Criminal Legal Aid

Debate between Jonathan Djanogly and Richard Burgon

Tuesday 8th May 2018 Commons Chamber

[Richard Burgon]

I do agree. My hon. Friend makes a powerful point from his constituent’s experience. That is why I have been forced to bring this motion before the House to revoke the statutory instrument.

[Mr Jonathan Djanogly (Huntingdon) (Con)]

Will the hon. Gentleman give way?

[Richard Burgon]

I will make some progress if that is okay.

The crisis in legal aid goes much wider than the civil sector, with criminal cases affected too. As I said, that has the gravest of consequences. We now have more people representing themselves, even in the most serious of criminal cases—those tried at the Crown court. I want to draw the House’s attention to Ministry of Justice research published last week. The summary paper —only a summary—was published only after dogged pressure from journalists like Emily Dugan. It highlights judges’ concerns about people representing themselves, referring to

“unrepresented defendants not understanding how to present evidence about their case at hearings, how to prepare defence statements, or how to ask questions in court.”

The obvious result of this is that some judges and prosecutors felt that those who appeared in court without a lawyer were more likely to be found guilty. The legal system should not be skewed towards wealthier people. Everybody who wants it should have access to proper legal representation if charged with a criminal offence. Justice should be blind. It should also not be based on the depth of people’s pockets. We now have criminal barristers forced to take co-ordinated action in refusing to take up legal aid work because of changes to the Government’s funding scheme.

Labour Members are proud to have submitted this motion to annul the legislation changing the scheme through which criminal defence advocates are paid for carrying out publicly funded work in the Crown court—the so-called advocates graduated fee scheme. The motion has now won the backing of over 130 Members of Parliament. We welcome the fact that, albeit belatedly, time was given for a parliamentary vote to annul this legislation.



I hope that Conservative Members who understand and respect our legal system and the importance to justice of proper access to criminal defence will not vote along party lines tonight. I hope they will help to forge a consensus that helps the Government to rethink this flawed scheme.

Prisons and Courts Bill

Debate between Jonathan Djanogly and Richard Burgon

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.

--- Later in debate ---

[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.

Courts and Tribunals Fees

Debate between Jonathan Djanogly and Richard Burgon

Monday 4th July 2016 Commons Chamber

[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.