Tag Archive | "Chris Grayling"

Employment tribunal fees


It is some time since Chris Grayling left the post of lord chancellor but his influence continues to be felt as his poor judgments have to be reversed. Now we have another embarrassing example.

In a landmark decision handed down last Wednesday, the Supreme Court, in the case of R (Unison) v Lord Chancellor (2017), unanimously found that fees imposed under the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 (‘Fees Order’), in respect of proceedings at the Employment Tribunal (‘ET’) and at the Employment Appeal Tribunal (‘EAT’), prevent access to justice and is unlawful.

As a result the government will have to refund up to £32 million to the thousands of people charged for taking claims to tribunal since July 2013, when fees were introduced by Grayling.

Fees were first imposed in the ET and the EAT by the Coalition Government in July 2013. The principal purpose of the Fees Order was to transfer some of the costs burden of operating ETs and the EAT to those who use the system. The aim was to encourage early settlement of claims and reduce the bringing of weak or vexatious claims.

The cases brought before employment tribunals in the UK range from unfair dismissal and equal pay to sex, age and racial discrimination. The total number of cases peaked in 2009-10 during the recession, reflecting an increase in redundancy related claims. Last year, employment tribunal fees generated £7.8m of income. Charging fees helped the MoJ to balance its books after the department’s budget was cut by 27 per cent in real terms between 2010-11 and 2016-17 as Grayling seemed to welcome Osborne’s austerity.

The most striking feature was the sharp drop in cases after 2012, coinciding with the government’s introduction of fees for using the service. Since July 2013, employees taking their case to tribunal have faced fees ranging from £390 (for claims such as breach of contract) to £1,200 (for claims such as unfair dismissal or sex discrimination). Appeals cost up to a further £1,600. The number of cases brought last year was 70 per cent lower than in 2012-13.

The public service trade union, Unison, sought judicial review of the Fees Order on the grounds that it unlawfully prevented or restricted access to justice. Unison sought to establish that the Fees Order was unlawful as there was a real risk that persons will effectively be prevented from having access to justice and that the degree of intrusion is greater than is justified by the objectives which the measure is intended to serve.

The Supreme Court decided in favour of Unison on both grounds. The court unanimously ruled that the fees contravene both EU and UK law and are “discriminatory” against women. The Court ruled that the fee schedule adopted prevents access to justice, and is therefore unlawful. Its concern was that the level and structure of the fees were effectively preventing employees enforcing the rights granted to them by Parliament. In their ruling, the court said: “A significant number of people have found the fees unaffordable.”

In addition it was held that fees can prevent access to justice not only where they are unaffordable, but also where they render it futile or irrational to bring a claim, since many ET claims do not seek any financial award or seek only modest amounts.

General secretary of Unison, Dave Prentis, said that the Ministry of Justice has been operating unlawfully for four years. He added: “The Government is not above the law, but when ministers introduced fees they were disregarding laws many centuries old, and showing little concern for employees seeking justice following illegal treatment at work.

“The Government has been acting unlawfully, and has been proved wrong – not just on simple economics, but on constitutional law and basic fairness too.”

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New Lord Chancellor


In the past two years we have been privileged to serve four holders of the post of Lord Chancellor – Chris Grayling, Michael Gove, Lyn Truss and now, David Lidington.

All four have one thing in common. None is legally qualified.

The demotion of Lyn Truss to Chief Secretary to the Treasury stands out as the only senior casualty in the mini reshuffle following the general election. She has paid the price of the fury caused by her lacklustre defence of a judiciary dubbed ’Enemies of the People’ by the right-wing press over the Article 50 case.

David Lidington was elected Member of Parliament for Aylesbury in 1992 and has held a number of positions including Shadow Secretary of State for Northern Ireland from 2003 to 2007 and Shadow Minister for Foreign and Commonwealth Affairs from 2007 to 2010
He served as Minister of State at the Foreign & Commonwealth Office (FCO) from May 2010 until July 2016, the longest-serving Europe Minister in British history. He was Leader of the House of Commons and Lord President of the Council from July 2016 to June 2017. He was a staunch member of the Remain campaign.

Lidington has generally voted against laws to promote equality and human rights. In May last year he voted in favour of repealing the Human Rights Act 1998. He has also consistently voted against allowing terminally ill people to be given assistance to end their life. He has generally voted against gay rights and voted against allowing same-sex couples to marry.

Lidington has also consistently voted in favour of restricting the scope of legal aid, and for allowing national security-sensitive evidence to be put before courts in secret sessions.

His voting record also shows support for stronger enforcement of immigration rules and mass surveillance of people’s communications and activities.

Commenting on Sunday Lidington said: “Democracy and freedom are built on the rule of law, and are protected by a strong and independent judiciary. I look forward to taking my Oath as Lord Chancellor, and to working with the Lord Chief Justice and his fellow judges in the months ahead, to ensure that justice is fairly administered and robustly defended.”

In May 2009, the Daily Telegraph revealed Lidington had claimed nearly £1,300 for his dry cleaning and had also claimed for toothpaste, shower gel, body spray and vitamin supplements on his second home allowance. He decided to repay the claims for the toiletries, saying: “I accept that many people would see them as over-generous.” He was also criticised by local newspaper the Bucks Herald for claiming £115,891 in expenses in one year, almost double his salary.

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So who is next?


No tears were shed when, following the 2015 election, Chris Grayling was removed from the role of lord chancellor. There were nevertheless raised eyebrows when his successor was announced – Michael Gove, another unqualified incumbent.

But many fears were allayed when he set about righting the mean-minded Grayling rulings, such as the severe restriction of reading material in prisons. He also promised a review of ongoing criminal legal aid reforms and said there were no plans for further cuts on top of those already announced.

Speaking of the “dangerous inequality at the heart of our system” he said: “There are two nations in our justice system at present. On the one hand, the wealthy, international class who can, for example, choose to settle cases in London with the gold standard of British justice. And then everyone else, who has to put up with a creaking, outdated system to see justice done in their own lives.” He also grasped the nettle of prison overcrowding with far reaching proposals for ‘new prisons for old.’

On civil justice he said: “The current system adds to stress at times of need, and restricts access to high quality resolution of disputes by simply being too complex, too bureaucratic and too slow.”

Then came the upheaval following the referendum, with the change of prime minister and the ministerial reshuffle which consigned Gove to the wilderness. His replacement, Liz Truss, completed a hat trick of non legally qualified lord chancellors.

She set out her views on sentencing and the prison population in an address to the Centre for Social Justice. She said that the problems boil down to four distinct areas: sentences are too long; prisons are too overcrowded to work; the wrong people are in prison; and the management of the prison population at the moment isn’t good enough.

She identified the biggest driver for prison growth in the last twenty years as the exposure, pursuit and punishment of sexual offences and crimes of violence, and a toughening up of sentences for these crimes.

In family courts “I will end the appalling practice of domestic abuse victims being cross-examined by their attacker” she said. She herself took flak from the lord chief justice, Lord Thomas of Cwmgiedd, who launched a forthright attack for her failure last year to defend judges who were branded “enemies of the people.”

Introducing the Prisons and Courts bill, she said: “I want our prisons to be places of discipline, hard work, and self-improvement, where staff are empowered to get people off drugs, improve their English and maths to get a job on release,” she said.

The bill hopes to pave the way for the biggest overhaul of prisons in a generation and the delivery of a first class court system. Protection of victims and vulnerable witnesses in the courts, along with a commitment to reform offenders in prison, are laid out in law for the first time. The bill will provide a better working environment for judges, with modern court facilities and better IT that will help manage cases more efficiently.

Across the country more than 2,000 new senior positions are being created for experienced prison officers on promotion. She concluded: “The answer to overcrowding is not to cut prisoner numbers in half. It is to make sure we have the right resources, the right workforce, the right buildings and the right regimes to reform offenders and turn their lives around (then) we will see our society become safer and our prison population will reduce.”

Now we have another hiatus caused by the election. How many of the enlightened proposals will survive? I will leave the shadow home secretary, Diane Abbott, to spell out the number of extra police officers required and the cost thereof.

Photo courtesy of mrgarethm on flickr

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Legal aid for prisoners


The government has lost an important battle in the court of appeal over access to legal aid. Denying prisoners in England and Wales legal aid so they can effectively challenge the conditions under which they are held could be illegal, the court has ruled.

In R (Howard League for Penal Reform and the Prisoners’ Advice Service) v the Lord Chancellor, the court of appeal judges – Lord Justice Leveson, Lord Justice Tomlinson and Lady Justice Sharp – considered five areas of prison law where the Ministry of Justice removed criminal legal aid eligibility in December 2013. Read the full story

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Sentencing and the prison population


Justice secretary Liz Truss set out her views on sentencing and the prison population in an address to the Centre for Social Justice last week. She believes that “We should be proud that we live in a society that no longer shames victims of rape; that is prepared to confront child sex abuse, and has brought domestic violence out in the open.”

She said that the problems boil down to four distinct areas: sentences are too long; prisons are too overcrowded to work; the wrong people are in prison; and the management of the prison population at the moment isn’t good enough.

She pointed out that the prison population has remained relatively stable since 2010, at around 85,000 people, and that it is not true that rates of imprisonment have gone up across the board. In 2015 courts handed out 9,000 fewer short-term sentences than they did in 2010.

She identified the biggest driver for prison growth in the last twenty years as the exposure, pursuit and punishment of sexual offences and crimes of violence, and a toughening up of sentences for these crimes. “Since 2000 there has been a 29% increase in those sentenced to custody for robbery and a 75% increase for violence against a person. And there has been a 140% increase in the number of sexual offenders in prison,” she said.

She added: “This has led to a change in the make-up of our prison population – from two in five being prisoners convicted of violent, sexual or drug offences in 1995 to three in five now. There has been a huge difference in the people we send to prison. Compared with 2010, there are now 3,000 more sex offenders in prison.”

She pledged to take action to spare victims of sexual abuse the trauma of giving evidence in open court in criminal cases. In family courts “I will end the appalling practice of domestic abuse victims being cross-examined by their attacker” she said.

“I want to transform our prisons from places of violence and despair to places of self-improvement and hope where all prisoners are given the chance to lead a better life,” she said, “because I believe that everybody is capable of reform.” The Prison and Courts Bill, due to be published this month, will enshrine in law that reforming offenders is a key purpose of prison and that the Secretary of State has responsibility for delivery.

A more systematic, nationally consistent approach is needed to provide quicker and more certain access to mental health treatment for offenders. Early intervention by the courts is vitally important in stopping women offenders from ending up in prison. “We will be announcing our strategy for women later this year and have already announced a new director for women in custody and the community – Sonia Crozier,” she said. “Early intervention is not a ‘nice to have’ added extra to the justice system, it is vital if we are ever to break the cycle of crime, punishment and more crime.”

She acknowledged that: “We also have to deal with the levels of violence and self-harm in our prisons. That is why as well as investing in reform and giving more powers to governors and creating a new frontline agency – Her Majesty’s Prison and Probation Service – we are putting an extra £100m a year into the frontline and will take on 2,500 more frontline officers.”

So much for former justice secretary Grayling’s mismanagement, subservient to Chancellor Osborne’s austerity programme, conceding dangerous cuts, all the while denying that there was crisis in the prison service. Liz Truss knows different. Since this speech was delivered she has offered substantial – and divisive – pay rises. Never was there such a clear example of the false economies of the austerity programme.

She concluded: “The answer to overcrowding is not to cut prisoner numbers in half. It is to make sure we have the right resources, the right workforce, the right buildings and the right regimes to reform offenders and turn their lives around (then) we will see our society become safer and our prison population will reduce.” Let us hope so.

Posted in Criminal Justice, Law UpdatesComments (0)

Family courts allow abusers to torment their victims


The head of the Family Division, Sir James Munby, has called for a bar on victims of domestic violence being cross-examined by the alleged perpetrators in court. The practice is not permitted in criminal courts. He said: “Reform is required. I would welcome a bar. But the judiciary cannot provide this, because it requires primary legislation and would involve public expenditure. It is therefore a matter for ministers.”

Liz Truss, the justice secretary, is said to share his concerns about how the family courts can enable perpetrators of domestic abuse to continue their intimidation and harassment through the court system. A senior Ministry of Justice source said: “This is a matter we are extremely concerned about and looking at as a matter of urgency.”

Comprehensive evidence obtained by the ‘Guardian’ has revealed how the family court allows men with criminal convictions for abusing their ex-partners to directly question them; is able to ignore restraining orders imposed by the criminal courts to protect the women; and allows fathers, no matter how violent or abusive, to repeatedly pursue contact with children and their mothers. The evidence also shows that the family court can ignore expert evidence that women are at risk from abusive men and fails to adequately protect vulnerable victims of domestic and sexual abuse.

Women are often cross-examined by violent ex-partners in secretive civil court hearings. Those who speak out risk being held in contempt of court for discussing what went on in their private court hearings, but said they wanted to shine a light on what was going on in the system.

The immediate problem is another of Chris Grayling’s chickens coming home to roost. To satisfy the austerity demands of George Osborne (remember him?) Grayling took the axe to his department’s budget. Legal aid is now denied in most family cases. The main exception is for a victim of domestic abuse. Cuts of more than 30% are crippling access to all sorts of justice.

The number of people going to court without a lawyer has been rising since access to legal aid was cut severely in 2013. The less well off and those with children are more heavily represented in those litigating in person than any other group.

Research by the charity Citizens Advice has revealed that the stress, responsibility and loneliness of going to court without representation can mean ‘Litigants in person’ (LiPS) achieve worse outcomes compared with their represented counterparts.

It also showed 90% of people who had been LiPS found the experience negatively affected their health, relationships, work or finances. Figures from the MoJ in October 2016 reveal that in 80% of family court cases, at least one individual had no lawyer.

The justice secretary has set up an emergency review to find the quickest way to ban perpetrators of domestic abuse from directly cross-examining their victims within the family court system. The research paper being prepared is due to be completed by the end of next week. It will examine whether primary legislation is necessary to end perpetrator cross-examination, or whether it could be stopped through the provision of more legal aid.

Posted in Civil Law, Legal AidComments (0)

The Lord Chancellor


When appointing a Lord Chancellor what was once rare is now almost routine.

The Coalition government in 2010 appointed Chris Grayling to the post, which is also that of Secretary of State for Justice. He was the first non lawyer to be given the job since the middle ages. It showed.

In the reshuffle following the 2015 election Michael Gove got the job. He also is not legally qualified. He made a promising start, clearing up some of the mess left by Grayling, and promising reforms. He became one of the more sensational casualties of the post referendum chaos as he was cast into the political wilderness.

Now Liz Truss has got the job. Also not legally qualified, she is the first female Lord Chancellor in the thousand-year history of the role. 41 today, she has been MP for South West Norfolk since 2010. Rapid promotion saw her appointment as Parliamentary Under-Secretary of State from 2012 to 2014, with responsibility for education and childcare. She became a member of the Cabinet as Secretary of State for the Environment, Food and Rural Affairs in 2014. On 14 July 2016 she was appointed Justice Secretary and Lord Chancellor by new Prime Minister Theresa May.

According to George Monbiot in the ‘Guardian’, interviewers have said that she is “indissolubly wedded to a set of theories about how the world should be, that are impervious to argument, facts or experience. She was among the first ministers to put her own department on the block in the latest spending review, volunteering massive cuts.”

She set courts reform as one of her top priorities during the traditional swearing-in ceremony. She also stressed she was a great supporter of reform and modernisation through the courts and tribunals system. “That urgent task will be high on my agenda in the months ahead, as I know it is for senior members of the judiciary,” she added.

Her appointment has not met with a uniform welcome. As one disgruntled contributor to the ‘Gazette’ plaintively wrote “Why do the Tories persistently want to pee off the profession by making non lawyers Lord or Lady Chancellors. It is frankly insulting.” More officially, the Tory chair of the Commons justice select committee, Bob Neill, has become the latest senior political figure to question her credentials.

As reported in the ‘Gazette’, he said “My concern is this: while it’s not necessary for the lord chancellor to have a legal background, they have a specific role under the Constitutional Reform Act to represent the interests of the judiciary and to represent the judiciary, including its independence within government.

“It helps if the person in charge has been a lawyer or has been a senior member of the cabinet. I have a concern, with no disrespect to Liz, that it would be hard for someone without that history to step straight in and fulfil that role.”

Neill’s comments follow a claim by former shadow lord chancellor Lord Falconer that prime minister Theresa May broke the law in appointing Truss. Writing in the ‘Times’, Falconer said: “The lord chancellor has to be someone with the weight and stature to stand up to the prime minister or the home secretary when, for instance, they want to compromise on complying with the law in an attempt to placate the public. Or when the politicians are determined to blame the judges when their policies go wrong.”

Lord Faulks said last week that he resigned as Lords justice spokesman over fears that Truss would not have the necessary leverage to challenge the prime minister over crucial issues such as judicial independence.

Posted in Civil Law, Criminal JusticeComments (0)

Discriminatory residence test for legal aid summarily thrown out


Our blog on Monday said that the Supreme Court would begin hearing arguments in a case challenging the government’s Legal Aid residence test that day. Remarkably by Monday evening the case was resolved.

The Supreme Court has taken what is believed to be the unprecedented step of allowing an appeal halfway through a two-day hearing. The bench of seven justices in the UK’s highest court abruptly halted the case and announced on Monday afternoon that it had found against the Ministry of Justice.

The government had been seeking to introduce the residence test via secondary legislation. The residence test restricts legal aid to people who are “lawfully resident” in the UK and have been for the past 12 months. The Public Law Project (PLP), which brought the case, said that this is outside the government’s powers and also discriminatory under human rights laws.

As reported in the ‘Gazette’ a brief statement by the supreme court said: “The issues in this appeal were whether the proposed civil legal aid residence test in the draft Legal Aid, Sentencing and Punishment of Offenders Act (Amendment of Schedule 1) Order 2014 is ultra vires [beyond the powers of the legislation] and unjustifiably discriminatory and so in breach of common law and the Human Rights Act 1998.

“At the end of today’s hearing the supreme court announced that it was allowing the appeal on ground [of ultra vires] … The supreme court asked the parties whether they wished to address the court on the second issue. The case has been adjourned while this is considered.”

On Tuesday the court confirmed on its website that the hearing ‘has now concluded’. Full written reasons for its decision ‘will follow in due course’.

Law Society chief executive Catherine Dixon said: “This judgment goes some way in reaffirming the philosophy behind legal aid, which is that everyone should have the ability to get expert legal advice and representation to defend their legal rights.

“The court has upheld the vital principle that government must act within the scope of its powers and particular scrutiny must be given where equality before the law is being threatened.”

John Halford, the solicitor at the London law firm Bindmans, which is acting for the PLP, said: “Right now though, it is clear that the Supreme Court believed rationing British justice using delegated legislation was repugnant to British law and it was willing to act decisively to stop that happening.” Should the government want to introduce a residence test in the future, Halford said it would have to propose primary legislation with the residence test in it.

Such a swift ruling is a humiliating setback for the MoJ. Reversals were a regular matter for the previous unlamented justice secretary Grayling, but Gove has had the sense to abandon many unpopular measures introduced by his predecessor. He has blotted his copybook by allying himself with this now thrown out policy. He intended to proceed with plans to introduce the scheme this summer.

A Ministry of Justice spokesperson said: “We are of course very disappointed with this decision. We will now wait for the full written judgment to consider.”

Posted in Civil Liberties, Legal AidComments (0)

Legal aid residence test to be challenged


Today, the Supreme Court will begin hearing arguments in a case challenging the government’s Legal Aid residence test.

The residence test restricts legal aid to people who are “lawfully resident” in the UK and have been for the past 12 months. The Public Law Project (PLP), which is bringing the case, says that this is outside the government’s powers and also discriminatory under human rights laws.

The Ministry of Justice (MoJ) has argued that only those who have an established link to the UK should be entitled to legal aid, which is a scarce and costly resource that must be rationed.

Seven justices will hear arguments in a case which insists that no minister has the power to impose such discriminatory regulations and that the residence test, which has yet to be implemented, is unlawful. The supreme court had originally planned to hear the case later this year, but it has been brought forward following justice secretary Michael Gove’s indication that he planned to begin applying the residence test from this summer.

The case has already been before the courts. In 2014, the high court struck down the regulation on the grounds that the then justice secretary, Chris Grayling, did not have the power to introduce it by means of secondary legislation. It also concluded that the residence test was excessively discriminatory.

In a unanimous decision, three senior judges declared the draft regulations then before parliament could not be enacted by means of secondary legislation. They also upheld a complaint on a second ground as part of the judicial review, that it would not be legitimate to discriminate against non-residents solely on the grounds of saving money.

The judgment was a severe setback for the then justice secretary, Chris Grayling, and the way he was introducing wide-ranging changes without primary legislation.

However, last November the court of appeal overturned that judgment, concluding that the earlier ruling placed unjustifiable restraints on the government’s ability to control the legal aid budget. Exemptions to the residence test have had to be made for members of the armed forces serving overseas, children under one year old and asylum seekers.

John Halford, the solicitor at the London law firm Bindmans, which is acting for the PLP, is quoted in the ‘Guardian’ as saying: “In this country, we are rightly proud we have a legal system which, whilst not perfect, seeks to ensure that anyone can enforce important legal rights and enter the courtroom on an equal footing to their opponents….The [justice secretary’s] proposed residence test strikes at the heart of these principles by very deliberately withholding legal aid from those who overwhelmingly will not be British, yet are obliged to obey the law here and so should, equally, be protected by it. We will ask the court to make a definitive ruling that the test is repugnant to British law.”

The ‘Guardian’ also reports that the children’s commissioner for England has intervened in the litigation in support of the PLP’s appeal, as has the solicitors’ professional body, the Law Society.

The case will be decided by seven justices – Lord Neuberger, Lady Hale, Lord Mance, Lord Reed, Lord Carnwath, Lord Hughes and Lord Toulson – because of its constitutional importance.

Posted in Civil Liberties, Legal AidComments (0)

“Justice system is now unaffordable to most”


Not just my view, but the considered opinion of the Lord Chief Justice (LCJ), Lord Thomas of Cwmgiedd, in his annual report to Parliament. A fine way to mark the 800th anniversary of Magna Carta.

“In consequence there has been a considerable increase of litigants in person for whom our current court system is not really designed,” he said, adding that steep increases in court fees, which judges formally opposed, have meant that the judiciary “whilst accepting the decisions by parliament to increase fees, remains deeply concerned about the effect on access to justice.” Read the full story

Posted in Criminal Justice, Legal AidComments (0)

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