Privilege (Withdrawal Agreement: Legal Advice)

Debate between Oliver Heald and Lord Clarke of Nottingham

Tuesday 4th December 2018 Commons Chamber

[Mr Clarke]

Well, perhaps the usual channels were more reliable in the past. We would get together and agree that the House has passed a resolution, but there are these problems, and we satisfy the Opposition that their political desires can be satisfied and they can get all the documents with the embarrassing political opinions of the Attorney General—though I do not think they will find much, because the Attorney General is pretty candid. He is a very sound Brexiteer. He and I do not agree on Europe in the slightest.

They can excise things such as security, which we have talked about. I do not know what is being excluded or held back, but it is likely to be comments on the negotiating position of the Commission, the strengths and weaknesses of the Government’s case and where there are risks. A great deal of a lawyer’s advice is, “This is my opinion, but the risks involved are this”. Some of these comments about other Governments, the Commission and so on it may well not be in the public interest to disclose. There are reasonable people on both sides of the House and on the Procedure Committee, and I would have thought that we should certainly consider where we are going.

[Sir Oliver Heald (North East Hertfordshire) (Con)]

Will my right hon. and learned Friend give way?

European Union (Withdrawal) Bill

Debate between Oliver Heald and Lord Clarke of Nottingham

Committee: 7th sitting: House of Commons
Wednesday 13th December 2017 Commons Chamber

[Mr Clarke]

I agree entirely, and my next point is linked to that. The nature of the parliamentary approval cannot just be a motion; it must have statutory basis, which is the route that the Prime Minister has followed. There are various reasons for that, but the obvious one is the extremely uncertain status of resolutions of this House under current parliamentary practice. The Brexit Secretary is only the latest example of someone saying that anything that is not statutory is not legally enforceable, but just a “statement of intent”. The House of Commons keeps passing all kinds of motions with which I ferociously disagree, but they get carried by this House and make all kinds of criticisms of what the Government are doing. We have moved into a new era in which the Government are allowed to keep saying, “Parliament may pass motions, but they are worthless expressions of opinion. They are not part of our being accountable to the elected body of the House.”

[Sir Oliver Heald]

Of course the original plan was not to have a Bill, but to rely on statutory instruments under clause 9 to effect changes of constitutional significance. It was then made clear recently—I think on 17 November—that we will in fact have a Bill. Does my right hon. and learned Friend agree that to try to make such changes by secondary legislation just is not on? It is very unlikely that the courts would say that such constitutionally significant changes could be made under secondary legislation.

[Mr Clarke]

Again, I agree entirely, and that takes me back to something that has occurred all the way through this process. I am obviously standing here in disagreement with the Government, of whom I am critical in many respects, due to both the policy and how it has been conducted, but I have had some sympathy with them since the election, because they are trying to carry through this enormous, controversial and historic measure when they do not have a parliamentary majority, except when they can persuade the Democratic Unionist party to turn up and support them.

The process started with the extraordinary suggestion that the royal prerogative would be invoked, that treaty making was not going to involve Parliament at all, and that leaving did not require parliamentary consent. Rather astonishingly, that matter had to be taken to court, and it came to a fairly predictable conclusion. The next idea—I will not repeat what my right hon. and learned Friend the Member for North East Hertfordshire (Sir Oliver Heald) said—was that everything would be done by statutory instruments under broad powers. However, we are slowly getting to what I would have thought is the fundamental minimum that a real parliamentary democracy should be demanding: the country will not be able to enter into a binding treaty commitment until the details have received full parliamentary approval. How we get there is no doubt a matter of some difficulty, but it must be addressed.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Oliver Heald and Lord Clarke of Nottingham

Wednesday 29th June 2011 Commons Chamber

[Oliver Heald (North East Hertfordshire) (Con)]

Will my right hon. and learned Friend give way?

[Mr Clarke]

Not at the moment; I shall carry on a little further.

In addition to the changes to the scope of legal aid, the Bill includes wider reform provisions, as some reform of the situation that we inherited is urgently and obviously needed. I do not believe the public understand a system that can pay out millions of pounds from taxpayer-provided central funds to compensate acquitted companies and wealthy people for their legal costs, whether that involves the £21 million paid to the firms in the Hatfield rail crash case, the £18 million paid to a number of pharmaceutical firms accused of price fixing, or the hundreds of thousands of pounds that have on occasion gone to celebrities accused of affray, assault and other crimes.

Part 2 of the Bill therefore establishes that defendants who decline legal aid and pay privately in the higher criminal courts will no longer be able to recover the costs of an expensive private lawyer if acquitted. In the magistrates’ courts, the sums recoverable will be limited to legal aid rates. Firms will be expected to insure against criminal prosecutions, and will no longer be able to recover costs from the taxpayer.

The Bill is therefore about delivering reform across the justice system, and we have tried to think about that in a joined-up way. Let us consider problems often affecting women—about which Lady Hale was concerned when she spoke the other day. For victims of crime, I have recently announced funding for 15 rape crisis centres on a more secure long-term basis than in the past and funding for four new centres. For women using the justice system, in our legal aid reforms we are prioritising those cases where there is greatest risk of harm, retaining legal aid for cases involving domestic violence, child abuse and child abduction, and we have broadened the range of evidence accepted.

In private family law, the taxpayer is increasing funding for mediation and legal advice in support of mediation. More broadly on family cases, part 2 of the Bill extends the powers for courts to require one party to pay towards the other’s legal bills in some cases where resources are not equal. For example, when a couple have parted and the man remains very prosperous whereas the woman is almost penniless and is seeking some remedy, the court will have the power to require one party to pay towards the other’s costs. In public family law, the taxpayer will still be providing more than £400 million for family legal aid.

For female offenders in the criminal justice system, we have not replaced—and I have never proposed replacing—short-term prison sentences with community sentences, but if we can increase confidence that community sentences will be meaningfully punitive, they could make the justice system more sensible in some situations, such as in ensuring that there are decent non-penal options for offenders with caring responsibilities where their being sent to prison would cause chaos for innocent children in their families. In dealing with women prisoners and offenders, we are, in fact, proceeding on a very similar basis to the previous Government.

My vision is a legal system that is substantially reformed. In addition to implementing changes to legal aid and the Jackson proposals on no win, no fee, my Department is developing and supporting work to improve civil legal processes, criminal justice efficiency and family justice. It is a measure of the challenge before us that the Bill, which on any measure is a huge Leviathan of a piece of proposed legislation, is only part of the overall reforms we need to deliver. The changes we are making are, of course, financially necessary, but they will also make the system more sensible and civilised.

I never shrink from robust debate about improvement to important and sensitive public services, and changes in the criminal law have always excited an extraordinary level of controversy, and they always will. If we get this right, however, the prize is a justice system that properly contributes to a safer, fairer society, and a justice system that is user-friendly, that works, that does not deny access to justice and that has less daunting waste, with costs under control. I would, in fact, have liked to introduce such a major reforming Bill 20 years ago, if I had stayed long enough at the Home Office. I now have the opportunity to do so, and I commend the Bill to the House.