Oral Answers to Questions

Robert Neill Excerpts

Tuesday 18th May 2021 Commons Chamber

[Robert Buckland]

Tempted as I am to talk about the particular issue that the hon. Lady raises, there is an ongoing Supreme Court reference. That is a normal use of our constitutional devices to make sure that all parts of the kingdom, including the devolved Administrations, legislate in a way that is consistent with the powers that they have. That is what is happening; it is a very good example of a mature democracy in operation.

With regard to the hon. Lady’s underlying political point about the Scottish Government’s decision to legislate in that way, this country is among the leaders in the world in child safeguarding. No amount of virtue signalling about the incorporation of international conventions that will make no difference to the quality of safeguarding of children in our country will get away from that fact.

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

Is not one of the key features of our unwritten constitution respect for the independence, integrity and quality of our judiciary? Will my right hon. and learned Friend confirm that we have no intention of going down the American route with any political interference in the appointment of our judges?

[Robert Buckland]

My hon. Friend is absolutely on the nail, as ever. He knows that I have long valued the principle of comity, which is that we as parliamentarians respect the independence and role of the judiciary, and that in their work the judiciary likewise respect the position of Parliament. That is what comity is all about, that is what I believe in, and that is what we will embody in our policies as we develop them.

Independent Review of Administrative Law

Robert Neill Excerpts

Thursday 18th March 2021 Commons Chamber

[Robert Buckland]

I thank the right hon. Gentleman for his question. I think I can deal very shortly with the rather hyperbolic diatribe about the position of this Government and the rule of law. There is absolutely no doubt about our adherence to rule of law principles, as with all Governments who have preceded us and indeed Governments to come. I take issue with his suggestion that somehow I am staying silent on these matters. I certainly have not hesitated at important moments, for example, during the Prorogation issue, to defend the judiciary robustly in public, as is consistent with my oath.

Let me answer the right hon. Gentleman’s questions, particularly those on publication. First, those contributions to the review call for evidence that are quoted in the report have been published today. The other public responses to the consultation will be published next week. We are making sure that they are all consistent with our general data protection regulation obligations, but I give him that undertaking that they will all be published. The Government submissions to the consultation will be summarised and published within the next 10 days or so, which will give everybody a clear view of submissions to the call for evidence, but in a way that is consistent with collective Cabinet responsibility. I give him absolutely that undertaking that the next stage—the consultation process—will follow the same course as other public consultation processes. I encourage him and all interested parties to take a full role in this.

The right hon. Gentleman made a point about ouster clauses, which deserves some scrutiny. Such clauses are not completely unknown to this House. Indeed, when one looks at the Parliament Act and the particular function that the Speaker has with regard to processes between this House and the other place, one sees that it contains ouster clauses. The Fixed-term Parliaments Act 2011 had an ouster clause. The question is about the particular purpose and the way in which such clauses are used. There have been times when broad ouster clauses have been introduced, which have naturally caused great concern. The right hon. Gentleman might well remember one such example, because the asylum Bill that he shepherded through this House back in 2003 contained an ouster clause that was described as “without precedent” in its extent. I sympathise with the position he is in, because Governments will often want to create a high degree of legal certainty, to make sure that the processes are clear and that the parties involved and everybody else knows with certainty what is to happen; I can understand why he wanted to pursue that course then. So it is wise of everybody concerned with this issue to take a long view, consider the matter carefully and come up with considered submissions and suggestions, rather than, I am afraid, descending to rhetoric that does not meet the reality of the situation we are dealing with.

These proposals are sensible, incremental reforms that are very much within the tradition of the development of our law. They are the result of much consideration, not just by Lord Faulks, but by a very diverse panel of different opinions and different perspectives, which can hardly be described as a sort of panel that was designed to reach a conclusion before the document had been written. It was genuinely independent and I value it very highly for that.

In summary, these proposals, together with what we want to consult upon, are a mature, reflective look at a process that plays an important part in our society and our constitution, but which, like all other parts of our democracy—this place, local government and all the agencies of accountability—merits careful and close scrutiny. Frankly, it is our duty, as a Government and as a Parliament, from time to time to make sure that that delicate constitutional balance is being maintained. That is what we seek to do, and I make no apology for the initiative that we have taken.

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

I thank both the Lord Chancellor for the tone of his statement and the members of the panel for their work. The Lord Chancellor was very clear in his commitment to the importance and the fundamental nature of judicial review in our constitutional arrangements. Does he agree therefore that, as these proposals are progressed to further consultation, it is important that the conclusions are adequately considered by Government, that there should not be any undue pressure of time to bring proposals forward, that it is better to move carefully and incrementally, and that this House will have ample time to consider any proposals once the Government have formulated them? A guiding principle that we could perhaps bear in mind are the words of the late Lord Bingham in his book “The Rule of Law” when he said that, in judicial review, the role of the judges was to be the “auditors of legality: no more, but no less.” We should not have confusion about how the audit works, but neither should we do anything that impedes the ability of the auditors to do their job.

[Robert Buckland]

I am grateful to my hon. Friend, the Chair of the Justice Committee. His reference to the late Lord Bingham and the description of the audit role is an invaluable intervention. That is precisely what the Government seek to do here. It is all about protecting the role of the judiciary as well. I am a fierce defender of their role and I want to make sure that they are not inadvertently drawn into matters of policy, which are matters for this place, the Government, and democratic institutions, and not drawn into merits-based assessments as opposed to assessing the legality or otherwise of Executive action or omission.

Oral Answers to Questions

Robert Neill Excerpts

Tuesday 16th March 2021 Commons Chamber

[Mr Speaker]

Let us go to Sir Robert Neill, the Chair of the Justice Committee.

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

I, and I am sure all the members of the Justice Committee, will also want to associate ourselves with the Secretary of State’s comments. Does he agree that protection of the public is served not only by deterrent sentencing where necessary, but by a much a broader and more nuanced suite of alternatives for less serious offenders? Can he help us, in particular, on the timescale for the roll out of problem-solving courts, which have been called for by the Select Committee and by many other commentators over a number of years, but which, until now, have perhaps not always had the ministerial or governmental impetus behind them that is required to make them succeed as part of that smarter sentencing package?

[Robert Buckland]

I am grateful to my hon. Friend the Chair of the Justice Committee for raising the important issue of problem-solving courts. This will be an opportunity to bring together not just the courts system but other agencies around the issue in order to deal with the particular challenge being faced by a family or by somebody who has been accused of a criminal offence. The work on this is ongoing, and I want to launch the pilots later this year. This is very much at the heart of the sentencing White Paper that I published last September. It is all about getting smart on sentencing and making sure that we reflect the reality of the challenges that are often faced by our courts.

Oral Answers to Questions

Robert Neill Excerpts

Tuesday 2nd February 2021 Commons Chamber

[Mr Speaker]

Chorley is always ready to help the Minister as well.

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

The extra investment is important and should be recognised, and Nightingale courts can make an important addition to court capacity, but does my hon. Friend the Minister agree that most Nightingale courts are not equipped to handle custody cases and therefore many of the most serious trials? Is not the long-term solution sustained investment, over a period of months and years, to make sure that all available physical Crown courts sit the maximum number of days that they can safely sit, and to ensure that there are resources in terms of judiciary, support staff and a safe environment for court users, to make sure that that can be done? Is that not the top priority?

[Chris Philp]

As he is so often, my hon. Friend the Chair of the Justice Committee is correct. Often when a Nightingale court is set up, it does not have the required custody facilities, but it does free up space in our existing Crown court estate, which does have custody facilities, and allow more Crown court or jury trials in which the defendant is remanded to take place in existing facilities.

Crown court sitting days are very important. We have been clear that in the current financial year Crown court sitting days should not impose any constraints on listing and sitting cases. The situation for the coming financial year, starting in April, is the subject of discussions between my right hon. Friend the Lord Chancellor and the Lord Chief Justice, Lord Burnett of Maldon, but it is fair to say that we are expecting a substantial increase in Crown court sitting days.

Oral Answers to Questions

Robert Neill Excerpts

Tuesday 8th December 2020 Commons Chamber

[Robert Buckland]

I am happy to assure the hon. and learned Lady that the terms of reference have been carefully couched to make it clear that we have distinctive contexts and natures in each of the jurisdictions, and that they will be considered where that is necessary. I am also content that where there are particular questions on devolved matters or of a devolved nature, the independent review will be approaching or inviting engagement from all appropriate parties. Of course, it is only the first stage in making recommendations. I can assure her that any proposals that will come forward will of course involve the fullest consultation with the devolved Administrations and, indeed, of course the fullest respect for the devolved settlement.

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

Can I welcome the tone of my right hon. and learned Friend’s statement and his very clear commitment to supporting the independence of the judiciary? That is an absolute and fundamental principle of our constitution, and should never be undermined by anyone. Can I also welcome the terms of reference of the review, which are balanced and measured in relation to the Human Rights Act and, in particular, the quality of the panel that has been appointed? I happen to have known Sir Peter Gross throughout my professional career, and he is known as both a man and a judge of the highest independence and integrity, as are the other members of the panel. Perhaps my right hon. and learned Friend can reassure us that they will have a completely free hand to act as they think is appropriate within the terms of reference, without any pressure on their independence from any quarter.

[Robert Buckland]

My hon. Friend the Chair of the Justice Committee is absolutely right to highlight the impeccable credentials of the chair, Sir Peter Gross, not only as a distinguished former Lord Justice of Appeal, but of course as the judge responsible for international relations: he understands very well the issue of judicial diplomacy, which is very much at the heart of this review. I am glad that the geographical representation also includes an academic from the Republic of Ireland, because it is my fundamental belief that we need to look at the position in all parts of our islands to respect not only the human rights settlement, but the Belfast agreement.

Courts and Tribunals: Recovery

Robert Neill Excerpts

Thursday 3rd December 2020 Commons Chamber

[Robert Buckland]

I listened very carefully to the right hon. Gentleman, and I am afraid that, as is sadly so often the case, his peroration was a direct contradiction of the reality of what is happening on the ground across the justice system. We acted from the outset to protect lives, to protect staff and to make sure that our prisons were safe, and the results are well-known. There has been considerable achievement in our prison system, and I know that he would want to acknowledge the work of staff; I am sure he would.

The same can be said about the work done in our courts. This was an unprecedented challenge. We were the first jurisdiction in the world to reopen jury trials, in late May. We are now rapidly reaching the position with regard to jury trials being heard, or guilty pleas being tendered at or just before trial, that we were in before the beginning of this pandemic.

The right hon. Gentleman is right to talk about the past in the justice system, which is why in July I announced the biggest increase in court maintenance in not 10 years, but 20 years; he can do the maths and work out the time that he had partial responsibility for the system. This is not a pure story of life since 2010; I have inherited a system that, frankly, needs a fundamental change, which is what I am doing.

The settlement that I have reached will hugely support the increase in sitting days in the year ahead. Already, before the pandemic hit, I had increased the number of sitting days, with the agreement of the Lord Chief Justice, from the year prior to my taking office. I was already acknowledging the pressure on the system. I remind the right hon. Gentleman that while 39,000 cases is of course a significant number, it is not the historic high that we have seen in the past. I am working to ensure that the number of trials in that particular statistic is dealt with as quickly as possible, together with all the other important hearings.

The right hon. Gentleman talked about victims. I am sure he would readily acknowledge not only the £25 million announced in the spending review for next year but the in-year funding of £15 million on victims’ services that we continue to roll out. The covid funding that has been administered on behalf of my Department by police and crime commissioners for local victims groups totals over £25 million. Indeed, the announcements I made last year rapidly and significantly increase funding for independent sexual violence advisers to levels that we have never seen before in our country. We have also introduced the revised and streamlined victims code. We are, at every step of the way, taking action to support the victims of crime. I can assure him that when it comes to domestic abuse and sexual violence, the courts are giving priority to those hearings and making sure that they are dealt with as quickly as possible.

On legal aid, again the right hon. Gentleman misses a hugely important development this year, which was the extra funding of up to £51 million for criminal legal aid lawyers via an improvement to the graduated fee scheme as part of the first stage of criminal legal aid review. We are going to embark on stage two very soon, and I will keep him fully apprised of that. He will, I am sure, note with interest that that will result in more investment in criminal legal aid in the year to come. [Interruption.] Oh yes, it certainly will. I know that it is sometimes difficult to accept positive news, but I am grateful to partners in the criminal justice system and those practising in the professions for having given an encouraging welcome to the news last week. I accept, with them, that there is a way to go, but we are now turning the corner, and I am confident that in the years ahead we can enhance, improve and build on the success of our justice system.

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

I thank the Lord Chancellor for his statement and welcome what he has said. I and the other members of the Justice Committee certainly wish to join in the tributes that have been paid to the hard work of all those involved in the Courts Service and the broader justice system in dealing with the necessary recovery from the pandemic.

Can the Lord Chancellor help me on a couple of points, though? First, does he accept that it will be necessary to have a multi-year settlement once this year is out of the way to maintain the progress that we need to achieve to get our courts system back to the levels of reform and improvement that we have ambitiously set out? Secondly, will he update the evidence that he helpfully gave to the Justice Committee on Tuesday as to where we are in reducing the backlog in the Crown court? Although there has been progress, he will know that the backlog prior to the pandemic was already at record levels, and that was increasing up until the latest management figures we had that went back to October. Will he give us the projection—and, in due course, the modelling behind it—as to when we will see that backlog start to reduce? None of us wants to see contested trials being listed out to 2022, as I am sure he would agree.

[Robert Buckland]

I am grateful to my hon. Friend. First, with regard to a multi-year settlement, it would not be right for me to prejudge what the decision of the Chancellor might be on that. The important decision had to be made this year to have a one-year settlement for the obvious reasons of the covid outbreak and the fact that, rightly, there was not a fiscal event—namely, a Budget. I will leave that decision ultimately to the Chancellor. However, my hon. Friend can be reassured that the work being done within the Department is indeed looking beyond one year only and coming up with evidence-based arguments and proposals that lead on to longer-term investment. For example, he will see in the capital programme not only a welcome £105 million extra for court maintenance but the multi-year prison capital programme, which will make a huge difference in terms of modern conditions in our prisons.

With regard to the Crown courts, my hon. Friend is right to draw attention to the figures. The figures for Crown court statistics are populated both manually and by automation. Therefore, they take some time to fully settle down. However, I am particularly encouraged by the figures relating to effective trials: trials that end up being “cracked”, as they say, with a guilty plea on the day; and trials brought into the court by the judge just before trial, or a week before trial, where guilty pleas have been tendered. The overall figures I am looking at now through November show a very encouraging increase in that overall number, getting us much closer to the pre-covid baseline. It is not there yet, but if those trends continue, we can get to that pre-covid baseline on trials, I think, in the new year. Of course, that allows us to start to make real progress on the rest of the case load.

Private International Law (Implementation of Agreements) Bill [Lords]

Robert Neill Excerpts

Consideration of Lords amendments & Ping Pong & Ping Pong: House of Commons
Tuesday 24th November 2020 Commons Chamber

[Alex Chalk]

Private international law, sometimes known as conflict of laws, comprises rules applied by courts and parties involved in legal disputes for dealing with cases raising cross-border issues. The rules generally apply in the context of civil law, including specialist areas such as commercial, insolvency and family law. PIL typically includes rules to establish whether a court has jurisdiction to hear a claim that has cross-border elements, which country’s law applies to such a claim, and whether a judgment of a foreign court should be recognised and enforced. However, it can also encompass rules on co-operation between courts and other public authorities in different countries involved in dealing with cross-border issues, such as service of documents, taking of evidence abroad or even establishing efficient procedures to assist with the resolution of cross-border disputes.

These agreements are important. They are the sort of thing that a member of the public, or a business trading across borders may not know they need until a difficulty or a disagreement arises. Without these agreements, cross-border legal disputes can become expensive and difficult to resolve. With them, the path to resolution is clearer and smoother.

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

I am very grateful to the Minister for giving way so early on in his speech. As he will know, I have to chair the Justice Committee in a few moments, but may I thank him for stressing the importance of this not just for the big financial institutions and businesses of this country, but for individuals? Will he confirm that, in accepting the amendments, we have managed to achieve an improvement to the Bill through the very constructive approach for which he in particular has been responsible? Will he also confirm that, as well as the Bill, it is the Government’s firm intention to seek to join the Lugano convention on the enforcement of judgments and other international co-operation at the earliest possible date, so that we do not have any gap post the end of the implementation period, and to move on to the other international conventions—Hague and others?

[Alex Chalk]

I thank the Chairman of the Justice Committee for his remarks and for the contribution he has made throughout the passage of the Bill. I am quite confident that we are in a better place because we have looked at it constructively. That is, in large part, because of the contributions he has made, together with others. Yes, this is about individuals as well as businesses, and yes, we want to use this as the vehicle to get into Lugano, which will be good for the rule of law, good for individuals, good for certainty and good for businesses.

I was making the point that these agreements mean the path to resolution is clearer and smoother. Just by way of a couple of examples, these agreements can help a family where relationships break down and one spouse moves abroad, and they can help to sort out arrangements for custody, access and maintenance in the best interests of the children. These agreements can provide a framework for a small business to seek redress when left out of pocket by a supplier based in another country.

Oral Answers to Questions

Robert Neill Excerpts

Tuesday 3rd November 2020 Commons Chamber

[Robert Buckland]

As I said in response to the previous question, I do not disclose details of discussions I have with Cabinet colleagues. However, I can reassure the hon. Gentleman and everybody else that people should be in no doubt about my steadfast defence not just of the judiciary but of an independent legal profession. We have, of course, seen criticism of lawyers throughout the ages. I respect the views of members of my profession, but we should put things into their full context.

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

I welcome what the Lord Chancellor said about defending the legal profession and I join him in that. It is an honourable profession and I have always found that those I dealt with at the Bar and solicitors generally left their politics behind when they went to argue the case for their client, which they must do without fear or favour. Equally, will he recognise that when he and I were doing an awful lot of legal aid work in practice, the former leader of the Labour party and then Prime Minister was describing legal aid lawyers as fat cats? No one has entirely clean hands on this and perhaps we all ought to moderate our language when dealing with the professions.

[Robert Buckland]

The Chair of the Justice Committee puts the matter into its fullest context. Sadly, from Shakespeare onwards, and probably before, lawyers have come in for criticism. The question is how far that goes. We live in a lively democracy and none of us is above criticism, but I say to him that in all my years in practice, I did precisely what he did, which was to leave my politics at home whenever I went into chambers or into the courtroom.

Ministry of Justice: Legal Aid Spending

Robert Neill Excerpts

Thursday 22nd October 2020 Westminster Hall

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

I beg to move,

This this House has considered the spending of the Ministry of Justice on legal aid.

It is a pleasure to see you in the Chair today, Mr Robertson, and to move this motion on behalf of my colleagues on the Select Committee on Justice, which I have the honour to chair. I am delighted to see a number of colleagues here today.

People might think that spending on legal aid is a technical and rather dry subject, but it is not, and nor should it be, because ultimately it is about access to justice. When preparing for today, I was struck by a comment from the late Lord Diplock, one of our very distinguished jurists, who said:

"Every civilised system of government requires that the state should make available to all its citizens a means for the just and peaceful settlement of disputes between them as to their respective legal rights. The means provided are courts of justice to which every citizen has a constitutional right of access.”

The last point is important. It is the realistic ability to access justice that is important, if we are to talk about genuine access to justice, as opposed to the theoretical.

Rightly, after world war two, the legal aid scheme was set up under the Legal Aid and Advice Act 1949. Governments of all parties have sought to provide means of access. To quote another distinguished late jurist, Lord Bingham:

“Denial of legal protection to the poor litigant who cannot afford to pay is one enemy of the rule of law”.

In a democracy, we are all committed to the rule of law. We debated it not long ago in Westminster Hall, Mr Robertson. To achieve that, it is important that those who have rights that they seek to enforce have a means of going to the courts to do so. They should not be constrained in exercising those rights by their means. The test ought to be the merits of their claim, rather than the means they have to bring it. In the same way, in criminal matters, those whom the state charges with an offence are entitled to a proper means of putting the state to proof as to whether that offence is made out against them. Their ability to do that should not be constrained by their means either. The test in a criminal case should be whether the state can prove the case against them on the merits and the evidence, to the appropriate standard. Those are basic things we all sign up to.

We have to ask how we can do that effectively in reality, in circumstances where many of the population find affording to pay for litigation, which no one embarks upon lightly, not viable or within their grasp. It is not just about litigation. I remember that when I started as a young barrister—I refer to my declarations in the Register of Members’ Financial Interests—some of the most important things were those done through the green form scheme, such as giving important early advice on whether a contract case, or a case for possession of property, or a matrimonial case, had merits. It is not purely legal criminal matters that we are concerned with. Often, that early advice saves a great deal of trouble for individuals and for their families, either enabling them to resist an unfair claim against them, or warning them off pursuing an unwise course of action that might get them into more expense.

Access to justice and an effectively functioning legal aid system are in everybody’s interests and a societal good. Governments of all complexions have had to balance the need to do that with the need to sustainably fund it at times when there are other pressures on the public purse. It has struck me throughout my time in this place, that governments of all complexions have, from time to time, reduced spending on legal aid. No one is entirely free of that, and it is almost inevitable at a time when the Ministry of Justice also has to deal within its budget with prisons, probation and many other matters. It is very easy for legal aid spending to be seen as one of the more discretionary elements in the system and to be squeezed out.

That is why on a number of occasions over the years the Justice Committee has carried out inquiries and issued reports on spending on legal aid and its sustainability. Indeed, very recently we conducted an inquiry into legal aid in the context of the pressures placed on the legal profession and the court system by the covid-19 pandemic. We have now embarked on a fresh inquiry into the future of legal aid; we started it on 7 September and we are looking for evidence until 2 November. I hope that people will submit evidence to the Committee on the broad sustainability of legal aid.

Of course, the current statutory basis of legal aid is the Legal Aid, Sentencing and Punishment of Offenders Act 2012, or LASPO, but the Government have rightly undertaken to review that. There have been delays in that process and it has taken some time, but we need to see how effective that Act is. Some of the changes it made were sensible; others have not necessarily stood the test of time and we need to be honest about that. Perhaps the problem was that the introduction of LASPO was linked with a very significant reduction in legal aid spending. It was not the first time that had happened; the Labour Government before the coalition reduced spending on legal aid quite significantly in a number of areas. Now, however, we have a chance to consider what is a sustainable basis for legal aid. I hope that eventually we reach a degree of consensus so that legal aid ceases to be something of a party political football, which any type of public spending can sometimes become. I hope that the Minister will be able to update us on the progress of the Government reviews.

That does not mean that in the future we have to deliver legal aid in exactly the same way as before. However, it is important that people should have access to early advice, and there is no doubt that, for various reasons, the financial pressures on the system are creating real difficulties in delivering to people the level of service that we would wish to see. I note the briefings that have been provided by both the Law Society and the Bar Council in that regard.

As many will know, I spent most of my life in practice at the criminal Bar. A great deal of my work, either prosecuting or defending, was publicly funded. There is no doubt that there is a real problem now in attracting bright young lawyers, either solicitors or barristers, to undertake that sort of work. The cases that I worked on started with a solicitor attending the police station—in those days, the duty solicitor scheme had been brought in quite recently. We have heard compelling evidence over the last two or three inquiries, and indeed over the last two or three years, from solicitors and other practitioners that there is now a real dearth of people who are willing to undertake the fairly onerous task of turning out, sometimes in the middle of the night, to sit in a police station when somebody charged with an offence—often a serious criminal offence—is interviewed. It is part of that person’s constitutional right—part of ensuring both that the guilty are properly prosecuted and the innocent are defended—but in many areas now it is very hard to find legal aid solicitors available to undertake that work. The average age of a duty solicitor is pushing 50, whereas the average age of those in the legal profession as a whole is much younger, so disproportionately legal aid work is becoming an older person’s part of the profession. If we do not recruit new people to do the work, the supply of duty solicitors will dry up.

In the civil field, there is a geographic difficulty regarding the availability of housing advice; that was a particular example that we were given. I suspect that post covid more people will be in financial difficulty, facing problems of debt, and housing possession actions will loom even larger in the courts. However, in many places, including quite large local authority areas, it is physically very hard to find more than one legal aid practitioner who will provide advice on housing law for people. That is not a sustainable position.

The position is similar at the Bar. Even large specialist sets of criminal chambers—such as mine, and I suspect the Minister’s—will probably say anecdotally that far less of their work is publicly funded than was the case in the past. That bears particularly hard on young barristers just starting out, who very often cut their teeth on this sort of work. We need a sustainable means of making sure that people can make a living. I am not talking about a grand living—one of the most unpleasant and annoying things for those of us who understand this area is these ridiculous headlines about fat cat lawyers doing criminal work; that is simply not the case. The facts clearly demonstrated to our Select Committee in reports over the years show that that is not the case, but of course the easy headlines make the most noise, as far as public debate is concerned.

We have recommended that a particular focus should be given to ensuring that we can uplift the funding for criminal legal aid. I recognise that the Government have put more money into this and revised some of the payment schemes. I welcome that, but I say to the Minister that there is more still to be done. Particular issues have been raised with us about interim payments to ensure that at the present time, during the covid-19 pandemic, cash flow for solicitors firms and sets of chambers undertaking publicly funded work continues to be available.

I know the Minister had an important role in securing the valuable money that has been expended in support for legal advice centres. That is important and welcome, but we need to ensure that they are put on a sustainable footing, too. There is a concern about the very high level of administrative costs in the Legal Aid Agency. An administrative budget of £88.8 million seems an awful lot for the organisation, which is supposed to be a light-touch operator.

That comes against the background—as the Minister himself rightly said when he was a distinguished member of the Select Committee—that spending on legal aid is a fraction of a fraction of total public spending in the United Kingdom,; it has been said to be about 0.1% of total spend. We are not talking about large sums of money in the overall scheme of things, but those sums of money make a profound difference to the citizen’s ability to enforce their rights or to defend themselves against unjust accusations.

I have not had time to talk about family or civil work, but I know that some of my hon. Friends will show their expertise in those areas. I will, however, make two points. Since certain changes were made, there has been a real collapse in the number of people able to access the employment tribunals. I suspect that, given the pressures of an economy damaged by the pandemic, demand will grow in that area.

It was always thought that changes to family legal aid would lead to more mediation. In fact, we found that mediation fell through the floor, because early access to the lawyer was the gateway for pointing people to go into mediation as a cheaper and less confrontational means of resolving their family disputes. Actually, the risk is that some of the savings that were taken out have not been cost-effective; they have been false savings, because there has been a growth of litigants in person, making the cases longer to deal with, resulting in greater burden on the judges and court time, and less good outcomes for the individuals and society as a whole.

I know the Minister understands these matters much better than most. I hope that the Government will commit to continue the review of LASPO in a timely fashion, and that we will not be afraid to come to certain interim conclusions and put some interim money in, where it is appropriate and justified by the evidence, to keep the legal aid market sustainable under the current pressures. I hope we will take a broader view about the sustainability of legal aid going forward.

Finally, perhaps all of us could use this as an opportunity to improve public awareness of the importance of the law. The law is not a purely transactional matter. I think Lord Kerr put it well in the Unison case. This is not purely a matter of private concern between the individuals; there is a public good in access to the courts. It is important constitutionally that people should be aware of their rights and how they enforce them.

We should not be afraid, therefore, of saying that any civilised society should resource its justice system just as much as it would resource any other social service—as much as we would expect to resource education, care for the elderly, healthcare or housing. Those are all matters that we would regard as part of the fundamental social fabric. Access to a workable court system is an equal part of that, requiring proper funding of the courts and judiciary, as well as, where appropriate, ensuring that those who have meritorious claims—a test to ensure that is fair—are not deterred purely by want of means from bringing them.

I hope that serves as an introduction to this debate. I have tried to explain why we think this is important, and why we regard the inquiry that the Select Committee is currently undertaking as important. I hope the Government will be able to respond positively.

--- Later in debate ---

[The Parliamentary Under-Secretary of State for Justice (Alex Chalk)]

It is a pleasure to serve under your chairmanship, Ms McDonagh. I congratulate the Chair of the Justice Committee, my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), on securing the debate and on opening it in such a full, balanced and helpful way.

In preparing this speech, I looked back at previous debates, and what a joy it was to see that the hon. Member for Westminster North (Ms Buck) secured a debate here in 2010. The hon. Member for Hammersmith (Andy Slaughter) was there, as indeed was the right hon. Member for Tottenham (Mr Lammy). There was a rather lovely moment when the hon. Member for Hammersmith paid tribute to the hon. Member for Westminster North’s

“unrivalled record in pursuing such matters”—[Official Report, 14 December 2010; Vol. 520, c. 207WH.]

If she had an unrivalled record in 2010, it is even more unrivalled now. I genuinely congratulate her on the work she has done over so long in raising these issues.

I begin by emphasising some important points that have been made powerfully but bear emphasis. Legal aid stands as a pillar of our constitution and a bulwark of our freedoms. For a great many people, it operates out of sight; they may go through their entire lives without encountering it, and in that way it is not like the NHS or schools or policing. However, for those who do encounter it, its importance is immediately understood. Legal aid ensures that the guilty are convicted and the innocent walk free; that those facing conviction, punishment and disgrace on the accusation of the state will have those allegations properly tested. It is there to ensure that the rights and liberties of ordinary citizens, often created by this Parliament, are upheld. To paraphrase Lord Reid in the Unison case, legal aid ensures that statutes are not rendered a dead letter.

I echo the points that the hon. Lady for Westminster North made about practitioners. She referred to the good will, dedication and vocation of those who practise in legal aid work, and I cannot use any better words. She put it very well. They are not fat cats. I make the point, as I made in an earlier debate, that those who act in these cases, or indeed any cases, may very well not agree with their clients on the substance of what is being advanced, but they know that their first duty is to the court and their second duty is to their client. They must defend those interests and fight that case, within the law, without fear or favour. Those principles underpin why the Government spent £1.7 billion last year funding legal aid for those who need it. It is imperative that we properly protect this support and that it continues to be available in the future.

The hon. Member for Hammersmith asked me to concede that funding is less now than it was in 2012. That is a fact, so he is right about that. In fairness—I pay tribute to the entirely appropriate tone that the debate has been conducted in overall—in 2010 there was a sense that, whichever Government came into power, there were going to be some cuts. However, the question at this stage, as we take stock, is what legal aid should be required for and to what extent. That is a careful consideration that we intend to apply.

Over the past few months, the importance of the advice and legal sectors has been brought into sharp focus. My officials and I have been engaging extensively with various organisations across the advice sector throughout this period, and I know how challenging it has been for providers and their service users alike. I also know how many providers and practitioners across England and Wales have gone above and beyond to ensure that vulnerable people across society can continue to get the help they need.

As a Government, we have tried to support that work as best we can over this difficult period. I am delighted that, as my hon. Friend the Member for Newbury (Laura Farris) pointed out, we were able to secure £5.4 million of emergency funding for the not-for-profit advice sector, to ensure that providers across England and Wales were able to adapt their operations and continue to provide their important services. In the early days of the pandemic, we understood that almost half the law centres in England and Wales were facing potential collapse, and I am extremely pleased that our funding helped to prevent that outcome. I do not suggest for a second that it solved all problems, but I hope it is fair to say that it was of some significant assistance.

I am also grateful for the close working relationships we have built with actors across the sector to ensure that funding can be utilised in the most effective way possible. Beyond the funding, we made a number of changes to support legal aid providers in the short term, including changing rules for payments on account and ensuring that providers can claim the same for remote hearings as they can for face-to-face hearings. In August we announced additional funding of up to £51 million for criminal defence lawyers through the criminal legal aid review.

Respectfully, and notwithstanding the point that can always properly be made that there needs to be more, £51 million is a significant sum. The point that I would gently make is that that was the first occasion when people were being paid for reviewing unused material. As practitioners in this room no doubt well understand, it is those hours spent between 10 o’clock at night and midnight reviewing the unused material that all too often discloses that critical point that allows them to advance in court the key issue that might lead to the acquittal of their client. That is now being remunerated in a way that it was not before.

I have very limited time, so let me try to deal with the issue of sustainability. Although I maintain that we have made some positive changes in the time available, I think everyone here would acknowledge that there is more to be done to ensure that the legal aid and advice sector thrives into the future. Many of us here will be well aware of the challenges faced by the sector, and we do not seek to suggest that they do not exist or to downplay them. The demands on providers, and indeed on the courts, are high and will likely remain high over the coming months as the covid-19 recovery gathers pace. Those impacts will no doubt be felt across society.

We are already doing important work in this space, and we want to go further in the coming months. As has been trailed, I recently launched our new legal support for litigants in person grant, which builds on the more than £9 billion that the MOJ has invested. There are some who would say, as did the hon. Member for Enfield, Southgate (Bambos Charalambous), who is no longer in his place, “Look, it’s not enough.” I understand why he says that, but we need to look forensically at what it is going to develop. The answer is that law does not stand still, just as the rest of the world does not stand still. There are other mechanisms by which legal advice and assistance can be delivered using technology, and we must be alive to that.

In some of the excellent conversations that I have had with law centres, they have started to recognise that maybe their catchment area of need is not simply the area around, say, North Kensington for North Kensington Law Centre or the area around Hammersmith for the Hammersmith and Fulham Law Centre—which, incidentally, I know fine well the hon. Member for Hammersmith has spent many years supporting. Is there scope for technology to widen that catchment area, to broaden access to justice?

We have also launched a new project considering the issues relating to the wider long-term sustainability of the civil legal aid system. I am only too well aware that many practitioners and stakeholders say that this is a long-standing issue, but now, of course, it has been made more pressing due to the current situation, and we are taking a broad look at the system. Some hon. Members have raised the point about fee levels, and that is fair. In addition to considering the fee levels, we will look at structural issues such as the delivery model for civil legal aid and will seek to improve the remote delivery of advice where appropriate, to ensure support is available for those in hard-to-reach places, learning both from what has worked well during the pandemic and what has worked less well.

I have only a minute left, sadly, and I want to give my hon. Friend the Member for Bromley and Chislehurst time to speak. I could have talked about the means test review. I wanted to talk about CLAR, the accelerated areas, the courts estate, which is getting more money, and my principal passion, early legal support and advice. I am absolutely of the view that intervening early makes a huge difference.

Let me end by saying that covid-19 presents a great challenge to our way of life, perhaps unknown in the modern era outside wartime. Other priorities will likely dominate the headlines—jobs, schools, hospitals, debt—but in a nation of laws, legal aid is vital, now and in the future. Legal aid work will never provide the personal financial rewards for practitioners of a commercial or chancery practice, and nor should it, but we need a system that continues to attract lawyers of sufficient calibre, prioritises acute legal need, achieve redress and improves people’s lives. That is the platform for those priorities that I have set out today.

[Sir Robert Neill]

Even I can’t be that short.

Lord Chancellor’s Oath and the Rule of Law

Robert Neill Excerpts

Wednesday 14th October 2020 Westminster Hall

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

It is a pleasure to see you in the Chair again, Mr Twigg, and to follow the hon. and learned Member for Edinburgh South West (Joanna Cherry). I have great respect for her as a lawyer; we do not always agree in our political views, but I take seriously what she says on legal matters. I ought to mention my interests as a non-practising member of the English Bar, as a consultant to a law firm and as a bencher of the Honourable Society of the Middle Temple. I will start with the topic of the debate: the Lord Chancellor’s oath. The hon. and learned Lady ranged widely in her speech, and I am sure she will forgive me if I do not follow some particular matters that she understandably raised relating to the constitutional settlement and devolution.

The irony of this debate is that the Constitutional Reform Act 2005 does indeed place the Lord Chancellor in a different position from that of other Ministers, both because of the oath and because of their obligation under section 17(1) of the 2005 Act to respect the rule of law and defend the independence of the judiciary. Ironically, the Blair Government in 2005 never actually defined the rule of law in the Act. The late Lord Bingham, who has been much quoted already in this debate and probably will be again, noted that that was interesting and rather unusual, as it placed great reliance on a concept that was set out in statute but never defined. That, he concluded, clearly was not an accident; it was clearly because it was probably impossible, if not unhelpful, to find a pithy statutory definition that could be put in an Act of Parliament of something that has evolved over time. His conclusion in his admirable book, which I brought along this morning, is that it was desirable to leave the matter to be decided—as courts might need to, from time to time—in the practical, rather than purely in the abstract, as issues arose. That, perhaps, is wise.

That means that it was wrong for some in recent weeks, since the arrival of the United Kingdom Internal Market Bill, to make rather unjustified ad hominem attacks on the current Lord Chancellor—first, on his conduct throughout, and secondly, in making an assertion that the rule of law is potentially breached. An assertion is, of course, no more than that, and a legal argument, however distinguished, be it made by academic or legal commentators, is no more than that either. I have known the Lord Chancellor for his whole professional career, and the reality is that he is absolutely rooted in his commitment to the rule of law and to the profession, as he made clear when he took his oath and repeatedly since. I will come to part 5 of the Bill in a moment, about which my views are well known. However, I believe and am satisfied that the Lord Chancellor has acted diligently throughout all this to ensure that we deal with a potentially difficult situation proportionately and consistent with our obligations.

Since taking, the Lord Chancellor has also been clear in his support for the independence and integrity of the judiciary. Not all his predecessors in recent years have been; I say that frankly. There are people in all jurisdictions that we might wish to brush over, as the hon. and learned Member for Edinburgh South West put it. For every Lord Rich there is a Lord Braxfield, perhaps, and others who we might not wish to dwell upon. The reality is that the Lord Chancellor and Secretary of State for Justice, my right hon. and learned Friend the Member for South Swindon (Robert Buckland), has been meticulous in this. I welcome his clear commitment in his letter to the right hon. and learned Member for Camberwell and Peckham (Ms Harman), the Chair of the Joint Committee on Human Rights, to the Government’s continuing support for the provisions of the European convention on human rights. He has been willing to be outspoken on that.

Reference was made to the risk to the rule of law being undermined by the Government’s proposals to examine the scope of judicial review. When I started my law degree at the London School of Economics—which was, I hate to say, in the early 1970s—judicial review was a very new and evolving legal concept. There was little of it in those days. It grew, as many of us will remember, through the Gouriet judgment, the Grunwick case and so on, and perhaps rightly so. There has never been a fixed corpus of law in this area, as there is in others, such as jury trial. There is nothing wrong in that; the advantage of the common-law system is that it can evolve.

No one would seriously say that, prior to the development of the current system of judicial review in, let us say, the 1970s through to the beginning of this century, Britain was not a country that was subject to the rule of law. A willingness to review the way in which judicial review as a concept operates, and what are or are not the proper limits, cannot be regarded as an assault on the rule of law per se, on any objective basis.

[Joanna Cherry]

I take that on board, but the difficulty is that the individual who has been put in charge of the review has evinced very strong criticisms of the Supreme Court’s decision in the prorogation cases and has also evinced hostility to the European convention on human rights, notwithstanding what the hon. Gentleman has already said. There is a widespread perception in the legal profession that what is intended here is to circumscribe the rule of law, not just because Lord Faulks is the chair but because of the Government’s rhetoric. Surely the hon. Gentleman must see that.

[Sir Robert Neill]

Lord Faulks is a fellow bencher of the Middle Temple and a distinguished lawyer. That does not mean that one always has to agree with everything that he says. It would not be fair or reasonable to judge somebody by past comments until we have seen the results of the panel as a whole. Lord Faulks is the chair of the panel, but there are other very distinguished people on it as well. I respect what the hon. and learned Lady says, but this is a classic case of not prejudging the issue until we have seen the outcome of the deliberations.

I am a great believer in judicial review, in appropriate cases. Has it sometimes been abused? Many people would say that perhaps that can be the case. When I was the junior Minister at the Department for Communities and Local Government, I was critical of the attitude adopted to some decisions by the then Secretary of State, the noble Lord Pickles, is he is now, in relation to the removal of regional spatial strategies. We were judicially reviewed by large commercial housebuilders, undoubtedly in pursuit of their own vested commercial interests. They sought to prevent our removing the comparatively easy route, so they could impose large housing developments on communities that did not want them. I was critical of those house builders for doing that and for undermining in law the wishes of local residents. The courts found that they were entitled to do it, but that does not mean that we were assaulting judicial review as a concept, simply by criticising the motive behind some of the people who bring it.

There is an important distinction, which I recognise. We criticised the clients—the people who brought the judicial review—but I did not criticise the lawyers who were instructed on their behalf. I would not seek to do so. It is important to say that we should not, whatever our views in politics, use political arguments to attack lawyers generally or by taking broadbrush approaches. The attacks upon the judges, which were not perhaps called out as much as they should have been at the time of the early Miller litigation, were wholly disgraceful and unacceptable. The current Lord Chancellor has made it clear that he would not countenance such attacks and such language without speaking out. That is very much to his credit and entirely consistent with his own personal integrity. I do not care for the use of language such as “lefty lawyers” or the broadbrush approach of saying that systems are being hijacked. That is not language that I would use. However, I am a Member of Parliament; I am not a speech writer.

I gently observe that the hon. and learned Member for Edinburgh South West referred to the taxi rank principle at the Bar. That is something that I have always worked under as well. To be fair, there have always been sets of chambers that would not prosecute, or would not act for landlords, for example. Some might ask whether that is in theory inconsistent with the taxi rank rule. It probably is, yet it is not something that warrants a great deal of personal attack. I just make the observation that those matters cannot be seen in a purely academic sense. I would not make too much of that, but that is where I stand as far as that is concerned. It is pretty clear where the Lord Chancellor stands, and where I suspect my hon. Friend the Minister stands as well, as far as those matters are concerned.

The other issue raised is part 5 of the United Kingdom Internal Market Bill, about which I was not a little critical when it was first introduced. I believe we have sought to improve that Bill. Is it perfect? As yet, that I do not know. Would the use of the powers in part 5 be wise politics? That is a very big question mark. However, that is not the same as, say, that it is per se constitutionally improper to put those clauses in the Bill, provided there are appropriate safeguards. The hon. and learned Member for Edinburgh South West might disagree upon that, but I think it is a legitimate area of legal dispute and the Lord Chancellor is entitled to have a different view from her and, indeed, perhaps from me in that regard, without it being suggested that he has failed to uphold his oath of office or his constitutional obligations.

I note the views, which have been referred to, of Professor Catherine Barnard. She is a distinguished academic and her views are worthy of respect. By their nature, however, she not being a judge or legislator, and valuable and worthy of respect though they are, they cannot be determinative of the point. It is one side of an argument that can properly be hooked. If, on those matters, there were no scope for difference of opinion, no scope for difference of legal interpretation, no scope for legal argument, there would scarcely be any scope for litigation and scarcely any scope for lawyers at the end of the day. It is perfectly possible for respectable lawyers to hold different opinions around matters of this kind, particularly in emerging areas of law or new legislation as it comes forward, without it being appropriate for us to say that either side is seeking to undermine constitutional principles or their professional or governmental responsibilities. That is the proper way to look at the position, as far as that is concerned here.

I am glad to say, in response to some of the endeavours, which I may have had a small hand in, the Government have made it clear that, effectively, they will only be using those powers should they ever be needed. I hope to heavens that they are never needed because we will get a deal, but should that be the case, there will be certain triggers that would have to be met, both in procedural terms but also in terms of substance. In particular, we would only do so had the European Union, in our judgment, demonstrated bad faith. Bad faith is recognised in international treaty law and in the Vienna convention as being a ground under which it is possible to derogate from an otherwise binding commitment.

The fact that we will be using this as a shield rather than a sword is important—it is the doctrine of equitable estoppel, in some respects. The Minister may well have more to say about that, but that is an important shift and one that I welcome. Therefore, the suggestion that the mere putting of those clauses on the face of the legislation is itself a breach of law is not one that is universally accepted, and I do not think therefore that it can be regarded as an act of impropriety on the part of the Government or of any Minister. As I say, there is a proper political debate as to the wisdom of using them, if we ever come to that, but that is not for today.

I want to say one final thing in relation to this. Lord Bingham was very clear that the rule of law itself is something that can evolve and must be flexible, but there are certain fundamentals. I do not think anyone would suggest that anything we are doing here alters the basic fundamentals. I am conscious of his eighth principle, but I do not think we are at that stage, and I hope we will not be. Moreover, he accepted that parliamentary sovereignty was a fundamental part of the rule of law too. There is always a set of checks and balances in that regard.

I have no problem with certain circumstances where the actions of Ministers properly should be reviewed by the courts, but I do not think this is really going to change that. Lord Bingham made it quite clear, though, that he did not accept the view advanced by, for example, Lord Steyn or Baroness Hale of Richmond that there are some concepts so fundamental that even Parliament cannot legislate to change them. He did not take that view. Again, there is a perfectly respectable dispute there and disagreement between highly distinguished former jurists, which makes the point that none of the arguments powerfully advanced by the hon. and learned Member for Edinburgh South West are determinative of any failing by either the Lord Chancellor or any other Minister in respect of their constitutional obligations.

This is a worthwhile debate to have. In a sense, an hour and a half is not enough to do it justice, because as we go forward, we are going to have to think about our constitutional and legal settlements in a broader sense, how we will operate the separation of powers in a post-Brexit world and how, continuing, as I hope, as a unified state with devolution within it, we can perhaps refine the arrangements that are required to make that work in practice too. Those are all proper matters for further consideration, but do not, I think, impinge upon any proper allegation of any failure by the current Lord Chancellor or his Ministers to act in accordance with their constitutional duties.

[Derek Twigg (in the Chair)]

Before I call Rob Butler, I remind him that I intend to take the Front-Bench speakers around 10.40 am, so if he could keep his speech to around six minutes, so that the Member for South Cambridgeshire (Anthony Browne) can get in, I would be very grateful.