Lord Chancellor and Law Officers (Constitution Committee Report)

Baroness Drake Excerpts

Thursday 20th July 2023 Grand Committee

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[Baroness Drake]

That the Grand Committee takes note of the Report from the Constitution Committee The roles of the Lord Chancellor and the Law Officers.

[Baroness Drake (Lab)]

My Lords, in January this year, the Constitution Committee report into the roles of the Lord Chancellor and the law officers was published. All inquiries have their context. Since the committee’s last report in 2014 which examined these issues, the Government’s commitment to the rule of law has been called into question; the then Lord Chancellor’s lacklustre defence of the judiciary in the wake of the Daily Mail’s “Enemies of the People” headline has been heavily criticised; and the global rise in authoritarianism and the impact of the digital revolution on democracy have imposed threats to a rules-based global order.

The rule of law is the common thread which links the distinct constitutional positions of the Lord Chancellor and the law officers: the Attorney-General, Solicitor-General and Advocate-General of Scotland. It is the only constitutional concept with a presence in Cabinet consideration supported by statute, courtesy of the Lord Chancellor’s duties under the Constitutional Reform Act 2005.

The Act does not define the principle of the rule of law but its fundamental tenets are set out by Lord Bingham and are well understood. Lord Bingham’s formulation was 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”.

He expanded on this formulation with eight principles which are set out in the report. Those principles point to an important element of the rule of law: that it is not simply rule by law. The law itself must conform with the fundamental concept of justice.

Our constitution requires that the Government act according to the rule of law: that Ministers understand its key principles and consider it to have primacy over political expediency. The Lord Chancellor and the law officers have special responsibilities for its maintenance: they take special oaths; their duties, while also being Ministers, place them in a special constitutional position; and they are among the chief guardians of the rule of law.

The eighth principle in Lord Bingham’s definition states:

“The rule of law requires compliance by the state with its obligations in international law as in national law”.


This conception has been politically resonant in recent years. The committee reported that the Government had, at that point, twice knowingly introduced legislation in Parliament that would breach the UK’s international obligations, contravening Lord Bingham’s eighth principle. In the case of Part 5 of the United Kingdom Internal Market Act, the Government admitted doing so. In the case of the Northern Ireland Protocol Bill, the Government failed to produce a credible legal justification for doing so.

Parliamentary sovereignty means that Parliament is able to legislate in this way. This does not alter the Government’s responsibility to ensure, to the best of their ability, that international obligations are adhered to. They should refrain from knowingly inviting Parliament to legislate contrary to the UK’s obligations. Parliament is ultimately responsible for the form of any legislation passed, but preparation and introduction of government legislation is an executive action.

I turn to the role of the Lord Chancellor. The CRA fundamentally altered the role of the Lord Chancellor and the constitutional framework surrounding it, including replacing the Lord Chancellor as head of the judiciary in England and Wales with the Lord Chief Justice. It put into statute the Lord Chancellor’s existing constitutional role in relation to the rule of law. It created a new oath that the Lord Chancellor would respect the rule of law, defend the independence of the judiciary and discharge their duty to ensure the provision of resources for the efficient and effective support of the courts.

The Lord Chancellor’s responsibility for the rule of law is not limited to the maintenance of the justice system and the independence of the judiciary. They have a role which, as a full member of the Cabinet, goes beyond that of the Attorney-General to ensure that rule of law issues are defended and understood by government. The committee was concerned that their oath does not adequately reflect the Lord Chancellor’s role and recommended that it be amended to explicitly include their duty to uphold the rule of law.

In 2007, the Lord Chancellor’s role was combined with that of Secretary of State for Justice, so acquiring a wide range of policy areas in addition to duties as regards rule of law and judiciary independence. Some commentators suggest that this has undermined the Lord Chancellor’s ability to fulfil their core duties by giving them distracting or conflicting responsibility for prisons. Others argue that the budgetary responsibility for the Ministry of Justice, including the Prison Service, increases their authority in government. The advantage of separating those responsibilities is not clear, particularly in the light of the disruption caused by machinery of government changes. We recommend, however, that a new Prime Minister embarking on a more comprehensive reorganisation of government might consider separation at that point.

The noble and learned Lord, Lord Burnett of Maldon, the Lord Chief Justice, pressed the case for further consideration in comments made at the recent Lord Chancellor’s swearing-in ceremony. At his annual session with the committee, he said:

“It is time to look at it calmly and rationally … and simply to ask the fundamental question of whether the current system is serving the rule of law, the independence of the judiciary and the administration of justice generally as it should be”.


Does the Minister agree with the noble and learned Lord, Lord Burnett?

Judicial independence is a vital element of the United Kingdom’s uncodified constitution and defending the judiciary against abuse is a core part of the Lord Chancellor’s role. The Daily Mail’s “Enemies of the People” headline and the then Lord Chancellor’s response to it at the very least caused alarm within the judiciary and damaged trust. In 2017, the committee asked the right honourable Elizabeth Truss about her response. She argued that senior judges could speak publicly about what they did and appeared to criticise their reticence to do so. She added:

“Where perhaps I might respectfully disagree with some who have asked me to condemn what the press are writing, is that I think it is dangerous for a government Minister to say this is an acceptable headline and this is not. I am a huge believer in the independence of the judiciary; I am also a very strong believer in a free press”.


The noble and learned Lord, Lord Reed of Allermuir, President of the Supreme Court, advised the committee that he had made an effort recently in judgments,

“to spell out what the constitutional relationships are … That has been a response to criticism, because it was evident that people did not understand our role”.

Lord Hodge, Deputy President of the Supreme Court, added that,

“it is very important that we do not enter the fray in the face of political criticism, and we leave it to the Lord Chancellor, if necessary, to defend us in the context of defending the rule of law”.

Criticism of the content of a judgment is acceptable; targeted personal criticism that unfairly impugns a judge’s impartiality or inflames public sentiment against the judiciary is not. In such cases, the committee firmly believes that a Lord Chancellor must intervene promptly and publicly. For the judiciary to feel secure in its duty to decide cases without fear or favour, it needs a Lord Chancellor who is willing to defend it.

The CRA did not require the Lord Chancellor to have a legal background. At the time of the report, only six of the 11 post-2005 officeholders had a legal qualification. The five Lord Chancellors preceding our report spent an average of less than 14 months in office. We would expect a Lord Chancellor normally to be a senior legal figure commanding the respect of the legal community and Parliament. However, in the final analysis, character, intellect and commitment to the rule of law are the most important attributes for a Lord Chancellor to possess.

The responsibilities of the law officers touch on the rule of law in various ways. Our report focused on their role as legal advisers to the Government. On the lawfulness of government action, government lawyers, including the law officers, currently operate on the basis that action may justified if a respectable legal argument can be found that is lawful. The concept of a respectable legal argument is found in the Government Legal Department’s guidance to government lawyers. An updated version was published on 2 August 2022 and the then Attorney-General elaborated on her expectations of government lawyers in a series of tweets.

The existence of a “respectable legal argument” as set out in the guidance and elaborated on by the then Attorney-General could sometimes represent a very low threshold for authorising legally uncertain action. The validity of the respectable legal argument depends on an uncertain threshold in the Attorney-General’s guidance—the level at which an argument becomes respectable. The guidance explains that this is an argument that could be properly put before the court but also refers to an absence of such arguments being “rare” or “exceptional”. It is unclear whether this suggests that the threshold is so low that an argument will almost always be found or that the Government would not expect to be contemplating legally dubious action. Public confidence in the Government’s commitment to the rule of law demands that any threshold is meaningful and aligns with an ethos of genuinely seeking to comply with the law and that a decision by Ministers would not be based solely on a calculation of legal inconvenience.

Decisions to authorise armed conflict require greater certainty, and merely a “respectable” argument in this context is a fig leaf and undermines the trust of the public and particularly the military. It was therefore comforting to hear the current Attorney-General tell the committee in recent evidence that,

“the Government have extra duties as a litigant before the courts”,

including the “duty of candour”, and

“a duty to advance proper arguments”.

However, we shall have to see how this develops in practice, and the concept may yet require further elucidation.

The law officers are senior legal advisers to the Government. They are Ministers and Members of Parliament. Depending on the function, varying degrees of independence are required. Their main duty as senior legal adviser requires a high degree of independence from the Executive. Their responsibilities for legal advice and individual prosecutions are non-ministerial and not subject to collective responsibility. There is great value in the law officers being politicians. It provides them with an understanding of the political context and bolsters the authority of their advice; as MPs, they are accountable. However, it is necessary to balance political status with rule of law functions. Former Attorney-General Suella Braverman KC confirmed this view when she told the House of Commons Justice Committee in 2020 that the officeholders’ primary duty lay with the rule of law above party interest. In the same session she went on to say that,

“I am a member of the Cabinet and I subscribe to collective responsibility. I am an elected politician. For me, the political thread that runs through this role is vitally important”.

In evidence to the committee, the current Attorney-General said,

“although I have other, sometimes competing, considerations—I have, for example, duties to my constituents … duties to my party, and duties to the Government, of which I am a member—I definitely feel, particularly in this role, that there is no question, but that my duty to the court comes first”.

It is vital that law officers recognise that they are different from other Ministers. Key aspects of their role require independence from party politics and government priorities. Public confidence in their impartiality must be retained and they should refrain from making public statements that damage that confidence.

In recent years, Attorneys-General have been appointed with less legal experience than was previously the case. We recommended that codification of law officers’ duties would improve confidence in their role, and that the Ministerial Code and the Cabinet Manual be amended to clearly define those duties, including identifying which are subject to collective responsibility and which should be conducted independently of government. Given the differing conceptions of the rule of law and the duties of the Lord Chancellor and the law officers that have politically resonated in recent years, can the Minister say whether, in the updating of the Cabinet Manual currently being undertaken, it will be amended to define clearly the duties of the law officers? I beg to move.

--- Later in debate ---

[Baroness Drake (Lab)]

I thank the Minister for his comprehensive reply. It definitely warrants detailed reading, which I shall do. I share his aspiration to achieve wider understanding of the rule of law and our constitution—people often do not value what they have, and it is important that we bring it to their attention. As the Minister articulated, because we have so much to be proud of, it is even more important to defend it.

In recent times, we have experienced constitutional and associated governance processes being under pressure, and it would be easy to say that the problem was a one-off. But, for the Constitution Committee, we have to ask whether there is need to check whether the democratic protections and the important checks and balances lacked or had resilience under stress, as opposed to just taking at face value that it was a one-off and that everything is fine in the garden otherwise. We are resistant to just accept this as a premise for some of the things we have looked at and continue to look at.

If one takes the committee’s report as a whole, it is clear that it recognised that the realities of a functioning Government need flexibility. At various points in our report, we accepted that. I was pleased to hear the Minister say that he would take back his reflections from this debate and the points that were made, particularly about clearly defining the duties of the law officers in the Cabinet Manual. There have been significant differing conceptions of the rule of law and the duties of the law officers that have politically resonated in recent years, and there is the public trust issue. So, if the Minister is able to take that back, that would be helpful. I understand that the Cabinet Manual redraft will be available in weeks—that was the phrase put to us by the Cabinet Secretary.

I thank all noble Lords who participated today. It has been an excellent debate, but, as I look across the cast before us, that is not surprising. I thank John Turner, the committee clerk, and Rachel Borrell, the policy adviser, for their excellent work in helping the committee to prepare this report; it took a year and lot of work to get that definitive position in it. I also thank the press team, which managed to get what looks like a dry document out into the public space for reflection and debate. I thank all the committee members who worked hard on this for their deliberations, and I thank all those who submitted evidence. People were generous with their time and in interrogating issues with us.

I too am delighted to see the noble Lord, Lord Hennessy, in his place. He is so fondly regarded, and his reputation goes before him. I remember that he was poorly when we were preparing the evidence for this report, but he always joined remotely and would ring me to tell me the issues that he was concerned about and that he felt must be interrogated by the committee. He never lost that thread of what we had to focus on, so I thank him for that.

It has been a great debate; I have learned a lot and will reflect on what was said. I hope that between us and with the constitution, we can collectively defend what the Minister said we should be proud of.

Motion agreed.

Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Legal Aid: Family and Domestic Abuse) (Miscellaneous Amendments) Order 2023

Baroness Drake Excerpts

Monday 23rd January 2023 Grand Committee

Fourthly and finally, with Article 7(3)(b) we are updating the evidence requirements for victims of domestic abuse. One of the types of evidence that a victim of domestic abuse can provide is a letter from their medical practitioner after they have had a face-to-face appointment. This instrument will also allow medical practitioners to provide a letter as evidence of domestic abuse after a telephone or videoconferencing appointment. That provision will be reviewed after a year to make sure that it is working in practice and has not had any unintended effects. That is the outline scope of this statutory instrument.

[Baroness Drake (Lab)]

My Lords, I apologise; I appreciated only this afternoon that this SI was being tabled for discussion today. I want to make reference to extending legal aid to special guardianship order applications for children in private law proceedings. Clearly, this is welcome but, regrettably, it is not matched in public law proceedings, where the majority of special guardianship orders are pursued, when children are often in a crisis situation. In effect, the SI will not cover all kinship carer situations, where legal support is needed and is further limited by the stringent means test.

The compelling evidence—and this has often been rehearsed on the Floor of the Chamber—is that kinship carers are left to navigate the family justice system without the legal aid and representation they need. Many incur significant debt from paying legal costs or find themselves sidelined in important decisions about the child, directly increasing the risk that more children will end up in care.

There are two key areas in public law cases where legal aid for prospective special guardians urgently needs to be considered. First, at the formal pre-proceedings stage, prospective kinship carers have access to only limited advice. Means-tested support is remunerated at such low rates that very few solicitors will now offer advice on taking on the care of a child. Secondly, during the care proceedings, prospective kinship carers are still entitled to only very limited advice. In fact, only when the prospective kinship carer is made party to the court proceedings or when they make a private law application may they be entitled to legal aid. We know from the evidence, which has been rehearsed many times in the Chamber, that many carers do not have the early advice even to know that becoming a party to proceedings is an option or how to make a private law application.

In putting those issues, my main point is that, while welcoming the extension of legal aid in the instance covered by this SI, in preparing their response to the MacAlister review, are the Government considering further extending access to legal aid to kinship carers seeking guardianship orders in public law situations? We know that the evidence is overwhelming that, in terms of the benefits to the child and the cost to the taxpayer, effective kinship carer situations with guardianship orders save the taxpayer money, give better outcomes for the child and will, in effect, end up paying many times over for the extension of legal aid that these people seek.

[Lord Bach (Lab)]

My Lords, I shall be very quick, not least because the chairman of the committee mentioned by the Minister in his answer on the previous instrument is in her place, and she can talk with much more skill and expertise than I can. As a mere member of that committee, I remember well the Minister’s appearance before it; I do not think that it is flattering him too much to say that he was one of the star witnesses, not just on that day but during the whole of our proceedings. Indeed, the whole issue about early advice, as was clear from the Minister’s first reply, was clearly something that was a matter of concern to him.

Just as I supported the last instrument, I support this one. Again, in their comparatively small way, they are important improvements. One fault of LASPO, to put it mildly, was that too much of private family law was taken out of scope of legal aid. There have been consequences since, and my guess is that the Government have come round to that view and I think that this order, in a small way, shows that. The Minister will know that the issue around domestic violence and the evidence needed was a matter of huge controversy for many years after LASPO came into force. It looks as if that is, finally, I hope, being put to bed.

All that I want to do, if I may—and I certainly do not want to take the thunder away from the noble Baroness, Lady Tyler, who I hope will speak shortly—is to invite the Minister, if he has not already, to see the recommendations that we made in this area of the Select Committee’s report. We ended by saying, as one of our major recommendations:

“We recommend that the Government urgently evaluate the impact of the removal of legal aid for most private family law cases, considering where reinstating legal aid could help improve the efficiency and quality of the family justice system.”


We heard a huge amount of evidence over the months that showed that the lack of the possibility of legal aid in some private family law situations was very harmful to their early solving.

Covid-19 and the Courts (Constitution Committee Report)

Baroness Drake Excerpts

Wednesday 23rd March 2022 Grand Committee

[Baroness Drake (Lab)]

My Lords, the Constitution Committee applauded the “monumental effort” of those working in the courts to maintain a functioning system during the pandemic, but equally recognised that those efforts could not obscure the scale of the challenge faced. As others have said, the courts system was already struggling with major pre-existing weaknesses so, when Covid hit, rendering courts reliant on remote technologies, those vulnerabilities were exposed. The urgent need for major investment was laid bare.

The 21% decline in court funding over the preceding decade and the failure to deliver a modernisation programme exposed the weakened resilience of the system. Remote proceedings have the potential to enhance access to justice by increasing the number of hearings that can take place, but the delay in the modernisation programme meant that new case-management systems had not been rolled out, common IT systems had not been implemented, the digitisation of court forms was delayed and court data was stored on a range of legacy systems. The courts were ill prepared for the scale of the shift to remote hearings.

That sudden shift was also uneven in its impact. Senior courts and those dealing with commercial cases adapted relatively well. The lower courts, particularly those dealing with criminal and family cases, had a much more difficult time. The evidence revealed the practical challenges facing ordinary people in virtual hearings, including—among other things—limited broadband access, phones or iPads shared between users in a household, no private space, dependency on pay-as-you-go phones and expensive data packages, sensory impairments and limited digital literacy.

The evidence we heard indicated that remote hearings can make it difficult for lawyers and their clients to communicate, frustrate users if they cannot see or understand what is going on and undermine the ability of litigants to engage. On the other hand, there was evidence that court users can benefit from remote proceedings and the speedier conclusion of cases. As has been mentioned, some women who would be frightened of giving evidence in a court where their abuser was also present may prefer the security of a remote hearing. I learned recently of a case of a young mother whose baby was facing end of life. She wanted to be in court when she gave evidence as she wanted people to know that she had done everything she could to protect her child, but wanted to participate remotely on other days so that she did not have to spend time travelling away from the hospital.

It is important to ensure that courts function in an innovative way to meet the demand on the system and deliver speedy and effective justice. However, as a solicitor specialising in children’s law who gave evidence to the Committee commented:

“We need to ensure that there is consultation on good practice for remote hearings to allow the courts that remain open, to hear those cases which for a number of very good reasons may need to be heard in person.”


I look to the Minister on the point that people are looking for assurances that such essential consultation will take place, and that efficiency will not by default trump access to justice.

The Lord Chief Justice described the rapid adoption of new technology during the pandemic as

“the biggest pilot project that the justice system has ever seen”

and an opportunity to

“take the best of this new way of working”.

However, the information to support that opportunity was

“just not available”.

As the Government have acknowledged, the long-standing absence of quality data in the court systems meant that important questions about access and the efficiency of the courts remained partially unanswered. They include questions about the effects of digital technology on non-professional court users and where access to justice is most at risk when remote hearings are deployed. In 2019, the Legal Education Foundation published its report by Dr Byrom, Digital Justice: HMCTS Data Strategy and Delivering Access to Justice. The majority of its recommendations were accepted by the Government. What recent action has been taken to build excellent data systems and what is the timetable for achieving that objective?

During the pandemic, pre-existing backlogs of cases increased to record levels. This month, in his message, “A View from the President’s Chambers”, the President of the Family Division of the High Court, Sir Andrew McFarlane, commented that

“work in the Family Court is at an all-time high”;

that agencies and law firms had to ration their use of resources as demand in some areas has exceeded the capacity to deliver; and that

“there is unacceptable delay in listing cases.”

That resonated with recent evidence taken in a study by the APPG on Kinship Care that some local authorities are now having to prioritise the cases for which they bring childcare proceedings because they know that the courts do not have the capacity to handle all their potential cases, and that those that do are taking longer to complete. Given such rationing in terms of unmet need, the “family court backlog” must be an understatement.

Sir Andrew’s message had the ring of a cri de cœur. The family courts deal with vulnerable children. As the public advisory group of the Family Justice Board observed:

“For children who remain stuck in the middle of the court system, the detriment to them is immeasurable.”


The life of the child goes on while they are stuck, and they may have further negative experiences. Sir Andrew observed on their impacts:

“Backlog and delay in the Family Court are not … static … they have the potential to feed on themselves and grow the longer cases are left without a final resolution.”


The number of children in care is rising. A key driver is children staying in care for longer and not leaving. Children’s social care is inadequately funded and in need of radical reform. Domestic abuse is increasing. A report by the Competition and Markets Authority published just two weeks ago found that some large private providers of fostering services and children’s homes were generating excessive profits. It added:

“The UK has sleepwalked into a dysfunctional children’s social care market … some children are not getting the right care from their placement. Some children are also being placed too far away from where they previously lived or in placements that require them to be separated from their siblings.”


That overstrained care system is now having to operate alongside a family justice system that is far from robust.

I have another example: kinship carers are grandparents, aunts, uncles, siblings and family friends who voluntarily take on the care of nearly 200,000 vulnerable children who might otherwise be taken into looked-after care. They often take on the children at very short notice following a proverbial knock on the door by a police officer or social worker. Largely unsupported financially or legally, they produce better outcomes for children and save the state millions in costs. I have heard so many of their stories, and many are heroic. But aspects of the justice system reveal a bias against them. During public law care proceedings, kinship carers are often not joined as parties to proceedings, so they can struggle to follow what is happening and understand their options. Many kinship care cases are private law cases, and legal advice and support is even more limited. Carers struggle to get legal aid. They struggle to get access to guidance and advice so that they can make the right court application for the protection of the children, and there appears now to be even less time in the court diary for private law cases.

The backlog of cases is exacerbating that bias to the detriment of children’s interests. Sir Andrew observed that there was

“no single, let alone simple”

answer to the question,

“what is to be done?”,

which is evidently true. But it is sometimes said that we judge the quality of a society by how it treats its old people and its vulnerable children. We have a way to go before our vulnerable children get the access to justice and the care that they deserve.

There are many on the committee and who are following this debate who will want to know what the Government’s commitment is to increasing resources, pushing ahead with the modernisation programme and building in innovation to the court system so that we do not face the problems that were reported in this report in future. Finally, I acknowledge my noble friend Lady Taylor’s excellent chairing of the Constitution Committee in bringing this informed report to the House.

Queen’s Speech

Baroness Drake Excerpts

Tuesday 18th May 2021 Lords Chamber

[Baroness Drake (Lab) [V]]

My Lords, the Government’s legislative programme is inseparable from a well-functioning courts system. In its report, COVID-19 and the Courts, the Constitution Committee, on which I sit, applauded the monumental effort by all those working in the courts to maintain a functioning justice system during the pandemic. But recognition of those heroic efforts cannot obscure the scale of the challenge that courts in England and Wales face. Court funding fell by 21% over the preceding decade, the courts modernisation programme struggled to deliver, and legal aid cuts increased litigants in person. Therefore, when Covid-19 suddenly rendered courts reliant on remote technology, those very vulnerabilities exacerbated the devastating impact of the pandemic, and the need for more investment in the justice system was laid bare.

The Lord Chief Justice described the rapid adoption of new technology during the pandemic as

“the biggest pilot project that the justice system has ever seen”

and said that the shift to remote hearings provided an opportunity to

“take the best of this new way of working to improve access to justice”,

but the information to support improvements to the courts service was “just not available”. The pandemic shone a light on the absence of quality data. An opportunity to capture users’ experience in that “biggest pilot project” has been lost—yet without adequate data, the fundamental questions about the operation of our justice system remain unanswered.

The sudden move to remote hearings during the pandemic has been uneven in its impact. Senior courts and those dealing with commercial cases adapted relatively well. The lower courts, particularly those dealing with criminal and family cases, have had a much more difficult time.

The evidence reveals the practical challenges facing ordinary people in virtual hearings, including—among other things—limited broadband access; phones or iPads shared between users in a household; no private space; a dependency on pay-as-you-go phones and expensive data packages; sensory impairments; and limited digital literacy. Yes, they may use email, but electronic document management may prove impossible for many lay users. Remote hearings can make it difficult for lawyers and their clients to communicate, frustrate users if they cannot see or understand what is going on, and undermine litigants’ ability to engage. On the other hand, there was clearly evidence that court users with special requirements have benefited from remote proceedings.

The backlog of cases, which predated the pandemic, has reached record levels, undermining access to justice and public confidence in the justice system. In the criminal courts, the backlog now exceeds 530,000. The prison population fell by 6%; those in prison awaiting trial increased by 28%. Litigants and victims wait longer for justice. Unsentenced children in custody grew in number. More than half of children and young people in custody and 87% of children on remand in London were from black and minority ethnic backgrounds. In family courts, the backlog exceeds 10,000. As the public advisory group of the Family Justice Board observed:

“For children who remain stuck in the middle of the court system, the detriment to them is immeasurable.”


The Government have committed to modernising the justice system and improving the experience of court users, but what targets are being set and resources allocated to reduce the backlog of cases? What is the time limit for the collection of key data points across all court services—physical and digital—needed to assess the vulnerability of court users?

Added Tribunals (Employment Tribunals and Employment Appeal Tribunal) Order 2013

Baroness Drake Excerpts

Monday 8th July 2013 Lords Chamber

This complicated and misguided proposal will not deter the headline-seekers or those who are sure that their employer will pay them off to the tune of £2,000 simply to avoid an ET. It will not deter a member of a trade union if they have trade union support. It may well deter the applicant whose claim is relatively small or who is relatively poor so that they cannot put up the money, or they think twice about it. So, it is the weaker who will pay the Ministry of Justice tax. At best this proposal is inept, and at worst it is a petty con trick.

[Baroness Drake]

My Lords, on any reading this order raises the barriers to an effective remedy to enforce employment rights for ordinary people. Yes, some employees will bring cases without merit but in my experience, from 27 years as first an ET member and then an EAT wing member, most claimants have a genuine belief that they have experienced a wrong in the workplace and been treated unfairly. Similarly, some employers behave badly—not all are models of paternalistic virtues facing difficult employees.

Employment tribunals used to be viewed as the last-resort mechanism, but the structural shift in the UK economy has also seen a corresponding decline in collective representation throughout the private sector. People no longer have access to a network of union representatives to help them pursue their workplace dispute. The tribunal system is often the only route open to them.

The order is concerned less with protecting access to justice and more with reducing the number of ET cases by pricing workers out of the system. In the order we see the obstacles to access. The language in the Explanatory Memorandum reduces the enforcement of employment rights to a commercial transaction. Paragraph 4.19 of those notes observes that if some users’ expected costs of bringing a claim now exceed their expected benefits of doing so, the total volume of cases brought to the ET might reduce. Concepts such as “consumer surplus”, “level of utility” and “price elasticity of demand” are deployed to give a monetary value to claimants’ loss of satisfaction so that they will no longer choose to bring cases, thus reducing enforcing an employment right to something akin to purchasing a washing machine or an insurance policy.

The Explanatory Memorandum made depressing reading. It showed insensitivity to what drives some claimants. The motive is not always compensation. They can often feel frustrated and humiliated at the way they have been treated, and it becomes important to have a public record that they were badly treated. They may bring a case for unfair dismissal because they know that unless they can win that claim they cannot get a decent reference or a comparable job, and their “utility”, as the memorandum puts it, may be far greater than the financial value of any remedy if they win, the median value of which is only around £4,600.

For those on low incomes, filling in an ET1 application form to register their claim is a complex procedure, notwithstanding the proposed simplifications. A remission form has been added that has to be submitted with the claim, which itself has to be submitted within a statutory deadline. Add limited literary skills, English as a second language and a lack of confidence, and we can see how the very process itself will work against precisely the vulnerable people who are most likely to be taken advantage of in the workplace.

An employment tribunal claimant is more likely to be male and working full-time or unemployed, confirming that women in low-paid and part-time jobs are less likely to use the tribunal system to enforce their rights. This order will simply reinforce that.

For some types of cases, proportionality is lost. For claims on annual leave entitlements, unpaid wages, statutory redundancy payments or non-payment of the national minimum wage, the fees being set could be greater than the remedy being sought—even more so if you are a part-time employee.

The remission system will mean that significant numbers of individuals in couples earning national minimum wage rates will still have to pay fees to enforce their workplace rights, as will others on modest incomes. When it comes to equivalence, as other noble Lords have said, the proposed fees are higher than fees payable in the civil courts. For some, an appeal to the EAT will simply be out of their league, particularly when the cumulative effect of an issue fee, hearing fee, ET review fee, EAT lodge and hearing fees and their own legal costs are taken into account. That is deeply unfair. Appeals from employers could begin to dominate the EAT. Appeals to the EAT are on points of law, which require legal help and support to put forward.

Added to that is the uncertainty that the claimant may not get their money back for the fees paid if they win their case. Yes, it will be open to the ET to order an unsuccessful party to pay an amount up to the value of the fees—or less, the criteria are unclear—then add the possibility that the employer may not pay up on such a fees order, or even on any other element of the remedy, and the scales of justice start heavily to tilt against the claimant.

The Government are already facing two legal challenges, one from a trade union, the other from a firm of Scottish solicitors. The order could affect women disproportionately, particularly in multi-claimant equal pay cases. Take the level of fees, the way in which the fee group may operate and the fact that solicitors operating on a no-win-no-fee basis may be unwilling to pay fees up front because they become too expensive, and again, before the claimant can get their foot in the door of the tribunal, we see those doors slowly closing.

The Government want to encourage parties to settle at an early stage, but the fees could produce perverse incentives and negative behaviour, as my noble friend Lady Donaghy explained. Some employers could become less likely to agree a resolution. They may want to see the claimant’s money submitted first by registering the case, knowing that the claimant has to come up with the money. The worst employers may be emboldened to treat their employees badly, knowing that they may have to come up with significant amounts of money to pursue their case.

As for the vexatious employee, who seems to dominate this debate, employment tribunals already have case management powers, and can make orders for deposits and costs where a party is deemed to have acted vexatiously, abusively, disruptively or otherwise unreasonably or where the bringing of proceedings has been misconceived—that is a long list—and they are increasingly using those powers. Of course there is scope for improving the efficiency of the tribunal system—I sit in it, and could suggest several—and there are arguments for strengthening the judge’s case management powers. Parties should be encouraged to settle whenever possible, but employment judges already often encourage them to do so. However, the order will introduce unfairness and raise the barriers for ordinary people to get an effective remedy. It will not raise the barriers for the well paid executive, but it will raise them for the ordinary person.

[Lord Monks]

My Lords, we know that the Ministry of Justice is constrained by some very tight budgets and needs to save money. However, it is clear from these orders that it is proposing to save money very much at the expense of the low-paid and the most vulnerable in our society. The argument that was made by my noble friend Lord Beecham about the comparison with the fees at the Supreme Court tells its own story. The fees at the Supreme Court are disproportionately low compared to what will be the position in the tribunals. Therefore, I do not see the Minister’s argument that saving money has to be at the expense of those in the lower income parts of our society compared to those who are much better off and will be taking cases in the higher courts. The burden is in the wrong place.

Secondly, it is clear that this is all about deterring applicants. My noble friend Lord Young will remember debates on another regulation about raising the qualifying period for unfair dismissal. That took 3 million people out of the unfair dismissals scope virtually at a stroke. Now we have got this as well. As people have said, it is not going to deter the well paid executive who can see a crock of gold at the end of the case. Nor will it deter the union member, because we already know that unions are preparing to support their members in appropriate cases by covering the fees. It will be those who are on their own, probably low paid and vulnerable, and who will not find it easy to get a comparable job. They are being told to go away quietly. I think that is a green light to the heartless, careless, poor employer that they can now get away with it when previously they would have had to be more circumspect.

I do not put too much weight on the remissions scheme. The idea that if one has a £3,000 household investment income or savings certainly seems to be unfair because it lumps the household together for those calculations. I think it is still very much an attack on the low-paid, and the remissions scheme is nowhere near adequate to cover that. This is Beecroft by the backdoor. I know the Minister’s party colleague has been very strong in his condemnation of Beecroft, but why is it that these particular measures keep appearing, under a different guise for sure, and we keep seeing these attacks on employment rights in exactly the same spirit that Beecroft meant them in his original report.

I, too, add my voice to that of my noble friend Lady Turner in asking for these regulations to be withdrawn.