Corporate Economic Crime

Dominic Raab Excerpts

Tuesday 3rd November 2015 Westminster Hall

[The Parliamentary Under-Secretary of State for Justice (Mr Dominic Raab)]

I am grateful for your advice, Mr Stringer, and it is a great pleasure to serve under your chairmanship. At the outset, I should say on behalf of the Solicitor General that he is caught up in the Immigration Bill Committee, and although I understand the chagrin about that of the shadow Justice Minister, the hon. Member for Newcastle upon Tyne North (Catherine McKinnell), my hon. and learned Friend is attending to important business there.

I pay tribute to the hon. Member for Ealing North (Stephen Pound) for securing the debate and for delivering a tenacious, eloquent speech in his usual fashion. He made some excellent points. I fear that he may have rather lost me at Arthur Scargill, even if other Opposition Members were rather more enthused, but none the less, he made some very important points. I also formally recognise the important contributions from the hon. Members for Neath (Christina Rees), for Aberavon (Stephen Kinnock), for Dumfries and Galloway (Richard Arkless), for Edmonton (Kate Osamor) and from the shadow Justice Minister.

I think that we all agree that the prosecution of corporate economic crime is vital and can be complex. We have heard about some of the challenges this morning and there are others, but there are opportunities, too, and we should be mindful of seizing them as best we can. One issue has been the identification principle, which applies in many instances of economic crime and sets a clear bar that must be met before a corporate can be found criminally liable. Technical challenges around the disclosure of material, for example, can also be very significant, not least given the huge volumes of material that need to be sifted and potentially disclosed in many of these cases.

Much has been made of section 7 of the Bribery Act, which makes it an offence for corporates to fail to prevent bribery in certain circumstances. As important as that provision and model is, I did rather feel that hon. Members have pinned a huge amount of confidence—I would not say blind faith—in a model and provision which has not yet secured any convictions, although I appreciate that it was authored under a previous Government. To be clear—I am not saying that the hon. Member for Neath was suggesting this—I do not think that anyone seriously blames the Government for failing to enforce that. Prosecutions in this country are rightly independent from Government interference and we want to see full use made of the measure. I just say—the hon. Member for Ealing North will perhaps want to address this point—that Opposition Members have pinned rather a lot on a measure that has not yet delivered a prosecution, much as we wish it will in the near future.

[Stephen Pound]

I entirely agree with the Minister’s point, but there has, in fact, been one self-referred case under section 7 of the Bribery Act. It took place in Scotland and I am not entirely sure how the jurisdiction applies, but it was a self-referred case using precisely that template.

[Mr Raab]

I am grateful for that intervention. I stand better informed than I was before, but obviously I cannot comment on individual prosecutions or cases until they are in a position to conclude.

Much has been made of the Conservative manifesto commitment, rather caricaturing the nature of what was very clearly stated and ignoring the fact that we are specifically further considering legislation relating to tax evasion. As hon. Members will know, but this is an opportunity to remind them, the consultation on that closed on 8 October. I am sure that further announcements will be made in due course.

The shadow Justice Minister made some of her most powerful points on deferred prosecution agreements, which were introduced in the last Parliament and represent a significant opportunity for prosecutors to take action. I think that they rather refute the suggestion that this Government have been either lax or demonstrating inertia in trying to develop the tools we need to deliver convictions and accountability in this area.

It is also worth saying that, as a basic principle, we should try to exercise existing law enforcement powers to the full before we go back to Parliament and ask for more. I fear that it was rather the epitaph of the previous Labour Government to legislate hyperactively and leave the statute book littered with offences that were not really ever used in practice, so I make no apology for saying that we really ought to be crafting criminal legislation on the statute book that will deliver convictions in practice.

The hon. Member for Aberavon, who unfortunately is no longer in his place, made an interesting speech. He widened the debate to talk about systemic risk, which is an important point, and expressed some of the concerns about the 2007-08 financial crisis that are understandably still feeding calls for further action to be taken now. In that context, I highlight the action that has been taken on the banks by the coalition Government and this Conservative Government in relation to capital ratios, the bank levy and regulating to ensure proper separation between the investment and retail arms of banks. He was absolutely right to make that point, but the whole system of regulation on systemic risk looks fundamentally different today from when the Labour Government left office in 2010.

Going back to the identification principle, we have heard that the law on corporate and criminal liability has that very much at its heart. The identification principle means that a corporate is criminally liable only if a person who is its controlling mind and will is criminally liable. In most cases, there will be liability only if a director is criminally liable. Hon. Members made perfectly reasonable points about that and about the related difficulties and challenges. Many other assertions were made about the state of the current law, such as that the evidential threshold is too high and that it makes it easier to prosecute smaller businesses than larger corporates and particularly difficult to prosecute large and complex multinational corporations. Those are all valid points, rather inherent, though, in trying to regulate and enforce offences in this sector. We certainly do not want small businesses to be hammered while the big ones get off scot-free. That is absolutely the wrong approach and one that we are mindful of the need to avoid.

Other points made about the current state of the law are that it can result in corporates escaping prosecution where there is criminal wrongdoing on behalf of a corporate and the corporate benefits; it does not do enough to deter economic crime in the UK or to promote good corporate governance; and it puts UK prosecutors at a disadvantage compared with some law enforcement agencies overseas where the attribution of corporate criminal liability does not have such a high threshold. The hon. Member for Ealing North made the point about the United States very well. Some have called for a much broader vicarious liability for companies, closer to the US model.

I recognise the point that a different approach, combined with the DPAs introduced in 2013, could have a powerful impact. We need to consider the criminal legal basis along with the prosecutorial tools. That combination is the key to getting more convictions and plea bargains under the DPA arrangements. Notwithstanding the common desire for accountability and convictions, we need to take half a step back and acknowledge the need to be careful to guard the basic principles of justice that we all, at least notionally and rhetorically, hold dear—the presumption of innocence and the burden of proof—and ensure that we have a focused, targeted law enforcement system.

The Bribery Act 2010 contains the much-discussed new offence of failure to prevent bribery by a person associated with the company, which allows prosecutions of corporates for failure to prevent bribery in cases in which the identification principle threshold could not be reached. There have been suggestions for further change by extending the Bribery Act model to other areas. Under that legislation, a commercial organisation is guilty of an offence if a person associated with it bribes another person while intending either to obtain or retain business for the organisation, or to obtain or retain an advantage in the conduct of its business. The legislation sets out that it is a defence for the organisation to prove that it had in place adequate procedures designed to prevent people from undertaking such conduct. That is the balance struck.

The legislation relates specifically to bribery—a very serious economic crime—and is designed to encourage more responsible corporate behaviour. Extending section 7 as some have suggested could criminalise commercial organisations that fail to prevent other types of economic crime, including fraud and tax evasion; I am sure that hon. Members can think of other examples. Some people have urged the Government to go even further and advocated a more dramatic change, calling for legislation to create an offence of vicarious liability. That would be far more like the US model.

As I think was mentioned, the Government published last December the “UK Anti-Corruption Plan”, which included the commitment to consider the case for a new offence of a corporate failing to prevent economic crime. Much has been made of the statement made on 28 September by the Under-Secretary of State for Justice, my hon. Friend the Member for South West Bedfordshire (Andrew Selous), that we will not be carrying out further work on this specific point at least at this time. It is important to understand the reasons for that. Again, they have been rather caricatured, although not intentionally; I would not say that.

The reasons for not taking the work forward at this stage are as follows. First, the UK has corporate criminal liability and commercial organisations can be and are being prosecuted for wrongdoing. Secondly, as I have mentioned, there have been no prosecutions under the Bribery Act offence, so it is not as though we have a huge amount of concrete practice to learn from—in fairness, that point was also made by the hon. Member for Neath. Thirdly, as a result of that and the information and evidence that we get as we look at whether the case is made for new offences, there is little concrete and specific evidence of the wider corporate economic wrongdoing that we should now target that is currently not unlawful and could reasonably be caught by a proposed new offence. If hon. Members want to tell me about a specific area and tailored offence, I will be all ears.

[Catherine McKinnell]

It does not sound as though the Minister will go on to explain how he intends the Government to live up to their manifesto pledge. He indicated earlier that it was in relation to tax evasion only, but the Government did in their manifesto state:

“We are also making it a crime if companies fail to put in place measures to stop economic crime, such as tax evasion, in their organisations and making sure that the penalties are large enough to…deter.”

If the Minister explains how the Government will fulfil that manifesto pledge, that will give hon. Members reassurance today.

[Mr Raab]

I thank the shadow Minister for her intervention. She has not come up with a specific offence beyond tax evasion.

[Catherine McKinnell]

rose—

[Mr Raab]

I will not give way again at this point, but perhaps I will shortly.

The hon. Lady referred to the manifesto commitment, which specifically cites tax evasion. I will go on to say a little about that. I thought that one of the best points in her original speech was about the intelligence gap. That feeds the point that I have been making that we should not confuse the difficulties or challenges that we have in enforcing, which is what the intelligence gap is all about, with the breadth of the criminal base that we have on the statute books. That is a very important distinction, which she made rather well.

The bottom line is that there is no point in legislating for the sake of it. The hit and hope approach does not do any good; in fact, it feeds public mistrust. Frankly, we saw far too much of that under the Labour Government. I want to know that when we legislate we are putting in place a model, a criminal offence on the statute book, that will deliver prosecutions, convictions and the wider deterrent effect that we all want.

[Richard Arkless]

The Minister uses the vivid phrase “hit and hope” and has given three reasons why the Government will not pursue the position in their manifesto. I ask this very simple question: were those three reasons not prevalent before the manifesto was written?

[Mr Raab]

We are taking forward the manifesto commitment. We have an ongoing consultation on tax evasion and, if the hon. Gentleman bears with me, I will come on to it. The other point made in the manifesto commitment is about the need to punish and deter. That is not just about legislation; it is about the enforcement regime. Over the years, hon. Members have been far too willing just to nod legislation through without thinking properly about how it will be enforced in a targeted and effective way.

Having said all that, I can give examples of very good outcomes, including in the high-end serious and complex cases dealt with by the Serious Fraud Office, which emerge from within the existing legislation and even pre-Bribery Act in some instances. There are other outcomes aside from criminal prosecutions. Deferred prosecution agreements are a further and significant tool. Civil recovery orders are an option.

The SFO cases involving prosecution or substantial civil recovery orders for a corporate have included the cases of AMEC, BAE, Innospec and Macmillan. Fines and civil recovery orders for more than £40 million were issued in SFO cases between 2008 and 2012. Nearly £30 million was paid by BAE to the people of Tanzania, following a settlement with the SFO and the US Department of Justice. More recently, last year, the SFO completed the Innospec and Smith & Ouzman prosecutions, both of which resulted in the conviction of the corporate as well as senior officials in relation to foreign bribery. And the SFO had its first prosecutions under the Bribery Act—they were associated with a biofuel fraud—albeit not under section 7.

The director of the SFO has said that there are current cases that may prove suitable for prosecutions under section 7 of the Bribery Act. Hon. Members will appreciate that I cannot go into too much detail on things that are subject to either a pending prosecutorial decision or investigation. The Crown Prosecution Service and Her Majesty’s Revenue and Customs have had important successes, too, and some have also been very high-profile.

On tax avoidance, HMRC is responsible for policing the tax and excise laws. It has a range of tools and powers to secure compliance, including the power to conduct criminal investigations in appropriate cases in line with HMRC’s criminal investigation policy. Since 2010, HMRC has increased the number of criminal investigations leading to prosecution by 500%. That is a very clear example of where we have managed not only to have the legislation in place but to deliver a quantum leap in successful law enforcement. I am sure hon. Members from all parts of the House agree that that is what we should be aiming for.

Marketed tax evasion schemes have been one strand of priority work for HMRC during this period, and the CPS has brought a number of complex prosecutions against individuals. There are a number of high-profile examples, including Vantis and cases relating to the film industry. I have acknowledged the suggestions that have been made about extending the remit of section 7. Although Ministers have decided to halt that work for the time being, the criminal law is always monitored and if any clear and well evidenced difficulties come to light on which we can take targeted action, we will, of course, do so.

A proposed new offence of failing to prevent the facilitation of tax evasion, whether onshore or offshore, was the subject of public consultation by HMRC between July and October this year. The consultation closed on 8 October, and the Government are considering the responses. That clearly falls within the area of the manifesto commitment that Opposition Members have enjoyed citing. That work is ongoing.

Deferred prosecution agreements, which became available on 24 February 2014, are one of the critical law enforcement tools that the Government have brought into being. To date, no DPAs have been concluded, but I am aware that a number of cases in the pipeline may yield DPAs. Under a DPA, a prosecutor charges a company with a criminal offence, but proceedings are automatically suspended. The regime has been designed carefully and we consulted on all its aspects. There are important safeguards in place, which is why we need to be a bit careful about the rather gung-ho suggestion that we should follow the American approach lock, stock and barrel. If we did so, concerns would be raised by Members on both sides of the House about the lack of safeguards in place.

[Catherine McKinnell]

I agree with the Minister that a gung-ho approach should never be taken to any of those matters, but does he acknowledge that significant concerns have been raised about the DPA tool not being as effective as it could be, while it remains so difficult to bring prosecutions against corporations, because the identification principle has set the bar for prosecution so high?

[Mr Raab]

The hon. Lady is absolutely right to say that the combination of the law enforcement tool—in this case, the DPA—and the criminal base will be the key to securing convictions. We will constantly look to fine tune and sharpen up that double act of legislation and law enforcement. If she has any suggestions about how that can be done in a sensible way, I will consider them. I am not sure that the extension of section 7 more broadly and exponentially will be the panacea that she is looking for, but if she can come up with specific, tailored and targeted areas in which that might be the case, I will consider them.

[Catherine McKinnell]

Will the Minister give way?

[Mr Raab]

I will give way shortly, but I want to make a little bit of progress, because I am mindful of your advice about timing, Mr Stringer. I want to talk briefly about the code of practice for DPAs that the director of the SFO and the DPP issued on 14 February 2014. That followed the consultation, and I am sure that the hon. Lady made her views known at the time. Prosecutors should have regard to the DPA code when they negotiate a DPA, when they apply to the court for approval of a DPA and when they oversee a DPA after it has been approved by the court. A DPA can be appropriate where the public interest would not be best served by entering into a prosecution. Entering into a DPA will be a transparent event, and the process will be supervised by a judge. That is important, because even if a DPA is in place, we want justice to be seen to be done as well as to be done.

I recognise that some organisations and others have raised concerns about the amount of information that will be available about DPAs as they are being negotiated. Letters of invitation to a company to enter into a DPA negotiation are confidential, for understandable reasons. The code of practice for prosecutors explicitly states that the letter of invitation to a company to enter into negotiations should make an undertaking in respect of confidentiality about the fact that DPA negotiations are taking place. Negotiations are, and need to be, confidential in the early stages to encourage co-operation on the part of the corporate. Any DPA that is agreed will be publicly announced, and that will provide transparency and accountability. As soon as a DPA is approved, the court must make a declaration to that effect, along with reasons, in open hearing. Unless it is prevented from doing so by an enactment or order of the court, the prosecutor will be expected to publish the DPA on its website.

I hope that hon. Members will agree that there is much to be positive about. Good results are being achieved in cases across the prosecuting authorities. We are giving active consideration to further changes where there is evidence that they are warranted, particularly in relation to tax evasion, but we remain open-minded if a case can be made broadly from a specific evidence base.

Outcomes other than prosecution should be acknowledged and welcomed. It may not always be in the public interest for a company to be prosecuted, and that is one of the considerations that led to the DPA regime. The director of the SFO, David Green CB QC, has said that he expects the first DPAs to conclude this year. I know that hon. Members will join me in looking forward to seeing the first successful outcomes. We are seeing a step change in the law enforcement model and the vigour with which it has been applied since 2010. The tax gap was reduced to record levels in 2014. The SFO’s asset recovery against serious criminals has been expanded; in 2014-15, 26.5 million financial orders were made. Since 2010, HMRC has increased the number of tax evasion criminal investigations leading to prosecution by 500%, as I have said, and we also have the DPAs. A huge amount of action is being taken. I am grateful for the contributions of hon. Members from across the House today.

Oral Answers to Questions

Dominic Raab Excerpts

Tuesday 3rd November 2015 Commons Chamber

[Callum McCaig (Aberdeen South) (SNP)]

2. When he plans to launch his consultation on plans to repeal the Human Rights Act 1998.

[The Parliamentary Under-Secretary of State for Justice (Mr Dominic Raab)]

May I start by expressing my shock and sadness at the tragic death of Bailey Gwynne last Wednesday at Cults academy in the hon. Gentleman’s constituency? Our thoughts are with his family and friends.

We will bring forward proposals for a British Bill of Rights to replace the Human Rights Act later this autumn. Preparations are going well, and we look forward to consulting widely, including with the devolved Administrations.

[Callum McCaig]

I thank the Minister for his condolences after the tragic events in my constituency. The thoughts of everyone in the Chamber are with the families affected.

As the Minister will know, human rights are not reserved under schedule 5 of the Scotland Act 1998, so the Human Rights Act cannot be repealed and replaced with a Bill of Rights without the legislative consent of the Scottish Parliament—the First Minister of Scotland has said it is inconceivable that that would pass through Holyrood. With that in mind, why are the Government wasting money pursuing something that they cannot do?

[Mr Raab]

I thank the hon. Gentleman for his question but I am afraid that is not quite right. Revising the Human Rights Act can be done only by the UK Government. The implementation of human rights in a wide range of areas is already devolved to Scotland, and I urge the hon. Gentleman to focus his efforts in that area.

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

Given the constitutional importance of this issue, will my hon. Friend confirm that the consultation will result in a draft Bill that will be subject to full pre-legislative scrutiny in this House?

[Mr Raab]

I thank the Chair of the Justice Committee. We will be engaging in full consultation, but I hope my hon. Friend will not mind if I do not trail the precise terms of that at this moment.

[Wayne David (Caerphilly) (Lab)]

As we have heard, the Human Rights Act is fundamental to devolution in Scotland and there are different legal views about how changes might be introduced. The Act is also fundamental to Wales, and it is the cornerstone of the Good Friday agreement in Northern Ireland. Do the Government recognise that abandoning the Human Rights Act may have consequences that they had initially not thought of?

[Mr Raab]

We have engaged in consultation and taken a pause at this stage precisely to ensure that we work through all the different points. The hon. Gentleman mentions Scotland, and he will know that in 2014 and 2015 YouGov polling showed consistent Scottish support for a Bill of Rights to replace the Human Rights Act. On that specific question, in 2011 YouGov found that 61% of Scots wanted the UK Supreme Court and this Parliament to have the last word in this country and across Britain, rather than the European Court of Human Rights.

[Suella Fernandes (Fareham) (Con)]

The article 8 right to family and private life under the Human Rights Act has been stretched to the extent that it is laughable, pitiful, and often costly and unjust. Will the Minister reassure the House that the abuse of that right will be dealt with in the consultation, to reinject proportion and to strike the right balance for fairness?

[Mr Raab]

A whole range of issues will be covered in the consultation and there will be plenty of opportunity to receive and listen to views, especially on article 8. That provision has clearly created problems concerning the deportation of foreign national offenders, and I would have thought that people across the House and the United Kingdom would support our consultation on that.

[Mike Freer (Finchley and Golders Green) (Con)]

3. If he will take steps to ensure that coroners provide an out-of-hours service for faith communities.

--- Later in debate ---

[Ms Tasmina Ahmed-Sheikh (Ochil and South Perthshire) (SNP)]

8. Whether he plans to hold a consultation on UK membership of the European convention on human rights.

[The Parliamentary Under-Secretary of State for Justice (Mr Dominic Raab)]

As I have made clear to the House before, although we cannot rule out leaving the ECHR for all eternity, our current plans for human rights reform do not involve leaving it.

[Ms Ahmed-Sheikh]

The Minister will be aware that the ECHR is, of course, enshrined in the Scotland Act 2012, so the UK cannot withdraw from it without fundamentally undermining the devolution settlement. Why is the Minister considering doing that?

[Mr Raab]

As I made clear, our current plans do not involve our pulling out of the convention, although we cannot rule it out for all eternity. The Human Rights Act 1998 already has an uneven application of rights to the devolved Administrations because of the devolved settlement. In Scotland, for example, the hourly rousing of detainees in police cells is unrelated to risk; in England and Wales, we do not have that, as it is focused on those who are vulnerable. I encourage the hon. Lady to focus her fire on addressing devolved issues such as that rather than pretending that there is some imminent threat to human rights from Westminster.

[Michael Fabricant (Lichfield) (Con)]

May I remind my hon. Friend that it was the English Parliament that brought in the Bill of Rights in 1688 and the British Parliament that brought in the Human Rights Act only 310 years later in 1998? Like so much legislation at that time, there were unintended consequences. Will the Minister therefore not listen to Opposition Members and get on with it?

[Mr Raab]

My hon. Friend expresses himself in his usual tenacious and powerful way. It is true that the Conservatives have a long tradition of upholding freedom under the rule of law. We want to protect and strengthen that tradition, but we also want to avoid human rights being abused. We want this place to have the last word on where the bar is set for human rights, and we want the Supreme Court to be the ultimate body deciding on and interpreting them.

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

I thank the Minister for confirming that there are no plans to withdraw from the ECHR at this stage, but I note that he earlier confirmed that there will be a consultation on repealing the Human Rights Act and replacing it with the Bill of Rights. As he knows, the Human Rights Act applies across the whole of the United Kingdom, including Scotland. How does he propose to engage the people who live in Scotland, their Government at Holyrood and their elected representatives in this Chamber in his consultation on repealing the Human Rights Act?

[Mr Raab]

Fully, expansively and at great length.

[Joanna Cherry]

Last week, despite objections from SNP Members in a debate on the Floor of the House, Conservative MPs joined forces with Labour MPs to ensure that no MPs representing a Scottish constituency would be on the Joint Committee on Human Rights, which scrutinises the compatibility of UK-wide Bills with human rights. In the light of that decision, how does the Minister expect us to have confidence that Scottish Members of Parliament will be fully involved in scrutiny of the implications of the Government’s consultations on repealing the Human Rights Act?

[Mr Raab]

I give the hon. and learned Lady my personal undertaking to talk to her and any other colleagues, as she wishes, when the time comes for publication.

[David T. C. Davies (Monmouth) (Con)]

Does the Minister agree that any successor to the Human Rights Act should ensure that no compensation is paid in future to foreign nationals who move into foreign war zones and are then imprisoned by foreign countries? The British taxpayer should not be responsible for what takes place.

[Mr Raab]

My hon. Friend, too, tenaciously raises these issues of extraterritorial jurisdiction and remedies for cases where people have behaved in an unsavoury or nefarious way. We will have full opportunity to look at all those issues in detail during the consultation.

[Matthew Pennycook (Greenwich and Woolwich) (Lab)]

9. What plans he has to reform the court and tribunal estate; and if he will make a statement.

--- Later in debate ---

[Dr Philippa Whitford (Central Ayrshire) (SNP)]

T5. In the new ministerial code, published on 15 October, Ministers are obliged to comply with “the law”, but the phrase “including international law and treaty obligations and to uphold the administration of justice”has been removed. The former Attorney General did not like that phrase very much, so does the Minister feel this changes the obligation to comply with international law?

[The Parliamentary Under-Secretary of State for Justice (Mr Dominic Raab)]

I thank the hon. Lady for her question. There has been no change in obligations on Ministers. The code reflects the duty to obey the law. We have long had a dualist approach to international law, and it is also important that that is upheld.

Civil Legal Aid

Dominic Raab Excerpts

Thursday 15th October 2015 Westminster Hall

[The Parliamentary Under-Secretary of State for Justice (Mr Dominic Raab)]

It is a pleasure to serve under your chairmanship today, Mr Brady, for what I believe is the first time—certainly as a Minister. I am grateful for the opportunity to respond to the debate. I am sure many colleagues will have noticed that I am not the Minister responsible for legal aid, and I want to convey apologies on behalf of my hon. Friend the Under-Secretary, the Member for North West Cambridgeshire (Mr Vara), who is caught in the joys of the Committee on the Welfare Reform and Work Bill. I shall address issues of substance—technical and detailed as they are—and principle as best I can. If I cannot deal with them I shall follow them up; or I am sure my hon. Friend will be able to.

I welcome the report and scrutiny, and particularly the tenor of the approach to the issue taken by the Chairman of the Select Committee on Justice. He began by pointing out that all the reforms are happening in the context of trying to deal with the deficit, and noted that the Ministry of Justice is not a protected area. There are no easy choices in this area and I welcome his emphasis on that. At the same time, I think it is agreed across the House that legal aid is a vital element in any fair justice system and I am proud to say that our system remains very generous. Last year we spent £1.6 billion on legal aid. That is about a quarter of the Department’s expenditure. All sorts of issues arise in connection with methods and modalities of legal aid reform—I thought that the Select Committee Chairman handled this aspect of the matter well—but it is incumbent on those whose bottom-line position is that we need to spend more to explain responsibly where the money will come from. They should explain whether it would be from prisons, within the Ministry of Justice budget. We have just had a debate on prison reform and we all understand how difficult the pressures are there. If more spending on legal aid is not to come from the Ministry of Justice budget will it be from the schools or health budgets?

[Karl Turner]

The point, which the Committee made very well, is that there is not necessarily a real saving. There may be a top line saving. Legal aid spending may be reduced, but that is going down the road to another Department. Some other area has to pick up the bill in the end.

[Mr Raab]

That is not correct or accurate and I will address the point in detail shortly. The hon. Gentleman must face up to the fact that the shadow Justice Secretary in 2011, the right hon. Member for Tooting (Sadiq Khan), made it clear that the Labour party’s position then was that cuts would have to be made. I have heard little of substance from the hon. Gentleman other than that the Labour party, even under its current leader, is punting the whole issue into review. It sounds a little to me as if there is a lot of critique but not many positive ideas about what to do.

[Alex Chalk (Cheltenham) (Con)]

In the context of the need for cuts, should we not bear it in mind that one of the issues of concern to the Committee was the underspend on legal aid? There were concerns about lack of information about its continued availability. Is not it important to ensure that where there is legal aid those who may be entitled to it are notified of that, to ensure that they get access to justice?

[Mr Raab]

My hon. Friend is right and that is a more legitimate question to raise.

For all the bean-counting, and the importance of the deficit, the Government have a responsibility to ensure that those in the greatest hardship, at times of real need, are provided with the resources to secure access to justice. As well as being grateful to the Select Committee Chair, I am grateful to all hon. Members in this and the previous Parliament for their diligent and careful scrutiny of our legal aid reforms. Some fair points have been made in the reports, and by the Chairman today.

When the programme to reform legal aid commenced in 2010, the scale of the financial challenge faced by the Government was unprecedented, so we had to confront those difficult decisions. It was our clear intention to remove legal aid for some types of cases while protecting access to justice in key areas. That is why we have sought to make sure that legal aid remains available for critically important cases: where someone’s life or liberty is at stake; where they may, for example, lose their home; in cases of domestic violence; or where children may be taken into care. We were clear about wanting more cases to be diverted from court where suitable alternatives are available. Let us face it; the justice system is there not for lawyers but for society, citizens and victims. There is no doubt that in many cases the court should be the last, not the first, resort.

The changes we had to make to legal aid have been contentious. They were debated extensively, with amendments made throughout their passage, before they were approved by Parliament. Those changes need to be judged fairly, given the passage of time. Yes, the reforms in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 have made a considerable contribution to my Department’s programme to reduce its spending, and we are on course to achieve our planned savings; but legal aid continues to remain available where it is most needed. For example, last year we began funding legal representation on more than 46,000 new proceedings under the Children Act 1989 and almost 14,000 proceedings related to domestic violence protective injunctions. Those are the kinds of cases where it is really important that there is still a safety net.

We have also made sure that funding will be provided, where it is needed, through the exceptional funding scheme. That scheme has been criticised and it remains the subject of continuing litigation. I am sure that hon. Members will appreciate that I cannot comment on that litigation. The exceptional funding scheme has never been intended to provide a general power to fund cases that fall outside the wider generic scope of legal aid. That is not its purpose. The scheme is expressly aimed at making sure legal aid is provided when it is required strictly under the European convention on human rights or otherwise under EU law. In the two years following the implementation of LASPO we have granted exceptional funding in almost 300 cases, and the number of grants is rising with each quarter. In the most recent quarter, April to June 2015—I think that the same figures were cited by the Select Committee Chairman—there were 121 grants, the highest number since the scheme began and a three-fold increase on the same quarter of the previous year.

That the scheme has been subject to litigation is not surprising: it is a new regime, so litigants will seek to test its limits, particularly given the professional sector we are talking about. Having said that, we will listen to the concerns of the courts and address them where necessary—for example, by updating guidance or amending regulations to reflect the detail of the latest case law. My hon. Friend the Chair of the Select Committee made a point about the complexity of the forms; we are looking at that and will see whether we can simplify how they are presented.

Litigants in person are not a new feature of our justice system. People involved in litigation are engaged in a range of disputes and have a range of different needs and capabilities. For many people, representing themselves might be the right choice, whether because they literally want their day in court, physically; because of financial considerations; or because of the nature of the case. Litigants in person have always been a feature of the family justice system. Family court judges are well practised and rather good at stretching and striving to find the right kind of support and to allow flexibility so that litigants in person can give the best evidence possible.

I am not saying that we should disregard the impact of the reforms on litigants in person. In anticipation of an increase in numbers, right at the outset we put in place £370,000 of extra support for organisations, including new guidance. We have kept that under review and, where there have been concerns, we have taken further action, which is why we announced £2 million of further support for litigants in person in October last year.

[Karl Turner]

Is the Minister suggesting that the significant increase in litigants in person is based purely on the choice of the litigant, rather than the fact that they are just not in the position to access a lawyer, whether because of an advice desert in the area where they need advice or for other reasons?

[Mr Raab]

No. As the Chair of the Select Committee pointed out, we are talking about behavioural conduct—human beings in very difficult situations. Sometimes their lives might be chaotic or difficult, or they might be under pressing conditions. I am not sure that we can say precisely why it has happened, because there could be a variety of reasons. The fact is that there is now a new litigants in person support strategy in place, led by the advice, voluntary and pro bono sector, which builds on domestic and international advice and evidence. Progress has been made, with increased provision of face-to-face, phone and online support.

It is not right to claim that increasing numbers of litigants in person have created knock-on costs that undermine savings from legal aid reform. The National Audit Office looked at the matter very closely and reported that the additional costs of the changes are relatively small compared with the gross figures—we are looking at around £3.4 million a year, compared with the scale of the civil and family legal aid savings achieved, which the NAO estimated at around £300 million a year. The suggestion about knock-on costs is therefore just not right.

Encouraging greater use of mediation has been a key plank of our wider reforms to the justice system, and it is germane here. Mediation can a be quicker, cheaper and less stressful means of dispute settlement than protracted litigation. It is right that we try to keep a whole range of disputes outside of the courts. As I said earlier, the justice system is there for citizens, not just lawyers. Mediation also plays a role in reducing conflict and helping the parties to communicate better with each other.

Admittedly, the volume of individuals diverted from court into family mediation was not as expected following the reforms, but family relations are difficult to predict, particularly on a societal scale. Nevertheless, we acted quickly to address matters when it became clear that the behavioural shift was not being achieved to the degree that had been hoped for and estimated, although it was only an estimate. The Family Mediation Task Force was established in January 2014 to respond to the situation, and we accepted many of its recommendations.

[Robert Neill]

I understand the point the Minister is making, but, perhaps precisely because it is difficult to predict these things, would he accept that it is not realistic to wait three to five years for a review? Would he be prepared to review the situation in this coming year, in light of that very unpredictability?

[Mr Raab]

I say to my hon. Friend that, in fairness, it can be argued both ways. One could argue that we ought to have a look now because of some fluidity in the figures, or one could say, “Hold on, shall we see if it settles down and we get a slightly bigger picture? Otherwise we’ll only end up having a second review or implementing reforms based on an initial review without having the big picture.”

[Robert Neill]

Again, I understand what the Minister says, but will he also bear in mind that there is not only the issue of the unpredictability that is acknowledged on all sides, but the fact that there is a significant underspend? If there is a significant underspend, which is quantifiable, that tends to indicate fairly strongly that some cases that should be getting legal aid are not, even on the estimates that were made.

[Mr Raab]

That is a fair point, but I am not sure whether that alone would justify bringing forward the review. We want to gauge the long-term direction of the reforms, but I take on board my hon. Friend’s point, which he made perfectly reasonably.

The actions taken as a result of the Family Mediation Task Force’s recommendations include the mediation information and assessment meeting and the first session of mediation for both participants, where one participant is eligible for legal aid. The number of publicly funded mediation starts have now increased for five consecutive quarters and are at their highest volume since the quarter April to June 2013. We acknowledge that the volumes are not where we would like them to be, but we are working on it. While the figures bed down and we tweak the system, we acknowledge that it has not been perfect or particularly easy to estimate with any great precision, but we are seeing significant and substantial improvements. Given the trajectory we are now seeing, it is not right to rubbish this aspect of the reforms.

We have also worked to increase awareness of legal aid and the Civil Legal Advice service on the Government web pages. There is a new, enhanced “Check if you can get legal aid” digital tool available, which provides interactive information to help individuals to assess their eligibility for legal aid. The service has been designed and tailored around the needs of applicants following extensive user testing—it has not just been put up there on a whim. A new communications strategy will be launched this autumn to increase the awareness of our partners, stakeholders and their front-line advice providers, on the availability of legal aid and the Civil Legal Advice service through the new digital tool.

Domestic violence is undoubtedly one of the most important dimensions of the reforms and their impact. I assume it goes without saying that domestic violence and abuse appals everyone present, as well as everyone across the House and across society. That is why it is a priority for the Government, and why we retained legal aid for protective injunctions, such as non-molestation orders. On top of that, in private family law matters—cases concerning child arrangements and financial matters—funding might be available for those who would be disadvantaged by facing their abuser in court. That is an important innovation.

Of course, evidence is required to ensure that the correct cases attract funding, but we have listened to and responded to specific concerns. Following an early review of the system, we made changes to make evidence easier to obtain. Since we intervened, the number of grants in such cases has risen quarter on quarter and by 25% over the past year. We will keep that under review and we will keep responding to the evidence, because that is the responsible thing to do.

I would like to touch briefly on the proposed residence test, which is also important. It is also the subject of litigation that is before the Court of Appeal today, I think, so I cannot comment on the detail. Nevertheless, I want to make it clear that the Government believe, as a matter of principle, that individuals should have a strong connection to this country in order to benefit from our civil legal aid scheme. We believe that the test we have proposed—with important exceptions for vulnerable groups—amounts to an approach that is fair and appropriate.

I want to pick up on some of the points that were made in the previous speeches. The Chair of the Select Committee referred to the estimates of the spend; we need to be honest that they were estimates. The scheme is demand-led, so it is difficult to make estimations with great precision, but, when needed, legal advice will be available. We will be conducting a post-implementation review. He may argue that it should take place sooner rather than later, but there are arguments both ways. We should not have a review too quickly before the reforms bed down; otherwise, we risk not seeing what the full impact and implications are, and we will get only a partial view.

[Alex Chalk]

Does the Minister agree, however, that the other relevant consideration is that the longer we leave it, the more scope there is for some people who should have access to legal aid to be denied it? That can have significant implications for those individuals. That is one of the competing considerations to bear in mind.

[Mr Raab]

My hon. Friend is absolutely right, and he makes the point fairly. As policy makers we always face that issue, but I am not entirely convinced—the Minister responsible for legal aid will have to think about this and come to a conclusion—that the balance of argument is in favour of risking a rushed review. We should wait and see how the reforms bed down. The Minister responsible for legal aid may take a different view, but I am sure he will give the matter careful consideration, as I have today.

I want to raise two or three other issues in the time available. First, McKenzie friends were rightly raised; they are an important issue. We will consider the report and the updated guidance from the judiciary once we have got it. The right thing to do is to wait until we have got the expert advice from the judiciary before we come to a conclusion.

Other questions were asked about domestic violence and why the rules are not subject to greater discretion. That is a perfectly legitimate issue to raise, but we need objective evidence to apply the rules in a way that maintains the basic integrity of the system. We can have a debate about some of the detail of it, but that is an important point to note. I want to emphasise that the two-year time limit relates to the evidence of the abuse, not the abuse itself. I think there has been some misunderstanding about that important distinction.

I hoped that the Labour party would take a slightly more consensual approach, because in 2011 the then shadow Justice Secretary, the right hon. Member for Tooting (Sadiq Khan), told MPs that the legal aid budget is unsustainable. He said:

“We’ve got to be honest with the British public. When Labour left office, the legal aid budget was £2.1bn out of an overall MoJ budget of £8.5bn. That’s a lot of money. If you want to make savings you can’t cut courts, you can’t close prisons, you can’t cut probation, so the point that I make and I still make is: there are savings to be made.”

He was absolutely right, and if the shadow Minister disagrees he needs to explain where the extra money is going to come from. Punting it into review and saying they are going to pay for this thing by getting the Bank of England to print extra money—an idea that has been panned by the Governor as not only economically irresponsible but likely to hurt the most vulnerable in society, including the elderly and the poorest—will not do in a serious debate. We need credible contributions like the one today.

[Karl Turner]

Listen, the point is this. My right hon. Friend the Member for Tooting (Sadiq Khan) made those comments in 2011. The reality is that the Opposition criticised the changes in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 throughout all stages of its passage through the Commons. Indeed, many changes were made in the Lords. The point is that the Select Committee is criticising the Act now. It is an objective criticism, and in truth the Chair criticised it more than I did.

[Mr Raab]

The reality is that before the previous election the Labour party’s clear position was that cuts need to be made. Unlike the Chair of the Select Committee, who made a number of detailed points about the substance—

[Karl Turner]

It was not.

[Mr Raab]

Exactly. It said very little on the substance; the hon. Gentleman is quite right. We have not had, amid the carping and criticism, any serious alternative approach on the “how”, rather than the “whether”.

[Karl Turner]

It is coming.

[Mr Raab]

Well, we will wait for that, just as we are waiting for proposals on a range of social policy areas. In fact, there seems to be very little policy that is not up for grabs and up for review.

We have made significant reforms to the legal aid scheme, and we believe they are sustainable. We do not say that they have been easy choices. The Legal Aid Agency undertakes regular capacity reviews of supply, which continue to show sufficient capacity in all categories of civil law in the majority of procurement areas. Where that is not the case—for example, where a provider has withdrawn from a contract—the agency has taken action to find alternative provision.

I recognise the strength of feeling on this subject and the importance that hon. Members from both sides of the House attach to it. The Ministry of Justice and the Legal Aid Agency routinely and closely monitor the operation of the legal aid scheme, taking action when issues or problems are identified. I have tried to set out as best I can the areas where we have already responded. We do not say that we got it right first time without glitches or problems in the implementation.

We have also committed to conduct a post-implementation review of our legal aid reforms within three to five years of implementation—in other words, by 2016 to 2018 at the latest. The precise timing and the form of the review will be guided by our assessment of the extent to which the reforms have reached a steady state, as I have already indicated, and by Government and wider stakeholder research and evidence on the impact of the reform. I appreciate that there is a perfectly proper debate to be had on the timing, but we want to wait for that evidence and research to come through.

I am grateful for the Select Committee’s report and its approach. I am grateful to hon. Members who have spoken in this debate. I appreciate the points made by the shadow Justice Minister, and I hope I have been able to address as many of the questions as possible. I am happy to follow up further afterwards if that is not the case.

Oral Answers to Questions

Dominic Raab Excerpts

Tuesday 8th September 2015 Commons Chamber

[Paul Blomfield (Sheffield Central) (Lab)]

9. When he plans to open a consultation on proposals for a British Bill of Rights.

[The Parliamentary Under-Secretary of State for Justice (Mr Dominic Raab)]

We will bring forward proposals on a Bill of Rights this autumn. They will be subject to full consultation. The preparation is going well. Given the hon. Gentleman’s excellent work on the Joint Committee on Human Rights, I look forward to engaging seriously with him on the substance.

[Mr Sharma]

When the Minister’s predecessor published his plans for reform of the Human Rights Act last October, the right hon. and learned Members for Beaconsfield (Mr Grieve) and for Rushcliffe (Mr Clarke) complained that they contained “a number of howlers” and that they were “unworkable” and “bewildering”. Is it not time for the Secretary of State to listen to his esteemed colleagues and to admit that those plans were written on the back of a cigarette packet from the very start?

[Mr Raab]

I thank the hon. Gentleman for his question, but I have to say that the Human Rights Act was also rushed. There was no period of consultation and it was introduced into Parliament in just six months, which is why it has proved flawed in practice. We will take our time to get the plans right, and we will take on board all the views that have been expressed. We want to restore some balance to our human rights regime, and that is what a Bill of Rights will achieve.

[Paul Blomfield]

Earlier this year, the Attorney-General described the European convention on human rights as “an excellent document”, and I am sure that the Minister would agree. Our Human Rights Act allows British judges to interpret the convention in the British context. Will the Minister explain precisely how a new British Bill of Rights will change that situation?

[Mr Raab]

I thank the hon. Gentleman for his question. As he knows, there are many different ways in which we can implement the ECHR in domestic law. There are 47 states party to the European convention, and they all do it slightly differently. We want to see greater authority for the Supreme Court—the Labour Government set up the Supreme Court and we do not think that it should be subordinated—and a greater respect for the legislative role of hon. Members in this place.

[Mr Ranil Jayawardena (North East Hampshire) (Con)]

Does my hon. Friend agree that it is totally wrong for criminals and those who wish to do our country harm to be able to use the Human Rights Act against us? Therefore, does he agree that it is important that the new British Bill of Rights balances the rights of citizens that were not invented in 1998—with the responsibilities of the citizens that existed then and indeed that exist today?

[Mr Raab]

My hon. Friend is absolutely right. We want to protect fundamental rights, but we do not want to see them distorted by judicial legislation or abused by serious and serial criminals. Above all, we do not want to see human rights become dirty words in the minds of the public. That is what the Human Rights Act led to; our Bill of Rights will restore some balance.

[Andrew Bridgen (North West Leicestershire) (Con)]

Will the Minister settle the nerves of some Members of this House by confirming that human rights existed in this country before the Human Rights Act and will continue to exist after the repeal of that Act?

[Mr Raab]

My hon. Friend is absolutely right. The convention already reflects a huge amount of the common law tradition but, as he says, Britain was a member of the convention and had a long tradition of respect for human rights before the Human Rights Act, and we shall have after it.

[Nick Thomas-Symonds (Torfaen) (Lab)]

22. The rights contained in the European convention on human rights have been incorporated into our domestic law by the Human Rights Act 1998. Can the Minister guarantee that the British Bill of Rights will contain all the same rights as our citizens currently enjoy?

[Mr Raab]

I understand the hon. Gentleman’s concern. I will not be drawn on the substance and detail of our proposals—[Hon. Members: “Why?”] We will have a consultation and there will be ample time. We want to retain fundamental rights reflected in the convention, but we need to ensure their sensible application and proper respect for the Supreme Court of this country as well as for the democratic role of hon. Members in this place and their legislative function. Our Bill of Rights and proposals will be considering those areas.

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

At Justice questions on 23 June, the Secretary of State said that human rights are a reserved matter under the devolution settlement. At a debate in Westminster Hall on 30 June, I urged the UK Government to reconsider that position, having regard to the precise terms of the Scotland Act 1998. Will the Minister confirm that his advisers have had the opportunity to study schedule 5 to the Act over the recess? Will he now accept that human rights are not listed there as a reserved matter and that if this Government therefore want to repeal the Human Rights Act and replace it with a British Bill of Rights they will be required first to consult the Scottish Parliament according to the Sewel convention?

[Mr Raab]

I thank the hon. Lady for her question. There will be full consultation and we are aware of the concerns that she and her party have raised. Revising the Human Rights Act can be done only by the UK Government, but at the same time the implementation of human rights issues are already substantially devolved to Scotland. Let me give one example. The Scottish Government have been criticised for failing to hold mandatory fatal accident inquiries when someone dies in a mental health institution. That is just one illustration, but the SNP needs to stop promoting the fiction that human rights in Scotland totally depend on or are threatened by Westminster and to focus more on living up to its own responsibilities.

[Andy Slaughter (Hammersmith) (Lab)]

Many of the Minister’s colleagues have much to say on human rights, but the Lord Chancellor has remained uncharacteristically guarded. At the time the Act came into effect, he said:

“The Human Rights culture is already spreading in our society, uprooting conventions on which our stability has rested…It supplants common sense and common law, and erodes individual dignity by encouraging citizens to see themselves as supplicants and victims to be pensioned by the state.”

Does the Minister agree with that, and does it now represent Government policy?

[Mr Raab]

That is a very interesting set of insights into a range of problems with the Human Rights Act. There are two sorts of issues: how the Strasbourg Court operates, and how the Human Rights Act operates domestically. Wise people in the shadow Justice Secretary’s party, from the noble Lord Irvine, one of the architects of the Act, to the former shadow Justice Secretary, the right hon. Member for Tooting (Sadiq Khan), have pointed out the flaws in the Act and agreed that we need to look at them. We should have a sensible debate about its replacement, not silly point scoring or shrill scaremongering.

[Andy Slaughter]

Rather than our listening to my right hon. Friend the Member for Tooting (Sadiq Khan) being misquoted, perhaps the Minister would like to answer some questions. This week, leading civil liberties organisations warned that parts of the Trade Union Bill breached human rights, and last week the EU warned that countries such as Russia would take the lead from a British opt-out. This is very serious. Is that what the Government plan for the Human Rights Act: an attack on fundamental freedoms at home and an encouragement to human rights abuses abroad?

[Mr Raab]

A Labour Government enacted ID cards, and a Labour Government proposed 90-day detention without charge. The interim leader of the Labour party, the shadow Home Secretary and the shadow Justice Secretary voted for both those measures. We scrapped ID cards and cut detention without charge; we will take no lectures on liberty from the Labour party.

[Tom Elliott (Fermanagh and South Tyrone) (UUP)]

The Minister will be aware that there has been some controversy surrounding proposals for a Northern Ireland Bill of Rights. I wonder whether he intends incorporating a Northern Ireland section within a British Bill of Rights.

[Mr Raab]

We are very mindful of the issues relating to a Bill of Rights in Northern Ireland. We will be consulting widely, including with Northern Ireland politicians, and will be very sensitive to ensure that we do nothing that would have a disruptive effect in the region.

[Kevin Foster (Torbay) (Con)]

3. What assessment he has made of the effect of the closure of Torquay magistrates court on witnesses and other court users.

--- Later in debate ---

[Peter Grant (Glenrothes) (SNP)]

10. Whether he plans to include in the Government’s proposed Bill of Rights protection of all the rights included in the European convention on human rights.

[The Parliamentary Under-Secretary of State for Justice (Mr Dominic Raab)]

The hon. Gentleman will not have too long to wait for the consultation, which I have already spoken about. We will release it towards the end of the autumn. He raises a very good question, but I hope he will understand if I do not jump the gun by being drawn before then on the substantive detail of our plans.

[Peter Grant]

I understand the Minister’s reluctance to be drawn into the substantive detail, but could he give an indication of the intended direction of travel? For example, can he assure us that the rights of refugees seeking asylum on this island will not be deteriorated in any way as a result of the repeal of the Human Rights Act?

[Mr Raab]

We are very clear about the absolute prohibition on torture, including in relation to the asylum regime. If the hon. Gentleman wants an overall steer, the major problems have been less with the text of the European convention than with its application. Some of those problems arise because of judicial legislation and others because of the operation of the Human Rights Act. Those problems are acknowledged across the political spectrum, including by senior members of the judiciary.

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

Can the Minister confirm whether the proposed Bill of Rights will grant all those living in the UK the same levels of protection, or will there be different levels of rights protection for different categories of person depending on whether they are a UK citizen or an EU or non-EU citizen?

[Mr Raab]

As I have said, I am not going to go into the substance and the detail. We will have plenty of opportunity to discuss that. There is already some variable geometry in the Human Rights Act in relation to the procedural framework, so we will be interested to hear the views of the SNP and other parties on those aspects.

[Mark Spencer (Sherwood) (Con)]

11. What steps he is taking to ensure that prison officers are protected from assault.

--- Later in debate ---

[Michael Tomlinson (Mid Dorset and North Poole) (Con)]

T6. Does my hon. Friend agree that on a complex constitutional Bill, such as the British Bill of Rights, it is important that time is taken and there is proper consultation so that all the issues can be considered, unlike in 1997 when the Human Rights Act was introduced?

[The Parliamentary Under-Secretary of State for Justice (Mr Dominic Raab)]

My hon. Friend is absolutely right. I agree with him wholeheartedly. I know that he understands from his work at the Bar, which ranges from social housing to criminal law, the importance of getting the detail right. We look forward to hearing his contribution as the consultation and proposed legislation goes forward.

[Neil Coyle (Bermondsey and Old Southwark) (Lab)]

T9. Lambeth county court serves my constituency. Will the Minister clarify whether the court met the Department’s definition of underused or surplus, if 50% of its available hearing time went unused? What assessment has the Department made of the impact of its potential closure on my constituents?

--- Later in debate ---

[Ms Margaret Ritchie (South Down) (SDLP)]

The Good Friday agreement is an international treaty that is hardwired into the provisions of the Human Rights Act 1998 in order to protect the civil liberties and human rights of citizens. Will the Secretary of State or the Minister ensure that there is no repeal of the Human Rights Act?

[Mr Raab]

We are very mindful of any potential impact of our reform on the Good Friday agreement and the wider settlement. We will pursue our reform of the Human Rights Act with those considerations in mind.

[Mr David Burrowes (Enfield, Southgate) (Con)]

A key value of Tottenham magistrates court, which is earmarked for closure, has been the delivery of local, visible justice. Will the Department seriously consider Enfield’s civic centre, or other community buildings, so that young people in particular can see it as a place where first hearing youth courts can take place and deliver effective local justice?

Whiplash

Dominic Raab Excerpts

Thursday 16th July 2015 Written Statements

[The Parliamentary Under-Secretary of State for Justice (Mr Dominic Raab)]

My noble Friend the Minister of State for Civil Justice has made the following written statement.

“In response to widespread concerns about the high number of whiplash claims and the impact they have on the price of motor insurance premiums, the Government have recently implemented a whiplash reform programme. A key component of these reforms was the introduction of an independent IT Portal for the sourcing of medical reports. All initial medical reports used in support of whiplash claims must be obtained through the new portal which is operated by MedCo Registration Solutions (MedCo) an independent industry led not for profit company. The new system makes sure that solicitors are no longer able to obtain a report from an organisation with whom they have a financial link, while maintaining competition between MROs in the market.

The Government committed to undertake a review once six months worth of useable data were available. However, since the Portal went live on 6 April 2015, issues relating to a number of new business practices within this sector have emerged which have the potential to undermine the Government’s policy objectives and public confidence in the MedCo Portal.

Today, therefore, I would like to confirm that the Government are bringing their planned review forward and I invite all stakeholders in the personal injury sector to participate in the public call for evidence which will form a key part of the review process. The review will specifically seek evidence on whether the MedCo IT Portal meets the Government’s objectives, and the evidence provided will be analysed to identify whether changes need to be made to the portal or to the framework of rules underpinning it in order to achieve those objectives.

The Government seek views from stakeholders across the medico-legal reporting services sector in respect of whiplash claims, including representatives from the claimant lawyer, medical and insurance sectors. A report with recommendations for action—if required—will be published in the autumn.

Copies of the Call for Evidence have been placed in the Libraries of both Houses. The document is also available online at: https://www.gov.uk/consult.justice.”

[HCWS139]

Information Commissioner

Dominic Raab Excerpts

Thursday 16th July 2015 Written Statements

[The Parliamentary Under-Secretary of State for Justice (Mr Dominic Raab)]

On Tuesday 25 November 2014 the triennial review of the Information Commissioner’s Office was announced in Parliament. The review was publicised on my Department’s website and stakeholders were invited to contribute through a call for evidence. I am grateful to all who contributed to the triennial review. I wish to inform the House that it will not be ready for publication before the recess but Ministers will write to the Select Committee when it is published. It will also be available online and placed in the Libraries of both Houses.

[HCWS144]

Data Protection

Dominic Raab Excerpts

Thursday 16th July 2015 Written Statements

[The Parliamentary Under-Secretary of State for Justice (Mr Dominic Raab)]

My noble Friend the Minister of State for Civil Justice, Lord Faulks QC, attended the Justice and Home Affairs Council on 16 June, where a general approach was agreed on the general data protection regulation. Notwithstanding serious concerns, the UK voted in favour of the general approach, with a view to mitigating the negative implications of the text during the subsequent trilogue discussion, and without prejudice to our decision on the final outcome of negotiations.

My right hon. Friend the Secretary of State for the Home Department, provided a written ministerial statement on 23 June. This updated the House that the UK supported the general approach on the General Data Protection Regulation Council text as a basis for negotiations with the European Parliament. It is with regret that I am informing you of a scrutiny override on this dossier because the Commons Scrutiny Committee had not yet been formed when the Justice and Home Affairs Council took place.

[HCWS126]

Human Rights Act

Dominic Raab Excerpts

Tuesday 30th June 2015 Westminster Hall

[The Parliamentary Under-Secretary of State for Justice (Mr Dominic Raab)]

It is an honour and a pleasure to speak under your chairmanship, Mr Betts. I congratulate the right hon. Member for Orkney and Shetland (Mr Carmichael) on securing the debate on the future of the Human Rights Act.

I listened with great interest to all the contributions. I shall touch on a few of them, such as that of my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), who gave a powerful speech about some of the risks involved in this enterprise. I detected that he is perhaps not quite as sympathetic to the concept of a Bill of Rights as he was when he was shadow Justice Secretary, but I was heartened to hear that he was offering creative solutions along the way.

[Mr Grieve]

The Minister is quite right. In 2009 I worked on a paper with him as my chief of staff about the possibility of a Bill of Rights. As was rightly said, such a Bill of Rights is perfectly possible, but it will not solve the problems or issues that have been the driving force behind the Government’s current project unless we intend to decouple ourselves from the European convention, which, mercifully, I understand not to be our policy. There is the conundrum that my hon. Friend will have to grapple with.

[Mr Raab]

I thought I had detected a slight revival of my right hon. and learned Friend’s former enthusiasm, but perhaps I was too optimistic.

I pay tribute to the hon. Member for Islington North (Jeremy Corbyn) for his contribution. He always speaks powerfully on these issues—I have listened to him speaking on human rights since I joined this House. He took us back to Magna Carta and its modern-day relevance.

[Jeremy Corbyn]

I can go back further if you want.

[Mr Raab]

I am sure you could.

I also welcome the contribution made by the Chair of the Justice Committee, my hon. Friend the Member for Bromley and Chislehurst (Robert Neill). I congratulate him on his election to that post and look forward to being grilled in due course. He counselled us not to treat the Human Rights Act as a holy grail that cannot be questioned. That was a useful injection of common sense into the debate.

I also pay tribute to the hon. Member for Strangford (Jim Shannon), who highlighted some of the cases under the HRA that have been of concern to his party. He raised in particular the application of article 8 with regard to deportation. My right hon. and learned Friend the Member for Harborough (Sir Edward Garnier) made some powerful points on section 2 of the Act and on extraterritorial jurisdiction. The hon. Member for Lanark and Hamilton East (Angela Crawley) raised the difficult issue of the balance between liberty and security. My hon. Friend the Member for Christchurch (Mr Chope) discussed judicial legislation from Strasbourg—he has huge experience of that as a result of his representation on the Council of Europe.

There were other excellent speeches to which I cannot pay individual tribute, but I should also acknowledge the speech made by the shadow Minister, who reiterated his party’s position and lamented the lack of detail in the Government’s current proposals. I say to him gently that one issue with the Human Rights Act, arguably, is that it was rushed through, as it was introduced within six months. As a result of that haste, some problems have now emerged that we were warned of at the Act’s inception. The Government are not going to rush in the way the then Labour Government rushed through the Human Rights Act. We will take a little time, because we want to get it done right rather than quickly.

[Andy Slaughter]

Most people do not think it was rushed but would say that it was 20 or 30 years too late. The effect of the Act is to incorporate the convention, which it does, to use the phrase of the former Attorney General, the right hon. and learned Member for Beaconsfield (Mr Grieve), in a very conservative way. What is the problem with that?

[Mr Raab]

The shadow Minister makes an interesting point. If, as a new Government, we had introduced a Bill within six months, it would have been argued that that was too hasty.

On the problems that have arisen as a result, a former shadow Justice Secretary, the right hon. Member for Tooting (Sadiq Khan), who is no longer in his place, took to The Daily Telegraph just last year to point out some of the problems with section 2 of the Act:

“Too often, rather than ‘taking into account’ Strasbourg rulings and by implication, finding their own way, our courts have acted as if these rulings were binding on their decisions. As a result, the sovereignty of our courts and the will of Parliament have both been called into question. This needs sorting out.”

If the Labour party has U-turned on that rather thoughtful critique of its own legislation and now, as my hon. Friend the Member for Bromley and Chislehurst said, believes the Act to be a holy grail that cannot be touched, called into question or criticised at all, there are some questions for Labour to answer. I know hon. Members in the shadow Minister’s party would not all agree on that matter.

I shall take this opportunity to set out the Government’s position. I should say that I have found the debate very valuable at this still formative stage of the Government’s process towards enacting a Bill of Rights. To answer some of the questions put, we will be consulting formally this Session, including with the devolved Administrations—I am aware that there are some issues there—and I hope hon. Members will understand if I do not prejudge that consultation or its terms in my remarks today.

I remind hon. Members that the United Kingdom has a strong tradition of respect for human rights that long predates the Human Rights Act 1998. The Government are proud of that tradition and will be true to it in delivering our reforms. As I explained at Justice questions, our plans do not involve us leaving the convention. That is not our objective. We want to restore some common-sense balance to our human rights, which are out of kilter, so nothing has been taken off the table.

[Jeremy Corbyn]

If the proposal is not to withdraw from the convention, would it still be applicable in British law and in decision making by judges in British courts?

[Mr Raab]

The hon. Gentleman is alluding to the idea of having a middle course between throwing the baby out with the bathwater, as some have described it—tearing up human rights, getting rid of the convention and not replacing it—and trying to reform the current model by looking at the way the convention has been applied and interpreted. There are not huge numbers of objections to the black letter law of the convention’s text, but the way it has been applied and extended is a matter of concern. All that will be the subject of debate and consultation.

[Mr Alistair Carmichael]

I say, in passing, that I hope we never get to the stage where the implementation of law by the courts is entirely to the satisfaction of the Government. Surely the problem is that if we get to a point where we have a British Bill of Rights but remain a contracting party to the European convention, which has a higher standard of human rights protection, anyone dissatisfied with their rights as applied in the UK domestic courts under the British Bill could still have recourse to the wider protection of the European Court in Strasbourg.

[Mr Raab]

The right hon. Gentleman is tempting me to prejudge the substantive content of the Bill and the consultation. He has raised some interesting points, which we will no doubt thrash out in due course; I look forward to that.

I will refer to some of the principal concerns about the Human Rights Act, as that is the subject of the debate. Given the time restraints I will refer to just a few examples from what is by no means an exhaustive list. The first is the exponential expansion of rights that the design of the Human Rights Act, whether tacitly or otherwise, has promoted. It has encouraged a rights inflation that, as has already been acknowledged, has tended to undermine the so-called liberal model of human rights, shifting away from what people like Isaiah Berlin would refer to as negative liberty, or the John Stuart Mill model of shielding the citizen, towards imposing obligations on the state rather than constraining it. If that were in any doubt, the textbooks—I am sure hon. Members across the House are familiar with them—are littered with examples of the celebration of that, whether through the living instrument doctrine in Strasbourg or our own case law.

The practical effect of rights inflation has been to dilute personal responsibility. The growth of rights—the expansion of the realm of rights—increases the power of the individual, however nefarious or otherwise, to trump the good of the rest of society. The more that extends beyond the bedrock of core liberties, the more corrosive the effects. I will give one brief illustration, to highlight the fact that personal responsibility is being eroded or diluted: the claim that the Government’s welfare to work policy amounted to forced labour under the European convention.

I should say straight away that that claim failed, but the fact that it made its way through the UK court system to the Supreme Court is telling. It is striking that lawyers thought they could stretch an article of the convention that was designed, after the experience of concentration camps during world war two, to address grave issues of slavery and forced labour so as to attack the principle of conditionality in welfare reform. It is just one illustration of how the HRA has proved rather malleable material for the ingenious twisting of the basic conception of human rights, rather than simply bringing rights home, which was the Act’s explicit contention.

The second concern I will raise about the HRA is its effect on the rule of law, and in particular the effect that some of the haphazard case law has had on legal certainty. I refer hon. Members to the tragic case of Naomi Bryant, and the review by HM Inspectorate of Probation of the case, which found that the licence conditions placed on Anthony Rice on his release were too lax and noted that lawyers had whittled away the conditions by deploying arguments to do with the Human Rights Act. I will not go into that further—I have the quotes with me but will not read them out—but if anyone wants to look into that case further, they should look at that report.

The third issue I will raise is the way that the Human Rights Act has exposed us unnecessarily to too much judicial legislation from Strasbourg—for example, in the case of prisoner voting. In truth, as we should not make this into some strictly European bogey, there have been examples of domestic judicial legislation as well, about article 8 in particular—we should deal with our home-grown problems, too. That is easy to do without bringing into question our membership of the European convention.

Finally, I hope the right hon. Member for Orkney and Shetland has had the opportunity to read the excellent article by Baroness Faulkner, Liberal Democrat spokesperson on foreign affairs, in May’s edition of Prospect. In case he has not, and for the benefit of this wider audience, I will quote a few choice words:

“Britain can replace the HRA and retain a decent, humane legal system. The human rights lobby has reacted with horror at the government’s proposal. But they are mistaken... A British Bill of Rights is a good idea.”

I do not agree with the whole article but it is well worth a read.

I congratulate the right hon. Gentleman on securing this debate and welcome his contribution. I hope he will not mind if I encourage him to circulate that article among the other members of his party.

Question put and agreed to.

Resolved,

That this House has considered the future of the Human Rights Act 1998.

Oral Answers to Questions

Dominic Raab Excerpts

Tuesday 23rd June 2015 Commons Chamber

[Catherine West (Hornsey and Wood Green) (Lab)]

13. What his policy is on the European convention on human rights; and if he will make a statement.

[The Parliamentary Under-Secretary of State for Justice (Mr Dominic Raab)]

We will legislate for a Bill of Rights to protect our fundamental rights, prevent abuse of the system and restore some common sense to our human rights laws. Our plans do not involve us leaving the convention; that is not our objective, but our No. 1 priority is to restore some balance to our human rights laws, so no option is off the table for the future.

[Catherine West]

When will Ministers publish a draft Bill of Rights, as mooted in the recent election campaign?

[Mr Raab]

We said very clearly that we shall deliver it in this Parliament. We shall have a consultation in this Session so our plans will be brought forward shortly.

[Andrew Bridgen (North West Leicestershire) (Con)]

Does my hon. Friend agree that this country has had a proud tradition with regard to human rights, and it will remain a central part of what we do to promote best practice around the world, but in the end, the country’s commitment to human rights will be judged on its actions, not merely the piece of paper it happens to have signed?

[Mr Raab]

My hon. Friend is absolutely right. We have a strong record on human rights. We will continue to set an example around the world, but in our own domestic laws we do need to make sure that we have a common-sense balance. It is not a left or right issue; it is what the public expect as a matter of common sense.

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

Is the Minister aware that the Church of Scotland has expressed concern about his Government’s plans to repeal the Human Rights Act? Will he now support the Church of Scotland’s call for human rights to be fully devolved to the Scottish Parliament?

[Mr Raab]

We are well aware of the concerns that have been expressed. We will be consulting fully, including with the devolved Administrations, in due course.

[Richard Drax (South Dorset) (Con)]

I welcome the Minister to his place. We often hear about rights. Does he agree that perhaps it should be renamed the European convention on human responsibilities?

[Mr Raab]

My hon. Friend has been tenacious in his campaigning on this subject. He comes up with an ingenious suggestion. Actually, our concern has been less with the black-letter text of the convention and more with its application. Some of the problems have arisen from judicial legislation in the Strasbourg Court, some of them through the operation of the Human Rights Act, as the former shadow Justice Secretary acknowledged. We want to protect our fundamental rights and prevent abuse of the system.

[Andy Slaughter (Hammersmith) (Lab)]

Sir John Major, giving the inaugural Edward Heath lecture on the subject of Magna Carta last week, said that he respected the “power and significance” of the European convention on human rights, and that where there was conflict with the UK Parliament,

“I expect consultation and compromise to settle this issue.”

Should not the Minister, and indeed the Lord Chancellor, heed the advice of someone with so much experience of running a Tory Government with a wafer-thin majority?

[Mr Raab]

We listen to all the informed voices in this debate. That is why we are going to have full consultation. We look forward to discussing this with the hon. Gentleman and many others across the House.

[Kirsty Blackman (Aberdeen North) (SNP)]

16. What discussions he has had with the Scottish Government on the future of the Human Rights Act 1998.

--- Later in debate ---

[Alan Mak (Havant) (Con)]

Do Ministers agree that a British Bill of Rights is an important step towards ensuring that the matter of votes for prisoners remains a matter for this House to decide, and that the best way of rehabilitating offenders is through a good job and education, not political gimmicks?

[The Parliamentary Under-Secretary of State for Justice (Mr Dominic Raab)]

I welcome my hon. Friend to the House. He is absolutely right: prisoner voting is a question that should be decided by democratically elected Members of this House. Our wider aim with a Bill of Rights is not only to protect our fundamental rights, but to strengthen the role of the British Supreme Court, defend the rule of law and shield the democratic prerogatives of this House.

[Greg Mulholland (Leeds North West) (LD)]

The family of Richard Davies are devastated by his death on Yeadon high street. A man has been charged with manslaughter and yet has been granted bail, which is very distressing for the family. What guidance is given to judges—