Human Rights in the UK

John Howell Excerpts

Wednesday 13th February 2019 Westminster Hall

[John Howell (Henley) (Con)]

It is a pleasure to serve under your chairmanship, Mr Gapes, and a pleasure to follow the hon. Member for Edinburgh East (Tommy Sheppard), who is a fellow member of the Council of Europe. I understand and agree with a lot of what he said.

The European convention on human rights has been around since the early 1950s, and it is worth remembering that it was 1965 when we agreed to abide by the decisions of the European Court of Human Rights in the UK. We have had almost 60 years of a relationship with the European Court of Human Rights and its decisions.

I start by making the point that the convention is not the same as the Human Rights Act, and the European Union is not the same as the Council of Europe. The two are very different and we should take them as such. I have a lot of time for the convention, and I agree with much of what the hon. Gentleman said about it. I was particularly irritated during the referendum campaign that a lot of people got the ECHR confused with the European Court of Justice. The two are completely separate. One is owned by the European Union and the other by the Council of Europe.

I would go on to say that the single biggest contribution to peace in Europe since the end of the second world war has come from the European convention on human rights, together with the work that NATO has done. We should state that, and we should be proud of it, because we have been very much involved in it from the beginning. As the hon. Gentleman and I know only too well, the European Court of Human Rights comes with a democratic mandate. I imagine the hon. Gentleman spends a lot of time, as I do, voting for the judges who are nominated to sit on the European Court of Human Rights. That gives democratic control and is also a means of reflecting, to some extent, the mixture of politics, competence and a whole number of other matters that give the European Court of Human Rights its character.

I am not as enamoured of the EU’s involvement with human rights, which I think has created a very mixed picture. If I am not using the term wrongly, I think that the European Union has tried to steal the mandate of the Council of Europe, which applies to almost twice the number of countries as the EU does—that is where a large part of its strength lies. The relationship between the EU and the European Court of Human Rights is something that we are still debating at the Council of Europe.

UK involvement with the European Court of Human Rights has been a huge success story. It has been a very good illustration of how human rights overall are doing quite well in this country. I do not agree with the hon. Gentleman on the need to extend those human rights to matters such as housing. That is a route to socialist involvement in the running of this country that I do not agree with, and would steer clear of.

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

Does the hon. Gentleman recognise that there are countries across the world, such as South Africa with its new constitution and some Nordic countries, that have a right to adequate housing in their constitutions? Does he consider those to be socialist countries?

[John Howell]

When the EU decided to bring out its own human rights framework, it thought very carefully about what should be included, and it differs from the European Court of Human Rights on only a few exceptions.

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

The European convention on human rights was opened for signature in November 1950 in Rome, and the Government in this country was a Labour Government from 1945 to 1951. Will the hon. Gentleman praise the socialist Government under which the ECHR was originally conceived?

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[John Howell]

The hon. Gentleman plays politics with human rights, which is unworthy of him and of this Chamber.

To return to the issue I was discussing—the success of the British Government with the European Court of Human Rights—about 90% of applications that come before the European Court of Human Rights are deemed unacceptable and are not taken forward. Of those that are taken forward, since 1975, the Court has found no violation in a quarter. Our track record is particularly successful.

I want to bring up two cases that illustrate the extremes. The first is that of the Gurkhas. Members may remember that a few years ago we moved their headquarters back to the UK and their pensions on to the same basis as UK soldiers. They took their case to the European Court of Human Rights, which decided that there had been no real discrimination against them, and found for the British Government.

In a slightly different case on the UK’s mass surveillance regime, which it uses as part of security operations, the Court found that the UK had violated the convention and it asked for some changes. That brings us on to the very tricky issue of the role of human rights versus legislation regarding dealing with terrorism. I agree with the hon. Member for Edinburgh East that this should be looked at in the context of what makes a better world to live in—I am not one of those who believes that tearing up the European convention on human rights is the best way to protect us against terrorism—but, having said that, and as the hon. Gentleman will know, at the last Council of Europe meeting, when the issue came up of whether we deprive those who have gone to fight with ISIS of their passports, I enthusiastically supported that motion. We should not have them back. The role of human rights in this plays out at different levels and in different ways.

In terms of how the ECHR works, people should understand that they have to exhaust all domestic remedies first, before they have recourse to the European Court of Human Rights. They cannot go straight to the European Court of Human Rights. There has to be an alleged violation of the convention, and significant disadvantage from that.

The response I would like to hear from the Minister is along the lines of what has already been said—indeed, it was this Minister who said:

“The UK will remain a party to the ECHR after it has left the European Union. The decision to leave the European Union does not change our strong commitment to recognising and respecting human rights.”

I am not sure whether he remembers making that statement, but it was in response to a question from the right hon. Member for Carshalton and Wallington (Tom Brake).

I agree with the Minister wholeheartedly: human rights are too important to be used as a political football in this game of Brexit or, indeed, in anything else. We have a long and successful track record of using our involvement with the European Court of Human Rights and our long relationship with the Council of Europe, which oversees the Court, and of protecting the interests of British citizens.

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

It is a pleasure to serve under your chairmanship, Mr Gapes, and I am grateful to all hon. Members who have contributed to what has been, on the whole, a very fine debate on human rights. I warmly congratulate the hon. Member for Edinburgh East (Tommy Sheppard) on securing it, and on his speech. He powerfully highlighted why this debate is so timely, given the worry that there will be a roll-back of rights, and that the EU27 will move ahead and enhance rights while we in this country fall behind. He also spoke well about the Prime Minister’s ambiguity on this matter, to say the least—I will return to that in a moment—and he picked out some strong examples of practical cases where the Human Rights Act and the incorporation of the ECHR into UK law has made a difference to those seeking justice in this country over the past two decades.

It was great to hear about the human rights city initiative in York, and I congratulate my hon. Friend the Member for York Central (Rachael Maskell) and all those involved in that. We must spread information about the human rights and equalities board, and all the other work going on around the country. I am also grateful to my hon. Friend the Member for Edmonton (Kate Osamor), and the report of the UN special rapporteur on extreme poverty and human rights should wake us up to the endemic problems of poverty in this country. She spoke about human rights agreements being breached, and that involves the economic and social rights of women, children, and disabled people. That is a stark reminder that although rights are critical, they are paper rights if people do not have the means to enforce them. It says everything we need to know about economic policy over the past nine years when an outgoing Lord Chief Justice can say that our justice system is “unaffordable to most”, and that should be a matter of great alarm.

The hon. Member for Henley (John Howell) spoke about his experience on the Council of Europe, and the hon. Member for Strangford (Jim Shannon) spoke movingly about religious persecution, about which we should all be vigilant. I did not agree with all the arguments made by the hon. Member for Cheltenham (Alex Chalk)—he is no longer in his place—but I certainly agreed with his support for the European convention on human rights.

We must return to first principles when discussing the European convention on human rights, which grew after world war two out of the desire and noble objective to ensure that what had happened could not happen again. As I said to the hon. Member for Henley, the convention was part of many different initiatives by the post-war Government to put that “never again” spirit into practice. I am always even-handed when dealing with the history of this initiative, so let us consider who supervised the drafting of the original ECHR. One of the people who took part in that, David Maxwell Fyfe, was a Tory MP and lawyer, and I wonder what on earth he would make of some of the modern-day Conservative party’s ambiguity towards that initiative.

What does the ECHR actually protect? I think the hon. Member for Cheltenham touched on that. It protects respect for life and is against torture and servitude. It protects liberty and security, and the right to a fair trial and not to have legislation applied retroactively. It protects the right to privacy, freedom of conscience and religion, and freedom of expression and association. It protects the right to get married if one wishes to, and provides effective remedies and protection against discrimination. Who could disagree with any of that? My challenge to those who say that we should have a British Bill of Rights is to ask which of those rights they would take out and not include in that Bill. I remember asking Ministers that question when I first came to Parliament in 2015, but answer came there none.

[John Howell]

As I said, I am a great champion of the convention, and although it was written immediately after the second world war, it contains nothing that does not apply to today.

[Nick Thomas-Symonds]

I am happy to find some agreement with the hon. Gentleman because, yes, all those things still apply today. That is precisely my point—why would anyone want to change any of those time-honoured principles? Of course we can debate how some of them are applied and so on, but those principles are as important and relevant in 2019 as they were in late 1950 when the convention was opened for signature.

The Human Rights Act 1998 is also seminal—it is important to understand precisely what the situation was before its passage. The hon. Member for Henley said that our courts started following the judgments in 1965, but of course the problem was that between the early 1950s and October 2000, when the 1998 Act came into force, if one wished to enforce any of those rights, one had to go to Strasbourg in the first place. The big change that came about in 2000 was the ability to go to our local courts to enforce those rights, which meant that it was cheaper, easier and more efficient to enforce the rights that our citizens had held for so long. That was a seminal change.

I parted company with the hon. Member for Cheltenham because, although in one sense he is right to say that those rights buttressed existing UK common law rights, there are numerous examples—the hon. Member for Edinburgh East referred to some of them, and I also point out the example of family law to the hon. Member for Henley—where the incorporation of the 1998 Act into UK law has made a significant difference.

The Labour party is very committed and passionate about the ECHR and the UK’s signatory status, and about its incorporation into our domestic law. However, there is real concern about the governing party’s position, particularly that of the Prime Minister, on the ECHR. In 2011, the Prime Minister—when she was Home Secretary—said:

“I’d personally like to see the Human Rights Act go because I think we have had some problems with it.”

Her first view appeared to be that she wanted it gone.

In April 2016, she said:

“So regardless of the EU referendum, my view is this: if we want to reform human rights laws in this country, it isn’t the EU we should leave, but the ECHR and the jurisdiction of its court ”.

That is the Conservative party’s position in its 2017 manifesto, which states:

“We will not repeal or replace the Human Rights Act while the process of Brexit is underway but we will consider our human rights legal framework when the process of leaving the EU concludes. We will remain signatories to the European Convention on Human Rights for the duration of the next parliament.”

In his response, the Minister has an opportunity to explain, because although we know what the position is for this Parliament, we do not know what it will be for the next Parliament. The hon. Member for Henley said, quite rightly, that these are time-honoured principles. Why, according to the Conservative party, are they only good enough for this Parliament? Why are they not good enough for the next Parliament, the next 10 Parliaments or the next 20 Parliaments?

I can say for certain that the Labour party will always be fundamentally committed to human rights, to the ECHR and to the Human Rights Act 1998. Can the Minister say the same for his party?

Short Prison Sentences

John Howell Excerpts

Tuesday 29th January 2019 Westminster Hall

[Chris Evans (Islwyn) (Lab/Co-op)]

I beg to move,

That this House has considered the effectiveness of short prison sentences.

It is always a pleasure to serve under your chairmanship, Ms Dorries. I refer the House to my entry in the Register of Members’ Financial Interests. I am the chair of the all-party parliamentary group on boxing and a steward of the British Boxing Board of Control.

I have called this debate because I was heartened by the Minister’s recent statement that he is seriously considering abolishing short-term prison sentences. Considering the many reports in the news about the apparent decline of prisons across the country— perhaps most notably HM Prison Bedford—this debate could not have come at a better time. It is my hope that the debate will serve as the beginning of a conversation with the Government, wider society, charities and other organisations that inspires confidence in our criminal justice system and brings about effective, fair punishment in the future.

According to Dr Robert Jones at the Wales Governance Centre, Wales has the highest imprisonment rate in western Europe. As of last Friday, there were more than 82,400 people serving sentences in prisons across England and Wales, 95% of them male. The current prison capacity of England and Wales is estimated to be around 85,000, which means many prisons are suffering from severe overcrowding and a massive strain on resources. This overcrowding leads to increased risk of inmate violence, and leaves resources and staff thinly stretched across the prison, which can heavily impact on the success of rehabilitating inmates.

It is clear that things have to change. I believe that there are alternatives available to the Government. If we were to see more investment in community services and rehabilitative treatment programmes, which can address an offender’s criminogenic needs, we would see a reduction in the prison population and rates of reoffending. I am aware that the Minister expressed an interest in abolishing sentences of only three months, but I believe that there is a case to extend this to sentences of up to six months. All of the evidence stacks up to show that shorter sentences do not work.

[John Howell (Henley) (Con)]

The hon. Gentleman is making some good points about overcrowding and the state of the prison estate. When looking at short sentences, the key issue for me is whether they achieve the rehabilitation of prisoners; my judgment is that they do not. Would he agree?

[Chris Evans]

The hon. Gentleman makes a pertinent point, which I will elaborate on later. There are numerous examples of people in the system with substance abuse issues, who cannot get into substance abuse rehabilitation or overcome their problem, who then find themselves outside, and get back into the system. I will develop this argument more as I go on and I will be happy to take another intervention, if the hon. Gentleman so wishes.

To me, short sentences do not help to reduce reoffending and they can cause unnecessary disruption to the lives of those who could have been dealt with in ways that have seen better results.

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[Chris Evans]

When it comes to boxing there is evidence. I could cite a huge number of champions, from both sides of the Atlantic—some famous examples—who found themselves in trouble and used boxing to turn themselves around, because of the discipline that the sport taught them. The Government need to take those ideas on board, and provide support for boxing clubs, which tend to be at the bottom of the pile when money is handed out in community grants.

[John Howell]

Does the hon. Gentleman think there is a great contradiction in the health service engaging in social prescription, by encouraging people to engage in sports activities, while the Prison Service does not?

[Chris Evans]

Yes. The trend in the past 20 years has been that prevention is better than cure. The NHS is getting success in encouraging people suffering from obesity to go on to fitness and diet programmes. There is some success from that approach, and it could be transferred to the Prison Service. If people with energy have time on their hands, sport can fill it.

In research published last year by the Ministry of Justice it was found that reductions in reoffending were associated with the use of court orders such as community sentences rather than short custodial sentences. The effect was greater for people with a larger number of prior offences, younger offenders, and people with severe mental health problems. For those with prior offences who have already served a number of short stints in prison, imprisonment is clearly not a deterrent but more of an occupational hazard. It is interesting, therefore, that those offenders are less likely to reoffend when given community sentences.

Community sentences can be a win-win for all. Taxpayers’ money is saved, local communities and projects benefit and offenders learn skills and the value of giving back to society instead of taking from it. Not only do short sentences do nothing to rehabilitate an offender or reduce their risk of reoffending; sending people to prison for a few months unnecessarily adds to the overcrowding in prisons throughout the country. As I mentioned, England and Wales are reaching peak prison capacity and many prisons are heavily overcrowded. The overcrowding means even more strain on already pressured prison staff and resources; there are not enough of them as it is. That in turn has an impact on the success of inmate rehabilitation, levels of violence in prisons and access to illegal drugs, not to mention the wellbeing of prison staff.

That overcrowding could be prevented if courts did not instantly resort to sentencing offenders to short prison terms for non-violent petty crimes. In the year ending June 2018 almost 29,000 people entered prison to serve sentences of six months or less. That was 47% of all sentenced offenders entering prison during that time. According to Ministry of Justice prison performance statistics for 2017-18, in England and Wales the cost of keeping one person in prison for a year stood at £37,543. That works out at about £3,125 per month for one prisoner. The annual figure is more than Brits earn on average each year, and is almost as much as the cost of a place at an elite public school. Think of the amount of money we could save and invest elsewhere, if we did not imprison people on short sentences. It would also save money in the long run, as those who serve a community sentence or enter a rehabilitation programme are less likely to reoffend and to be imprisoned again in the future.

The money saved could be invested into the programmes and used to create more jobs and train more staff in the skills required to work in rehabilitation and treatment services, as well as being spent on other public services. With the looming threat of a no-deal Brexit and a shrinking economy, we need to be more efficient and effective with money and resources, and invest in and utilise more efficient and effective options.

It is not just the placement in prison for a few months that is costly. Short-term sentences can be hugely disruptive to people’s lives and lead them to be more reliant on public and social services than they were before entering prison. Resettling a previously imprisoned offender back into the community uses up a lot of time, money and resources. Short sentences can disrupt employment and housing situations, which can lead to more people applying for and relying on universal credit. There is a risk of people being left homeless, particularly if they are released on a Friday, as happened to more than 25,000 people in 2017-18. The public services that people rely on upon release, such as access to benefits, medication, housing or other assistance, are closed over the weekend. That means there is a risk that they will not get their basic needs supplied and that they will sleep rough for at least three nights. Therefore they will be at increased risk of reoffending. From there the offender can fall into the cycle of offending and imprisonment, which racks up the costs in the long run.

I know that the Minister is committed to prison reform and reducing the levels of inmate violence and access to drugs, and that he recognises the virtue of rehabilitating and educating inmates. I commend him for that. I hope he would agree therefore that, if we truly want to protect the public and remove people from a life of crime, so that they become proactive citizens who make positive contributions to society, we must take heed of the research and the multitude of statistics showing that short prison sentences do not work. I mentioned earlier the Revolving Doors Agency’s #shortsighted campaign, and I urge the Minister to take on board its recommendations. It calls on the Government to introduce a presumption against short custodial sentences of less than six months, much as the Scottish Government have done. That would allow for such sentences to be given only when no other appropriate option was available. In cases where short prison sentences were imposed for non-violent petty crimes, the courts would have to give a reason why they had opted for a custodial sentence over a community one. What is more, that approach would not remove the court’s discretion, and would allow courts to deal with more serious and violent offences appropriately. What is proposed is a presumption, not a ban on short prison sentences.

The fact that an offender does not go to prison does not mean that they are escaping justice or retribution. Such offenders will serve their time in another way, whether through curfews and tags or community service that benefits the wider community. Many of them face pressing personal issues, including substance abuse, homelessness or mental illness. I believe that they should be given the opportunity to escape the vicious cycle of criminal behaviour. They should have help alongside serving their community sentence, so that they can be rehabilitated and learn skills that can benefit their local economy and wider society.

We have to ask: do we truly want our streets to be safe, or do we want offenders to be punished and thrown into an expensive cycle of petty criminal behaviour and short-term imprisonment? If the answer is the former, the only way forward is to focus on how we can help those people change their lives for the better, rather than throwing them in prison and forgetting about them for several months. By allowing the latter to happen we will only contribute to the rising level of crime on the streets, and to overstretched prison services. I hope that the Minister can agree with me on that, and that he will pursue alternatives to short-term prison sentences.

As I said at the beginning of the debate, I look forward to engaging in a constructive and robust conversation. I do not expect to get all the answers today. However, I want a real opportunity to engage, over the next few months, in bringing about a justice system that brings benefits and, above all, inspires the confidence of the whole community.

Bailiffs: Regulatory Reform

John Howell Excerpts

Wednesday 9th January 2019 Westminster Hall

[Emma Reynolds]

Indeed it is. It seems to me that it is not in the interests of the local authority. For instance, Hammersmith recognised that if people are forced into more debt, they are unlikely to be able to pay it off. As I understand it, there is no compulsory obligation on bailiffs to accept a repayment plan, which the Government should consider carefully. In fact, all the incentives seem to be stacked against the bailiff being cautious or sympathetic to the debtor. All the incentives seem to be for the bailiff to collect as much money or as many possessions as possible on that visit.

Bailiffs have extraordinary rights to seize possessions and the police are the only other profession that I can think of that is permitted by law to enter someone’s property. The police can do so only if someone is suspected of serious criminality and they have to secure a search warrant and read someone their rights. Those with a complaint can report the police to the Independent Office for Police Conduct. Bailiffs too need a court order, but there seems to be no requirement for bailiffs to tell someone their rights. Indeed, evidence suggests that bailiffs often misrepresent people’s rights to gain entry to their home and seize possessions.

[John Howell (Henley) (Con)]

The hon. Lady is moving on to the area of complaints, which is close to my heart. Does she agree that there needs to be a simple system that people can use that includes something like mediation—alternative dispute resolution—that is quick to implement but very friendly and not as intimidating as going to court?

[Emma Reynolds]

The hon. Gentleman pre-empts the next section of my speech, which is all about that. Short of taking a bailiff to court, there is no meaningful way of seeking redress, because there is no simple or clear complaints procedure. Arguably there is no meaningful complaints procedure, although I will come to that.

In the case of my constituent, I complained to the local council, which was enforcing a parking fine. The council and I complained to the bailiffs company, but it disputed my constituent’s version of events. I complained to the bailiffs trade association, which we have discussed. I got a letter back saying that it was the word of my constituent against the word of the bailiffs. I raised the case in Parliament and we are having a debate today, but even as an MP, I felt powerless to take the case any further, which was deeply frustrating. Can it be right that, short of taking the case to the courts, our constituents have no other means of redress? It cannot, and the bailiffs know it—they know that most people in debt will not have the money to take them to court. There have been only 56 complaints in the courts since the 2014 reforms despite reported widespread bad practice.

One couple explained to me that their attempts to take a complaint forward had been blocked at every opportunity, including by claims from the bailiffs company that letters had been lost in the post—that old chestnut—and had taken nearly a year and cost thousands of pounds. Bailiffs are largely unaccountable, which is why I am calling on the Government to bring forward urgent reform.

Specifically, I call on the Minister to take forward the proposal of a cross-party group of MPs led by my hon. Friend the Member for Leeds West (Rachel Reeves). In a letter sent to the Minister today, they ask the Government to set up an independent regulator to enforce the rules. The regulator, which could be an existing body or a new body, should have a range of powers and responsibilities to set and enforce rules, and standards for bailiffs, and to take both a reactive and proactive approach, investigating firms and individuals where there are complaints but also proactively monitoring standards. Crucially, a regulator must ensure access to redress. Alongside that—this speaks to the point of the hon. Member for Henley (John Howell)—we need a fair, free, simple and transparent complaints procedure.

Crucially—I very much speak on behalf of my disabled constituent on this point—bailiffs must be required to identify vulnerable households. To end the targeting of vulnerable people, there have to be clear procedures for referring debts back to creditors when enforcement is not appropriate.

The impact of those reforms must be to change the culture of the industry. There are not enough sanctions on bailiffs, and all the incentives drive bailiffs in the wrong direction—to penalise people rather than help them. The debt advice charities are highly regulated. The debt collectors are also regulated. The bailiff industry is an anomaly. I ask the Minister to take urgent action. They are not difficult reforms and, crucially, implementing such changes would mean that bailiffs played by the rules and treated people with the respect that they deserve.

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[John Howell (Henley) (Con)]

It is a great pleasure to serve under your chairmanship, Mr Evans, and to follow the hon. Member for Wolverhampton North East (Emma Reynolds), who introduced this important debate.

The debate is timely. The subject is very much on the lips of the Minister and of members of the Justice Committee, as both the Minister and the Committee are undertaking inquiries at the moment. The Ministry of Justice inquiry, which has called for evidence, will look at the effect of the 2014 legislation, which although it has brought some benefits, clearly did not go far enough and has created new problems, as the Lady told us. Those problems are due to the behaviour of many bailiffs—the way they go about their job is a real problem for us. I believe the Ministry of Justice has promised that any proposed changes will be put out to consultation, so we will all have the opportunity to engage with them.

The Justice Committee also decided to conduct an inquiry on the subject, and we discussed yesterday how it would feed into the Ministry of Justice inquiry and how we could submit it as evidence. The Committee’s inquiry will look at the 2014 legislation and the way in which complaints are handled and dealt with throughout the process. Two issues emerge above all: the extent of regulation and the complaints system. The two are of course associated, but they need also to be looked at separately.

As the hon. Member for Leeds West (Rachel Reeves) mentioned, the Civil Enforcement Association exists, but it is not independent. The system of regulation is effectively one of self-regulation or, in this case, pretty much no regulation. I listened to all the points made by the hon. Member for Wolverhampton North East about why the system of regulation is not very effective. One point that came in, but was not actually mentioned, is that no sanctions can be levelled against a firm of bailiffs conducting its business in such a way.

[Rachel Reeves]

The hon. Gentleman makes an important point. The Civil Enforcement Association is just a trade body. People have to pay a fee to be a member, but a bailiff does not have to be a member. The answer is to have an independent bailiff regulator capable of banning and prosecuting bailiffs who break the law. Does the hon. Gentleman agree that that is in the interests of bailiffs who respect the law and their customers, particularly vulnerable ones?

[John Howell]

I very much agree with the hon. Lady’s description of how the regulatory system should work, but I do not think we should concentrate solely on the regulatory system. I completely take on board everything she said about what the regulatory system needs to include, but we need also to examine how complaints are dealt with if we want to have an effect on bailiffs who are not doing their job properly or are abusing their position.

The current complaints system has seen an enormous increase in people trying to make complaints, but fewer people have been able to do so legitimately. I propose to the Minister that, before she proceeds with the results of the call for evidence, she and I have a conversation. I chair the all-party parliamentary group on alternative dispute resolution, and I think we have the solution to the problem. The solution, which the rail system is using to try to deal with complaints, is to have in place a system of alternative dispute resolution, including such things as mediation, that can deliver quick advice.

One great thing about alternative dispute resolution is that it is much cheaper than going to the courts. That is what we need. If the Minister would like to have a conversation with me, I will propose a system to do that. From the experience that we have of how ADR has been used elsewhere, I think it will satisfy all the requirements that the hon. Member for Wolverhampton North East set out.

[Several hon. Members rose—]

Courts and Tribunals (Judiciary and Functions of Staff) Bill [Lords]

John Howell Excerpts

3rd reading: House of Commons & Report stage: House of Commons
Wednesday 12th December 2018 Commons Chamber

[Yasmin Qureshi]

I rise to speak in support of amendment 1 and the other amendments. We are being encouraged to wave through this wafer-thin Bill, which is both narrowly constrained and obscurely drafted. This is a Bill that sneaks through changes that will change unconstitutional double delegation—that is, of legislative power to unaccountable judges sitting on procedure rule committees and of judicial powers to non-independent courts and tribunal staff.

Let us begin with clause 3, which delegates judicial functions to authorised staff. This provision must be understood in the context of a wider court reform agenda and the austerity measures that seek to make significant cuts. These efficiencies, generated through the proposed reforms, arise not only from the reduction in the size of the courts estate, but from savings on judicial salaries. Ultimately, the Bill seeks more justice on the cheap.

The Bill will ensure that judicial powers are delegated to non-independent courts and tribunal staff. The procedure rule committee is primarily made up of senior judges, who would ensure relatively little external public scrutiny of this delegation of judicial functions to non-judicial employees of Her Majesty’s Courts and Tribunals Service. That is a really important point.

The Bill provides that regulations under clause 3 must be made under the negative resolution procedure. In effect, this will allow new rules of court stipulating which judicial functions can be delegated and to whom, and the requisite qualifications or experience that an authorised person must have to take on these judicial functions, but, as the Bill stands, such a delegation will come into force without any real parliamentary scrutiny. In essence, by providing that the regulations in the Bill are to be made under the negative resolution procedure, the Government are avoiding proper scrutiny by a democratically mandated legislature here in this place.

Our amendment, which is supported by the Bar Council, would ensure more constitutionally appropriate accountability and scrutiny, through the affirmative resolution procedure, of these sweeping regulations. These regulations concern powers to make rules stipulating which judicial functions can be delegated and to whom, and the qualifications and experience required before a member of the administration can be given these judicial functions. Without careful scrutiny and additional safeguards, the Government’s drip-feed approach to court reform will erode some of our most fundamental institutions and our understanding of the rule of law.

[John Howell (Henley) (Con)]

Will the hon. Lady comment on whether the qualification provision will raise the bar significantly above that in current regulations for such people and whether that will put at a disadvantage people already carrying out those functions?

[Yasmin Qureshi]

We are talking about two different things. The authorised persons are to have delegated to them many judicial functions, and it is only appropriate that they have some experience. In those circumstances, three years’ post-qualification experience is not a big ask, obligation or burden. We are asking for the minimum, and we are being very reasonable and practical about it. We are only surprised that the Government are not taking our concerns on board and changing the rules.

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[John Howell]

I spoke on Second Reading and pointed out the extent to which the courts were undergoing reform. A number of Members have commented on that today and I will not go over what I said in that earlier debate again. It is understood that we are seeing a major reform process and the work of Lord Briggs on this is well understood, but to judge the effectiveness of those reforms and this Bill we must determine whether it passes two tests. First, does it make it easier and swifter to obtain justice? Secondly, does it provide better access to justice? The Bill passes both tests.

The Bill provides better access to justice by making sure that is quicker and swifter, and achieves that by freeing up judges’ time to focus on the most pressing cases. As I said on Second Reading, when I was on the Industry and Parliament Trust course I sat with judges and was able to see their enormous workload. Anything we can do to help free that up has to be a very good thing.

I echo, too, the comments of my hon. and learned Friend the Minister on the planning and housing courts. I have sat with a judge on a planning court, and I thought it achieved a tremendous amount in bringing things together. I take particular pleasure in the work Lord Thomas has done on this, as a former Lord Chief Justice and a reforming Lord Chief Justice. He went out of his way to help reform the system and I am glad he is still doing so. The comments of Lord Neuberger have also been excellent.

I assure the Minister that I support this Bill.

Justice

John Howell Excerpts

Monday 3rd December 2018 Ministerial Corrections

The following are extracts from the Third Reading debate of the Civil Liability Bill [Lords]on 23 October 2018.

[John Howell]

Earlier this afternoon, the Minister will have heard my hon. Friend the Member for Croydon South (Chris Philp) give an example of how he was approached—hassled, in fact—by a claims management company. I, too, have been in that situation for a fictitious accident and I still get calls about that. Is dealing with this not one of the real ways that we will be able to prevent our being the whiplash capital?

[Rory Stewart]

My hon. Friend makes a very good point, which has been made by the shadow Front-Bench team and others: dealing with claims management companies is going to be a central part of this. Consultation has taken place on this, and measures have been taken against claims management companies. A significant issue remains, which we are consulting on and trying to resolve—to be honest with the House, it is the fact that many of these calls come from foreign jurisdictions, so the challenge is trying to work out the best way to deal with that.

[Official Report, 23 October 2018, Vol. 648, c. 228.]

Letter of correction from the Minister of State, Ministry of Justice, (Rory Stewart).

An error has been identified in a response I gave during the Third Reading debate on the Civil Liability Bill [Lords].

The correct response should have been:

[John Howell]

Earlier this afternoon, the Minister will have heard my hon. Friend the Member for Croydon South (Chris Philp) give an example of how he was approached—hassled, in fact—by a claims management company. I, too, have been in that situation for a fictitious accident and I still get calls about that. Is dealing with this not one of the real ways that we will be able to prevent our being the whiplash capital?

[Rory Stewart]

My hon. Friend makes a very good point, which has been made by the shadow Front-Bench team and others: dealing with claims management companies is going to be a central part of this. Consultation has taken place on this, and measures have been taken against claims management companies. A significant issue remains, which we are trying to resolve—to be honest with the House, it is the fact that many of these calls come from foreign jurisdictions, so the challenge is trying to work out the best way to deal with that.

Courts and Tribunals (Judiciary and Functions of Staff) Bill [Lords]

John Howell Excerpts

2nd reading: House of Commons
Tuesday 27th November 2018 Commons Chamber

[The Lord Chancellor and Secretary of State for Justice (Mr David Gauke)]

I beg to move, That the Bill be now read a Second time.

It is a great pleasure to move the Second Reading motion. It is possible that in Westminster at the moment other matters are catching Members’ attention and that the focus of the House has not been sufficiently on the Bill, but I am delighted to have the opportunity to move the motion. The Bill has already been considered in the other place and takes an important step forward for our courts system.

Our judiciary, together with our courts and tribunal service, are rightly regarded as among the finest and most independent in the world. However, the way our courts and tribunals work cannot stand still. They must be able to meet the demands of delivering modern-day justice, meet the needs of the society they serve, and administer justice in the most effective and efficient way.

The justice system must work for all those who use it, as well as for the judges and legal professionals who work in it. That means realising the huge potential of new technology and the law tech revolution to improve people’s experience of and access to the justice system and to open up new routes to justice. It is certainly my determination that the UK should be seen as being at the forefront of adopting new technology, whether in our courts and tribunal system, which is the issue before us today, or more widely, with legal professionals making use of technology. That is one of the reasons that we have instituted a law tech committee, led by Christina Blacklaws of the Law Society, which is designed to take us forward in that area. It is an important part of what we need to do.

[John Howell (Henley) (Con)]

My right hon. Friend may be aware that I did an Industry and Parliament Trust fellowship in the law with judges, and my experience of the different courts I went to showed the enormous gap between the commercial courts, which were technologically very superior, and the tribunal system, where we might as well have been using a quill pen. Is this reform going to solve that problem?

[Mr Gauke]

Our court reform programme as a whole, which I will come on to, will ensure that we use technology wherever possible. It is right that we embrace that. The Bill is part of the process—it is not all of the process—that will ensure that we modernise. I have cited in the past ways in which artificial intelligence, for example, is being used within the legal profession. An example I have given is a case where AI was used to check a number of contracts to spot potential errors. The rate of success of the AI was somewhat better than that of the experienced lawyers, and if I remember rightly the task was done in 26 seconds rather than 92 minutes. I make that point to illustrate the opportunities in terms of technology and the law.

--- Later in debate ---

[Mr Gauke]

My hon. Friend raises a good point that comes back to how we ensure that judges’ time is used most effectively, freeing them up from the most routine tasks, such as changing the start time of the hearing, and enabling them to focus on more complex matters. They could then ensure that case preparation and management was resolved proportionately and at an appropriate level. That could also help to improve the overall efficiency and effectiveness of the court tribunal system. There is an opportunity to ensure greater consistency in the current arrangements, and it is right that we strengthen safeguards, as has already been touched upon.

It is important to guarantee the independence of all authorised staff when they are exercising judicial functions. Clause 3 will bring authorised staff under the leadership of senior lawyers. Although we are removing the post of justices’ clerk from the statute, the functions that such clerks undertake will continue to be carried out by heads of legal operations, who have a much greater leadership role across all jurisdictions. The change will ensure that we make all authorised staff ultimately accountable and subject to the direction of the Lord Chief Justice and the Senior President of Tribunals.

[John Howell]

My right hon. Friend is being generous with his time. The place where these changes can have the most effect is in the tribunal system. I have sat through tribunals that have lasted for days for no good reason, tying up three independent assessors. Surely, it is there that the changes he proposes can have the biggest effect.

[Mr Gauke]

My hon. Friend may well be right. The Bill of course relates to courts and tribunals, and it is important to bear in mind the impact on tribunals. Tribunals perhaps do not always attract the attention that they might, but they play a vital role within our justice system. If we can find ways to improve their efficiency, we should all welcome that. That is a key part of what this Bill is about.

--- Later in debate ---

[Robert Neill]

That is a very interesting and constructive point, because we do want to have an evidence base. Again, the only caution I have is this: is it appropriate to do that through a form of statute, or is it better done through placing that requirement in the criminal procedure rules? I am going to talk about the procedure rules in a moment. Either way, there should be a means of capturing that information, and I am very sympathetic to doing so. Perhaps the right hon. and learned Lady and I could talk with others about the best way forward on achieving that, because it should certainly be possible, with modern court technology.

[John Howell]

May I take my hon. Friend back to where he left off? Does he agree that the threat to the use of English law around the globe comes about from the efficiency or otherwise of the judges, and that the more that judges are unable to be efficient in giving a judgment, the more there is a threat to the use of English law? Does he agree that this Bill goes a long way towards trying to sort that out?

[Robert Neill]

Yes, I do. That is very important, and that is why it is not surprising that experienced former judges have expressed a view on this. We have referred to the former President of the Supreme Court, Lord Neuberger, and the immediate past Lord Chief Justice, Lord Thomas of Cwmgiedd. I note also the observations of Lord Thomas’s predecessor, the noble Lord Judge. They all supported the thrust of this Bill in enabling more flexible deployment of judges within tribunals and the assignment of procedural matters to non-judicial court staff. They also warned about not unduly fettering the ability of the court procedure rule committees, which have on them practitioner representatives who are able to set matters in the light of their practical experience. That is absolutely right, and it in no way contradicts the point made by my hon. Friend the Member for Cheltenham about the need to have the requisite number of top-class members of the judiciary. I agree with my hon. Friend the Member for Henley (John Howell) that this is a sensible and proportionate Bill.

I want to touch on a couple of other points that relate to the issues legitimately raised by both the Law Society and the Bar Council. It is possible to meet their concerns in a proportionate way. I think it is fair to say that the Bar Council and the Law Society’s main issue, in terms of the scope of the Bill, has been the relationship to authorised staff. They make a fair point about the underlying issue of the courts modernisation programme, which I will touch on later. There was an acceptance in the other place that some types of procedure and hearing do not require a legally qualified person to deal with them.

However, we have to ensure that when the procedure committee draws up the rules around this—I welcomed the Government’s amendment, which gives greater clarity about how that will operate and makes it easier to achieve—it is not, as my hon. Friend the Member for Cheltenham said, placed in the invidious situation of trading off access to rights against costs. I have sympathy, therefore, for what underpinned the concern raised by the hon. Member for Bolton South East (Yasmin Qureshi), though I do not advocate the same solution. That balance cannot be allowed to be swayed unduly in terms of the transactional or the financial.

The right of reconsideration is worthy of consideration, and I hope the Government will look seriously at it. It is a question of the appropriate level at which to pitch that. Some of the matters that it is proposed be delegated are almost entirely procedural in nature. We should distinguish between delegating to a court official a procedural matter, such as granting an extension in time, which many of us probably think is not the sort of thing where the fundamental rights of a party are so affected that it requires reconsideration, and something that goes to the issue of the case, such as a summary judgment. The way forward is to give the rules committees the ability to reflect those distinctions, rather than to try to spell things out too much in statute.

It has been suggested that there should be a form of benchmark against which the rules and procedures operations are carried out. That may be worthy of consideration by Ministers, and it may be discussed in Committee. I would not want to tie people’s hands, but we could have some form of benchmark against which that is done, without falling into the trap that Lord Thomas, Lord Judge and Lord Neuberger counselled against, of overly restricting, over-legislating and tying the hands of the judges.

I take issue with the Opposition on this point. It is not right or desirable for politicians—who, by their nature in our system, are partisan animals—to seek to constrain too much the operation of the rules or procedure of the desirably and deliberately independent courts. We have to be careful about how we achieve a balance. Our job is to set the policy and legislative framework within which the courts operate, but if we get too far into the detail, we run the risk of trespassing on judicial independence, and also on efficiency.

There are good aspects to the Bill that I hope the House will take forward. I intervened on the hon. Member for Bolton South East to point out that it was Mr Joshua Rozenberg, the well-known journalist, who coined the phrase

“it is a little too late and quite a lot too little.”

In fact, to be wholly accurate, it was Lord Marks, a Liberal Democrat shadow Minister, who quoted it in the other place. It is a very good phrase, but it is harsh on the Bill. The Bill does good work within the scope that it seeks, but that does not mean we should not support the Lord Chancellor and his Ministers when they seek, as I am sure they will, to find the appropriate legislative time to bring forward measures on a number of other aspects of the former Prisons and Courts Bill, which was lost in the Dissolution.

The right hon. and learned Member for Camberwell and Peckham (Ms Harman) and I have discussed some matters of criminal and family law in domestic violence cases that it is important for us to tie up. I stress strongly that much of these reform proposals stem from the excellent reports of Lord Justice Briggs and Lord Justice Leveson. Their reports were seminal in suggesting a modernising way forward, but taking that way forward requires the underpinning of statute. I urge the Lord Chancellor, who has been very patient in listening to us all, to make it a priority to persuade the business managers to find time for the legislative vehicle that will enable the modernisation of the court procedure rules on all civil matters to be brought forward. The Leveson proposals could have statutory underpinning in the same Bill. There is a real sense of uncertainty, referred to by the Law Society and the Bar Council, about the statutory underpinning for this ambitious courts programme. That was also picked up by the National Audit Office in its inquiry.

I welcome the Bill, and I support it as a valuable and worthwhile step forward, but—I think the Lord Chancellor would be the first to accept this—it is only one part of the programme that we need to deliver. We ought to get the Bill through the House as swiftly as possible and then move on to the next step. I note that Second Reading in the Lords lasted just under two hours, which shows that we can be both erudite and remarkably brief, which is perhaps an improvement on some debates we have here.

--- Later in debate ---

[John Howell (Henley) (Con)]

It is a great pleasure to follow the hon. Member for Bristol West (Thangam Debbonaire), not least because, like her, I am not a lawyer. I think the more non-lawyers who speak in this debate, the better it will be, because we bring common sense to such a debate, which I am afraid from time to time legally qualified Members do not.

I was, however, completely entranced by the description of justices’ clerks given by my hon. Friend the Member for Bromley and Chislehurst (Robert Neill). I thought that my opportunity had now come, because these were non-legally qualified people who had a role to play, and I thought, “This is an opportunity for me when I finish here”. Sadly, however, even that has been taken away from me.

If I may, I will just pick up on one of the things that the hon. Member for Bristol West mentioned when she talked about other things distracting us from our examination of this area. I think this is just the sort of Bill that we need to concentrate on. I do not think we should be distracted by other things, because the Bill is crucial to the management of justice and of our courts.

[Thangam Debbonaire]

I just wish to clarify my point about Members being distracted. I agree with the hon. Gentleman that this is exactly the sort of Bill we should be focusing on, but my concern is that Members are distracted by the wider constitutional impact of the word beginning with B, which I will not mention.

[John Howell]

I am sure some Members are distracted by that, but I am incredibly pleased that neither she nor I are, and that we are going to concentrate on the Bill in a very big way.

I mentioned in an intervention on the Lord Chancellor that I was actually the first Member of Parliament to go on the Industry and Parliament Trust fellowship in law. It was a particularly enlightening experience. I cannot remember the number of days that I was allocated, but I doubled the number of days I spent on it, because I spent most of the time sitting alongside judges, on the bench, listening to what they did. The number of different courts I saw was tremendous—I remember starting in the commercial courts, which I will come back to in a little while. They represented such a technological advance on all the other courts I sat in on, and that was a really good thing to see.

To go back to a point I made to my hon. Friend the Member for Bromley and Chislehurst, the first thing that came out of that experience of sitting alongside judges was an absolute admiration for their integrity and for what they did and how they did it. The second thing was an understanding of how overworked they are. As non-lawyers, we perhaps tend to think of judges just turning up, sitting and listening to the case, and giving judgment, but the amount of preparation that goes into hearings is phenomenal. That was a good thing to see and experience, and it applied whether it was the bankruptcy court or the Court of Appeal, in which I sat on two occasions.

The point I made to my right hon. Friend the Lord Chancellor earlier was about the speed of justice. I am not a great advocate of speed in itself, but I think there is a threat to English law: not Brexit, but the ability of our courts to dispense justice on a timely basis. When I sat in with judges, I saw that they were often so preoccupied with the minor administrative elements of their role they did not have time to dispense justice in what I would consider a timely manner. That was the case whether I was sitting in a higher court or, in particular, in a tribunal—I will come on to tribunals in a moment. Efficiency in making judgments and delivering English justice is one of the hallmarks of the justice system and one that we lose at our peril. If that point alone is made, it is made well.

One issue I would like to raise, which may at first not seem immediately applicable to the Bill, is the age of judges. I believe it does apply to the Bill, because consideration is being given to other people taking on judicial functions. The point about age has also been raised in relation to the magistracy, and it also applies to lords justices and others. When the Lord Chief Justice appeared before the Justice Committee last week, we asked him about the age of justices and he explained that there were mechanisms by which they could be extended beyond the age of 70 in certain capacities. However, that is an artificial cut-off—if we were stopped from being MPs at 70, I think there would be shouts of horror. Some of us—I am nowhere near that age now—would consider that we were being cut off in the prime of our life. The same is the case with judges. They have acquired a tremendous amount of experience, principally as barristers. They have had a lot of judicial experience, and they are just coming to the point where they can use that experience in the best possible way. I therefore think it is necessary to look at extending the age at which judges retire to beyond 70. To be able to do that, we must look at the courts in a holistic way.

[Robert Neill]

My hon. Friend makes an important point. The coalition Government, as I am sure he will know, increased the age at which members of the public could sit as jurors to 75. It seems quite bizarre that a lay person who is fit, healthy and willing to serve can sit as a juror up to the age of 75, but people of that age cannot sit as a judge of the High Court, the Court of Appeal or the Supreme Court—unlike in the United States, where they can go on for a considerable time.

[John Howell]

I am not sure I would like to follow the experience of the United States in this matter, but my hon. Friend makes an absolutely first-class point. There needs to be a consistent approach to the age at which we can use people or force them to retire.

There is a lot to be said for the system in the Bill that would enable people to undertake some activities undertaken by judges. As an aside, I said that I am a non-lawyer, but I am currently seeking to extend my ability to undertake arbitration—I hope that that does not cut across or invalidate what I am saying. Such an ability is an important element of the mix that needs to be taken into account when we are looking at the judicial system as a whole.

When I was involved in sitting with judges for the fellowship, I was very much aware of the difference between courts in digitalisation and technology. In the commercial court, the system was utterly brilliant. I sat with a judge who was listening to an English law case in Portuguese. The transcript of the English translation appeared almost instantaneously on his laptop on his desk in front of him. The use of technology to get information out was absolutely fantastic. As I said to the Lord Chancellor, however, employment tribunals might as well have still been using the quill pen, they were so antiquated—not the judgments being made, but how the courts were organised and delivered justice. If we want access to justice, it is absolutely essential that the process of digitalisation in courts is seen through to the end. It materially influences access to justice.

When I sat in the Court of Appeal, prisoners appealed their sentences via video link. It was clearly not a good idea to bring the prisoners into court, so video links were used all the time to great effect, enabling judgments to be made. There were some discrepancies. For example, it took some time to get the focus right for some prisoners. I understand that that was due to the camera equipment, rather than the features of the prisoners.

When I started my work as chairman of the all-party group on alternative dispute resolution, I had the opportunity to speak to Lord Briggs about his proposals for the justice system as a whole. The Bill moves us closer towards what Lord Briggs was after, but it does not take us all the way to it. For example, the digitisation of divorce is welcome, but his proposal for online courts is very valuable. I know that that is controversial among lawyers, but it is important to enabling both the delivery of justice and access to justice. I would like that process to be extended beyond the scope of the Bill, so that we can receive and transmit electronic evidence in the handling of individual court cases. Anything that can move the legal profession into the 21st century is to be welcomed.

If I may, I would like to give a plug to the Industry and Parliament Trust fellowship. Having been the first to go on it, I recommend that hon. Members absolutely do so. The experience of sitting alongside judges is absolutely first class. My first appearance in court—if I can put it that way—was in a commercial court. I went to the court with the judge. We were just about to go through the door and I said, “I shall just go and sit at the back of the court.” He said, “What do you mean? You’re sitting up next to me in the court.” It was a great shock to me—

[Robert Neill]

A great shock to the defendant.

[John Howell]

It was a great shock to the barristers, particularly when I sat in the planning court and the barrister was well known to me. We played a little trick on him by coming in through different doors so that he was unaware of who we were.

The point of all that is that it is a very valuable training scheme. The more that people can go on it, the more there will be an understanding of the issues raised in the Bill and of the need to bring the courts into the 21st century.

Leaving the EU: Legal Services

John Howell Excerpts

Wednesday 21st November 2018 Westminster Hall

[Mr Jonathan Djanogly (Huntingdon) (Con)]

I beg to move,

That this House has considered the provision of legal services after the UK leaves the EU.

I am pleased to have secured this timely Brexit debate on the provision of legal services. This is a key moment for our country’s wellbeing and direction, and the implication for the provision of legal services is significant. I introduce myself as a non-practising solicitor and as chair of the all-party parliamentary group on legal and constitutional affairs, which produced a report in October that noted serious issues that merit further debate. I take this opportunity to thank the APPG’s secretariat from the Law Society for its assistance with the report.

Before I launch into Brexit issues, let me explain why the legal services sector is so important to our economy. The legal services sector is a great UK success story. The UK has the second largest legal services market in the world and the largest legal services sector in the EU. In 2017, it contributed more than £26 billion to the economy—equivalent to 1.5% of GDP—and was responsible for net trade of some £4 billion. It employs and trains over 380,000 people.

The jurisdiction of England and Wales is recognised as a global centre for legal services, particularly for international, commercial and corporate transactions, and dispute resolution and arbitration. In 2015, more than 22,000 commercial and civil disputes were resolved through arbitration, mediation and adjudication in the UK. In the commercial court, which is housed in its new, modern building, nearly 1,100 claims were issued, of which two thirds involved at least one party whose address was outside England and Wales.

Our legal services sector is a great international success story, but we have no natural right to retain that business. Indeed, over the past 10 years several jurisdictions have sought to compete with England and Wales. We keep the work because of the excellence of our professional lawyers and judges and because of foreign parties’ trust in our rule of law and our reputation for judicial efficiency and fairness.

[John Howell (Henley) (Con)]

My hon. Friend makes a very valid point. Surely one of the biggest threats to the UK comes from Singapore, which is developing a good range of courts to tackle commercial issues. I have raised the subject on several occasions, but there does not appear to be a united Government front to see off the threat from Singapore.

[Mr Djanogly]

My hon. Friend makes a very important point. Other jurisdictions are also mounting challenges. We must avoid doing anything that might impair the reputation of the sector.

--- Later in debate ---

[Mr Djanogly]

As ever, my hon. Friend makes a pertinent point. Avoiding a no-deal scenario and securing the right future relationship with the European Union is of the utmost importance. The APPG supports the view of the legal services sector that a no-deal scenario would be devastating to the sector and should be avoided at all costs. Of course, there have been significant recent developments. Last week, on 14 November, the Cabinet collectively agreed to the draft withdrawal agreement and the political statement on the future relationship. Following a special European Council meeting on 25 November, the Government intend to lay a final version of the agreement before Parliament for debate.

It needs to be recognised that the draft withdrawal agreement contains a number of positive elements for the legal services sector, including provisions on mutual recognition of professional qualifications and on lawyers continuing to obtain qualifications throughout the transition period, and clarity on continued recognition and enforcement of judgments and orders throughout that period. Lawyers will continue to have the right to represent a party in proceedings before the CJEU in all stages of proceedings where a case can be brought by or against the UK. The automatic transfer of an EU intellectual property right into an equivalent UK right before the end of the transition period is very welcome.

The non-legally binding declaration, however, is a work in progress. To be frank, it is worryingly brief and it is vague on services, especially legal services. The relevant part of the political declaration explains that the goal is to secure

“Ambitious, comprehensive and balanced arrangements on trade in services and investment, delivering a level of liberalisation in trade in services well beyond the Parties’ WTO commitments”.

It says that the Government will put in place

“Appropriate arrangements on professional qualifications.”

I have to say that this is pretty sketchy stuff, and so we continue to have concerns about the lack of detail contained within the political declaration between the UK and the EU.

First, it is pretty unambitious for the UK-EU agreement to say only that it will go “well beyond” the parties’ World Trade Organisation commitments, and it is likely to lead to significantly less market access for services. Secondly, like with the Government’s White Paper, there are concerns about the continued focus on regulatory flexibility, as I mentioned before. The preservation of the present system, whereby lawyers from EU member states, EEA states and Switzerland can practise freely across the continent, should be prioritised instead. Thirdly, it is good to see a reference to professional qualifications, but that only goes some way towards giving lawyers the ability to practise in the EU, and generally it is not their preferred route.

Fourthly, it is disappointing not to see a reference either to civil or commercial co-operation, unlike in the Government’s White Paper. The UK and the EU currently enjoy the gold standard in civil and judicial co-operation, which should continue. Fifthly, without an agreement on judicial co-operation, judgments made in UK courts might be unenforceable in EU countries in the cross-border settlement of trade disputes, which might result, for instance, in debts owed by EU entities to UK businesses not being recovered. It follows that uncertainty about whether judgments from UK courts would be enforced could make the UK less appealing as a jurisdiction of choice for contracts and dispute resolution, which would lead to the growth of competing jurisdictions.

[John Howell]

My hon. Friend is being very generous with his time. I am not sure that I heard him mention the family courts in his list of things that we need to establish good relationships over. The family courts are very important, because sadly the amount of work that they undertake—on both sides of the channel—is growing. There is enormous mutual responsibility for them.

[Mr Djanogly]

I agree with my hon. Friend, who makes an important point. The Brussels II regulation is a single legal instrument that helps families resolve disputes about divorce and the custody of children where they involve parties in more than one EU state. Under the regulation, EU courts automatically recognise judgments on matrimonial and parental responsibility that are delivered in other states. That will no longer apply to the UK when we have left the EU. Similarly, the maintenance regulation, which helps to ensure the payment of maintenance in cross-border situations, will no longer apply.

In a no-deal scenario, the UK and EU27’s trading relationships in legal services would be governed by the general agreement on trade in services, or GATS, which falls far short of replicating the current EU framework. UK lawyers would be subject to myriad rules and regulations in each of the 31 European Free Trade Association states rather than to a single legal framework. UK judgments are automatically recognised and enforced across the EU27, but they will not be in a no-deal scenario, unless the UK unilaterally signs The Hague convention.

At the moment, clients can receive UK law advice from UK lawyers however and wherever they want in the EU; in a no-deal scenario, clients in some jurisdictions might be limited in how they can receive UK legal advice from UK lawyers. Currently UK lawyers have the automatic right to set up practices in an EU host state with minimal bureaucracy; in a no-deal scenario, UK lawyers’ ability to set up practices in an EU27 jurisdiction will depend on local laws and regulations. If establishment is possible, permitted activities still might be limited.

Currently UK lawyers have the right to advise clients who are based in the EU27 on EU law, because their legal professional qualifications are automatically recognised. In a no-deal scenario, clients based in EU27 jurisdictions might no longer be able to receive EU law advice from UK lawyers, as UK legal professional qualifications might not be recognised. Now, law firms can set up in one EU member state and export their services across the EU by establishing branches of the same structure in other member states. In a no-deal scenario, legal entities would lose the automatic right to use their preferred business structures in certain EU27 countries, and the UK corporate form of limited liability partnerships might no longer be accepted in some jurisdictions. As can be seen, we must avoid a no-deal scenario.

Growing concern that the UK could exit the EU without a deal has led the Law Society to publish a series of papers that give solicitors guidance on how to take steps to mitigate some of the risks. Law cuts across every area of life, and often UK and EU lawyers work across borders and enforce and litigate on family, data or business disputes. The first tranche of Law Society papers gives advice on some of the potential rule changes where a deal between a business here and in the EU goes wrong, what happens in family law if a couple splits up, and how we should approach data sharing should we quit the EU without an agreement. There is another paper on providing legal services in the EU, and I understand that further papers are in production. Perhaps the Minister could take this opportunity to explain how her Department is preparing itself and the legal services sector for a no-deal scenario.

It is fair to say that services, including legal services, have not been given the same attention in the Brexit process as manufactured goods have. The sector wants a bespoke agreement that comprehensively covers legal services and is based on mutual market access, mutual recognition of regulatory frameworks, regulatory co-operation and continued mutual access to talent. I have high regard for the Minister, her understanding of this sector and her ability. I hope that she takes the opportunity provided by this debate to set out how she will champion the English legal services sector in negotiations on the future relationship with the EU, with the intention that legal services are not left behind and will be given the tools to maintain their world-leading reputation for excellence after Brexit.

[John Howell (Henley) (Con)]

It is a great pleasure to serve under your chairmanship, Sir Christopher. I will not speak for very long, but I want to raise an important point about international arbitration while wearing my hat as the chair of the all-party parliamentary group on alternative dispute resolution, which looks at arbitration, mediation and other forms of dispute resolution.

I was pleased to see that the withdrawal agreement commits us to international arbitration to resolve any disputes between us and the European Union as we exit it. That is a very positive step forward and a good compromise to have received from the European Union. I pay tribute to the authors of the withdrawal agreement for getting the EU to agree to that. I put so much emphasis on international arbitration because it is arguably a cheaper and much quicker way of resolving disputes. As we have heard, we are a leading centre for arbitration, as the number of people who come to us from around the world indicates. They do that because of our distinguished judges and arbitrators, and because English law is admired around the world.

I raised that issue with the Lord Chief Justice this week, and I asked him how secure he is in believing that we will be able to continue with this regime after Brexit. He said, first, that it is difficult to see it continuing unless we do something about the fact that the number of judges is so diminished at the moment. That is a very important point. Arbitration is not solely based on judges, but we need judges with a great deal of experience.

The second thing he said—I made this point in an intervention—is that we need to be more aware of the alternative centres that are emerging around the world to deal with arbitration. I mentioned Singapore, which has put tremendous effort into developing a commercial solution. I hope that in the summer recess—assuming we still have one—I will be able to go out to Singapore to see for myself how its arbitration courts work and what sort of cases they deal with. We should be concentrating on those important things.

My hon. Friend the Member for Huntingdon (Mr Djanogly) said that legal services make an enormous contribution to the UK’s economic activity. I will not repeat what he said about them, other than to underline their phenomenal contribution.

I want much more emphasis to be put on tying up the elements that I have mentioned. We should not take for granted our legal position as the pre-eminent jurisdiction for arbitration. Our officials need some fight to ensure that we keep our jurisdiction and our reputation so that we can continue with that.

I stress the importance of ensuring that we have some sort of reciprocal arrangement for the family courts. My hon. Friend mentioned Brussels II and the maintenance regulations that apply to it. It is not the ideal form of governance of the situation with the European Union, but it is undoubtedly better than what preceded it, and we should be very careful about throwing it out.

I was disappointed not to see more in the withdrawal agreement about the protection of legal services. There is a gap there. It would have been nice to see more about how they will operate in the new environment and about how qualifications will continue to be recognised beyond the transition period. Those points have already been made, but I am happy to make them again because they are important and we need an answer.

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

It is a pleasure to serve under your chairmanship, Sir Christopher. I warmly congratulate my hon. Friend the Member for Huntingdon (Mr Djanogly) on securing the debate. I congratulate the all-party group on legal and constitutional affairs on its excellent report, which mirrors the Justice Committee’s conclusions in our report in the 2016-17 Session on the implications of Brexit for the justice system, especially in the areas that relate to co-operation in civil and commercial law. Our report, of course, went further and stressed the importance of continuing co-operation on criminal law and law enforcement, but our conclusions on the civil front are exactly in line with those of the all-party group. That is not surprising, because the evidence is entirely consistent.

My hon. Friend the Member for Henley (John Howell), who serves on the Committee with me, stressed the other issue that we want to raise: family law. This is not just about the clients of big commercial firms. The ability to enforce judgments makes a difference to parents who are seeking to get maintenance from a partner in another EU jurisdiction. At the moment they can enforce their maintenance agreement without any difficulty, but they would be at a grave disadvantage if they were not able to do so.

Many of us will remember the problems that arose in the past with the growth of what is called parallel litigation in family cases, in relation to divorce, financial arrangements and child custody arrangements. The last thing we want is a crash-out arrangement. In theory, that would mean that, as of 1 April next year, a parent in the UK and one in another EU jurisdiction would be capable of commencing parallel proceedings in family matters.

[John Howell]

My hon. Friend is stressing the role of the family courts, but he might also want to mention the ability to handle child abduction equally on both sides.

[Robert Neill]

That is entirely right. Some of the worst examples, before we developed the mutual enforceability of judgments, related to child abduction. In cases involving non-EU states, in which we are a third country, the parent here—frequently the mother—was at a significant legal disadvantage and did not have the protections that we have under the current arrangements, particularly the recast Brussels arrangements. I am glad that my hon. Friend has raised that issue.

I want to make two other points very briefly. First, I support my hon. Friend’s point about English law. Those of us who have practised know that, because of the reputation of our system, it is almost the norm to find English law clauses in international contracts. We want that to continue, but it is concerning that the Bar Council and the Law Society have been reporting evidence—so far anecdotal, but strong—that the uncertainty and the risk of a crash-out arrangement without contractual continuity is leading some firms to advise their clients to have clauses excluding English law from contracts. It would be extremely troubling if that were to persist. The longer the uncertainty, the greater the risk.

Simmons & Simmons, a leading law firm, conducted a survey of clients in Germany, France, Italy, Spain and the Netherlands to look at what the courts in those countries might adopt if we were a third country and could not rely on the current arrangements. It reported that 88% of clients—people abroad buying British services—thought that the Government needed to make an early public statement to remove uncertainty, and 50% said that, without that, they would be inclined to move away from choosing English law or jurisdiction clauses. The situation is urgent, so I will back the withdrawal agreement because it will get us into a transitional arrangement, which will give continuity for that period. More importantly, contracts will run beyond the date on which we leave, and significant commercial litigation will almost certainly take more than two years to work its way through. I hope that those issues will also be taken on board.

Will the Minister consider a couple of suggestions by the City of London Corporation and TheCityUK, to which I am grateful, about failsafe devices—I do not like to use the word “backstop”, because it has certain controversial associations—that we could have in parallel with seeking to get the withdrawal agreement through and get into the transition period? It has been suggested that it would be reasonable to look at a means of copying the text of the Rome I and Rome II regulations into our own private international law. Those regulations, of course, determine the applicable law for contractual obligations. As well as seeking the transition, many lawyers think it would be advisable to copy those texts—in parallel, I suggest, as a belt and braces operation—which are much superior to anything that went before, into our law. It is also important that we consider re-signing The Hague convention as an independent party. That would be a failsafe, not my preferred objective, but we need to have those eventualities in mind. That would assist with certainty.

In her Mansion House speech, the Prime Minister talked about the Lugano convention. I think that most people would concede that Lugano, in its original form, is nothing like as good or effective as Brussels I and II in their recast form. They are the gold standard that my hon. Friend the Member for Huntingdon referred to. Will the Minister take away the idea that, to get us anything like as good as we have under Brussels, any Lugano would have to be a Lugano plus plus plus?

Civil Liability Bill [Lords]

John Howell Excerpts

3rd reading: House of Commons & Report stage: House of Commons
Tuesday 23rd October 2018 Commons Chamber

[Ellie Reeves (Lewisham West and Penge) (Lab)]

It is a pleasure to speak in this debate. I welcome the opportunity to try to counter the worst aspects of this Bill by speaking to Opposition new clauses 1 and 2.

Access to justice may sound like a catchphrase or buzzword, but it underpins so much within our society, and it should not be bandied about and dismissed with the cavalier attitude currently shown by this Government. The Bill will cause a regression in the ability of genuinely injured people to seek compensation and justice for their injuries. The narrative of wanting to clamp down on fraudulent claims has long worn thin and the statistics the Government are using to justify these policies are entirely erroneous. Of course fraudulent claims are wrong and should be investigated and clamped down on, but we are not experiencing the epidemic levels we have been repeatedly warned of. In 2017, 0.22% of all motor claims were proven to be fraudulent; bearing in mind that that is for all motor claims, whiplash injuries will be an even smaller percentage.

Instead of looking at empirical evidence to create legislation, the Government are using disputed statistics to legitimise their agenda. This is wrong, and the impact on access to justice that the Bill will have will be substantial: 350,000 injured people without the free legal cover they are currently able to access. That is the true cost of implementing the Government’s package of measures.

As I outlined on Second Reading and in Committee, the changes to the small claims limit—although not on in the Bill, they are intrinsically related to its content—will be utterly damning on any reasonable definition of access to justice. The proposal to increase the small claims limit from £1,000 to £5,000 in road traffic injury cases and from £1,000 to £2,000 in all other personal injury claims would mean thousands of injured people could fall out of scope for free legal advice and representation and could be denied justice. Costs are not recoverable from the losing party in the small claims court, so injured people will either have to pay their legal costs themselves, which is likely to be cost-prohibitive, or, more likely, forgo legal assistance altogether, or simply not pursue a claim.

In giving evidence during the Justice Committee’s inquiry into the small claims limit, the Minister in the Lords, Lord Keen, suggested that injured people could instead seek advice from their citizens advice bureau. I am sure that many Members will understand the great number of cuts that have befallen citizen advice bureaux in recent years, and this suggestion is not only unfeasible but is completely out of touch. If there is to be any change in the small claims limit, it must be done proportionately by pegging it against consumer price inflation.

[John Howell (Henley) (Con)]

rose—

--- Later in debate ---

[Ellie Reeves]

I agree with my hon. Friend. This is yet another attack on ordinary people’s access to justice. Should the Bill pass its remaining stages today, those shunned by LASPO and tribunal fees will be joined by an additional 350,000 injured people who will be left without the free legal cover they can currently access.

[John Howell]

I thank the hon. Lady and fellow Select Committee member for giving way. She has talked about access to justice, but she has not mentioned at all the impact of the online courts. Does she have a feeling about what sort of effect that would have for increasing access to justice?

[Ellie Reeves]

I thank the hon. Gentleman for making that point.

The Bill will have a significant impact on access to justice, and we know that the portal system is nowhere near ready to accommodate the changes. It has not been properly tested. Under successive Tory Governments, access to justice has fast become a luxury available only to the few. A recent survey showed that 63% of Unison members would not proceed or be confident to proceed with a claim without legal representation. The small claims limit changes in the Bill will push nearly two thirds of genuinely injured people away from pursuing a claim if they do not meet the arbitrarily imposed criteria dictated by the Lord Chancellor. The idiom of adding insult to injury has never been more apt, and it is surely time to think again.

--- Later in debate ---

[John Howell]

Earlier this afternoon, the Minister will have heard my hon. Friend the Member for Croydon South (Chris Philp) give an example of how he was approached—hassled, in fact—by a claims management company. I, too, have been in that situation for a fictitious accident and I still get calls about that. Is dealing with this not one of the real ways that we will be able to prevent our being the whiplash capital?

[Rory Stewart]

My hon. Friend makes a very good point, which has been made by the shadow Front-Bench team and others: dealing with claims management companies is going to be a central part of this. Consultation has taken place on this, and measures have been taken against claims management companies. A significant issue remains, which we are consulting on and trying to resolve—to be honest with the House, it is the fact that many of these calls come from foreign jurisdictions, so the challenge is trying to work out the best way to deal with that.[Official Report, 3 December 2018, Vol. 650, c. 7MC.] On my way into the Second Reading debate, I received exactly that kind of call, encouraging me to make a whiplash claim for a car accident that I had suffered. For a moment, I wondered whether somebody had not put somebody else up to calling me in this fashion and whether this was not some kind of fuss. Sure enough, however, this is continuing to happen.

--- Later in debate ---

[Rory Stewart]

I am tempted to reflect on the question from my hon. Friend the Chair of the Justice Committee. There is a central issue and challenge at the heart of the Bill. Dealing with this perfect storm of problems—unprovable conditions, high payments, recoverable costs and the actions of the insurance industry—is not easily done through primary legislation, so I pay tribute to right hon. and hon. Members on both sides for their focus on not just the primary legislation but elements of secondary legislation and some of the requirements around it.

The only way this reform will work—the only way to prevent excessive whiplash claims—is by being very nimble in anticipating exactly how claims management companies will operate and predicting how this phenomenon could change in the future. As my hon. Friend has pointed out, that means putting in place an absolute insistence that someone must have a medical examination. At the moment, many of these claims are settled without anybody having any medical examination at all. There must be a medical examination, and it must be conducted by a qualified GP, who is currently allocated through the portal in a random fashion so that people are not in a position to be able to conspire in any way as a result of the kind of doctor whom they are given. An approved GP with the right kind of training, or a medical specialist of another sort, will then give a prognosis that will allow them to proceed in a much more straightforward way.

That brings us to the second aspect, which, again, is not primarily a question of primary legislation. I refer to the design of the online portal. It is important to ensure that, as cases move to the small claims court, people have a straightforward, intuitive way of logging claims. One of the things that we will be doing over the next year is testing and retesting the portal in as many ways as we can to ensure that it actually works.

[John Howell]

I thank my hon. Friend for giving way again. He is being most generous.

I have been a great champion of the online work that is being done in the judiciary. I have spoken to Lord Briggs, and in my time in the courts, sitting with judges, I have championed it there. Does my hon. Friend agree that a very important element of the online system is the dramatic improvement in access to justice for people who are making claims? I know that a great deal of testing is involved, but does he also agree that the delay in its introduction is regrettable because it deprives people of that access to justice?

Victims Strategy

John Howell Excerpts

Monday 10th September 2018 Commons Chamber

[Edward Argar]

The right hon. and learned Lady has long been a doughty campaigner on this and many other important issues, and I pay tribute to her work. She is right that this is not explicitly in the victims strategy. I and my fellow Ministers, including the Solicitor General, have heard her make her point eloquently and forcefully, and we will reflect carefully on what she said.

[John Howell (Henley) (Con)]

We have found that most victims want to play a strong role in parole. How will the Minister make victims’ statements more comprehensive for that purpose and give them a role in the parole system?

[Edward Argar]

I am grateful for my hon. Friend’s question. He has raised that issue previously, particularly in his work as a member of the Justice Committee. He will be encouraged to hear that there are a number of references to the operation of the Parole Board in the strategy, and we will see later this year the Government’s response to the consultation about the operation of the Parole Board. On his specific point, the strategy sets out how the Parole Board will move towards a presumption that victims can, if they wish, read out a victim personal statement in that process.

Civil Liability Bill [Lords]

John Howell Excerpts

2nd reading: House of Commons & Money resolution: House of Commons & Programme motion: House of Commons
Tuesday 4th September 2018 Commons Chamber

[Mr Gauke]

I think that on this occasion I might be able to satisfy my hon. Friend, which I cannot always say to him as the Chair of the Justice Committee. After listening carefully to the arguments made—including by my hon. Friend—I can now say that we intend to remove these vulnerable road users from the small claims limit changes. They are, of course, already excluded from the Bill.

I wish to say a few words about the timing of the whiplash reforms. Both the Justice Committee and the insurance sector have raised concerns about how quickly the reform programme can be implemented, including the necessity to build and test the online claims platform that I mentioned. We have listened to those concerned and resolved to push back implementation by a year to April 2020. This will enable careful user testing of the IT system to ensure that the system works well for all types of users on full implementation.

The personal injury discount rate is intended to reflect the return that it is reasonable to expect a claimant to receive on investing a lump sum award of damages for future financial loss. We must keep in mind that behind every claim there are real people with life-changing injuries, who need to make fundamental changes to the way in which they live their lives and who depend on their compensation awards. That is why we continue to support the aim that seriously injured people should receive full compensation to meet their expected needs, including care costs. The problem, however, is that on the evidence we have obtained, our discount rate of minus 0.75%—one of the lowest in the world—is leading to awards in personal injury claims averaging at 120% to 125% of the damages awarded, even after allowances are made for management costs and tax.

Such overcompensation is contributing to escalating costs in the NHS, which spent £2.2 billion on clinical negligence claims alone in 2017-18—a figure that is expected to rise to £3.2 billion in 2020-21. This is almost double the amount spent in 2016-17 and seven times the amount spent in 2006-07. This overcompensation is not sustainable. Money is being diverted that could instead have been spent on frontline public services such as our hospitals, schools and armed forces. As well as adding to the financial pressure on the NHS, the current framework for setting the discount rate is also creating pressure that is driving up insurance premiums, particularly for motorists.

The reforms that we propose to the discount rate will also save consumers money, as the insurance industry has committed to passing on these savings. The changes that we propose to make in the Bill to how the discount rate is set will make it fairer and more realistic for everyone. We intend to reflect the reality that claimants are more likely to invest their compensation in slightly higher risk diversified portfolios, than in very low risk investments under the current test.

[John Howell (Henley) (Con)]

The Secretary of State is moving very quickly to the nub of this Bill; this is about preventing overcompensation, not increasing undercompensation. Does he agree?

[Mr Gauke]

Very much so. It remains our objective to ensure that people are properly compensated—that they get the right level of compensation. The current process systematically overcompensates, and it is right that we address that because that compensation could be spent on frontline services. I am sure that that is what we would all want to do.