Oral Answers to Questions

Stuart C McDonald Excerpts

Tuesday 24th April 2018 Commons Chamber

[Rory Stewart]

Nearly 15,600 of our staff have received additional training—that is the figure produced by my colleague. The ACCT—assessment, care in custody and teamwork—process, which is the new protocol for suicide reduction, focuses on the evidence for when prisoners are most vulnerable, for example their first night in custody, and how to ensure that we deal with them. But we still need to reduce the number of suicides further.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

Ninety-three women have died in prisons in England and Wales since the 2007 Corston report. When the new female offender strategy is published, will it focus on community alternatives to prison, especially for the 70% of women who are sentenced to six months or less?

[Rory Stewart]

Absolutely. This is a common theme. We have clear evidence that reducing the use of custodial short sentences and instead diverting people into the community can be good for protecting the public, by reducing reoffending, but it is also very good for mental health and for reducing suicide.

Leaving the EU: Justice System

Stuart C McDonald Excerpts

Thursday 29th March 2018 Westminster Hall

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

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

I pay tribute to the Select Committee and its Chair, the hon. Member for Bromley and Chislehurst (Robert Neill), for their concise, clear and balanced report on how Brexit could impact on criminal and civil justice and the legal industry. I feel like an interloper at a Justice Committee club meeting today, so I shall start by trying to make friends, by congratulating everyone on their excellent speeches and saying that I agree with almost everything that has been said—indeed, I agree with almost everything in the report as well, including the four recommendations that the right hon. Member for Delyn (David Hanson) highlighted, so I will not repeat them.

Broadly speaking the Government, too, seem to agree with what we are all saying, so in one sense we are singing from the same hymn sheet, but the debate has provided an excellent opportunity to press them on what if any progress has been made in pursuing their goals and in overcoming the many obstacles highlighted in the report. As the Chair of the Committee said in opening the debate, good intentions are no longer enough. He called for urgency, which is exactly what the Select Committee on Home Affairs—where I feel slightly more at home—also called for in a recent report.

The right hon. Member for Delyn and the hon. Member for Stretford and Urmston (Kate Green) rightly said that the issue is now not so much about the Government’s broad objectives as about the how, the when and the details, which need to concern us now. Before I go into that, however, Members have rightly flagged up a number of the benefits of EU systems and laws for justice in the United Kingdom, reflecting the point that we are debating, so I shall turn briefly to their contributions.

In the area of criminal justice, the right hon. Member for Delyn, the hon. Member for Cheltenham (Alex Chalk) and the hon. Member for Stretford and Urmston all highlighted a number of important EU schemes and agencies. First and foremost, the European arrest warrant, while not perfect, is definitely and significantly better than the alternatives. The hon. Member for Cheltenham explained one reason why that is the case, but there are others, and we have seen certain countries take a long time to negotiate and have access to alternatives.

We have also heard about Europol, the co-operation and data sharing that come with that institution, and how it has become critical to policing in the United Kingdom. Only last year membership of Europol proved pivotal in helping Police Scotland and the Romanian police to dismantle an organised crime network that was involved in the trafficking of victims for sexual exploitation. Day in, day out we hear a lot of other examples of that type of work being carried out with the help of Europol.

Eurojust brings clear benefits when it co-ordinates prosecutions where more than two countries are affected. We heard about the range of data sharing agreements such as ECRIS, SIS II and the Prüm treaty, which have brought huge benefits to our police forces. In the realm of civil justice, the hon. Member for Stretford and Urmston spoke expertly about the benefits of Brussels IIa, in particular in cases of child abduction. The Committee report, however, is balanced and not starry-eyed about such EU institutions, acknowledging that they are not perfect—for example, in divorce cases Brussels II seems to encourage a race to issue proceedings, therefore discouraging mediation.

The Committee Chair highlighted the benefit, albeit again not without flaws, of the maintenance regulation, to which there seems to be no obvious alternative after Brexit. Finally, on legal services, the hon. Member for Enfield, Southgate (Bambos Charalambous) highlighted, among other things, the huge importance of rules that allow for the free movement of lawyers and legal services, including mutual recognition of qualifications and practising rights. Members therefore rightly asked a huge number of questions to which it would be good to have answers from the Government.

In relation to criminal justice, everyone might agree on the importance of maintaining the “closest possible co-operation”, as the report says, but achieving that will be complicated. For example, on Europol, other third countries’ arrangements clearly do not bring them the same benefits as membership does for the UK. There have already been a number of Rob Wainwright quotes, and I will fling in a final one from before the Brexit referendum. He warned that leaving the EU meant that in essence the UK could become “a second-tier member” of the Europol club. We need to ask: what exactly are the Government seeking to achieve in negotiations? Norway and Iceland show that access—or even establishing similar arrangements—to the European arrest warrant and Prüm is not straightforward. What is Government’s thinking about how to replicate the mutual benefits of those schemes?

As the hon. Member for Cheltenham highlighted, it is increasingly apparent that the adequacy of our data protection regime will be pivotal. Standards will be applied more strictly and more broadly once we are outside the EU. There are concerns that the provisions of the Data Protection Bill could fall short—one area of concern is the sweeping immigration exemption. Similarly, the UK’s surveillance and interception regime will be exposed to a new level of scrutiny by EU institutions after exit. What work is ongoing to ensure that UK legislation and arrangements will survive such detailed scrutiny?

As other Members have said, the jurisdiction of the European Court of Justice is an issue that cuts across many of those subjects. My party has no problem with the European Court of Justice and its possible jurisdiction, but what I want from the Government is at least an assurance that ensuring that our citizens continue to benefit from EU justice measures far outweighs the strange obsession that some have about ending the Court’s jurisdiction. That is a red line that should be deleted, at least in so far as it comes to justice and home affairs issues.

[Kate Green]

I am grateful to the hon. Gentleman for drawing attention in more detail to the issue of the European Court of Justice. Particularly in relation to family matters, its oversight is inevitably confined, given the nature of the reciprocal arrangements, to matters of process rather than the substance of law. Does he not agree that the Government could perhaps be more relaxed about the Court’s continuing engagement in our law?

[Stuart C. McDonald]

As I said, I am very relaxed about European Court of Justice jurisdiction generally, but the hon. Lady and the Committee report make a case, specifically with regard to matters of procedure or even jurisdiction, for there being no reason for the Government to be overly concerned with the role of the Court at all.

The Chair of the Select Committee, the hon. Member for Bromley and Chislehurst, also rightly flagged up the issue of clause 6 of the exit Bill. I agree that it is unhelpful and needs to be strengthened; instead of guiding or directing judges, it seems to be buck passing. We need to protect judges from accusations of making political decisions, as the hon. Member for Cheltenham rightly explained.

The right hon. Member for Delyn flagged up the question of whether all this can be managed in less than two years. I stand to be corrected, but with justice and home affairs being areas of shared competence, I understand that agreements on participation in some of these schemes may well need approval both from the EU institutions and from individual member states. Conceivably, in some of those member states, that could mean parliamentary ratification or even a referendum. Will the Government give some clarity on whether that is their understanding, and on what contingency plans exist for that possibility?

[David Hanson]

It would also be helpful to have clarity on whether there is a cost for the UK to access these services in the event of any co-operation in due course and, if so, what estimate the Government have made of that cost.

[Stuart C. McDonald]

That is a very fair point, and I look forward to hearing what the Minister has to say in that regard. What are the contingency plans if it becomes apparent very soon that we will not be able to secure all these arrangements within the current proposed timeframe?

Finally, although justice is a devolved matter and Scotland has its own distinct legal system, it will be UK Ministers doing the negotiating. As ever, I take the opportunity to exhort the Minister and her colleagues to work as closely as possible with counterparts in Edinburgh, to make sure that the implications for the Scottish justice system are properly taken into account and reflected.

Oral Answers to Questions

Stuart C McDonald Excerpts

Tuesday 6th March 2018 Commons Chamber

[The Parliamentary Under-Secretary of State for Justice (Dr Phillip Lee)]

This situation was truly appalling—the hon. Lady knows that I think that. The review was comprehensive, so I will not be changing any decisions any time soon. My heart goes out to all those involved, as clearly this was very traumatic, but the review was comprehensive.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

Instead of carrying out their in-house review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, should Ministers not follow the excellent example of the Scottish Government by having an independent review of legal aid, and perhaps looking at how the Scottish scheme has managed to achieve greater scope and eligibility but with lower costs?

[Lucy Frazer]

The review of legal aid will be important. We will be inviting a number of independent experts to give evidence so that we can make the necessary decisions.

Joint Enterprise

Stuart C McDonald Excerpts

Thursday 25th January 2018 Commons Chamber

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

I congratulate the hon. Member for Manchester Central (Lucy Powell) and her colleagues. They deserve great credit for raising this important matter, and for posing a number of challenging questions.

The consequences of the Jogee decision include, of course, uncertainty and distress for victims and relatives who now wonder whether those who have been held responsible for violent crimes against them will have their cases reopened and their sentences quashed. The right hon. Member for Sutton Coldfield (Mr Mitchell) and the hon. Members for Sunderland Central (Julie Elliott) and for Hammersmith (Andy Slaughter) rightly reflected on that. On the other hand, we are all agreed that the so-called wrong turn in the law means that there have undoubtedly been many miscarriages of justice, and people have been convicted and sentenced for crimes far graver than those for which they should have been held responsible. As we know, thanks to the excellent work of the right hon. Member for Tottenham (Mr Lammy), serious questions have been raised about its disproportionate effects on young men from black and minority ethnic communities.

Members who are far more qualified than me—including the hon. Member for Bromley and Chislehurst (Robert Neill), the Chair of the Justice Committee—have explained why the decision of the Privy Council in the 1985 case of Chan-Wing Siu was wrong and was required to be “corrected” by the Supreme Court. For me, that correction raises three discrete questions.

It is clear that the law after 1985 has been wrongly applied, and that that has resulted in real injustices. The first question to ask is whether the law on joint enterprise and parasitic accessory liability is now operating as we want it to. How should the criminal law respond when a person engages in a joint enterprise with a principal who goes on to commit a more serious offence outside the scope of that enterprise? I think that, on paper, the Jogee decision is better than what was in place previously, but Members on both sides of the House have raised concerns about whether it is operating effectively in practice, or as Parliament would wish. The hon. Member for Brentford and Isleworth (Ruth Cadbury) gave appalling examples of judicial reasoning that gave real cause for concern.

The situations in which joint enterprise might arise, and the different views of culpability, are many and varied. A number of Members have focused on the effect on young people and gangs in particular, and we have heard powerful arguments for reform, especially from the hon. Member for Ealing North (Stephen Pound) and the right hon. Member for Tottenham, but joint enterprise arises in many other circumstances. We therefore need to seek a solution that can respond adequately to all the different facts and circumstances. Sentencing is a related issue. Does the application of mandatory sentences in some cases mean that punishments cannot reflect the different levels of culpability of principal and accessory in certain circumstances, and might that, too, require reform?

There are also serious questions to be asked about appeal rights, about which the hon. Member for Poplar and Limehouse (Jim Fitzpatrick) spoke eloquently. If the decision in the 1985 case had been in statute and reflected the will of Parliament, and if it had then simply been amended or replaced in 2016, there would have been no possibility of a right to appeal for those convicted between those times. As the right hon. Member for Tottenham said, however, common law is very different. The Supreme Court is saying that the law was applied wrongly by the courts, and that people have been convicted of crimes that they did not commit. It cannot possibly be right that no challenges to those convictions have been successful. There is a strong case for saying that the bar for appeals against such decisions has been set too high.

These are difficult decisions. It has been useful for Members to be able to air their views, but I cannot help agreeing with the Chair of the Justice Committee that a thorough and comprehensive review is required. That work is urgently needed if we are not to return to this issue in the very near future.

Legal Aid

Stuart C McDonald Excerpts

Wednesday 29th November 2017 Westminster Hall

[Mr Sweeney]

Absolutely. I will refer to that statistic later. It is a shocking indictment of the cuts and the attrition of the access available to the weakest in our society, who rely on that point of contact and are otherwise shut out of the legal system altogether. Where in our country someone lives should never affect their ability to access justice, but it does, because of the wide variation in availability of legal aid providers.

Legal aid is often a lifeline, particularly for women, when the case is domestic violence, family law or employment tribunals on equal pay, unfair dismissal or discrimination. In my constituency and across the country, it is clear that we need to relearn just how critical legal aid is as a cornerstone of a civilised society. Although Scotland has a distinctive legal system within the United Kingdom, the Law Society of Scotland recently raised concerns about the sustainability of the legal aid system there, stating that, in particular,

“current rates of payment for legal aid work risk making the provision of legal services to some of the poorest and most vulnerable in our society”

simply “uneconomical”. We already know that gaps are developing in the provision of legal aid in parts of Scotland, and we must work hard to stop those gaps growing. The Law Society of Scotland also said that a lack of investment in legal assistance had made it

“increasingly difficult to maintain a sustainable, high-quality legal assistance system”

across Scotland. It urged crucial investment to halt the ongoing real-terms decrease in legal aid funding.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

Does the hon. Gentleman welcome the Scottish Government’s review of legal aid? The legislation is 30 years old, and the Government now seek to ensure that full access to public legal aid continues.

[Mr Sweeney]

I think we both recognise that the situation in England and Wales is much more acute than it is in Scotland, but none the less, there are challenges facing the legal system in Scotland. I welcome that review and I hope it will take into consideration the financial constraints that legal aid provision in Scotland has faced in recent years, and take heed of what the Law Society of Scotland has urged.

To look back at the wider issue, an increasing lack of funds across the UK means that a growing number of solicitors will be unable to take on legal aid cases. The report “The financial health of legal aid firms in Scotland” of February this year found that those relying on legal aid might soon be unable to find a solicitor because many law firms simply cannot afford to carry out legal aid work.

--- Later in debate ---

[Bill Grant (Ayr, Carrick and Cumnock) (Con)]

It is a pleasure to serve under your chairmanship, Mr Robertson. I thank the hon. Member for Glasgow North East (Mr Sweeney) for securing the debate. May I also compliment the Labour party on introducing legal aid 68 years ago? It has been of great benefit to many over that 68 years and continues to be so.

Here in the United Kingdom, we are rightly proud that everyone is equal under the law. Across the United Kingdom, our separate legal systems are united by the common principles of fairness, equality and respect for human rights, which have made the British justice system respected worldwide. Legal aid is crucial to ensuring that our justice systems live up to those principles. Without it, access to justice would become the preserve only of those who can afford it.

Legal aid is there to ensure that as many persons as practicable, regardless of their ability to pay legal fees, which can be very expensive, have access to fair representation in a bid to obtain their legal rights. That is why our legal aid system must be sustainable and up to date, and I for one am pleased that the UK Government recognise that and have reformed legal aid in England and Wales to modernise it and to put it on a secure financial footing for the future.

United Kingdom spending on legal aid massively outstrips the European average; it dwarfs that of most European nations and is, surprisingly, above France’s and Germany’s.

[Stuart C. McDonald]

The hon. Gentleman is comparing apples and oranges. The legal systems in France and other European countries are different from the adversarial system we have here. It is probably not fair to compare only legal aid budgets, without looking at overall justice costs.

[Bill Grant]

The hon. Gentleman may well be right. The fact is that we spend more per head than Germany, but I accept that that there are other considerations to take into account.

[Bill Grant]

I note the hon. Gentleman’s comments on the decisions on cuts. They adjusted the system. It is a suitable system, which still remains, and I am sure many people will continue to benefit from legal aid.

As has been said, legal aid is devolved in Scotland and decisions on its provision are quite rightly the Scottish Government’s to make. Funding for legal aid was £138 million in a previous year; it is now down slightly by some millions, but it is fair to say that, per head, Scotland’s legal aid spending is broadly in line with the UK Government’s spending in England and Wales. When the Scottish National party came to power in Holyrood, Scotland’s legal aid system was 20 years old, as the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) said. Ten years on, that system is 30 years old, and it now needs to be looked at, as I am sure he would agree. After a decade of SNP rule, and despite the enactment of the Legal Profession and Legal Aid (Scotland) Act 2007, Scotland’s legal system would benefit from further reform.

It is true that we have seen some change, such as the court decision that prompted the Scottish Government to reconsider its Ministers’ decision not to exercise discretion to provide legal aid to an alleged victim of domestic abuse who sought to oppose attempts to obtain her medical records. The Scottish Conservatives had repeatedly asked for that change, to bring Scotland into line with England and Wales, but the Scottish Government repeatedly refused until the courts forced their hand. They were then slow to act: only in February did they finally see fit to launch a review of the Scottish legal aid system, which I commend. I hope the Scottish Government act soon and follow the UK Government’s lead in making legal aid sustainable, modern and fit for the future.

[Stuart C. McDonald]

Is the hon. Gentleman seriously suggesting that the Scottish Government should follow the UK Government’s example by removing family, immigration, housing and welfare cases from the scope of legal aid? He cannot possibly think that that would be a positive development.

[Bill Grant]

It will be entirely up to the Scottish Government to decide what course they take.

--- Later in debate ---

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

It is a pleasure to serve under your chairmanship, Mr Robertson. We have had a good and lively debate, and I congratulate the hon. Member for Glasgow North East (Mr Sweeney) on securing it. This is an important subject because a well functioning system of legal aid is a crucial means of ensuring access to justice, and is therefore essential for the operation of the rule of law and democracy itself. This subject has been raised a number of times even in the couple of years that I have been an MP, reflecting widespread concerns about the radical overhaul of legal aid since LASPO came into force in 2013. With the review of LASPO going ahead in England and Wales, and the Scottish Government conducting their own review of legislation that is now 30 years old, now is an appropriate time for this debate.

The hon. Gentleman made a couple of points in relation to Scotland, and if time permits I will say a little bit about that. For now, suffice it to say that the review there will be building from a strong position. That is remarkably different from the system created by the UK Government, where a 38% real-terms cut in funding has left hundreds of thousands to navigate the law and the legal system alone, not because of their means, but because the scope of the legal aid scheme has been drastically reduced. If you went down to the courts in London, Mr Robertson, you would struggle to find a single litigant lawyer or judge who would say that the system in England and Wales is better than the one in Scotland; it would be the reverse.

While the UK Government’s review of LASPO is welcome, if we are honest we already know it has been a complete disaster—one which, as the hon. Member for Hammersmith (Andy Slaughter) has pointed out, could have been averted had the Government engaged in discussion and looked at evidence before introducing LASPO, rather than five years after it wreaked havoc on the justice system. Whether it is the Justice Committee of this House, the National Audit Office, the Public Accounts Committee, the legal profession or third sector organisations, few if any have a good word to say about the reforms.

The statistics, as the hon. Member for Westminster North (Ms Buck) said, illustrate a drastic reduction in the number of cases of publicly funded representation right from the implementation of the LASPO Act, but it is individual stories about those who are left without access to justice that bring home the reality of the problem. Credit must be given to organisations such as Amnesty International and Coram Children’s Legal Centre for highlighting some of those cases in various reports and briefings. When the Lord Chief Justice of England and Wales is saying publicly that

“Our system of justice has become unaffordable to most,”

there can be no doubt that we are in a bad place.

There cannot be a starker example of austerity at all costs than the LASPO cuts, which were introduced without

“any proper evidence-based research,”

according to chairman of the Bar association. Parliament’s Justice Committee found that LASPO had unambiguously failed to achieve three of its four stated goals, including targeting legal aid towards those who need it most, delivering better overall value for money, and discouraging unnecessary and adversarial litigation. In relation to the fourth and final goal the Committee stated that

“while it had made significant savings in the cost of the scheme, the Ministry had harmed access to justice for some litigants”.

On the subject of claimant savings, which the hon. Member for Lewisham West and Penge (Ellie Reeves) and others spoke about, I hope the review will consider the extent to which those so-called savings, like too many other austerity cuts, are in fact costs passed on to other public services. As the Justice Committee also said, efforts to target legal aid

“have suffered from the weakness that they have often been aimed at the point after a crisis has already developed, such as in housing repossession cases, rather than being preventive.”

Money saved by the Ministry of Justice means more money spent by homelessness services and social work departments. Meanwhile courts are required to spend more time and resources dealing with party litigants.

The arguments for LASPO the Government used in previous debates have struggled to stand up to scrutiny. They sought to justify the cuts on the basis that it encourages mediation, but as we heard earlier, that is not happening, and I think the Government now acknowledge that. In the year prior to LASPO, there were 31,000 mediation assessments and 14,000 mediation starts, but by 2016-17 the numbers had fallen to 13,000 mediation assessments and 7,700 mediation starts—reductions of 61% and 44% respectively. As the Government were told beforehand, people who are given early legal advice will be more inclined than those who are not to the view that mediation is the best course of action.

Another key argument used in the past is that the legal aid system in England and Wales is one of the most generous in the world. The hon. Member for Ayr, Carrick and Cumnock (Bill Grant) hinted at that. As I said in my intervention on him, that is comparing apples and oranges, particularly in relation to continental systems, which are inquisitorial rather than adversarial, so more resources are spent on other parts of the system than legal aid. England and Wales may have one of the most expensive legal aid bills in Europe, but it is a long way down the European league table overall when we look at the total bill for providing justice.

The Scottish Government have announced their own review of legal aid. In previous debates on this subject, I quoted from an article by Professor Alan Paterson, so I am pleased to see he has been included in the Government’s review board. He is a legal academic at Strathclyde University and chair of the International Legal Action Group. In 2012, as LASPO was making its way through this place, he wrote an article highlighting that in fact, per capita spend on legal aid in England and Wales had been higher than in Scotland. He asked whether that meant that provision in Scotland was less extensive or generous. The answer was that, on the contrary, the Scottish scheme was still more generous, even in those circumstances.

First, the Scottish system was more generous in scope. That is even more true after LASPO. For example, in Scotland you can still get legal advice and representation on housing, debt, immigration, family, employment law and so on. Secondly, it remained more generous in coverage, with a significantly higher proportion of the population financially eligible for legal aid. The Scottish system had managed to achieve lower per capita spend while remaining more generous. Even if all of Lord Bach’s recommendations were fulfilled, Scotland’s system would remain more generous than that in England and Wales. There were some reasons why that was the case, which went well beyond policy choices, including, for example, the high prevalence of expensive fraud cases in England and Wales. However, for Professor Paterson the crucial difference was that there had been greater success in Scotland in reforming court procedures, both civil and criminal, to reduce legal aid spend. Instead of reducing legal aid spend by not funding people properly to access the court system, the court system was made cheaper to fund access to.

In the months ahead, the group on which Professor Paterson sits, chaired by the CEO of Carnegie Trust and involving lawyers, police, Citizen Advice and others, will look for

“specific measures to reform Scotland’s system of legal aid, maintaining access to public funding for legal advice and representation in both civil and criminal cases, alongside measures to expand access to alternative methods of resolving disputes.”

It is due to report back in February and I hope its findings can feed into the LASPO review. It will most definitely not follow the example of the UK Government in introducing LASPO, despite the suggestions made by the hon. Member for Ayr, Carrick and Cumnock. The one thing I am absolutely confident about is that those reforms have a greater chance of success, because they start from a strong place and they will be informed by evidence and engagement rather than the product of a simple austerity drive. That is the key flaw in LASPO, and it is why this Government should rip it up and start again.

--- Later in debate ---

[The Minister of State, Ministry of Justice (Dominic Raab)]

It is a pleasure to serve under your chairmanship, Mr Robertson. I pay tribute to the hon. Member for Glasgow North East (Mr Sweeney) for securing this debate and for his powerful, tenacious speech.

One thing we all agree on at least as a matter of principle, is that legal aid is a fundamental pillar of access to justice. Last year, the Ministry of Justice spent £1.6 billion on legal aid in England and Wales, which accounts for more than a fifth of the Ministry’s budget. The Government have a responsibility to make sure that those in the greatest hardship, at the times of greatest need, can secure access to justice, that the most vulnerable are catered for, and that the resources are made available to do that. That is a responsibility that we take very seriously.

As the hon. Gentleman will be aware, legal aid in Scotland is a devolved matter. I appreciate that in this debate he has not talked a lot about that. It is also devolved in Northern Ireland. I can address the provision of legal aid in only England and Wales, for which we are responsible. The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) raised this in relation to spending, but I would note that the Council of Europe’s most recent survey post-LASPO found that spending on legal aid per person in England and Wales was the highest of all Council of Europe members. The hon. Gentleman quite fairly made the point that we have a different system from the one used in many parts of continental Europe. Of course, the Council of Europe survey also looks at the spending per capita in Scotland, and in England and Wales it is 13% higher. Neither he nor the hon. Member for Glasgow North East touched on that, for all their critique of the system in England and Wales.

[Stuart C. McDonald]

In fairness, I did touch on that by mentioning the fact that Alan Paterson highlighted the higher per capita spending in England and Wales compared with Scotland. He said that the reason for that was Scotland’s greater success in reducing the cost of courts, so the total bill was made smaller not by excluding folk from the scope of legal aid but by making courts less expensive to run.

[Dominic Raab]

I welcome the hon. Gentleman’s intervention and hope he accepts the figure showing that the spending in England and Wales per capita is 13% higher. I agree with him on a point that the hon. Member for Glasgow North East did not take up: this is not just about how much money is spent, but about how the resources are allocated. Indeed, the question of access to justice is broader than purely the administration or funding of legal aid, so on that point, I accept what he said.

In truth, the legal aid scheme has been the subject of regular change since its inception. Spending has increased substantially, and all Administrations—Labour, the coalition, and Conservative—have sought to exercise control over spending in recent times. I think we all agree that we need to exercise control over legal aid and other precious public services in order to ensure that the finite, precious resources go to those who need them most.

The most recent reforms were part of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which came in the context of huge financial pressure on the country’s finances. The reforms were founded on the principle of ensuring that legal aid continues to be available for the highest priority cases—for example, when an individual’s life or liberty is at stake, when someone faces the loss of their home, in domestic violence cases, or when children may be taken into care—and in achieving that, delivering better value for money for taxpayers by reducing the cost of the scheme and discouraging unnecessary litigation. Again, although this has not been mentioned today, in some cases—not all—going to court is not the right thing to do, and I will touch on that if I have time later.

I appreciate that the changes in LASPO were contentious. They were subjected to a significant amount of rigorous scrutiny at the time, as the hon. Member for Hammersmith (Andy Slaughter) said. They were debated extensively and amendments were made before the legislation was approved by Parliament. It has been several years since the implementation of those landmark reforms, so it is absolutely right to take stock. That is why we recently laid before the House a detailed, post-legislative memorandum summarising how LASPO was implemented and making a preliminary assessment of its impact. In addition, my predecessors made a commitment to the House to conduct a detailed post-implementation review of the changes to establish to what degree the reforms had achieved their objectives. It is right that we are now fulfilling that pledge.

As hon. Members have acknowledged, that appraisal will cover each issue that has been subject to a previous commitment by Ministers in this House. The Lord Chancellor recently announced the start of the process. That will be led by officials, but I am keen to listen to interested parties, including hon. Members from across the House. Given the importance of the reforms, it is right that we take time to gather the necessary evidence and views of experts on the impact of the changes.

The hon. Member for Westminster North (Ms Buck) asked me about the detail of the review. I will write to stakeholders shortly to invite them to participate in a series of expert panels to consider and sift through relevant evidence to inform our review, which will be comprehensive. I want to ensure that we get the review right. Of course, I will not pre-empt or prejudice the outcome of the review—I am sure she expected me to say that—but we will publish our findings by the summer recess. One or two hon. Members asked about that.

We must acknowledge that the financial pressures in which the LASPO reforms were introduced remain with us today. The proportion of departmental spend on legal aid remains broadly the same today as it was prior to 2010. We in the Government have the responsibility to ensure that taxpayers get the best value for money, as well as deal with the challenges and fixing the problems of the legal aid system as and when they arise.

That is why I recently announced our changes to the fee scheme for criminal litigators in the Crown court. Defence solicitors do incredibly valuable work and we want to remunerate them fairly for it, but since 2013-14 there has been a rise of more than £30 million in the annual spend on that work. That is primarily attributable to a costs judge ruling that changed what we were paying for beyond the initial policy intention. We do not accept that that reflects an increase in the work done by defence solicitors and do not think that the rise reflects value for money for taxpayers, so it is right that we acted to address that.

We have targeted the action to the 2% of Crown court cases—the most expensive cases—in which the problem was identified. Effectively, the change involves a shift in policy so that more remuneration is for work that is actually done and not just for the amount of paperwork that is produced in court. It is absolutely right that solicitors are properly paid for work that is reasonably done through the scheme. At the same time, as the quid pro quo for putting the proper reforms in place to ensure that the precious, finite resources go to those with the greatest need, we announced our intention not to pursue the suspended 8.75% fee cut, which would have affected all solicitors. Those two parts of the jigsaw will make sure that we get this right. As I mentioned, this is not just about the money that goes in, but about ensuring that we get the best use out of it.

The hon. Member for Westminster North raised the issue of domestic violence, as did the shadow justice Minister, the hon. Member for Ashfield (Gloria De Piero). Domestic violence is absolutely abhorrent; it appals every one of us in this place, I am sure, and it is an absolute priority for this Government. We are completely clear that genuine victims of domestic violence and abuse must have access to the help that they need, including access to legal aid. That is why we retained legal aid for protective injunctions. Legal aid was granted in more than 12,000 protective injunction cases last year. In addition, in cases involving child arrangements and financial matters, funding is available for those who will be disadvantaged by facing their abuser in court.

As the hon. Lady mentioned, we are considering the findings of the further internal review of the evidence requirements. I will make an announcement on that shortly, which I am confident—or at least, I hope—will receive support from all parts of the House. She also asked who would be consulted. That is of the greatest importance and we are working very hard to get this into the right kind of shape, engaging Rights of Women, Resolution, Women’s Aid and the Law Society, so that we can be confident that we are doing everything we can to protect and support genuine victims.

Although it is right to ensure that those who are most in need of legal aid are able to access it, we should acknowledge that the courts are not going to be the right solution in non-domestic violence cases in other areas. I am thinking particularly of some family law disputes, which the hon. Lady mentioned. In many family law cases, the challenge is to see them not go to court. I accept the point about mediation not being as successful as we had hoped, but the answer is to renew and revive the efforts to achieve greater use of alternative dispute resolution in some cases. That is not just because of the financial implications, but because of the trauma of going to court—not for lawyers, but for the many people affected by such cases. I think that needs to be emphasised.

We need to do more to promote alternative dispute resolution, so we have protected legal help in many cases. Last year, we spent £100 million on early legal advice and assistance in civil and family cases. In other areas, we have introduced a telephone helpline to provide legal advice in certain categories of case to allow individuals to access advice quickly and easily. Last year, there were more than 20,000 instances of advice being obtained usefully and helpfully through that system. We have also developed a user-friendly digital tool—as the world becomes more digital, it is right that the justice system strives to catch up—to make it clear to people when legal aid is available to them.

When an alternative route is more appropriate, people should feel empowered to pursue it without having to find a lawyer at great expense, whether that is to themselves or the taxpayer. For instance, in cases involving separating couples, mediation can be less stressful and quicker than going to court, and it is often far cheaper than using a lawyer. Critically, it can help to reduce conflict after separation and the trauma of that, often on both sides, which in some cases litigation will make worse, not better.

The Government are committed to promoting mediation and its benefits, and legal aid remains available for these cases. In the 12 months to June 2017, a full or partial agreement was reached in 62% of publicly funded cases in which both parties engaged in mediation. Of course, as hon. Members have mentioned, citizens can and do represent themselves in court, in some cases irrespective of whether legal aid is available or whether they are privately funded. Litigants in person are not a new feature of our justice system. People involved in litigation are engaged in a variety of disputes and have a wide range of needs and capabilities. We recognise that for some people, representing themselves in court is purely a matter of choice, but for others it can be very challenging and demanding.

European Union (Withdrawal) Bill

Stuart C McDonald Excerpts

Committee: 1st sitting: House of Commons
Tuesday 14th November 2017 Commons Chamber

[Mrs Miller]

My hon. Friend has a great deal of experience in those matters, and I am sure that Ministers sitting on the Front Bench are looking at them very closely. They will be as aware as us that, as we leave the EU, the complexities, particularly regarding equalities, need careful attention. When Government Equalities Office Ministers came before the Women and Equalities Committee recently, I was pleased that they were prepared to discuss Brexit issues. I hope that in future Brexit Ministers will also come before the Committee to discuss the issues set out by my hon. Friend.

I thank my hon. Friend the Minister for taking the issue very seriously indeed. I know that he has a lot on his plate, but he has taken the time to look at the issue in detail. He should be applauded for that. I look forward to seeing the fruits of his labour on Report.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

I want to speak briefly in support of amendment 137, tabled by my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry), who spoke so persuasively about the need to strengthen and clarify clause 6, particularly subsection (2).

If, utterly regrettably from my point of view, the UK is to leave the EU, it is important not only that there is a functioning statute book on exit day, but that it is as accessible and comprehensible as possible. The ordinary citizen must be able to understand their rights and obligations; businesses need to have clarity about the rules under which they will be trading and competing; and our courts require clear guidance about Parliament’s intentions. The rule of law and our economic interest require that. As it stands, however, there is still much work to do to achieve those aims, and that includes rectifying the lack of clarity in clause 6.

My starting point is clause 6(3), about which I do not think there is any dispute. Clearly, unmodified retained EU law should be interpreted in accordance with retained case law and principles of EU law. That is necessary to ensure that the statute book applies in the same way after exit as it did before. Immediately after that, however, we get into sticky territory, namely the status of post-exit European case law.

In the first months and years after exit, few cases in the CJEU will concern new EU rules that have nothing to do with the UK. Most will continue to relate to rules that existed before exit and that will in fact have been incorporated into the UK statute book by this Bill. In essence, such decisions by the CJEU are about how the law always was and should have been applied, including immediately prior to exit.

With apologies for moving away from highbrow discussions about the rule of law and the sovereignty of Parliament, I want to talk about the hypothetical EU widget regulations. If the EU widget regulations come into effect prior to exit, and a decision of the CJEU shortly after exit clarifies that the regulations do indeed apply to a new and cutting-edge form of six-sided widget, that decision would actually tell us and clarify what retained EU law was on Brexit day—the point at which it was incorporated into our laws. Yet the Bill appears to fudge or dodge the issue of whether such a ruling should be followed or even whether it should be given any consideration at all. Parliament is in danger of passing the buck to judges on what is actually a political decision.

Unlike his German counterpart, the UK manufacturer of a six-sided widget is unclear about where he stands and, importantly, so are our judges. Given that the widget directive is part of retained law, there is a strong argument that this Parliament should say that if the CJEU confirms in its judgement—despite it being handed down after exit—that when we incorporated the regulations they did apply to a six-sided widget, that should also be part of retained law in the United Kingdom, unless there is good reason to the contrary. That would seem sensible and desirable from a legal theory point of view and, much more importantly, from a practical point of view. If we are to make trade and competition with the EU as simple as possible, surely it makes sense for exactly the same rule, one still found in an EU regulation and one incorporated by the Bill into domestic law, to be interpreted in the same way unless there are very good reasons to the contrary. However, all clause 6(1) says is that a court or a tribunal is not bound by post-Brexit CJEU decisions, and clause 6(2) merely says it can “have regard to” such case law

“if it considers it appropriate to do so.”

Lord Neuberger says that that is not very helpful guidance for judges. Neither is it helpful for the six-sided widget manufacturer, who needs to know whether he must comply with the widget regulations and is not sure if domestic courts will follow the CJEU in deciding whether it does. Indeed, we might even find that courts in different parts of the United Kingdom could come to different decisions about whether to follow the CJEU’s decision on the widget regulations. Parliament has to do much better.

Amendment 137 provides alternative options. If there are reasons why domestic courts should not want to follow a CJEU ruling, the court could quite simply have regard to and then decline to follow the Court’s judgment. There could be very good reasons for that to happen, for example if Parliament had already decided to put in place its own separate statutory regime for six-sided widgets. Ultimately, if Parliament decides after a particular judgment by the CJEU that it wants to change retained law to take a different course, it can of course do that. However, there are many more rules where it would surely be sensible for this Parliament to leave them in place as they are and to seek to ensure consistency of application between the United Kingdom and the European Union so far as that is possible.

[Patrick Grady (Glasgow North) (SNP)]

Perhaps one reason why the Government and the Brexiteers, who appear to be paying precious little attention to anything going on in the Chamber, are not really interested is because they want a bonfire of such regulations and a race to the bottom. That is the ultimate goal of the hard Brexiteers on the Conservative Benches.

[Stuart C. McDonald]

I suspect my hon. Friend is absolutely right. My point is that there are many more rules where it would surely be sensible for this Parliament to leave in place exactly as they are, and not only that but to seek to ensure consistency of application between the United Kingdom and the European Union so far as that is possible. Clause 6(6) allows for even modified retained law to be interpreted in accordance with retained case law and principles if that is what Parliament intends.

We need a clear expression of intention that by leaving the rules unmodified and retaining the same rules in place on exit day, we are seeking for them to be applied in the same way here as across the EU. That is a much more political decision than I think the Minister accepts, which is why it should not be left to judges; it should be expressed clearly by this Parliament that that is what we want, if that is indeed what we want to happen. That will help judges, it will be good for the six-sided widget manufacturers who will understand the rules under which they have to operate, and, most importantly, it will be good for all citizens who will benefit from clarity about their rights. It is therefore imperative that Parliament makes this happen, through amendment 137 or otherwise.

[Sir Oliver Letwin]

It pains me to say this, but I think that what several of us have been trying to say, put very briefly, is that clause 6 as it stands is a frightful mess. Of course I shall vote with the Government tonight, but I very much hope that after this debate—as did not happen after Second Reading—the Government will go away and think about clause 6. If they do not, what will happen is that it will, rightly, be massacred in the House of Lords, not least by former Law Lords. Once it has been, it will be very difficult for those of us who know it is a mess at the moment, in a way I am about to describe, to support an attempt to overrule the House of Lords. I beg those on the Front Bench to take seriously the problem we are trying to expose here. Let me try to describe it more clearly than perhaps I have managed so far, although I know that several of my hon. Friends have also tried.

It is clear, from clause 5(2), that the Government accept that, in relation to the retained law, the interpretative powers of the ECJ are extremely wide. It states:

“the principle of the supremacy of EU law continues to apply…so far as relevant to the interpretation, disapplication or quashing of any enactment”.

As my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox) rightly pointed out, the supreme power that can be given to a court in this land is being attributed in the Bill to the ECJ in respect of existing legislation—namely, the power to quash an Act of Parliament. It does not get higher than that.

Oral Answers to Questions

Stuart C McDonald Excerpts

Tuesday 31st October 2017 Commons Chamber

[Dominic Raab]

My hon. Friend is absolutely right. Let us also not forget the advice of the former Lord Chief Justice, Lord Thomas, who made it clear in his evidence to the independent review of extradition that there were problems with the European arrest warrant. We have legislated for extra safeguards. We are ending the jurisdiction of the European Court, but there has been no suggestion that we are dispensing altogether with vital EU extradition—except, perhaps, as a figment of some of the furtive Liberal Democrats’ imaginations.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

Surely the Minister can make it clear that the Government’s priority must be continued participation in the European arrest warrant and that that must come ahead of his obsession with ending the jurisdiction of the European Court of Justice.

[Dominic Raab]

I welcome the hon. Gentleman’s intervention, but I gently suggest that he read the position paper on the future partnership, which was published in September, because it deals directly with the question he has just asked and makes it clear that we do want to continue vital extradition relations with our EU partners.

European Union (Withdrawal) Bill

Stuart C McDonald Excerpts

2nd reading: House of Commons
Monday 11th September 2017 Commons Chamber

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

The Bill provides dangerous and sweeping powers to Ministers, rides roughshod through the devolution settlements, removes important legal protections and creates legal uncertainty, so, like most Opposition Members, I will definitely vote against Second Reading tonight.

Lots has already been said about the extraordinary proposed powers for Ministers in various Henry VIII clauses, to which the response has generally been, “Such clauses are already common”. It is true that they are far, far too common, but that does not mean that we should throw caution to the wind and hand them out like confetti. We should be fighting back against Henry VIII clauses, not handing out some of the most wide-ranging and dangerous-in-scope examples, as proposed in the Bill.

On the face of it, the proposed powers are so broad that Ministers could use Henry VIII powers to remove the very limits that are supposed to constrain their exercise, including the sunset clauses, and they are so wide that it is anticipated in the Bill that the Henry VIII powers will be used to create—guess what?—yet more Henry VIII powers!

[Sir Oliver Letwin]

Does the hon. Gentleman agree with me on the point that was discussed with the hon. Member for Rhondda (Chris Bryant)—namely, that the amendments of which he speaks could occur only after an affirmative resolution of the House?

[Stuart C. McDonald]

I do not necessarily agree with the right hon. Gentleman, nor do I have faith that even the affirmative procedure is necessarily a proper safeguard against wide-ranging powers such as those in the Bill. Such power does not belong in a Henry VIII clause at all.

Limits could be placed on the powers in the Bill at later stages. We could perhaps restrict which matters could be dealt with by delegated legislation, list further protected enactments, and define key terms such as “deficiencies”, or introduce a test of necessity, rather than rely on subjective ministerial judgment, and thereby improve the Bill. If it is to proceed, that must happen. But none of that would resolve the fundamental challenge of how we parliamentarians are supposed to play a substantial role in the whole process, beyond the usual inadequate procedures for scrutinising secondary legislation. Other Members have gallantly suggested alternative mechanisms—for example, some sort of filter—but to my mind they have been far too modest. At the very least, we need a procedure that allows us to table amendments to regulations, rather than meekly accepting take-it-or-leave-it, all-or-nothing proposals from the Government.

We are more than 13 months on from the referendum. Transposing EU law into UK law was always going to be a monumental task. The Government’s assuming that we could just use the same old procedures we always use was either negligence, complacency, arrogance, or a mixture of all three. Such procedures are not fit for the normal business of this House, never mind for the vital task that lies ahead.

With respect to the devolved competencies, the Bill rides roughshod over the devolution settlements. Can you imagine, Mr Speaker, the federal Governments of Germany or the USA—or of lots of other federal places—attempting such a unilateral power grab? It would be greeted with outrage, and rightly so.

[Stephen Kerr]

I shall try again with the question I asked earlier. The hon. Gentleman talks about power grabs and the trashing of the devolution settlement, but can he tell me one power that the UK Government intend to grab back from Holyrood?

[Stuart C. McDonald]

Had the hon. Gentleman listened to my hon. Friend the Member for North East Fife (Stephen Gethins) earlier, he would have heard him mention agriculture, the environment and fishing. If he bears with me, I shall come to that point in just a moment.

The Länder and the individual states of the United States are lucky that they are protected by a proper constitution; it seems that all our devolved nations are protected by is the Government’s mood and political pressure. It is a salient reminder that power devolved is power retained and of just how fragile the devolution settlement is.

On the point made by the hon. Member for Stirling (Stephen Kerr), can we imagine the response if the Bill sought to do to this Parliament what it would do to the devolved legislatures? If the Bill’s purpose was to take back control, but then to prevent Parliament from changing retained EU law, it would have been laughed at and considered utterly unacceptable, but that is exactly what it will do to the devolved legislatures. It is completely unacceptable for the exact same reasons. We have heard some patronising arguments from Government Members, one of whom essentially argued that the UK Government need to take control of the powers for now to protect citizens in the devolved countries from their democratically elected Governments. We are more than capable of handling powers; we have done so since devolution, and we will continue to do so after Brexit.

If anything good has come of the Bill, it is its highlighting of the significant failings in the House’s procedures for the scrutiny of the ever-increasing number of Executive powers to which successive Governments have helped themselves. It also highlights the utterly centralised nature of the British constitution, which is as far away from a mature federal model as it could ever be. There are almost no proper constraints to rein in Executive power, or proper legal safeguards for important rights. The idea that the Bill is part of a restoration of Parliamentary sovereignty is nonsense; it will simply mean that parliamentary sovereignty and, more significantly, Executive power are more unfettered than ever.

Perhaps membership of the EU, and the protections that that has provided through the charter of fundamental rights and other provisions, has led to complacency about the dangers of untrammelled parliamentary sovereignty, and the problems of the elective dictatorship once identified by Lord Hailsham. Now that the EU’s safety nets are being removed, all of us who believe in constitutionalism need to look again at where the UK goes from here. This Bill is certainly not the answer, which is why I will vote against Second Reading tonight.

Oral Answers to Questions

Stuart C McDonald Excerpts

Tuesday 5th September 2017 Commons Chamber

[Mr Lidington]

What is important is that we manage legal aid in a way that directs finite taxpayer resources to those cases where there is greatest need, and that we look actively for ways to simplify access to justice, including through the use of digital technology, so that people do not feel the need always to have that kind of professional representation.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

Barely a third of immigration detainees even know that they are entitled to 30 minutes of free legal advice in England and Wales, and only half have ever been able to access it. Given the horror show in Brook House that we saw on last night’s “Panorama”, will the Government act urgently to ensure that all detainees get access to the free legal aid that they urgently require?

[Mr Lidington]

As the hon. Gentleman knows, the centre that was the subject of last night’s programme is accountable to the Home Office. My right hon. Friend the Home Secretary is concerned about the allegations and appropriate action is being taken.

On the hon. Gentleman’s broader point, legal aid is still available for asylum cases. I would certainly hope that appropriate measures are taken in every relevant establishment to bring those rights to the attention of anyone who is detained and might qualify for legal aid.