European Union (Withdrawal) Bill

Jonathan Djanogly Excerpts

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

[Mr Jonathan Djanogly (Huntingdon) (Con)]

Further to the point of my hon. Friend the Member for North East Somerset (Mr Rees-Mogg) on the difference between transition and implementation, we know for sure that it will be an implementation period because we will have to implement the withdrawal agreement. We do not yet know whether it will be a transitional period because we do not know, and will not know at the point of Brexit, whether we will have any final deal to implement.

[Paul Blomfield]

The hon. Gentleman makes a fair point, and I will now make some progress.

I was at the point of talking about why closing down the opportunity for effective transitional arrangements would be deeply self-harming. As the director general of the CBI, Carolyn Fairbairn, said just last week,

“The message from us, from business, is more certainty quickly particularly around transition, particularly in the next four weeks”.

The Government amendments undermine the prospect of a transitional deal and create more uncertainty. The CBI, the British Chambers of Commerce, the EEF, the Institute of Directors and the Federation of Small Businesses came together to call for a transitional deal, saying:

“We need agreement of transitional arrangements as soon as possible, as without urgent agreement many companies have serious decisions about investment and contingency plans to take at the start of 2018”.

They continued:

“Failure to agree a transition period of at least two years could have wide-reaching and damaging consequences for investment and trade”.

It will also mean lorries backing up at Dover, because the adjustments necessary to avoid that cannot be physically put in place within 15 months, as I am sure everyone would agree. For the same reason, it will mean a hard border in Northern Ireland, with all the problems that that would create.

The Government’s approach is simply not in the national interest, and it closes down the flexibility that we might need. If negotiations go to the wire, both we and the EU 27 might recognise the need for an extra week, an extra day, an extra hour, an extra minute or even an extra second, as the right hon. and learned Member for Rushcliffe (Mr Clarke) pointed out, in order to secure a final deal. But that agreement would be thwarted by the Government’s having made it unlawful for themselves to do what they would want to do at that point.

The Prime Minister has consistently talked about parties working together in the national interest, and we are up for that—we have tried to be constructive; we have scrutinised and identified gaps; we have offered solutions; and on this crucial issue we seem to be in the same place as at least some members of the Government on the need for an effective transitional period. So let me make an offer to the Government. If they withdraw amendments 381, 382 and 383, and work with us on an alternative that affirms a departure date in line with the article 50 process but without destroying the chances of transitional arrangements, we are happy to look at that and work with them on it. If they do not—

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[Tom Brake]

I thank the hon. Gentleman for that intervention. I think we may have the opportunity to put that to the test shortly.

In conclusion, the debate has unfortunately again revealed the obsession that Europe holds in the hearts of some Government Members. When it comes to Europe and our membership of the European Union, I am afraid that they have left their rationality at the door of the Chamber. If we do leave the European Union, they will be leading the country down a path that will, in my view and in the views of many Cabinet members, many Conservative Members and many Opposition Members, do long-lasting damage to our country.

[Mr Djanogly]

My concern is related to the timing issues of the phase 1 exit period and, by implication, of the transition period and, by extension, to how those periods link in to the proposed timing of the phase 2 deal on the future relationship with the EU following Brexit. That is the subject of a number of interconnected amendments.

The key point on timing is that, rightly or wrongly—probably wrongly—we have dropped our initial insistence that the terms of withdrawal, or what is known as phase 1, should be negotiated at the same time as the terms of our future relationship, which is known as phase 2. As things stand, the EU is saying that we should sort out phase 1—Northern Ireland, citizens’ rights and the amount of money—before we start scoping discussions on phase 2. The Government have said that the scoping of phase 2 should start in December, but the EU has threatened delay if we do not move forward significantly on phase 1 within the next couple of weeks.

Clearly, from the EU Commission’s perspective, and I believe from the perspective of British and continental business, the timelines are moving from tight to critical in terms of the need for a transitional agreement and a phase 2 outline. I separate the two because, of course, the transitional period is legally derived from and relates to the phase 1 exit date set out in article 50, providing time, for instance, to change over regulators and to allow companies’ systems to be changed over, too. Incidentally, it will also be used as a standstill period during which the Government can conduct their negotiations on phase 2.

Having heard the debate so far today, both in Committee and elsewhere, I am still unsure as to why we should fix an exit date that will thereby fix the date of the transition agreement. I can see only downside, with the Government losing control of one of the levers they could use to control the negotiations. Briefings I have just received also indicate that removing the flexibility of having different exit dates for different issues could undermine the ability of the banking and insurance sectors to amend their systems in time, risking financial instability.

The proposal to fix a date also possibly pushes us into a corner and unnecessarily increases the EU team’s leverage. Indeed, as has been said, when the Ministers came to the Brexit Committee, the flexibility to set multiple exit dates was described to us as a tool for setting different commencement dates for different provisions and for providing for possible transitional arrangements. What has changed in the Government’s approach over the past few weeks? That is something Ministers have to address.

It is now seemingly the Government’s intention to follow the Bill with further primary legislation to provide for an implementation period and the terms of the withdrawal agreement, along the lines of amendment 7 tabled by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), which he says he will now update. The amendment has received a lot of cross-party support, and we will debate it at a later date. The Government initiative is welcome, but it will not in itself protect us from the dead-end option of fixing the exit date, which seems to pander to those who would welcome a no-deal Brexit.

My right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) tabled new clause 54, which provides for securing a transition period of at least two years. Although the amendment will be substantially debated later, I think it is conservatively worded. When the Brexit Committee went to Brussels recently, Monsieur Barnier talked of the adequacy of two years for negotiations, as has our Secretary of State for Exiting the European Union. However, nearly everyone else, including the European Parliament representative and the representatives of MEDEF—the French CBI—thought that three years, and possibly up to five years, will be needed.

Two years from the exit date may be enough time to settle the provisions of phase 1, but most experts are saying that two years is widely over-optimistic for negotiating an FTA. We need to consider what will happen if the Government do not reach certain targets by certain dates. For the Brexiteers, it may simply be that we go into hard Brexit mode. I personally think that would be extremely damaging to British business, but it is of course the default position under article 50. For those of us who want to have a negotiated phase 2 settlement, more Government attention is needed in this area.

The hon. Member for Feltham and Heston (Seema Malhotra) tabled new clause 69, a thoughtful amendment that asks what should happen if the Government do not secure a withdrawal agreement by 31 October 2018 or if Parliament does not approve the withdrawal agreement by 28 February 2019. Rather than jump off the proverbial no deal, hard Brexit cliff, there is a suggestion of ending the two-year period or agreeing a new transitional period. For that approach to work, we would have to ensure that we do not have a fixed exit date. It would, in effect, involve taking up the offer previously made by the hon. Member for Sheffield Central (Paul Blomfield) and the Government starting to talk to the Opposition. Given where we are, that is going to have to happen one way or another, and we should face up to it now.

Prisons and Courts Bill

Jonathan Djanogly Excerpts

2nd reading: House of Commons
Monday 20th March 2017 Commons Chamber

[Richard Burgon]

That is a very important point. We support a strong ombudsman, and we want reassurances that the Secretary of State will have to not just respond to the ombudsman, but take action on the basis of the findings of the ombudsman.

Prisons officers to whom I speak want to help offenders turn their lives around. They want more responsibility and to be part of a valued profession. They do not want to be viewed just as turnkeys, but successive Conservative Secretaries of State have diminished their role.

As mentioned earlier, the Government have set out plans for league tables and greater autonomy for prison governors. One wonders why the Government are persisting with the league tables idea when it was first dismissed by the chief inspector of prisons, Peter Clarke, at the Justice Committee in January. The Prison Governors Association has said that league tables

“will not achieve anything other than to risk demoralising staff and of unfairly judging the senior management team”.

Perhaps that was what prompted the Under-Secretary of State for Justice, the hon. Member for East Surrey (Mr Gyimah), to tell the Justice Committee that it would be performance data. The PGA also fears increased governor autonomy coinciding with increased responsibility for the Justice Secretary may result—heaven forbid—in blame being pushed its way. It says:

“Governors are being asked to sign up to agreements, which will become effective in just five weeks, with insufficient detail on what they will be held to account for. The risk is that the prison reform bill will become the prison blame bill”.

Further inroads into overcrowding and chaos could be made by considering who is being remanded and why, whether some offenders with mental health problems need a different approach and by dealing with the backlog of imprisonment for public protection prisoners. None the less, we see insufficient action to address any of those things. We were told that this Bill would transform the lives of offenders, but just saying that that is the case will not make it so. Transforming lives means first transforming the system.

I shall return to the subject of courts and tribunals, which I touched on earlier. Since 2010 Government legal aid cuts have robbed thousands of the legal representation that should be their right. Many of them are those who are most in need of legal representation—for example, people who are in debt, claiming welfare benefits, facing marital breakdown or experiencing housing problems. In 2012-13, 724,243 civil law cases were funded by legal aid; after the provisions of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 were introduced, that figure plummeted to 258,460. I realise that some Government Members will toast those figures as evidence of a job well done, but in reality what are they but proof of access to justice denied?

The coalition Government introduced employment tribunal fees. That measure resulted in a 70% reduction in the number of cases brought. The long delayed review I mentioned earlier essentially concluded, “There’s nothing to see here.” It said:

“While there is clear evidence that ET fees have discouraged people from bringing claims, there is no conclusive evidence that they have been prevented from doing so.”

If only illegal treatment by employers flouting the law of the land had been reduced by 70%. Instead, it is the number of cases that has fallen by 70%.

[Mr Jonathan Djanogly (Huntingdon) (Con)]

If someone can get something for nothing, are they not likely to take it up? That was the core problem with employment tribunals when people had to pay nothing to get access. It is right that if one goes to court, one pays some sort of fee.

[Richard Burgon]

That is a very useful intervention because it makes clear the Conservative view of access to justice. Something for nothing? If somebody has not been paid the national minimum wage, why should they be charged to get the money back? If someone has not been paid their proper wage or has experienced disability, maternity or pregnancy-related discrimination, it is outrageous to say that they are seeking something for nothing.

That intervention takes me back to when I was an employment lawyer acting for the people the hon. Gentleman dismisses in such a cavalier fashion. I remember the first time I lodged a case after the coalition Government introduced employment tribunal fees. On the Employment Tribunal Service website, it said, “Customer, please enter your credit card details.” Is that not shameful? When we regard citizens who are attempting to assert their statutory rights—rights made in this place, such as the right to the minimum wage and the right not to be discriminated against at work—primarily as consumers, it shows that the priorities of our society and our justice system have been warped by the Government.

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[Richard Burgon]

The coalition Government’s objective in introducing employment tribunal fees was to strengthen the hand of employers, including unscrupulous ones, and to weaken the hand of individual employees. That is what the policy was about and that is why it has worked from the Government’s perspective. The ACAS conciliation now offered as compulsory conciliation is not the same as the role of ACAS in the past when people issued an employment tribunal case. No professional advice is given on the value of the case. Just because a claim has not been issued or a matter has been discontinued does not mean that it has been resolved satisfactorily with both parties on an equal footing. To make it clear, Labour would abolish employment tribunal fees because Labour believes in access to justice.

[Mr Djanogly]

indicated dissent.

[Richard Burgon]

The hon. Gentleman shakes his head, but his earlier comments about people looking for something for nothing show how out of touch he is.

[Mr Djanogly]

It is quite the opposite. I am suggesting that the hon. Gentleman’s policy would be giving something for nothing.

[Richard Burgon]

More than implicit in the hon. Gentleman’s ill-considered comments is that allowing people to seek justice in the employment courts without paying money is a something-for-nothing practice. That is a disgraceful comment, which we look forward to publicising as widely as we can. The Government need to think again when it comes to employment tribunal fees.

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[Mr Jonathan Djanogly (Huntingdon) (Con)]

I congratulate Justice Ministers on bringing forward this very competent Bill. I very much appreciated the helpful and informative briefings on, and technology demonstrations for, the proposed court reforms that were organised by my right hon. and learned Friend the Minister for Courts and Justice. In many aspects of prisons, court and litigation policy, the Bill moves the debate forward in a generally pragmatic and rational way. If I have any overall concerns, they relate not so much to the Bill’s general content, but to the need to give fuller context to some of its clauses. This I intend to do in relation to a few of its measures.

On whiplash, we need to keep in mind that the proposals in part 5 are a continuation of the policy held since 2010 to reduce a compensation culture that has had a detrimental impact on our society. In Justice questions on 7 March and again in this debate, the shadow Minister, the hon. Member for Leeds East (Richard Burgon), seemed to question the existence of a compensation culture. Frankly, I thought that we had positively proven that that was an issue at the time of our consideration of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, but it seems that the situation now needs to be re-explained. Before LASPO we noticed, as my hon. Friend the Member for North West Cambridgeshire (Mr Vara) pointed out, that although accidents had fallen by a quarter, claims had increased by a third. That unacceptable position led us to instigate a series of incremental measures with the aim of reversing that trend.

The key problem originated from the dynamic created by the no win, no fee provisions of Labour’s Access to Justice Act 1999, which had put in place an unreal marketplace. To cut a very long story short, due to the workings of Labour’s Act, the interest of the client in their advocate’s fees had become detached. That was because the client would never directly have to pay any of the fees, so it followed that they would not care what those fees were. The situation was stoked by claims farmers and aggressive cold callers. This was a further example of Labour supporting a something-for-nothing system, and that system put constant upward pressure on fees and thereby insurance premiums.

In LASPO, to counter that, we ended the recoverability of success fees and after-the-event insurance premiums from the losing defendant. We then moved on to ban referral fees, and to address spam texting and cold calling by claims handlers and their agents. We also toughened up the regulation of claims handlers. The overall impact of the changes was considered to have reduced insurance premiums by some 25%. However, it is vital to keep an overall picture of what is a complicated situation. For instance, the Association of British Insurers considers that some 1% of whiplash claims are fraudulent, meaning that criminal sanctions also play a part in dealing with this issue. The fraud figure used at the time of LASPO was over 5%, so I will be interested to hear from the Minister whether he believes that insurers and prosecutors have now got the message and upped their game by taking more fraudsters to court. However, I am not convinced that the problem of illegal cold calling has yet been resolved, and I would be interested to hear whether the Minister has any further proposals in this regard.

Another important aspect is the small claims limit for personal injury cases, which is frankly well out of date. To those who are complaining about the proposals, I would say that the fact that this measure is being taken up now, rather than when it was first considered in around 2012, shows how cautious the Government have been to take one step at a time. I fully support the Government’s proposal to increase the road traffic accident-related personal injury small claims limit to £5,000, which will encourage more thought before cases are taken. Will the Minister please confirm whether mediation will be a requirement for consideration, as it is for general small claims, or will the use of a tariff not require this?

I am surprised that the Government propose to increase the limit for all other personal injury claims from £1,000 to only £2,000, rather than £5,000. My understanding was that if only inflation were taken into account, the limit would increase to above £3,000. I appreciate that the change to the small claims limit is a matter for secondary legislation rather than the Bill, so I hope that the Government might reconsider this level. I recall putting up the general small claims limit from £5,000 to £10,000, and what was generally seen by lawyers at that time as something that would hurt their businesses has been very successful in practice.

The compensation culture tag is not one that I would attach to seriously injured accident survivors who need complicated legal help, but rather more to the mass of whiplash claims that involve an injury duration of less than two years and are currently waved through to settlement by insurers who do not want the cost or bother of dealing with each small claim. The average compensation for a six-month injury duration is £1,850. This is why I fully support the Bill’s proposal that the tariff should be based on injury duration, but if that proposal is not to be taken advantage of, a better system for organising medical reports is needed. At the moment, offers to settle can be made without medical reports, even though changes were made in 2014 to discourage that practice. From now on, there will be a ban on settling without medical evidence, which I certainly think is to be welcomed.

A related area that I understand is contributing to the increase in insurance premiums relates to the cost of so-called free hire cars for accident victims. Is the Department looking at that?

The overall insurance premium saving attributed by the Government to these proposals is £40 per year. However, I agree that that message has been somewhat diluted by insurers, who are saying that the proposed reduction of the discount rate applicable to personal injury lump sum compensation payments to minus 0.75% will result in a significant increase in premiums of up to £75. I appreciate that the law, not the Lord Chancellor, sets the discount rate, and I am pleased that the Government are consulting on an alternative framework, but one wonders why the consultation could not have been handled with the Bill. Having said that, it is certainly the case that, through this Bill, the Government are continuing the incremental fightback against the compensation culture, which I think is a very good thing.

[Mrs Moon]

I understand the hon. Gentleman’s points about the whiplash culture, but does he appreciate that the Bill does not cover the ability of rogue solicitors to pursue false claims against individuals who have not been involved in car accidents? Those solicitors claim that they have, and that people have been injured. An elderly couple in my constituency were harassed terribly, and although there was no evidence of injury, the solicitor pursued the claim. The court threw it out, but the Solicitors Regulation Authority would not look at the matter at all.

[Mr Djanogly]

I totally agree with the hon. Lady. Fraud is an important part of the overall situation, but the criminal side is not dealt with in the Bill. I asked the Minister earlier if he would address that issue. At the time of LASPO, it was considered that 5% to 7% of claims were fraudulent. The latest ABI information I have seen is 1% or perhaps less, which would suggest that there has been a dramatic improvement, but I will be interested to hear whether the Government accept that and what they are going to do about the 1%, if that figure is accurate.

The Bill also sets out a wide variety of proposals for case management and the operation of the courts, all of which will, taken together, make for a much more effective, modern and technology-friendly system. Of course, the fact that the Government propose to invest £1 billion in the courts will do much to ensure that they remain world class. There will be fewer courts, but a much better service—by 2022, I understand. I hope that some of the money will be used to simplify processes and facilitate non-lawyers’ ability to navigate the system. Will the Minister indicate where the Department has got to on using technology to assist litigants in person?

Technology was often disregarded in the past because people did not think that its use would deliver justice as effectively as turning up in person. I would suggest that that view is very out of date, particularly with respect to younger people. Indeed, we are moving to a situation in which most crime is likely to be carried out online, so I welcome proposals such as having automatic online convictions with statutory standard penalties for a few criminal offences. I hope that that will shortly be reviewed with the aim of extending the range of offences. Likewise, enabling claimants to recover money owed up to £25,000 entirely online will save time and will certainly help small businesses.

The extension of the use of virtual hearings is to be commended in terms of not only protecting the vulnerable from those accused of certain crimes, including rape, but making justice cheaper and more efficient. How much better will it be to have the police brought in online from their stations, rather than their hanging round the court waiting for cases with nothing else to do? Having said that, I appreciate that we will need good procedural rules so that trials are kept fair.

In some ways, the technology is still being developed. I spoke recently to a criminal district judge who said that he was all in favour of court cameras, except when they did not work, which was all too frequently for his liking. Apparently, private companies that deal with bridging link-ups act strictly to timetables that sometimes do not tie in with those of the courts. Will such practical issues now be ironed out? Of course, that will become even more relevant because the Bill proposes that criminal cases could be conducted virtually, whereby all court participants join the hearing through a live link. The proposal to balance tech developments with the ability for the public and media to view virtual courts online is a good safeguard and a modern re-assertion of the old principle that justice needs to be seen to be done.

I note the proposal to reorganise the magistracy and make it a unified judiciary. It is exactly right, and will provide an adaptability similar to that given when the county courts were unified. It will actually enhance the concept of the magistrate as a nationally qualified judge rather than as a person tied to a particular bench.

This is a worthy Bill. It will do much to move our justice system into modern ways of organisation and efficiency.

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[Nick Thomas-Symonds]

I will come to the hon. Member for Shipley later. The right hon. and learned Gentleman continued:

“Inevitably, therefore, he had to return to seek more savings from the legal aid system. He revived the disastrous proposals for criminal legal aid, which dragged him into prolonged and unsuccessful controversy during much of his term of office”.

I entirely agree that the criminal legal aid changes were disastrous. Those cuts have produced a false economy, because of the proliferation of litigants in person in our courts. That, in turn, puts the success of measures such as live and virtual courts at risk, because one of the risks in that situation is that the person appearing in court is not able to follow or understand the hearing. That might be a challenge in a virtual court with a lawyer present; it is an even greater challenge where there are litigants in person. The Government have to be clear and careful that virtual courts are managed properly and do not end up costing more money than they save.

Similarly, I place on record a note of caution about the idea of online guilty pleas. Although I can see an argument in favour for very simple offences, such as motoring offences that are readily understood, the defendant must know and understand their right to legal advice and understand too their right to challenge the charge. An online plea removes the opportunity that sometimes comes later in prosecutions before the courts when different charges are ultimately pursued by the Crown Prosecution Service. Nor must online guilty pleas be the thin end of the wedge to extend them to far more complex offences. Finally on online courts, we must never lose sight of the fact that we must have a criminal justice system that is open and visible to the public.

Nowhere is the problem of what is not in the Bill summed up more clearly than in the iniquitous employment tribunal fees, which with issue fee and hearing fee can reach £1,200. If someone has been subjected to discrimination or unfair dismissal, such a fee will be extremely hard to find. Early in the debate, Members discussed the effect that the fees have had, but I will quote the report of the Select Committee on Justice. Incidentally, I commend the work of its Chair, the hon. Member for Bromley and Chislehurst (Robert Neill), who makes such an important contribution to our debates on justice matters. After the introduction of the fees in July 3013, there was

“an undisputed and precipitate drop in the number of cases brought, approaching 70%”.

The Minister made a point about conciliation when intervening on my hon. Friend the Member for Leeds East (Richard Burgon). Well, let me quote the Justice Committee:

“We heard a considerable amount of evidence that, far from encouraging early conciliation and resolution of disputes, employment tribunal fees were having precisely the opposite effect, because there was no incentive for an employer to settle in cases where the claimant might have difficulty raising the fee.”

Therein lies the crux of the problem.

I heard many erudite contributions from the Government Benches, but the one that will really reverberate on employment tribunal fees is the one made by the hon. Member for Huntingdon (Mr Djanogly), who, when my hon. Friend the Member for Leeds East talked about the need to abolish these fees, said that that would encourage something for nothing. Let me say quite openly that someone who has suffered discrimination at work or been subject to an unfair dismissal does not seek something for nothing. They seek access to justice and to assert their legal rights.

[Mr Djanogly]

The hon. Gentleman must tell me for which other type of application people do not pay a fee. Why is it only employment tribunals for which he does not want fees to be paid?

[Nick Thomas-Symonds]

Because these are the very people who do not have the money to bring their cases. The hon. Gentleman is so far from reality. With the greatest of respect, although he did make some useful contributions in his speech, he is in a hole when it comes to this issue, so I suggest that he stops digging. His contribution really gets no better with the number of remarks he makes.

The final parts of the Bill are on whiplash claims. I have already said that I agree with the hon. Member for Bury North that the way to deal with fraud is not to increase the small claims track limit in this way. On whiplash, as on everything else, we will judge the Bill and look to amend it in Committee based on what it does for access to justice. That is the central principle on which it must be judged.

Oral Answers to Questions

Jonathan Djanogly Excerpts

Tuesday 7th March 2017 Commons Chamber

[Elizabeth Truss]

I have spoken to my right hon. Friend the Health Secretary to discuss the implications for the NHS. As I said, under legislation the Lord Chancellor must only consider the impact on the victim. I do not think the procedure works in the right way, which is why I will shortly bring forward a consultation on a better way to set the discount rate.

[Mr Jonathan Djanogly (Huntingdon) (Con)]

There seems to be some element of confusion in the minds of the public. The insurance industry says that car insurance premiums will go up because of the fall in the discount rate, while the Government, quite rightly, say that insurance premiums should come down because of the proposed changes in the Prisons and Courts Bill. Is this a question of netting off, with no change to premiums at all, or can the Lord Chancellor be slightly more scientific?

[Elizabeth Truss]

My hon. Friend makes the point that there are different issues around the discount rate and whiplash. The measures on whiplash in the Prisons and Courts Bill should reduce insurance premiums by, on average, £40. The issue about the discount rate is very different: it is an independent decision that the Lord Chancellor has to make. I am saying that we need to review the way that decision is made, and I will be bringing forward a consultation on that very shortly.

Oral Answers to Questions

Jonathan Djanogly Excerpts

Tuesday 1st November 2016 Commons Chamber

[Sir Oliver Heald]

On the point about one or two providers, there are some places where one firm is providing a range of offices and functions across a number of clients, and other areas where the circumstances only really require that there should be something like a telephone hotline, which there is. The provision that is being made is what is needed.

[Mr Jonathan Djanogly (Huntingdon) (Con)]

There seem to be conflicting reports on the Government’s position on raising the cost bar for personal injury claims from £1,000 to £5,000. I would be grateful to hear what the Government’s position is.

[Sir Oliver Heald]

I am grateful to my hon. Friend for raising that important point. The Government have been looking at this issue. I do not think we have made a formal announcement on it yet, and therefore I will write to him giving him the absolute latest position.

Oral Answers to Questions

Jonathan Djanogly Excerpts

Tuesday 6th September 2016 Commons Chamber

[Sir Oliver Heald]

Yes, 6 million pieces of paper have been avoided by using digital case files. That is a pile of paper as high as the Shard—the largest building in London.

[Mr Jonathan Djanogly (Huntingdon) (Con)]

rose—

[Mr Speaker]

Order. Huntingdon is a splendid part of the world that deserves to be represented effectively by the hon. Gentleman, whom I have known for a quarter of a century, but it is a long way from Bury, to which this question exclusively relates. [Interruption.] Order. The question is about Bury, I say to the young fellow. He can come in later—we look forward to hearing from him.

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[Sir Oliver Heald]

As the hon. Gentleman will have heard, we recognise that we need to produce our review—which we are going to publish—and to respond to the Justice Committee’s report. Those documents will be available in the Vote Office, and that will happen in due course. We are committed to doing that.

[Mr Jonathan Djanogly (Huntingdon) (Con)]

Effective court administration is a very different matter from retaining inefficient and costly court buildings. The question is whether the closures are going hand in hand with investment, efficiency and the best use of technologies in the surrounding courts—not least in Bury, Mr Speaker.

[Mr Speaker]

I was not psychic; I now realise what the hon. Gentleman was driving at earlier. I am glad that he was persistent. Persistence pays.

Courts and Tribunals Fees

Jonathan Djanogly Excerpts

Monday 4th July 2016 Commons Chamber

[Mr Jonathan Djanogly (Huntingdon) (Con)]

Much of the preliminary work on court and tribunal fee reviews was carried out in the early days of the coalition Government, when I had the pleasure of minding those issues at the Ministry of Justice. I acknowledge the point made by my hon. Friend the Member for Bromley and Chislehurst (Robert Neill): the issues are complex and dependent on the differing circumstances. I think, however, there is now a level of understanding that was not generally prevalent back then—first, that it costs money to have, as we do, a decent court service, decent quality courts and an excellent quality of judges; and, secondly, that this cost should not just be for the taxpayer to shoulder.

We invested £300 million in the state-of-the-art Rolls building to hear large international and money cases. This gave the UK the quality of courts required to retain our premier status as the place to seek justice, using English and Welsh jurisdiction clauses, and thereby added greatly to the offering and income of UK plc. I have to ask, however, whether very high-value cases should be subject to a £10,000 fee cap. The first case to be heard in the Rolls building involved two Russian oligarchs and would have cost them hundreds of thousands of pounds per week in lawyers’ costs but, relatively, peanuts to hire the court and judge. I appreciate concerns that fees should not be so high as to impact on international competiveness, but I would appreciate hearing from the Minister whether he feels that we have the balance right.

On employment tribunals, the claim figures may be smaller—most of the time—but the principle remains that the service has to be paid for. Given that an employment contract is a private contract that does not involve the state, except when the state is the employer, why should the taxpayer subsidise the private claim? I think we now have the right formula: so far as possible, and as the starting point, the fees paid by the applicant should cover the cost of the application, but following that, where it is in the interests of justice, people who need help should be individually assisted via a remission scheme.

In that context, I do not agree with the Justice Committee’s suggestion that the overall quantum of fees should be reduced, and I do not believe that its report justifies that in any event, although I accept that the Chairman has just acknowledged that more data are required to make the assessment.

The figures for employment tribunals are material. There were 67% fewer single cases from October 2013 to June 2015, although that still represents tens of thousands of claims per year. The fall in multiple cases by 72% was more expected, as lots of public sector equal pay claims were working their way through the system. There seems to be some debate, however, about the extent to which fees have put people off claiming, and this will always be a hard figure to tie down. The Committee speculated that it could be 13,000 a year, based on 26% of ACAS claimants saying they would not progress their claim because they found the fees off-putting. Of course, a significant proportion might have believed this, but possibly only or mainly because they had weak claims. We would need more research.

The debate around employment tribunal fees often focuses on the questions raised by vexatious or highly risky claims and the impact on business and the economy. I shall come back to these important issues, but they did not form the starting point of our initial review, which was, first, to get those who could pay to do so; secondly, to encourage parties to seek alternative methods of dispute resolution, where possible; and, thirdly, to maintain access to justice. I still maintain that those were sound principles on which to proceed, and I think that this has been justified by the very many judicial reviews, brought mainly by the trade unions, that have to date consistently failed.

I strongly believe that when a claimant could issue a claims form at zero cost to themselves, he or she had every incentive to do so—but, most importantly, every incentive to do whatever the weakness of the claim itself. The Justice Committee report describes a witness who suggested that vexatious claims may be less than 5% of claims, but that still represents a significant number for the unfortunate companies that are subjected to them. Witnesses also stated that fees had deterred claimants who would otherwise have won as the proportion of successful claimants has not increased, despite a fall in the number of cases.

[Andy Slaughter]

The hon. Gentleman says that 5% is significant, but we are talking about falls of 70%. If he is genuinely concerned about discouraging unmeritorious or frivolous claims, a small charge—not one of £1,200—might be appropriate. Does he not think that that amount is disproportionate, even if he agrees with the principle?

[Mr Djanogly]

I am coming on to alternative ways of funding. The starting point is to get cost recovery and then to look at individual circumstances, where necessary. I would have liked hon. Members to spend a little more time talking about the remission system rather than fees—perhaps one of my hon. Friends is about to do so. More winnable cases leads to more of them being settled before going to tribunal, but even if this is an access-to-justice issue it should be dealt through the remissions system rather than the fee itself.

I certainly recall personally the significant numbers of businesses complaining that the threat of employment claims alone was enough to put them off employing more people. Interestingly, this was very much more prevalent among small businesses than large ones. Indeed, this is reflected in the Justice Committee’s report, as the Chairman said, which clearly shows the CBI to be more relaxed on the issue than the FSB. This is undoubtedly because it is the larger companies that have the large HR departments that can manage claims as part of their overall business. For small businesses, processing a claim, let alone taking time off to go to tribunal, can take up an impossible amount of the principal’s time.

[Angela Crawley (Lanark and Hamilton East) (SNP)]

Does the hon. Gentleman accept that if the employer is given an unfair financial position or advantage over the claimant, ultimately, regardless of whether it is a big or a small firm, the greatest cost will be borne by claimants themselves?

[Mr Djanogly]

The hon. Lady talks about unfair advantage, but I am not sure how she defines it, particularly if it is a single employer. Most of the FSB’s membership are two-person companies. If the hon. Lady is saying that it is unfair if it is one employer against one employee, I would say it was not. The answer to her question is that it would depend on the circumstances.

There grew a culture of settling claims, even weak claims, so that they would simply go away. The fact remains that there is more to business confidence than statistics. If the indirect impact of fees has been to change this perception among business owners, which I feel it has, fees have made a significant contribution to an economy that is delivering the creation of the highest level of employment the UK has ever enjoyed. We should be cautious about meddling with that.

The big change from when I was a Minister in the Ministry of Justice is the use of ACAS conciliation. I should be interested to hear more from the Minister, but the figure of 83,000 claims being dealt with by ACAS at an early stage sounds very promising indeed. It was the policy of the last Labour Government and then of the coalition Government and this Government that alternative dispute resolution should be promoted as a cheaper, quicker, more consensual and less stressful form of sorting out problems, including employment disputes. I shall be interested to hear whether the Minister has plans to extend the use of ADR further still.

I note that, on access to justice, the Justice Committee’s report is rather limited to looking at the status quo—fees versus remissions, which seems to have a feeling of trade union influence.

[Robert Neill]

Will my hon. Friend comment on our specific proposal that there should be an uprating of the remission threshold to take account of inflation? Otherwise, there will be a risk of fiscal drag. That is one of a number of specific points we make about remission.

[Mr Djanogly]

It is useful to look at that, perhaps along with a wider review of the way in which remissions are working. A new system has been put in place, and I accept that such things need review.

The report totally overlooks the changing nature of the funding of legal claims now and possibly in the future—for instance, the use of loans to fund claims, or the use of no-win, no-fee agreements and insurance to fund claims. It assumes that the burden of risk is simply to be shared between claimant and defendant, which is unreflective of reality. What about the risk of claims being shared between insurers, lenders, lawyers—and, yes, even trade unions? For instance, should we not investigate what level of risk they should all take on board, before the taxpayer has to step in? Neither Opposition party statements so far, nor the Justice Committee report seems to be looking at the broader issues in an area where we need innovative ideas and an assessment of the wider marketplace. I would therefore be grateful to hear the Government’s views.

--- Later in debate ---

[Richard Burgon (Leeds East) (Lab)]

It is a pleasure to respond for the Opposition. I am following in the footsteps of a very learned gentleman: Baron Falconer of Thoroton. In terms of my legal career, I am not quite so learned. Before I was elected to represent my constituents, I was a lawyer for 10 years in my home city of Leeds. In eight years as an employment lawyer, I saw—like my hon. Friend the Member for Ellesmere Port and Neston (Justin Madders)—many changes to employment law. As an employment lawyer, I was angry at what the introduction of employment tribunal fees in 2011 did to access to justice. Today, I am here at the Dispatch Box to speak up for all those whose access to justice has been deliberately obstructed by this Government and the coalition Government who preceded them.

I want to share with hon. Members my memory of the first time I lodged an employment tribunal claim after the introduction of employment tribunal fees in 2011. I was shocked and saddened to see the following words appear on the computer screen: “Customer, please enter your credit card details”. That made me sick to my stomach. Are we saying that people attempting to assert their statutory rights, such as the statutory right to be paid the national minimum wage and the statutory right not to be discriminated against at work on grounds of gender, sexuality, religious belief or disability, are reduced to being consumers or customers?

[Mr Djanogly]

Will the hon. Gentleman give way?

[Richard Burgon]

I will not be giving way because there is limited time and I want to give the Minister as much time as possible to answer.

Are we saying that these people are reduced to being customers? In fact, they should be viewed as citizens trying to assert their statutory rights and to seek justice. [Interruption.] The hon. Member for Huntingdon (Mr Djanogly) is annoyed, but not as annoyed as many across the country who have seen their access to justice so unnecessarily restricted.

The Select Committee’s report, which I commend, recommends that

“the overall quantum of fees charged for bringing cases to employment tribunals should be substantially reduced”

and that

“the Ministry…should introduce a system for regular rerating of remission thresholds to take account of inflation”.

I think, as do plenty of people outside this place, that we need to go further than that, but the report is nevertheless to be commended.

We have heard excellent contributions to this debate from hon. Members on both sides of the House. I particularly welcome the opening speech by the hon. Member for Bromley and Chislehurst (Robert Neill), who is Chair of the Justice Committee, which, as he explained, unanimously supported the report’s recommendations. In response to a point made by my hon. Friend the Member for Hammersmith (Andy Slaughter), we do recognise the concerns of the Campaign for Freedom of Information.

How can it be disputed, after what we have heard today, that access to justice has been harmed, not helped, by this Government and their coalition predecessor? Many of us know of this from our own experience as MPs, with our constituency advice sessions overflowing with people who do not know where to turn when they cannot access or afford legal advice or legal representation. Legal aid has been attacked, employment tribunal fees have been introduced, and fees are being increased in divorce proceedings and in immigration and asylum cases. As my hon. Friend the Member for St Helens South and Whiston (Marie Rimmer) explained, these fees risk dissuading people from litigating at all, and, as my hon. Friend the Member for Brent Central (Dawn Butler) indicated, they have a discriminatory impact.

The Select Committee is right to be concerned about the effect of court and tribunal fees on women in particular. The increase in the divorce petition fee from £410 to £500 disproportionally hits women, who are the vast majority of divorce petitioners. Why should the Government be increasing what could be termed a “divorce tax” on people, including women, who have suffered domestic violence or emotional abuse? Why are the Government charging more for a divorce petition than it costs to process it? Should the state really be making money from people’s misery? What have people bringing cases in the immigration and asylum chambers done to deserve a proposed 600% increase in fees? This is an attack on some of our society’s most vulnerable people—those seeking asylum. As we heard here last week, this takes place against a backdrop of growing attacks on people who are perceived to be migrants.

Let me turn to the Select Committee’s concerns about employment tribunal fees. The report quotes from the Odysseus Trust, which describes tribunal fees as

“a tax on justice imposed to enable HM Treasury to profit from people seeking to enforce their legal rights”.

The same paragraph quotes the organisation, Working Families, which says that

“these fees imperil the rule of law.”

That is also the view of legal experts. The Select Committee heard from Jonathan Smithers, the president of the Law Society, who said that there was the possibility of

“a two-tier justice system for the rich and the poor”

and that any increase in fees will militate for that rather than against it. Chantal-Aimée Doerries, chair of the Bar Council, said:

“Our members who practise in the employment tribunals have very much formed the conclusion that the challenge at the moment is the level of fees in terms of access.”

The Select Committee concluded, and I hope that the whole House weighs these words very carefully:

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

I could not agree more.

Employment tribunal fees have cut access to justice. As we have heard, there has been a 70% or so reduction in employment tribunal cases being brought. Cases on unauthorised deductions from wages are down by 56%. Cases on unfair dismissal are down by 72%. Cases on equal pay are down by 58%. Cases on sex discrimination are down by 68%, and cases on race discrimination are down by 60%. As my right hon. Friend the Member for Delyn (Mr Hanson) observed so effectively, is anybody seriously arguing that this drop in the number of claims being brought means that there has been a sudden damascene conversion of all the employers in the country and that bad treatment has been abolished and consigned to the history books? Of course not; it is just that claims are not being brought. We must remember the deterrent factor. Employment tribunal claims do not just help those who bring them; they also help those who would never dream of doing so. The possibility of the claim being brought acts as a deterrent against employers engaging in bad and discriminatory behaviour.

The true nature of the remission system must be discussed. I remember, when I was an employment lawyer, helping people to fill in the remission fees forms and watching them do so, with the amount of humiliating detail they are expected to go into in providing so many bank statements and all their other details. I remember getting documents back from the employment tribunals service where people had highlighted in yellow on someone’s bank statement the fact that they had had £12 transferred into their bank account by a relative and asked them to explain what this money was for, where it had come from, and why. Unison is correct to say that the remission system is not working. Unison argues that the equality impact assessment of July 2012, before the introduction of fees, said that it was expected that 23.9% of claimants would benefit from full remission and 53% of claimants would benefit from the variable discounts on fee rates up to £950, but the actual figures suggest that only 3.87% of claimants benefit from any remission. That is shocking.

With these statistics in mind, I welcome the Select Committee’s criticism of the Ministry for failing to publish the review on the impact of employment tribunal fees. The Select Committee said:

“On the basis of…evidence to us on 9 February, we assumed that the review would be published shortly”.

It also said:

“We have not appreciated being strung along in this fashion”,

and that it is “unacceptable” that it remains unpublished six months later. Who would not agree with that when ordinary people continue to miss out on justice? It is therefore welcome that as well as the pressure brought to bear by the Select Committee’s report we continue to see a legal challenge to employment tribunal fees by the trade union Unison, which has now taken its case to the Supreme Court, as my hon. Friend the Member for Kingston upon Hull East (Karl Turner) mentioned.

I would like to say more, but I wish to give the Minister an opportunity to address some of the concerns that I and others have outlined today. I reiterate my support for the Select Committee’s request that the Government publish their review on the impact of tribunal fees and reconsider their approach of treating court users as customers.

Sir Hartley Shawcross, who was Attorney General from 1945 to 1951, when we had a fantastic Government who changed things for the better, said about the Legal Aid and Advice Bill in 1948:

“It is a Bill which will open the doors of the courts freely to all persons who may wish to avail themselves of British justice without regard to the question of their wealth or ability to pay…indeed, going back further to the time when Magna Charta decreed that: ‘To no one will we sell, deny, or delay right or justice.’—it is an interesting historical reflection that our legal system, admirable though it is, has always been in many respects open to, and it has received, grave criticisms on account of the fact that its benefits were only fully available to those who had purses sufficiently long to pay for them.”—[Official Report, 15 December 1948; Vol. 459, c. 1221.]

Nobody could put it better or advocate those principles more effectively, but regrettably they are up for debate again.

This is an estimates day debate. I can make it clear now, with no ifs or buts, that a Labour Government, with my right hon. Friend the Member for Islington North (Jeremy Corbyn) as Prime Minister, will abolish employment tribunal fees and pursue the principle of access to justice for all. The usual convention is not to vote on estimates day. However, such is the strength of feeling in the parliamentary Labour party that we will vote against this motion on a point of principle.

Oral Answers to Questions

Jonathan Djanogly Excerpts

Tuesday 14th June 2016 Commons Chamber

[Mr Jonathan Djanogly (Huntingdon) (Con)]

Does the Minister agree that employment tribunal fees have played an important part in reducing the threat of litigation that hangs over businesses, particularly small businesses? Does he agree that they have also played an important part in the resurgence of our economy and job creation?

[Mr Raab]

My hon. Friend has a lot of experience of this issue, and he is absolutely right to look at its dual impact, particularly on small businesses. However, it is also right to say that this is not a binary, zero-sum game, and we attach huge importance to the fact that early conciliation has been used by more than 80,000 litigants in the first year, with over 80% of those participating reporting that they were satisfied with the outcome.

Oral Answers to Questions

Jonathan Djanogly Excerpts

Tuesday 8th March 2016 Commons Chamber

[Mr Vara]

May I make it absolutely clear to the hon. Gentleman that the Government’s position is that we would be better off in the European Union and that we would be safer and more secure in it? It is also the case that the deal struck by the Prime Minister in Brussels very much achieves those objectives.

[Mr Jonathan Djanogly (Huntingdon) (Con)]

England and Wales have by far the largest law firms in Europe and provide by far the largest legal services market in Europe, which is 1.5% of UK gross domestic product. Does the Minister not agree with most commercial law firms and the Law Society that up to £1.7 billion of annual legal services output could be lost following a Brexit?

[Mr Vara]

We have one of the best legal sectors in the world. We are thriving both within and outside the European Union. Whatever the decision on 23 June, I am confident that our legal sector will continue to thrive.

Oral Answers to Questions

Jonathan Djanogly Excerpts

Tuesday 3rd November 2015 Commons Chamber

[Mr Vara]

We have said before that the LASPO Act will be reviewed within three to five years of its implementation. Let us be absolutely clear: we still have, notwithstanding the reductions, one of the largest budgets for legal aid expenditure in the world.

[Mr Jonathan Djanogly (Huntingdon) (Con)]

There are longstanding and very important issues relating to litigants in person that go back much further than the LASPO Act. What actions are the Government taking to simplify and demystify the court process, and to take away the complicated legalities that make it so difficult for litigants in person?

[Mr Vara]

I pay tribute to my hon. Friend, who was a very distinguished Minister in the Ministry of Justice not so long ago. He is absolutely right. The concept of litigants in person is not new: it has applied for many years, indeed decades. To demystify the court process, we have put better processes in place—online guidance, guidance from court officers and judicial training—to ensure as much support from the judiciary and other legal advisers as possible.

Oral Answers to Questions

Jonathan Djanogly Excerpts

Tuesday 8th September 2015 Commons Chamber

[Caroline Dinenage]

Of course, we cannot pre-empt the review’s findings; we will look at the figures in due course. I gently say to the hon. Lady that although we need a scheme that does not deter people from making legitimate claims, we must take what steps we can to divert people from potentially acrimonious hearings, which is why I am very pleased that ACAS’s new early conciliation scheme has already been used by over 80,000 people in its first year.

[Mr Jonathan Djanogly (Huntingdon) (Con)]

Does my hon. Friend agree that the more than 75% reduction in employment claims since fees were introduced shows how this Government are standing up for small business that have become exasperated by being repeatedly dragged through the tribunals, sometimes for no cause other than that the process was free for the claimant?

[Caroline Dinenage]

My hon. Friend makes an excellent point, and I very much agree. Fewer people are making tribunal claims. It is only fair that those who can afford to make some contribution to the cost of the service they receive should do so. It cannot be right that hard-working taxpayers should pick up the entire bill of around £71 million for employment disputes in tribunals.