way.

The problem is that successive Governments seeking to reform—it is worth remembering that changes to legal aid did not begin with LASPO or the coalition Government; they were set in train initially, in some measure, during the Blair and Brown Governments—have run the risk of throwing out the baby with the bathwater. In cutting down on some instances of needless expenditure that went beyond what was necessary to ensure justice, there is always a risk that the pendulum will go too far the other way. Having looked at the matter and tried as a lawyer to look at the evidence, I am sorry to say that I am driven to the conclusion that that is what has happened here.

The good news is that there is an opportunity to review things. It is a shame that it has taken so long, but we would all say, “Better late than never.” I know that the Minister is absolutely committed to ensuring proper, good-quality access for all who genuinely need it. I know her personal commitment to the Bar, the rule of law and our legal system and her personal experience of it, so I know she will approach this matter in the open-minded way she did when she was in practice herself. I urge her to look at the evidence. As the hon. Member for Hammersmith said, the evidence is pretty compelling that changes are needed. I do not expect her to say what those changes are going to be today, but I hope she will take away the message that the evidence does not purely come from pressure groups of self-interested lawyers. Nothing could be further from the case.

[Alex Chalk (Cheltenham) (Con)]

My hon. Friend is making an excellent point. Does he agree that our international reputation is at stake? The legal sector is one of the most important in our economy. If we want to continue to be a country that has a global reputation, generating revenues for our economy in respect of international law, we need to ensure that we hold up equality of access to justice for all as a touchstone of our liberty.

[Robert Neill]

My hon. Friend is absolutely right. He speaks with great experience from his time in practice in serious criminal matters and from his work on the Justice Committee, to which I pay warm tribute. We cannot disaggregate the justice system. As part of our post-Brexit strategy and our “Britain is GREAT” campaign, the Minister’s Department is rightly proclaiming the value of our legal system and legal services, which is real and profound. Their integrity depends on the whole system being properly resourced and funded. It is no good simply to say that we have the best means of commercial dispute resolution and arbitration in the world. It is not enough to say we have probably the best system of civil justice across the piece in the world. It is equally important that we can say the same about our criminal justice system, our family law system and our tribunals system. They are increasingly relevant and important to the whole system.

[Robert Neill]

With his experience, the hon. Gentleman makes an entirely valid point. The Justice Committee has looked at a number of those areas over the past two or three years or so, and we have looked at aspects of access to justice in all its forms. It is partly about legal aid, but there are other matters, too. I will concentrate on legal aid because that is the subject of the debate, but his point about other matters is entirely fairly and well made.

There is a clear case that in attempting to right what was perhaps extravagance in some limited areas, we may have inadvertently done injustice to potential claimants. We need to put that right. The first area that I would suggest to the Minister is important is funding advice, as has already been observed. The legal aid change was predicated—I was there at the time, as was the hon. Member for Hammersmith, and I was prepared to take this on face value—on the idea that it would be a good thing to move away from the comparatively adversarial approach to family cases to mediation and something much more collaborative. That has to be the right thing. The Minister’s Department is recognising that in another sense with the sensible proposals to reform the divorce laws to move away from a confrontational approach. The irony is that so far as legal advice and representation are concerned, those good intentions have not been followed through.

As has rightly been observed, early access to legal advice and a solicitor would point people in the direction of mediation. We can invest significant money in having much more public education so that people can assist themselves, but it may be just as cost-effective—I suspect it would be more cost-effective—to restore some measure of early advice in those family cases. Any good solicitor worth their salt will rightly advise their clients to adopt that course of mediation if it fits the circumstances of the case. Restoring the position there would be a sensible investment to save.

[Alex Chalk]

Does my hon. Friend agree that sometimes the best advice that a lawyer can give at an early stage is, “For goodness’ sake, don’t litigate”? If that good advice is given at an early stage, we can have a reasonable expectation that the courts will be properly allocated to deal with those disputes that they should be dealing with.

[Robert Neill]

Again, my hon. Friend is absolutely right. What he says applies not only to family work, but to any form of civil litigation and, in truth, to criminal work, too. When I defended people, I regarded it as my first and principal duty to give them an honest assessment of their prospects of successfully defending a charge.

--- Later in debate ---

[Robert Neill]

I take the hon. Gentleman’s point, and I agree that there was nothing malign in the intent. The changes were made at a time when the coalition Government were under considerable financial pressure because of the situation that we inherited. I have much sympathy with that, but to adopt the phrase of John Maynard Keynes, “When the facts change I change my opinion—what do you do, sir?” The Government need to do that too, because the evidence has been built up, and it is powerful.

For a number of reasons, it was thought necessary to introduce the LASPO reforms at some speed. They were probably not fully worked through, there was no chance to do sufficient impact assessments, and they were not tested. Again, it was not for a malign reason. At the time, there was a compelling budget imperative to get on with it, but it created unintended consequences. As the Prime Minister has observed, we are getting to a stage where, thanks to the Government’s good economic stewardship, we might be able to loosen the purse strings a little in some areas. That gives us the chance to adopt that Keynesian approach and adjust our conclusions to the fresh evidence that has come before us.

Early advice is essential. We have talked about family work and its importance in the criminal system. Any lawyer will advise his client, if the evidence against him or her is overwhelming, of the advantageous discount in sentence for an early plea. Proper advice by specialist lawyers saves time and money, and saves witnesses in criminal cases from the trauma of having to go to court. We should not forget that either, as it is an important part of the system.

Early advice is also important in cases of housing and debt, and related matters. People have come to my surgery, in a comparatively prosperous part of suburban London, having been in effect served with an eviction notice because they did not understand the court papers. Bailiffs were literally coming to the door. We cannot expect people who often have multiple problems in their lives necessarily to be able to resolve such things on their own.

We can certainly make the civil justice system easier to navigate. The reforms to an online court, for example, and better means of entering pleadings and dealing with smaller-sized claims are all perfectly worthy and worth while. However, ultimately, even if a computer can process the pleadings efficiently and effectively, it cannot advise someone on whether there is merit in their claim, whether they have a defence to an action brought against them or how they might best compromise the matter so that they do not, for example, end up on the street or saddled with significant debt. All those things require the legal element, and I suggest that there would be a saving in reinstating some funding there.

I keep in touch with many friends and colleagues at the Bar who now sit on the bench. I sometimes reflect that my career took a wrong turn somewhere along the line. The truth is that anyone in the judiciary—whether from the High Court or, perhaps even more significantly, down to circuit judges and district judges, who shoulder the vast volume of the work, as well as magistrates—will say that the amount of time that is now taken up by litigants in person is placing a serious burden on the system. I go to my local county court and talk to the district judges and the county court judge. Exactly the same thing can be seen at the magistrates court, and I have no doubt that it is replicated across the country.

It is generally thought that a litigant in person will take about three times as long to deal with a case than lawyers would, if they were involved. The upshot is that we are saving cost at one end of the system but piling it on in another part. The net benefit to the public purse is nil—perhaps even negative.

[Alex Chalk]

My hon. Friend has been so generous. Does he agree that one of the pillars of our world-renowned legal system is the integrity, skill and impartiality of our judges? It is no secret that they feel quite put upon at the moment, not least on pensions and other matters. Their time is being taken up with extremely complex issues where it is harder for them to achieve justice. Does he not agree that we should take that extremely seriously, so that we continue to have a pipeline of the brightest and the best?

[Robert Neill]

That is right. We could probably have a debate on judicial recruitment and retention.

[Alex Chalk]

Put in for it.

[Robert Neill]

Perhaps we should, and perhaps I will encourage my hon. Friend to join me in doing so.

Litigants in person are a real pressure on the totality of the court system, because if courts are being clogged up by cases that are being slowly presented—where the judge has to hold the litigant by the hand to take them through steadily and ensure that there is no miscarriage of justice—that uses up the time of the court building and the court ushers. It puts pressure upon listing, and means delays in other cases coming on. There are more likely to be adjournments because people will not have prepared the bundles properly or got their evidence together. That is all wasted cost in the system, which some early investment would save.

Those are key areas where more could be done. We perhaps need to look, too, at some areas in relation to tribunals—an increasingly important area of jurisdiction. Not all tribunal cases, of course, need legal representation, but they increasingly deal with more complex matters and more complex areas of law and of fact where it makes sense, for exactly the same reasons, to have proper legal advice.

Joining those thoughts together, I commend to the House the Justice Committee’s reports on access to justice, and on courts and tribunal fees. Although fees are separate from the legal aid regime, the unintended consequence of some of those changes was remarkably similar in making access to justice for deserving—that is the key bit—claimants more difficult. Finally, we recently wrote a report on criminal legal aid. I will end on that—it may be the subject on which I have spent most of my life.

We cannot have a situation where it is extremely difficult to get high-quality young lawyers to go into criminal work. The integrity of our system, to which my hon. Friend the Member for Cheltenham (Alex Chalk) referred, is seen most visibly in the way in which we deal with criminal cases. If the state, no doubt for good reasons, thinks it necessary to bring charges against an individual to be tested in our courts, it is only right and proper that that individual, having had the resource and power of the state brought against them, has as a matter of equality of arms and basic fairness the ability to defend themselves. To do that properly, they must be able to access lawyers who are as good, as well trained, and as competent as those who prosecute.

To do that, we have to be prepared to remunerate people. We cannot have a situation where criminal barristers are worse off, as they are under some aspects of the advocates’ graduated fee scheme at the moment, if they take on a complex and demanding case—for example, a multi-handed rape—as opposed to a single-handed offence of the same kind, because the extra work is simply not reflected in the fee. Those are precisely the cases— I did many of them myself—where experienced and sensitive advocates on both sides are critical. We are in danger of damaging the supply chain, as far as that is concerned.

It also cannot be right that the system does not remunerate defence lawyers for looking at the unused material in cases. Some of the main cases where miscarriages of justice have occurred, as you will know, Sir Henry, from your experience in these matters, are where there has been a failure in disclosure. Usually it is, as is often the case here, a result of unintended error. Although I have come across one or two cases where I could not say that that was the case, things genuinely go wrong, and it must be possible, in terms of the fairness of a trial, for the defence lawyers to be able to look through the unused disclosed material to ensure that there is nothing that might be exculpatory to their client.

That is only right and proper, and prosecutions have collapsed in high-profile cases because that was not properly done. People have been saved by the integrity of members of the independent Bar, on both sides, who took the opportunity, even though they were not going to be paid for the hours, to go through the unused material and highlight matters that meant that the prosecution could not safely proceed. It seems only right and just that the solicitors and barristers who were on legal aid on those matters should be paid for doing that, because we want to ensure that it is done properly. Let us face it: as those cases highlighted, the sooner it is done the fewer wasted hearings and adjournments, which have bedevilled some of those high-profile cases, there will be. It is not only the right thing but the common-sense thing to do.

We also need to recognise that early advice from solicitors at the police station is critical in criminal cases. Striking evidence was given to the Justice Committee inquiry that the average age of a police station duty solicitor is 47. Young people are not coming into the role because it is simply not remunerated well enough.

That all leads me to the conclusion that Lord Kerr got it right in his Supreme Court judgment on the Unison case. His view, to which I am driven by the evidence, was that regrettably, however good the intentions, the current arrangements under LASPO have adopted too transactional an approach to justice. He said that litigation is not merely a private transaction between parties; it also involves a greater public good. In that case, which was about employment tribunals, it involved the exposure of bad working practices and improvements that might stem from it, but the principle applies to any type of litigation. There is a public good in access to the courts that goes beyond the right—itself important—of the parties themselves to have access to justice. It is a bigger thing—a point that takes us back to our commitment to the rule of law, which my hon. Friend the Member for Cheltenham referred to.

I therefore urge a Keynesian approach on the Minister. Keynes was not always wrong, and he was certainly right about this. If we believe in following the evidence, as we all do in any legal process, and if the evidence indicates that things have gone too far the other way and we have the chance to change them, there is no shame in admitting that. It would be honest politics, good government and entirely consistent with the spirit that the Minister and her ministerial colleagues seek to bring to our approach. Where we can put things right, it is better to accept the position, act on the evidence and ensure that we have a better basis for legal funding and access to justice.

Criminal Legal Aid

Debate between Alex Chalk and Robert Neill

Tuesday 8th May 2018 Commons Chamber

[Alex Chalk (Cheltenham) (Con)]

When it comes to the opposition to the changes to the graduated fee scheme, the Government are entitled to feel a little perplexed because the changes were discussed with the leadership of the Bar. Francis Fitzgibbon, QC, then chair of the CBA, said that

“the CBA believes that the new scheme is a great improvement on what has gone before, and we should at least give it a cautious welcome as a step in the right direction.”

Secondly, the aim of the changes, to rebalance public funding so it rewards the junior Bar more fairly, is unassailable. On that point, I will support the Government tonight.

It would be a great mistake to misread the message coming from the Bar, because my clear sense is that its protest is not really about the intricacies of these specific provisions. Instead, it reflects years of pent-up anguish and frustration about the state of the criminal defence profession and, indeed, a profound sense of foreboding for its future.

The Bar is in a fragile state and needs decisive support, but it does not lie in the mouth of the Labour Opposition to make criticisms about on that, because I know full well from having been a practitioner at the time that, at a time of rising budgets across the piece in health and education during the late 1990s and in the first decade of the 21st century, Labour failed time after time to put more money into the Bar. In 2003, Tony Blair spoke of the “gravy train” of legal aid. In 2006, Lord Falconer referred to the legal aid bill as being “unsustainable”, and there were further plans to cut it in 2010. One has to consider those remarks with great care.

I wish to make some brief observations in the time available; I wanted to say a lot more but I shall confine myself to this. When considering the amount we spend on justice and legal aid, we should put it in context. Treasury Red Book figures show that total public sector spending for 2018-19 is expected to be £809 billion. The total Ministry of Justice budget is less than £7 billion. To put that in context, more is spent on welfare and pensions in two weeks than is spent on justice, and the amount spent on international aid—about £14 billion—is approximately double the entire justice budget. To put it another way, we spend more on the aid effort in Syria alone than we do on the entire legal aid budget in our country.

There are concerns about where this all heads. There will be difficulties with recruitment and retention, and we cannot have a situation where this is a just a job for posh kids with a private income. There is also a risk of injustice. If people are not available to do the work we require them to do, it will not just be a case of people being convicted when they should not be; there is a danger of people not being convicted if juries take matters into their own hands and decide that they want to deliver their own brand of justice.

I am not suggesting this is easy at all, but I want to make three simple points. First, if the criminal Bar falls over, the cost to the state will increase dramatically. The overheads involved in employing hundreds of barristers in a fully fledged public defender service will be extortionate and unaffordable. Secondly, the culture will change, and people will be far less likely to work after-hours and at the weekend. Thirdly, the sums of money required to secure the criminal Bar are modest. Barristers are not seeking wealth; they are seeking viability.

[Robert Neill]

My hon. Friend is absolutely right on that last point about the motivation of barristers. Does he agree that one of the important qualities that the independent Bar brings, as indeed does an objective solicitor, is precisely that word—objectivity? The objectivity brought by a barrister has been seen in many cases, for example, those where disclosure failures have occurred, and in the willingness to root out what is absolutely necessary, fearlessly, on behalf of a client. That cannot be replicated.

[Alex Chalk]

That objectivity is vital. In the United States, they have dyed-in-the-wool prosecutors. I remember the case of Michael Jackson, with Tom “Mad Dog” Sneddon; all these people do is prosecute. One great value we have in this country is that people prosecute and defend. That level of objectivity is fantastic. It also means that people are incentivised to go the extra mile, because you are only as good as your last brief.

The criminal Bar is precious. This is not about sentiment. This is a flinty-eyed assessment of a real and pressing need. Once this matter is over tonight—I will vote with the Government, because the Opposition’s proposal is, with respect, misconceived—I urge the Government to look again at how the criminal Bar can be supported, as there is a pressing need.

Leaving the EU: Justice System

Debate between Alex Chalk and Robert Neill

Thursday 29th March 2018 Westminster Hall

[Robert Neill (Bromley and Chislehurst) (Con)]

I beg to move,

That this House has considered the Ninth Report of the Justice Committee, Session 2016-17, implications of Brexit for the justice system, HC 750, and the Government response, HC 651.

It is a pleasure, Ms Buck, to serve under your chairmanship.

I am grateful for the opportunity to raise this very important issue here in Westminster Hall, and I thank all members of the Select Committee on Justice—both past and present, and many of them are here today—for the input that they made to our report, which of course was initially produced in the 2016-17 Session.

We received the Government response to our report on 1 December last year. I am glad to see the Under-Secretary of State for Justice, my hon. and learned Friend the Member for South East Cambridgeshire (Lucy Frazer), in her place today. She has joined the Department since that date, so if I press a little harder on some things than on others, I am sure she will understand that they are not meant in any personal spirit. I think she also understands, from her own experience at the Bar, why there is a great need for more precision and more detail about what is going to happen.

I can perhaps encapsulate the Committee’s concerns following the Government’s response to our report by saying that the response is long on good intentions and on setting out an ambitious vision, but short on specifics and the details of how that ambitious vision will be achieved, and there is a concern that it may not be realistically achievable. The European Parliament’s response earlier this month indicates that it is by no means persuaded that all of the Government’s ambitious ideas for taking this matter forward will be achievable. We need what the Government have set out to be written—or rather painted—in the boldest red ink.

I suspect, given the tenor of the Prime Minister’s Mansion House speech and subsequent events, that we will be pragmatic about some of these issues—indeed, both sides will need to be pragmatic. Because the law depends above all upon certainty, we will have to come to decisions and pragmatic compromises sooner rather than later. My objective in today’s debate is to press the Government further on the need to be more precise and specific about exactly how we will deal with these matters, and also, perhaps, to inject a sense of urgency.

Of course, I ought to refer to my entries in the Register of Members’ Financial Interests, although I do not practice law now. There is concern about the economic position of the English legal services sector post-Brexit. We had a debate about that yesterday in Westminster Hall, and I am grateful to the Minister for her response then. I am sure that we will want to discuss that matter further. I will not dwell on it in detail now, but it indicates how we need to be alert and on our guard if we wish to continue to protect the pre-eminence of our English legal system. It certainly enjoys international pre-eminence at the moment—it is the jurisdiction of choice for international commercial litigation and, of course, is regarded as a gold standard in independence, fairness and integrity. As I say, we have to be on our guard in case, post Brexit, other jurisdictions seek to compete with us—legitimately enough, from their point of view—because international commercial litigation, and particularly the variety of international contracts, is a competitive matter.

I notice that there is now an English language and English commercial law court being opened up in Paris. I must say that those of us who have practised in some of the Crown courts on the south-eastern circuit might have found the idea of a brief to go to Paris quite an attractive proposition by comparison to going, say, to Havering magistrates court. However, this is not an entirely jokey matter, because, as was indicated in the debate yesterday—I will not repeat all of my remarks from then—the English legal services sector is a very significant revenue earner for this country. I should say the British legal services sector, of course, as we should not forget Scotland in this regard. But there is a much broader issue here as well, which is encompassed in our report. A number of my hon. Friends want to talk about some of the specific matters in our report, so I will perhaps sketch over some of the broad outlines.

I have indicated our firm view that we need more detail, more precision and a greater sense of urgency. We must have assurance from the Government that legal issues are being entirely mainstreamed into the work of the Brexit negotiations. The Ministry of Justice has helpfully set up a legal services working group, but this is not just about legal services; it is also about the impact upon the judiciary and the operation of the courts, which, ultimately, are perhaps even more significant.

I know that the senior judiciary are extremely alive to this issue and are doing a lot of work on it themselves. However, I submit that, consistent with maintaining the judiciary’s independence, we need to find a means whereby the judiciary’s practical views and experience are genuinely fed in to those who are negotiating, for example, on our future relationship with the European Court of Justice and on how we deal with retained law, which I will come back to in a moment. I have to say that I am not yet convinced, whatever the good intentions and hard work of the Ministry of Justice, that that is fully feeding in to those who are negotiating for us through the Department for Exiting the European Union and in Brussels. The Government need to address that urgently. It seems to the Committee that we need clarity on those key issues of the position vis-à-vis the ECJ and retained law. There is still real concern about the effectiveness and adequacy of the provisions in clause 6 of the European Union (Withdrawal) Bill.

It is instructive, perhaps, to look at the evidence of the President of the Supreme Court, Baroness Hale of Richmond, given on 21 March, which is only about a week or so ago, to the Constitution Committee of the other place. In essence, the position is that at the moment, clause 6 gives what on the face of it would appear to be wide discretion in how the British courts will apply and have regard to European Community law once we have left. There is a perfectly understandable precedent, of course—it is perfectly well established that British courts will take into account relevant law from other jurisdictions when it is applicable to the facts and law of the case that they are considering.

However, there is a difficulty. There are phrases in the Bill stating, for example, that a tribunal “may have regard” to European Community law—there are those terms, “may” and “have regard”—but then there is a get-out clause stating that it

“need not have regard to anything done on or after exit day by the European Court, another EU entity or the EU but may do so if it considers it appropriate to do so.”

The President of the Supreme Court said that she found that drafting “very unhelpful”. If the President of the Supreme Court says that, the Government ought to sit up, take notice and do something about it.

[Alex Chalk (Cheltenham) (Con)]

My hon. Friend is making a really powerful point. Is not the issue here that judges do not want to be dragged into the political arena? Although courts have shown themselves well able to look at other jurisdictions for a potential steer on how to interpret things, when it comes to the EU the process is so overlaid with politics that judges could find themselves accused of becoming, in the phrase that we have heard, “enemies of the people”. We should not be in that field, and judges deserve the protection of knowing exactly what they are required to interpret.

[Robert Neill]

My hon. Friend is absolutely right, and the importance of that point cannot be overstated. I am absolutely confident that the Minister gets that point entirely, because we saw utterly disgraceful attacks by some of the press upon the judiciary for carrying out their constitutional task. Those words should never have been said, and I am glad to say that the current Justice Secretary and Lord Chancellor has made very clear his support for the independence of the judiciary and the respect with which that independence should be treated. I know that the Minister entirely shares that view.

My hon. Friend the Member for Cheltenham (Alex Chalk) is quite right. Broad wording on such a political topic lays the judges open to such things, because if they are obliged to act according to the clause that I mentioned—as they will be if it is passed in its current form—they will inevitably run the real risk of being accused of having taken, in effect, political decisions. That is why the President of the Supreme Court spoke in the way she did. She said:

“We don’t think ‘appropriate’ is the right sort of word to address to judges. We don’t do things because they are appropriate, we look at things because they are relevant and helpful. We do not want to be put in the position of appearing to make a political decision about what is and is not appropriate.”

That is exactly the point that my hon. Friend made so powerfully.

I know the clause is being debated in the other place, but as it stands it just does not give judges the protection to which they are legitimately entitled. I hope the Government will address that as a matter of urgency. That is not only the view of the current President of the Supreme Court; it has been echoed by her predecessor, Lord Neuberger, and by the previous Lord Chief Justice, Lord Thomas of Cwmgiedd. That is overwhelming and compelling evidence that there has to be movement on this point. It is time for the Government to do that. I suspect they would find good will across the House if they could find a means of properly addressing those concerns of the judiciary—one has to stress that those are their concerns.

The Attorney General said it was not the Government’s desire to put judges in that position. I entirely accept his good faith in that. He said:

“We will continue to work with them to provide the necessary clarity.”—[Official Report, 22 March 2018; Vol. 638, c. 389.]

That is good, but it has to be translated into legislation that is fit for purpose. We are not at that stage yet, and we need much more clarity. I hope that the Minister will be able to deal with that point and take it back to the Attorney General and those dealing with the Bill.

The issue of how we deal with the ECJ is important, but we also need to be realistic. If we want to continue some of the partnership arrangements we have, there will have to be dispute resolution processes. All the agreements will need an arbitral mechanism. I hope the Government will take on board the strong views of legal practitioners across the country that a desire to displace any role for the ECJ—as opposed to removing “direct jurisdiction”, to use the Prime Minister’s phrase, which is a different concept—may create more difficulties than is worthwhile. There are perhaps some limited areas, such as the interpretation of specific matters of financial services regulation and some matters of data regulation, where there might be sense in making a pragmatic compromise rather than having to set up a number of ad hoc arbitral mechanisms such as tribunals or whatever we might call them. That is a key and pressing issue.

There are other issues that concern the Committee on how we will deal with criminal justice and judicial co-operation. They have already been addressed at some length, and I know other colleagues will deal with them today. The point I stress is that the Prime Minister has already indicated her firm and resolute intention to have an ongoing agreement so that we can share in police and judicial co-operation and security co-operation. She is absolutely right to do that, and I support her in doing so, but we have to be realistic. If we are to benefit from such things as the European criminal records information exchange system, the work of Europol and the information exchange that is so critical to the pursuit of modern crime—whether that is terrorism or organised crime of other kinds—we have to have our data arrangements aligned. That must inevitably mean following the EU27’s data regulation and any jurisprudence that subsequently develops that touches on that. Otherwise, with the best will in the world, the police and security agencies in those EU27 countries, which include some of our most vital partners, will not be able to share information with us lawfully. We do not yet have clarity over how that will be dealt with, and we must have that swiftly.

There is also the issue of civil and family justice co-operation. I mentioned the importance of the civil sector, but we have to ensure that we have a firm arrangement for the mutual recognition and enforcement of judgments. That is certainly important for the commercial litigation sector, but it applies to all contractual arrangements. If someone has a contract, they want to be able to sue if it is breached. There needs to be a remedy that can realistically be enforced. We must have more clarity on that. As I have observed on more than one occasion, there are literally thousands of UK citizens—as it happens, most of them are mothers—who benefit from the ability to have maintenance payments enforced against former partners now living in other EU jurisdiction countries. It is unconscionable that those people, working hard under difficult circumstances, would lose the ability to have those payments enforced by a simple blanket mechanism. Warm words are not enough. That needs to be sorted out before we finally leave, whether that is in transition or the end state.

I hope that is a sufficient overview of some of our areas of concern and why we are pressing the Government on them. I look forward to the Minister’s response and the other contributions from colleagues on some of the other specific areas of this important debate, which I have no doubt the Justice Committee will return to in the coming weeks and months.

Leaving the EU: Legal Services

Debate between Alex Chalk and Robert Neill

Wednesday 28th March 2018 Westminster Hall

[Robert Neill]

My hon. Friend makes a very important point. At the moment, the UK is the jurisdiction of choice for the majority of commercial law contracts, litigation that follows from them, and commercial law arbitration, but we cannot take that for granted. A number of English language commercial courts that apply UK law have already been established elsewhere in the world. As I understand it, another is proposed in Amsterdam, which would clearly have an impact once we leave the EU. Mutual recognition of judgments is one of the UK legal sector’s key asks, and he anticipated with great timeliness that I was about to move on to what the Law Society, the Bar Council, the City of London Corporation, TheCityUK and others in the sector are looking for from the Government to maintain the position of UK legal services once we leave the EU.

The legal services sector’s key priorities are as follows. First, EU27 legal providers should be permitted to provide services in the UK, and vice versa—UK legal providers should be able to provide services in the EU27—on the basis of mutual recognition of regulatory regimes. That would enable European lawyers based in London firms and UK lawyers based in the EU27 to continue to advise and represent their clients.

Secondly, the UK and the EU27 should continue automatic mutual recognition of legal qualifications gained before and during—and after, I submit—the UK’s exit from the EU. That ought to be part of the agreement we seek. Otherwise, we would be in the perverse position that an English lawyer who, like me, is also qualified in the Republic of Ireland—I am a member of the Irish Bar—was able to continue to practise in the EU27 using their Irish qualification but not their English qualification. That is why there has been a considerable increase in the number of English solicitors being admitted to the Law Society of Ireland and English barristers seeking to be called to the Irish Bar. It would be much more sensible to retain those people in the UK as part of a mutual deal with our EU partners.

Thirdly, as my hon. Friend said, it is critical that UK court judgments can continue to be enforced in the courts of the EU27. That obviously applies to commercial law, but it also impacts maintenance payments, for example. Let us say that the partner from whom a UK national is having difficulty getting support for their child is an EU national who is living back in the EU27. Maintenance payments, like a judgment in the largest commercial litigation, can currently be enforced in any EU27 court and implemented by the authorities of any EU27 member state by virtue of our membership of the EU. One regulation covers the whole lot. It is important that we seek to preserve that arrangement. It would be extremely complicated if we had to enter into arrangements with individual EU member states, so we must try to do it en bloc.

It is also to the benefit of the EU27 to have the judgments of their courts recognised and enforced in the UK. There would be mutual advantage to preserving that arrangement, and it is most important that that is done without any break in continuity. Contracts of all manners are being entered into that, in all likelihood, will run beyond the date on which we leave the European Union. It is essential that people can enter into such contracts with sufficient certainty that they will be enforceable throughout the transition period and in the end state after we leave.

It is suggested that, as well as seeking the broadest possible deal with the European Union on that, the UK should consider re-signing The Hague convention as an independent party. I suggest that the two are complementary—it is not either/or. We are currently a party to that convention by virtue of our membership of the EU, but that will no longer be the case once we leave. I ask the Minister to take on board the concern that, in the negotiations, we should seek a waiver from the EU to allow us to re-sign as an independent party prior to Brexit so that there is no delay in ratification.

[Alex Chalk (Cheltenham) (Con)]

My hon. Friend is making a powerful case, and I entirely agree with him about The Hague convention, but does he agree that the great prize would be replicating the provisions of the recast Brussels I regulation, which derives from EU regulation 1215/2012? That is the gold standard. It is the best option, and The Hague convention is very much a fall-back provision.

Euratom Membership

Debate between Alex Chalk and Robert Neill

Wednesday 12th July 2017 Westminster Hall

[Robert Neill (Bromley and Chislehurst) (Con)]

I congratulate the hon. Member for Ynys Môn (Albert Owen) on securing this important and valuable debate. I agree with my right hon. Friend the Member for Wantage (Mr Vaizey) and my hon. Friend the Member for Henley (John Howell) that Euratom brings great benefits to this country.

We should do all that is legally possible to maintain those benefits by whatever means it takes. We should not allow any thoughts of ideological purity to get in the way of achieving that. My judgment is that if we can legally remain within Euratom, we should do so. I understand the points that were well and eloquently made by my right hon. and hon. Friends who have suggested that legal advice goes against that, but it would not be the first time that Government legal advisers have been shown to be wrong and it would not be the first time that the Commission’s legal advice has been proved wrong.

[Alex Chalk]

If there is political will, any legal obstacle can be easily overcome.

[Robert Neill]

My hon. Friend is absolutely right. That is my next point.

Unless the Government seek clarity—there is a dispute among lawyers about the matter—the likelihood is that an interested party may itself seek to litigate and it would be much better if the Government seized the initiative and said that politically they wanted to stay in and would do whatever is necessary legally to achieve that objective. That would be altogether better. If they cannot achieve that, certainly an association agreement would be the next best thing and I suggest it should be the Swiss model because the small amount of jurisdiction of the European Court of Justice is a minor price to pay for the benefits. I cannot believe that anyone would object to the very modest movement of skilled nuclear scientists who only benefit this country. Otherwise, we would be cutting off our economic and scientific nose to spite our political face and we should not do such a thing. That would be a good compromise, but we should stay in until such time as that is in place because we cannot have any risks in the interim.