Investigatory Powers Bill

Lord Pannick Excerpts

3rd reading (Hansard): House of Lords
Monday 31st October 2016 Lords Chamber

[Lord Pannick (CB)]

My Lords, when the Bill came to this House, legal professional privilege—that is, the right of members of the public to seek and obtain confidential legal advice—was not adequately protected. The Minister and the Bill team have listened to the concerns expressed by the Bar Council, the Law Society and noble Lords on all sides of the House. The Minister has held a number of meetings; he has looked anxiously at these issues with the Bill team and has responded on Report and again today. I am very grateful to him.

[Baroness Hamwee (LD)]

My Lords, I moved amendments at the last stage. Having listened today to the plaudits given to Members of your Lordships’ House and the other place for the constructive way the Bill has been taken forward from when it was first a glimmer in the Government’s eye, I want to add plaudits for the efforts made outside the Palace of Westminster. The noble Lord, Lord Pannick, referred to the Bar Council—even if not quite everything it wanted has been agreed to—and to the Law Society, whose work on behalf not of lawyers but their clients has been invaluable in this process. It has been heartening to take part in this process, given the outcome, and to see how seriously and carefully the Government and members of the Bill team, for whom I know this has proved something of an intellectual challenge, have dealt with it. We are grateful to the Government.

Civil Proceedings, First-tier Tribunal, Upper Tribunal and Employment Tribunals Fees (Amendment) Order 2016

Lord Pannick Excerpts

Wednesday 20th July 2016 Lords Chamber

The fear exists to this day, particularly among women, about establishing their rights. We will not secure justice for women by this increase in fees. It is an attack on justice and women’s access to justice, but it goes beyond women, as others have said. I support the amendment of the noble Lord, Lord Beecham, and I hope that the Government will look at this again.

[Lord Pannick (CB)]

My Lords, our new Lord Chancellor needs urgently to address the level of fees for access to courts and tribunals, for all the reasons given by the noble Lord, Lord Beecham, and in all the other speeches that the House has heard, after the speech of the noble and learned Lord, Lord Keen. Like the noble Baroness, Lady Kennedy of The Shaws, I welcome Liz Truss to her new role as Lord Chancellor. It is an important role. She has a statutory duty to protect the rule of law.

The noble Baroness, Lady Kennedy, mentioned that Liz Truss is a woman and expressed concern that that may have provoked some of the hostility. I should point out that, contrary to reports, Liz Truss is not the first female Lord Chancellor. Lord Campbell, in his 19th century Lives of the Lord Chancellors, included Queen Eleanor, wife of Henry III. In 1253, in the king’s absence abroad, Eleanor performed all the duties of the office, judicial as well as administrative, for the best part of a year. No doubt a 13th century Lord Falconer complained that Eleanor had not been trained as a lawyer and that she had not previously served as a senior Cabinet Minister. I am prepared to see how Liz Truss performs in her office before criticising her—or indeed criticising the Prime Minister for appointing her. The new Lord Chancellor’s attitude to court fees will for me be an important test of her commitment to the rule of law.

Like my noble and learned friend Lord Brown of Eaton-under-Heywood, I have appeared in previous debates on this subject. I do not have his complete record of attendance, but I have appeared on a number of these occasions in support of the noble Lord, Lord Beecham. I have explained repeatedly my concern about the Government’s policy on fees for courts and tribunals. It is a very simple matter. The high levels at which fees are set undoubtedly impede access to justice for legitimate claims. It is as simple as that; potential claimants cannot afford to vindicate their rights. The inevitable consequence is that debtors and rogue employers are encouraged not to meet their obligations because they know that they will not be taken to court or to the employment tribunal.

It is not appropriate for the Lord Chancellor of this country to stand in the doorway of the Royal Courts of Justice or of the employment tribunal and say to those who want to claim for unfair dismissal, or say to the small business person seeking to recover a debt, “You can’t come in unless you pay me a sum that greatly exceeds the cost of dealing with your case”. I recognise that Parliament has given the Lord Chancellor the power to do precisely that, but I do not think that it is wise for a Lord Chancellor to exercise that power. I am certainly not persuaded by the creative argument of the noble and learned Lord, Lord Keen, that the fee increases promote access to justice. That is a quite remarkable argument that your Lordships have heard this evening.

I am particularly concerned by the contents of the report published by the House of Commons Justice Committee on 14 June, entitled Courts and Tribunals Fees, HC 167. It is a remarkable document, and I have these questions for the Minister based on that report. First—and I echo the noble and learned Lord, Lord Brown of Eaton-under-Heywood, in this first question—does the Minister accept the principle stated by the Justice Committee in paragraph 46 of its report:

“Where there is conflict between the objectives of achieving cost-recovery and preserving access to justice, the latter objective must prevail”?

Does he accept that?

Secondly, does the noble and learned Lord accept the conclusion of the Justice Committee at paragraph 50 of its report that the senior judiciary was correct in its evidence to the Ministry of Justice that the research conducted by the ministry before formulating its policy on court and tribunal fees was inadequate to justify the ministry’s proposals?

Thirdly, does the Minister accept the Justice Committee’s conclusions at paragraphs 58, 59 and 79 of the report that it is “unacceptable”—its word—that the committee was “strung along”—again, the committee’s words—by the Government’s refusal to publish its own review findings on the impact of employment tribunal fees, and that those findings must be published now without any further delay? I have to say to the Minister that the Government’s conduct in not publishing review findings that they obtained several months ago on a matter of considerable importance is quite disgraceful. Will the Minister apologise on behalf of the Ministry?

It has been traditional in these regular debates on this subject—regular debates on the injustices perpetrated by a Ministry of Justice—for noble Lords to have the pleasure, and it has been a real pleasure, to listen to the eloquence of the noble Lord, Lord Faulks, in defence of the Government’s position. I am very pleased to see him, although he is not in his usual place but in his new place on the Conservative Benches. Your Lordships know that the noble Lord resigned last Thursday. All of us at the Bar have had the irregular experience of being asked to present hopeless cases. The noble Lord, Lord Faulks, did that with charm, good humour and sensitivity several times a month. We will all miss him in his role as the acceptable face of the Ministry of Justice—as Chris Grayling’s and Michael Gove’s representative on earth, in the real world, where small businesses seek to recover debts and unscrupulous employers evade their duty to make redundancy payments. For every unjust policy that the noble Lord had to defend in this House, I suspect that there were at least three other impossible policies that he had refused to believe in and fought off before breakfast every day.

The Government are very fortunate still to have the services of the noble and learned Lord, Lord Keen, but I suspect that even his skills of advocacy will be severely tested by the brief that he has inherited this evening. I shall listen very carefully to his defence of government policy before deciding whether to support the noble Lord, Lord Beecham, in the Lobbies should he decide to divide the House.

[Lord Keen of Elie]

My Lords, I begin by thanking the noble Lord, Lord Beecham, for his kind words. I am pleased to be here to speak on behalf of our new Lord Chancellor, and I speak with confidence. The noble Lord referred to a report or review that had been put in the hands of the Minister—and, for reasons that he elaborated on, he will appreciate that it is not in my hands. That review has—and it is a matter of considerable regret—taken longer than had been anticipated; but it will be published in due course.

One point of very real interest was the emphasis on fees in the context of the employment tribunal.

[Lord Pannick]

I am sorry to interrupt the noble and learned Lord so early, but is he going to say more about why the report is not now being published? What is holding it up? What is the delay?

[Lord Keen of Elie]

I understand that it has to be approved at a ministerial level before it can be published. The noble Lord, Lord Pannick, will appreciate that there has been something of a delay in respect of those matters. As I say, it will in due course be published.

Much has been made of the matter of employment tribunals and fees in employment tribunals and the issues that arise there. I suppose that one has to answer for the sins of one’s fathers. The present order addresses fees in the employment tribunal, and does so only in one respect, and that is to reduce them—and why that should be a matter of regret rather escapes me. The one matter addressed in this order with respect to employment tribunal fees is that, in respect of certain specified appeals, they should not by default go into type B of the schedule to the relevant order, but into type A, thereby attracting a much lower level of fee. So I find it difficult to understand why that provision is such a matter of regret.

Let me put the matter of costs and fees into context. The total cost of the courts and tribunals in 2015-16 was about £1.9 billion. The income recovery was about £700 million, leaving a shortfall of about £1.2 billion, and the question is where that should fall—on the taxpayer in general or on those who use the courts in part. With regard to employment tribunals, the total cost incurred was £66 million and the fee recovery was a gross £12.8 million. Why do I say gross? It is because there is a very effective fees remission system which meant that fees to the extent of £3.9 million were remitted. The majority of those individuals who secured remittance of fees were women. So that system is working: those who are vulnerable or in financial difficulty have access to the fees remission system.