Oral Answers to Questions

Robert Neill Excerpts

Tuesday 9th October 2018 Commons Chamber

[Mr Gauke]

The reoffending rate has actually fallen since then, but we recognise that issues need to be addressed. That is why earlier this year I announced a series of reforms to the probation system, including spending an additional £22 million on “through the gate” services to address this specific point.

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

One problem with “through the gate” is not who delivers it, but the fact that too often the interventions start so late on in the prisoner’s career. If six months is appropriate in terms of opening bank accounts—sensibly, it is—is it not sensible that resettlement interviews and work should be started at least at that time, if not earlier, rather than at 12 weeks or so, as we currently have it?

[Mr Gauke]

My hon. Friend, the Chairman of the Select Committee on Justice, raises an interesting point. The point I make to him is that we need to make sure that this system is working. There is scope for improvement, and, as I say, we have announced additional expenditure in this area, but he is right to say that this is not about who does it, but how it is done. There are steps we can take to improve it.

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[Rory Stewart]

We take the report very seriously, as we take all reports, including the recent report on domestic violence. It is absolutely right to say that we need to improve the risk assessment, the programme plans and the frequency of meeting. We are doing a consultation at the moment, to which we invite the hon. Lady to make a submission, on exactly what we can do to tighten up procedures for the CRCs. They have reduced reoffending by 2%, but there is much more that we can do on the quality of delivery.[Official Report, 22 October 2018, Vol. 648, c. 3MC.]

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

Given that, yet again, the recruitment round of High Court judges has fallen short, and given that many distinguished retired judges are kept busy as arbitrators and wish to continue working, is it not time to look again at whether the arbitrary judicial retirement age of 70 is out of line with modern practice?

[Mr Gauke]

This is an issue that we continue to look at. I think it is a finely balanced matter, and we continue to look at the evidence. The argument is sometimes made that if we increase the retirement age, we will increase the age at which people apply to become judges. We will continue to look at the matter.

HMP Birmingham

Robert Neill Excerpts

Tuesday 4th September 2018 Commons Chamber

[Rory Stewart]

I thank the shadow Secretary of State for Justice for his questions. They are serious questions, and this was a serious failing in that prison. I shall try to answer them one by one. The financial cost to G4S of us stepping in will be very considerable. G4S already estimates that it is losing on this contract. It is to a great extent paid according to the number of prison places. Specifically, therefore, the removal of 300 prisoners from that prison will impose a direct financial penalty on G4S, which will be covered by G4S itself. I can also confirm that the entire cost of this step-in will be covered not by the taxpayer but by G4S, because we will withhold the payment we would normally make in line with the contract with G4S to cover those costs.

The shadow Secretary of State also asked whether we would put exactly 32 officers into the other challenged prisons. We are not in a position to specify the exact numbers, but the broad approach that we would take to Birmingham is the same as the approach that we would take to the other public sector prisons. That approach involves focusing first on the inflow of drugs into those prisons, through the use of intelligence disruption for organised criminal groups as well as through the use of scanners. We are putting nearly £6 million-worth of investment into drug interdiction and scanners.

Secondly, our approach involves focusing on basic decency, and nearly £30 million-worth of extra investment is going into living conditions in our prisons. Thirdly, there is a focus on education, and the Secretary of State’s education and employment strategy is central to this, giving prisoners purposeful activity within the prison walls and ensuring that they get jobs on release, thereby reducing reoffending and protecting the public.

Finally, and perhaps most importantly of all, we are focusing on supporting our hard-working prison officers with the right training in leadership and management skills. They are doing an incredibly tough job outside prison doors. They are facing unprecedented levels of challenges with the new psychoactive substances coming in, and we really need to support them. We are doing that through the Assaults on Emergency Workers (Offences) Bill introduced by the hon. Member for Rhondda (Chris Bryant) which will double the sentences for people who assault prison officers and other emergency workers. We are also doing it through additional training for prison officers before they go on the wings and supporting them through training as they continue.

The shadow Secretary of State asked about an independent commission. Respectfully, I would argue that we already understand very well what happened at Birmingham Prison, without the need for an additional independent report. The independent monitoring board has produced a full report on Birmingham Prison. The chief inspector of prisons has also produced a full report, and we have looked closely at Birmingham Prison over the past few weeks and months. Unfortunately, the story at Birmingham Prison is a relatively familiar one. It is about drugs, about violence and about management and training. There is no great secret there. The question of G4S bidding for future prison contracts is a hypothetical one, and no such contracts will be let for a number of years. However, we will of course, in accordance with all our rules, look seriously at the past record and performance of the companies involved, including G4S, before considering it for a tender.

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

The Minister and the Secretary of State are to be commended on their prompt action. The Minister should be commended on his swift involvement, and I thank him for contacting me, as the Chair of the Justice Committee, so quickly. Does he agree that no pattern emerges in the evidence to show that there is any distinction between the problems that arise in our prisons that relates to the public or private nature of their ownership and management? Two patterns do emerge, however. One is a consistent history of failure in our old Victorian local prisons, be they run by the public or private sector, and the second is a persistent failure by the Prison Service, whether acting directly or through contract, to act upon the recommendations of Her Majesty’s inspectorate of prisons—a litany that has been picked up by the chief inspector. What are the Government going to do to address those two clear patterns of failure?

[Rory Stewart]

I will take those two matters separately. As for responding to the inspector’s recommendations, we have changed—the Secretary of State for Justice has driven this through—how our management systems work to put the inspector’s recommendations and reports at the heart of the way we set objectives for the Prison Service. We had our own independent assessment under the previous system, but we expect the House to see that how we manage prisons much more closely reflects inspection reports in the future.

On the question of old Victorian buildings, there clearly is a pattern, but it is not an absolute pattern. There are old buildings, such as Stafford, that are well run, good prisons, and there are new prisons, such as Nottingham, that have managed to get themselves into trouble despite the new buildings. However, generally speaking, running an old Victorian prison adds to the problems, and we should ensure that our investment in 10,000 new places endeavours to remove the worst-affected prisons from our system.

Civil Liability Bill [Lords]

Robert Neill Excerpts

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

[Mr Gauke]

I want to make some progress.

I am aware that there has been concern on both sides of the House about the inclusion of vulnerable road users—for example, cyclists, pedestrians and motorcyclists —in the proposed small claims track rise. I am grateful to Members for signalling in their arguments how such road users may be disproportionately affected by this measure.

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

I am very grateful to hear the Secretary of State say that, because this issue was flagged up by the Select Committee on Justice in our report. If he is going to say that it is his intention to exclude those vulnerable road users from the Bill, that would be a most welcome recognition by the Government of the evidence on the matter.

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[Mr Gauke]

I think that it would be fair to say that personal injury lawyers have demonstrated adaptability in recent years and that the sector has proved to be resilient. Of course, the purpose of our compensation regime and insurance system is to ensure that those who should be compensated are compensated, and that is what we seek to do. As I said in response to the intervention of my hon. Friend the Member for Henley (John Howell), it is also right that we do not over- compensate.

The Bill contains provisions requiring the Lord Chancellor to review the rate promptly after Royal Assent and then at least once every five years, again providing greater certainty and clarity. Following amendments accepted by the Government in the other place, the first review will continue the current arrangements under which the Lord Chancellor consults the Government Actuary and Her Majesty’s Treasury before setting the rate. This will enable the benefits of the new system to be realised as soon as possible. All further reviews by the Lord Chancellor must be undertaken in consultation with an independent expert panel, chaired by the Government Actuary.

I stress that the Bill will not change the important role played by periodical payment orders, which account for a significant proportion of the compensation paid for future loss in cases involving the most serious and life-changing injuries. PPOs protect claimants against the risk inherent in relying on the investment of lump sums to produce a stream of income to meet their needs as they arise. PPOs are and will remain available in the vast majority of the highest-value NHS clinical negligence claims against hospitals, including those involving brain damage during childbirth, and in the large majority of long-term serious injury cases where the defendant is insured by a UK-regulated insurer.

[Robert Neill]

The Lord Chancellor is being very helpful. I welcome what he says about periodical payment orders, because they are a significant transfer on to the insurance company away from the person who is awarded, in terms of both investment and the longevity risk. Will he make it clear—as the noble Lord Keen indicated in the other House—that when he sets the discount rate, having taken the advice of the panel as part of the Government action, he does so as Lord Chancellor in his own right, and not on behalf of the Government? That point was raised by a number of noble lords in the other House when it was said that this decision is taken not for Treasury or governmental reasons, but on the basis of that advice, by the Lord Chancellor in his capacity as Lord Chancellor, almost quasi-judicially.

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

This important Bill touches upon significant issues of civil liability and the way in which we treat of them. The Justice Committee considered both parts of the Bill, and I will refer shortly to our reports in those two regards, but I must first refer the House to my declaration in the Register of Members’ Financial Interests.

First, on whiplash, is there a problem with fraudulent claims? My judgment based on looking at the evidence is yes. I say that not least because I have over the past few weeks received cold calls of the kind that other hon. Members have mentioned asking me to make claims relating to accidents that never happened. Some of the debate in the other House indicated the same. Practitioners know that it happens, but the extent of it is harder to measure. We then have to consider whether the measures in the Bill are proportionate to deal with the mischief, because the limitation that could be put upon the honest claimant must be proportionate and acceptable to deal with the vice of the dishonest claims. The Government must be careful in how they draw forward the evidence base on that.

It is pretty clear that there is a significant and persuasive disparity between the number of accidents and the number of claims. On balance, I am rather in agreement with Lord Hope of Craighead, a former justice of the Supreme Court, who said during the Bill’s proceedings in the other place that the Government had

“said enough to persuade me that it is necessary to do something to try to minimise the abuse that has given rise to such a large and disproportionate number of whiplash claims. The abuse has been going on for some considerable time, and it is time that something was done to address it.”—[Official Report, House of Lords, 24 April 2018; Vol. 790, c. 1490.]

I am happy to go with that. He is a highly experienced judge. I would also pray in aid Lord Judge, the former Lord Chief Justice of England and Wales, who said that

“some claims absolutely reek of fraud”.—[Official Report, House of Lords, 12 June 2018; Vol. 791, c. 1599.]

However, that does not mean that we should assume that everything that is asserted in terms of the benefits will necessarily follow. Like my hon. Friend the Member for South Leicestershire (Alberto Costa), I was sceptical of the evidence of the ABI witnesses, and I found the Medical Protection Society more persuasive. It is therefore important that the Government rigorously monitor such claims and that there is a genuine hold on whether they are actually passed on. That is why there should be some independent monitoring, which the Justice Committee suggested could involve the Financial Conduct Authority as well as the Ministry of Justice, to hold the insurance industry’s feet to the fire.

Secondly, when they are brought in, the tariff levels will be a departure from our norm, although it does happen elsewhere. It is most important that the judiciary are fully consulted on the setting of those tariffs, and I am glad to see the Government recognise that that is the right way to proceed.

Thirdly, in raising the small claims limit, it is most important that we take on board the senior judiciary’s significant evidence on the potential impact in the courts, to which our report refers, and the dangers that will happen if litigants in person—genuine litigants in person—have difficulty navigating the system, which may have the unintended consequence of placing additional burdens on the Courts Service. I recommend the evidence of both the hon. Mrs Justice Simler and his hon. Judge Nigel Bird to our Committee on those matters, on the outworking of the online portals for such claims and on the way in which that matter should be taken forward.

I am glad the Government have agreed to remove vulnerable road users from the Bill, which is an important recommendation of the Select Committee, but they should also consider the position of other claims that are more complex than the normal straightforward whiplash and soft tissue injury claim. In particular, they should consider where we should set the appropriate limit in relation to employment liability and public liability, which almost invariably create more complex issues. It is much harder to expect people, on an equality of arms basis, to deal with issues arising collaterally from the main point in such cases. As the Bill proceeds, we need to look again at how we handle that.

Those are all important issues. It is important that the Civil Procedure Rule Committee is consulted on how those matters should be taken forward. We refer to that in our recommendations, too. None of those is a reason for rejecting the Bill but, frankly, there are areas where the Government need to strengthen the evidence base. Purely relying on the insurance industry is not enough. There is other evidence for strengthening the case on which the Government could rely, and they need to make sure they get the balance right.

The Justice Committee also considered the discount rate, which on balance is a sensible proposal. There was debate among the witnesses who gave evidence to the Committee and among the members of our Committee as to where to pitch it between very risk averse and risk averse. The proposal is realistic, and it is worth observing that the noble Lords who served in the Wells v. Wells case accept that it is appropriate sometimes to revisit the basis of that ruling. We have to reflect real-life practice, so I do not think that is a problem.

I am pleased there will be greater transparency on the way in which the discount rate is set, and all practitioners recognise the value in having a regular reset of the discount rate, rather than having it drift on for a number of years, as it has in the past. If the Lord Chancellor, as I am sure he does, acts independently of Government in a virtually quasi-judicial role and takes proper advice, for which he is accountable to Parliament, it would give us a better system for dealing with the discount rate in future.

I very much agree with the points about periodic payment orders, which should be encouraged more, and there should be much more uptake, as they move risk away from the injured party and towards the insurance company because they are effectively a form of annuity.

We need to do much more to clamp down on cold callers and on the operations of claims management companies, about which my hon. Friend the Member for Croydon South (Chris Philp) made sound points with which I am much agreement. We also need to look at the role of McKenzie friends, particularly paid McKenzie friends, many of whom work for unscrupulous claims management companies and claim to be qualified when they are not. We should probably move to outlaw the use of paid, as opposed to unpaid, McKenzie friends—there is an important difference.

There is much good in the Bill, but there are also things that need to be considered as it goes forward.

Privately Financed Prisons

Robert Neill Excerpts

Wednesday 27th June 2018 Commons Chamber

[Rory Stewart]

To some extent, we are going over old ground again. The key, I believe, is to focus on the results on the ground. Let us start with the hon. Gentleman’s final question. We should really be judging Serco’s, Sodexo’s and G4S’s performance in prisons by what they are currently doing in prisons. Nearly 25 years of experience now lie behind this. We have a highly experienced Department. There are 14 privately run prisons with very clear key performance indicators. The inspection reports on those prisons are strong—some are among the cleanest and best run in the country, with very good scores from the inspectors on decency, purposeful activity and resettlement.

To clarify on the issue of Carillion, yes, the company was losing approximately £15 million a year on that contract, but the taxpayer was not losing that money. Carillion was bearing the cost. The taxpayer was effectively saving £15 million a year on that contract. At the same time, I agree that we need to take a lesson from what happened, look carefully at the financial viability of these companies and look at their performance in prisons.

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

I warmly welcome my hon. Friend’s statement, as I did everything that he said about the Government’s approach to prisons at the Justice Committee yesterday. Does he agree that anyone who takes an interest and has regularly visited prisons will be aware that the successes and failures within the prison estate have nothing to do with ownership? He has cited two examples of excellent private sector provision; as a south-east London MP, I am well aware of Thameside myself. Does he agree that what we really need to do across the House is make the case that prison reform is in the interests of society and victims, rather than going down ideological side tracks?

[Rory Stewart]

I think that is something we share across the Benches. Both sides of the House share a common desire: to reduce crime and reoffending, and turn around people’s lives. It is a terrible waste that nearly 40% of our prison population have been in care, that nearly 50% have been excluded from school, and that the literacy level of nearly 50% is lower than that of an 11-year-old. The rates of reoffending have been stubbornly high for 40 or 50 years.

We need to work together to crack these problems. Decent, clean, well run and well managed prisons are part of the key. Another part is getting cross-party consensus on the difficult and brave political choices required to begin to reduce the prison population and protect the public through a reduction in reoffending.

Oral Answers to Questions

Robert Neill Excerpts

Tuesday 5th June 2018 Commons Chamber

[Dr Lee]

In the past 10 years, the number of young people we have been locking up has decreased from more than 3,000 to under 1,000. As a consequence, we have been left with young people who are quite difficult to manage, which is why we are introducing secure schools to improve the recidivism rates to which the hon. Lady refers.

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

I welcome the work that the Minister has done in this field, but does he agree with the Justice Committee’s report published a year or so back, which found that a number of the drivers involve many agencies outside the traditional criminal justice system, including education and health, and that they extend beyond the current statutory definitions of young people and youth justice? Does he agree that we therefore need a much more holistic strategy for young people, from the moment they enter the criminal justice system up to around the age of 25, at which point all the evidence suggests that maturity tends to have reached its full development?

[Dr Lee]

My hon. Friend asks a telling question, as ever. Yes, I am persuaded on the question of maturity, and this is something that the system currently reflects. We have youth offender institutions for those aged up to 18, and for those aged 18 to 21. Beyond 21, offenders enter the adult estate. Yes, we need to adopt a more holistic approach to the management of young people. That is why, since I have been in post, I have had meetings with Education Ministers, with Health Ministers and with Ministers in the Ministry of Housing, Communities and Local Government. I continue to pursue this actively.

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

Will the Secretary of State confirm that the single departmental plan means that greater priority will be given to developing robust non-custodial sentences to divert those whom it is not necessary to send to prison in the first place?

[Mr Gauke]

Yes.

Criminal Legal Aid

Robert Neill Excerpts

Tuesday 8th May 2018 Commons Chamber

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

It is a pleasure to follow my Justice Committee colleague, the hon. Member for Enfield, Southgate (Bambos Charalambous).

It is important that we are having this debate. I refer Members to my declarations in the Register of Members’ Financial Interests, and to the fact that I have the honour to chair the Justice Committee. During the last Parliament and the one before it, the Committee considered a number of issues affecting remuneration of the Bar and the way in which we operate our criminal justice system, as well as broader issues, and we heard a great deal of evidence. There is no doubt that the debate touches on very serious issues to which there are no easy answers, but it is also a specific debate about a specific statutory instrument. I will therefore do my best, in the time available, to confine myself to its specifics, but I think it right to give a little of the context.

I speak as someone who practised for 25 years at the criminal Bar, who regards it as one of the finest things someone can do, who has friends still in practice at the Bar, and who is conscious of the hours that are worked and the things that are thrown at people at the last minute, that it is a demanding profession and is not well rewarded—and, arguably, is not rewarded as well as it should be in the circumstances. But we should take a step back from that, because some of the things we are talking about have, I regret to say, always been there. The last minute brief was a feature of my very early days in practice and continued all the way through it, and the large quantities of unused material that people were never paid for reading have also always been a feature of the scheme.

I do think, however, that we should perhaps look at future designs of the scheme now, because of the issues we have found around disclosure, which is ever more important and has grown with the use of digital and online material. We need to look again at whether it is reasonable not to fund people for reviewing the disclosure in these cases. I am conscious of that because I prosecuted a case which we rightly abandoned upon its second appeal when disclosure that should have been made was finally—some years too late, I am afraid, for the person serving the sentence—made to us. So we do need to take that seriously, but, again, it is not a part of the debate on this statutory instrument. That system has always been there, and revoking this statutory instrument will not solve the issue of payment for people dealing properly with disclosure, nor will it solve the issues of the late return or the late nights that we have always been used to. Those are broader matters.

It is also worth observing that the pressure on incomes at the criminal Bar, which I accept has been real and not made easy by extraneous factors such as the cost of training, has not occurred only under this Government or the coalition. The hon. Member for Enfield, Southgate referred to there being no increase in fees since 2007, but, going back further, the squeeze at the Bar started under the Blair Government, from 1997 onwards, so the idea that this has been placed upon the Bar by the current Government is not fair and is not based on the evidence.

It is clear that the Bar now has issues with the scheme. I am deeply saddened that colleagues and friends feel unable to accept work under the scheme. Is it perfect? No, I am sure it is not. Would it be better if more money could be found? Yes, I am sure that it would be. Is revoking the instrument going to solve that? No, I do not think it will. We need a much broader and maturely based debate about that.

I particularly take note of the intervention of my right hon. and learned Friend the Member for North East Hertfordshire (Sir Oliver Heald), who was the Minister at the time and whom I have known since my earliest days at the Bar. I know he is an honest and trustworthy man and when he says that there was a real and genuine attempt to engage the professions in this, I know he is telling the truth. It is also worth bearing in mind that the best evidence is sometimes what is said at the time, and we have a number of quotations from that time that show very clearly that all the representative bodies at the Bar gave a broadly favourable welcome, on the basis that it was not perfect—they did not pretend it was—but it was an improvement on what was there.

The chairs and membership of the Bar Council, the Criminal Bar Association and other representative bodies change annually. They cannot bind their successors and attitudes change, and I am not going to speculate on that. However, it is unfair to say that this was brought in by the Government against a backdrop of universal hostility, because that is not the case; broadly, a fair wind was given to it at the time. Issues have perhaps blown up subsequently, however, and many of us who keep in touch and follow this matter closely might suggest that the real problems are not purely around this statutory instrument, but that broader issues need to be addressed.

The most important things we need to do now do not include talking about the revocation of a scheme that could be improved. Instead, we must make the case for more funding for the criminal Bar. My right hon. Friend the Member for Chingford and Woodford Green (Mr Duncan Smith) talks powerfully about his own experience, and friends and children of mine suffer exactly the same difficulty. It is a lot harder to start at the junior criminal Bar now than it was in my day, and that is not a healthy situation. We need a stream of bright, talented and dedicated young people coming through, and this issue deserves a longer and broader debate, in terms of both time and context, than the narrow one we are having now.

[Victoria Prentis]

Does my hon. Friend agree that the justice system stands or falls together, and that far from being broken, it is one of the finest justice systems in the world? It is worth £25 billion a year, and we need to ensure that all levels of the Bar, and our solicitor advocates, are supported in the work that they do.

[Robert Neill]

My hon. Friend is absolutely right. There are pressures and difficulties, and some areas of the system creak, but talking it down does no justice to anyone. At the end of the day, it is an immensely better system than anything else we have on offer. If we want to look at really badly funded systems, we can look across the Atlantic and to other places, which would horrify all of us. We are not in that situation, and I do not want to get into that situation, but we will only ever go forward if we can make a measured case for why, for example, it is cost-effective to have representation because litigants in person actually burn up more time and cost than if they were properly represented, and the trials take longer. Let us make the business case around that. That will not be done, however, by revoking this instrument or by people not accepting instructions—however great the temptation—and people going unrepresented. I hope that the Bar and the solicitors will feel able to get back round the table with the Ministry of Justice.

I was concerned to hear the powerful evidence given to the Justice Committee recently by the Criminal Law Solicitors Association. It was suggested that a duty solicitor was probably less well remunerated than a teacher with comparable experience. In a competitive world, that does not seem entirely fair. They are both demanding jobs, and we need to find a constructive way forward rather than walking away from these matters.

[Bob Stewart (Beckenham) (Con)]

I have had contact with five junior criminal law barristers, and not one of them earns more than £21,000 a year. That means that after they have paid tax and expenses, they have to live on about 10 grand a year, in London.

[Robert Neill]

My hon. Friend makes an important point; it was in fact the last point I was going to make. If we are to win this debate on fairer funding, we need to get back to a more honest awareness of the realities of remuneration. The press have something to answer for in that regard. It is all too easy to talk about fat-cat barristers and the occasional £1 million-plus fee, which usually relates to a case that lasted about 18 months and was of a highly complex nature. Those sorts of cases are not around any more, for a raft of reasons, and those reports wholly misrepresent the position of the vast majority of barristers, who are working on really modest take-home incomes. Above all, we forget the level of deductions that have to be taken out. My hon. Friend’s point is an entirely fair one. I want to see more money in the system, but that will only come from having a strong and well-managed economy. I want to see more money in the system, but I do not think that this is the right way to go about it.

[Andy Slaughter]

The Chairman of the Select Committee is making a very good case, but he does not seem to be persuaded by his own advocacy. If this scheme corrects some of the anomalies of the previous scheme, it does so only by reducing the brief fees overall to below a level that was already extremely low. The purpose of annulling the statutory instrument is to make the Government go back and renegotiate on that basis. Does the hon. Gentleman not accept the logic of that?

[Robert Neill]

I do not accept that logic, persuasive though it might be, because annulling the SI would simply put us back on to the old scheme. I would prefer to bank what we have—imperfect though it is—and move on, pressing the Government to move more swiftly than Ministers currently intend to do on the review of the scheme, and starting to talk urgently, at the earliest possible date, with the Bar Council and the Law Society about what could be changed. I want improvements as much as Opposition Members do, but I happen to think that taking an unduly partisan approach does not serve the overall purpose of the matter.

An independent Bar, and an independent and robust solicitors profession, are a critical part of the rule of law. That is what it comes down to, and I do not accept that this is necessarily a welfare state issue, although I understand the point that the hon. Member for Leeds East (Richard Burgon) made. Ultimately, this is about ensuring the rule of law. That is the most important thing, and the system does have to be properly funded. I say with some regret to Opposition Members that, although I have sympathy with many of the points made by the Bar and the solicitors in their evidence to us, annulling this SI is not the right route to go down. I would prefer a more consensual, evidence-based approach, and a calmer one. I hope that once this debate has passed, we will all be able to get down to that.

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[Alex Chalk (Cheltenham) (Con)]

When it comes to the opposition to the changes to the graduated fee scheme, the Government are entitled to feel a little perplexed because the changes were discussed with the leadership of the Bar. Francis Fitzgibbon, QC, then chair of the CBA, said that

“the CBA believes that the new scheme is a great improvement on what has gone before, and we should at least give it a cautious welcome as a step in the right direction.”

Secondly, the aim of the changes, to rebalance public funding so it rewards the junior Bar more fairly, is unassailable. On that point, I will support the Government tonight.

It would be a great mistake to misread the message coming from the Bar, because my clear sense is that its protest is not really about the intricacies of these specific provisions. Instead, it reflects years of pent-up anguish and frustration about the state of the criminal defence profession and, indeed, a profound sense of foreboding for its future.

The Bar is in a fragile state and needs decisive support, but it does not lie in the mouth of the Labour Opposition to make criticisms about on that, because I know full well from having been a practitioner at the time that, at a time of rising budgets across the piece in health and education during the late 1990s and in the first decade of the 21st century, Labour failed time after time to put more money into the Bar. In 2003, Tony Blair spoke of the “gravy train” of legal aid. In 2006, Lord Falconer referred to the legal aid bill as being “unsustainable”, and there were further plans to cut it in 2010. One has to consider those remarks with great care.

I wish to make some brief observations in the time available; I wanted to say a lot more but I shall confine myself to this. When considering the amount we spend on justice and legal aid, we should put it in context. Treasury Red Book figures show that total public sector spending for 2018-19 is expected to be £809 billion. The total Ministry of Justice budget is less than £7 billion. To put that in context, more is spent on welfare and pensions in two weeks than is spent on justice, and the amount spent on international aid—about £14 billion—is approximately double the entire justice budget. To put it another way, we spend more on the aid effort in Syria alone than we do on the entire legal aid budget in our country.

There are concerns about where this all heads. There will be difficulties with recruitment and retention, and we cannot have a situation where this is a just a job for posh kids with a private income. There is also a risk of injustice. If people are not available to do the work we require them to do, it will not just be a case of people being convicted when they should not be; there is a danger of people not being convicted if juries take matters into their own hands and decide that they want to deliver their own brand of justice.

I am not suggesting this is easy at all, but I want to make three simple points. First, if the criminal Bar falls over, the cost to the state will increase dramatically. The overheads involved in employing hundreds of barristers in a fully fledged public defender service will be extortionate and unaffordable. Secondly, the culture will change, and people will be far less likely to work after-hours and at the weekend. Thirdly, the sums of money required to secure the criminal Bar are modest. Barristers are not seeking wealth; they are seeking viability.

[Robert Neill]

My hon. Friend is absolutely right on that last point about the motivation of barristers. Does he agree that one of the important qualities that the independent Bar brings, as indeed does an objective solicitor, is precisely that word—objectivity? The objectivity brought by a barrister has been seen in many cases, for example, those where disclosure failures have occurred, and in the willingness to root out what is absolutely necessary, fearlessly, on behalf of a client. That cannot be replicated.

[Alex Chalk]

That objectivity is vital. In the United States, they have dyed-in-the-wool prosecutors. I remember the case of Michael Jackson, with Tom “Mad Dog” Sneddon; all these people do is prosecute. One great value we have in this country is that people prosecute and defend. That level of objectivity is fantastic. It also means that people are incentivised to go the extra mile, because you are only as good as your last brief.

The criminal Bar is precious. This is not about sentiment. This is a flinty-eyed assessment of a real and pressing need. Once this matter is over tonight—I will vote with the Government, because the Opposition’s proposal is, with respect, misconceived—I urge the Government to look again at how the criminal Bar can be supported, as there is a pressing need.

Oral Answers to Questions

Robert Neill Excerpts

Tuesday 24th April 2018 Commons Chamber

[Mr Gauke]

The hon. Gentleman makes an important point. We are refreshing the way that training works for prison officers. It is very important that we deal with the issue of drugs, which has been a real game-changer in its effect on prisons. As we change and refresh our training process, we need to ensure that new prison officers have the skills they need to deal with drugs.

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

The net increase in the number of prison officers is very welcome, and I particularly welcome the Secretary of State’s reference to a key workers scheme, but does he agree that the mix of the workforce is important? Successful key worker and personal officer schemes will depend on having experienced staff, because they are best able to develop relationships with prisoners and deal with violence, the risk of suicide and other issues. Will a strategy now be put in place for the retention of existing staff, perhaps with incentives to encourage good people to remain in the service?

[Mr Gauke]

My hon. Friend is right; it is important that we not only recruit new staff, but retain existing staff. We are working closely with those prisons that are failing to retain staff. It is worth pointing out that in 2017 the percentage of prison officers in bands 3 to 5 who left the service was 9.7%—higher than we would like it, but not particularly out of line with other employers. Prison officers do a very valuable job, and we need to recognise that, support them and encourage those who have a lot to offer to continue to serve.

--- Later in debate ---

[Mr Gauke]

We will be updating the House in due course.

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

A year ago, virtually to the day, the legislative provisions of the Prisons and Courts Bill, which are necessary to implement Lord Briggs’s review of civil court structure, were lost in the Dissolution of Parliament. These important reforms are pressing and needed. Can the Secretary of State update us on when the Government intend to reintroduce legislation to enable the reforms to be progressed?

[Mr Gauke]

What I can say at this point is that I think we need to bring forward a number of aspects of that to help to modernise our court system. I hope to be able to make progress on that in the coming months.

Leaving the EU: Justice System

Robert Neill Excerpts

Thursday 29th March 2018 Westminster Hall

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

I beg to move,

That this House has considered the Ninth Report of the Justice Committee, Session 2016-17, implications of Brexit for the justice system, HC 750, and the Government response, HC 651.

It is a pleasure, Ms Buck, to serve under your chairmanship.

I am grateful for the opportunity to raise this very important issue here in Westminster Hall, and I thank all members of the Select Committee on Justice—both past and present, and many of them are here today—for the input that they made to our report, which of course was initially produced in the 2016-17 Session.

We received the Government response to our report on 1 December last year. I am glad to see the Under-Secretary of State for Justice, my hon. and learned Friend the Member for South East Cambridgeshire (Lucy Frazer), in her place today. She has joined the Department since that date, so if I press a little harder on some things than on others, I am sure she will understand that they are not meant in any personal spirit. I think she also understands, from her own experience at the Bar, why there is a great need for more precision and more detail about what is going to happen.

I can perhaps encapsulate the Committee’s concerns following the Government’s response to our report by saying that the response is long on good intentions and on setting out an ambitious vision, but short on specifics and the details of how that ambitious vision will be achieved, and there is a concern that it may not be realistically achievable. The European Parliament’s response earlier this month indicates that it is by no means persuaded that all of the Government’s ambitious ideas for taking this matter forward will be achievable. We need what the Government have set out to be written—or rather painted—in the boldest red ink.

I suspect, given the tenor of the Prime Minister’s Mansion House speech and subsequent events, that we will be pragmatic about some of these issues—indeed, both sides will need to be pragmatic. Because the law depends above all upon certainty, we will have to come to decisions and pragmatic compromises sooner rather than later. My objective in today’s debate is to press the Government further on the need to be more precise and specific about exactly how we will deal with these matters, and also, perhaps, to inject a sense of urgency.

Of course, I ought to refer to my entries in the Register of Members’ Financial Interests, although I do not practice law now. There is concern about the economic position of the English legal services sector post-Brexit. We had a debate about that yesterday in Westminster Hall, and I am grateful to the Minister for her response then. I am sure that we will want to discuss that matter further. I will not dwell on it in detail now, but it indicates how we need to be alert and on our guard if we wish to continue to protect the pre-eminence of our English legal system. It certainly enjoys international pre-eminence at the moment—it is the jurisdiction of choice for international commercial litigation and, of course, is regarded as a gold standard in independence, fairness and integrity. As I say, we have to be on our guard in case, post Brexit, other jurisdictions seek to compete with us—legitimately enough, from their point of view—because international commercial litigation, and particularly the variety of international contracts, is a competitive matter.

I notice that there is now an English language and English commercial law court being opened up in Paris. I must say that those of us who have practised in some of the Crown courts on the south-eastern circuit might have found the idea of a brief to go to Paris quite an attractive proposition by comparison to going, say, to Havering magistrates court. However, this is not an entirely jokey matter, because, as was indicated in the debate yesterday—I will not repeat all of my remarks from then—the English legal services sector is a very significant revenue earner for this country. I should say the British legal services sector, of course, as we should not forget Scotland in this regard. But there is a much broader issue here as well, which is encompassed in our report. A number of my hon. Friends want to talk about some of the specific matters in our report, so I will perhaps sketch over some of the broad outlines.

I have indicated our firm view that we need more detail, more precision and a greater sense of urgency. We must have assurance from the Government that legal issues are being entirely mainstreamed into the work of the Brexit negotiations. The Ministry of Justice has helpfully set up a legal services working group, but this is not just about legal services; it is also about the impact upon the judiciary and the operation of the courts, which, ultimately, are perhaps even more significant.

I know that the senior judiciary are extremely alive to this issue and are doing a lot of work on it themselves. However, I submit that, consistent with maintaining the judiciary’s independence, we need to find a means whereby the judiciary’s practical views and experience are genuinely fed in to those who are negotiating, for example, on our future relationship with the European Court of Justice and on how we deal with retained law, which I will come back to in a moment. I have to say that I am not yet convinced, whatever the good intentions and hard work of the Ministry of Justice, that that is fully feeding in to those who are negotiating for us through the Department for Exiting the European Union and in Brussels. The Government need to address that urgently. It seems to the Committee that we need clarity on those key issues of the position vis-à-vis the ECJ and retained law. There is still real concern about the effectiveness and adequacy of the provisions in clause 6 of the European Union (Withdrawal) Bill.

It is instructive, perhaps, to look at the evidence of the President of the Supreme Court, Baroness Hale of Richmond, given on 21 March, which is only about a week or so ago, to the Constitution Committee of the other place. In essence, the position is that at the moment, clause 6 gives what on the face of it would appear to be wide discretion in how the British courts will apply and have regard to European Community law once we have left. There is a perfectly understandable precedent, of course—it is perfectly well established that British courts will take into account relevant law from other jurisdictions when it is applicable to the facts and law of the case that they are considering.

However, there is a difficulty. There are phrases in the Bill stating, for example, that a tribunal “may have regard” to European Community law—there are those terms, “may” and “have regard”—but then there is a get-out clause stating that it

“need not have regard to anything done on or after exit day by the European Court, another EU entity or the EU but may do so if it considers it appropriate to do so.”

The President of the Supreme Court said that she found that drafting “very unhelpful”. If the President of the Supreme Court says that, the Government ought to sit up, take notice and do something about it.

[Alex Chalk (Cheltenham) (Con)]

My hon. Friend is making a really powerful point. Is not the issue here that judges do not want to be dragged into the political arena? Although courts have shown themselves well able to look at other jurisdictions for a potential steer on how to interpret things, when it comes to the EU the process is so overlaid with politics that judges could find themselves accused of becoming, in the phrase that we have heard, “enemies of the people”. We should not be in that field, and judges deserve the protection of knowing exactly what they are required to interpret.

[Robert Neill]

My hon. Friend is absolutely right, and the importance of that point cannot be overstated. I am absolutely confident that the Minister gets that point entirely, because we saw utterly disgraceful attacks by some of the press upon the judiciary for carrying out their constitutional task. Those words should never have been said, and I am glad to say that the current Justice Secretary and Lord Chancellor has made very clear his support for the independence of the judiciary and the respect with which that independence should be treated. I know that the Minister entirely shares that view.

My hon. Friend the Member for Cheltenham (Alex Chalk) is quite right. Broad wording on such a political topic lays the judges open to such things, because if they are obliged to act according to the clause that I mentioned—as they will be if it is passed in its current form—they will inevitably run the real risk of being accused of having taken, in effect, political decisions. That is why the President of the Supreme Court spoke in the way she did. She said:

“We don’t think ‘appropriate’ is the right sort of word to address to judges. We don’t do things because they are appropriate, we look at things because they are relevant and helpful. We do not want to be put in the position of appearing to make a political decision about what is and is not appropriate.”

That is exactly the point that my hon. Friend made so powerfully.

I know the clause is being debated in the other place, but as it stands it just does not give judges the protection to which they are legitimately entitled. I hope the Government will address that as a matter of urgency. That is not only the view of the current President of the Supreme Court; it has been echoed by her predecessor, Lord Neuberger, and by the previous Lord Chief Justice, Lord Thomas of Cwmgiedd. That is overwhelming and compelling evidence that there has to be movement on this point. It is time for the Government to do that. I suspect they would find good will across the House if they could find a means of properly addressing those concerns of the judiciary—one has to stress that those are their concerns.

The Attorney General said it was not the Government’s desire to put judges in that position. I entirely accept his good faith in that. He said:

“We will continue to work with them to provide the necessary clarity.”—[Official Report, 22 March 2018; Vol. 638, c. 389.]

That is good, but it has to be translated into legislation that is fit for purpose. We are not at that stage yet, and we need much more clarity. I hope that the Minister will be able to deal with that point and take it back to the Attorney General and those dealing with the Bill.

The issue of how we deal with the ECJ is important, but we also need to be realistic. If we want to continue some of the partnership arrangements we have, there will have to be dispute resolution processes. All the agreements will need an arbitral mechanism. I hope the Government will take on board the strong views of legal practitioners across the country that a desire to displace any role for the ECJ—as opposed to removing “direct jurisdiction”, to use the Prime Minister’s phrase, which is a different concept—may create more difficulties than is worthwhile. There are perhaps some limited areas, such as the interpretation of specific matters of financial services regulation and some matters of data regulation, where there might be sense in making a pragmatic compromise rather than having to set up a number of ad hoc arbitral mechanisms such as tribunals or whatever we might call them. That is a key and pressing issue.

There are other issues that concern the Committee on how we will deal with criminal justice and judicial co-operation. They have already been addressed at some length, and I know other colleagues will deal with them today. The point I stress is that the Prime Minister has already indicated her firm and resolute intention to have an ongoing agreement so that we can share in police and judicial co-operation and security co-operation. She is absolutely right to do that, and I support her in doing so, but we have to be realistic. If we are to benefit from such things as the European criminal records information exchange system, the work of Europol and the information exchange that is so critical to the pursuit of modern crime—whether that is terrorism or organised crime of other kinds—we have to have our data arrangements aligned. That must inevitably mean following the EU27’s data regulation and any jurisprudence that subsequently develops that touches on that. Otherwise, with the best will in the world, the police and security agencies in those EU27 countries, which include some of our most vital partners, will not be able to share information with us lawfully. We do not yet have clarity over how that will be dealt with, and we must have that swiftly.

There is also the issue of civil and family justice co-operation. I mentioned the importance of the civil sector, but we have to ensure that we have a firm arrangement for the mutual recognition and enforcement of judgments. That is certainly important for the commercial litigation sector, but it applies to all contractual arrangements. If someone has a contract, they want to be able to sue if it is breached. There needs to be a remedy that can realistically be enforced. We must have more clarity on that. As I have observed on more than one occasion, there are literally thousands of UK citizens—as it happens, most of them are mothers—who benefit from the ability to have maintenance payments enforced against former partners now living in other EU jurisdiction countries. It is unconscionable that those people, working hard under difficult circumstances, would lose the ability to have those payments enforced by a simple blanket mechanism. Warm words are not enough. That needs to be sorted out before we finally leave, whether that is in transition or the end state.

I hope that is a sufficient overview of some of our areas of concern and why we are pressing the Government on them. I look forward to the Minister’s response and the other contributions from colleagues on some of the other specific areas of this important debate, which I have no doubt the Justice Committee will return to in the coming weeks and months.

--- Later in debate ---

[Yasmin Qureshi (Bolton South East) (Lab)]

It is a pleasure to serve under your chairmanship, Ms Buck. I thank the Chair of the Justice Committee, the hon. Member for Bromley and Chislehurst (Robert Neill), and the other members of the Committee for their excellent report. I was a member of the Justice Committee from 2010 to 2015 and remember many such excellent reports.

The UK’s status as an international hub for legal and financial services and its attractiveness to businesses depend not only on access to the EU legal services market, but on its close and comprehensive cross-border and civil judicial co-operation. I will start by concentrating on three areas that most hon. Members have spoken about. First, in relation to civil justice, we are in a unique position where the judgments of our court are enforceable both in European Union member states and in many Commonwealth states. That is very important for the UK’s role as a hub for international litigation. Therefore, it is critical for British citizens, businesses and institutions that the Government maintain our position.

In civil and family law, European Union regulations provide certainty on what jurisdiction should hear disputes while allowing for the automatic recognition and enforcement of judgments throughout the EU. Does the Minister share our concern that cross-border divorce and child custody disputes could become much more difficult unless Britain can secure effective judicial co-operation arrangements with the European Union after Brexit?

Many hon. Members spoke about the criminal justice system. We must remember that crime, and especially more serious and organised crime, increasingly does not recognise national borders. Even the less serious crimes are increasingly likely to have a cross-border element. Foreign nationals who commit crime in the UK often flee abroad, and some crimes can be committed easily across national boundaries, such as child exploitation, fraud and identity theft. In the UK, there has been a massive increase in people trafficking offences. Police and the judicial authorities need to be able to co-operate internationally to combat crime and bring perpetrators to justice.

I hope the Minister agrees that co-operation through case-by-case contacts or even bilateral agreements is likely to be more cumbersome when we are out of the system, especially where several states are involved. Under our European Union framework, we have co-operated through mutual recognition of key elements of one another’s systems, with minimum standards applicable in all states for certain factors, together with mutual legal assistance measures that are understood and applied in all the member states.

As we withdraw from the European Union, can the Minister assure the House that her Government will secure the speedy arrests of suspects wanted by the British police with minimum bureaucracy via the use of the European arrest warrant? Does the Minister agree with the assessment of the EU Home Affairs Sub-Committee, which states:

“Any operational gap between the European Arrest Warrant ceasing to apply after Brexit and a suitable replacement coming into force would pose an unacceptable risk to the people of the UK”?

Given that it took Iceland and Norway 13 years to negotiate extradition agreements with the European Union, does the Minister believe that there will be a gap between the UK leaving the European arrest warrant and agreeing a replacement system?

What assessment has the Minister made of the impact on victims if there is no European arrest warrant agreement after the UK leaves the European Union? What are the Government’s proposals to deal with cross-border investigations into drug cartels, people trafficking networks and fraud? Will we be in a position to secure evidence from overseas using the mechanisms currently in use in the European Union? What mechanisms will be put in place so that we can rapidly access fingerprinting and other identification databases for overseas convictions, sentencing and other purposes, to which we currently have access? I am sure the Minister is aware of the growth in co-operation through Europol, Eurojust and the European Public Prosecutor, which has made it easier to deal with crime, especially when it crosses borders. What is the Government’s plan to replace those institutions or fill the gaps left by them?

The UK legal services market is worth £25.7 billion in total, employing 370,000 people and generating an estimated £3.3 billion of net export revenue in 2015. Central to that market is the ability of barristers, solicitors and other legal professionals to provide legal services in the EU. Equally important is the fact that, our exporters’ confidence in doing business abroad depends greatly on the ability of their lawyers to establish and provide services in the countries in which they seek to trade and invest. Numerous aspects of barristers’ and solicitors’ work will no longer be possible if we leave the European economic area, unless current cross-border rights are preserved.

Does the Minister agree that, in formulating their negotiating strategy, the Government should have regard to the nature of the legal work that comes to the UK as a consequence of the UK legal profession’s expertise, not least in European Union law? What measures are the Government taking to maintain cross-border legal practice rights and opportunities for the UK legal sector, given efforts by European Union law firms to use Brexit to win clients from UK competitors?

The European Union charter of fundamental rights sets out a range of civil, political and social rights enjoyed by European Union citizens. Why does this Government’s policy of incorporating EU law into UK law exclude the European Union charter of fundamental rights? Does the Minister agree that, in the light of everything said in the debate, there must be a continuing role for the European Court of Justice during this time?

Labour’s view is that, beyond a transitional phase, we would seek a shared court-like body to oversee disputes and enforce rights and protection. Obviously, the precise nature of this shared court is subject to negotiation. We are flexible about how that would be achieved. It is important that there is an independent court to oversee the close new agreement we reach with the EU. It is vital that that is done to ensure that individuals, institutions and countries can enforce and protect workplace rights, consumer rights, environmental rights and more.

[Robert Neill]

I have been listening with great care to the hon. Lady’s speech and I very much welcome the approach that she has adopted. She talks about a future court to enforce these matters, for which I have much sympathy, but does her party rule out participation in the EFTA court as being a potential solution to the problem she rightly highlights?

[Yasmin Qureshi]

I understand the hon. Gentleman’s question. Our position is that there should be a system. What that system entails and how it works is subject to negotiation, but we should have something that makes it easier to resolve issues.

In concluding, I want to summarise some of the things that hon. Members mentioned. My right hon. Friend the Member for Delyn (David Hanson) spoke about very important crime issues. My hon. Friend the Member for Enfield, Southgate (Bambos Charalambous) talked about the legal services sector and how we are ahead in it. My hon. Friend the Member for Stretford and Urmston (Kate Green) rightly spoke about the impact of our leaving the European Union on children and their rights. The hon. Member for Cheltenham (Alex Chalk) made the interesting point that crime, civil justice, children’s rights and legal services should not be bargaining chips, but should be placed on a separate track and taken out of the contentious political debate. That would be a helpful way forward. The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) rightly raised the impact on Scotland.

Everyone is aware that numerous treaties will have to be made to cover each and every area of law we have talked about. We will need not one set of treaties but treaties with 27 or 28 countries, with some opting in and some opting out. It will be a lengthy and complex process. I reiterate the questions asked earlier. How far have the Ministry of Justice and the Government got with drafting the relevant legislation and treaties? Which have been written and which have not? How are they progressing? When will they come to Parliament for debate? When will we be able to feel that these things will happen? Real issues have been raised, and many Members feel that, when we leave, we may be without the systems we currently have that make the criminal and civil justice systems much easier to deal with.

[The Parliamentary Under-Secretary of State for Justice (Lucy Frazer)]

It is a pleasure to serve under your chairmanship, Ms Buck. I congratulate my hon. Friend the Member for Bromley and Chislehurst (Robert Neill) on securing this debate—his second in two days—on a very important subject. I also thank him and his fellow Committee members, past and present, for their important report of March last year.

As a former barrister, I fully understand the importance of obtaining the right deal for the justice system as we leave the EU. My hon. Friend the Member for Cheltenham (Alex Chalk) made a powerful speech about the many reasons why our justice system is important, and I agree with him. The Government recognise the importance of the legal sector. I know that because the Prime Minister highlighted it earlier this month in her Mansion House speech. She not only referred specifically to the importance of civil judicial enforcement and the mutual recognition of qualifications, but identified a few areas where the UK and EU economies were linked, one of which was law.

Before I deal with the issues Members raised, let me show how the Government have listened to the important points made by the Justice Committee and others. In its report, the Committee stated that we need certainty during any implementation period and that we must recognise the importance of criminal justice, and of mutual recognition and enforcement. It also highlighted the role of legal services. All those points have been and continue to be listened to. On implementation, the Committee stated that it was concerned that we would move to an inferior type of arrangement for a transitional period, and that it wanted to remove the risk of uncertainty. I hope the Committee is pleased that, in the implementation period, we will ensure that we have the same common rules so that our laws remain in place. There will be no inferior relationship in that period.

The Committee stated that we should prioritise EU-UK co-operation on criminal justice and that that serious matter should be negotiated separately. My hon. Friend the Member for Bromley and Chislehurst rightly identified that the Prime Minister has recognised the importance of this area, as she did when she was Home Secretary. She said in her Munich speech that we are “unconditionally committed to maintaining” Europe’s security now and after our withdrawal from the EU because “our first duty” as a nation is “to protect our citizens”.

On commercial law, the Committee outlined that the Rome I and Rome II regulations on applicable law rules do not require reciprocity and could be incorporated into domestic law. That is precisely what the Government are doing under the repeal Bill. The Committee asked us to ensure that maintaining the UK as a first-class commercial law centre is a top priority. It asked us to protect choice of law, and mutual recognition and enforcement. It stated that we should replicate the recast Brussels regulation and remain a party to the Lugano convention and The Hague convention. The Committee knows those are our ambitions, which we highlighted in our future partnership paper, along with the close relationship we want. We very much hope that we will ensure mutual recognition and enforcement in our separation agreement for cases started before Brexit.

Members will have noted in the Prime Minister’s recent Mansion House speech her desire to reach agreement on civil judicial co-operation. She referenced Lugano, company law and intellectual property law, and stressed the need for legal certainty and coherence. We seek to continue our participation in The Hague convention and the Lugano convention.

[Robert Neill]

I welcome the Minister’s assurance that that is the Government’s intention. I think everyone regards that as essential. On the urgency of getting agreement and specificity, is she aware of the recent survey by the international law firm Simmons and Simmons of its clients in Germany, France, Italy, Spain and the Netherlands about the approach that will be taken to important English jurisdiction clauses in commercial contracts post Brexit? So much litigation takes place in the UK because contracts have clauses specifying English jurisdiction. Some 50% of those clients will move away from English law unless there is certainty soon. Good intentions are not enough. We need answers very soon.

[Lucy Frazer]

I very much understand the need for certainty and the importance of those clauses in contracts. There should be a level of legal certainty, because those contracts will be respected in the implementation period. Furthermore, as was stated—I cannot remember by whom—we can sign up to The Hague convention unilaterally. As my hon. Friend the Member for Cheltenham said in yesterday’s debate, that convention is not the gold standard, because certain types of jurisdiction clauses are not included. However, many are, and it should give business a level of certainty.

The Committee also referred to legal services. It is important that we recognise the value of that sector to jobs and our economy, and the fact that it underpins our financial services sector. The hon. Member for Enfield, Southgate (Bambos Charalambous) identified many important points about the mutual recognition of qualifications. The Prime Minister has recognised that, too. She said

“it would make sense to continue to recognise each other’s qualifications in the future.”

That has been specifically recognised in relation to our agreement on citizens’ rights. Those citizens who remain have every right to continue to practise as they do at the moment.

My hon. Friend the Member for Bromley and Chislehurst rightly identified that the European Parliament might say that what we are putting forward is unachievable. In any negotiation, I would not expect the other party and those who will be confirming the agreement to lie down and say they accept everything the UK puts forward. We must remember that it is a negotiation.

My hon. Friend mentioned competition from other jurisdictions and the Paris court. That is an important point, but we must remember that the UK is expanding its judicial offering. We have interests in Europe and in Britain as part of the EU, but recently we have also seen judicial co-operation and members of the Bar helping to establish courts in Dubai, Qatar and Kazakhstan. We can continue to thrive in those centres outside the EU.

My hon. Friend made an important point about feeding into DExEU. He can be assured that our negotiators at the Ministry of Justice are party to the teams, negotiating alongside DExEU in matters that affect justice. He should also be assured that we are discussing these important issues at ministerial level—I have had discussions with my counterpart in DExEU.

In relation to clause 6 of the European Union (Withdrawal) Bill, Lord Keen, who took the debate in the House of Lords, said clearly that the Government have heard the views expressed by Members of the House of Lords, and that we will return to that point.

The right hon. Member for Delyn (David Hanson), the hon. Member for Bolton South East (Yasmin Qureshi) and my hon. Friend the Member for Cheltenham made important points on cross-border security, including that, as a matter of principle, crime does not respect borders, and that many measures, including the European arrest warrant, are critical to our security. I was asked for a timetable. First, we were agreeing separation—budget and citizens’ rights—and have done so. Secondly, we were to agree an implementation period, and we have done that. We are now turning to the matters of the future partnership deal and security.

We want an ambitious deal. There are many examples of international agreements between Europol and other third countries, such as the US, but like both the right hon. Member for Delyn and my hon. Friend the Member for Cheltenham, I believe these matters will be solved because it is in the interests not just of us and our citizens but of other citizens.

--- Later in debate ---

[Robert Neill]

I am grateful to all Members who participated in the debate. These are important issues, which I hope we have been able to raise and stress their urgency to Government. I am grateful to the Minister for her response, which was as comprehensive and elegantly put as ever. I appreciate that she is well seized of these issues. It is important that we continue to have such debates to keep them to the fore.

[Sir Graham Brady in the Chair]

I am sure we all want the Prime Minister to succeed in her objectives, and for my hon. and learned Friend the Minister and her colleagues to be able to assist the Prime Minister in achieving them. That will happen only if we continually make the case. As my hon. Friend the Member for Cheltenham (Alex Chalk) rightly said, it may sometimes be seen as a niche topic, but it is fundamental. Without legal certainty, no international commercial arrangements can work. Without legal certainty, no form of justice or security co-operation can ultimately be underpinned. It is not a peripheral matter, which is why a separate track has been suggested to give it the prominence it needs.

I appreciate the point made about the same-state transition secured by the Prime Minister. That period is important. I accept that that gives certainty, but it takes us only up to the end of 2020 and, to give just one example, large-scale commercial litigation often takes more than two years, as the Minister will well know. It is therefore not a long period in those terms. We must bear that in mind—that is why it is so urgent.

I am delighted to see you in the Chair for the end of the debate, Sir Graham. I am sorry that you missed the advocacy fest that went before. I am grateful to all Members for their participation and I am sure we will seek to return to this matter.

[Sir Graham Brady (in the Chair)]

I will look forward to reading the proceedings in Hansard.

Question put and agreed to.

Resolved,

That this House has considered the Ninth Report of the Justice Committee, Session 2016-17, Implications of Brexit for the justice system, HC 750, and the Government response, HC 651.

Worboys Case and the Parole Board

Robert Neill Excerpts

Wednesday 28th March 2018 Commons Chamber

[Mr Gauke]

The challenge in this—having seen in this case the decision notice by the Parole Board—is that there might be, for example, information provided by the prisoner to a psychologist, as part of the risk assessment, that is deeply personal. In order to have openness between, say, a prisoner and a psychologist, it must be possible for some of that information to remain confidential, so we cannot put everything out there. Indeed, there may be information relevant to victims that they would not want to be put into the public domain. As I say, a summary of the conclusions that the Parole Board has reached should be made available. The points made by Members on both sides of the House in saying that greater transparency is needed are absolutely right.

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

I thank the Secretary of State for his very detailed and considered response to what is itself a very detailed and considered judgment by the President of the Queen’s Bench Division. It is perhaps worth observing that it is quite clear from paragraph 130 that the ground on which the Secretary of State was urged to enter the judicial review would not have succeeded.

The Justice Committee wrote to the Secretary of State yesterday raising some of the issues that he has now pre-emptively dealt with in his statement. As well as reform of rule 25 and a proper review or repeal process so that judicial review is no longer necessary in future, will he consider the observations given to us in evidence, and by the Court as well, about the importance of having forensically skilled legal representation for the Secretary of State at hearings in serious cases to test the evidence, and about the desirability of having a serving or retired judge to chair the panel in serious cases?

Leaving the EU: Legal Services

Robert Neill Excerpts

Wednesday 28th March 2018 Westminster Hall

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

I beg to move,

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

It is a pleasure to serve under your chairmanship, Mr Davies. I am grateful for the opportunity to raise the important issue of the future of UK legal services and how they are promoted after we leave the European Union.

The best way to set out the significance of this matter is to recite some facts about the legal service sector’s contribution to the UK economy and beyond. In 2016, legal activities added £24.4 billion to the UK’s national accounts. That is around 1.4% of the UK’s total gross value added. The UK legal services sector employs about 344,000 people. Most of those jobs are outside London, but of course the City of London has a huge hub of specialist lawyers who support the financial services sector. English law is the most widely used in the world, covering some 27% of the world’s 320 legal jurisdictions. More than 200 foreign law firms from more than 40 jurisdictions—all the EU jurisdictions but also, obviously, some beyond the EU—have offices in the UK. In 2016, the UK legal services sector generated £31.5 billion in revenue, £4.9 billion in total exports and net trade of £4 billion. It is forecast to produce turnover of £30.82 billion and net exports of £4.25 billion by 2020.

I say all those things as a lawyer—I refer Members to my entry in the Register of Members’ Financial Interests—but this matter goes well beyond the law and is inextricably linked to the United Kingdom’s financial and professional services sectors. Our economy is of course overwhelmingly service-based.

[John Howell (Henley) (Con)]

My hon. Friend described the contribution of legal services as a whole, but commercial law contributes a large amount to that annual income. I wonder whether he is happy with the arrangements for mutual recognition and enforcement of judgments after we leave the EU.

[Robert Neill]

My hon. Friend makes a very important point. At the moment, the UK is the jurisdiction of choice for the majority of commercial law contracts, litigation that follows from them, and commercial law arbitration, but we cannot take that for granted. A number of English language commercial courts that apply UK law have already been established elsewhere in the world. As I understand it, another is proposed in Amsterdam, which would clearly have an impact once we leave the EU. Mutual recognition of judgments is one of the UK legal sector’s key asks, and he anticipated with great timeliness that I was about to move on to what the Law Society, the Bar Council, the City of London Corporation, TheCityUK and others in the sector are looking for from the Government to maintain the position of UK legal services once we leave the EU.

The legal services sector’s key priorities are as follows. First, EU27 legal providers should be permitted to provide services in the UK, and vice versa—UK legal providers should be able to provide services in the EU27—on the basis of mutual recognition of regulatory regimes. That would enable European lawyers based in London firms and UK lawyers based in the EU27 to continue to advise and represent their clients.

Secondly, the UK and the EU27 should continue automatic mutual recognition of legal qualifications gained before and during—and after, I submit—the UK’s exit from the EU. That ought to be part of the agreement we seek. Otherwise, we would be in the perverse position that an English lawyer who, like me, is also qualified in the Republic of Ireland—I am a member of the Irish Bar—was able to continue to practise in the EU27 using their Irish qualification but not their English qualification. That is why there has been a considerable increase in the number of English solicitors being admitted to the Law Society of Ireland and English barristers seeking to be called to the Irish Bar. It would be much more sensible to retain those people in the UK as part of a mutual deal with our EU partners.

Thirdly, as my hon. Friend said, it is critical that UK court judgments can continue to be enforced in the courts of the EU27. That obviously applies to commercial law, but it also impacts maintenance payments, for example. Let us say that the partner from whom a UK national is having difficulty getting support for their child is an EU national who is living back in the EU27. Maintenance payments, like a judgment in the largest commercial litigation, can currently be enforced in any EU27 court and implemented by the authorities of any EU27 member state by virtue of our membership of the EU. One regulation covers the whole lot. It is important that we seek to preserve that arrangement. It would be extremely complicated if we had to enter into arrangements with individual EU member states, so we must try to do it en bloc.

It is also to the benefit of the EU27 to have the judgments of their courts recognised and enforced in the UK. There would be mutual advantage to preserving that arrangement, and it is most important that that is done without any break in continuity. Contracts of all manners are being entered into that, in all likelihood, will run beyond the date on which we leave the European Union. It is essential that people can enter into such contracts with sufficient certainty that they will be enforceable throughout the transition period and in the end state after we leave.

It is suggested that, as well as seeking the broadest possible deal with the European Union on that, the UK should consider re-signing The Hague convention as an independent party. I suggest that the two are complementary—it is not either/or. We are currently a party to that convention by virtue of our membership of the EU, but that will no longer be the case once we leave. I ask the Minister to take on board the concern that, in the negotiations, we should seek a waiver from the EU to allow us to re-sign as an independent party prior to Brexit so that there is no delay in ratification.

[Alex Chalk (Cheltenham) (Con)]

My hon. Friend is making a powerful case, and I entirely agree with him about The Hague convention, but does he agree that the great prize would be replicating the provisions of the recast Brussels I regulation, which derives from EU regulation 1215/2012? That is the gold standard. It is the best option, and The Hague convention is very much a fall-back provision.

--- Later in debate ---

[Robert Neill]

My hon. Friend is absolutely right—he and my hon. Friend the Member for Henley (John Howell) will be aware of the work that the Select Committee on Justice has done in this respect—which is why the first option should be to get a deal for continued mutual recognition. The Hague convention is, in a sense, a fall-back. It is not either/or—we could do the two in parallel, in the same way that we are seeking a generous agreement in relation to Euratom but also looking at the fall-back position of making our own regulatory arrangements if need be—but it would be much better if we maintained the existing mutual recognition. The Select Committee stressed that clearly in the report we published towards the end of the last Parliament on the impact of Brexit for the justice system, including legal services.

There are other key matters to stress, including the need for a system that deals with the ability of the UK to attract talent, which applies to the legal services sector. It applies to all the professions, but in the service economy our great strength is the quality of the personnel we are able to attract to the UK. Any immigration regime should therefore be so organised as to make it possible for firms easily to move staff between offices in the EU27 and the UK, and vice versa. It is also important that, as I have indicated, as well as recognition of qualifications, all existing UK lawyers practising EU law in the European Union should be able to continue to do so, and vice versa. Those are essential matters.

It is also important that we avoid any barriers and friction, to use a popular phrase, that might arise by virtue of any regulatory difficulties. Depending on our arrangements, if we do not have a comprehensive agreement and a proper partnership with mutual recognition and access, UK law firms could face restrictive regulations, preventing them from providing services and involving about 30 different regimes. We can see the complexity for firms if we do not get that solution. That is why it is important that the Government make it clear to the legal services sector that it is a priority in the negotiations.

When we talk about services, we sometimes understandably pay a lot of attention to the financial services sector, which is the biggest and most valuable part of our service economy, but the legal services sector is the critical underpinner of that sector. People come to the UK because our banks are sound and dependable, our regulatory system is perceived internationally as sound and dependable, and our legal system is seen as being second-to-none sound and dependable. It is a place where people want to litigate, and want to have their contracts written in English law. We cannot take any of that for granted.

None of that precludes us from using the opportunities that come as we leave the EU to seek to expand British legal services elsewhere in the world. It is important that the Government build on the “GREAT” campaign, with which the Ministry of Justice was associated last year. I hope it will be made clear that legal services, as a key British specialism and area of British excellence, will be a central part of the drive we make going forward. That is not always easy. In fact, even in common law jurisdictions adopting broadly similar laws to ours, including many Commonwealth countries, considerable restrictive practices get in the way of British law firms and lawyers operating. For example, the British Bar and the Law Society have been fighting extremely hard to get access to the legal markets in India.

India is talked of as one of the great potential commercial prizes for a free trade agreement post-Brexit, but it is by no means easy. India currently has protective regulatory structures. Progress is being made in parts of the financial services sector, but India has been reluctant to open up its legal services. When we negotiate trade deals, we should not be thinking purely in terms of manufactures or financial services—it is most desirable that legal services can be sold as part of a package that goes with the other services, and sometimes with manufactures. For example, many people will have bought a car with an attached insurance policy. When something is exported, it may have an insurance policy attached. It makes sense if lawyers who specialise in that field can advise their clients in those new markets.

There are opportunities, but a joined-up approach is required, particularly between the Ministry and the Department for Exiting the European Union. I am delighted to see my hon. and learned Friend the Minister in her place, who I know understands this well, having had distinguished practice at the Bar in the UK, but there is sometimes concern that other Departments are not as well sighted on the needs of the legal services sector, which sometimes perceives that it takes a fight to get itself heard in the broader Brexit negotiations discussion.

I hope the Minister will reassure us and take from the debate the message that there needs to be a specific taskforce for dealing with legal services. Many people in British law firms are ready and willing to supplement the Government’s in-house lawyers on policy advice. Established organisations such as the Financial Markets Law Committee, chaired by the noble Lord Thomas of Cwmgiedd, have made a number of suggestions to the Government on technical but important regulatory changes that will be necessary to protect the position of financial law.

There is expertise, but I have a suspicion that it is not always obvious to look outside the traditional civil service ranks for advice—perhaps it is sometimes the nature of Government—I remember this from when I was a Minister. I hope the Government do that right across the piece on Brexit, because we have great expertise. The Bar European Group has equal levels of great expertise.

I hope that, in this short debate, I have flagged up some of the key needs of British legal services, their legal service providers and their clients—not just commercial clients but the little people who benefit from access to European markets. I know that the Minister is engaged and will respond positively, but the more specific detail she can give on how the Government will address those specific items, the better that will reassure the sector and its clients.

--- Later in debate ---

[Lucy Frazer]

I am grateful to my hon. Friend, and it is important to give certainty to the legal services sector, so that they can advise their clients accordingly. My point was about the withdrawal agreement and what will happen to cases that are already pending before the court. The second stage of our negotiation was about implementation, and we have given businesses legal certainty by ensuring that our current arrangements will continue to apply during the implementation period. We are starting to negotiate and come to an arrangement on what will happen in future after we leave the EU.

My hon. Friend the Member for Cheltenham was right when he mentioned the gold standard and the Brussels regulation, and my hon. Friend the Member for Henley was correct to identify the importance of the Hague convention. Both those things are important, and we hope to secure the Hague convention as a minimum. It is right to ensure that there will be no gap before we rejoin that convention, and we are pressing to secure that. Our ambition and aim is to negotiate as hard as possible and ensure arrangements and protections in future that are similar to those we currently have.

My hon. Friend the Member for Bromley and Chislehurst raised the important question of legal services, the right of citizens to practise here and abroad, and the mutual recognition of qualifications. Again, on separation, as part of the withdrawal agreement we have agreed that any lawyers within the scope of the citizens’ rights agreement who have become part of the host profession in the member state should remain recognised and able to practise. Last week we agreed the terms of the implementation period, in which we will have the same rules as now. Therefore, rules on market access will continue, including on the provision of services and establishments for lawyers. The Government are keen to ensure a good deal for the legal services sector in future.

[Robert Neill]

I am glad to hear the Minister say that, and I am sure she will recognise that for the legal services sector, a CETA-type deal simply is no good. For legal services, a CETA-type deal is no deal. When we seek an ambitious deal, we must go beyond that which has been posited by some as a solution, because CETA would be just as bad as the cliff edge, which I think the Minister and I, and the Government, do not wish for under any circumstances.

[Lucy Frazer]

My hon. Friend makes an important point, but we can see how the Prime Minister is approaching this. In her Mansion House speech she specifically said that it makes sense for us to continue to recognise qualifications in future, and she identified the importance of civil and judicial co-operation. She specifically identified a few areas where the UK and EU economies are linked, and one of those was law.

As my hon. Friend rightly identified, our opportunity to expand our legal services extends not just to the EU, and we also have the opportunity to develop free trade agreements with third countries, which may cover legal services. He was right, however, to say that protectionism already exists in other countries, and although few FTAs currently cover legal services, we hope and are ambitious to change that in the future.

It is not only in the Brexit discussions that we continue to support our legal profession, and considering LawTech, technology, and innovation in legal services is key to ensuring that the United Kingdom retains its world-leading status. That is why the Government, building on success in the FinTech sector, are ensuring that new and innovative legal technologies are embraced and supported. We are fully supportive of LawTech innovation, which is now gathering pace. The number of LawTech start-ups in the UK is increasing each year, from three in 2010, to more than 60 in 2016. We are committed to ensuring that the UK becomes a world leader in smart contracts, and we are keen to bring together work that is being done to make those contracts a reality.

We are doing other significant work beyond the UK to support and promote legal services abroad. We are joining up with the judiciary and legal services sector, helping it to gain footholds in new markets, and proactively spreading the message about why English law, and the legal offering in the UK, is so strong. My hon. Friend rightly referred to the GREAT campaign, and the “Legal Services are GREAT” campaign was launched by Lord Keen in Singapore last year. The campaign targets stronger links with emerging and established markets across the world, and it aims to cement the UK’s reputation as the world’s pre-eminent legal centre. It is showcasing the very best of what the UK’s legal services sector has to offer, bringing business to the UK and our legal firms, chambers and courts.

We are also working with partners to target the countries that matter to the UK. In April we will deliver an English law summit in Kazakhstan, alongside the Law Society and the Bar Council in England and Wales. In May, our campaign will feature in the UK pavilion of the Silk Road Expo in Xi’an, China. We are working bilaterally with our key allies on areas of mutual interest. Legal services feature prominently in the regular programme of bilateral ministerial meetings that we organise, including last year with Ministers from Singapore, India, Australia and China.

My hon. Friend made a number of important points, and we must recognise the importance of talent, and the mutual recognition of qualifications and judgments. He rightly said that there is a wealth of knowledge in the legal services sector, and the Department is using that. I greatly welcome the expertise that that sector brings to ensuring not just a good justice system, but the right deal on Brexit in the future. My hon. Friend also mentioned intergovernmental Department contributions, and the importance of other Departments appreciating the significance of the legal sector. I assure him that I am already talking to my counterparts in the Department for Exiting the European Union and the Treasury to identify the importance of the legal services sector. Yesterday I gave evidence with a legally qualified Minister, the Under-Secretary of State for Exiting the European Union (Suella Fernandes), and having heard her give that evidence, I am confident that she is very much aware of the importance of our legal sector.

In conclusion, our overall message is simple: the UK is, and will continue to be, one of the pre-eminent legal centres in the world. We will continue to be a leading player, and I am determined to ensure that English law remains the law of choice, and that the UK continues to be the jurisdiction of choice.

[Robert Neill]

I welcome the Minister’s positive remarks. On work within Government, can she assure us that maximum effort will be made to join up the work of the legal services working group, which exists within the Ministry of Justice, and the Brexit Law Committee, which reports to the Department for Business, Energy and Industrial Strategy? The profession is concerned that there should be no disjuncture between the two. It sounds as if the Minister and the Under-Secretary of State for Exiting the European Union have been talking, but it is important that that happens consistently at official and professional level.

[Lucy Frazer]

That is a good point that I am happy to take forward. It has been helpful for me to air these points today, and once again I congratulate my hon. Friend on securing this important debate, and indeed all hon. Members on their contributions today.

Question put and agreed to.