Common European Sales Law
Crispin Blunt Excerpts(13 years ago)
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The Parliamentary Under-Secretary of State for Justice (Mr Crispin Blunt)
I beg to move,
That this House considers that the Draft Regulation of the European Parliament and of the Council to introduce a Common European Sales Law (European Union Document No. 15429/11 and Addenda 1 and 2) does not comply with the principle of subsidiarity, for the reasons set out in Chapter 5 of the Forty-Seventh Report of the European Scrutiny Committee (HC 428-xlii); and, in accordance with Article 6 of Protocol (No. 2) of the Treaty on the Functioning of the European Union on the application of principles of subsidiarity and proportionality, instructs the Clerk of the House to forward this reasoned opinion to the Presidents of the European Institutions.
I will start by making some general contextual comments. I am pleased that this debate has been called because the proposed common European sales law is important both politically and legally. I know that it is of interest to Parliament and the public.
This debate makes use of article 6 of protocol 2 to the Lisbon treaty, the subsidiarity protocol, which enables national Parliaments to put forward a reasoned opinion challenging a proposal by the European Commission on the grounds that they do not consider that it complies with the principle of subsidiarity. I believe that this is the fourth time that this House has considered such a motion. The first three related to financial services and this is the first in the area of justice. I note with interest that a debate on the same proposal was held in the German Bundestag last week, where it was accepted unanimously that the proposal for the common European sales law was contrary to the principle of subsidiarity. I am sure that fellow member states and their Parliaments will listen with interest to what is discussed and concluded here today.
I should make it clear at the outset that the drafting of a reasoned opinion is a matter for Parliament, not for the Government. The European Union treaties have given the role of the supervision of subsidiarity to national Parliaments. It is therefore Parliament’s task to decide whether to present such an opinion to the European Union institutions. I should also say that the Government are considering a report by the Procedure Committee relating to the handling of reasoned opinions such as this. I hope that the House will understand if I do not speculate on what the outcome of those considerations will be.
Subsidiarity is a word that we hear much about when dealing with European legislative proposals. It may assist the House if I say a few words about it. The concept is defined in article 5 of the treaty on European Union:
“in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.”
It follows that subsidiarity is a specific legal and political concept. In simple terms, it means that decisions should be taken as closely as possible to the citizens whom they affect, and that the European Union should act only when outcomes can be better achieved at European Union level. Subsidiarity is different from the principle of proportionality, under which any action taken by the European Union should not exceed what is necessary to achieve the stated objectives.
Successive Governments have supported the principle of subsidiarity. I am told that the United Kingdom pushed for it to be strengthened in the Lisbon treaty. The treaty includes a requirement that all legislative proposals should include a statement making it possible to appraise their compliance with the principles of subsidiarity and proportionality. It also introduced the power for national Parliaments to transmit reasoned opinions relating to subsidiarity, such as that which we are debating today. The European institutions—the Commission, the Council and the European Parliament—are obliged to take account of all such opinions.
Moreover, if one third of the national parliamentary chambers throughout the European Union submit such opinions, the Commission must review its proposal. I do not think that any proposal has yet been objected to by a third of the national parliamentary chambers. If that did happen, it would represent a powerful political signal, which the Commission would do well to heed. It cannot be denied that one third is a high threshold. To achieve it will require a great deal of co-ordination between national Parliaments. As I have said, this is a matter for Parliament and not for the Government. I can only encourage the European Scrutiny Committee and other interested parties in Parliament, both in this House and the other place, to make the best use of their contacts with other national Parliaments in this regard.
Stephen Phillips (Sleaford and North Hykeham) (Con)
Will the Minister give way?
Stephen Phillips
I am extremely grateful to the Minister for giving way. Will he indicate for the House how many Parliaments, apart from the Westminster Parliament, have asked for a reasoned opinion to date?
Mr Blunt
My hon. and learned Friend was unhappily absent at the beginning of my remarks, when I reported to the House that the Bundestag gave a unanimous opinion last week that this proposal was contrary to the principle of subsidiarity. I am not aware of any other parliamentary chambers that have undertaken to do so. To illustrate the difficulty of achieving the level of one third of chambers taking a view and reporting a reasoned opinion, the Bundesrat has not taken a view. Therefore, of the two German Chambers, only one, the Bundestag, has taken a view. Only half of the German Chambers have taken a view, whereas the hurdle that has to be achieved is a third of national parliamentary chambers. My hon. and learned Friend will understand that it is quite a hurdle in those circumstances. Of course, it is a matter for the other place whether it takes a view on this matter.
You will be aware, Mr Speaker, from reading the Government’s explanatory memorandum on this proposal that, provided that it is demonstrated that the difference in national contract laws is a genuine obstacle to cross-border trade, the Government’s view is that the subsidiarity test is likely to be met. The Government do, however, share the European Scrutiny Committee’s concerns about the necessity for this proposal in the first place. We question whether an optional common European sales law or one with such a wide scope is the right way to address this issue. These matters will form part of the consultation that the Government plan to hold. I shall therefore listen to Members’ views with great interest.
I will now turn to the substance of the proposed regulation. This proposal has a long history. The European Commission and the European Council have been engaged in the general issue of contract law for a decade or so. I believe that the European Parliament’s involvement stretches back even further. The European Union contract law project lay dormant for some time, but gained momentum again in July 2010 with the publication of a Commission green paper on options for progress towards an EU contract law for business and consumers.
The green paper set out various options for reform, including to continue with the development of a legislators’ toolbox. That would provide a common frame of reference, drawing together the most common concepts and terms used in contract law, which would be the commonly agreed basis to be used by the authors of future European Union laws relating to contract law. The aim of that would be to reduce or remove the current differences and the difficulties that they cause. The green paper invited views on seven options, from a specific directive or a regulation providing an optional European Union-level regime, right through to a mandatory black letter European code of contract law. The conclusion of the Commission green paper’s analysis, and of views received on a feasibility study published by the expert group in May, have culminated in the proposed regulation for a common European sales law.
More recently, the Commission’s proposal was published on 11 October. It contains a set of uniform contract law rules that parties to a contract could choose to govern their contract. The use of such rules would be optional, but that optional law would form part of the national law of each member state and could be used as an alternative to what is currently offered under national law. That alternative regime would be available for cross-border business-to-consumer and business-to-business contracts when at least one party was a small or medium-sized enterprise.
Although the Government intend to consult widely on the detailed policy implications of the proposed regulation, our initial assessment indicates that it would be neither simple nor easy to use. Although it is designed to be free-standing, it remains unclear what relationship it would have with other Union laws such as the Rome I regulation. It also seems that a range of matters that could affect the legal relationship between the parties have not been addressed in the proposed regulation. That has the potential to undermine the aim of removing the need for businesses to incur transaction costs on legal advice on another country’s law.
The scope of the proposal could prove difficult, with its wide application to business-to-business and business-to-consumer contracts whether they are concluded at a distance, away from business premises or on the premises. The Government are not sure whether such an all- encompassing regulation is the correct way to address the different problems that traders and consumers may experience. In addition, current arrangements already provide that any state’s law can be chosen as the law of contract. In that sense, a trader could already choose which law to apply to his or her contract, and in most cases that is likely to be their own. The anticipated net value of the regulation remains to be tested and quantified against the costs of introducing a new law.
The Government are also concerned about the treaty base used in bringing the regulation forward. The proposed legal basis is article 114 of the treaty on the functioning of the European Union. That basis is normally used for harmonising laws in order to further the establishment of the internal market. The Government have doubts about the appropriateness of that, particularly as most other optional instruments that operate in parallel to domestic law are brought forward on other legal bases.
The Government have been working closely with interested parties through the process leading to the proposed regulation. Indications so far are that opinion is divided. Some interested parties see an optional contract law for cross-border sales as a potentially useful tool for aiding the internal market, but others see such a new law as risky, over-complex and unnecessary.
The Government intend shortly to consult United Kingdom interests on the proposed regulation. The views received will be used to develop and inform the Government’s position on the likely impacts of such a regulation, as well as on any benefits or disadvantages that are likely to occur for the various sectors that it could affect. We will not form a concluded view on our approach to the proposal until after the consultation has been concluded and there has been proper time to analyse the results. For today, I am of course grateful for the chance offered by the debate to hear the specific concerns that Members may have.
The Parliamentary Under-Secretary of State for Justice (Mr Crispin Blunt)
With the leave of the House, Mr Deputy Speaker, let me reply to the points raised in the course of this debate. I have taken careful note of all the points raised and they will of course further guide our work as we consult on this proposal in the next phase. As the House is aware we will have a proper public consultation on the proposed regulation in the new year. I know, however, that our general approach to this dossier has to date been supported by the scrutiny Committees in both Houses.
Let me pick up the particular points that have been made this afternoon. I commend my hon. Friend the Member for Stone (Mr Cash) and his Committee for the work that they have done on this instrument. I particularly welcome his contribution to the debate today. He drew attention to the contributions that have already been made by Consumer Focus, the Federation of Small Businesses and the Law Society. I want to answer the Opposition spokesman’s characterisation of the position—he said that absolutely no one out there thinks there is any merit in this measure apart from the Lord Chancellor—which is wrong on both counts. However, I will return to that and correct him.
My hon. Friend the Member for Stone made a substantive point in an intervention on my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips), who confirmed that he was entirely right to say that if article 352 were used, the European Union Act 2011 would require an Act of Parliament before a Minister could agree to it. The legal base is therefore important, and I have made clear the Government’s views, including our doubts about whether article 114 applies, which is an entirely open question.
My right hon. Friend the Member for Carshalton and Wallington (Tom Brake) asked whether the Government had assessed whether the new law would be more complex than that which currently exists, whether businesses could choose to opt into the process and whether that would leave them in a better position. There is a concern that having two alternative regimes could lead to confusion. It might also be too complex for many consumer transactions. The existing common law emphasises certainty—a point made by my hon. and learned Friend the Member for Sleaford and North Hykeham—but the law proposed in this case does not appear to have that emphasis. Again, this is an area where we need detailed legal analysis, which is ongoing. We will consider the views of interested parties, many of whom have significant expertise in this area.
That is an appropriate note on which to turn to my hon. and learned Friend. He drew on the remarks of the remembrancer of the City of London, who has suggested that the proposed measure might be the thin end of a wedge intended to introduce European contract law, thereby undermining the universality of English contract law. It is important to draw attention today—when Her Majesty is opening the Rolls building, a new and impressive commercial court—to the extremely extensive service that the legal profession in London provides to the entire world of commerce. That point ought to be given importance in our consideration of this matter.
As to whether this measure is the thin end of the contract wedge, I should point out that the scope of the draft regulation has been narrowed since the initial discussions began some years ago. The proposal that we are discussing covers the sale of goods and does not extend more widely into contract law. We would have to address any such proposals carefully, and will watch extremely closely if any proposals are made to widen the scope. Each will be considered on its merits. I can also reassure the hon. Member for Stoke-on-Trent South (Robert Flello), who spoke for the Opposition, that my right hon. and learned Friend the Lord Chancellor and I—and, indeed, the whole of Her Majesty’s Government—see no need for a general system of European contract law.
The tenor of the argument produced by my hon. and learned Friend the Member for Sleaford and North Hykeham was extremely clear, as was the expertise that he used to make it. He made a powerful point about the potential for increased transactional costs, not least because lawyers would face considerable difficulties in giving clear advice to small and medium-sized enterprises. He very properly pointed out to the House that if the measure were introduced, the cost of growing case law in this area to provide the necessary certainty would lead to a process that might take decades. The businesses using this form of law would bear the costs, as they would find out—either to their cost or otherwise—through the legal process of testing its bounds.
Finally, let me repeat, so as to make it perfectly clear, that the hon. Member for Stoke-on-Trent South wholly misrepresented the views of the Lord Chancellor. [Interruption.] I am grateful to hear the hon. Gentleman’s sedentary reassurances on that point, but it would be a service to the House if in future he did not seek to misrepresent positions that he plainly does not appreciate or understand. He then said that absolutely nobody was in any way positive about this measure. He was wrong about that as well.
Robert Flello
I am sure that the Minister normally follows every word I say very closely, but sadly he must have been distracted when I said that there was very little support outside. I did not say that there was no support, because the Federation of Small Businesses has said that it supports the measure. However, I reiterate the point that only 18% of people think that it would make a difference.
Mr Blunt
I am grateful for that intervention, because I had misheard the hon. Gentleman and would not want to mischaracterise his arguments. He makes the point that I was coming to, which is that the Federation of Small Businesses says in its submission that it sees an argument in principle for the measure, a point that was reflected in what my hon. Friend the Member for Stone said. In a sense, it is axiomatic that, at the European level, there would be a case for such a measure. The FSB has made it clear that its support for a common European sales law is dependent on its being clear and simple for small and medium-sized enterprises to use, without placing unreasonable burdens on business. We will look closely at those details in the consultation.
I can assure right hon. and hon. Members that any development in the Government’s position on the dossier will be made on the basis of good evidence of need and a robust analysis of the impacts. The Government will pay particular consideration to whether the proposed regulation is a proportionate response to the problems envisaged by the Commission, whether that response complies with subsidiarity and whether the treaty base is appropriate for the measures proposed. We will work with all those most affected by the change, engaging with business and consumer groups in particular. I hope and expect that we will incorporate contributions from Governments in other member states and from the European Parliament.
Let me answer the point made by the hon. Member for Stoke-on-Trent South, who suggested that Her Majesty’s Government should go around trying to encourage Parliaments in other member states to take an interest. We do not think it proper for Her Majesty’s Government to do that. Indeed, he will have heard the suggestion in my opening remarks to the effect that parliamentary groups and authorities should take up the challenge that he has thrown down to them. Given the law of unintended consequences, I fear that if the Government tried to do that, it might be less convincing than fellow parliamentarians trying to act on other national Parliaments, which might be rather more effective.
Henry Smith (Crawley) (Con)
It is indeed important that our Parliament should liaise with EU Parliaments on that point. Last week I had the pleasure of meeting some Danish parliamentarians—my counterparts on their equivalent to the European Scrutiny Committee—who are also opposed to this European measure. It is important that those representations are made through you, Mr Deputy Speaker, to other European Assemblies.
Mr Blunt
I think you have just had a request for action, Mr Deputy Speaker, from my hon. Friend the Member for Crawley (Henry Smith). I commend the work done by members of the European Scrutiny Committee, who have done a particularly good job here. We are going to work with Members here and in the other place and, of course, with the European Scrutiny Committee in taking forward work in this area.
Question put and agreed to.
Resolved,
That this House considers that the Draft Regulation of the European Parliament and of the Council to introduce a Common European Sales Law (European Union Document No. 15429/11 and Addenda 1 and 2) does not comply with the principle of subsidiarity, for the reasons set out in Chapter 5 of the Forty-Seventh Report of the European Scrutiny Committee (HC 428-xlii); and, in accordance with Article 6 of Protocol (No. 2) of the Treaty on the Functioning of the European Union on the application of principles of subsidiarity and proportionality, instructs the Clerk of the House to forward this reasoned opinion to the Presidents of the European Institutions.
Oral Answers to Questions
Crispin Blunt Excerpts(13 years, 1 month ago)
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Greg Mulholland (Leeds North West) (LD)
2. What steps he is taking to ensure the provision of adequate legal advice in young offender institutions.
The Parliamentary Under-Secretary of State for Justice (Mr Crispin Blunt)
The training requirement to carry out the Prison Service order requiring legal services officers to be available in every prison, including young offender institutions, could not be delivered. In future, governors will be required to give prisoners information on how to access legal advice as part of their induction into custody. The Prison Service order will be promulgated before the end of the year. Juvenile offender institutions have discrete advocacy services available for prisoners under 18 years old.
Greg Mulholland
I thank the Minister for that answer. Last year a study of 25 young offender institutions and 300 requests for legal help from young people showed that 80% of those struggling to access legal advice were from a black and ethnic minority background, and 9% were female, which is disproportionate when compared with the general population. What plan do the Government have to tackle that?
Keith Vaz (Leicester East) (Lab)
Will the Minister agree to meet me and other interested groups to discuss the issue? The only way to combat the high level of discrimination is to be able to discuss it with those concerned.
Simon Wright (Norwich South) (LD)
3. What plans he has to increase the scope of the Freedom of Information Act 2000.
Stephen Barclay (North East Cambridgeshire) (Con)
10. What steps he is taking to increase the amount of time probation officers spend with offenders.
The Parliamentary Under-Secretary of State for Justice (Mr Crispin Blunt)
We have already taken steps such as reducing the number of targets and revising national standards to increase the time spent face to face with offenders. The Ministry is taking forward the offender engagement programme of work further to cut red tape and give probation officers back their professional discretion.
Stephen Barclay
In July, the Justice Committee found that, under the previous Government, just 25% of probation service staff time was spent with offenders. I welcome the fact that, in Cambridgeshire, that figure has improved to more than 60%, but I urge the Government to take further steps, given that that has a crucial role in tackling reoffending.
Mr Blunt
I am delighted to hear of that excellent performance in Cambridgeshire. That is evidence of the good practice now flowing from freeing probation officers from the highly prescriptive target setting and performance management that led to that 24% figure. That is what happens when 60 pages of national standards are reduced to three, and professionals are supported with decent guidance and allowed to get on with doing the job to the best of their ability in the public interest.
Paul Goggins (Wythenshawe and Sale East) (Lab)
Ministers have already acknowledged that probation officers will have to spend more time monitoring dangerous offenders on licence in the community as a result of introducing the new extended determinate sentence. What estimates has the Minister made of the additional costs of this extra supervision?
Mr Blunt
It will be some time before prisoners are being released from the sentence framework that we have just introduced, because those sentences apply to people who receive sentences of more than six years’ imprisonment, and the extended sentences will be many years ahead, so we have not yet done a detailed assessment.
Andrew Griffiths (Burton) (Con)
11. What steps he is taking to increase prison tariffs for people sentenced for carrying knives.
The Parliamentary Under-Secretary of State for Justice (Mr Crispin Blunt)
The first results against which payment will be made in the two pilots at Her Majesty’s prisons Peterborough and Doncaster will be available in 2014. I am visiting Peterborough prison on Friday to make my initial assessment of the ONE service. I will look in particular at the methodology and evidence from case studies as it is too early for statistical data to be available.
Mr Spencer
The Minister may be aware of a case close to my constituency in which a paedophile was allowed out from a secure health unit on unescorted day release, only to commit a crime against a 10-year-old constituent of mine. I support the Minister’s plans to make improvements when these companies get things correct, but what plans does he have to deal with such companies when they get it wrong?
Mr Blunt
As my hon. Friend has made clear, that case involved a patient who was detained under mental health legislation, under which unescorted leave requires the approval of the Secretary of State, a risk assessment and a recommendation from a responsible clinician. There are no proposals for companies to make such decisions.
Gavin Shuker (Luton South) (Lab/Co-op)
The Minister talks about payment by results for companies. It is clear that in his review of probation and payment by results next year, there is significant uncertainty about the role of smaller probation trusts. Bedfordshire probation trust is one of the smallest but best performing trusts. Can he give an assurance that its role will be upheld in any subsequent review?
Mr Blunt
The hon. Gentleman needs to understand that we are piloting payment by results in six ways in 20 different pilots to see what is the most effective way of delivering it. It might be by putting the responsibility on probation trusts, prisons, local authorities or chiefs of police. We are looking at all those things and will see what is the most effective way to take payment by results forward in the interests of us all.
Mr James Clappison (Hertsmere) (Con)
14. What progress he has made in implementing his plans for the rehabilitation of prisoners.
Katy Clark (North Ayrshire and Arran) (Lab)
17. What assessment he has made of the level of support available to families of people who have been victims of corporate manslaughter; and if he will make a statement.
The Parliamentary Under-Secretary of State for Justice (Mr Crispin Blunt)
In England and Wales, victims of corporate manslaughter are eligible to receive the same support as victims of homicide from the national homicide service, which provides tailored and intensive one-to-one support to bereaved families for as long as they need it. Support for victims of crime in Scotland is a devolved matter.
Katy Clark
I am very grateful to the Minister for that answer. My constituents Dorothy and Douglas Wright recently received an apology from the Director of Public Prosecutions following the failure to take corporate manslaughter action when their son Mark died. They did not get access to such a service, and their experience is that families of those who die in such circumstances do not get such access. Will the Minister consider that issue?
Mr Blunt
Of course, this is a devolved matter for the hon. Lady’s constituents in Scotland, but I am quite happy to consider the development of the whole doctrine of corporate manslaughter. It is very important that the families of those who may be corporate manslaughter victims receive the necessary support, even if a prosecution cannot be successfully secured. That means that Victim Support needs to be notified that there is a requirement of support, which is sometimes not completely clear when someone dies in circumstances that might or might not lead to an investigation or successful prosecution for corporate manslaughter. However, I am very happy to consider the matter.
John Robertson (Glasgow North West) (Lab)
19. What steps his Department is taking to provide compensation for victims of overseas terrorism.
The Parliamentary Under-Secretary of State for Justice (Mr Crispin Blunt)
The issue of compensation for victims of terrorism overseas is being considered alongside the Government’s review of victims’ services and compensation, at the conclusion of which we will publish a consultation document. We plan to make an announcement on victims of terrorism overseas at the same time as we launch the consultation, which we intend will be before Christmas.
John Robertson
Déjà vu, Mr Speaker: on 28 June, when my hon. Friend the Member for Derby North (Chris Williamson) asked a question on compensation for victims of overseas terrorism, the Minister replied:
“In the coming weeks we intend to launch a public consultation on victims services”—[Official Report, 28 June 2011; Vol. 530, c. 749.]
Nineteen weeks down the road, we are still waiting for it. Will the Minister please tell me this: will he put the victims first and forget about his petty differences with the Opposition?
Mr Blunt
I can assure the hon. Gentleman that I have no petty differences with the Opposition. There are a number of difficult issues to resolve, but the delay is absolutely in the interests of victims, as we identify greater resources so that we can wrestle with the wretched situation that we inherited from the criminal injuries compensation scheme, which was £750 million in debt. We must sort those things out, and once we have done so, we will be able to come forward with a satisfactory policy for victims of crime.
Simon Hughes
May I say to the Minister that this is an inherited matter that has now lasted for 18 months? There is an obligation on the Government to sort it out soon. Can he give a commitment that victims will get their answer before the end of this calendar year?
Gordon Henderson (Sittingbourne and Sheppey) (Con)
T3. At Swaleside prison in my constituency, the Kainos Community programme has an 87% success rate in reducing reoffending by inmates taking part in the scheme. Will my hon. Friend acknowledge this success, and extend the scheme across the prison estate?
The Parliamentary Under-Secretary of State for Justice (Mr Crispin Blunt)
I have seen the Kainos scheme in other prisons, and I am looking forward to visiting my hon. Friend’s constituency to see it work at first hand. Of course, we will want to learn the lessons and apply them, so that we can begin to achieve those kinds of reoffending rates—if they are as described—on a sustainable basis.
Rehman Chishti (Gillingham and Rainham) (Con)
T5. According to a written question that I asked the Minister earlier this year, in 2009 the disciplinary punishment of additional days for bad behaviour in prisons was imposed on 11,550 occasions. What steps are being taken to improve discipline and behaviour in prisons?
Mr Blunt
There is a zero-tolerance policy for any violence in prison towards staff, visitors or other prisoners. In addition, one should not underestimate the importance of our proposals on work in prisons. If we can put in place a much more useful prison regime under which far more prisoners are engaged in useful work, it will aid the delivery of discipline in our prisons.
Michael Connarty (Linlithgow and East Falkirk) (Lab)
T4. Could I ask whether the Secretary of State will identify the amount of savings he will make in his planned reductions for legal aid in social welfare law and identify the amount of knock-on cuts to the Scottish budget through the Barnett formula? Could he confirm that, if there are cuts, the Scottish Parliament does not have to follow the savage cuts in welfare law legal aid?
Gloria De Piero (Ashfield) (Lab)
T7. I wrote to the Justice Secretary six weeks ago on behalf of my constituent Gary Thrall, but have not yet had an answer. May I ask him again to look at this case and at the fact that 16 months on from a vicious knife attack, Gary has yet to receive a final settlement from the Criminal Injuries Compensation Authority or to be advised of the likely time scale for the settlement, which is preventing the family from moving on?
Philip Davies (Shipley) (Con)
According to figures from the Department, 10% of all crimes are committed by people on bail and 20% of burglaries are committed by people on bail. When the provisions in the Legal Aid, Sentencing and Punishment of Offenders Bill come into effect, which will make it harder for courts to remand people in custody, what estimate has the Department made of the number of crimes that will be committed by people on bail then?
Alok Sharma (Reading West) (Con)
One of my constituents who was witness to a burglary and theft in the local area has made me aware that the youth defendant who pleaded guilty on two counts was required as part of his rehabilitation order to spend three weeks at summer arts college. Does the Minister believe that it is time to review some elements of the community sentencing framework?
Mr Blunt
We are going to look at the community sentencing framework, as I announced to the House last week. We are absolutely clear that the whole framework has to carry public confidence that there will be effective punishment in the community, while at the same time delivering effective rehabilitation. A sentence that protects the public and delivers restoration to the victim is a key part of our consideration.
Diana Johnson (Kingston upon Hull North) (Lab)
We have an excellent community legal advice centre in Hull. What are the Minister’s views on the future funding of CLACs and community legal advice networks?
Tom Brake (Carshalton and Wallington) (LD)
The Government are committed to ensuring that women are not sent to prison in disproportionately high numbers. May we have an update on the Corston report?
Mr Blunt
The Government support the objectives of the Corston report, as did our predecessor, and as we did in opposition. There are only one or two elements of it that we are unable to deliver, such as the recommendation for more smaller custodial units. As was made clear in the exchanges that followed the question asked by my hon. Friend the Member for Maidstone and The Weald (Mrs Grant), one of our main priorities is to make progress on the Corston agenda and to learn some of its lessons in how to deal with not just women prisoners, but all prisoners.
Yvonne Fovargue (Makerfield) (Lab)
The Money Advice Service has sacked 100 front-line staff in order to spend more money on publicity. Does the Secretary of State now regret removing nearly all debt advice from the scope of legal aid, and what cross-departmental discussions is he having about the future of such advice?
Mrs Mary Glindon (North Tyneside) (Lab)
Given that probation trusts are experiencing major cuts in their budgets, can the Minister explain how he expects them to do more for less?
Mr Blunt
Probation trusts have been relatively well protected given the current environment. The additional cuts are at least 13% less than the overall cut in the Ministry of Justice budget, which shows that we are making the protection of the front line a priority in order to ensure that services are delivered effectively. However, like everyone else, probation trusts will have to make their contribution to rescuing our nation’s economy from the wretched mess in which it was left by the last Administration.
Legal Aid, Sentencing and Punishment of Offenders Bill
Crispin Blunt Excerpts(13 years, 1 month ago)
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The Parliamentary Under-Secretary of State for Justice (Mr Crispin Blunt)
I beg to move, That the clause be read a Second time.
Mr Speaker
With this it will be convenient to discuss the following:
Government new clause 24—Power to increase certain other fines on conviction by magistrates’ court.
Government new clause 25—Power to amend standard scale of fines for summary offences.
Mr Blunt
The new clauses are designed to remove the upper limits on the fines that can currently be imposed in magistrates courts. Raising the upper limits on fines gives sentencers greater flexibility to identify the most effective punishment appropriate to the offences and offenders before them, particularly when combined with other disposals such as suspended sentences when offenders are close to the custodial threshold.
The Government believe that financial penalties, as long as they are set at the right level, can be just as effective as community payback or curfews in punishing offenders and deterring them from further offending. Fines hit offenders where it hurts: in their pockets. They also have the advantage of not affecting opportunities for employment or having an impact on family responsibilities, and hence can prevent further acceleration into a criminal lifestyle. Moreover, they do not impose a further burden on the already hard-pressed taxpayer or on society as a whole. Not only are fines punitive; they provide reparation for society, and serve as part of offenders’ restoration to all of us.
That is why courts already have flexibility to impose fines in cases that have passed the community sentence threshold. It is entirely right for them to be able to consider the circumstances of the offences and of the offenders before them, and, having weighed up the various purposes of sentencing, to decide that a fine will provide an appropriate level of punishment and deterrence without needing to consider a community order. Courts already have wide discretion to make use of fines in appropriate cases, and the Government want to support and encourage that.
We particularly wish to ensure that magistrates, who issue the vast majority of fines, have the powers that they need to set fines at levels that are proportionate to the most serious offences that come before them for trial. These clauses therefore make two key changes to the way that fines operate in the magistrates courts. The first is to replace all upper limits of £5,000 or more for fines available on summary conviction. At the moment, where an offence is triable on summary conviction only, magistrates do not have the option of committing the case to the Crown court for sentence and are constrained in their ability to fine by the statutory maximum fines. For the most serious offences tried by magistrates, that is generally £5,000, although for certain offences where the financial gain from offending is substantial—for example, in some environmental offences—the maximum fine can be as high as £50,000.
For less serious offences, we believe that it is right to retain the differentials between the punishments. However, we wish to give Government and Parliament more flexibility to amend these maxima as the need arises.
Mr Blunt
If my hon. Friend will forgive me, I need to conclude my remarks and allow the Opposition to respond.
The second change these clauses propose is to give the Secretary of State a power to increase the current maximum fine amounts for levels 1 to 4 on the standard scale of fines for summary offences. These amounts are currently £200, £500, £1,000 and £2,500. The new power would be to increase these so as to keep them in the same ratio to one another as at present. There is already a similar power to change them in line with changes in the value of money, so the new power would be an extension of that. We intend to consult on the right level at which to set these new maxima.
That should form part of a wider review of sentences served in the community, so I want to use this debate to notify the House that we are entering a review process, which we intend will in due course lead to a formal public consultation on community sentences. For too long, community sentences have failed to punish offenders properly for their actions, and the Government are committed to changing that. We are already taking action, including through this Bill, to strengthen community orders, but we want to go much further and deliver a step change in the way sentences operate. They must, of course, address the problems that have caused the offending behaviour in the first place—the drug abuse, the alcoholism, the mental health problems—but they must also punish properly and send a clear message to society that wrongdoing will not be tolerated. We want to see a clear punitive element in every sentence handed out by the courts.
We will consult on further reforms to ensure that community sentences effectively punish and rehabilitate offenders. That should include consulting on what constitutes effective delivery of the principles of sentencing, punishment and rehabilitation, as I have mentioned, but also on protection of the public, restoration and how the whole package can produce the most effective deterrent to crime. A part of this consultation will be on the new maxima at levels 1 to 4 in the magistrates courts.
The Government want offenders to be in no doubt that the courts have the powers they need to punish their crimes. Once the victim’s compensation has been addressed—and if an offence presents no wider issues of reparation or public protection—if a court believes that a fine would be the best way of punishing an offender and deterring future offending, then we want to ensure that there are no barriers to courts setting the fine at the appropriate level.
To sum up, these new clauses would remove the £5,000 cap on fines that magistrates can impose, so that they are able to use their discretion and set fines that are proportionate to the offences before them. That will also improve the efficiency of the court system, by removing the need for magistrates to send cases to the Crown court when they feel the current maximum fine is not a severe enough punishment for the offenders before them. For offences with caps set at less than £5,000, we propose to retain the current structure of differential maxima, with a power to increase them as necessary.
I urge Members to support the measures.
Mr Slaughter
I thank the Minister for his clear account of the effects of these proposals, but I wonder why they are being introduced at this stage. He may wish to explain that. They are not controversial. We do not intend to oppose them as we think their measures are sensible, and we are glad that the Government are, for once, in favour of judicial discretion. They made certain concessions in Committee, one of which was not withdrawing magistrates’ powers to impose longer custodial sentences. We believe the magistrates system serves this country extremely well—this year marks its 650th anniversary. However, although these are sensible changes to current magistrates powers, we are concerned about the fact that, once again, they are part of a package of new measures.
I will not take up any more of the House’s time as we shall shortly come on to discuss two very important and significant new provisions in the criminal law, of which we have had very little notice as they have been introduced at a very late stage. I therefore simply ask again why we have had to wait until Report stage for the measures currently under discussion to be introduced. We do not oppose the proposals, however, as we consider them to be sensible and uncontentious.
Gareth Johnson
Although I support the Government’s proposals, it would make sense to remove the upper limit on financial penalties imposed by magistrates courts. The proposals do not relate to levels of compensation, so if magistrates are asked to sentence for, say, a theft of £5,000-worth of goods, they will still have to refer the matter to the Crown court for sentence if they do not have the power to award more than £5,000 compensation. I therefore wonder whether the Government would be willing to look at the levels of compensation in the future, to see if there is any scope for lifting the upper limit of compensation awards that magistrates courts can impose.
Mr Blunt
I am grateful to have this brief opportunity to respond to the points raised. Let me see if I can do justice to the grudging support of the hon. Member for Hammersmith (Mr Slaughter). I am certainly profoundly grateful that we found him in a positive mood, and the fact that he welcomes these measures gives the answer to his questions. They are appropriate measures; that is why they are being welcomed across the House.
My right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith) is absolutely right that many defendants consider a proper combination of community sentences to be much more onerous than custody—and I want to increase the opportunities for that to be seen as much more onerous than custody. My hon. Friend the Member for Shipley (Philip Davies) is not present, but I remember him citing an example from the Daily Mail about a judge who threw the book at an offender because he thought he could not send him to prison: he gave the offender a combination of community sentences that were much more onerous than the custody would have been.
We want to get to a place where we can get a better balance on sentencing, to make sure that we actually punish people in the most appropriate way and give sentences greater flexibility. That is what this measure will do. I will write to my hon. Friend the Member for Dartford (Gareth Johnson), who made an entirely proper point. I want to make it absolutely clear that compensation comes first—
Mr Deputy Speaker (Mr Nigel Evans)
Before we embark on the next debate, may I draw attention to Mr Speaker’s request, made earlier this afternoon, for brevity from the Front Benchers and Back Benchers in these debates so that all the important matters before the House for decision today can be properly considered?
New Clause 27
Reasonable force for the purposes of self-defence etc
‘(1) Section 76 of the Criminal Justice and Immigration Act 2008 (reasonable force for the purposes of self-defence etc) is amended as follows.
(2) In subsection (2) after paragraph (a) omit “and” and insert—
“(aa) the common law defence of defence of property; and”.
(3) After subsection (6) insert—
“(6A) In deciding the question mentioned in subsection (3), a possibility that D could have retreated is to be considered (so far as relevant) as a factor to be taken into account, rather than as giving rise to a duty to retreat.”
(4) In subsection (8) for “Subsection (7) is” substitute “Subsections (6A) and (7) are”.
(5) In subsection (10)(a) after sub-paragraph (i) omit “or” and insert—
(ia) the purpose of defence of property under the common law, or”.’.—(Mr Blunt.)
Brought up, and read the First time.
Mr Deputy Speaker
With this it will be convenient to discuss Government amendments 136 and 141.
Mr Blunt
I shall certainly be following Mr Speaker’s direction, and I hope that we will dispose of this matter in as short an order as we disposed of removing the limit on magistrates’ fines.
The question of how far one can go to defend oneself crops up again and again in the letters Members of Parliament receive from their constituents, and of course it is always a controversial issue in the press and the media. It usually arises because a hard-working, law-abiding home owner or shopkeeper has been forced to defend themselves against an intruder and has ended up being arrested for it. Being confronted by an assailant in one’s home, on the street or anywhere else can be a terrifying prospect. It is essential that the law in this area is clear, so that people who use reasonable force to defend themselves or to protect their properties can be confident that the law is on their side.
There will always be occasions when the police need to make an arrest to enable a prompt and effective investigation, especially if they turn up at an address and somebody is dead. We are working with the Home Office on new guidance for the police to ensure that arrests are made only where necessary, but these provisions should give people greater certainty that the law itself is on their side and they will not be prosecuted or convicted if they have only used reasonable force.
Mr Llwyd
Will the Minister advise the House how the provisions change the common law doctrine and principle of a person being able to protect his or her property using force and the doctrine of self-defence, where reasonable force is used to defend oneself? I asked the Lord Chancellor that yesterday and he told me to wait until today for the answer—I am all ears.
Mr Blunt
The right hon. Gentleman should listen out for the next passage of my remarks, as I hope it will give him and the rest of the House satisfaction.
On the specific provisions, the new clause is not designed to sweep away the fundamental premise that somebody can use reasonable force in self-defence. In my view, that aspect of the law is entirely sensible. Allowing somebody to use unreasonable or disproportionate force would be very dangerous indeed, as it would effectively sanction vigilantism or violent retribution. Instead our proposals are designed to clarify what “reasonable” force means in practice. The new clause will amend section 76 of the Criminal Justice and Immigration Act 2008 to make it clear that a person can use reasonable force to defend property in addition to defending themselves, other people or preventing crime, and that they are under no duty to retreat from an offender when acting for a legitimate purpose, although if they had a chance to retreat, the court may still consider it when deciding whether the force used was reasonable in the circumstances. We did not consult on these measures because of the limited nature of the amendments, but that should not detract from their importance in reassuring householders and small shopkeepers who use reasonable force to defend themselves and their properties that the law is on their side.
Karl Turner (Kingston upon Hull East) (Lab)
Does the Minister not accept that the law works perfectly well as it is? Some years ago, I defended someone who had chopped off someone’s ear with a samurai sword and the jury acquitted him, saying that he had used reasonable force in the circumstances.
Mr Blunt
I cannot comment on that individual case—[Interruption.] The shadow Justice Secretary tempts me down that road, but I will resist. The much clearer message that will be sent if the House chooses to accept the Government’s proposals will mean that the position should be crystal clear to householders and shopkeepers on the force that they are entitled to use. That is the purpose of these provisions. We are seeking to reassure the public, and this all sits as part of our desire to have a society that can exercise its rights and properly defend those rights, and that does not feel that people have to pass by on the other side, particularly when their lives and property are at risk.
Mr Llwyd
May I suggest to the Minister that legislating is not all about giving out signals and that it is about making law? I have no axe to grind personally with the Minister, who is a perfectly decent man and who engaged with us in Committee on many matters, above and beyond his brief. However, he may have wished to circulate a photocopy of the Crown Prosecution Service guidance on self-defence and the prevention of crime. Any fool can read and understand it, as it says simply, under the heading of “Reasonable Force”:
“A person may use such force as is reasonable in the circumstances for the purposes of: self-defence; or defence of another; or defence of property”.
It goes on to describe a further two matters. Providing a copy of that would have done, rather than using legislative time.
Mr Blunt
I am very grateful—[Interruption.] I am not embarrassed in the least. This measure forms part of the coalition agreement. We are delivering on that, sending a clear message and putting the law beyond doubt. Having things buried away in guidance to prosecutors, given that reassurance is needed for home owners and shopkeepers, is a distinctly sub-optimal way of proceeding on an issue such as this. When viewed in conjunction with the Home Secretary’s plans to strengthen the code of arrest for the police, we hope that these measures will help to fulfil the commitments in the coalition agreement on this issue. We must take together the instructions to Crown prosecutors, the legislation that I hope will go on to the statute book as a result of these Government measures and that code of arrest for the police, and I can therefore happily commend these proposals to the House.
Sadiq Khan
First, may I say, for the avoidance of doubt, that Labour Members do not intend to oppose new clause 27 or the consequential amendments, even though it is simply a rehash of an existing law and this valuable parliamentary time could have been used to discuss contentious issues that have caused real concern for many of our constituents? It was the previous Government, through section 76 of the Criminal Justice and Immigration Act 2008, who placed the common law of self-defence into statute.
Since that time, there have been a number of calls, especially from those on the right, to “tighten” the laws on self-defence because they think that is good politics. Back in February 2010, the Prime Minister argued that the law needed further tightening to benefit the home owner against the burglar. Indeed, the Conservative party manifesto said that it would
“give householders greater legal protection if they have to defend themselves against intruders in their homes.”
The Conservatives have floated on a number of occasions the issue of reasonable force and changing the law to allow anything other than actions that are grossly disproportionate. Back in December 2009, the shadow Home Secretary, now Minister of State, Department for Work and Pensions, the right hon. Member for Epsom and Ewell (Chris Grayling) committed a future Conservative Home Secretary to changing the law so that convictions against householders would happen only in cases where the actions involved were “grossly disproportionate.” But despite all the spin, that change has not materialised. The new clause will not allow home owners to use grossly disproportionate force or disproportionate force. It will not even strengthen the law. That is because expert opinion and evidence on the issue of self-defence for home owners is pretty unanimous.
It is widely accepted by those at the coal face that the law on self-defence works pretty well and it is unclear in many quarters why the law would need strengthening. The Director of Public Prosecutions, Keir Starmer QC, has said:
“There are many cases, some involving death, where no prosecutions are brought. We would only ever bring a prosecution where we thought that the degree of force was unreasonable in such a way that the jury would realistically convict. So these are very rare cases and history tells us that the current test works very well.”
That approach is further reinforced by what has happened in recent months. That is why the Minister, whom we all like, is embarrassed by having to move the new clause and why his right hon. and learned Friend the Justice Secretary, whom we all love, has disappeared from the Chamber. Recent cases involving home owners such as Vincent Cooke in Cheshire, Peter Flanagan in Salford and Cecil Coley in Old Trafford, in which intruders were killed, have demonstrated that when reasonable force is deemed to have been used, the Crown Prosecution Service has not brought any charges, so the current law works. I see that a note is desperately being passed to the Minister—it is probably a sick note from the Justice Secretary.
Paul Mendelle QC, a previous chairman of the Criminal Bar Association, said:
“The law should always encourage people to be reasonable, not unreasonable; to be proportionate, not disproportionate.”
He went on to add that the current law worked perfectly well and was well understood by juries. Just yesterday he argued in The Guardian that the two areas of change proposed by the Government are nothing of the sort. By amending section 76 of the 2008 Act so that there is no duty to retreat before force they are restating the current law. I think it is called rearranging the furniture: things might look different, but nothing of substance will have changed.
Mr Llwyd
I hear what the hon. and learned Gentleman says, and I suppose that that is right, but I come back to my earlier point that the whole process is otiose. I understand what he is saying, and he has logic on his side. We talk about logic, but parliamentary time is short. Yesterday we had to leave out consideration of a raft of important matters relating to social welfare and social justice. None of them was discussed. Yet we have time this evening to talk about something that is unnecessary. So although I respectfully disagree with the hon. and learned Gentleman, he has logic on his side. However, the new clause is not the right vehicle for clarification of the law.
Quite why the measure is being introduced now is rather baffling. I can only presume that it is to please the tabloids and that this Government, like the last, want to convince voters that they are not soft on crime. Those on the right of the Justice Secretary’s party have made clear their aspirations to amend the law on reasonable force for some time now. As far back as 2009, the then shadow Home Secretary, the right hon. Member for Epsom and Ewell (Chris Grayling), said that any future Conservative Government would push for prosecutions, and convictions, only where courts judged that the action taken had been “grossly disproportionate”. That would have stood the law on its head. A huge amount of jurisprudence would have emanated from that decision. No doubt the hon. and learned Member for Torridge and West Devon (Mr Cox) and I would have profited from it, but it would have been a bad step in my view. The Conservative party wound back somewhat after that was said.
I am glad that such an extraordinary change to the law has not occurred, at least not yet. As Michael Wolkind QC, who represented Tony Martin, who was found guilty of murder and wounding with intent under the existing law, has said, allowing householders to use force that is not “grossly disproportionate” would amount to “state-sponsored revenge”.
Indeed, an outsider looking in might be forgiven for suspecting that hundreds of people were being prosecuted every year under the current law. But an informal trawl by the CPS suggested that between 1990 and 2005 there were only 11 prosecutions of people who had used force against intruders in houses, commercial premises or private land. So that is what we are dealing with and it leads one to question why we are talking about it tonight.
As the chair of the Bar Council Paul Mendelle QC said—it has been mentioned by the right hon. Member for Tooting (Sadiq Khan), but it will stand repetition—
“The law should always encourage people to be reasonable, not unreasonable; to be proportionate, not disproportionate.”
Paul Mendelle also commented in the same article written in The Times that the present law worked well and was well understood by juries. Again, I ask why we are doing this.
Changes to the law should not be brought about to produce good sound bites. The common law of self-defence already makes it perfectly clear that a householder is able to use reasonable force against an intruder in defence of himself or herself or his or her property. Amending the existing law for no gain in matters of substance will serve only to increase vigilantism and is not a good use of parliamentary time. It could lead to people using excessive force because they think they might be above the law—“An Englishman’s home is his castle” and all that kind of thing. I do not know. It might give out all the wrong signs, not the signs that Ministers on the Treasury Bench hope and suspect they are giving out.
I believe that the new clause has more to do with internal party politics than with policy. We are using valuable parliamentary time to play this out. The amendment is otiose and serves only to play to the drum beat of the tabloid press. I have a lot of time for the Justice Secretary, who is a man of great integrity, but I fear that in introducing the new clause he is dancing to the tune of the tabloids.
Mr Blunt
I will turn to the remarks of the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd) towards the end of my speech, but first let me say how grateful I am to the right hon. Member for Tooting (Sadiq Khan) for his kind personal remarks. I was marginally upset that I did not leap the amorous threshold that my right hon. and learned Friend the Justice Secretary did, but I am grateful for the limited extent of his affection compared to that for my right hon. and learned Friend.
I was amazed at the chutzpah of the right hon. Member for Tooting in lecturing the Government about a public relations stunt and spin. It took me a moment to pick my jaw back up off the Bench as I listened to him. There is a clear answer to the right hon. Gentleman. He properly stood up for the legal system as it now sits. As my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox) said, it is an inconsistent message if we have changed section 76 of the Criminal Justice Act but have not applied it to property, so let us make the position absolutely clear to everyone that not only in the code for crown prosecutors and in the common law but in statute law, as passed by the House, property is included. That is a clear reason for making this change.
The right hon. Gentleman said that presumably the change was for an audience outside the Chamber. Yes, it is. It is all very well for sophisticates such as us, who understand the word “otiose”—used by the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd)—but the issue goes right to people’s hearts. They feel that they are entitled to defend their home or their shop, and we owe it to them to make it crystal clear that we absolutely support them in defending themselves, their families and their property. The proposals make that absolutely clear. We need to understand that when something is so central to how everybody feels about their home, shop or place of business we must send a clear signal from this place about whose side we are on.
Sadiq Khan
I am sorry to interrupt the Minister’s flow, but I have a simple question. Once the law is on the statute book, will a home owner have more rights, fewer rights or the same rights as they have now?
Mr Blunt
The home owner will have much greater reassurance about exercising their rights. [Interruption.] It is all for well for the lawyers on the Opposition Benches to cackle and say that the provision will not make any strict legal difference; it makes a profound difference in the reassurance that people will feel about operating in defence of their property and their life, which is why I am happy to commend the new clause to the House.
Question put and agreed to.
Clause read a Second time and added to the Bill.
New Clause 26
Offence of squatting in a residential building
‘(1) A person commits an offence if—
(a) the person is in a residential building as a trespasser having entered it as a trespasser,
(b) the person knows or ought to know that he or she is a trespasser, and
(c) the person is living in the building or intends to live there for any period.
(2) The offence is not committed by a person holding over after the end of a lease or licence (even if the person leaves and re-enters the building).
(3) For the purposes of this section—
(a) “building” includes any structure or part of a structure (including a temporary or moveable structure), and
(b) a building is “residential” if it is designed or adapted, before the time of entry, for use as a place to live.
(4) For the purposes of this section the fact that a person derives title from a trespasser, or has the permission of a trespasser, does not prevent the person from being a trespasser.
(5) A person convicted of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding 51 weeks or a fine not exceeding level 5 on the standard scale (or both).
(6) In relation to an offence committed before the commencement of section 281(5) of the Criminal Justice Act 2003, the reference in subsection (5) to 51 weeks is to be read as a reference to 6 months.
(7) For the purposes of subsection (1)(a) it is irrelevant whether the person entered the building as a trespasser before or after the commencement of this section.’.—(Mr Blunt.)
Brought up, and read the First time.
Mr Deputy Speaker (Mr Nigel Evans)
With this it will be convenient to discuss the following:
Amendment (a) to new clause 26, line 7, at end insert—
‘(2A) The offence is not committed where the building has been empty for six months or more and where there are no significant steps being taken to refurbish, let or sell the building at the time of the trespass.’.
Amendment (c) to new clause 26, line 22 leave out subsection (7) and insert—
‘(7) For the purposes of subsection (1)(a) no offence is committed if the person initially entered the building as a trespasser before the commencement of this section.’.
Government amendment 140
Mr Blunt
The Government are very concerned about the harm that squatters can cause. Residential and non-residential property owners have contacted Ministers repeatedly about the appalling impact that squatting can have on their homes and businesses. These are not media scare stories; they are very real and stressful events for victims whose properties have been occupied.
It is not just a question of the cost, length of time and incredible hassle involved in evicting squatters. Properties can be left in a terrible state after the squatters have been evicted and owners may face hefty cleaning and repair bills. While the property owner is literally left picking up the pieces, the squatters have gone on their merry way. They might even be squatting in somebody else’s property.
The current law already offers some protection to both non-residential and residential property owners. Squatters may be guilty, in certain circumstances, of offences such as criminal damage and burglary. There is also an offence under section 7 of the Criminal Law Act 1977 that protects certain residential property owners. It applies when a trespasser fails to leave residential premises on being required to do so by or on behalf of a “displaced residential occupier” or a “protected intending occupier.” This means that people who have effectively been made homeless by squatters can ask the trespasser to leave, and if the trespasser refuses to leave, they can report an offence to the police.
We do not think the existing legal framework goes far enough to tackle the problems I have just described. The offence under section 7 of the 1977 Act does not protect non-residential property owners or many residential property owners, including landlords, local authorities and second home owners, who cannot be classified as displaced residential occupiers or protected intending occupiers. Following the conclusion of a recent public consultation exercise, we have decided that decisive action is needed now to criminalise squatting in residential buildings. We want to reassure owners and lawful occupiers of residential property that the law will protect them should trespassers occupy their properties. We want to send a clear message to would-be squatters that it is simply not acceptable to occupy someone else’s home.
Tracey Crouch (Chatham and Aylesford) (Con)
I am sure the Minister will recall that a year ago tomorrow he met my constituent Steve Cross, a commercial property manager. The Government are clearly concerned about the impact of squatting in commercial property, so it is surprising that the new clause, which I entirely support, does not include greater protections for commercial properties. Will the Minister reassure my constituent that the Government have not forgotten the devastating impact of squatting on commercial property managers, and that they will continue to look at ways of strengthening the law to provide greater protection against squatters in commercial properties?
Mr Blunt
I am grateful to my hon. Friend for her intervention and for bringing her constituent to see me. I absolutely give her that reassurance, and I will do so in terms during my prepared remarks, which I hope will show her that I have not forgotten that the consultation identified the fact that 50% of the harm caused by squatters was to the owners of commercial premises. Although we are not proposing to criminalise such squatting with these measures, it is certainly not forgotten.
We recognise that this is a controversial area of policy. Many homelessness charities, for instance, are likely to continue to say that the new offence will criminalise homeless and vulnerable people who squat in run-down residential properties, but one of the reasons that the properties remain in that state is that the owners cannot get in to renovate them because the squatters are present. Consultation responses indicated that squats can be unhygienic and dangerous places to live and are no place for genuinely vulnerable people. That is why we will ensure that reforms in this area are handled sensitively, in conjunction with wider Government initiatives to tackle the root causes of homelessness. We are also working to provide affordable homes and to bring more empty homes back into use.
Jeremy Corbyn (Islington North) (Lab)
The Minister will, like me, have read the documents presented by Crisis, which indicate that 40% of homeless people have been squatters at some time, and that because they are often single people, they have great difficulty in getting local authority or housing association accommodation, and there are 700,000 empty properties in the country. What are homeless people supposed to do?
Mr Blunt
I will deal with the amendments tabled by the hon. Member for Hayes and Harlington (John McDonnell), who has quite properly raised concerns in this area, and I will go into some detail to give the hon. Member for Islington North (Jeremy Corbyn) a proper answer to his question.
As my hon. Friend the Member for Chatham and Aylesford (Tracey Crouch) said, there are others who will say that any new offence should extend to squatting in commercial premises. As I said to her, I remain concerned about squatting in those properties and will work with other Departments and the enforcement authorities to see whether action against existing offences such as criminal damage and burglary could be enforced more effectively in those cases.
The Metropolitan police acknowledged, in response to our consultation, that a lack of training and practical knowledge regarding the law on squatting may be a barrier to effective enforcement. My officials will work with the Home Office and the wider police service to address these issues and fill any gaps in current police practice. We will keep the situation under review in relation to non-residential property and are not ruling out further action in the future if it is needed.
Jim Shannon (Strangford) (DUP)
Will the legislation provide for co-operation or contact with services—electricity, water and so on—to those houses as a method whereby people can be taken out of those houses to ensure that the squatting does not continue? Will that be covered by the legislation?
Mr Blunt
That is not strictly within the terms of what is proposed here. The effect would be to criminalise those who are squatting in residential premises and to create a new offence. As a first step we intend to limit the new offence to squatting in residential buildings. We consider that this option strikes the best balance. It will protect those who are likely to suffer most from squatting—those whose homes are taken over by squatters.
I shall turn now to the amendments tabled by the hon. Member for Hayes and Harlington. I know that he is a supporter of the campaign group Squatters Action for Secure Homes, and I also know that he agrees with the arguments put forward by homelessness charities, such as Crisis, that criminalising squatting will impact on homeless people who squat. I fully understand why he tabled the amendments, but I will take this opportunity to explain why I do not agree with them.
On amendment (a), many squatters claim that they do not cause any harm to anybody because they look for empty properties to occupy. In the responses to our recent consultation exercise, that point was made by squatters and squatters groups, but respondents who made that argument were missing one rather important point: the houses are not theirs to occupy. There are many reasons why a house might be left empty for more than six months without any steps being taken to refurbish, let or sell the building. For example, somebody might decide to do charitable work in another country for a year, or they might visit their second home during the summer months only. It is the owner’s prerogative to leave the house empty in those circumstances. To say that property owners or occupiers should not be protected by the criminal law in these circumstances would be unjust and it would considerably weaken our proposed new offence.
Consultation responses highlighted a concern about the number of properties that are left empty on a long-term basis. They argued that such properties can crumble into disrepair and might be seen as a blight on the local neighbourhood. But permitting squatters to occupy derelict, crumbling, unsafe houses cannot be the answer. We are doing a number of things to encourage absent owners to make better use of their properties.
We want to increase the number of empty homes that are brought back into use as a sustainable way of increasing the overall supply of housing, and to reduce the perception of neglect that can blight neighbourhoods. Reducing the number of empty homes will also help to reduce the incidence of squatting. That is why we have announced £100 million of capital funding within the affordable homes programme to tackle problematic empty homes—that is properties that are likely to remain empty without extra direct financial assistance from the Government. This programme will deliver at least 3,300 affordable homes by March 2015, as well as engaging local communities in dealing with empty homes in their area.
Amendment (c) is designed to exempt squatters from the offence if they occupy residential buildings before the date of commencement. Let me be clear that we have no plans to punish people retrospectively. If they have squatted in the past but are no longer squatting when the offence comes into force, the offence will not apply. However, we would be creating a significant loophole if we exempted squatters who initially entered the building as a trespasser in the run-up to commencement even though after commencement of the offence they remain in the building as a trespasser, they know or ought to know that they are a trespasser and that they are living there or intend to live there. Such an occupation would be no less painful for the property owners concerned.
I appreciate that the hon. Gentleman and others are concerned that the new offence might penalise vulnerable, homeless people who squat in run-down residential properties. One of the reasons they remain in this state is, as I said, because the owners cannot get in to renovate them. It would be much better for us to introduce an offence that is capable of protecting law-abiding property owners and occupiers on the one hand, while working with other Government Departments, local authorities, the police and homelessness charities to continue to address the root causes of homelessness and to mitigate any impacts the new offence might have on the levels of rough sleeping.
We are prioritising spending on homelessness prevention, investing £400 million over the next four years, with the homelessness grant being maintained at the 2010-11 level. For the first time, we have also brought together eight Departments through the ministerial working group on homelessness to tackle the complex causes of homelessness. The group published its first report “Vision to end rough sleeping” in July 2011, which sets out joint commitments to tackle homelessness and to ensure that nobody has to spend more than one night out on our streets—“No Second Night Out”. This includes actions to prevent homelessness for those people without a stable home who may be at risk of rough sleeping. For those reasons, I invite the hon. Gentleman to withdraw his amendments.
Caroline Lucas (Brighton, Pavilion) (Green)
It feels as though we are in a different world when the Minister describes these as measures to tackle homelessness and when one considers everything that the Government have been doing with their housing benefit cuts and with their cuts in shared room rate, which organisations say will cause thousands more people to become homeless. Is he not cognisant of those arguments being put forward very forcefully by those charities?
Mr Blunt
I absolutely support the measures being brought forward by my colleagues at the Department for Communities and Local Government. The Minister for Housing and Local Government is absolutely right. One cannot but be impressed by his huge determination in chairing the ministerial group to address this issue. It is the other side of the equation, and I hope that it addresses the amendments and answers the question from the hon. Member for Islington North.
The hon. Member for Strangford (Jim Shannon) asked about linking up with the utility providers. It is already an offence under the Theft Act 1968 to use electricity without authority and the maximum penalty for that is five years’ imprisonment.
I hope that the House will welcome this move to protect home owners and lawful occupiers of residential property from squatters.
John McDonnell
The point made by most people in the consultation, including the police, is that if elements of section 7 need tidying up, there should be a proper discussion about that. However, to criminalise an entire group in society is to over-react to a problem that is relatively minor, although I do not wish to underestimate the problem that appears to be caused to some home or property owners.
Mr David Ward (Bradford East) (LD)
Thank you, Mr Speaker, for the four minutes.
A lot has been said. We have heard about parallel universes; indeed, we come here from different parts of the nation to offer different views. We have heard that the Englishman’s home is his castle. It is awful for people when their home is broken into; it feels desecrated and dirty. Where have the intruders been and what have they been up to? It is an awful feeling and we understand it, but when I heard some of the comments from Government Members I thought about my perspective—my universe.
When we talk about squatters, people think in terms of their own home, but that is a far cry from my experience of squatters. I am talking about people in places where there is no electricity, gas or water. There is no toilet and in some cases there is not even a roof. The properties are cold, damp, dark and very dangerous, with rats, stench and disease. They are also very violent places.
What about the squatters? We are not talking about hippy communes, with bean bags, beer and loud music, or about scroungers who ought to pull their socks up and get a job or go back home. We are talking about people without friends or families, and possibly without futures. In my experience, no one squats if an alternative is available.
That may not be the experience of other people, but it is mine. Debate on the provisions on legal aid and social welfare was shamefully evaded last night, but so many people in squats have suffered as a result of the failure of our system. In many cases, the state has put them into that position, whether the health service or the council; 78% of squatters have been turned away by their local authority. The failure may relate to employment support, or people may have just been downright unlucky.
Where on earth is the value in adding a criminal record to the problems those people face? The proposals are irresponsible. They are costly. At a time when we are being asked to do so many things that are unpleasant and unpopular, but possibly necessary for the deficit reduction plan, these proposals would simply add to the costs that we will all have to face, if not in our communities then in Armley prison. It does not make sense. The proposals do not add up.
The two universes could be brought together through amendment (a), which is a compromise that would improve the enforcement of existing legislation, with the back-up of the six-months provision. I shall support it.
Mr Blunt
It is pleasure to follow the hon. Member for Bradford East (Mr Ward), with the undoubted candour that he brought to his remarks. However, I profoundly disagree with him. It is a basic premise that if one takes someone else’s home, one has stolen from them one of the most important things for any of us. I am afraid we are going to part company on that principle, and as he will have heard in my opening remarks, the issue of homelessness has to be addressed in that strategy.
I thank the official Opposition for their support, presented with his usual enthusiasm by the hon. Member for Hammersmith (Mr Slaughter). There was a moment when the charming side of the hon. Gentleman almost escaped—his rather touching revelation about his aptitude for politics when assessed by an external examiner at A-level. For that at least, I am grateful. However, to challenge us about talking business out, when he made a three-hour speech on the first group in Committee, would have come better from someone else.
The hon. Gentleman made an accusation that there was no clarity. There is absolute clarity in what we are doing. To try and escape into the issue of when a bothy is not a bothy, which will not be entirely clear to hikers, was the refuge of the desperate. When people are hiking they are clear where bothies are, and if they are not, they should not be undertaking the hike.
The hon. Gentleman asked about the benefits of the measure and the impact assessment. The impact assessment is clear. It has to identify benefits and potential risks. The benefits section of the impact assessment makes it clear that there could be significant benefits for residential property owners in the form of reduced legal costs in particular. Perhaps that puts into context the lobby by the legal profession. The impact assessment also suggests that if the offence acts as a deterrent, the instances of squatting may decrease.
I am grateful to my hon. Friend the Member for Hove (Mike Weatherley) for his excellent speech and the impressive campaign that he has waged on the issue. He made the point that we owe a duty to the homeless, a view shared by all on the Government Benches. His pertinent challenge to find any case where squatters have improved a property by virtue of their occupation was extremely telling.
In my opening remarks I tried to answer the terms of the amendment tabled by the hon. Member for Hayes and Harlington (John McDonnell), who asked us not to legislate on the basis of anecdote or prejudice. I say to him and to the hon. Member for Vauxhall (Kate Hoey) that the issue is hardly a surprise. It has been around for a very long time. The Prime Minister announced the consultation back in June. We have consulted for 12 weeks, and what we have tabled is a limited proposal. Those on the Opposition Front Bench feel able to support it because it is limited to residential properties.
As I said, we will keep the other areas under review, particularly commercial property. We recognise that that will be more controversial. That is why the proposals are limited to subjects on which we believe there is widespread agreement. In the words of the hon. Member for Hammersmith, those on the Front Bench support criminalisation as it represents arrogant behaviour on the part of squatters, who think they can just take someone else’s property.
The hon. Member for Hayes and Harlington said that only seven victims of squatting responded to the consultation, but a number of local authorities responded and a number of law firms responded on behalf of several of their clients who had been victims of squatting. My hon. Friend the Member for Bury North (Mr Nuttall) made the same point and I am delighted to find myself in absolute agreement with him. Four landlords associations representing a very large membership responded to the consultation and they all shared a desire to strengthen the law.
My hon. Friend the Member for Finchley and Golders Green (Mike Freer) made a powerful case. He made the basic point that what we are addressing here is something that is fundamentally wrong. It is wrong to steal someone else’s home and that is what the new clause will address—
Domestic Violence, Crime and Victims (Amendment) Bill
Crispin Blunt Excerpts(13 years, 2 months ago)
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The Parliamentary Under-Secretary of State for Justice (Mr Crispin Blunt)
My first duty is to congratulate the hon. Member for Caerphilly (Mr David). I think this is the first time that we have met across the Dispatch Box following the reshuffle on the Opposition Benches, so I welcome him to his place. I congratulate him on the crisp way in which he presented Her Majesty’s Opposition’s support for the Bill, following through on the support that his hon. Friend the Member for Hammersmith (Mr Slaughter) gave it in Committee.
I join other hon. Members in congratulating my hon. Friend the Member for Mole Valley (Sir Paul Beresford) on steering the Bill through the House to this stage. This very worthwhile measure would provide increased protection for children and vulnerable adults who are at risk of serious physical harm from members of their own household, and it is a prime example of my hon. Friend’s unstinting efforts to protect vulnerable people, especially children, from harm.
I echo the comments of my hon. Friend the Member for Truro and Falmouth (Sarah Newton) about what makes an effective parliamentarian. My hon. Friend the Member for Mole Valley, who is my parliamentary neighbour, has had an outstanding wider political career, first as leader of a London local authority, for which he was properly recognised by Her Majesty, then in this place, starting on the Back Benches and then as a Minister with responsibility for local government, and after that, both in opposition and now, as an absolutely unstinting champion of children at risk. Mr Speaker, I know that you, along with the rest of us, have a special place for my hon. Friend for the work that he has done. You will recognise, as we all do, that when Members take up a cause and drive forward on a narrow agenda, it is remarkable how much progress they can make and how much influence they can bring to bear. The Bill—
Mr Speaker
Order. The Minister’s encomium to the hon. Member for Mole Valley (Sir Paul Beresford) will be appreciated by the hon. Gentleman and by many Members of the House. Of course it is perfectly proper for the Minister to spend some time focusing on the contents of the Bill, which doubtless he will do, but it would be very regrettable if the impression were to gain ground that he or others on the Treasury Bench were in any way reluctant to get on to the matters in the Bill to be promoted by the hon. Member for Shipley (Philip Davies) and I am sure that no such consideration is in the Minister’s mind.
Mr Blunt
You are of course entirely right, Mr Speaker. No such thought had crossed my mind; indeed, I have taken rather a limited interest in today’s remaining business because this is the only item on which I have focused my attention. My hon. Friend the Member for Mole Valley is also my parliamentary neighbour, so I hope you will be kind enough to allow me the enthusiasm with which I am able to present the Government’s support for the measure, and allow me to record my appreciation and that of the Government for the work that he has done in this regard. However, bearing in mind your advice, Mr Speaker, I am happy to turn to the Third Reading of the Bill before us.
Mr Blunt
The hon. Gentleman says I have a lot of pages to get through. Perhaps this is the moment to put on record my appreciation of the support that I have received from staff in the Ministry of Justice, who have helped my preparation and advised on the amendments that were tabled to the Bill at an early stage and which my hon. Friend accepted in Committee, which improved the Bill and allowed it to enjoy Government support.
As we have heard, the Bill’s purpose is twofold. It extends the offence in section 5 of the Domestic Violence, Crime and Victims Act 2004 to include cases of causing or allowing serious physical harm to a child or vulnerable adult, and it applies evidential and procedural provisions similar to those in section 6 of that Act to the extended offence. Extending the law in this way was contemplated when the original legislation was passed, and has continued to be urged since. The section 5 offence of causing or allowing the death of a child or vulnerable adult broke new ground, and the associated evidential and procedural provisions were controversial so a staged approach made good sense, but the existing provisions have worked as intended and we agree that the time is now right to extend them. Cases in which it is clear that serious harm suffered by a child or a vulnerable adult must have been sustained at the hands of one of a limited number of members of a household should not founder because there is insufficient evidence to point to the particular person responsible.
The crucial aspect of the section 5 offence is that the prosecution need not prove whether the defendant is responsible for causing or allowing the victim’s death, so the defendant will be convicted of the same offence whether he was personally responsible for the unlawful act that killed the victim or if he was a member of the household that failed to take steps to protect the victim when he knew, or ought to have known, about the risk of harm that existed in that household. This means that it is much harder for those co-accused of the death of a child or vulnerable adult to evade justice by virtue simply of remaining silent or of blaming each other. The section 5 offence has been used successfully in a number of cases, including the profoundly shocking one of baby Peter Connelly.
The section 5 offence is a serious stand-alone offence that carries a high maximum penalty—14 years’ imprisonment—but the aim was, and remains, that the person who caused the victim’s death should be identified and convicted of murder or manslaughter, if appropriate. Those offences, of course, carry life sentences. Accordingly, section 6 of the 2004 Act modified certain evidential and procedural provisions in relation to alternative charges in trials involving the section 5 offence. The modified procedures apply when a defendant is charged with the section 5 offence and with murder or manslaughter in the same proceedings relating to the same death. The procedures are intended to encourage defendants to give evidence, and to ensure that the more serious charge remains available if, during the trial, evidence emerges of who was responsible for the death. The Government consider the extension of those principles in the way proposed in the Bill appropriate and proportionate to the harm being addressed.
Restricting the extended section 5 offence to serious physical harm is consistent with the need to show a pre-existing risk of “serious physical harm” in subsection 5(1)(c) of the 2004 Act. The extended section 5 offence does not criminalise behaviour more broadly than is necessary. A broad offence that covered psychiatric harm, for example, could deter people from caring for vulnerable adults because they fear being prosecuted for failing to foresee a psychiatric injury. Similarly, restricting the modified procedures in clause 2 of the Bill to the more serious offences that are likely to be tried with the extended section 5 offence is appropriate, given the extraordinary nature of the provisions. A maximum penalty of 10 years’ imprisonment for causing or allowing serious physical harm is proportionate when we consider the maximum penalties for causing or allowing death and for other offences of grievous bodily harm.
Concerns have been expressed about potentially criminalising those who are themselves vulnerable, such as victims of domestic violence; indeed, those concerns were raised during the passage of the 2004 Act, too. However, it is important to bear in mind the high threshold that must be met for an offence under section 5 to be made out. To prove the existing offence, it is necessary to show that the defendant either caused the death of the victim or allowed it by failing to take reasonable steps to protect the victim from a foreseeable risk of serious physical harm. What constitutes “reasonable steps” will vary, depending on the circumstances of the person and his or her relationship to the victim. The court will take all the circumstances into account.
If one of the defendants has been the victim of, or a witness to, domestic violence, the steps that the defendant could reasonably have been expected to take may be more limited than the steps that someone not suffering or witnessing that violence could reasonably have been expected to take. Depending on the facts of the case, the court may find that it was not reasonable for the defendant to take some of the steps that might otherwise have been available to them. The same principles will apply to the extended offence. In other words, the offence will be sensitive to the circumstances in each case.
As is the case with the existing offence, the extended offence will not apply when the serious harm resulted from an accident. Nor will it apply when there was one specific known risk within a household, such as a violent or abusive person, but the child or vulnerable person suffered harm from a different cause. The offence does not criminalise members of the household for allowing the serious harm if it was the result of an event that they could not have anticipated or avoided. The extended offence and procedures are intended, like the existing ones, to be a fair and proportionate package of measures.
As hon. Members know, the Government are committed to preventing the creation of unnecessary criminal offences. However, we consider the extension of the criminal law in the relatively limited way proposed in the Bill to be justified and appropriate. In reaching that conclusion, we have had regard to the possibility that those responsible for very serious injury may escape conviction; the vulnerability of both child and adult victims; and the special responsibility that members of the same household bear for the vulnerable with whom they live.
We have considered the evidence that is available on the harm that we are attempting to address by supporting this Bill. In 2010, chief Crown prosecutors in six Crown Prosecution Service areas identified 20 potential cases involving children, and three involving vulnerable adults, that could not be prosecuted under existing legislation, and that they believe could have been prosecuted under an extended section 5 offence, subject to the case meeting the two-stage test in the code for Crown prosecutors.
The Government have examined the Bill’s financial consequences for the Ministry of Justice, using two sets of data. The first set, to which I have referred, was provided by the Crown Prosecution Service and was about the potential number of cases. Our estimate, based on the CPS evidence, is that the annual cost to the Ministry of Justice of extending the section 5 offence will be in the order of £20 million a year. That is not an insignificant sum, but the measure will provide increased protection for some of the most vulnerable members of society. That is why the Government have decided to support my hon. Friend’s Bill.
My hon. Friend produced for us another set of data, supplied by a former member of the London Metropolitan police. Those data covered only children, rather than children and vulnerable adults, caught by the Bill. They suggested that the cost impact of the extended offence would, in a steady state of affairs, be £10 million a year. Having examined both sets of data, our view is that the cost is likely to be further towards £20 million a year, as we believe that the CPS study is rather wider and more comprehensive. There will inevitably be uncertainties about the case load and the likely sentence length that will arise from the new, extended offence, but I have set out the basis of our assumption.
The CPS data suggest that we are looking at around 150 cases a year, subject to the uncertainty to which I alluded. That forecast is based on the idea that the number of cases in 2010 will be representative of the number of cases going forward. The survey was undertaken by chief Crown prosecutors in Sussex, Northumbria, Merseyside, Norfolk, Hertfordshire and Thames Valley. They were asked to identify the number of cases in 2010 in which they had been unable to prosecute for grievous bodily harm or cruelty to a child, or grievous bodily harm to a vulnerable adult, because there was insufficient evidence on which of the members of a household who were in frequent contact with the victim was responsible for the injury. Those prosecutors identified a total of 20 cases involving children, and three involving vulnerable adults, that could not be prosecuted under any existing legislation, and which they believe could be prosecuted under an extended section 5 offence, subject to the case meeting the two-stage test in the code for Crown prosecutors.
Those areas collectively account for 15% of national Crown Prosecution Service business. If we extrapolate from those data, we get to a national figure of potentially 133 cases involving children, and 20 cases involving vulnerable adults. That is 153 cases in total, each of which, of course, will necessarily involve a minimum of two defendants. That is a broad estimate that makes assumptions about the volume of cases in the CPS areas that did not supply data, so the actual number of cases across the country could be larger or smaller. Of course, statistically, the size of the sample, as any statistician would make clear, brings its own level of unreliability to the data.
The data supplied to my hon. Friend indicate that over a three-year period from 2005-06 to 2007-08 there were 179 cases in which children suffered grievous bodily harm. Sixty-nine cases involved more than one suspect in a “Which of you did it?” scenario, and did not result in prosecution. According to the police, further scrutiny of those 69 cases identified at least 39 in which prosecution would have been probable had the section 5 offence been extended to include serious harm. That implies that there were about 13 cases a year over the past three years in London alone that would have been prosecuted under the extended section 5 offence.
We have been unable to verify the data—indeed, the police have acknowledged that they were partly supposition—which did not cover vulnerable adults. The CPS has looked at the papers provided by the police, but they contain insufficient information either to form a view on whether any of the cases could have been successfully prosecuted under an extended section 5 offence or in getting them to the CPS case papers. However, the financial implications are not insignificant if the Government are to accept the measure in the current financial climate. The fact that we are prepared to do so gives a sense of the importance that we attach to the measure and of our enthusiastic support for the Bill introduced by my hon. Friend. Members on both sides of the House have agreed to plug that particular gap.
You implicitly set me the challenge of managing to keep this going until 2.30 pm, Mr Speaker, but you will see that I have only managed to stagger on until 10 o’clock. Plainly, I did not begin to speak with any other intention, and it would be wholly improper to do otherwise. At least the time at which I shall conclude will satisfy you that I did not begin with any other intention.
Mr Blunt
The hon. Member for Rhondda (Chris Bryant) tempts me, but I will ignore his remarks, as I wish to conclude by congratulating my hon. Friend the Member for Mole Valley again, even at the risk of upsetting you, Mr Speaker, and by renewing my thanks to my officials in the Ministry of Justice who have assisted me in preparing the Government’s response to the debate. I am delighted to commend the Bill to the House, and I hope that its passage through another place will be equally successful.
Question put and agreed to.
Bill accordingly read the Third time and passed.
Crimestoppers Initiative (Prisons)
Crispin Blunt Excerpts(13 years, 2 months ago)
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The Parliamentary Under-Secretary of State for Justice (Mr Crispin Blunt)
Today, I am advising the House that on 22 September, we announced the launch of an enhanced Crimestoppers initiative in prisons. Crimestoppers will now report direct to the National Offender Management Service (NOMS) all prison-related matters, enabling a faster response. The launch was accompanied by a poster and leaflet campaign advertising the new arrangements and this will be followed by other campaigns on key issues that effect security in prisons. All printing is being undertaken through a contract with prison industries, providing useful employment for prisoners.
NOMS is determined to disrupt the criminal behaviour of prisoners. A key element is the ability to gather good quality intelligence and act quickly on information received. The Crimestoppers initiative provides a valuable source of intelligence with a particular focus on drugs and mobile phones. This will enhance NOMS’ ability to address these threats.
This initiative is a very good example of the invaluable work that the third sector can undertake in prisons.
Revised Framework Document (Information Commissioner's Office and the Ministry of Justice)
Crispin Blunt Excerpts(13 years, 3 months ago)
Written StatementsRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Parliamentary Under-Secretary of State for Justice (Mr Crispin Blunt)
My right hon. Friend the Minister of State, Ministry of Justice, Lord McNally, has made the following written ministerial statement:
Today I am publishing the revised framework document that governs the day-to-day relationship between the Information Commissioner’s Office (ICO) and the Ministry of Justice. Agreed by both the Information Commissioner and the Ministry of Justice, the revised document enhances significantly the independence of the ICO.
The Government firmly support an independent and influential ICO and this revised framework complements the legislative clauses the Government introduced in the Protection of Freedoms Bill.
Under the new framework, mechanisms are put in place to enable the ICO to retain certain types of income, subject to the outcome of the Protection of Freedoms Bill, and the reporting requirements on the ICO are significantly reduced. In addition to this, a number of changes have been introduced to allow the ICO greater freedom to make certain financial and administrative decisions.
However, while furthering the ICO’s financial and administrative independence, the framework document ensures this is balanced with appropriate reporting arrangements to enable the Ministry of Justice to maintain and ensure the proper expenditure of public money allocated to the ICO.
Copies of the consultation revised framework document will be placed in the Libraries of both Houses and on the Department’s website at: www.justice.gov.uk.
Oral Answers to Questions
Crispin Blunt Excerpts(13 years, 3 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Jessica Lee (Erewash) (Con)
2. What recent progress he has made in making prisoners work while in custody; and if he will make a statement.
The Parliamentary Under-Secretary of State for Justice (Mr Crispin Blunt)
We have made clear our intention to make prisons places of work and industry. We are already making good progress towards longer prisoner working weeks at a number of prisons, including 13 early-adopter sites that are implementing regimes designed to facilitate increased working hours. We are continuing to develop a framework that will enable us to maximise this approach across the prison estate. To achieve this, we are looking at the experience of other countries and have established a business advisory group to help us to deliver prison industries that operate on a commercial basis so that much more work can be delivered at no cost to the taxpayer and can contribute to victims’ services while competing fairly in open markets.
Jessica Lee
Does my hon. Friend agree that having prisoners do real work will help not only by tackling the culture of idleness in prisons, but by giving prisoners valuable vocational skills that we all hope they will put to good use upon their release?
Mr Blunt
My hon. Friend is absolutely right. There will be substantial benefits from bringing this policy to scale, which I am optimistic we can do. There will be benefits to victims from the resources generated by the work that prisoners do; to the taxpayer from relieving the cost of the regime; and to the stability of the prison regime, as she mentioned. However, there will also be a substantial rehabilitative benefit to prisoners who will leave prison with a CV that includes skills training in the work in which they have been involved as well as experience in the work itself.
Mrs Jenny Chapman (Darlington) (Lab)
We all agree that prison industry is good for rehabilitation, but how many additional prison officers does the Minister think will be needed to supervise movement around the estate and to ensure that prison industries are secure and properly delivered?
Mr Blunt
The hon. Lady is absolutely right. If we are to change prisons from being simply places of security and of warehousing people, where work is wedged in when possible, there will be additional costs to the prison regime. The businesses that go into prisons will have to generate the resources to support that.
Mr Julian Brazier (Canterbury) (Con)
In strongly welcoming my hon. Friend’s initiative, I urge him to consider the position of young people on remand. As successive prison inspectors have said, it cannot be right to have young people, even though they have not been sentenced, sitting about not required even to undertake any education let alone work.
Mr Blunt
Again, my hon. Friend is right. Remand prisoners pose a particular challenge, in the youth estate as well as the adult estate, because of the speed with which they tend to turn over in those institutions. That makes getting work for them more difficult, but there needs to be a proper focus on programmes for all people in custody following a proper assessment of their rehabilitative requirements.
Kate Green (Stretford and Urmston) (Lab)
The Minister will be aware that women in prison are often under-occupied. Will he tell us what special attention he is giving to creating working opportunities for women who are serving custodial sentences?
Caroline Lucas (Brighton, Pavilion) (Green)
3. What his policy is on the right of overseas victims of alleged human rights abuses by UK multinational companies to access justice in the UK.
Dr Thérèse Coffey (Suffolk Coastal) (Con)
10. What steps he is taking to eradicate gang culture within prisons and young offenders institutions.
The Parliamentary Under-Secretary of State for Justice (Mr Crispin Blunt)
Youth and adult custodial establishments have access to a range of accredited programmes that address offending behaviour, including gang-related issues. Programmes include engaging community and voluntary sector groups to help deliver solutions to gang-related issues, and the National Offender Management Service and the Youth Justice Board support this work. The Government are developing a cross-departmental programme of action to tackle gangs and gang violence. An inter-ministerial group will report to Parliament in October.
Dr Coffey
I thank the Minister for that answer, which goes part of the way to addressing these issues. However, when I visited the Warren Hill young offenders institution in my constituency last year after there had been a riot, one of the reasons cited for the riot was the growing emergence of gang culture and the fact that when people are placed in young offenders institutions, proximity takes priority over gang dispersal. I would like him to look at this policy again.
Mr Blunt
I am very grateful to my hon. Friend for the interest she takes in Warren Hill. I have followed up the discussions that we have had and I assure her in relation to gang violence that there is no absolute, rigid rule that proximity should take precedence. When placing young people and adults into custodial establishments, both the YJB and NOMS take proper account of all the factors required and there is emerging good practice around identifying gang affiliations.
Keith Vaz (Leicester East) (Lab)
As the Minister knows from the evidence that has been received about the recent riots in London and other cities, a number of people involved in gangs were part of those riots. Will he ask his Department to deal with organisations such as User Voice, which consists of ex-offenders who were in gangs, which are willing to work with the Ministry of Justice and assist it in its projects?
Mr Philip Hollobone (Kettering) (Con)
Many of the foreign national prisoners in our jails are members of foreign national EU gangs that commit organised crime in this country. What is the Justice Department doing to tackle this aspect of gang culture in our cities and in our prisons?
Mr Blunt
Of course, where evidence and intelligence of that kind are received, they will be acted on to make sure that those gangs cannot operate within the prison estate and that gang members are properly dispersed by the placement decisions taken by NOMS. We will also want, as we do with all foreign national prisoners, to try to make sure that those people go home to serve their sentences.
The Parliamentary Under-Secretary of State for Justice (Mr Crispin Blunt)
Payment by results is gathering pace. We are piloting a number of different approaches to see what works best. Two prison pilots have been put in place at Her Majesty’s prisons Peterborough and Doncaster.
Pilots also will begin in public sector prisons next year. Six justice reinvestment pilots have been put in place through memorandums of understanding with either local authority chief executives or local police chiefs in Manchester and London.
In 2012 two community pilots will commence to rehabilitate offenders while serving sentences in the community, in addition to one or more provider-led innovation pilots. We are also working with the Department for Work and Pensions through the Work programme and with the Department of Health on drug and alcohol recovery to look more widely at payment by results mechanisms which fully—
Mr Speaker
Order. I advise the Minister, for next month the answers should be a bit shorter. They are just a bit too long.
Ben Gummer
I thank the Minister for that careful reply. He will be aware of the Justice Committee’s recommendation that contracts should follow the offender through the criminal justice system, rather than attach themselves to the various institutions through which he or she might pass. What progress has the Department made in considering those proposals?
Mr Blunt
My hon. Friend will have realised, given the number of pilots we are conducting—I am sorry, Mr Speaker, that the list was too long for me to deliver satisfactorily—that we are testing the different elements of the system to identify the best and most effective way to deliver payment by results. I hope that, in the end, we can deliver the offender-centric process on which my hon. Friend relies, once we have identified which part of the system makes offenders best respond to effective rehabilitation measures.
Fiona Mactaggart (Slough) (Lab)
Do any of those projects help to test whether providing housing for people leaving prison helps them to be less likely to reoffend?
Mr Blunt
Housing—having a home to go to—is plainly a key crime desistance factor, but an awful lot of other key factors, such as work and drug addiction, are well-documented. We want to get out of the business of identifying exactly what inputs people must deliver to offenders, but make all sorts of institutions responsible for focusing on the outputs and let them take the decisions about which are the appropriate desistance factors to address for the offenders whom they are treating.
Gemma Doyle (West Dunbartonshire) (Lab/Co-op)
14. When he plans to bring forward proposals on compensation for victims of overseas terrorism.
Mr Peter Bone (Wellingborough) (Con)
17. How many prisoners are serving sentences for (a) human trafficking and (b) drug-related offences; and what the average length of sentence is in each case.
The Parliamentary Under-Secretary of State for Justice (Mr Crispin Blunt)
Between 2006 and 2010, 109 people were sentenced for human trafficking offences, with an average determinate custodial sentence length of 50 months, and 254,980 people were sentenced for drug-related offences, with an average determinate custodial sentence length of 32 months. The average determinate custodial sentence length for trafficking for sexual exploitation was 50 months; in the case of trafficking for forced labour, it was 51 months, and in the case of drug trafficking, it was 73.5 months.
Mr Bone
I think that the House will agree that there is a bit of difference between the figures for human trafficking and for drug-related offences, yet the two crimes—human trafficking and drug offences—are very difficult for the victims. We should surely rebalance the criminal justice system to ensure that more traffickers are caught. I know that the Government have produced their human trafficking strategy, but there is a terrible imbalance at the moment.
Mr Blunt
I am grateful to my hon. Friend, and I thank him for his energetic chairmanship of the all-party group on human trafficking, and for continuing to bring the issues to my attention. Trafficking drugs and people are both extremely serious offences, and when people are caught—obviously, we want to make sure that they are, on every conceivable occasion—they should serve an appropriately serious tariff.
Mr Speaker
I am grateful to the Minister both for his succinctness and his control of his breathing, which was impressive.
Laura Sandys (South Thanet) (Con)
T6. Does the Minister agree that it is a scandal that so many drugs are swilling around prisons? It is crucial that we ensure that those who arrive in prison clean do not leave as addicts.
The Parliamentary Under-Secretary of State for Justice (Mr Crispin Blunt)
I completely agree with my hon. Friend. Some 55% of those entering prison have been reported to have a serious drug problem, and 64% in a recent survey had used drugs in the previous month, which gives a sense of the scale of the problem. My hon. Friend is absolutely right: we must use all means possible, in a multi-faceted way, to address the problem, and provide safe places in prison, at the very least, for those attempting to recover from drug addiction, which is why we are beginning to develop drug recovery wings.
Julie Hilling (Bolton West) (Lab)
T5. There are 66 people in Bolton and more than 10,000 across the UK who are still driving with more than 12 points on their driving licence. Many are repeat offenders of the offences of speeding and driving without insurance and have more than 20 points. Is there a problem with the legislation or are judges being too lenient? Will the Secretary of State investigate?
Bill Esterson (Sefton Central) (Lab)
T8. The Government cancelled the building of the Maghull prison after work had already started. Will the Lord Chancellor take this opportunity to tell my constituents what plans he has for the site, to allay their concerns about the Maghull prison site and nearby greenfield projects, which developers are eyeing up?
Mrs Helen Grant (Maidstone and The Weald) (Con)
Does the Minister agree that prison is not the right place for women who pose no risk to the public, and that robust community sentences would be a much better option?
Meg Munn (Sheffield, Heeley) (Lab/Co-op)
The Secretary of State has stated his commitment to rehabilitation as a priority. Probation officers are key to this. They often need highly developed skills, particularly when working with violent offenders and sex offenders. Is he committed not only to maintaining levels of funding for probation officers, but increasing it in order to continue the downward trend in crime that continued under a Labour Government?
Mr Blunt
As the hon. Lady very well knows, we are having to manage a 23% reduction in our budget over the next four years in order to make the Ministry of Justice’s contribution to rescuing the nation’s finances. Sadly, probation services, like other elements, are not exempt from this. However, for the reasons she has given, they have been relatively protected under the spending review. We will of course continue to look for all available efficiency savings wherever we can, but the output of probation is very important.
Alun Cairns (Vale of Glamorgan) (Con)
An appeal to the special educational needs and disability tribunal listed today will not be heard until late February 2012. Does the Minister agree that that is wholly unacceptable and that a much quicker process is needed in order to resolve some of the cases relating to special needs?
Tom Brake (Carshalton and Wallington) (LD)
On the subject of payment by results, what guarantee can Ministers give that small providers will win some contracts and that small and large providers will have to make information about their performance publicly available?
Mr Blunt
Of course, anyone who is going to deliver payment by results would be crazy not to engage the voluntary and charitable sector as part of their delivery mechanism. Some of those charities will not have the resources to be able to underwrite payment-by-results schemes, but the prime provider would be mad not to engage those services.
John McDonnell (Hayes and Harlington) (Lab)
The Government are currently consulting on the criminalisation of squatting. Has the Secretary of State seen the report “The Hidden Truth about Homelessness”, produced by the housing charity Crisis, which reveals that 39% of vulnerable homeless people have at some stage resorted to squatting to find a roof over their heads, and has he made an assessment of how the proposals he is putting forward will affect homeless people?
Philip Davies (Shipley) (Con)
The Secretary of State was good enough to accept on Second Reading of the Legal Aid, Sentencing and Punishment of Offenders Bill that people who served indeterminate sentences for public protection had a very low reoffending rate, despite the fact that 29% of them have more than 15 convictions. Given that people with indeterminate sentences are in prison for manslaughter, other homicide, rape, robbery, arson and other violent crimes, why does he want to let them out?
Judicial Scorecards
Crispin Blunt Excerpts(13 years, 3 months ago)
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The Parliamentary Under-Secretary of State for Justice (Mr Crispin Blunt)
It is a pleasure to serve under your chairmanship, Mr Bone, and particularly to reply to your near neighbour, my hon. Friend the Member for Kettering (Mr Hollobone), whom I congratulate on securing the debate and bringing up the matter of judicial scorecards.
I have, of course, noted the question that my hon. Friend put to the Justice Secretary during oral questions about whether steps would be taken to ensure that judges and magistrates were informed of incidents of reoffending of every offender they had sentenced. As my hon. Friend has made clear, he is aiming for feedback and public transparency for individual sentencers on the effectiveness of their sentencing practices, so that they are able to identify where something is wrong with their individual approach. I have listened to my hon. Friend very carefully, with my usual level of interest, and I concur with the Justice Secretary that his suggestion is interesting.
My hon. Friend knows from previous debates we have had on foreign national prisoners that I very much welcome his interest, and his providing a spur to the system to ensure that we are kept up to the mark in areas of public interest. However, I am going to have to be reasonably plain with him here: yes, the topic is interesting, but I am unsympathetic with the particular matter of individual judicial accountability by way of scorecards for judges.
Let me explain why. We need to acknowledge that this topic raises issues of significant constitutional importance, and I want to touch on those before I address some of the other matters that my hon. Friend mentioned. We might not have quite enough time for a full debate on the whole of penal policy, the issue that he raised at the end of his remarks, but if I end up having enough time, I will cheerfully move into that area.
The rule of law is, of course, the foundation of our democracy. For that tenet to be real, it is imperative that the independence of the judiciary is maintained. As my hon. Friend will recognise, that is particularly relevant in respect of sentencing decisions. Parliament has established the offence and sentencing framework that the judiciary apply in individual cases, and the courts have a duty to follow sentencing guidelines, which are issued by the independent Sentencing Council to promote greater consistency in sentencing while maintaining judicial independence. If courts depart from those guidelines in the interest of justice, they must explain in open court why they are doing so.
Although the sentencing decisions of the judiciary are rightly independent, they do not operate in an accountability vacuum. Checks and balances within the current system, such as the right of appeal, operate within the public domain. If certain sentences are seen as too lenient, the Attorney-General can appeal them. Equally, if it is felt that the final sentence is too harsh relative to the circumstances of the case, the defendant has the right to appeal. Like the hearings at which offenders are sentenced, such appeals are heard in public. The Sentencing Council has a duty to monitor the operation of its sentencing guidelines. Part of that involves considering the frequency and extent to which those handing down sentences depart from the guidelines, the factors that influence sentences imposed by courts and the effect of guidelines on consistency in sentencing and on public confidence in the criminal justice system.
More generally, the judiciary support efforts towards greater transparency that allow the public improved access to sentencing outcomes for individual crimes in their local area while bearing in mind any reporting restrictions. However, it would not be right to draw inferences about the performance of an individual judge— or, for that matter, anyone involved in bringing a case to court—based simply on whether the defendant goes on to commit further crimes. There is a risk that, if we introduced scorecards linking sentencing to reoffending outcomes, individual sentencing decisions would be criticised because the offender went on to reoffend. The sentence handed down is only one of many factors that affect reoffending.
Towards the end of his remarks, my hon. Friend used the phrase “simple and straightforward”. I must tell him that dealing with the rehabilitation of offenders—trying to act on all the levers that affect an individual, determining how easy it will be to rehabilitate him and considering all the desistance factors from crime—is far from simple and straightforward, and it does not simply involve the sentencing decision. The judiciary work in an environment where no two cases are alike and each sentence reflects individual circumstances unique to the offence, the defendant and the impact on the victim. Examining sentences in isolation from the particular circumstances of the case and the defendant’s mitigating or aggravating factors is almost certain to confuse those who were not present in the courtroom about why the final sentence was imposed. Many factors affect the effectiveness of a specific sentence in preventing reoffending. Some are unique to the individual; some are socio-economic. Given the unique nature of each case, it would be impossible for the effectiveness of sentences on reoffending to be deduced in a meaningful way. Any suggestion that such information could be provided would be misleading to the public.
My hon. Friend knows that tackling reoffending is a major priority for this Government. We are considering innovative ways to decrease reoffending rates. The Green Paper “Breaking the Cycle” set out a different approach to rehabilitation based on paying only for what works to deliver reduced levels of crime. Although I am sure that judges would welcome being informed of what happens to each defendant sentenced, if such a practice became regulated in the form that my hon. Friend suggests, it would be prohibitively expensive to administer and might well take resource away from the front line, particularly the probation service.
That said, judges and magistrates take a close interest in the outcome of the sentences that they pass and whether defendants go on to commit further offences. I suspect that, like me and no doubt you, Mr Bone, my hon. Friend welcomed the statements made by the recorder of Manchester during the recent trial of Regina v. Carter, when he was sentencing one of the earliest people to be brought to justice for the riots. In the robust terms of his sentence, the recorder made it clear in what peril people placed themselves by their outrageous behaviour in those circumstances. If my hon. Friend has had the chance to read it, he will have noted that, at the end of the judgment against one defendant in the trial, who was sentenced to oversight in the community, the recorder of Manchester reserved to himself the right to deal with breaches of that community supervision. He took the opportunity judicially to take a keen interest in how that defendant, who will be supervised by the probation service, got on.
That can happen in our system. It happens in the west London drugs court, for example, where repeat offenders who entered the system because of their addiction are brought back month by month to the same judge, as part of their sentence oversight, to see how they are getting on. It is possible within our system for judges to continue to exercise supervision of and interest in the people who come before them. Probation officers, also, often provide the courts with general information about outcomes, especially in relation to community orders, so that any judge or bench can make informed decisions about the suitability of a particular sentence for the offender before them.
In May this year, my Department published details of the relative effectiveness of different sentences in reducing reoffending. One can interpret such data in different ways, but those data showed that, after controlling for differences between offenders, those receiving community orders and suspended sentence orders have a significantly lower reoffending rate—8% and 9% lower respectively—than similar offenders who receive a short custodial sentence. My hon. Friend may say, “Indeed; then they should get a longer prison sentence rather than a short prison sentence or a community sentence”, but we must have some regard to the circumstances of the offence. He seems to be driving at the idea that first-time offenders should receive an exemplary sentence in order to get them into prison so that they can be rehabilitated. I am not sure that I am in precisely the same place as him on that matter. Overall, most people entering the justice system for the first time and receiving community sentences will have a significantly lower reoffending rate than other repeat offenders. We must find proper strategies, including prison at one level but also proper supervision between prisons, the probation service and the police, as is delivered through integrated offender management, in order to find a more effective route to desistance for such people. We are experimenting with a bunch of different pilots to see where to place the responsibility in order to deliver rehabilitation.
I think that my hon. Friend will welcome the fact that the Government also have a significant transparency agenda, which will go some way towards meeting the concerns that underlie his case. We are committed to increasing transparency in public services in order better to hold public services to account, increase trust in services through greater openness and encourage engagement between citizens and local services. The criminal justice system is no exception. Criminal cases are almost always held in public, and a great deal of information on court proceedings is already placed in the public domain.
However, we recognise that not everyone goes to their local court on a daily basis, so we are planning a significant release of individual court performance data in January that will enable local communities to find out how their local court is performing on a range of measures. The data will include, among other things, information on case timeliness in criminal and civil courts and the proportion of cracked and ineffective trials at the Crown court. That represents a significant step towards keeping the public informed of how the courts are operating in their area. When looking at the data, it will be important to bear in mind that courts’ performance is not a matter for the judiciary or court staff alone, but depends on all the elements of the criminal justice system.
Yesterday, the Justice Secretary announced his intention to legislate to remove the ban on cameras in courts. I am grateful for my hon. Friend’s welcome of that announcement. It is a cautious but important step that, taken with the data commitments, will open up the courts more widely. In addition to the data that we plan to publish on court performance, we have taken several other notable steps to provide the public with information on how the criminal justice system works locally. In October last year, we released court-level sentencing data for each court for 2009, and in May this year, we released data covering 2005 to 2010. In January this year, street-level crime information was made available to the public via the Police.uk website. It has been very popular, with 430 million hits on the site since the launch. In November, we will publish individual offender-level sentencing data by court, so that the public will be able—
Mr Peter Bone (in the Chair)
Order. I am sorry to interrupt the Minister. It has been a splendid debate.
Secure Estate Strategy for Children and Young People
Crispin Blunt Excerpts(13 years, 5 months ago)
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The Parliamentary Under-Secretary of State for Justice (Mr Crispin Blunt)
Today is the launch of a consultation on the “Strategy for the Secure Estate for Children and Young People for England and Wales”.
This is a joint publication between the Ministry of Justice and the Youth Justice Board. The consultation invites views on a proposed strategy for the under-18 secure estate for the years 2011-12 to 2014-15. Custody continues to play an important part in the youth justice system for the small number of young people for whom a community sentence is not appropriate. The recent reduction in the number of young people in custody means that the secure estate is now going through a period of change. This presents an opportunity to consider the most appropriate configuration of the estate and consider whether different regimes can deliver improved outcomes.
The consultation, which will run for 12 weeks, and details on how to respond can be found on the Ministry of Justice website at www.justice.gov.uk.
Office of the Public Guardian
Crispin Blunt Excerpts(13 years, 5 months ago)
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The Parliamentary Under-Secretary of State for Justice (Mr Crispin Blunt)
Thank you for calling me to speak, Mr Dobbin.
May I start by offering the hon. Member for Cardiff West (Kevin Brennan) my apologies for not being the Under-Secretary of State for Justice, my hon. Friend the Member for Huntingdon (Mr Djanogly), in whose brief the Office of the Public Guardian directly sits? However, as we speak my hon. Friend is debating amendments to the Legal Aid, Sentencing and Punishment of Offenders Bill upstairs in Committee. So I hope that the hon. Gentleman will be happy to make do with me—well, he will have to make do with me.
As I said to the hon. Gentleman privately last week before this debate, I myself have had some unhappy constituency cases in the past 14 years of people who have fallen into the clutches of state-overseen administration of the affairs of a loved one. We have heard about another example of that from the hon. Member for Chippenham (Duncan Hames). If one finds oneself in circumstances where professional administrators are taking a very substantial sum out of the case, one can then see the Jarndyce v. Jarndyce parallel that was adduced by the hon. Gentleman coming to fruition awfully for individual constituents. However, I do not think that that is actually the case here, because obviously the deputy at hand is not a professional administrator. She is a relative of one of the parties, which in cases such as this one is more common than the appointment of professional administrators.
At the beginning of my response to this debate, I want to say that the work of the Public Guardian and his role in safeguarding the interests of people who lack capacity is very important, and that it is entirely right and proper that we should consider the effective functioning of the Office of the Public Guardian and how well it is able to support the Public Guardian in fulfilling his statutory duties. However, I also want to say at the outset that I am not entirely clear whether the particular aspects of this case offer the best evidence to test how effectively the Office of the Public Guardian is operating or indeed to show up a particular fault on behalf of the office. It appears to me that the issues are essentially private matters, which could and should have been resolved by the parties themselves rather than with significant intervention by the state, in the form of the Office of the Public Guardian. I will come back to the individual cases that have been mentioned in the debate in the latter half of my remarks.
Let me provide some context by explaining the role of the Public Guardian, because there is a degree of misunderstanding about what precisely are the duties and responsibilities of the Office of the Public Guardian, and that gets to the heart of the case that the hon. Gentleman has discussed.
The statutory role of the Public Guardian was created by the Mental Capacity Act 2005. Among other things, he is responsible for maintaining a register of deputies appointed by the courts; supervising such deputies on an ongoing basis; and investigating any concerns raised with him about a deputy’s potential misconduct or abuse. I want to make it clear that the Public Guardian himself does not have any role in managing the affairs of a person lacking capacity and nor does he have powers to step in and take over the management of a person’s affairs if a deputy is deemed to be unable or unwilling to manage those affairs. Furthermore, it is not within the jurisdiction of the Public Guardian to remove a deputy once appointed, or to place limits on the way in which a deputy exercises his or her powers.
Mr Blunt
If the hon. Lady will forgive me, I will not, otherwise I will not be able fully to respond to the debate.
The Public Guardian’s role is essentially supervisory and investigatory, and if he believes that a deputy is unable or unwilling to fulfil his or her functions effectively, he can make an application to the Court of Protection seeking the deputy’s removal and replacement. The hon. Member for Cardiff West made that clear in his remarks, but his constituent was obviously not aware of the situation until rather late in the day. Since coming into force in October 2007, the Office of the Public Guardian has worked hard to raise awareness of its role and function, and I hope this debate will make a small contribution to that.
Mr Blunt
I am sorry. If the hon. Lady will forgive me, I want to be able to put the role of the office on the record and deal with the case presented by the hon. Member for Cardiff West. If I then have time, I will of course take the hon. Lady’s intervention.
Once a deputy has been appointed by the Court of Protection, the Public Guardian assigns him or her to an appropriate level of supervision. That process follows a risk-based assessment that ensures that all deputies receive adequate and proportionate oversight and support. An annual supervision fee is payable to the Office of the Public Guardian, which is proportionate to the degree of support or scrutiny required. In most cases, the supervisory regime requires the deputy to report to the Public Guardian on at least an annual basis. It can also result in further contact from the office throughout the year, to confirm that the deputy is carrying out his or her duties properly and to identify any need for additional support. In certain cases, it also involves a visit from an independent Court of Protection visitor, who reports their findings to the Public Guardian.
If a third party has concerns that a deputy has abused his or her position, that they are not acting in the person’s best interests, or that the person who lacks capacity is otherwise at risk, they can raise such issues with the Public Guardian. That can be done in confidence, as the office has a well-established whistleblowing procedure. In this case, the third party has plainly consistently been in touch with the Office of the Public Guardian, not least in the past three years through the hon. Member for Cardiff West.
After an initial assessment, if the concerns warrant further investigation the case is passed to the dedicated compliance team, which has responsibility for investigating allegations or concerns brought to the Public Guardian’s attention. The issues raised vary considerably, from relatively simple matters to extremely complex ones. An investigation often uncovers a number of different views as to what is in a person’s best interests, and those views can differ radically.
When considering allegations or concerns, the Public Guardian always considers first and foremost the impact on the person who lacks capacity. He considers to what extent their best interests are being met by the deputy and whether or not, in his view, the person’s interests might better be met by alternative arrangements. If there are significant concerns about how the deputyship is operating, the Public Guardian might make an application to the Court of Protection to seek either the removal of the deputy or limits on his or her powers. If there is evidence of a criminal offence or if serious issues are uncovered, the Public Guardian passes the details to the police. If no major concerns are uncovered but some residual issues bear greater scrutiny, the Public Guardian can allocate the deputy to a higher category of supervision, which enables his office to keep a closer eye on the situation or to provide a higher degree of support to the deputy. Finally, it is entirely possible that he might find the complaint unwarranted, or that there is insufficient evidence to pursue it.
It is always open to a third party to make an application of their own volition to the Court of Protection, seeking an order in relation to the management of a person’s affairs. For example, were a third party unhappy about the outcome of an investigation carried out by the Public Guardian, they would be entirely at liberty to make an application to the court to seek a deputy’s removal. That is the situation with the case that has been presented today.
This case concerns a dispute about the sale and maintenance of a foreign property in which two parties have a shared interest. One of the parties lacks capacity and has a deputy appointed to manage his affairs. The second party is of the view that the deputy has failed to do what is required from her side in order that the sale of the shared property can be progressed. I also understand that there are ongoing issues concerning the appropriate level of contributions to the maintenance of, and the shared service fees relating to, the property.
I know that the hon. Gentleman has taken a significant interest in the case and has written on a number of occasions to raise concerns. As we have heard, he wrote most recently to the Public Guardian in March 2011, but the office has no record of that letter, which is why the hon. Gentleman has not received an answer. I regret that that has happened. I obviously have no idea why, but I hope that today I can provide the hon. Gentleman with appropriate assurance on the issues that he has raised.
I am aware that there is a view that the Public Guardian could, and indeed should, take over active management of the case—as implied by the hon. Gentleman’s remarks today—and that his office should progress the sale of the property. However, that is not one of the functions of the Public Guardian, nor does it fall within the scope of his powers. Indeed, even if the Public Guardian had such powers and responsibilities, I am not convinced that this case merits such an intervention. On the face of it, it seems to be a dispute between two private parties, albeit complicated by the lack of capacity of one of the parties and the fact that the property is located abroad.
I have sought advice on the case, and it has become evident that it is not even wholly clear whose responsibility it is to advance the sale of the property. When the parties where divorced, Cardiff county court ordered, on 20 December 2000, that Mrs F’s solicitors shall have conduct of the sale of the property. I am not certain whether the property referred to in that direction is the property under debate; if it is, it is absolutely clear that it is Mrs F who should be progressing the sale. Since Mrs F has the keys to the property, I would want to see more evidence of obstruction by the deputy of a process that she should be progressing.
Kevin Brennan
I just wish to put on the record that, from my observations, Mrs F has made every effort to progress the sale of the property. The Minister is right that the sale is being held up by a lack of action on the part of the deputy and the lack of use of such powers as the Office of the Public Guardian has to ensure that the deputy progresses the matter. I think everyone agrees that it is in the interests of the person without capacity that the property be sold. In the meantime, a vast fortune has been lost.
Mr Blunt
I take the hon. Gentleman’s point, but that is where the dispute lies. It lies on whether the deputy has obstructed a sale that should have been progressed and led by Mrs F, who has full possession of the property. There is then the issue of service charges and everything else, and the hon. Gentleman knows that the deputy received legal advice that she should not be paying those charges as she had no access to the property. That could have led to another circumstance in which some of the service charges and costs could have been reduced by the property being rented out for 50% of the time when it was, in effect, being shared. I have seen no evidence of any sensible discussion between the deputy and Mrs F to try to progress the matter, nor have I, and more importantly nor has the Office of the Public Guardian, seen evidence of obstruction by the deputy.
Kevin Brennan
I will ensure that the Minister gets a copy of my latest letter, which the office says it has not received. Will the Minister undertake to respond to the issues raised in that letter, which refer to some of the points that he has made?
Mr Blunt
The Office of the Public Guardian has undertaken a number of reviews of the case, including a full investigation and a number of visits to the deputy by the independent Court of Protection visitors, and his office continues to maintain contact with the deputy and to liaise with her over the shared property and the progress of its sale.
In conclusion, if the hon. Gentleman’s constituent remains unhappy, she has the opportunity to go to the Court of Protection. That is what the hon. Gentleman has been asking the state to do through the Office of the Public Guardian. The office has investigated the case and does not think that that is justified, but it is entirely open to the hon. Gentleman’s constituent to go to the Court of Protection to seek the replacement of the deputy if the evidence and circumstances warrant it. That is the safeguard. However, I fear that on the basis of the evidence that I have seen—I am happy to see further evidence from the hon. Gentleman—I do not think that the case has been made out that the Office of the Public Guardian has failed his constituent.