Legal Hackette Lunches with Bob Neill

imgresOver tuna, chips and a bottle of white plonk at Adjournments in a bustling Portcullis House, the chairman of the justice committee discusses the ‘wasted opportunity’ caused by Brexit, the pressing need for prison reform and why the legal profession should not rule out fusion.

Despite being a Conservative, the MP for Bromley and Chislehurst, Robert James MacGillivray ‘Bob’ Neill, is far from uncritical of the government.

Without criticising individual ministers, the Ministry of Justice as an institution, observes Neill, ‘is much too blinkered in its approach to things,’ perhaps, he suggests, because of the ‘lack of lawyers there who can stand up against institutional resistance and trust the people who can make things work.’

But he adds: ‘It’s not our (the committee’s) job to be confrontational with Liz (justice secretary and lord chancellor, Liz Truss) and her team — I like all of them personally. It’s our job to help them overcome the obstacles’.

Boosting the magistracy

The influential committee has just published two significant reports. The first, on the role of the magistracy, proposed doubling the sentencing powers of magistrates, and the second, on young adults in the criminal justice system, called for 18-25 year olds to be kept out of adult prisons.

The former, he says, received ‘interesting’ responses. ‘It’s the usual thing with government – they are happy to go with the easy bits, but shy away from the tough parts.

‘Although they have no evidence, as far as I can see, they are not prepared to implement the increased sentencing powers’. The MoJ, he explains, is worried that the move will increase the prison population, because it thinks magistrates are more likely to send offenders to prison than crown court judges – a view he suggests is outdated.

‘They say they have done the modelling, which suggests it would lead to an increase in custodial sentences. But if that’s the case, why on earth don’t they publish the evidence’.

While the ministry fixates on the impact on the prison population, it is missing savings that would be made to the crown court budget, he adds.

The committee has some hefty pieces of work on its to-do list. It has begun work on prison reform – an inquiry that Neill expects to run for a couple of years, with reports published during that time.

He is adamant that there must be a ‘right of centre, Conservative case’ made for alternatives to custody. ‘Locking people up is not good for offenders, or for preventing people becoming victims of crime, and it costs a shed load of money. There are better ways to do it’.

Just what does Brexit mean?

The committee has issued a call for evidence on the legal implications of Brexit. It will consider the impact on the justice process and the legal sector, what the government needs to address in its negotiations and steps to mitigate any adverse effects. The committee expects to begin hearings before the year is out.

Linked to that, is an analysis of the implications of Brexit on the crown dependencies.

An ‘unrepentant Remainer’, Neill nonetheless says he respects the outcome of the referendum and will not vote against the bill to repeal the EU Act, if the Supreme Court upholds the High Court’s ruling that parliamentary authority is required.

He is not happy with the name of the PM’s Great Repeal Bill and suggests it should more accurately be called the ‘Necessary’ Repeal Bill.

While he understands that the former prime minister, David Cameron, had to call the referendum ‘for management purposes’, following the ‘muffed campaign’ that meant the ‘Remain’ camp lost, Neill is saddened by what he sees as the ‘wasted opportunity’.

‘We could have had a perfectly stable, left of centre, broadly reforming Conservative government that was doing some good work on social issues.

‘All that has been thrown up in the air for a concept. What’s the reality of sovereignty in a modern world? It isn’t going to pay anyone’s rent or mortgage or give any value to people’s everyday lives’. Rather, he complains, Brexit has ‘taken over the life of the parliament’.

Wither Gove?

He is disappointed by the loss of Michael Gove as justice secretary and lord chancellor. ‘On a personal level, Michael was the Brexiteer I respected most – he had at least always believed in it, albeit wrongly.

‘He was doing a good job at justice and could have been a major, reforming Tory minister on social policy, like Peel or Disraeli, and that’s been thrown away because of the concept of sovereignty’.

The current incumbent, Truss, he says is ‘thoughtful, clever, though not as articulate as Michael, and wants to get it right’.

He gives her credit for ‘getting it right’ by shelving (for now) the proposed reforms to personal injury claims, that would have increased the small claims limit and removed the right to claim compensation for whiplash injuries.

‘She is very much into method, process and evidence. She took away all the boxes, read them over the summer and formed a judgment’.

He adds: ‘Having Ollie Heald (Oliver Heald, courts and justice minister) there is a big plus. Having done that sort of work at the bar, he would have seen that we were going down a blind alley with it’.

The problem for Truss initially, he says, was that people felt disappointed by the loss of Gove, who had given the impression that he was willing to listen to the profession, and they still felt the loss of Dominic Grieve, the lord chancellor that never was, whom Cameron sacked as attorney general.

‘Dominic was ill-treated. He shouldn’t have been dropped as the attorney. The job of the attorney is to speak truth to power. Although I remain a fan of David Cameron, his treatment of Dominic does not resound to his credit’.

In praise of fusion

Also on the committee’s list is an inquiry into legal regulation, so he is tight-lipped on what he would like to see and whether there should be a single regulator. ‘I’m conscious of the arguments either side,’ he says.

Unusually for a barrister, Neill says the profession should be prepared to contemplate fusion, which he says works in a lot of jurisdictions without any significant detriment to the profession or the public interest.

‘People always think of it in terms of America, which I don’t think is a good example. They should look at those Commonwealth countries that have adopted a fused model,’ he says.

‘The profession would be unwise to rule out fusion – they shouldn’t take absolute or entrenched positions,’ he suggests. Indeed, he ventures, struggling junior barristers might welcome the security of starting out in a fused profession, before developing a specialism as a court advocate.

From the client’s point of view, he says: ‘Your brief is your brief and it doesn’t matter if it’s a solicitor or barrister’.

With solicitor advocates, public access barristers and alternative business structures, some suggest the profession is already moving towards fusion.

Doing so incrementally, says Neill, may be sensible, and he is keen that it is not imposed on the profession, but says: ‘We shouldn’t be scared to talk about it’. He adds: ‘I say it as a friend, because I want the profession to succeed’.

Embracing the digital

On other issues, he counsels the legal profession to be ‘cuter’ in the way it makes its arguments opposing government policy.

A case in point is the reaction to digital courts, which the profession sees as a move towards de-lawyering. ‘It’s not naked self-interest, as all professions are inevitably cautious about change. But, maybe there’s a challenge for lawyers to do their job differently’.

If every time change is proposed, the profession complains, there is a danger, he says, that it is perceived as crying wolf. It risks losing credibility with parliament and the media, and its arguments may be discounted.

‘It is not a criticism that can be laid at the door of the current leadership of the bar or the Law Society, but they (the professions) got so shrill and were perceived as being quite partisan,’ he says, adding that ‘the bar was worse’.

‘The good arguments got lost in the general perception that it was a bit of an old boys’ and girls’ club being a bit protectionist, which was a shame’.

He accepts that the professions were right to oppose some proposals, for example, some of Chris Grayling’s reforms that were ultimately ditched.

Getting legal aid right

The government, he says, got it wrong with the scale of the legal aid cuts. Some cuts were necessary, but the number of unrepresented parties, particularly in family cases, he suggests, indicates that they went too far. He would like to see a rowing back in the chancellor’s autumn statement.

As the committee’s report in June pointed out, the government also got it wrong on employment tribunal fees. ‘I’m not over-impressed with the MoJ on the fees stuff so far. The litmus test will be what they do to employment tribunals,’ he says, adding that the committee is ‘getting a bit impatient’ waiting for the outcome of the ministry’s fee review. Neill he is not against cost-recovery, but says the fees need to be scaled back.

He adds: ‘If you think there are too many cases being brought, the correct approach is to change the substantive law and the legal test for permitting cases. There’s a danger that we use the fee system as a rationing system, which is not what it is intended to be’.

On the second tranche of criminal legal aid fee cuts, Neill says Truss is not in a rush to bring them in, and is focusing on making savings in other ways.

From the profession’s point of view, he suggests that a kick into the long grass is probably the best they could hope for and advises that their ‘best bet maybe to let sleeping dogs lie’.

Anonymity for rape suspects

More widely, he reckons the law on the admission of the sexual history of rape complainants works ‘sensibly and sensitively’ and does not need to be changed, as some argued following the Ched Evans case.

He would support anonymity for defendants in rape cases — even after charge — with the ability for the crown to make an application for it to be removed if there are ‘compelling reasons’.

And he would like to see more perjury cases brought where rape allegations have been proved to be false. ‘Making a false allegation is a pretty dire thing to do – you put someone in jeopardy of losing their liberty, as well as being vilified, and it’s an abuse of the process’.

Working class lad

A working class lad, Neill went to Abbs Cross Technical High School in Hornchurch and the London School of Economics. His father worked on the production line at Ford, his mother ran a shop, and his grandparents were teachers and dockers.

‘A product of that part of the East London,’ he describes himself as ‘a lawyer first and politician second,’ but he says the two have always been part of his life.

On his transition to full time politics, he reflects: ‘You get to the stage where you apply for silk and it does or doesn’t come off. Then you think about going onto the bench, which I think I might have enjoyed. But ultimately you are implementing somebody else’s decisions, which would be a frustration’.

Neill still keeps up with issues at the bar and was ‘chuffed’ to be made a bencher at his inn, Middle Temple. Outside work he enjoys opera and supports West Ham United football club. ‘One Saturday you could see me at Covet Garden and the next at the Olympic Park,’ he says with a wink.

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