Oral Answers to Questions

Jonathan Djanogly Excerpts

Tuesday 3rd July 2012 Commons Chamber

[Tristram Hunt (Stoke-on-Trent Central) (Lab)]

7. What recent assessment he has made of the effectiveness of the system for recovery of criminal fines.

[The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly)]

In the financial year 2011-12, Her Majesty’s Courts and Tribunals Service collected £279 million in respect of criminal fines, further reducing the cost of enforcement and achieving the best ever performance against the payment rate measure. But now we want to do better, so we have developed better-quality performance indicators for publication and are exploring the potential for creating a partnership with a commercial company to build on the improvements we have already made in fines collection.

[Tristram Hunt]

What the Minister did not reveal is that over £600 million in outstanding fines is owed by criminals, of which £10 million relates to Staffordshire, and a further £5.5 million of unrecovered debts have already been written off. When faced with falling living standards and the effects of ill-planned spending cuts, my constituents want to know why this Government are allowing criminals to think that crime does pay.

[Mr Djanogly]

The hon. Gentleman mentions the collection backlog, and thereby raises the collection inadequacies of the previous Administration which we are now having to sort out. In 2011-12, the payment rate was 106%, and last year, for the first time since 2003-04, the outstanding balance was reduced by £16 million—that is, 3%.

[Mr David Burrowes (Enfield, Southgate) (Con)]

Given the new statutory presumption that victims of crime will be compensated, can we ensure that whatever the means of offenders, they will all have to make amends to their victims?

[Mr Djanogly]

Absolutely, and if that is by way of a fine, we intend to collect it.

[Steve Brine (Winchester) (Con)]

9. What recent steps he has taken to reduce reoffending by young offenders.

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[Mr Nick Raynsford (Greenwich and Woolwich) (Lab)]

11. What progress he has made with his proposals on regulation of bailiff services.

[The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly)]

Following the publication of updated national standards for enforcement agents in January, the Government launched a full public consultation on transforming bailiff action in February. The consultation closed on 14 May, and we are now carefully considering the 250 responses with a view to publishing our response in the autumn.

[Mr Raynsford]

I am not sure whether any of those responses referred to the Government’s proposed cut of £500 million in council tax benefits next April, which is widely expected to prompt a surge in cases being referred to bailiffs for the recovery of council tax debts. What are the Government doing to prevent an escalation of intrusive, expensive interventions against low-income households?

[Mr Djanogly]

If there are debts to be collected, bailiffs have to go and collect them; otherwise, the system would break down. However, the Government are clear that aggressive bailiff activity is unacceptable, and we are committed to introducing effective proposals that protect the public and ensure that bailiff action is proportionate.

[Duncan Hames (Chippenham) (LD)]

I hear the Minister’s answer, but does he not agree that when public bodies such as councils procure bailiff services, they should take some responsibility for the methods they sanction?

[Mr Djanogly]

They should indeed, and they do. The new guidelines are there to ensure that minimum standards of behaviour are adhered to. We have introduced the guidelines before legislating.

[Robert Flello (Stoke-on-Trent South) (Lab)]

The Tribunals, Courts and Enforcement Act 2007 contains detailed provisions on the regulation of bailiffs, and in May 2010 the coalition agreement stated that action would be taken. Here we are in summer 2012, and no Government response to the consultation is expected until the end of the year and the Government are hitting households from every side, forcing them into more and more debt every day. With a catalogue of appalling behaviour by bad bailiffs, and even reputable bailiffs saying that they need regulation urgently, when will the Government finally stop delaying and get on with it?

[Mr Djanogly]

Any delay arises from the non-implementation of part 3 of the 2007 Act, and the cause of our delay is the same reason why the Labour Government delayed—their legislation does not work. We have acted in the interim by putting guidelines in place, and we are now consulting on upgrading legislation in a measured and balanced way. We will consider the many interests that exist and the balance that we have to achieve.

[Stephen Timms (East Ham) (Lab)]

12. What assessment he has made of the availability of legal advice to people on low incomes who will be affected by the Government’s proposed welfare reforms.

[The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly)]

During the development of the legal aid reforms, the Ministry of Justice conducted detailed assessments of the availability of legal advice funded by legal aid or provided by the not-for-profit advice sector. With regard to welfare reform, the Department for Work and Pensions is developing a strategy for working with the voluntary sector, including welfare advice services, to ensure that people on low incomes have access to the support that they need to understand their rights and entitlements following the move to universal credit.

[Stephen Timms]

During ping-pong on the Legal Aid, Sentencing and Punishment of Offenders Bill, Ministers accepted that legal aid should still be available for an appeal to the first-tier tribunal if a point of law is at stake. How will someone establish whether a point of law is at stake, and when will the provision take effect?

[Mr Djanogly]

I confirm that we are giving serious thought to the issue and considering the exact scope of the concession, as well as how such work will be delivered in future, because the operational aspects are just as important. Once we have considered that in full, we will make an announcement.

[Robert Halfon (Harlow) (Con)]

13. What recent assessment he has made of the value for money and effectiveness of the Office of the Information Commissioner.

[The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly)]

The Ministry of Justice and the Information Commissioner’s Office meet regularly to ensure that the office operates effectively and secures the best possible value from the resources available to it. The ICO’s next annual report is due out on Thursday.

[Robert Halfon]

As I told the Minister when I wrote to him a few weeks ago, it took a long campaign in Parliament in 2010 before the Information Commissioner was prepared to admit that Google Street View had broken the Data Protection Act on an industrial scale. It has now taken an investigation by The Sunday Times and action in America for the ICO to actually act and pursue Google further. Surely the ICO should be accountable to Ministers, and therefore to the British people, so that when there are such problems someone can take charge.

[Mr Djanogly]

The Information Commissioner is of course accountable to the public via Parliament. His annual reports are laid before Parliament, and he could be questioned on his reports by, for instance, the Justice Committee. It would be wrong for me to comment on the ICO’s handling of any particular case. That said, I understand that the ICO has reopened its investigation into Google Street View because it has received some new information about Google’s capture of data from wi-fi networks in the USA. The investigation is ongoing.

[Mark Pawsey (Rugby) (Con)]

15. What recent assessment he has made of the operation of community payback; and if he will make a statement.

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[Dan Jarvis (Barnsley Central) (Lab)]

T4. According to the Legal Services Consumer Panel, 180,000 wills are written each year by unregulated services. Both the national press and the Barnsley Law Society have reported that thousands of people are being ripped off by unregulated will-writing services. What does the Justice Secretary think is the solution to the problem?

[The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly)]

The Government recognise this as a serious issue. We are in discussion with the Legal Services Board, which has just done a consultation, and we will be making an announcement in due course.

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[Sheila Gilmore (Edinburgh East) (Lab)]

T5. Professor Harrington, the independent reviewer of the work capability assessment, has highlighted the fact that Department for Work and Pensions officials are not routinely given feedback when appellants’ appeals have been successful, which means that they cannot improve practice. Why not?

[Mr Djanogly]

There are costs involved in feedback, but that does not mean that the DWP cannot ask for feedback if it wants it. The efficiency of the tribunal processes is being looked at carefully, with Ministry of Justice officials and Ministers working closely with DWP equivalents.

[Bob Blackman (Harrow East) (Con)]

T9. Many countries outside the UK have legal systems that are based on ours, and this is particularly true in the Commonwealth. What has my right hon. and learned Friend done to market the legal services in the UK to those countries?

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[David Mowat (Warrington South) (Con)]

In this country, we now have 1,200 whiplash claims a day, which is about 30 times more than in France or Germany. The industry costs to the rest of us are £2 billion a year, resulting in many young people being unable to afford to insure their cars. What discussions has the Minister had with the relevant regulatory body of the Law Society that drives this industry?

[Mr Djanogly]

The Government are committed to reducing the number of whiplash claims, and we have had discussions with all parties involved in these claims. We will consult over the summer on reducing the number of whiplash claims, including through looking at the medical certificates that are handed out, as well as at small claims levels.

[Caroline Lucas (Brighton, Pavilion) (Green)]

T7. My constituent Sam Taylor has been subjected to, and still lives in fear of, the most terrible harassment from her ex-partner. The new offences relating to stalking represent real progress, but Sam’s case shows that serious work still needs to be done on the ground to ensure that she and her family can be properly protected. Will the Minister meet Sam, along with the chief superintendent of Sussex police and me, to hear why she remains concerned?

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[Alison Seabeck (Plymouth, Moor View) (Lab)]

There is evidence in the south-west of companies setting up internal companies to pursue debt—in effect, two companies pursue the same debt. The Office of Fair Trading describes this as an unfair practice and the direction guidance says that such practice constitutes harassment when two bailiffs chase the same debt. There are clearly Chinese walls in this practice; is it going to be looked at as part of the regulation review?

[Mr Djanogly]

If bailiffs are involved, it does fall within the terms of the consultation. I will come back to the hon. Lady on the specific point.

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[Ann Coffey (Stockport) (Lab)]

On 15 May, I asked the Minister when he was going to respond to the recommendations of the Justice Select Committee on the presumption of death in guardianship, which were published on 22 February. He responded, “Shortly”. May I please ask the question again?

[Mr Djanogly]

The answer is now “Very shortly”.

[Tessa Munt (Wells) (LD)]

A couple of weeks ago, the Under-Secretary of State for Justice, the hon. Member for Reigate (Mr Blunt) visited the high-performing Shepton Mallet prison in my constituency. It has a great team of staff. Will the Under-Secretary or the Secretary of State comment on the fairness of recognising the high numbers of years of service of prison officers with jubilee medals, but not honouring the support staff, who are equally important in the smooth running of this prison, in the same way? Would it not be churlish not to produce some more medals so that they can be given to the support staff as well?

--- Later in debate ---

[Mr Djanogly]

The hon. Gentleman makes an important point. Better decisions need to be made by Departments in the first place so that fewer are appealed, and the Ministry of Justice is working with other Departments to that end.

Data Protection

Jonathan Djanogly Excerpts

Thursday 28th June 2012 Written Statements

[The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly)]

My noble Friend the Minster of State, Ministry of Justice, Lord McNally, has made the following written ministerial statement:

Today, I will publish the Government’s summary of responses to their call for evidence on the European Commission’s new proposals for data protection.

On 25 January 2012, the European Commission published a draft data protection directive (covering the police and judicial sector) and a draft data protection regulation (mainly impacting on individuals, business, the public sector and charities). The Government’s call for evidence, which was launched on 7 February and concluded on 6 March 2012 sought evidence on the potential impact on the UK of both the proposed regulation and the proposed directive.

Some143 responses were received from across the public, private and third sectors, consumer groups and members of the public. In addition to inviting written responses to the call for evidence, officials from the Ministry of Justice took part in a series of bilateral discussions and roundtables to hear views from industry and rights groups.

Broadly, respondents to the call for evidence welcomed the opportunity for a revision of the current data protection framework. Rights groups and members of the general public welcomed the strengthening of individuals’ rights and greater transparency in the processing of personal data. However, businesses and some public sector organisations expressed their concerns about the additional burdens and unintended consequence stemming from the proposed regulation. The evidence received will help to inform the UK’s position for the ongoing negotiations of the EU data protection instruments.

At the same time as publishing this summary of responses, the Government will publish their impacts checklist of the proposed data protection instruments. Primarily, the checklists aim to assess the costs and benefits the proposed instruments could generate.

Negotiations are expected to continue at EU level until 2014, when the Government’s aim is to secure a data protection framework that is proportionate, and that minimises the burdens on businesses and other organisations, while giving individuals real protection in how their personal data are processed.

Copies of the summary of responses to the call for evidence and the impacts checklists will be placed in the Libraries of both Houses and on the Department’s website at: www.justice.gov.uk.

Public Guardian Board (Annual Report)

Jonathan Djanogly Excerpts

Wednesday 20th June 2012 Written Statements

[The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly)]

The Public Guardian Board has provided me with a copy of its annual report on the Public Guardian for the year 2011-12. A copy of the report has been deposited in the Libraries of both Houses. Copies of the report are also available online at: http://www.justice.gov.uk/about/opg/pgboard.

Defamation Bill

Jonathan Djanogly Excerpts

Tuesday 12th June 2012 Commons Chamber

[Paul Farrelly (Newcastle-under-Lyme) (Lab)]

First, I should declare my interests: I am chair of the all-party group on libel reform and a member of the Culture, Media and Sport Committee.

I hope there will be cross-party support for an improvement to our libel laws, and in keeping with that spirit I join other Members in congratulating the Secretary of State on making sure the Government have found time for this Bill, and in acknowledging the efforts of his ministerial colleagues, the hon. Member for Huntingdon (Mr Djanogly) and especially Lord McNally in the other place, greatly and expertly assisted by Lord Lester, who is a veteran of this campaign. Like the shadow Secretary of State, my right hon. Friend the Member for Tooting (Sadiq Khan), I am grateful that they so willingly took up the reins passed to them by my right hon. Friend the Member for Blackburn (Mr Straw), who is another true veteran of this place and who did so much in the last Parliament to pave the way for reform.

Clearly, no thanks would be complete without praising the efforts of the Libel Reform Campaign, which includes Index on Censorship, English PEN and Sense about Science. They came together in 2009 to lobby for a change, and they have lobbied very effectively both in terms of party manifestos and, importantly, through their organisation, which has served to amplify the voices of many of the victims of the excesses of our libel laws who were crying out for both help and change—people such as Simon Singh, Hardeep Singh Kohli and Dr Peter Wilmshurst. I shall refer briefly to some of those cases later, because one of the litmus tests of this Bill will be whether there will be any similar cases following its reforms. At each stage of the Bill’s passage we should ask ourselves, “What would this Bill change? What difference would it make to some of the worst excesses we have seen in recent years?”

As a former investigative journalist who was once sued myself—only once, I stress—I have been interested in libel reform since I entered the House in 2001, and I have certainly pushed the issue since joining the Select Committee in 2005. The Committee’s investigation into this subject started in earnest in 2008 and our 2010 report, “Press standards, privacy and libel”, contained several recommendations that have been pursued by both of the Governments since then and have, thankfully, found their way into this Bill.

Other people have been pressing for root-and-branch reform for much longer. Last autumn, I was privileged to sit down with one of the greats of British journalism, Sir Harry Evans. His investigation while he was the editor of The Sunday Times into the thalidomide scandal in the 1970s was a defining moment in the history of the quality end of the British press. It lasted six or more years in all and, in 1979, went all the way to a landmark European Court of Human Rights decision regarding free speech. As is recounted in Harry’s book, “Good Times, Bad Times”, Lord Lester was an advocate in that case. That affair showed this House in a great, independent light, because the then all-party group on disability, which was chaired by the much missed Lord Jack Ashley, the former Member for Stoke-on-Trent, South—a predecessor of my hon. Friend on the Front Bench, the Member for Stoke-on-Trent South (Robert Flello)—was right in the thick of the fight for justice regarding thalidomide.

As a spring chicken, I asked Harry, when I met him last autumn, whether he thought that serious investigation, given recent developments in libel laws and the state of our newspaper industry, would be harder nowadays. “Oh, easier, easier,” he replied, without a moment’s hesitation. “Nowadays,” spring chicken, he almost said, “you don’t have civil contempt.” Then, if there was civil action in the courts, as there was against the thalidomide drug company, investigation was off limits. After the European decision, the law was changed in 1982. Civil contempt, therefore, was out as a bar to investigation in the public interest, but our antiquated libel laws remain. In one sense, therefore, I had to disagree with Harry given my experience as a journalist. I stopped practising as a journalist in 2001, by which time, as previous speakers have said, Google had been founded in a Californian garage for fewer than three years. The change since then has been frantic and it now seems almost to have been around for a lifetime.

I remember that at the end of the 1990s, amid the upheaval of Yeltsin’s Russia, I was writing several investigative pieces about money laundering and the connections between Russian politicians, business and the Russian mafia, no less. In recent years, such investigations would have been harder to get past a news desk—certainly with every oligarch claiming a global reputation in this internet era, with aggressive libel firms touting their expertise in so-called “reputation management”, with London having been cemented as the libel tourist’s destination of choice and, frankly, with the sheer cost of defending an action. There might be a lull in the courts at the moment, given the effectiveness of the Libel Reform Campaign, but old habits and hostilities will surely return, given the chance, aided and abetted by how the court system has tended to operate in spinning out cases, spiralling up costs and spawning expensive uncertainty.

If the codification of existing law in this Bill adds to certainty, that will be worth while in itself, but if that is all it does it will be a real missed opportunity for deeper reform. Similarly, it will be a missed opportunity if changes to the law are not accompanied by resolute change to court practice and procedures and vigorously followed up and followed through.

Let me turn to what sensible reformers want from this Bill and this process. First, in the public interest, we would like the “chilling effect” to be properly addressed. A writ for libel requires no more than a rubber stamp, whereas to defend one, however trivial or vexatious it might be, takes precious time, effort and lawyers. As we have heard, lawyers and courts cost money—an awful lot of money in libel. Too often the system is weighted in favour of deep-pocketed claimants whose threats are an all-too-effective deterrent to investigation and publication in the public interest.

Secondly, and this is a corollary, we want to jettison London’s reputation as “A city named sue”. It tarnishes our country and our democracy. The situation is not overblown, as certain judges have suggested. One cannot measure the attraction and impact of our libel laws by the number of cases alone, but one can listen to the voices of publishers, non-governmental organisations, scientists, medics and academics in relation to what they will and will not publish, around the world, for fear of being sued in London.

Thirdly, as we have heard, there needs to be a proper balance between freedom of speech, especially in the public interest, and reputation. As the phone hacking scandal has once again shown, there is a world of difference between the quality press and the gutter press. There are responsible bloggers and evil people whom I understand are called trolls. Often, getting a simple correction or apology from the highest-minded newspaper is like pulling teeth. In the macho culture that has grown up, if one does not sue, newspapers often do not treat one seriously, but the costs of being taken seriously are ordinarily beyond most people. In the absence of real and proper reform, this will raise issues of access to justice.

Let me address the three issues I have raised in reverse order. On joining the Select Committee in 2005, I had a cast around Fleet street to gauge the appetite for a serious push on libel reform, but I found that the traditional concerns about libel had overwhelmingly been overtaken by consternation at the effects of conditional fee arrangements. CFAs had been introduced to improve access to the law, but had escalated the costs of defending claims enormously. Following the passage of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, the press has certainly had its way on CFAs, as neither success fees nor insurance premiums are recoverable from the loser, whether claimant or defendant.

Given the extremes of the press we have, I think—and I am a late convert to this view—that things have gone too far. The Government and the Bill must seriously address this issue. Our Select Committee’s 2010 report was prompted by a number of events, including Max Mosley’s privacy case, the libel pursued by Tesco against an old colleague of mine, Ian Griffiths at The Guardian—I shall refer to that case later—and, importantly, by the press’s disgraceful treatment of the family of Madeleine McCann. Following the settlement of the libel actions brought by the McCann family, a seminal article in the New Statesman by a former colleague of mine, Professor Brian Cathcart, entitled, “Scandal: How the Press Tried to Destroy the McCanns”, resonated with me as our Select Committee agreed to start our inquiry. As has been pointed out already, the McCanns would have been hard pressed to start their action or gain any settlement without CFAs. Similarly, without CFAs, people from the scientific and medical community would not have been able to defend themselves in some of the more recent, high-profile libel cases. Dr Peter Wilmshurst’s case is an example of that.

[The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly)]

May I make a short intervention in what is an excellent speech to point out that there are no proposals, certainly not within the Legal Aid, Sentencing and Punishment of Offenders Act, to get rid of CFAs?

[Paul Farrelly]

I thank the Minister for his intervention, but it is the cumulative effect of the changes in the Act on people’s access to justice that we really need to look at as this Bill proceeds through Parliament.

The reality is that press self-regulation in this country is broken, and the reforms in the Bill are as yet unproven. A sensible balance that addresses the issue of access to justice needs to be struck. I hope that that can be done in our proceedings on the Bill. If it is not, I think we will lurch back to the bad old days—I am a former journalist—with newspapers simply asking, “How much are they worth? Can they afford to sue?” They might also use the system, the costs and the delays to their advantage, having trashed reputations on the way.

Let me address briefly issues of libel tourism, forum shopping and this city called sue. I welcome clause 9 and, importantly, the guidance notes, which address this area specifically. The terminology regarding consideration of where is

“the most appropriate place in which to bring an action”

leaves great scope for judicial interpretation. The Government promise to ask the Civil Procedure Rule Committee to consider “relevant factors” in more detail in respect of amendments to the civil procedure rules, but as with all these issues court practice is key and the Government have not published, as the Joint Committee on the draft Defamation Bill recommended, the detail and nature of those rule changes. It is incumbent on them to do so in order for us to have greater clarity. I hope that during the Bill’s progression the Government will provide more detail and comfort on this crucial aspect of reform.

In May 2010, in the High Court, Mr Justice Eady threw out a libel suit brought by an Indian so-called holy man against the journalist Hardeep Singh Kohli over an article he had written in The Sikh Times. His holiness—to give him his title—had never set foot in Britain, but this was not the end of the matter; lawyers were given leave to appeal, and it took until February 2011 for the Court of Appeal finally to strike out the case—after his holiness had failed to produce a £250,000 surety for costs. By then, the case had been going on for nearly three years, at a potentially ruinous financial cost to Mr Singh, and had had a terrible impact on his health and family life. Thankfully, Mr Singh has just got married, and I am sure that we all wish him well after what he has been through. As a wedding present, surely we can give him a commitment to early resolution and the strike-out of inappropriate, trivial and vexatious claims. Members will want the Government to give them comfort on this matter during the passage of the Bill.

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[The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly)]

We have had an extensive and informed debate in which many varied and interesting points have been raised. As the Secretary of State said in his opening speech, our core aim in introducing the Bill is to reform the law so that it strikes the right balance between the right to freedom of expression and the protection of reputation. I was impressed by the elegant description of this balance by my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips).

I want to take this opportunity to thank the draft Bill Committee members, a number of whom have spoken today. They were very capably chaired by Lord Mawhinney, and we have valued their recommendations and careful scrutiny of the Bill. I also thank Lord Lester, whose private Member’s Bill focused attention on this important issue. I am sure that the remarks of my hon. Friend the Member for Worthing West (Sir Peter Bottomley) about the openness of the Government’s position in the Joint Committee will be well received by my noble Friend, Lord McNally, who has worked very hard on this legislation over the past year.

As the points that have been raised illustrate, there is a range of views on exactly what the balance should be and on how individual issues should be dealt with, but for the most part these are issues of nuance rather than principle. I can confirm to the hon. Member for Stoke-on-Trent South (Robert Flello) that of course I remain in listening mode and shall continue to do so throughout the Committee’s proceedings. I welcome the clear recognition from the shadow Secretary of State and Members on both sides of the House that reform of defamation is needed. I also welcome the support that has been expressed for the Bill and what we are trying to achieve with it. The Bill was described as a “burning light” by my hon. Friend the Member for South Derbyshire (Heather Wheeler).

Let me respond to some of the specific points that hon. Members have raised. Questions were raised by the hon. Member for North Antrim (Ian Paisley), the right hon. Members for Tottenham (Mr Lammy) and for Tooting (Sadiq Khan), the hon. Member for Bishop Auckland (Helen Goodman), my hon. and learned Friend the Member for Sleaford and North Hykeham and the hon. Member for Newcastle-under-Lyme (Paul Farrelly) about how far the serious harm test raises the bar for claims. As the Secretary of State indicated, it is our view that the requirement to show serious harm represents a higher hurdle than the current law. It will be a matter for the courts to determine how the test should apply in individual cases, but we wish to nudge the threshold up to deter trivial claims. No doubt we shall be discussing this issue further in Committee. Hon. Members have expressed concern that the test might require detailed evidence to be presented. We recognise that the introduction of the test might involve some front-loading of cost, but we believe it is better to resolve this issue at an early stage so that only cases involving serious harm proceed.

My hon. Friend the Member for Cambridge (Dr Huppert) has been a determined and consistent advocate for scientific research and freedoms. On his request for a strike-out power in clause 1, we took a different and wider approach than Lord Lester’s Bill on this issue. Our measures change the substantive law of defamation instead of focusing on one aspect of the procedure. Our intention is that the normal rules, as set out in the civil procedure rules, will apply. It seemed preferable to rely on those rules rather than create a new and unprecedented procedure for mandatory strike-outs. If the court decides that the serious harm test is not satisfied it will be able to use its power under the rules to strike out the claim.

On clause 2, the hon. Member for North Antrim and others have expressed concern that legislating to rename and restate the defence for justification as one of truth could lead to uncertainty about how far the new law might differ from existing law. The right hon. Member for Tottenham, the hon. Member for Newcastle-under-Lyme and my hon. and learned Friend the Member for Sleaford and North Hykeham also raised more general concerns about the Bill in the same regard. I agree that any new legislation will inevitably require interpretation and development by the courts in individual cases. However, as the Secretary of State indicated, we want to simplify and clarify the law, which has become unnecessarily complicated. We believe that the clause sets out the key principles of the defence as clearly as possible and will provide greater clarity and certainty in defamation proceedings.

Similar concerns were raised by my hon. Friend the Member for Gainsborough (Mr Leigh) regarding the new statutory defence of honest opinion and whether it would be misused by the press. Again, this is an area in which the law has become particularly complex and technical and has often led to protracted disputes. I confirm to my hon. and learned Friend the Member for Sleaford and North Hykeham that clause 3 clarifies and simplifies the law. We believe that this change will provide greater certainty and will help to avoid unnecessary litigation and cost.

On clause 4, my hon. Friend the Member for South Swindon (Mr Buckland), the right hon. Member for Tooting, the hon. Member for Bishop Auckland, the right hon. Member for Carshalton and Wallington (Tom Brake) and my hon. Friend the Member for Cambridge have expressed the view held by some that the clause might not provide strong enough protection for publications in the public interest and that instead of the defendant having to show that a publication has been made responsibly, the claimant should have to show malice or recklessness on the part of the defendant in order to defeat the defence. We share the view of the Joint Committee on the draft Bill that this would not be appropriate. It would widen the scope of the defence and not offer sufficient protection to people whose reputations had been defamed.

Our position is that the clause strikes the right balance and will provide effective protection for responsible publications, but we will be pleased to discuss the matter further in Committee, including the implications of the Flood decision. We do not consider, as suggested by the hon. Member for Bishop Auckland, that we have departed from the Reynolds defence. Clause 4 is based on existing common law and the defence established in Reynolds, and is intended to reflect the principles established in that case and subsequent case law. The essential test is whether the defendant has acted responsibly in a matter of public interest. That matches the case law and gives the court appropriate flexibility.

This is probably an appropriate time to consider the suggestion from the hon. Member for North Antrim that newspapers be required to notify people in advance about any story they propose to publish. We do not consider it appropriate to require that prior notification be given to the subjects of newspaper articles. However, the defence in clause 4 follows the Reynolds case in identifying as factors that the court can consider in deciding whether the publication was responsible, first, whether the defendant sought the claimant’s views on the statement complained of before publishing it and, secondly, whether an account of any views the claimant expressed was published with the statement.

On clause 5, many hon. Members have discussed how technology has changed the arena in which defamation operates. My hon. Friend the Member for Mid Bedfordshire (Nadine Dorries), my hon. and learned Friend the Member for Sleaford and North Hykeham, my hon. Friends the Members for Richmond Park (Zac Goldsmith) and for Northampton North (Michael Ellis), and the hon. Members for Liverpool, Walton (Steve Rotheram) and for Bishop Auckland raised important questions about the extent to which the new provisions will tackle trolling and abusive behaviour on the internet. Clause 5 establishes a new procedure that can be followed by website operators on receipt of a complaint about defamatory material on the site on which they host user-generated content. Provided that website operators comply with this procedure, they will have a defence against a civil action for defamation. The procedure focuses on putting complainants in touch with the author of allegedly defamatory material so that they can take action against the author and bring civil proceedings of defamation, if the matter cannot be resolved by other means.

It is recognised, of course, that the dead cannot be defamed, but it is also important to recognise, in response to the sad case in Liverpool mentioned by the hon. Member for Liverpool, Walton, that a range of criminal offences exist to tackle trolling and other offensive behaviour on the internet. These criminal sanctions include section 127 of the Communications Act 2003, which creates an offence of sending or causing to be sent

“by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character”.

Section 127 has been used to prosecute instances of cyber-bullying, hate crime, homophobic crime, incitement to violence, crimes committed by animal extremists, domestic violence and other sorts of threatening and abusive behaviour. Other offences, under statutes such as the Malicious Communications Act 1988, the Computer Misuse Act 1990 and the Protection from Harassment Act 1997, may apply, depending on the circumstances.

The Crown Prosecution Service will determine under which legislation to progress prosecution, depending on the circumstances of each case. Some 2,000 criminal prosecutions for trolling have occurred in the past year, but I agree with my hon. Friend the Member for Mid Bedfordshire that action must be taken, where appropriate, and that trolling can be a very nasty business indeed. She clearly explained the range of the activities involved. We are confident that this criminal legislation is being used effectively to tackle offensive behaviour, as the recent case involving Facebook demonstrates. In addition, clause 5 will help to improve the civil law in relation to defamatory postings. Our idea is to help enable the claimant to take action against the author, including anonymous trolls, at a low cost and with the possibility of avoiding the involvement of lawyers.

[Paul Farrelly]

I have learned in this debate that the word “troll” is being used in this way. Let us not give these people the respectability of Norse mythology. Can we not describe them as they are? Can we avoid using “troll” and just say that these are sad, irresponsible people?

[Mr Djanogly]

I understand and agree with the hon. Gentleman’s sentiment, however I am reflecting what is now in common usage and “troll” is a word that people will understand. Some people understand it in either the criminal or the civil context, but the point I am making is that it can be used in both contexts.

Our approach will also promote freedom of expression by helping to ensure that material is not needlessly taken down without the author being given the opportunity to defend it, as often happens now. I can confirm to my hon. Friend the Member for Cambridge that we will also be ensuring that protection is in place for whistleblowers.

[Robert Flello]

Will the Minister please address the issue of what happens when a defamatory statement is put on a website anonymously and the website operator then tells the person defamed who the person posting it is but they are impecunious and are out of jurisdiction? What happens then in terms of taking the statement off the website, because the website operator now has a defence?

[Mr Djanogly]

If the website operator has a defence, they are out of the picture. That does not stop action being taken against the anonymous troll, but that would have to be done by way of an order, which, admittedly, would be a more expensive procedure.

[Nadine Dorries]

I believe, and think that the shadow Minister probably does too, that the entire process whereby the responsibility is on the website owner to seek out and address the libellous or defamatory comments left by a troll will be enough to encourage that website owner to remove the comments themselves if they do not get a satisfactory answer. I know that it is not in legislation, but I believe that that even happens now and so this approach will help to reinforce that process.

[Mr Djanogly]

My hon. Friend makes a good point. I would be the first to admit that there are no silver bullets here. We are looking at a range of proposals that will give an array of weaponry to deal with what we consider to be a dangerous situation. Let me make it clear that the Government are committed to tackling trolling, cyber-bullying and other forms of abuse and misuse of social networking sites by working with industry, academia, charities and parenting groups to develop tools and information for users aimed at keeping society safe online.

The Government are pressing the internet industry in the UK and Europe to implement clear and simple processes for dealing with abuse online, and we have also recently reviewed our cyber-bullying policy. For the most part, social network site operators adopt sensible and responsible positions on any misuse or abuse of their services in the terms and conditions they require of their users. They support this with systems for notification of breach and removal of material in breach. This corporate responsibility of operators, aligned with collective responsibility on users to report misuse, provides the basis for self-regulation of the internet and a more immediate means of monitoring and dealing with abuse.

Many hon. Members queried when we would be publishing regulations to set out the new procedure in detail. I can say tonight that a note on the new process will be provided to the Public Bill Committee to aid its scrutiny of the Bill’s provisions, and draft regulations will be published for consideration by stakeholders in due course.

As the right hon. Member for Tooting said, we believe that extending the clause 6 protection is important in order to help encourage robust and open scientific and academic debate, and I, too, acknowledge the principled stand and ongoing participation of Dr Simon Singh in this area. In drafting the clause, we have given careful consideration to defining key elements of the peer-review process to ensure that the scope of the provisions is clear and appropriate, and we are satisfied that it is.

The hon. Member for North Antrim, among others, expressed the view that the problem of libel tourism has been exaggerated. We recognise that there are mixed views on how far libel tourism is a real problem; my hon. Friend the Member for Morecambe and Lunesdale (David Morris), among others, took the opposite view, saying that it is a serious problem. However, I point out that the number of cases alone may not accurately reflect the extent of the problem, as the threat of proceedings by wealthy foreigners and public figures can be used to stifle investigative journalism, regardless of whether cases are ultimately brought. That is a form of legal arbitrage and on balance we believe that there is a need to take action specifically to address the issue. We must lose our growing reputation as the libel capital of Europe.

As for how clause 10 will interface with the new defence for website operators under clause 5, if a website operator were to fail to follow the process and then attempt to use a clause 10 defence on the basis that they were not the author, editor or commercial publisher of the third-party material, it would be for the court to decide whether the fact that they had failed to follow the process set out in clause 5 meant that it was not reasonably practicable for the claimant to pursue the primary publisher.

The right hon. Member for Tooting, my right hon. Friend the Member for Haltemprice and Howden (Mr Davis), my hon. Friends the Members for Worthing West, for Gainsborough and for North East Somerset (Jacob Rees-Mogg) and my hon. and learned Friend the Member for Sleaford and North Hykeham discussed issues relating to a person’s reputation being decided by his or her peers in the form of a jury. I understand those views but, as my right hon. and learned Friend the Secretary of State outlined, in practice very few defamation cases now involve juries. We need to appreciate that jury trials can create practical difficulties and add significantly to the length and cost of proceedings, and that if the judge believes that a jury trial is appropriate that will still be a possibility. As my hon. Friend the Member for Maidstone and The Weald (Mrs Grant) said, the proposal should also help moves towards early settlement.

My hon. Friend the Member for South Swindon gave a lively exposition of how the move away from jury trials is part of what he described as an evolutionary process of libel law. The right hon. Member for Tottenham asked about guidelines and whether they should be included in the Bill to assist the court in the exercise of its discretion to order trial by jury. A clear majority of consultation responses considered that such guidelines would not be necessary. The courts are already familiar with exercising their discretion to order jury trial when appropriate, and we believe it would be preferable to allow them to continue to do that without specific guidance in the Bill.

My hon. Friend the Member for Stroud (Neil Carmichael), my hon. and learned Friend the Member for Sleaford and North Hykeham, the shadow Justice Secretary, the hon. Member for Newcastle-under-Lyme and others have touched on the new procedure for resolving key preliminary issues at an early stage and its relationship with costs. Let me say first to the hon. Member for Stoke-on-Trent South that we agree that this is an important issue, and I agree with the shadow Justice Secretary that if we can reduce procedure we can reduce costs.

During our initial discussions with interested parties in the summer of 2010, it became apparent that a major area of concern was the extent to which defamation proceedings can become mired in disputes over preliminary issues. That contributes substantially both to the time taken to resolve cases and to the costs involved. For example, in British Chiropractic Association v. Singh proceedings in relation to whether the words complained of were matters of fact or opinion took almost two years to resolve. When a ruling was ultimately given on the issue by the Court of Appeal the claim was withdrawn, but by that point substantial costs had been incurred and the defendant had been placed in a position of considerable uncertainty and stress over an extended period.

In the light of such concerns the Government consulted, alongside consultation on the draft Defamation Bill, on the possibility of introducing a formal new procedure in the High Court to channel all cases in which proceedings are issued through a process whereby early rulings can be given on key issues that currently contribute substantially to the length and cost of the proceedings. That would help to clarify the issues in dispute and the defences that may be available and should assist in encouraging early settlement in many cases. The practical implications of the proposal were discussed with members of the senior judiciary with experience in defamation cases and those views were taken into account by the Government in developing a skeleton outline of how the procedure could work, which was published in the consultation document.

The main preliminary issues which the outline envisaged being determined under the new procedure were whether the claim satisfies the serious harm test where this is disputed, which would enable claims failing that test to be struck out as early as possible; what the actual meaning of the words complained of is and whether that meaning is defamatory; and whether the words complained of were a statement of fact or an opinion.

It was envisaged that the procedure would be automatic in all cases where any of these issues needed to be resolved. In addition, other issues which it was considered could potentially be determined, if relevant, were whether the publication is on a matter of public interest, because an early decision on whether a matter is or is not in the public interest could help to determine whether there is any scope for the defendant to use this defence; whether the publication falls within the categories of publication in schedule 1 to the Defamation Act 1996 for which the defence of qualified privilege is available, as this would help to clarify whether it is open to the defendant to use this defence; and consideration of costs budgeting in appropriate cases, depending on the outcome of the ongoing costs budgeting pilot.

[Sir Peter Bottomley]

On the case of Dr Singh and the chiropractors’ action against him, the House would like to know, if not now then in Committee or on Report, that the changes which are proposed, both in the Bill and in what my hon. Friend the Minister is describing now, would have chilled the chiropractors and they would not have tried to take the bad action that they took, based on bad science and on money and bullying.

[Mr Djanogly]

We intend that issue to be addressed both in terms of the substantive law and in terms of the procedure.

[Paul Farrelly]

I was also trying to give the Minister a pause for breath when the hon. Member for Worthing West (Sir Peter Bottomley) intervened. I tabled the question on Trafigura. One of the consequences was that because of the clash between Parliament and the courts, the courts started to look at how their procedures were working. The Lord Chief Justice, Lord Judge, issued a press statement saying, in effect, “I did not realise what my courts were doing.” Similar circumstances are applicable in libel, but they have not come to a constitutional clash, which why it is so important that the Government look at civil procedure rules and make sure that the courts are managed properly from the top by the Lord Chief Justice and throughout, without our intervening in their affairs.

[Mr Djanogly]

I can assure the hon. Gentleman that that is already happening and forms the subject of my not infrequent meetings with the Master of the Rolls.

[Sir Peter Bottomley]

Following up the very important Trafigura issue, if either a solicitor or a barrister ever purports to a client or to someone on the other side that they cannot talk to their Member of Parliament about a matter of public interest, whether international, as in the case of Trafigura, or in a number of medical cases where hospitals or trusts appear to try to silence a consultant, a clinician or a nurse on the issue of patient safety, I hope the Minister will join me in saying that the standards board for the barristers or the solicitors should say, “That person is unprofessional and will be subject to discipline.”

[Mr Djanogly]

If someone has a problem with the advice that they receive from their professional, they can of course go to the complaints organisations.

We indicated in the consultation document that the Civil Procedure Rule Committee would be asked to consider appropriate procedural changes through secondary legislation to support the new approach. A majority of respondents on this issue were in favour of introducing a new court procedure to resolve key preliminary issues at an early stage. Many of these argued that procedural reform aimed at speeding up defamation proceedings and reducing costs is one of the most important elements of any proposed reform of the law. However, a small number of legal professionals argued that it is unnecessary and could add further complexity.

A range of comments were provided on the issues that would be suitable for determination under the procedure and on other points of detail. I can confirm to the House that we are considering these in working up detailed proposals for the Civil Procedure Rules Committee to consider.

[Paul Farrelly]

At a time when the country is going through some severe problems, we have more pilots in the legal profession than we have, potentially, in the RAF, determining how to cut the costs of lawyers in defamation cases. When we discussed this in the Select Committee, we came to the ludicrous conclusion that cost-capping measures in the courts led only to costs increasing because of the number of cases that were being discussed for cost-capping. It is important that the Government and the Courts Service get a grip on, I am sad to say, how judges run their own courts.

[Mr Djanogly]

We have been doing that, and the hon. Gentleman will appreciate that we addressed the issue to some extent in the Legal Aid, Sentencing and Punishment of Offenders Act 2012, although perhaps not to his satisfaction. As I have said, we are also consistently discussing the issue with the judiciary, because it is an important one.

These issues should not need primary legislation, which is why they do not appear in the Bill. However, I can assure the House that we are firmly committed to ensuring that they are addressed in order to reduce costs and encourage settlements and that we are taking the work forward on all these issues alongside the Bill.

With regard to the provision sought by the right hon. Member for Tottenham, the hon. Members for Bishop Auckland and for Newcastle-under-Lyme and my right hon. Friend the Member for Carshalton and Wallington, namely a specific provision requiring corporations to show financial harm, a proposal made by the Committee, we share the view that the inequality of financial means that exists when a large corporation sues or threatens smaller companies, individuals or non-governmental organisations lies at the heart of current concerns. In view of the fact that corporations are already prevented from claiming for certain types of harm, such as injury to feelings, in order to satisfy the Bill’s “serious harm” test a corporation would in practice be likely to have to demonstrate actual or likely financial harm in any event.

The right hon. Member for Tottenham, the hon. Members for Bishop Auckland and for Stoke-on-Trent South and others made observations on cost protection for claimants in defamation cases in the light of concerns raised during the passage of the Legal Aid, Sentencing and Punishment of Offenders Act. The Government’s reform of no win, no fee conditional fee agreements in that Act should not prevent strong cases from being brought. However, we recognise the concern that individuals who are not wealthy or powerful sometimes need to bring defamation or privacy cases. The Bill and the procedural reforms we intend to take forward alongside it seek to reduce the complexity and cost of defamation proceedings. In order to achieve those aims, I can confirm that we are carefully considering the issue of cost protection in defamation and privacy proceedings and will keep Parliament updated as the Bill progresses.

Continuing the theme of privacy, my hon. Friend the Member for South Swindon suggested that the law on privacy should be codified. The Government welcome the report of the Joint Committee on Privacy and Injunctions, on which he served. The Committee recommended, on a majority vote, that the law on privacy should not be codified. The Government are considering the recommendation, along with all the Committee’s other recommendations, and will publish our response in due course. My hon. Friend also queried whether section 13 of the Defamation Act 1996 should be repealed. Section 13 relates to the ability of Members of Parliament to waive privilege in relation to defamation proceedings. The Government are consulting on the issue as part of the Green Paper on privilege and consider that the issue is better examined in that context than in the Bill.

In conclusion, the Government firmly believe that reform of the law is needed to bolster free speech and ensure that the threat of libel proceedings is not used to frustrate and impede responsible investigative reporting or debate on issues of public importance, while ensuring that people whose reputations have been seriously harmed have clear and effective remedies against those responsible. I look forward to detailed scrutiny of the Bill and further constructive debate in Committee.

Question put and agreed to.

Bill accordingly read a Second time.

Defamation Bill (Programme)

Motion made, and Question put forthwith (Standing Order No. 83A(7)),

That the following provisions shall apply to the Defamation Bill:

Committal

1. The Bill shall be committed to a Public Bill Committee.

Proceedings in Public Bill Committee

2. Proceedings in the Public Bill Committee shall (so far as not previously concluded) be brought to a conclusion on Tuesday 26 June 2012.

3. The Public Bill Committee shall have leave to sit twice on the first day on which it meets.

Consideration and Third Reading

4. Proceedings on Consideration shall (so far as not previously concluded) be brought to a conclusion one hour before the moment of interruption on the day on which those proceedings are commenced.

5. Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion at the moment of interruption on that day.

6. Standing Order No. 83B (Programming committees) shall not apply to proceedings on Consideration and Third Reading.

Other proceedings

7. Any other proceedings on the Bill (including any proceedings on consideration of Lords Amendments or on any further messages from the Lords) may be programmed.—(Stephen Crabb.)

Question agreed to.

Legal Aid, Sentencing and Punishment of Offenders Act 2012

Jonathan Djanogly Excerpts

Thursday 24th May 2012 Written Statements

[The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly)]

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 received Royal Assent on 1 May 2012. The Government have already announced that the provisions in part 2 relating to civil litigation funding and costs will come into force in April 2013. However, there are two exceptions to that.

First, the provisions in relation to sections 44 and 46 (recoverable success fees and insurance premiums) will not come into effect in relation to mesothelioma claims until a review has been undertaken and published in accordance with section 48. The Ministry of Justice will set out further details of the timing and contents of the review in due course.

Secondly, the provisions in relation to sections 44 and 46 will not come into effect until April 2015 in respect of insolvency proceedings. Insolvency cases bring substantial revenue to the taxpayer, as well as to other creditors, and encourage good business practice which can be seen as an important part of the growth agenda with wider benefits for the economy. These features merit a delayed implementation to allow time for those involved to adjust and implement such alternative arrangements as they consider will allow these cases to continue to be pursued. Success fees and insurance premiums will therefore remain recoverable beyond April 2013 in respect of these two classes of case only (in addition to insurance premiums in respect of expert reports in clinical negligence cases provided for by section 46 of the Act), although the fixed recoverable success fees in respect of employer’s liability disease claims in section V of part 45 of the civil procedure rules will continue to apply in respect of mesothelioma proceedings for the time being.

The Government have asked the Civil Justice Council for further advice in relation to detailed aspects of implementation by the end of June in relation to qualified “one way costs shifting” (QOCS).

The Ministry of Justice will also continue to engage with key stakeholders and the senior judiciary and will announce further details of the policy position by the summer recess. Changes to the civil procedure rules (CPR) will be considered by the CPR Committee in the autumn, in order for the necessary changes to come into effect for April 2013. Updates are provided on the judiciary website at: http://www.judiciary.gov.uk/publications-and-reports/review-of-civil-litigation-costs

Family Courts

Jonathan Djanogly Excerpts

Thursday 24th May 2012 Westminster Hall

[The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly)]

There have been relatively few speakers this afternoon, but the speeches have been of a very high quality. I congratulate the Justice Committee and my right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith) on securing the debate. I am grateful to all right hon. and hon. Members for their valuable contributions. The Government recognise that it is simply unacceptable that some children wait more than a year for a decision to be made about their future and that some parents can use the court process to inflame further conflict with their former partners. The hon. Member for Hammersmith (Mr Slaughter) referred, rightly, to the terrifying consequences that can arise. That is why our programme of reform, underpinned by the findings of the Justice Committee’s report and the family justice review, is so important.

I shall deal first with the points made by my hon. Friend the Member for Birmingham, Yardley (John Hemming). He made a significant contribution on a topic in which he has consistently shown significant interest. To take up his concern about the FJR’s legitimacy, I can tell him that it did have cross-party support, having been initiated by the previous Government and continued by the current Government. David Norgrove consulted very widely here and in other jurisdictions. The Grandparents’ Association, which was the example that my hon. Friend gave, submitted evidence and that was certainly considered. I simply cannot accept that the FJR was constrained in the evidence that it sought or considered.

[John Hemming]

My argument is that the panel itself did not have someone from Families Need Fathers, the Grandparents’ Association, Justice for Families or any other of the organisations that represent those people to whom things are done.

[Mr Djanogly]

My hon. Friend makes his point. He will appreciate that, on that basis, many hundreds of organisations could have been included in the body.

Two key pieces of legislation will support our proposals for system change. The children and families Bill, announced in the Queen’s speech, will help to deliver the Government’s commitment to supporting children and families by making it easier for parents to share caring responsibilities and by supporting some of the most vulnerable children, including those in care or whose parents have separated.

[John Hemming]

I thank the Minister for giving way again. Will the Government consider the proposal from my hon. Friend the Member for Mid Dorset and North Poole (Annette Brooke) of having a default position in the children and families Bill so that there is no need to go to court to establish a default position?

[Mr Djanogly]

I will come on to that.

The Crime and Courts Bill, introduced on 10 May, contains provisions that will establish a single family court. That is a direct response to a recommendation made by the family justice review. The creation of a single family court will simplify the court process and make it more accessible for families using the system. It will be more transparent and will facilitate the allocation of family law cases in the most effective and efficient way.

In the area of public law, we have already made a commitment to implement many of the review’s recommendations. Where the state intervenes to take children into care, our overriding priority must be to reduce significantly the unacceptable level of delay. That is why we intend to introduce a six-month time limit for all bar exceptional cases. I can confirm to my right hon. Friend the Member for Berwick-upon-Tweed that that is a limit, not a goal. Where cases can be completed more quickly, they should be. The time limit will be a key part of the family justice provisions in the children and families Bill.

To answer my right hon. Friend, who mentioned time limit delays, the judge will have to give reasons for the delay in open court. In that way, a picture of performance and weaknesses in particular parts of the country will become apparent and will build up over time, which will mean that action can be taken to address a particular problem in a particular area. There are a number of steps to support that.

The Justice Committee and the family justice review, and my hon. Friend the Member for Birmingham, Yardley, highlighted the need to cut the number of expert reports used in court proceedings.

[John Hemming]

rose—

[Mr Djanogly]

Will my hon. Friend let me make some headway, and then he can come back on what I say?

Such reports take up precious time. I agree that they should be used only where necessary to determine a case and the courts should ensure that such evidence is properly focused on the key questions that the court needs to be answered. We already plan to change the family procedure rules to bring that into effect. Expert evidence will of course continue to be important in some cases to ensure a fair and complete process. Where expert evidence is required, we are working to ensure that it is of high quality and delivered promptly.

To go into more detail, because of the concern shown by my hon. Friend the Member for Birmingham, Yardley, we are introducing early changes to the court rules through secondary legislation. The main elements are raising the threshold for the court to permit an expert to be instructed; requiring expert witness evidence to be necessary, rather than reasonably required; and in family proceedings concerning children, there will be a list of factors that the court must explicitly consider in deciding whether to permit an expert to be instructed. Those factors include the impact on the child of a delay and undergoing an assessment, the cost, and whether the information could or should be provided by one of the parties, such as the local authority. We will also require the court to exercise better control over the questions put to the expert and require solicitors to undertake preparatory work earlier in the process to reduce delays in the experts beginning work.

We recognise that minimum standards are necessary for expert witnesses in the family court. We are working with the Department of Health, health regulators and the Family Justice Council to establish minimum standards that judges should expect from all expert witnesses. We are exploring how and whether we can implement the family justice review recommendation that meeting minimum standards should be a requirement for public funding. We will also consult key stakeholders on proposed minimum standards, which we hope to have in place later this year.

[John Hemming]

I very much welcome the minimum standards for experts, which would be a good thing. I am not one of those who has gone around saying that there are too many experts. I have not expressed any view on how many experts there should be. I have said that independent social workers add value to cases. If we want to save money, get rid of CAFCASS.

[Mr Djanogly]

I will come on to CAFCASS in due course.

My hon. Friend said that a default residence contact position would avoid the need for court orders. The problem with that is that it is a one-size-fits-all approach; it would not focus on what the child needs. A very young child may have quite different needs from an older child, for example. If parents are in dispute about child arrangements, and the matter requires a court decision, it is right to focus on the child’s needs at that point. That is the current position and we intend to retain it.

[John Hemming]

The point is not that we should have an unchangeable default position, but that we should start from a position whereby it is the duty of both parents when they separate to maintain contact with the child. The difficulty is that the current position often creates a de facto situation; basically, residence moves with the child and the legal process takes some time to catch up, but in the meantime, in very traumatic circumstances, the relationship between the child and one of the parents has decayed. It is not that the solution is inflexible, but that we start from a minimum position that could be varied.

[Mr Djanogly]

I hear what my hon. Friend says, and I am not entirely sure that it is incompatible with what I said. I will take a further look at that.

We must improve the quality of the submissions made to courts by local authorities. In many areas, poor-quality or late submissions delay cases and lead to too great a reliance on time-consuming expert reports. We will strip out bureaucracy and duplication. On care planning, we will introduce legislation through the children and families Bill to make it explicit that the court should focus only on issues essential to its deliberations. We will also remove the bureaucratic processes connected with the renewal of interim care orders and interim supervision orders. Where a case is already before the courts, we will remove the need for an adoption panel to consider whether a child should be placed for adoption.

That work is supported by Her Majesty’s Courts and Tribunals Service, which has allocated a further 4,000 sitting days to the county court exclusively for family work, as my right hon. Friend the Member for Berwick-upon-Tweed pointed out. That is an increase of 8,000 extra county court sitting days compared with 2009-10 and a major increase in family court capacity. That somewhat disproves what the hon. Member for Hammersmith said about Government cuts. We have not been cutting the service, but have been significantly increasing the resources added to it. Her Majesty’s Courts and Tribunals Service has ring-fenced the family allocation in the magistrates courts, ensuring that days intended for families are not lost on criminal hearings.

All right hon. and hon. Members will agree that simply allocating more court days will not solve the long-term issues identified by the family justice review. All the work will be underpinned by more robust data, an issue highlighted by the Justice Committee last year, as my right hon. Friend pointed out. I agree that it is key. Without figures, we can only reform by way of anecdote based on single issues. That is not an adequate position.

With judicial support, Her Majesty’s Courts and Tribunals Service is rolling out a new management information tool. For the first time, it will track the care case process from start to finish at court level. Although it applies only to those cases entering the system from 1 April, it will provide important data about where delays are currently occurring in the system and why they have arisen. Importantly, the tool will drive changes in behaviour by allowing local areas access to their own data, so that information can be used to identify performance barriers.

[John Hemming]

That would be an excellent tool. Will the tracking system track the release of the printed judgment to the parents, who often do not receive a judgment on which they can appeal?

[Mr Djanogly]

I will come back to my hon. Friend on that point.

We wish to see a stronger, clearer role for judges in setting a timetable for family cases and ensuring that those cases are managed and completed in a timely and efficient manner. The judiciary are therefore key partners in all of this work. I have had a number of conversations with Mr Justice Ryder, the judge in charge of modernisation, about our reform plans. I am pleased to report that we are working closely with the judiciary, with full regard to their judicial independence. For example, we have already established the Family Business Authority. It brings together the family judiciary and the administration in a decision-making forum. The group takes a strategic look at the family jurisdiction and is well placed to support the modernisation of family justice.

On private law disputes, there were very few points of difference between the Government and the family justice review panel, but there was one on the issue of shared parenting. The Justice Committee has taken a close interest in that, and the Under-Secretary of State for Education, the hon. Member for East Worthing and Shoreham (Tim Loughton), and I will give evidence next month to the Committee on the Government’s position. A ministerial working group has been looking at it and has met three times. We intend to consult shortly on options for legislation.

We need to send a clear message to parents that in the absence of any welfare concerns both should be involved in their child’s upbringing. Without pre-empting the consultation, I should like to make it clear that nothing we propose will undermine the existing principle that the welfare of the child is the court’s paramount consideration. Safety will remain an important factor. In answer to points raised by my right hon. Friend the Member for Berwick-upon-Tweed and the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd), our proposed amendment to the Children Act 1989 will send a clear signal to separated parents that courts will take into account the principle that both should continue to be actively involved in their children’s lives. In doing so, it will help to dispel the perception that there is an inbuilt legal bias towards one parent. There is a real feeling among many people that that is the case, which results in a mistrust of the family justice system.

The proposed amendment will encourage more separated parents to resolve their disputes out of court and agree care arrangements that fully involve both parents. An obstructive parent seeking to frustrate contact between the child and his or her other parent should not be able to use the court system to legitimise such activity without good reason.

[Sir Alan Beith]

rose—

[Mr Djanogly]

I will just finish this point. This change is not about equality in the time that a child spends with each parent after separation. Every family and every child’s circumstances are different and the courts will continue to make decisions on that basis.

[Sir Alan Beith]

There have been quite intensive discussions about this issue in government. In trying to use the law as a signal, there is a danger that the courts will be obliged to take into account a further element of complexity when making a judgment. The signal that it gives some parents in dispute may be that there is another point on which they can engage the court in order to keep the case going. It is more likely to do that than to give a signal to parents about what they themselves should do.

[Mr Djanogly]

The right hon. Gentleman makes a fair point. This was what came up in Australia. The Government have looked carefully at the lessons of the Australian experience of legislating in this area, which was highlighted by the family justice review. Direct comparisons with the experience in Australia are misleading; it is certainly not our intention to mirror the structure of the Australian legislation or to create new layers of complexity in our existing system.

Contributors all mentioned the importance of early intervention. I agree with my right hon. Friend that it is an essential component in solving this issue. The Department for Work and Pensions, the Department for Education and the Ministry of Justice are working closely together on this so that a parent’s first port of call will be an online hub that will provide practical information and advice and will signpost appropriate services.

We have introduced measures to strengthen consideration of mediation and to explore how that can work alongside parenting programmes and other interventions to help parents focus on a child’s needs. I will say a bit more about mediation later. In addition, we are working to develop parenting agreements as a tool to help parents agree arrangements that are child focused and practical.

The DFE is providing an early intervention grant worth about £2 billion, which is flexible funding for local authorities to spend on their early intervention priorities from Sure Start through to crime prevention. The Justice Committee will know about the Youth Justice Board and the custody pathfinder projects, which give pilot areas custody funding up front for the under-18s. That will incentivise local authorities to intervene early before young people become serial offenders.

Many other cases could be settled away from court. Too many people go to court to resolve their private disputes and fail to grasp the fact that the court is required to focus on the child’s welfare needs. That may mean that neither parent is happy with the decisions that are made. For many such parents, the family courts are not the best way of settling disputes about a child’s future. Mediation can be quicker and cheaper, and can provide better outcomes, especially if compared with drawn-out court hearings. It is important that mediation is considered at the earliest opportunity before positions become entrenched. An amicable solution is better than a litigious one.

Referrals to mediation in publicly funded cases are up by nearly 12% since the introduction of the pre-application protocol last April. However, I remain concerned about the protocol’s effectiveness in privately funded cases, and there is a need to tackle inconsistencies in approach across the courts. That is why we will make statutory changes to make it a prerequisite that anyone who wishes to begin court action must first attend a mediation information and assessment meeting to find out about and consider mediation. We remain committed to make public funding available for mediation through legal aid for those who are eligible and expect to fund an additional £10 million for mediation services.

I should point out to the hon. Member for Hammersmith that the Government have no plans to stop making available legal aid for children where they are a party to family proceedings. Various hon. Members mentioned litigants in person. We accept that the reforms will mean an increase in litigants in person. However, unrepresented parties have always been a feature of the justice system—some because they cannot afford representation and others because they choose not to be represented. Paying for a lawyer, whether out of private pockets or public funds, is not always necessary. Judges make significant efforts to assist litigants in person, explaining procedures and what is expected of them. We estimate that about 40% of private law children’s cases involve one or more litigants in person. The proportion in divorce cases is much higher than that.

[Mr Slaughter]

Will the Minister accept that replacing advocates with litigants in person can typically increase the length of a case by up to 100%? If he does not accept that there is robust evidence of that, should the Government not collect such evidence and make their assessment of what the changes will mean for the length and cost of a case?

[Mr Djanogly]

From a review of the literature, we know that sometimes these cases can take longer, but not always. Sometimes they are actually quicker. The picture is complex. However, we expect fewer cases to come to court in future because there will be 10,000 extra family mediations, which will help offset any additional burdens on the courts from dealing with litigants in person. Overall, we do not expect a likely increase in litigants in person to lead to significant additional burdens on the court.

In recognising that there is an existing problem with litigants in person—no matter what happened in the Legal Aid, Sentencing and Punishment of Offenders Bill—we are seeking to improve the system by introducing single family courts, which will provide one route into the system that people can understand; by changing court processes so that they are easier and quicker to understand; by introducing a new child arrangement order; by creating processes to deal with breach of order more quickly and effectively; by simplifying and streamlining the divorce process; and by improving the information made available to the public. In addition, support for separated and separating parents will be provided through new web and telephone services led by the Department for Work and Pensions, which will provide trusted independent information suited to people’s needs. The web service will be commissioned in 2012 and the telephone service in 2013.

Other practical steps include welcoming the Civil Justice Council’s report on self-represented litigants that was published late last year. It contained a number of practical and pragmatic recommendations, many of which are applicable to the family as well as the civil courts. We are working with the CJC and the Family Justice Council on how to take these matters forward. Recommendations include guidance to court staff on how to deal with unrepresented parties and information about pro bono assistance. We have also made funding available to support this work, some of which is being used to support the expansion of the Personal Support Unit, a charity based in the Royal Courts of Justice, which provides volunteers to accompany people to court and to fund guidance produced by not-for profit organisations specifically tailored to unrepresented parties. We envisage the funds being used on online tools, guides to the court process, including on video content, and other initiatives, and we are working with relevant organisations such as the citizens advice bureau to that effect. These will all be in place before the legal aid reforms take effect. These changes are radical and cannot happen overnight, nor can they happen in a family justice system that lacks leadership and coherence.

We agree with the family justice review and with my right hon. Friend the Member for Berwick-upon-Tweed that transferring CAFCASS to the Ministry of Justice will bring court social work closer to the courts and make it easier to improve the whole system’s performance. We will transfer the sponsorship of CAFCASS from the Department for Education to the Ministry of Justice by the end of this spending review period. I should say that CAFCASS’s performance has improved significantly in recent times, but I agree with him that moving CAFCASS will not be enough; integration of services will be key.

Crucially, we are already putting in place the governance arrangements that will drive those changes. We have established the Family Justice Board, which brings together senior figures in the core organisations within the family justice system. The board will give family justice national leadership and visibility, and will be led by an independent chair and supported by a performance improvement sub-group and a young people’s board. We are also establishing new local family justice boards to drive momentum at a local level. The new national governance arrangements will provide a more joined-up family justice system and ensure consistency between national strategy and local delivery. Together, the new structures will have a clear remit to focus relentlessly on system performance.

[Mr Joe Benton in the Chair]

In taking forward work to improve the system’s efficiency and effectiveness, we must not overlook the need to make it more responsive. We are considering how we can simplify processes further and provide practical information to help unrepresented parties navigate their way through the system, as I described earlier.

My hon. Friend the Member for Birmingham, Yardley mentioned CAFCASS and guardians, in the context of the child’s voice being heard. We agree with the FJR’s strong views on the centrality of children’s interests and endorse the panel’s proposals on listening to children’s voices and ensuring that their wishes and feelings are taken into account. We will put the child back at the centre of the system. We take seriously our obligations to promote and implement the UN convention on the rights of the child, and throughout our proposed reforms, we will introduce practical measures to ensure that children’s voices are heard. The Family Justice Board will have a key role to play in supporting children’s right to have their voices heard, which is why one of its sub-groups will be a young people’s board, building on the benefits gained from the CAFCASS young people’s board.

There has been considerable debate over the years about the opening up of family courts. Slightly different positions have been stated today by right hon. and hon. Members, who I accept all care passionately that we get it right. Understandably, there are many different views on the subject, and there is a balance to be struck between confidence and privacy on one hand and publicity on the other. The challenge is balancing the need for public scrutiny with the parties’ need for privacy. I accept that the current position is unsatisfactory.

The Government’s response to the Justice Committee’s report last year, as my right hon. Friend the Member for Berwick-upon-Tweed restated today, accepted the recommendation that the provisions in part 2 of the Children, Schools and Families Act 2010, which allow for greater reporting by the media, should not be enacted. As the Committee recommended, one lesson learned from the outcome of the last attempt to achieve transparency in the family courts is that a solution to this important and contentious area of policy should not be rushed. Given the issues at stake, we will work to find ways to achieve greater transparency in the family courts.

The work that the Government are doing to implement change in response to the Justice Committee’s report and the recommendations of the family justice review represents a broad and ambitious programme of reform, as I hope I have explained to some extent today. The programme that I have outlined shows our commitment to providing a modern family justice system where delay is the exception rather than the norm; one in which people are supported to resolve disputes themselves as early as possible and away from the court if possible; one that is coherent and well led by the Family Justice Board, with buy-in from all partner agencies: in short, a family justice system that children and families can trust and rely on. I know that all right hon. and hon. Members share that objective, and I am grateful to them for their contributions to this debate.

Question put and agreed to.

Appointment of the Chief Coroner

Jonathan Djanogly Excerpts

Tuesday 22nd May 2012 Written Statements

[The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly)]

The Lord Chief Justice, following consultation with the Lord Chancellor, has announced today that His Honour Judge Peter Thornton QC is to take up post as chief coroner in September 2012.

His Honour Judge Thornton, a senior circuit judge at the central criminal court, was originally appointed to the post in May 2010 but did not formally take up his duties while the Government were reviewing the position.

As chief coroner His Honour Judge Thornton will, for the first time, be responsible for providing national leadership to coroners in England and Wales. He will also play a key role in setting new national standards and developing a new statutory framework for coroners including rules and regulations, as well as guidance and practice directions, within which coroners will operate. This will help to bring about much greater consistency of practice between coroner areas and improved services to the bereaved.

While His Honour Judge Thornton will not formally commence his duties until September, he will in advance of that familiarise himself with issues facing the coroner system. He will also continue to sit in the administrative court to hear judicial reviews on coronial matters.

Work is ongoing on implementation of the chief coroner’s statutory functions and other powers in Part 1 of the Coroners and Justice Act 2009, with a view to bringing them into force in 2013.

Oral Answers to Questions

Jonathan Djanogly Excerpts

Tuesday 15th May 2012 Commons Chamber

[The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly)]

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 received Royal Assent on 1 May. Part 2 of the Act contains provisions that will fundamentally reform no win, no fee agreements to make them fairer between claimants and defendants. The changes will come into effect in April 2013, and we will set out more details about their implementation in due course.

[Bill Esterson]

The Government agreed to review no win, no fee arrangements for victims of mesothelioma and their families, possibly just to get the Bill through the House of Lords. Mesothelioma is a terrible disease, and everybody who suffers from it dies a terrible death. What will the Minister do to ensure that victims and their families are properly protected, in light of the review?

[Mr Djanogly]

It is true to say that the issue was heavily debated during the passage of the Bill. I am pleased to note that all parties in the House reached an agreed way forward. The Government are therefore committed to action on mesothelioma, and various proposals about the claims process are being considered. I am sure the House will understand that it would be inappropriate to draw up the terms of reference now for a review that will not take place for some time, but we will share details of the review process in due course.

[Mr Edward Leigh (Gainsborough) (Con)]

One of the worst mistakes that our last Government made was bringing in no win, no fee. It has Americanised our legal aid system and brought in a risk-averse culture and a load of ambulance chasers, so I welcome what the Government are doing. Will the Minister confirm that he will not let it rest there, that no win, no fee is now under a real review and that we will not tolerate the behaviour that we have seen in recent years?

[Mr Djanogly]

We are retaining no win, no fee for conditional fee agreements, but we are getting rid of the reforms that the Labour Government put in place whereby success fees and after-the-event insurance were recoverable. We will effectively return to the position of the last Conservative Government, which I hope and expect will put balance back into the claims equation.

[Mr Andy Slaughter (Hammersmith) (Lab)]

To get his Bill through, the Minister promised a 10% uplift in general damages and protection from costs for losing personal injury claimants. Those are poor substitutes for the current rules that his friends in the insurance industry wanted rid of, but where are those concessions? Are they more broken promises?

[Mr Djanogly]

No. All those procedures are being put in place, not least because of our concern to retain access to justice. As the hon. Gentleman said, we are introducing several measures that will help personal injury claimants pay their solicitors’ success fees and, if necessary, insurance premiums. For example, there will be a 10% increase in general damages, and we are introducing a system of qualified one-way costs shifting, which will be in place before the Act commences next April.

--- Later in debate ---

[Eric Ollerenshaw (Lancaster and Fleetwood) (Con)]

9. What steps he is taking to reform the role of small claims courts.

[The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly)]

The Government announced in their response to the “Solving Disputes” consultation paper on 9 February that the general limit for cases in the small claims track will be increased from £5,000 to £10,000 next year. In addition, we are proposing that all small claims are assessed for mediation, to support our policy that cases that can be kept out of court should be kept out of court.

[Eric Ollerenshaw]

I thank the Minister for his reply. Does he believe that more could be done to ensure that, when those courts decide on a claim, they can enforce the decision and collect the money involved?

[Mr Djanogly]

Yes; courts offer several types of enforcement method which, collectively, are intended to make it as difficult as possible for debtors to avoid their responsibilities. We are currently reviewing how those enforcement methods might be improved and modernised, in particular through updating information orders and requests, which can be an important step in calculating the assets of the debtor.

[Kerry McCarthy (Bristol East) (Lab)]

10. What steps he is taking to protect the right to anonymity of victims in rape cases.

--- Later in debate ---

[Dr Julian Huppert (Cambridge) (LD)]

11. What recent progress he has made in reforming the law on defamation.

[The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly)]

The Defamation Bill has been introduced into this House as part of the Government's programme for this Session. The text of the Bill and accompanying explanatory notes were published on 11 May.

[Dr Huppert]

I thank the Minister for that answer. After campaigning for many years for libel reform, it was excellent to see the Bill announced in the Queen’s Speech and published—and in better form than it was in the draft, which says something about pre-legislative scrutiny. I particularly welcome the protection for academic and scientific articles and for operators of websites. The Bill talks about regulations applying to website operators to deal with anonymity and other issues. There are many nuances to that, so will the Government publish a draft of that order together with the Bill?

[Mr Djanogly]

My hon. Friend sat on the Joint Committee and I know that he has long taken an interest in matters pertaining to scientific freedoms. I fully agree that we must ensure that the threat of libel proceedings is not used to frustrate scientific and academic debate and that the law must be reformed to provide an appropriate libel regime for publications on the internet. The Defamation Bill aims to address both those areas fairly and effectively. I look forward to further debate as it proceeds.

[Anas Sarwar (Glasgow Central) (Lab)]

What discussions has the Minister had with his Scottish counterparts about the Government’s proposed reforms, and what assessment has he made of their impact on Scotland?

[Mr Djanogly]

I am not the lead Minister on the Bill, as it has been led from the House of Lords. I am sure, however, that I will have discussions with my Scottish counterparts before long.

[Ian Paisley (North Antrim) (DUP)]

In order to save the Northern Ireland courts and the Attorney-General for Northern Ireland from becoming, in the words of Geoffrey Robertson, QC, who works for the United Nations, “an international laughing stock” in defamation cases, have the Government decided to abolish the arcane defamation crime of “scandalising” judges, thus protecting the rights of Members freely to express their views in this House without hindrance from the courts?

[Mr Djanogly]

That is not part of the Bill as it stands. No doubt, from what the hon. Gentleman says, this is a matter that will be discussed.

[Neil Carmichael (Stroud) (Con)]

13. What measures are in place to encourage the teaching of literacy in prisons.

--- Later in debate ---

[Mr Jim Cunningham (Coventry South) (Lab)]

15. Whether he plans to bring forward proposals to enable magistrates to sit in community centres and police stations.

[The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly)]

We are currently developing a programme of reforms that will deliver swift, sure and visible justice—we intend to publish details shortly. As part of that, we are considering new and innovative ways to involve magistrates in delivering justice, and we will work with magistrates to develop these plans.

[Mr Cunningham]

What credence does the Minister give to press reports that police stations could be used as magistrates courts? In relation to these innovations, how many more magistrates will he need, and what will the cost be?

[Mr Djanogly]

I had not heard that, but it sounds as though the hon. Gentleman could be confusing it with virtual courts, where the courtroom is extended into the police station. The defendant would be in the police station, with the defence counsel either in the police station or in the magistrates court, but the magistrates would still be in the magistrates court.

[Jessica Lee (Erewash) (Con)]

An efficient and flexible justice system was demonstrated last summer in the response to the riots by all in the Courts Service and the Crown Prosecution Service, and it is to be commended. Does my hon. Friend therefore agree that it is right that an open mind is kept as to how justice can best be administered in local communities?

[Mr Djanogly]

It is very important to maintain justice at the core of summary justice and in the localities. I should say that neighbourhood justice panels are not about recreating magistrates courts, because, as panels, they reach restorative outcomes by consensus; magistrates would not be exercising any judicial powers in this capacity.

[Fiona Bruce (Congleton) (Con)]

16. When he expects the commission on a Bill of Rights to publish its report.

--- Later in debate ---

[Mr Stephen Hepburn (Jarrow) (Lab)]

17. What recent representations he has received on arrangements for compensation claims by people with pleural plaques.

[The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly)]

We have received a number of recent representations on pleural plaques from Members of Parliament sent on behalf of their constituents.

[Mr Hepburn]

Now that the devolved assemblies of Scotland and Northern Ireland have seen sense and are going to compensate pleural plaques victims, will the Minister follow suit? If not, why not?

[Mr Djanogly]

The Government understand that it could be seen as unfair for compensation to be available in one part of the UK but not in another, but the civil legal systems in Scotland and Northern Ireland and that in England and Wales are separate and there will inevitably be differences in the law.

[Ian Swales (Redcar) (LD)]

My constituent, Janet Jeffrey, lost her father in 2003 to pneumoconiosis after working at Shaw’s foundry in Middlesbrough. Can the Minister assure me that any compensation arrangements will include all those whose families are affected and will not be restricted only to miners?

[Mr Djanogly]

I can say that in light of the medical evidence, the Government do not consider it appropriate to overturn the House of Lords’ judgment that the condition of pleural plaques is not compensable under the civil law. However, I would point out to my hon. Friend that the law does not prevent a person with pleural plaques who goes on to develop any recognised asbestos-related disease in the future from bringing a claim in relation to that disease.

[Mr Rob Wilson (Reading East) (Con)]

T1. If he will make a statement on his departmental responsibilities.

[The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly)]

The justice system plays a vital role in helping business to flourish. Economic growth can only be achieved if the framework exists within which businesses are free to trade and prosper and the justice system can help them to achieve that. Earlier this week, I published a paper, entitled “Justice for Business” and subtitled “Supporting Business and Encouraging Growth”, which sets out how our ambitious transforming justice programme is making the justice system more effective, less costly and better for business. By delivering lower legal costs, regulation that encourages investment and court processes that are faster, simpler and cheaper, we are overhauling the justice system so that business can get on with the job and contribute to growth rather than getting bogged down in protracted and expensive litigation.

[Mr Wilson]

At Reading prison this morning, I played football with fellow MPs from across the House against members of National Grid’s young offender scheme, which reports reoffending rates of just 6% compared with a national average of more than 70%. Given the widely recognised success of the programme, what is the Minister doing to encourage more companies to get involved and help slash reoffending rates?

--- Later in debate ---

[Dan Jarvis (Barnsley Central) (Lab)]

T5. Legal aid is a safety net that protects the most vulnerable people in our society, but now that the Government have refused to listen to the concerns of Mumsnet and other organisations that protect vulnerable women, does the Minister accept that there are potentially thousands of women who will be too scared to leave their violent partners as a result of the reforms?

[Mr Djanogly]

It is very important to emphasise that the position for someone suffering from domestic violence remains absolutely unchanged—they will be able to get on-the-spot injunctive relief and that will be non-means-tested.

[Mr Robert Buckland (South Swindon) (Con)]

T6. I warmly welcome the development of neighbourhood justice panels, and pilots are being developed in areas such as my constituency in Swindon. They should be dealing with low-level crimes in our community, but what interplay will there be between those panels and the role of the magistracy in our communities?

--- Later in debate ---

[Richard Graham (Gloucester) (Con)]

T7. Will the Minister say when the review of the justice needs of Gloucestershire will be finished? Given that both the Crown and the magistrates courts in Gloucester are top of the list for replacement in the south-west of England, will he confirm that his Department will look closely at the proposal, which he knows I strongly advocate, for a new justice centre that brings together courts, tribunal and police station in the heart of Gloucester’s Barbican site?

[Mr Djanogly]

I have of course met my hon. Friend to discuss the matter, and discussions about the court and tribunal estate in the Gloucester area are ongoing. Our aim is to achieve an estate of appropriate capacity to meet the business need, and which is also efficient and less costly to run. We continually review our estate to ensure that it is well utilised and offers the best possible quality of service and facilities that we are able to provide for our users.

[Hugh Bayley (York Central) (Lab)]

Is the Ministry of Justice aware that the Crown Prosecution Service has proposed withdrawing its staff from a purpose-built joint office that they share with the police at Athena house in York, where prosecutors and police officers work side by side, sharing files, to reduce court delays and court costs in York and Selby? Will a Justice Minister meet the Law Officers urgently to put a stop to this plan, on the basis that it would significantly increase costs for his Department?

[Mr Djanogly]

That is a matter properly addressed by the Attorney-General rather than the Ministry of Justice, but to the extent that there are issues that concern the Ministry of Justice, of course we will take an interest.

[Steve Brine (Winchester) (Con)]

I welcome the intention set out in the Queen’s Speech to improve judicial diversity. How do the Government intend to achieve that, and can the Minister confirm that the principle of the best person for the job will remain paramount?

[Mr Djanogly]

We are starting at the top. We think diversity is very important so, through the Crime and Courts Bill, we are looking to reform the way in which judges’ appointments work, and we will be looking at that in the context of diversity.

[Ann Coffey (Stockport) (Lab)]

The families of missing people welcome the recommendations of the Justice Committee on presumption of death, which were published 12 weeks ago. Can the Minister tell the House when he will respond to that report?

[Mr Djanogly]

The Government realise the emotional and practical difficulties faced by the families and friends of missing people who are thought to be dead. We will respond shortly to the Justice Committee’s report.

[Miss Anne McIntosh (Thirsk and Malton) (Con)]

I welcome the investment that the Government have made in rape centres. Can the Minister tell me when the sexual assault and rape centre is going to open in North Yorkshire and whether all the partners are signed up to it?

--- Later in debate ---

[Tom Brake (Carshalton and Wallington) (LD)]

Will the Minister rule out the use of closed material proceedings in inquest cases and cases that do not involve national security?

[Mr Djanogly]

My understanding is that that will be the case.

[Julie Hilling (Bolton West) (Lab)]

What progress has been made in tackling the issue of the number of drivers who continue to drive legally with more than 12 points on their licence, now numbering more than 10,000 people?

Service Personnel (Deaths Overseas)

Jonathan Djanogly Excerpts

Thursday 10th May 2012 Written Statements

[The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly)]

My hon. Friend the Minister for the Armed Forces and I wish to make the latest of our quarterly statements to the House giving details of the inquests of service personnel who have died overseas. As always, we would like to express our abiding gratitude to all of our service personnel who have served, or are now serving, in Iraq and Afghanistan. Our thoughts remain with the families of those service personnel who have given their lives for their country in connection with the operations in Iraq and Afghanistan. We particularly remember the families of the 15 service personnel who have died since our last statement in January.

In this statement we are announcing the current status of inquests conducted by the Wiltshire and Swindon coroner, the Oxfordshire coroner, and other coroners in England and Wales. This statement gives the position at 3 May 2012.

I have placed tables in the Libraries of both Houses to supplement this statement. The tables display the status of all current cases and the date of death in each case. They include information about those cases where a board of inquiry or a service inquiry has been held.

The Ministry of Defence and the Ministry of Justice will continue to work closely together, seeking to improve our processes and to continue the Government’s support for coroners who are conducting these inquests. We would take this further opportunity to express our thanks to coroners and their staff, and to all who seek to support families and provide information, throughout the inquest process and afterwards.

To prevent a backlog of inquests from developing, both Departments have provided funding for additional resources since October 2007. Prior to 1 September 2011, these resources were provided to the Wiltshire and Swindon coroner, Mr David Ridley, because the repatriation of service personnel took place at RAF Lyneham, which was within his district. Following the transfer of repatriation ceremonies to RAF Brize Norton on 1 September 2011, we are now also providing additional resources to the Oxfordshire coroner. We wish to thank Mr Nicholas Gardiner, who recently retired as Oxfordshire coroner, and to wish his successor, Mr Darren Salter, well.

Current status of inquests

Since the last statement there have been 20 inquests into the deaths of service personnel on operations in Iraq or Afghanistan. A total of 537 inquests have been held into the deaths of service personnel who have lost their lives in Iraq and Afghanistan, including 24 service personnel who died in the UK of their injuries. No formal inquest was held in three other cases. In two of these cases the deaths were taken into consideration during inquest proceedings for those who died in the same incident. In the third case, where the serviceman died of his injuries in Scotland, it was decided not to hold a fatal accident inquiry.

Open inquests

Fatalities in Iraq and Afghanistan

There are currently 44 open inquests to be concluded into the deaths of service personnel who died in Iraq and Afghanistan. Twenty of these involve deaths in the last six months.

The Wiltshire and Swindon coroner has retained 11 of the remaining open inquests, the Oxfordshire coroner has retained 14 and 19 are being conducted by coroners closer to the next of kin. Hearing dates have been set in four cases.

There is one remaining open inquest into deaths from operations in Iraq.

Inquests into the deaths of service personnel who returned home injured

Six inquests remain to be held for service personnel who returned home injured and subsequently died of their injuries. Those cases will be listed for hearing when the continuing investigations are completed.

We shall continue to inform the House of progress.

Legal Aid, Sentencing and Punishment of Offenders Bill

Jonathan Djanogly Excerpts

Tuesday 24th April 2012 Commons Chamber

[The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly)]

I beg to move, That this House disagrees with Lords amendment 1B.

[Mr Speaker]

With this it will be convenient to consider the Government motion to disagree with Lords amendments 2B and 196B, the Government motion to insist on its disagreement with Lords amendment 31, and Government amendment (a) in lieu.

[Mr Djanogly]

As you have reminded the House, Lords amendment 1B, dealing with the statutory duty for legal aid, impinges on the financial privileges in this House. I should also say that my interests remain as I declared at the last stage of ping-pong on 17 April. I ask the House to disagree to this amendment, and I will ask the Reasons Committee to ascribe financial privilege as the reason for doing so.

Let me first address Lords amendment 31, which concerns the sensitive and important issue of mesothelioma, in the light of the amendment we have tabled. I should emphasise at the start that the Government take very seriously the plight of mesothelioma victims and do not believe that mesothelioma cases are being brought inappropriately. We should appreciate that the issue in mesothelioma cases is not so much causation as process. In effect, the challenge for the Government, employers and insurers is how we ensure that we have procedures in place that enable sufferers to receive compensation more quickly and without the stress of having to pursue protracted litigation.

Much has been done by recent Governments to improve the position of mesothelioma sufferers when the employer’s insurer can be traced. There is now also a consensus that more needs to be done in respect of sufferers who cannot trace their employer’s insurer. Let me be clear that the Government are committed to action on that point. We are working closely with insurers and other stakeholders on this pressing issue with a view to making an announcement before the House rises in July.

I have considered very carefully the points that have been made both in debates in the House last week and the other place last night. We have also held ministerial meetings with campaigners on behalf of mesothelioma victims, including with Lord Alton, the right hon. Member for Wythenshawe and Sale East (Paul Goggins) and my hon. Friend the Member for Chatham and Aylesford (Tracey Crouch).

The Jackson reforms in part 2 of the Bill are due to come into effect in April next year. We have reviewed that timetable in the context of mesothelioma. On careful reflection about the special position of mesothelioma sufferers, I can now give the House the assurance that we will not commence the relevant provisions in clause 43, on success fees, and clause 45, on after-the-event insurance, in respect of mesothelioma claims in April next year. Rather, we will implement the clauses in respect of those claims at a later date, once we are satisfied on the way forward for those who are unable to trace their employer’s insurer. The amendment commits the Lord Chancellor to carrying out a review of the likely effect of the clauses in relation to mesothelioma proceedings and to publish a report before those clauses are implemented.

[Stephen Phillips (Sleaford and North Hykeham) (Con)]

The concession that the Government are making goes some way to dealing with the concerns that many on both sides of the House have expressed in relation to mesothelioma, but it does not deal with the point raised in the other place by Lord Thomas yesterday, which was that success fees should not be claimed in such cases because liability is not in issue. What will the Government do about that?

[Mr Djanogly]

As I have said, this is not an issue of causation. I heard Lord Thomas speak in the other place yesterday, and I very much agree with what he had to say, which was essentially that in cases in which causation is not an issue, there is—in many respects—no reason why solicitors should have a success fee for that type of work. But the Opposition have made their case, as have others, and the Government have to deal with things as they stand. That is why we are offering to make this concession, but it is a time-limited concession only. The overall Jackson reforms stand as our preferred way to move forward.

[Ian Lucas (Wrexham) (Lab)]

I am grateful to the Minister for having listened closely to the debate last week and to the debate in the House of Lords. But is it not the case that this legislation facilitates a solicitor recovering a success fee from the client’s damages, and that if this legislation did not proceed, that could not happen?

[Mr Djanogly]

No. The hon. Gentleman rather distorts the implications of the legislation. We are capping success fees, which are currently 100%, at 25%.

[Andrew George (St Ives) (LD)]

On the point about the delay until the review has been undertaken, is that merely a delay or is it a genuine review? If it is a review, what will it consider and will he give an indication of its timetable?

[Mr Djanogly]

Given the timing of this development, we have not thought through the exact procedures of the review, but it will certainly be undertaken before we move to ending the provisions that remain.

We now come to the amendment in lieu passed by the other place in respect of clause 1, and what has been described as a purpose clause. It was suggested variously in the other place yesterday that this amendment would have no effect; that it would have some effect, although that effect was not entirely clear; and that it would have a future effect in guiding successive Lord Chancellors when consideration was being given to what services might be added to the scope of legal aid under clause 8(2).

The difficulty the other place has so far had in establishing the precise effect of the amendment is instructive as this House decides whether it should stand. A duty with an uncertain effect is desirable neither in legislative terms nor for the person attempting to discharge that duty. However, it is the Government’s view that the effects of this duty can be described and are highly undesirable. The amendment would remove the uncontroversial, unambiguous duty the Bill places on the Lord Chancellor to ensure that legal aid is made available according to part 1 of the Bill. This made a clear link between the duty and legal aid. In terms of a clear duty, it does not get much clearer than this. However, the amendment would not only remove that but would replace it with a duty that would bring ambiguity and uncertainty. It refers to “legal services” rather than “legal aid”.

The argument was also made in the other place that the amendment had no effect other than to underline the Government’s commitment to the principle of access to justice. We contend that the imposition of any duty on the Lord Chancellor in legislation must create in law a potential course of action through challenges to the discharge of that duty. If it is accepted that the imposition of such a duty must give rise to a potential course of action, the amendment’s effect must be to bring into question the range of services provided under the Bill. The matter would then turn on the question of which legal services meet people’s needs. That contrasts with the clear and unambiguous duty in clause 1(1) requiring the Lord Chancellor to

“secure that legal aid is made available in accordance with”

part 1.

The Government believe that the question of which legal services meet people’s needs is not relevant to the Bill. Schedule 1 lists the services that Parliament, following consideration of first principles and extensive consultation, believes it appropriate to make available under legal aid. To reopen that question via an ongoing duty would frustrate our intention to bring certainty and clarity to the scope of services funded by legal aid. The amendment would result in only one thing: numerous expensive judicial reviews—more than likely at taxpayers’ expense as the boundaries of the new duty are tested and because the question of which services should be provided would be reopened.

It was said yesterday in the other place that such JR applications would almost certainly fail, and that consequently there would be no cost implications to the amendment. However, even rejected applications have an inherent cost: lawyers are paid legal aid fees for their work up to that point and the Government pay their own lawyers to defend such cases.

I would also like to address the argument put forward in the other place about the amendment’s effect in guiding future Lord Chancellors. It seems novel to include in the Bill an overriding duty that activates when the Lord Chancellor considers adding a service or services to the scope of legal aid. I am not convinced this is possible, and I am certain it is unhelpful. Adding services to the Bill requires the affirmative approval of both Houses. Such a process will be more than adequate to ensure that the Lord Chancellor takes account of the relevant factors when considering what, if any, services should be added to the scope of legal aid.

I emphasise, however, as Lord McNally did in the House of Lords yesterday, that the Bill’s present form arises from extensive debate and consideration across both Houses and reflects decisions about the future nature of legal aid. In short, the amendment is incompatible with the Bill. It would muddy both the duty to which the Lord Chancellor is subject and the scope of services that might be funded.

[Simon Hughes (Bermondsey and Old Southwark) (LD)]

I am not arguing that the House should agree to the Lords amendment, but the Minister will know, as the Lord Chancellor does, that I have asked that the Government consider bringing immigration matters—whether onward appeals by judicial review or when a judge gives permission for a case to go to a higher court—back within the scope of legal aid. Will he put on the record the response to that plea, which I have made to the Lord Chancellor and him several times?

[Mr Djanogly]

My right hon. Friend finds the right moment to ask about something not subject to the amendment. It is an important point, however. My right hon. and learned Friend has written to him about onward appeals in immigration cases. The Department will conduct a review of the impacts of withdrawing legal aid in such cases once we have sufficient data and after implementation of the reforms. I envisage allowing about a year for the reforms to take effect before starting such a review.

Lords amendment 2 was passed in the other place yesterday by the extremely narrow margin of three votes. Unusually for this topic, no one spoke other than the mover and my right hon. Friend Lord McNally. That indicates how far we have moved. I remind the House of the main points. First, and crucially, legal aid to obtain the full range of injunctions and orders to protect against domestic violence will remain exactly as at present. There is no evidential gateway for legal aid for these remedies, and those who need legal aid to protect themselves can get it, regardless of their means.

Secondly, although we have removed most of private family law from the scope of legal aid in favour of funding mediation and less adversarial proceedings, we have made an extremely important exception for victims of domestic violence. That is so that they can take or defend proceedings about child contact or maintenance, or about the division of property, without being intimidated by their abuser during the proceedings.

We have made significant changes to the detail of this exception in response to concerns expressed in both Houses. We have accepted in full the Association of Chief Police Officers’ definition of domestic violence. We have also significantly widened the list of evidence that we will accept as demonstrating domestic violence for the purposes of the exception. That list will now include undertakings, police cautions, evidence of admission to a refuge, evidence from social services and evidence from GPs and other medical professionals. That is in addition to the range of evidence that had already been confirmed, including the fact of an injunction or order to protect against domestic violence having been made, a criminal conviction or ongoing criminal proceedings for domestic violence, a referral to a multi-agency risk assessment conference and a finding of fact by the courts that there has been domestic violence. We have also doubled the previously announced time limit for evidence for this exception from 12 months to two years.

[Kate Green (Stretford and Urmston) (Lab)]

We all noted the Lord Chancellor’s commitment in the Chamber last week to extending the time limit to two years. Will the Minister clarify whether that will also apply in cases of child abuse, which seem to be encompassed by the definition of domestic violence that now applies in the Bill? Clarification would be welcome on that, as there are clearly instances in which proceedings might be brought in relation to child abuse after more than 12 months, including in care proceedings, in which it would be entirely appropriate to grant legal aid.

[Mr Djanogly]

Yes, I am pleased to be able to confirm to the hon. Lady that that is the case.

We think that we have struck the right balance, although some will disagree. However, such disagreement misses the fact that there are two important safeguards to our system, which will provide genuine victims with a route into legal aid even if they do not have the headline forms of evidence. First, when a court has to consider whether domestic violence is a factor in a private family case, it may consider any relevant evidence, including police call-outs or evidence from domestic violence support services, or other types of evidence that have not even been suggested by the Opposition. This is also relevant in regard to the time limits. When a case involves older incidents of domestic violence and a court considers that the matter is still relevant and makes a finding of fact, legal aid funding could still be triggered. There is also the more generic safeguard of the exceptional funding regime.

We continue to believe that the evidential requirements should not be in the Bill. The level of detail required means that those requirements will be much better left to regulations, subject to the affirmative resolution procedure, rather than to primary legislation. Given how far we have moved on this topic, and the safeguards that I have outlined today, I invite the House to disagree with Lords amendments 2B and 196B.

[Sadiq Khan (Tooting) (Lab)]

I shall try to keep my comments short, as I know that a number of colleagues wish to speak in the debate. The Bill sustained 11 defeats on Report in the Lords, which is a record for this Parliament, and a further three yesterday. The Government need to show some humility when they have suffered 14 defeats, and I am pleased that we have seen some evidence of that today.

It is still unclear why the Government are so resistant to Lords amendment 1B. They have given different reasons on different days for their opposition to Lord Pannick’s amendment. A statement of legislative purpose is frequently included in legislation of this nature. Lord Pannick’s drafting of the amendment would result in a statement of purpose within the financial limits set out in the Bill. The key question is whether there should be a duty on the Lord Chancellor to take into account citizens’ needs before making arrangements for legal aid provision. The amendment has been drafted with reference to the financial resources available, and would therefore not incur further expense for the Government. The Government cannot have it both ways. They say that the amendment replicates provisions that are already in place, and that it is therefore unnecessary. They also say that it would add to Government expenditure. We will be voting against the Government on Lords amendment 1B.

--- Later in debate ---

[Sadiq Khan]

What my hon. Friend has said echoes some of the powerful speeches that were made last week.

It is worth bearing in mind that the progress that has been achieved is due to work done by Members in all parts of both Houses. We welcome the concessions that have been made today, we welcome the pause, and we approach the amendment in good faith. For reasons that we appreciate, the details could not be fleshed out today, but we assume that there will be an independent assessment of the evidence gathered during the due diligence phase.

We hope that the review will consider the impact on victims’ damages. According to some, they will increase by up to 10% as a result of the Government’s proposals, but others disagree, and we expect the review to look into that.

[Mr Djanogly]

It would, in fact, be a matter for the judges who would apply the 10% increase, rather than for the Government.

--- Later in debate ---

[Paul Goggins (Wythenshawe and Sale East) (Lab)]

It is a pleasure to follow the hon. Member for Chatham and Aylesford (Tracey Crouch), who has played a brave and important role in discussions over recent days. I pay tribute to her for that. In relation to Lords amendment 31 and amendment (a) in lieu, the whole House is rightly paying tribute to Lord Alton and his supporters in another place for raising the issue in the first instance and for then persisting in their opposition to what the Government have until now been proposing in the Bill.

I also want to thank Lord McNally and Lord Freud for the constructive approach that they took in a meeting that I attended with Lord Alton last week, and in the days since. I welcome the concession that the Minister is offering this afternoon, and I appreciate that he cannot go into great detail about any proposals, which he said he hoped the Government would be able to bring forward before the summer recess. However, I can tell the House that his ministerial colleagues made it clear in the meeting I attended that they are striving to negotiate and implement a system of compensation and support for mesothelioma victims that is swifter and more sympathetic than the one currently in place. I am sure that the whole House would want to encourage them in their endeavours.

Whether amendment (a) in lieu is sufficient will depend entirely on the answers to a number of questions. In particular—this has already been raised—what will the extent and conduct of the review be? Crucially, how will the commencement of the relevant provisions of the Bill be aligned with the proposals that the Department for Work and Pensions hopes to publish before the summer recess? I would be happy to take an intervention from the Minister if he wishes to make a clear commitment this afternoon that he will not seek to implement the relevant provisions in the Bill unless and until an improved system of compensation is in place.

[Mr Djanogly]

I do not want to give any binding commitments about the process today, because things have not been finalised. However, I can tell the right hon. Gentleman that if the process is to be improved by the Department for Work and Pensions, which we hope it will be—he will have some insight into our proposals from the discussions he has had—that could well require DWP legislation, in which case we would look to roll the ending of the provisions into the commencement of the DWP provisions. That is how I foresee the process now, but again, I am not making that a commitment.

[Paul Goggins]

I am grateful to the Minister for that helpful intervention, because if there is to be legislation to introduce the new system, there will have to be full parliamentary scrutiny of those proposals in both Houses.

It has been a privilege and a pleasure to support Lord Alton in his efforts to protect mesothelioma victims. He has asked me to say that he is grateful for the cross-party support he has received from this House, and that, along with other Members of both Houses, he awaits with interest the outcome of the review and the details of the new compensation scheme. Above all, he is pleased that Parliament has acted to protect mesothelioma victims.

For my part, I am pleased that the Minister’s comments of last week—in particular that the families of dying mesothelioma victims should, and would, be watching the lawyers’ clock as fees mounted—have now been overtaken by an acceptance that mesothelioma victims are not part of a compensation culture and that they should not be expected to pay their lawyers a success fee out of their damages, and, finally, that through the amendment in lieu and other measures that will follow Parliament should continue to do all in its power to give mesothelioma sufferers the best possible help and support.