Legal Advice: Prorogation

Debate between Lord Hanson of Flint and Geoffrey Cox

Wednesday 25th September 2019 Commons Chamber

[The Attorney General]

They don’t like to hear it, Mr Speaker. They don’t like the truth. Twice they have been asked to let the electorate decide whether they should continue to sit in their seats, while they block 17.4 million people’s votes. This Parliament is a disgrace. Given the opportunity—[Interruption.] Since I am asked, let me tell them the truth. They could vote no confidence at any time, but they are too cowardly to give it a go. They could agree to a motion to allow this House to dissolve, but they are to cowardly to give it a go. This Parliament should have the courage to face the electorate, but it won’t, because so many of them are really all about preventing us from leaving the European Union at all. But the time is coming, Mr Speaker, when even these turkeys won’t be able to prevent Christmas.

[David Hanson (Delyn) (Lab)]

I think the Attorney General will find that the moral right I have to sit in this House is due to an election called by the right hon. Member for Maidenhead (Mrs May), in which she lost 13 seats. I will represent my constituents as long as I sit in this House, and I am elected by the people to do so.

Will the Attorney General tell the House how much taxpayers’ money he has spent on closing down our voice?

[The Attorney General]

All I am suggesting to the right hon. Gentleman is that he give his constituents the chance to elect him again. [Interruption.]

Withdrawal Agreement: Legal Position

Debate between Lord Hanson of Flint and Geoffrey Cox

Monday 3rd December 2018 Commons Chamber

[The Attorney General]

No.

[David Hanson (Delyn) (Lab)]

I am not a lawyer, so I would welcome the Attorney General’s advice. This House passed a unanimous motion. It was not opposed by him or his Government. It is binding on this House. Could he give me some legal advice as to what my rights are now?

[The Attorney General]

I think the right hon. Gentleman has plenty of opportunities to consult people other than me. Ultimately, what the House will have to decide is whether an Attorney General and a Government who are seeking to protect the public interest are in contempt of its motion when they have sought to comply with the spirit of it to the maximum possible degree, and when they have put their legal adviser at the disposal of the House and instructed him to give full, frank, complete answers to any question asked on the matters of law that any legal advice would have been likely to cover.

European Union (Withdrawal) Bill

Debate between Lord Hanson of Flint and Geoffrey Cox

Committee: 3rd sitting: House of Commons
Tuesday 21st November 2017 Commons Chamber

[Mr Cox]

No, no. [Interruption.]

[The Temporary Chair (David Hanson)]

Order. The hon. and learned Gentleman is not giving way.

[Mr Cox]

The point is that these broad and general rights are ripe with value judgments. Quite often, they are not appropriately dealt with by six or seven elderly white judges in a Supreme Court; they are better resolved on the Floor of this House and by a democratic vote in this Parliament.

Criminal Bar (Public Funding)

Debate between Lord Hanson of Flint and Geoffrey Cox

Wednesday 15th September 2010 Westminster Hall

[Mr Geoffrey Cox (Torridge and West Devon) (Con)]

It is a great pleasure to see you preside over this debate, Mr Bone. I am pleased to have secured a debate on such a topical and important subject, and to be able to welcome the Under-Secretary of State for Justice, my hon. Friend the Member for Huntingdon (Mr Djanogly) to his position. It is my first opportunity to do so in this Chamber, and I hope that he is enjoying the multifarious complexities of the task with which he has been entrusted, because it is an unenviable one. In many respects, he inherits an unfortunate and complicated history, and it is one through which he will no doubt tread with a combination of charm, urbanity and skill. Certainly, he will need all three.

I should declare an interest here. For the last 28 years, I have made my living at the Bar, a large part of which has been at the criminal Bar. Therefore, it is right for me to declare at the outset of this debate a strong financial personal interest. It was that interest that has caused me, over the past few years, to hesitate long and hard before bringing to the Floor of the House any issue to do with the professional structure or remuneration of the profession of which I have been a member for so long. It is precisely because of the gravity of the current situation and the need for a voice to be raised in defence of what are often minority, quiet and civilised professional values—they lack a voice in the discussions of the House—that I decided to overcome my hesitation. Given that I have been contacted by many members of the Bar and that I head my own chambers in Lincoln’s Inn fields, I can say that I am conscious of the interests of many junior and young barristers who are affected by the current predicament with which the criminal Bar is faced, and with those qualifications and caveats, I felt that it was right to bring such issues to the House’s attention.

At the heart of the criminal justice system is the professional exercise of the art of advocacy. The efficient conduct of cases in the courts is the essential pivot around which revolves the entire administration of justice. Incompetence and poor quality in the representation of prosecution or defence will inevitably lead to the failure of justice, prolonged delays, aborted trials, appeals and much greater cost. I hope that the Minister and I will at least agree on that important statement. It goes without saying that the heart of the criminal courts in our system is the adversarial combat between advocates on either side. If that combat is conducted with expedition, skill, relevance and a strict fidelity to the relevant issues in a case, it assists the judiciary to make its decisions. The judiciary knows that, which is why it has a direct interest and a powerful voice on behalf of the quality of advocacy in our courts.

The criminal Bar is the profession of specialist advocates in the criminal courts. It has a long and proud tradition. Its codes and professional atmosphere are exacting and competitive. It upholds high standards, celebrates and seeks to emulate the examples of luminaries of the past and present. Those include names who have bestridden the parliamentary stage in ages gone by, including Carson, Smith, Hastings, Marshall Hall, Peter Rawlinson and—I dare to add a name of which I am particularly fond—Marshall-Andrews.

A strong emphasis on ethical conduct is instilled into the novice barrister from his earliest experience. On the consistent reliability of such standards of moral integrity and of skill in the efficient dispatch of cases rests the trust of the judiciary, which knows that the accuracy and justice of its decisions are substantially dependent on the quality of those who represent Crown and accused. It is largely from their senior ranks that the judiciary are drawn.

Furthermore, the availability of an independent, fearless and professional cadre of advocates, who are obliged under the rules of their profession to take up a case regardless of the unpopularity of the cause or the power of the opponent, is a vital constitutional protection of the individual. It is by the efforts of such men and women in seminal cases throughout the years that many of the rights that we take for granted today were first established. No dictatorship or tyranny can long tolerate the existence of such a profession. Therefore, the continuing vigorous existence of the criminal Bar is a potent public good. I am afraid to say that the previous Government in their language and conduct did not appear to recognise that. It is important to many in this House that this Government—I dare to say our Government—recognise the value to the public interest of the criminal Bar and its professional values.

If this debate—I look at the Minister directly here—could elicit from the Minister a firm statement in support of the value of the criminal Bar and its professional values, it would have done some good. It would give enormous encouragement to many hundreds of junior barristers and others to believe that this Government were going to restore to pride of place in their considerations of the criminal justice system a respect and understanding of professional values.

For 20 years now, the Bar has been joined in the practice of advocacy in the higher courts by solicitor-advocates. A previous Conservative Government accepted the argument that the public should have the choice not to be represented by a barrister. I do not believe that the criminal Bar as a whole was, at the time, particularly resistant to that innovation. The view was held, and I agreed with it, that provided the criminal Bar occupied a level playing field it would, by virtue of its specialisation and standards of training and skill, be able to hold its own. Few believed back then that many solicitors in busy litigation practices would have the time or the inclination to visit the courts, and for some time that is how it proved.

However, that is no longer the case. For good or ill, higher courts advocates are now established and increasingly a prevalent feature of the criminal courts. As pressure on the available rewards have increased in other areas, the lure of the advocacy fee has been impossible to resist. The solicitor occupies the shop window. He is also the contractor with the Legal Services Commission for the provision of legal services. If a barrister is to be engaged, it is he who must refer the case. Traditionally he has done so by seeking out barristers whose reputations and proven records have staked a claim to his attention.

However, the solicitor’s position in the high street and in the police station means that he is able if he wishes to do so—and why should he not wish to do so?—to represent his firm’s client from the inception of criminal proceedings through to their end. If he is unable to manage all the case load that his practice brings him, he is now able to return some of it to another solicitor-advocate, who, as I understand it, can often be expected to split the fee and to return the favour some time later. In an age of decreasing margins, these are attractive options. Thus, the criminal Bar is being gradually stranded by a steadily withdrawing tide of work.

At the same time, the criminal Bar has sustained a consistent and dramatic reduction in the rates of legal aid for advocacy in criminal cases. Very few citizens are able to bear the cost of a serious criminal trial. However, the last Government made legal aid available without means-testing to anyone charged with a sufficiently serious offence. That was no doubt an attempt to control the costs recovered by a defendant in the event of acquittal and the costs of the bureaucracy associated with the assessment of means. However, it brought about some startling results, such as the sight of MPs being granted legal aid for expenses abuse cases and the sight of millionaires being represented on public funds. It also meant that the last Government in effect took predominant control of the market, making individuals less likely to pay for their own representation while simultaneously taking an axe to the remuneration.

I ask the Minister if he accepts that the rates of remuneration of the criminal Bar have been severely reduced; I hope that he does. In the course of my speech, I intend to ask him a number of questions, to which the answers would be welcome.

Let me give some examples of how the rates of remuneration of the criminal Bar have been severely reduced. For the most complex very-high-costs cases that are more than 60 days in length, the rates of remuneration have been actually reduced—not in real terms, but in actual terms, in the sense that these are headline figures and, therefore, have been cut by up to 20% since 2004. This year, according to the Ministry of Justice’s own figures, remuneration for cases of between 40 and 60 days has been reduced by 39.5%. On any view, those are extraordinary reductions. A barrister in a complex case can now be working for between 20% and 39.5% less than he was either in 2004 or in 2009.

Finally, on the very day that the House dissolved, 6 April, the statutory instrument was laid, amid rumours that civil servants were being bussed in at weekends to complete the processes, that enacted a further cut of 13.5% across the board in remuneration over the next three years. Another 13.5% was simply wiped out from the margins that criminal barristers are able to earn.

On any view, those examples, which are typical of the general trend of the last seven years, represent a severe contraction of public funding for the criminal Bar. The combined effect of all these developments has been to cause a crisis of confidence in the profession; I do not believe it to be an exaggeration to describe it as that.

The criminal Bar knows that it cannot expect special treatment and in the current financial climate it knows that it has no right to ask for such treatment. However, I believe that the present Government must take into account this recent history in responding to the imperative need to curtail public expenditure in the next few years. If the criminal Bar is to survive, with the powerful public interest that it represents, the Bar, the Law Society and the Government must be prepared to work together to rectify some of the competitive disadvantages, imbalances and unintended consequences that have resulted from recent changes.

My hon. Friend the Minister will know that the leadership of the Bar has been active in promoting imaginative—even radical—ideas to help to resolve these problems. For example, it has set up a working group to find and suggest to the Government savings in the criminal legal aid budget. These savings include those that would accrue from the lifting of the present rule that prevents the use of funds restrained pending trial, under the Proceeds of Crime Act 2002, from being used to finance the legal costs of a trial. I strongly commend to the Minister that modest proposal.

However, by far the most significant proposal is for members of the Bar to form companies, which would be given the unwieldy working title of Procure Cos. Those companies would become direct contractors with the Legal Services Commission for the commissioning of legal services. This idea does not meet with universal accord within the profession. It is revolutionary in its ramifications. These new entities, which would be controlled by barristers, would commission solicitors to carry out legal work for the first time, thus standing on its head the traditional, centuries-old arrangement.

It is not at all clear how such a system would operate. At the moment, an advocate at the criminal Bar is retained in a competitive market, in which professional ability is at least a factor in his selection. Even where the barrister is unknown to the solicitor, the latter will have received an account from the barrister’s clerk of the barrister’s strengths and recent experience and he will have been given a choice, perhaps, of one or two other barristers. The solicitor, with his professional knowledge of the case, will choose the barrister who he thinks will best suit his client.

Under the new proposal, however, the clerk in the barrister’s chambers—the chambers from which the Procure Co that is run by the same barristers has agreed to commission services—will have only the accused to consult. There will be no professional intermediary. That is difficult, for all kinds of reasons, for many within the profession to contemplate.

There are further major reservations. How will the new entities set up in sufficient time the administrative and commercial infrastructure required to manage all the complex considerations that are involved both in commissioning services from other lawyers, experts and others, and in competing in a tender exercise for contracts, given that they have no established trading history on which to assess the viability of their bid, particularly if the contract is awarded on price?

However, I say to the Minister that, if these problems can be surmounted, there are clear public gains from allowing the Bar to have access to the commissioning of legal services. First, the Bar is the specialist advocacy profession. The preparation and presentation of a case in court is the major part of the legal services that are provided in criminal litigation and yet the profession that specialises in that core service has until now been unable to participate in managing the delivery of that service. If the Bar is widely acknowledged—as it is—to be a driver of quality and exacting professional standards, there can be nothing but good in allowing it to compete. Secondly, since the cost base of the Bar is low, that will help to keep down costs.

Nevertheless, I say to the Minister that it is plain that, if the Government are interested in this idea, it is essential that the entry of the Bar into commissioning legal services is facilitated by rules that it will be able to adhere to and conditions that it will be able to fulfil from a standing start. The criteria for the awarding of contracts must attach an appropriately high priority to the quality of advocacy and the depth and range of experience in specific areas that are offered by the potential bid. To that end, the promotion of a system of quality-assured advocacy standards, with defined levels of competence, is not only inherently desirable in itself but a necessary element. Similarly the Bar must be given adequate time to prepare for such massive and fundamental change to its structure.

If the Government believe that there is merit in this idea, the Minister must soon indicate so and begin to consider a timetable for change. We know that there will be a legal Green Paper this year. Will it contain the Government’s preliminary view of these proposals for new structures? What view do the Government take of the proposal to pay a single fee for a case without the ring-fencing of the advocacy element within it? As the Minister knows, that alone could dramatically increase the competitive imbalance that I have described.

When will the criteria for the new tender for contracts be set out? What will the Government learn from the recent civil family tender? I understand that a serious problem has arisen from exaggerated overbidding. Some solicitors have applied for contracts far beyond their capacity to cope with; others have been careful to apply only for what they do well. The Ministry scaled down the bids across the board, leaving some well-established firms of good reputation in the field with nothing. How will the Minister prevent such mischief from happening again?

The last Government proposed a draconian reduction in the number of solicitors’ firms able to offer legal services in the criminal courts. I do not hesitate to say to the Minister that although I understand the advantage of having fewer contractors, those considerations must be tempered by a realistic awareness of the damage such an unmitigated approach will do. I hope that the new Government, whom I am proud to support, will measure the impact of their reforms carefully and calibrate them according to clear and transparent principles and criteria. Those must include, above all, a high if not decisive regard for professional quality and skill in both sides of the profession and a clear commitment to entities with proven merit and track records in the provision of legal services in the criminal courts.

I conclude with four critical questions. First, will the Minister assert the Government’s belief in the value of the independent referral criminal Bar as a professional source of essential expertise and quality in the provision of advocacy in the criminal courts? Secondly, will he accept that the criminal Bar has already sustained recent, substantial and even severe cuts in remuneration and that it should not, as a result, have to sustain a disproportionate burden as a result of additional measures of that kind? Thirdly, will he accept that the Bar must be afforded adequate time to adapt its systems and administration before the introduction of the new round of tendering for legal aid contracts?

[Mr David Hanson (Delyn) (Lab)]

The hon. and learned Gentleman says that he wishes funding for the profession to be safeguarded. Given that the comprehensive spending review for the Ministry of Justice proposes a £2 billion cut in its £9 billion budget, where does he think that should fall—prisons, probation, sentencing or other issues? Or does he oppose the Government’s CSR proposals for the Ministry of Justice?

[Mr Cox]

I recognise that the Government must find £2 billion out of a budget of £9 billion, but I ask them to recognise that the Labour Government imposed 13.5% in cuts over the next three years, against a background of consistent reductions in remuneration over the previous seven years.

I say to the Government—I was careful to word my question as accurately as I could—that any burden sustained by the criminal Bar should be proportionate and take into account the measures already passed. I have not asked for the Bar to be excluded from the exercise of necessary retrenchment, nor does the Bar ask it. It asks for fairness and proportionality. It asks for what has gone before—recently, and as a result of the Government to which the right hon. Member for Delyn (Mr Hanson) belonged; the statutory instrument was laid on 6 April—to be taken properly into account.

Thirdly, will the Minister accept that the Bar must be afforded adequate time to adapt its systems? That is crucial, as I said, if the Bar is to enter the commissioning process. It is also important that the means of entry should be facilitated so that it can do so from a standing start.

Finally, will the Minister accept that it is fundamentally in the public interest that the Bar should be able to enter the competitive market for legal aid contracts? If so, although the profession is deeply uneasy about the revolutionary changes that it would impose, as I think he knows, the Bar and its leadership are prepared to work with him and this Government to find new structures and new savings in the criminal legal aid budget. That answers the question asked by the right hon. Member for Delyn.

I hope and believe that in partnership and amity, and above all with a respect for the professional skill, expertise, quality and values represented by the criminal Bar—a novel departure from the attitude of the past decade—solutions can be found, and the vital public interest represented by the criminal Bar can be preserved in its continuing prosperous existence.

--- Later in debate ---

[Mr David Hanson (Delyn) (Lab)]

Thank you for calling me, Mr Bone; I share the pleasure of others in serving under your chairmanship for the first time. I congratulate the hon. and learned Member for Torridge and West Devon (Mr Cox) on securing the debate. I also congratulate my hon. Friend the Member for Kingston upon Hull East (Karl Turner) and the hon. Members for Enfield, Southgate (Mr Burrowes), for Gillingham and Rainham (Rehman Chishti) and for Carshalton and Wallington (Tom Brake) on contributing to it. It is also worth mentioning the hon. Members for Enfield North (Nick de Bois), for Broxtowe (Anna Soubry) and for South Swindon (Mr Buckland) who have sat through the debate and shown an interest in this matter, and the contribution of the Whip, the hon. Member for Kenilworth and Southam (Jeremy Wright). It shows that there is considerable interest in the matter before us.

The hon. and learned Member for Torridge and West Devon began by saying that the art of advocacy was key to his profession. I declare a non-interest in that I am not a barrister and never have been. Today, I am undertaking the art of advocacy on behalf of my noble Friend Lord Bach, who was the Minister in the Department responsible for these matters, and obviously cannot speak here today and defend the previous Government’s record. Prior to the election I had responsibility for prisons, probation and, latterly, the police, so I contributed to the work of the Bar in that role. I hope we can discuss some of the key issues that the hon. and learned Gentleman raised and hear some of the solutions that the new Government wish to bring forward.

I begin by, in a sense, disagreeing with the hon. and learned Gentleman in what I hope is a positive, constructive and amiable way. The previous Government did recognise that the Bar and the criminal Bar have an important role in our democratic society. I wish to place on the record the fact that the right to a fair trial and representation is essential in a democratic society, because it is just as much a part of our democratic process as this House and this debate today. As my hon. Friend the Member for Kingston upon Hull East also recognises, there are challenges in that role that demand skills, professionalism and the support of Government, not only to achieve independence, but to recognise and value the profession as a whole. I hope that there will be common ground on that, whatever our political differences on other issues.

[Mr Cox]

I hope hon. Members understand that the, perhaps, acerbity with which I referred to the previous Government’s record was coloured by remarks from successive Home Secretaries about bent briefs and lawyers who tried too hard. In the light of the extremely enlightened comments that the right hon. Gentleman has just made, I am sure he will agree that those were unfortunate remarks, which gave the profession the belief that its values were not shared by the then Government.

[Mr Hanson]

I said what I said, and I hope the hon. and learned Gentleman recognises that I know the Bar has a valuable role and that it serves a full position in our democratic society.

The previous Government had to look at the difficult decisions that we faced in terms of the potential deficit, which we are now challenged to look at across the board, and at how we find efficiencies in the way in which we support the legal aid system financially. My noble Friend Lord Bach, as Minister before the election, tackled that issue head-on. The hon. and learned Gentleman referred to the notice and order issued on 6 April, before the dissolution of Parliament, which placed on record some decisions that we had to take.

In 2008-09, £2.1 billion was spent on legal aid between the criminal and civil budgets; that is an important amount of resource. It is important work and it is vital that we recognise that legal aid is essential, as is the advocacy role, in developing a civilised society. People depend on legal aid for access to representation in both criminal and civil cases, particularly those who have difficult legal problems, particularly in times of economic hardship. Legal aid practitioners provide a fantastic service and should be paid accordingly. As the previous Government recognised, there are issues with how we rebalance the funding, identify the best efficiencies and run the system in the future, and the Minister will have to face those challenges.

We have seen a huge increase in the legal aid budget from £545 million in 1982-83 to £2.1 billion in 2008-09, which is an average increase of 5.3% a year. The previous Government believed that that was unsustainable, as I believe the current Government will.

[Mr Hanson]

I accept what the hon. Gentleman said. I was coming to the fact that at the moment the criminal legal aid budget is about £1.1 billion of the £2 billion, and that the civil and family legal aid budget is around £900 million. What has happened over the years—this is why Lord Bach made his decision when he was the Minister—is that the criminal law side of the legal aid budget was beginning to eat into the resources available for the civil and family legal aid budget.

[Mr Cox]

Will the right hon. Gentleman give way?

[Mr Hanson]

I want to give the Minister time to respond, but I will give way for the last time.

[Mr Cox]

Does the right hon. Gentleman think that the fact that the statute book is now replete with another 3,000 criminal offences, which have been created since 1997, might have something to do with expansion of the legal aid budget?

[Mr Hanson]

There are cases to be made for all sorts of things. The fact that crime fell by 36% might have something to do with some of the issues that we brought forward over the past 13 years, but such matters are for a wider debate in due course.

We had to consider how to make savings on that budget, and the hon. and learned Gentleman mentioned his concern that we made cuts of around 4.5% a year for the following three years, including this year, which totalled about 13.5%, in advocates’ graduated fees, coupled with extending those fees to cases due to last up to 60 days. We had a choice, and Lord Bach could have taken that hit in one go—proposals were before him to make a drastic cut of 17.9% immediately—but we chose to phase that in over three years as part of the savings that we knew we had to make in the Ministry to ensure that we met the coming CSR obligations. The Minister will surely face similar obligations, perhaps with the increasing difficulty of a further £2 billion of savings in his Ministry’s budget if we believe what the Lord Chancellor and other hon. Members have said. My hon. Friend the Member for Kingston upon Hull East said that that would be very difficult for the Ministry and the people who depend on legal aid, particularly if further cuts to the service are driven forward over and above the challenges that we had to face and which the hon. and learned Gentleman mentioned.

The Labour Government highlighted the importance of driving down costs and of ensuring that we consider areas such as the tendering process and developing alternatives. We considered a range of reforms and, as the hon. Member for Enfield, Southgate said, more must be considered, such as high-cost cases and the status of the LSC. We had planned to introduce proposals, if we were re-elected, on agency status for the LSC. Efficiencies could be made in the system as a whole, and we need to consider them generally to ensure that we receive extra value from the system.

I want to give the Minister 15 minutes to respond, but I shall touch on three areas of concern to Labour Members. As my hon. Friend the Member for Kingston upon Hull East said, we face proposed cuts of £2 billion in the Ministry of Justice over the next three years if we believe what is said about the CSR. Will the Minister say whether that will fall in part on legal aid in the next year and beyond? If not, how does he expect the Prison Service, the probation service, sentencing policy and other aspects of the Ministry’s funding to be able to meet that level of cuts, which I believe are unnecessary given the choices that the new Government could have made on those issues and public spending?

We were not afraid of saving resources, which is why we introduced the measures that the hon. and learned Gentleman is concerned about, but a line must be drawn, and I would welcome the Minister’s support for protection of the public and defence of people’s right to enjoy the services of the profession. What consultation will he have with the Bar and service users on those issues and the points that have been mentioned? How will he ensure that the social and welfare aspects of the legal aid budget—this was raised by my hon. Friend the Member for Kingston upon Hull East—for those who depend most on legal aid services are considered? Such people depend on those for housing and employment issues, and in civil cases dealing with social welfare concerns. An article in The Times in August tantalisingly raised the possibility of that being a major target for the Government. That choice would be wrong, because the Government would again ensure that the burden of public spending cuts fell on those who are least able to bear them: the vulnerable, and those who need the service most and do not have recourse to other forms of finance for their legal requirements.

There are key issues for the Government to address, and I welcome this debate. The Labour Government took a responsible approach to these issues, and tried to save resources efficiently and effectively. Opposition Front-Bench spokesmen will watch carefully to see how the Government respond to the challenges that they, not the economy, have set for themselves ideologically to cut public spending still further. We shall watch to see whether that impacts on the poorest and damages the safety of our society through other choices being made on prisons, probation and sentencing.