Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Beith Excerpts(14 years, 9 months ago)
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Mr Clarke
I shall just finish explaining this point and then answer questions.
The new sentence can be given for any sexual or violent offence, provided that the court thinks the offender presents a risk of causing serious harm through reoffending, and that the offence meets the four-year seriousness threshold that is currently in place for IPP sentences and extended sentences for public protection. The new sentence can also be given when the offender does not reach the four-year threshold, but has previously been convicted of an offence listed in proposed schedule 15B. I will cut out further detailed explanation, but that means that any offender who would previously have received an IPP will be eligible for the new sentence if he has not received either the mandatory life or the tougher, discretionary life sentence.
Sir Alan Beith (Berwick-upon-Tweed) (LD)
I very much agree with what my right hon. and learned Friend is trying to do, but he is writing what is the likely practice of the court into the statute book. He mentioned the Parole Board and new clause 34, which causes me concern. He appears to be giving to himself and the Executive the power to direct a court when dealing with existing IPP prisoners, because the Parole Board is regarded in law as a court, and he will give directions to it under new clause 34.
Kate Green
I am extremely grateful to the Lord Chancellor, as will be the many disabled people and their families who have been in contact with me. I am delighted that a Government amendment will be brought forward in the other place and I shall not detain the House further.
Sir Alan Beith
The hon. Member for Stretford and Urmston (Kate Green) must be delighted that so brief and concise a speech has produced so immediate, thorough and satisfactory a response. I welcome what the Government are doing about this.
I want to be brief so I shall resist the temptation to go into the extraordinary intellectual journey that the right hon. Member for Tooting (Sadiq Khan) seems to have undertaken. I shall also resist the temptation to go into the habit of the previous Government of releasing people from prison at any moment when the jails seemed to be rather full without any reference to sentence planning or, for that matter, to the annual criminal justice Bill to which new clauses were always added on Report as far as I can recall—a practice I rather deplore because, as in this case, it denies us the opportunity to give new clauses proper scrutiny. I want to make it quite clear that the continuance of what I regard as a blot on the system—the use of indeterminate sentences—is something that I do not support. I therefore welcome the Lord Chancellor’s action to remove such sentences from our system, and I believe that view is widely shared in the criminal justice system.
People are concerned about the possibility of serious criminals re-entering society and committing other very serious offences, but how can they conclude that the best thing to do with such people is to put them in prison without our having any idea how long they might stay there? Surely, it is better to have a much clearer idea that they will be in prison for a long time and that if they are ever released, it will be under licence for life. I do not see why it should be preferable for the public to be told, “Well, we’ve put the chap in prison, but we’re not really sure when he’ll come out and a board that you know very little about will decide whether it’s safe.” I think most members of the public would be quite suspicious of that and would rather hear that there was a clear and long sentence. I am suspicious of mandatory sentences, but as a means of giving reassurance on how the courts might be expected to behave in the sort of cases we are discussing, the mandatory sentence we are discussing can be justified, especially as it is very carefully worded with appropriate provision for justice.
However, all this is only part of the story. None of it is any use unless we have proper sentence planning and proper offender management. Proper sentence planning is virtually impossible under the indeterminate sentences for public protection system, especially for those on shorter terms. People have not been completing the courses that they need to have completed to satisfy the Parole Board that they could be released. That system is untenable. We need effective sentence planning—and more determinate sentences are a better way of achieving that. We need proper offender management for offenders who are eventually going to leave prison. The Justice Committee has regularly stressed that the concept of offender management needs to include proper control. It should not be a system in which people are handed from one agency to another without a continuous process of supervision.
The trouble with the procedure in the new clause is that we do not have the opportunity to probe the details by tabling a probing amendment. I asked the Lord Chancellor earlier about new clause 34. I think that it is well intentioned in that it is an attempt to deal with existing indeterminate public protection prisoners, but I am bound to question it because it gives to the Executive the power to direct the Parole Board on what should be done with an individual. That is a direction to a court—there have been court cases that have ruled that the Parole Board must be regarded as a court. So it is an odd way of proceeding and one that we might have amended in Committee had we been able to consider the measure. If there is an opportunity, I hope that I can hear a little more about why the measure has been introduced as a new clause tonight.
Mr Djanogly
New clauses 18 to 22 seek to prohibit the payment and receipt of referral fees in personal injury cases by regulated persons, namely solicitors, barristers, claim management companies and insurers.
I pay tribute at the outset to the work of the right hon. Member for Blackburn (Mr Straw) in pursuing the case for a ban on referral fees. I know that there are some differences between us about the detail of how we should implement the ban—we will come to his amendments in due course—but those differences of detail should not obscure our agreement in principle on tackling this important issue. I acknowledge his efforts in this regard.
I must also mention the consistent campaign by the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) as Chair of the Justice Committee, who has also been a very keen supporter of the ban. I note that last week his Committee formally welcomed our commitment to the ban, which will be implemented by these clauses. I should also acknowledge the work of the Transport Committee, chaired by the hon. Member for Liverpool, Riverside (Mrs Ellman), before whom I was privileged to appear last month.
My right hon. and learned Friend the Secretary of State for Justice announced the Government’s intention to ban the payment and receipt of referral fees in personal injury cases by way of a written ministerial statement to the House on 9 September 2011.
I strongly believe that the current arrangements under which lawyers and others are able to pay and receive fees for referring work have led to both higher costs and the growth of an industry that pursues claimants for profit. By introducing the new clause, the Government are taking decisive and much needed action to remove these incentives.
Right hon. and hon. Members will be aware that Lord Justice Jackson recommended that referral fees should be banned as part of his comprehensive package of recommendations to make the costs of the civil litigation more proportionate and this recommendation was echoed by Lord Young in his report “Common Sense Common Safety”. The Bill already includes provisions to implement the other key elements of those recommendations. The referral fees ban under our new clause will complement the wider Jackson reform already in the Bill by further reducing the costs of personal injury litigation and deterring frivolous or unnecessary claims from being pursued in the courts.
The new clause creates a regulatory offence for any breach of the prohibition. It will be for the appropriate regulators, for example the Law Society, the Financial Services Authority or the claims management regulator, to enforce the prohibition. The regulators will also be responsible for taking appropriate action against regulated persons for any breaches. We have thought carefully about how to ensure that all the main players, including insurers, are captured by the ban, which is why there is a separate clause, new clause 20, giving the Treasury powers to make regulations allowing the FSA to enforce the ban under its existing regulatory powers.
There have been calls from some people, but not most people, for the payment and receipt of referral fees to be made a criminal offence. Not least among those who have called for that is the right hon. Member for Blackburn, who has tabled amendment (e) to that effect. We considered the matter carefully but believe that creating a criminal offence would be a very blunt instrument in this case. One would have to prove beyond reasonable doubt that consideration had changed hands for the referral of a potential claimant, but the grounds for determining whether something was or was not a referral fee could be blurred. It would be very difficult to convict in many cases on the basis of the complexity of those arrangements. That is why we consider a regulatory offence to be more appropriate, whereby the principle of what is happening can be looked at by the regulator and a view can be taken.
I am conscious that a criminal offence would impose additional costs on the police and the courts in investigating and enforcing a ban. I believe that a regulatory prohibition covering all the main players in the sector, including lawyers, claims management companies and insurers, is the most appropriate and effective response to the issue. I am confident that the industry regulators are best placed to investigate and enforce the regulatory ban.
Sir Alan Beith
As my hon. Friend has indicated, I strongly support the action he is taking, but is it not the case that in many of those circumstances a criminal offence may well have been committed by way of a breach of the Data Protection Act 1998? The problem then is that custodial sentences are not available for someone who is doing that on a large scale and making a great deal of money by releasing personal information and committing a criminal offence.
Mr Djanogly
My right hon. Friend makes a good point. It is not one that is covered by the Bill, but it is something that the Government are looking into, and I hope that there will be further developments on that in due course.
Mr Straw
As a preliminary, I wish to draw the House’s attention to the fact that against my name on the amendments relating to referral fees there is an R, which indicates that I have a declarable interest. It arises from three engagements that I undertook for fees on matters relating to referral fees and the motor insurance industry generally. They were on 28 September, 12 October, and earlier today. In respect of the first two, I have made a declaration to the Registrar of Members’ Financial Interests, who told me that because I have not yet received payment, the time for these is not yet running. The declaration for my engagement this morning will be made tomorrow.
I tabled amendments to new clauses 18 and 19 and, as my hon. Friend the Member for Hammersmith (Mr Slaughter) indicated, in the absence of a sudden Pauline conversion from the Government Front Bench between now and when the question is put, I shall press amendment (e) to new clause 18 to a vote.
According to the AA, over the year to March 2011, there has been a 40% increase in motor insurance premiums. In many areas of the country, mine included, although it is by no means the worst, the increase has been even higher. As a number of colleagues of all parties have pointed out, that has very severe social consequences.
May I say that I am extremely grateful for the wide support that my Motor Insurance Regulation Bill has had throughout the Chamber? Motor insurance is the only insurance affecting an individual that is compulsory, and in certain areas and for certain categories, particularly younger drivers, premiums are now so high as to place motor insurance out of reach altogether. A driving licence is often a necessary qualification for taking a job. In any case, people in areas that are not blessed with a high level of public transport, which means most places outside inner urban areas, need a motor vehicle to go about their business. The increase in premiums, and the fact that they are much higher in some areas than others, is leading to some people not being able to work or move around.
The increase is also unquestionably leading to an increase in criminality, both through people going around uninsured and, increasingly, through people deciding to borrow a friend’s address with a lower-premium postcode. People also fail to disclose relevant information about themselves, to enable them to become insured. It cannot serve any public purpose that we have ended up with such a dysfunctional system.
I readily concede that that has happened because of a nexus of factors going back a number of years. The operation of the conditional fee system was introduced in the Access to Justice Act 1999 for good a reason: it was thought that it would improve access to justice. To some extent that has certainly been true, but as we all know, it has had the unintended consequence of generally —I am not talking the Trafigura case or one or two others—creating an imbalance in the equality of arms between parties on either side of a legal action. It has gratuitously encouraged the so-called compensation culture.
That, in turn, has been compounded by the costs of the road traffic accident electronic portal being too high. In a recent statement, the Minister said that the figure that was introduced when I was Secretary of State had been agreed in the Civil Justice Council. It was agreed to by both sides, which was why I did not interfere with it. I believe there is now widespread agreement that the current fee, of at least £1,200 for claims under £10,000, is at least twice as high as it should be. It is leading to lawyers advertising as two firms at the end of my street in Blackburn do: they have great banners across their windows saying, “Bring your claim in here, we’ll pay you up to £650 in cash for it.” They can do that and still make a profit out of the £1,200, because the actual costs of running the portal are about £100.
Claims for whiplash, which I have described as an invention of the human imagination, undiagnosable except by dodgy doctors employed by claims management companies, have got completely out of control. The level of whiplash claims is not related to the level of accidents or physical injuries. Accidents are reducing, as is the possibility of being injured in an accident, because cars and road engineering are much safer. It is related principally to the density of claims management companies operating in a particular area. The evidence of that is incontrovertible.
I concede to my hon. Friend the Member for North Durham (Mr Jones) that the regulators have acted properly on claims management companies in some ways, but the regulatory system established under the Compensation Act 2006, during our Administration, has not had sufficient resources to control the trebling in the number of claims management companies that has taken place in recent years.
Another change that took place was in the 2004 solicitors conduct rules, which allowed solicitors to pay referral fees that were previously banned. I will come back to that point when we deal with the enforcement of a ban on referral fees.
Sir Alan Beith
I very much welcome all the effort that the right hon. Gentleman has put into this matter. I hope that in talking about referral fees, he will recognise that although he has devoted a lot of his effort to motor insurance, the same problems affect the cost to consumers in numerous other areas, such as employment law, conveyancing and divorce—all areas in which quite large sums change hands.
Mr Straw
The hon. and learned Gentlemen may have noticed that I need to research that point, but I have in the back of my mind a number of cases where breaches of regulations are dealt with both by the regulator and in criminal proceedings. He is experienced in the law and will know that plenty of criminal offences are also civil wrongs of some kind in common law or by regulations.
Sir Alan Beith
The right hon. Gentleman has an arguable case on the merits of a back-up criminal offence, but will he concede that the system proposed by the Government can be made to work, because it combines the regulatory framework with the criminal offence behind it, particularly if there is a custodial sentence? The data protection offence, which lies behind the Government’s proposal, is already a criminal offence.
Mr Straw
Christopher Graham, the distinguished Information Commissioner, made the point that one reason why the penalty for breach of section 55 of the Data Protection Act needs to be increased—as it is by sections 77 and 78 of the Criminal Justice and Immigration Act 2008 to a maximum of two years imprisonment or an unlimited fine—is to send a message to people in those industries that they could end up in prison if they go in for an egregious breach. Of course, other breaches of data protection rules could mean that an organisation loses its licence, but in extremis, we need criminal proceedings for a criminal offence.
My view is that the same must apply in respect of breaches of the law banning referral fees. My amendment (e) would produce exactly the same penalty—it is entirely proportionate—as applies under sections 77 and 78 of the 2008 Act, which I hope the Government bring into force quickly given that they are already on the statute book. With that, and because I know that many others wish to speak, I thank Members on both sides of the House for the support that they have given to my campaign, and commend the amendment to the House.
Sir Alan Beith
Like the hon. Member for North Durham (Mr Jones), I had coal mines in my constituency. There were three working mines there, and I saw evidence of the scandal that he described. It was absolutely dreadful in many ways. Today, I want to ask for clarification of the Government’s intentions in two areas. One relates to the broadening of this issue beyond personal injury. New clause 18 provides for the Lord Chancellor to make regulations specifying wider ranges of legal businesses. I hope that there is a clear intention on the Government’s part, probably involving consultation, to move on to all the sectors in which referral fees have the potential to distort or damage competition or to undermine the position of the consumer. I would like a clear indication that the Government are going to examine a number of other areas.
Secondly, the Minister was very helpful earlier on the question of custodial sentences for breaches of the Data Protection Act, and I hope that that means that the Government have moved on from their position of saying, “We’ll have to wait until the end of the Leveson inquiry.” That represented a complete misunderstanding of the situation. The question of custodial sentences for data protection offences is not primarily about the issues that have been raised in the Leveson inquiry about the media; it is about the everyday circumstances of our constituents whose personal information is abused by the organisations that hold it. That matter ought not to have to wait until the completion of an inquiry into a wider range of issues. I hope that the Minister’s earlier helpfulness will be repeated in implementing a measure on which the House has already decided—namely, that there should be a custodial penalty in such cases.
Mr Djanogly
We have had a good, far-ranging debate this afternoon. Given that another important debate needs to be completed by 8 o’clock, I am sorry to say that I shall have to make my way quickly through the points that have been raised. I am pleased to hear at least a grudging agreement in principle with our ban on referral fees from the hon. Member for Hammersmith (Mr Slaughter). I thank my right hon. Friend the Member for Carshalton and Wallington (Tom Brake) and all the other right hon. and hon. Members for their support for our desire to implement the ban. I am pleased that the debate today has been about how that should be done, not about whether it should be done.
The hon. Member for Hammersmith asked why we had not consulted on banning referral fees, and I can tell him that Lord Justice Jackson made 109 recommendations, and it would not have been practical to consult on them all at once. It also made good sense to await the outcome of the Legal Services Board’s work in this area. Many respondents to our consultation on implementing Lord Justice Jackson’s recommendations included their views on referral fees. Those views, along with the work undertaken by the LSB and the Transport Committee, have been carefully considered. The hon. Gentleman clearly raised some serious issues relating to the regulation of claims management companies, but they were not directly relevant to the Bill. I must point out that, in the past year, the Ministry of Justice has cancelled 349 authorisations of CMCs, whereas in the last year of the Labour Government, it cancelled only 35.
The hon. Member for North Durham (Mr Jones) asked a number of important questions. If he does not mind, I will write to him about those issues. I can say, however, that under the Compensation Act 2006, it is an offence to provide regulated claims management services unless authorised or exempt. The hon. Gentleman will not be surprised to learn that the exemption applies to trade unions, and that is part of the problem that he rightly highlighted. I was present at the debate that he held on that subject several years ago.
The hon. Member for Hammersmith covered several other matters, but he essentially spoke to tomorrow’s debate, and we will deal with those issues then. My right hon. Friend the Member for Carshalton and Wallington asked about some important aspects relating to the consumer. The Chairman of the Transport Select Committee, the hon. Member for Liverpool, Riverside (Mrs Ellman), rightly mentioned that share premiums had risen by 40% in the last year alone. This is of course a matter of concern, and we have discussed it with the Association of British Insurers. It has said that if the proposals are effected with the other changes to recoverability of success fees in after-the-event insurance, it would hope to see a fall in insurance premiums. I certainly hope that that is a credible position.
As I said at the outset, there is broad support across the House for a ban on referral fees, although there is some disagreement on how best to implement the ban. The right hon. Member for Blackburn (Mr Straw) spoke to his amendments with typical passion, but I would like to set out briefly why the Government cannot support them. Amendments (a) to (c) to new clause 18 seek to capture within the prohibition all arrangements to pay or receive referral fees, even when a payment has not yet been made. These amendments might have been tabled in support of his amendment to make the payment and receipt of referral fees a criminal offence. However, I am concerned that capturing an agreement to pay referral fees when payment might not have occurred would be very difficult to enforce. A solicitor’s accounts, for example, might well show that a particular payment had been made that could, on the face of it, be a referral fee. However, it is unlikely that agreements, which in some cases might be no more than verbal agreements, could be so readily identified without time-consuming investigation. In any event, we do not think that it is necessary to provide for this eventuality, first because such agreements would be unenforceable under subsection (6) of new clause 19 and, secondly, because whatever might be agreed, the payment of the referral fee would still be prohibited. So, in practice, it is unlikely that a party would enter into an agreement to pay a referral fee when payment would be a breach of the prohibition and the agreement would not be enforceable.
I have already dealt, in moving the new clause, with the arguments against amendment (e), which seeks to create a new criminal offence. I should just reiterate that the Government are fully committed to ensuring that the ban will work effectively.
Mr Slaughter
I thank the Minister for his clear account of the effects of these proposals, but I wonder why they are being introduced at this stage. He may wish to explain that. They are not controversial. We do not intend to oppose them as we think their measures are sensible, and we are glad that the Government are, for once, in favour of judicial discretion. They made certain concessions in Committee, one of which was not withdrawing magistrates’ powers to impose longer custodial sentences. We believe the magistrates system serves this country extremely well—this year marks its 650th anniversary. However, although these are sensible changes to current magistrates powers, we are concerned about the fact that, once again, they are part of a package of new measures.
I will not take up any more of the House’s time as we shall shortly come on to discuss two very important and significant new provisions in the criminal law, of which we have had very little notice as they have been introduced at a very late stage. I therefore simply ask again why we have had to wait until Report stage for the measures currently under discussion to be introduced. We do not oppose the proposals, however, as we consider them to be sensible and uncontentious.
Sir Alan Beith
How nice it is to hear the hon. Member for Hammersmith (Mr Slaughter) in conciliatory mood. The Minister has made a perfectly good case for increasing the level of fines available in magistrates courts. He gave several reasons for doing so, and I would add to them the giving of further encouragement to magistrates to deal with cases themselves wherever that is possible, rather than referring them upwards to the Crown court. This is part of a general increased empowerment of magistrates to deal with cases.
The Minister has mentioned the wider issue of community penalties and non-custodial sentences, and the review and consultation that will address them. I hope that proves to be a fruitful process. There is a danger that he is giving two signals at once, however. He is hoping to give the necessary signal to the public that many offenders consider community sentences to be more demanding and rigorous, and much less congenial, than very short terms of imprisonment. Some offenders who have appeared before the Justice Committee have said they committed further offences because it was easier to spend the time in prison than to continue with a community sentence. The Government must also give a signal to the judiciary that it should make the maximum use of the available range of penalties, on the basis of what is most likely to reduce reoffending. If a rigorous, well-supervised and policed community sentence is more likely to reduce reoffending, the judiciary should be encouraged to choose that option. I hope people do not find the signals too confusing, that we end up with a well-supported system of community penalties, and that people have confidence that for many offenders such penalties reduce reoffending more effectively than prison does.
Gareth Johnson
Although I support the Government’s proposals, it would make sense to remove the upper limit on financial penalties imposed by magistrates courts. The proposals do not relate to levels of compensation, so if magistrates are asked to sentence for, say, a theft of £5,000-worth of goods, they will still have to refer the matter to the Crown court for sentence if they do not have the power to award more than £5,000 compensation. I therefore wonder whether the Government would be willing to look at the levels of compensation in the future, to see if there is any scope for lifting the upper limit of compensation awards that magistrates courts can impose.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Beith Excerpts(14 years, 9 months ago)
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Mr Clarke
I will address that when we reach the amendments in two days’ time—[Interruption.] Well, that is exactly where the Labour Government were two years ago. We are attempting to clarify the law and reassure people that the use of reasonable force is indeed legitimate in English law. The main thing it deals with is the fact that there is no duty to retreat when facing a dangerous or threatening attack, but we will discuss that when we come to that part of the Bill. If that was a fundamental change in the law, I would probably face objections to its introduction on Report. It is an attempt once more to build up public confidence in the perfectly reasonable right people have to use legitimate force when defending themselves and their property.
Sir Alan Beith (Berwick-upon-Tweed) (LD)
I happen to be sympathetic to all three things the Secretary of State is trying to do, but surely he must take account of the fact that the procedures of the House, which he is trying to bypass, provide that there should be a general discussion on the principle of doing something, followed by a detailed discussion in Committee of how it can be done and then an opportunity to make further amendments on Report if necessary. Does he not have to mount quite a strong case that that is unnecessary in these circumstances?
Mr Clarke
The case I am making is that there are essentially no surprises here, because Members have been perfectly well aware of the proposals for all three subjects. They have been debated widely and consulted on, and we are introducing them in a form that I do not think adds a great deal of controversy to the Bill. As we all know, the Bill is very large and included some very important elements. These three subjects are relevant to what we are trying to do to the justice system. The right to self-defence was in the coalition agreement when the Government were formed, so everyone knew that we would return to it, and the Prime Minister announced it again in June. Banning referral fees was in Lord Justice Jackson’s report on reform of civil litigation costs, which we are already acting on, as far as no win, no fee arrangements are concerned. We delayed making proposals on referral fees because we were waiting for the Legal Services Board to give its opinion following consultation. We have been consulting on squatting, as I have said. The inclusion of these subjects is hardly surprising. All three have been referred to and debated on the Floor of the House, so I hope that it will agree to extend the scope of the Bill.
Sir Alan Beith (Berwick-upon-Tweed) (LD)
I want to add briefly to the intervention that I made earlier. The hon. Member for Rhondda (Chris Bryant) has been quite honest about the fact that all Governments get into this kind of situation, including the one of which he was a member, when he exercised responsibility for the conduct of the business of the House. He has made some sound points about the lack of an adequate amending procedure for material introduced at this stage. I can see that there has been extensive public discussion on all three of the issues, but the Government ought to find a way of ensuring that the House has a proper legislative process.
There are a number of ways in which that could have been achieved in this case. The Government could have put down their initial plans in the content of the Bill or by amendment in Committee, making it clear that, if the consultation led them to believe that the proposals should not be proceeded with in that way, they would accept that at a later stage. Alternatively, parts of the Bill could have been recommitted by a recommittal motion, to allow a couple of Committee sittings to deal with those matters. We ought to be very cautious about a motion that contains the word “notwithstanding”, because that means that the procedures that the House has set in place to ensure proper consideration are not being observed in this case. That is why I pressed the Lord Chancellor to provide a strong defence of what he was doing.
Question put and agreed to.
Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Beith Excerpts(14 years, 9 months ago)
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Mr Djanogly
I am not entirely sure whether the right hon. Lady is talking about all cases of divorce or partners separating, or just those where there is domestic violence. However, I can tell her that in 90% of cases where there is a separating of the ways, the couple will reach an agreement. We are therefore talking about the remaining 10%. What we are saying in terms of policy is that for basic divorce—if divorce can ever be basic—people should not rely on legal aid for carving up the family assets or settling contact issues. However, I want to make it clear that funding for victims of domestic violence who seek a protective order will remain available.
Sir Alan Beith (Berwick-upon-Tweed) (LD)
Is it not also important to point out that the family courts have great difficulty dealing with contact issues, many of which are naturally unsuited to such treatment? Frankly, it is not very easy for a court to sort out arguments about whether a child can go to the scout group on a Friday night or whether they have to be with the other parent.
Mr Djanogly
My right hon. Friend makes an important point. I can tell him and other hon. Members that it has become clear to me, from my many meetings over the last year and a half with mediators and lobby groups such as those already mentioned, that in the vast majority of cases the parties are better off sorting out their problems together with the help of the mediator. For the most part, mediation is empowering. In most cases, the best way forward is for people to be able to sort out their own futures and those of their children without being told what to do by a judge, and that is what the Government support.
Sir Alan Beith
What that 61% success rate on appeal demonstrates is a bad decision-making system. Ought not the Minister be more sympathetic to the Justice Committee’s view that Departments that make their decisions so badly that they generate large numbers of successful appeals should be penalised, perhaps even to the extent of contributing to a fund for the advice agencies that help the people who are affected?
Mr Djanogly
My right hon. Friend makes a good point. High levels of successful appeals perhaps show that too many cases are going before the tribunals in the first place. The other day, I saw a figure of about 80% for special educational needs tribunals, which was not very impressive either. I can also tell him that I am personally engaging with Ministers in the Home Office, the Department for Work and Pensions and the Department for Education with the specific intention of getting them to work with the Department of Justice to improve their initial decision making. I am pleased to say that they are all are working with us, and that they want to make the system better. This is a matter of significant concern to me, not least because I would like to see fewer appeals relating to my Department coming through the courts and tribunals.
The hon. Member for Brighton, Pavilion (Caroline Lucas) talked about domestic violence, immigration and legal aid. She also talked about people who fall outside the domestic violence immigration rule, such as EEA nationals. As I mentioned earlier, we are looking at cases of EEA spouses who have suffered dramatic abuse. The right hon. Member for Dwyfor Meirionnydd mentioned immigration judicial reviews. I think that he accused the Government of putting appellants into a Catch-22 situation because legal aid would not be available for immigration appeals or for some judicial reviews. I can tell him, however, that people will still be able to appeal immigration decisions themselves and, as is often the case at the moment, they will still be able to get legal aid for a subsequent judicial review, as long as it is not on exactly the same or substantially similar issues, or on a removal direction. As I said earlier, we are making various exceptions to the exclusions, which will include ensuring that, when there has been no possibility of an appeal, legal aid will remain for judicial review.
My right hon. Friend the Member for Bermondsey and Old Southwark raised various points about immigration, and I will write to him about those. He specifically mentioned children, as did other hon. Members, so I shall briefly address that point. In most immigration cases, a child’s interests are represented by their parent or guardian. Most cases in which a child is unaccompanied involve an asylum claim, and legal aid will remain for those cases as at present. Unaccompanied children with an asylum or immigration issue would have a social worker assigned to them, whose role would include helping the child to gain access to the same advice and support as a child who was permanently settled in the UK. They could also offer assistance with filling in forms and explaining terms, and give emotional support. Legal support in such immigration cases may be found, if needed, from law centres and from pro bono legal representation. The Refugee Council provides services for separated children, which can include litigation friends.
A number of hon. Members asked how we justified plans that could disproportionately affect women. That question has also been asked in relation to disabled people, ethnic minorities and people who live in rural areas. The equalities impact assessment, published alongside the Government’s response to consultation, sets out our analysis of how the reforms will affect people with protected characteristics as set out in the Equality Act 2010. We have identified the potential for the reforms to have a greater impact on some groups, but we believe that those impacts are proportionate, and justified by the need to meet our objectives, including the pressing need to make savings from legal aid. We are also keeping discrimination claims relating to a contravention of the Equality Act 2010 within the scope of legal aid, which we consider will make a significant contribution to the fulfilment of our public sector equality duty.
The hon. Member for Stretford and Urmston asked about the removal of legal aid in many family cases, which she said would remove access to justice from many people. She asked how that could be right. Legal aid will remain available for family mediation and private family law cases, including private law children and family proceedings and ancillary relief proceedings. We want to encourage more use of such mediation. In ancillary relief cases, courts will be able to make orders for payment against a third party or a party who has the means to fund the costs of representation for the other party. Removing costly and often unnecessary legal aid does not mean removing access to justice. Litigants in person already feature in the justice system. Judges and magistrates currently assist litigants in person without compromising their impartiality, and we expect that to continue.
Finally, I was asked whether we expect all cases to be resolved through mediation. As I said earlier, the answer is categorically no. Cases involving domestic violence and child abuse, and emergency cases will still not be required to go through mediation. In addition, exceptional funding will be available when necessary for the UK to meet its international and domestic legal obligations via a proposed scheme for excluded cases. On that note, I rest my case.
Amendment 10 agreed to.
Stephen Phillips
I am grateful to the right hon. Gentleman for his observations, but he may be eliding two matters. The first is the unavailability of legal aid for what we might call cases in the middle—neither the severe cases that will be picked up by the exceptional funding arrangements or CFAs, nor the cases in which solicitors and counsel will be prepared to take the case on and earn their money well down the line. I agree that that middle group of cases is the difficult group, but as well as the CFA arrangements mentioned by the hon. Member for Kingston upon Hull East, one must consider whether those cases are likely to be picked up and run with by the legal profession. My judgment is that they are.
Never having done a clinical negligence case, and having no expertise in those cases at all, I base that judgment partly on my experience of the position as it prevails in many jurisdictions in the United States, where of course no state or federal funding at all is available for civil cases. A legal profession has grown up in which attorneys have had to educate themselves about which cases they should be prepared to take. They consider which cases are worth taking forward, but also those that they believe have merit from a perspective of social justice and ensuring that there is access to justice for all.
Having worked with many attorneys across many jurisdictions in the United States, I can tell the right hon. Member for Dwyfor Meirionnydd that there are attorneys who take cases that they suspect will lead either to a settlement, out of which they will get very little or nothing, or to an eventual loss if they have to take the matter to court. They consider that part of their professional obligation.
I hope that both limbs of the legal profession in this country will come to appreciate that we owe an obligation not merely to try to make money out of the practice of law, but to do what we all did when we first came to the law—have a burning sense of justice on behalf of our clients, so that they are properly represented whether or not we believe them, whether or not we think their case is meritorious and certainly whether or not we think we will make money out of it. I hope that that deals to a large extent with the right hon. Gentleman’s points. I am, of course, as concerned as he is that there may be a group of cases in the middle that will somehow fall through the net. If that is the position, we may have to revisit the issue later.
Stephen Phillips
With the leave of the House, I was about to make my final few remarks.
Sir Alan Beith
I apologise to my hon. and learned Friend; I thought he had concluded his speech.
Stephen Phillips
The amendment proposed by my right hon. Friend the Member for Carshalton and Wallington (Tom Brake) addresses schedule 1 and the non-exclusion of clinical negligence cases in the context of convention rights. As I have informed the House more often than, perhaps, I ought, I have never conducted a clinical negligence case. [Interruption.] Mr Deputy Speaker tells me that the House has taken that point on board, and I am pleased it has taken at least one of my points on board.
Notwithstanding the Government’s insistence on the exclusion of clinical negligence in this context, I find it difficult to envisage any circumstances in which a case could be brought under the convention that engages this part of the law. I am not sure that my right hon. Friend addressed that point adequately—or, indeed, at all—when I intervened on him earlier, but he has said that this is a probing amendment that may have to be debated further in another place. At present however, I remain perplexed by the amendment.
Stephen Phillips
It may be an area the Government have to come back to. The amendment would change schedule 1 and, specifically, the cases for which civil aid is, and is not, available in the context of breaches of convention rights by a public authority. It addresses the convention rights contained in the Human Rights Act 1998, a piece of legislation of which the House will know I am not greatly enamoured. Clinical negligence is itself defined in paragraph 20(6) of the schedule, and the amendment suggests that civil legal aid should continue to be available in cases where a breach of convention rights is asserted in the context of clinical negligence. Although I think the Human Rights Act is bad law, I find it difficult to envisage circumstances in which the convention might be used and legal aid ought, in any event, to be available.
I therefore do not support the amendments, as they are unnecessary and misconceived, and the Government will have my support tonight.
Sir Alan Beith
I apologise to my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips) for having misinterpreted—and for perhaps leading you, Mr Deputy Speaker, to misinterpret —his meaningful pause, which sometimes occurs when senior counsel are delivering their well-chosen words, and which led me to think he had finished his speech.
I commend the members of my Committee who have brought this issue to the attention of the House: the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd) and the hon. Member for Kingston upon Hull East (Karl Turner). The current system reveals many shortcomings in dealing with matters of this kind. I can recall a case, which went on for many years, of a young man who was brain damaged for life because he was not provided with proper recovery following an operation after a road accident. It was only when I managed to drag some information out of a health authority that the third firm of solicitors involved sued the second firm of solicitors for its professional negligence in allowing the matter to run out of time when a claim against the health authority would have been successful had it been undertaken with that information in the first place. These very difficult matters frequently involve the kind of cases that most of us are concerned about tonight: lifetime injury cases with very high care costs for those involved. My understanding is that when it comes to recovering costs from people who have been awarded damages in these circumstances, they will be recovered not from their damages for care, but from the other aspect of damages; a provision that the court has made for someone’s lifelong welfare ought not to be affected.
Justice and Security Green Paper
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Mr Clarke
I thank the right hon. Gentleman for his extremely constructive response, which is important. As I said, these problems were just as acute for the previous Government as they are for the present one, and with the mounting number of actions being brought in this field, the situation is getting steadily worse. I can assure the right hon. Gentleman that the Government hope to get cross-party agreement. This is a very green paper. We are genuinely open to suggestions as to how to tackle the issue.
It is very much in the national interest that we do that. As the right hon. Gentleman has just said, we intend to protect our system of open justice and at the same time to protect the security of our intelligence agencies and public safety. It is essential that we set aside the ordinary partisan debate and seek to produce a system whereby our public and our allies can be reassured that these matters will be handled sensitively in this country. People will share intelligence with us knowing that it will be used properly, will not be misused and will not be disclosed in areas where it would do damage. At the same time, the public will be able to find out more often the outcome of complaints and actions involving the security services, and have a judge take the matter to a conclusion. I welcome what the right hon. Gentleman said.
I have indeed read the article in The Independent produced by the shadow Home Secretary. I have to say that she, too, was briefed on Privy Council terms, I think. I am used to that. I have been briefed on Privy Council terms quite frequently in the past by members of the previous Government and did not always leap out to the nearest newspaper in order to give a reaction to the briefing that I had just had, but of course in the spirit of bipartisanship that I have just proclaimed, I will take her views seriously. She is trying to find reasons for disagreeing with us on both sides of the argument, but sooner or later she will decide whether we are being too draconian and protective or too indifferent to individual liberties. I look forward to further instalments as, no doubt, does my right hon. Friend the Home Secretary.
The first question that the shadow Justice Secretary asked is key. He asked who will decide that the closed material procedure is the right way to proceed in whatever civil action we are talking about. In the first case it will be put to the court by the Secretary of State, but the final decision will rest with the judge. That is absolutely key. The special advocate is quite entitled to challenge the fact that this evidence is being given under the closed procedure, and the judge will have to be satisfied that on what he or she knows of the claim, it is indeed reasonable to proceed on that basis and there is indeed a threat to national security. That is a considerable reassurance.
I do not know how many cases there will be. The present pattern is that the numbers of cases is steadily increasing. It is becoming fashionable, almost, to start challenging the courts in encounters of any kind with the intelligence agencies. I do not dismiss all these actions, but there are about 30 coming through the pipeline now, so it is urgent that we address the matter.
Accountability is like the ordinary accountability for the court process, but the ISC will no doubt play a part in seeing how the proposal is working and its impact on the Security Service. On the Intelligence and Security Committee’s views on its own reform, as I have already said, we have based many of our recommendations on what the Committee itself has said. It is my understanding—I may discover more clearly in a moment, if any of my right hon. Friends intervene—that the ISC is broadly supportive of where we are going. We are undoubtedly strengthening the Committee. It is being made a Committee of Parliament. It will be accountable to Parliament as well as to the Prime Minister, and it will have increased powers if our proposals gain favour in the course of the consultation.
Sir Alan Beith (Berwick-upon-Tweed) (LD)
I welcome the publication of the Green Paper because it is better to find a way of getting intelligence material into closed court proceedings than for the cases to remain unresolved. May I point out to the Secretary of State that if that is extended to inquests, it will strengthen the case for a chief coroner, which I have put to him? As someone who has served on the Intelligence and Security Committee for a long time, I believe very strongly that that Committee has to have access to operational information in order to do its job properly.
Mr Clarke
On the first point, we canvassed opinion on the prospect of it being extended to inquests. There will be a range of views on that, so this is a genuinely green part of the Green Paper. My view is that in cases where families are desperately anxious to have a proper inquiry and for someone to make some judgments about what caused the death of a family member, it is particularly unsatisfactory if the whole thing cannot be brought to some sort of conclusion because the proceedings are too open to members of the public so the evidence cannot be heard. We will therefore consult carefully on inquests. I am not sure that the legislation proposing that we have a chief coroner would have given him any powers to do much about such inquest cases, but no doubt that issue will be raised if we continue to debate whether we need a chief coroner.
We propose to improve the ISC’s powers to require information to be brought before it. There are of course difficulties and sensitivities relating to operational information, but those will no doubt be raised in response to the Green Paper and are touched on, rather carefully, in the document I have published today.
Oral Answers to Questions
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Mr Djanogly
We remain committed to fundamental reform of the coronial system. I know that there are particular issues to address in the hon. Gentleman’s constituency, and they are being dealt with. Implementing the office of the chief coroner would require new funding, which simply is not available in the current economic climate. Our proposals will allow us to deliver those reforms, but without those additional costs.
Sir Alan Beith (Berwick-upon-Tweed) (LD)
Does my hon. Friend recognise that there is a much cheaper and more cost-effective way of raising professional standards and creating a head of the coronial profession? That would involve designating a serving coroner as chief coroner and giving just minimal assistance to support him in that role.
Mr Djanogly
Unfortunately, the existing legislation would not allow that; the job would have to be done by a High Court judge or a circuit judge. The point of the matter is that we are putting in place a ministerial committee, which will answer to Parliament in a way that a chief coroner never could.
Business of the House (Police (Detention and Bail) Bill)
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Sir Alan Beith (Berwick-upon-Tweed) (LD)
I am no fan of emergency legislation, which I think is generally a bad thing for the House to get involved with. However, the circumstances we face are such that the Government have been right to act and to bring the procedure forward in this way. I have looked at the concerns of the House of Lords Committee, but it seems to me that the procedure advocated for today is necessary and appropriate, so long as in the subsequent debate, the House can be satisfied that what the Government are seeking to do is to put the law on the footing that we all thought it was on in the first place. They should not make changes to the law without much more detailed and careful consideration. We should support the programme motion and ensure that Ministers can satisfy us that what they are doing is putting the law back to what we thought it was. If changes to the law are advocated, that should be done through a legislative process that allows consideration at greater length.
Legal Aid, Sentencing and Punishment of Offenders Bill
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Mr Clarke
No, I am sorry. I respect the right hon. Gentleman, but I must move on.
I have said that ordinary citizens find the civil law a rather nightmarish experience when they resort to it. Thanks to the present scope of legal aid and the way in which the no-win, no-fee system operates, many people and, in particular, many small businesses live in fear of legal action. I accept that access to justice for the protection of fundamental rights is vital for a democratic society—something on which I will not compromise. However, our current legal aid system can encourage people to bring their problems before the courts when the basic problem is not a legal one and would be better dealt with in other ways. The scope of legal aid has expanded too far. It cannot be right, for example, that the taxpayer is forced to pay for legal advice to foreign students whose visa applications are turned down. There are many other examples.
Our legal aid system also faces a completely unignorable problem of affordability. I have listened to arguments in the media today challenging that, but we have by far the most expensive system in the world, after Northern Ireland, where I am sure the same problem will be tackled. It costs £39 per head of population in this country, each year, compared with £8 in, for example, New Zealand, which has a similar system of law. In any circumstances our system would need reform; in the country’s current financial crisis reform is imperative.
I have some advice for Labour Members. I do not usually give gratuitous advice, but I think the Labour party is facing one of the problems that we faced in 1997. It should find the courage to admit that it made some mistakes and left some things in a mess. It has been acknowledged by my opposite number, the right hon. Member for Tooting (Sadiq Khan), that, on Labour’s watch:
“Playing tough in order not to look soft made it harder to focus on what is effective”—
wise words. I thought, when we set off on this process of consultation, I had the widespread support of many Opposition Members. I ask the right hon. Gentleman to reflect on the way in which he started his consideration before he gets on with the rest of the debate.
In fact, when Labour was in office, its strategy for our prisons and our courts was legislative incontinence combined with kneejerk populism. On prisons, the Labour Government made the mistake of being unable to make proper provision for the demand for places that they stimulated. Overcrowding devoured the very budgets that should have been used productively to cut reoffending and improve public safety in a lasting way. What was the final result that we all remember? They had to reduce the release point from two thirds to halfway through the sentence. They then had to resort to the financial chicanery of keeping the cost of building prisons off the balance sheet—the so-called Carter prisons. Finally—the ultimate absurdity—they had to let out 80,000 prisoners early, before the end of their sentence, to offset the cost of the allegedly tougher sentences that they had imposed. That is why we need reform now—to reverse that nonsense.
On wider justice matters, the Labour Government proved little better at getting a grip. They had 30 consultations on legal aid from 2006; they did not act decisively, put the system on a sustainable footing or address the litigiousness to which its excessively widely available funding contributed.
Sir Alan Beith (Berwick-upon-Tweed) (LD)
My right hon. and learned Friend has had a consultation, to which I hope he has listened, particularly in respect of criminal negligence affecting children with multiple injuries that may have resulted from birth. It is not clear to me yet that the Government have found a way of ensuring that that very deserving and small group of people will have access to justice and to the settlements that they need.
Mr Clarke
We have addressed clinical negligence, a large part of which is now conducted on a no-win, no-fee basis. That is the way we should proceed. Clinical negligence cases of the kind to which the right hon. Gentleman refers are especially expensive and it is quite difficult to decide whether to proceed with them, so we are making special arrangements, particularly for the expensive medical reports that have to be obtained before a case can properly be decided on. We are making arrangements to make the insurance reimbursable in those cases. I would also like to see a system developed by the NHS litigation authority and the best of the practitioners to exchange expert medical reports at a very early stage, so that we can avoid unnecessary litigation about whether a tragic disaster to a newborn baby was actually a natural tragedy or the result of negligence, and so that such cases need not drag on for the many years that they can take to go through the courts. I accept that that is a special case, and we considered it carefully during the consultation. We made quite a lot of changes during the consultation, some of which were referred to dramatically in outside comment.
Sir Alan Beith (Berwick-upon-Tweed) (LD)
The Bill deals with two important issues on which the Justice Committee has reported. Sentencing was at the core of our report on justice reinvestment towards the end of the previous Parliament, and it has been the subject of several reports on Sentencing Council guidelines. The Government’s legal aid proposals were also examined in detail in our March report.
The content of the Bill was originally the product of two major and conflicting factors: the need to respond to the financial crisis and the Lord Chancellor’s determination to make the criminal justice system more effective in preventing crime and more cost-effective in the use of resources. We recognise the financial circumstances and we welcome the willingness to think radically. Recently, however, the Bill got ambushed, and some of its content and a lot of its presentation—not to mention its title—were the subject of No. 10’s preoccupation with getting favourable tabloid headlines. Evidence-based policy does not tend to prevail in those circumstances. It is not clear, for example, that the knife crime provisions will add anything to the existing practice of the courts, which take threats involving knives very seriously, and rightly so. Personally I am not so concerned about the dropping of the 50% discounts, which had nothing to do with encouraging appropriate sentencing. The problem is, however, that, although it was unlikely ever to achieve the £100 million of savings that were canvassed for it, the Department is now expected to find alternative savings to replace them.
Thankfully, the baby has not been thrown out with the bathwater. The Lord Chancellor is still pursuing his objective of making community sentences strong and effective enough to win more confidence from both the judiciary and the public. Furthermore, payment by results will, as part of the reform of the probation service’s vital work, continue—we will be reporting on that subject shortly. We are also getting rid of the disastrous indeterminate sentences and replacing them with life sentences in the most serious cases.
The Bill could, however, have begun a process leading to the commissioning of prison and probation services more locally and by the same body. Until we do that, we will not encourage rational sentencing. Resources will not be available for things such as drug treatment and intensive supervision if they are automatically taken up by the constant expansion of the prison system. Members have a responsibility to use money effectively to prevent crime—that is what we are engaged in—and not to give people the answer that seems the most obvious one. We have a responsibility to prevent them from suffering from crime in the future by spending money as effectively as we can.
The Committee recognises the need to contain and reduce spending on the world’s most expensive legal aid system, but it has serious concerns about some of the groups affected. We suggested alternative ways of making savings, including better court and case management and restrictions on legal aid for judicial review—we welcome the Government’s moves on aspects of that latter point. We were particularly concerned that citizens advice bureaux and neighbourhood law centres would be flooded by demands for legal advice without the resources to help, so we welcome the Government’s initial response to the transition fund and debt advice. However, more will be needed. We welcome the agreement to secure savings in the wastefully inefficient administration of the Legal Services Commission, and we agree with the wider objective of discouraging unnecessary litigation. We are also glad that the Government have responded to our concerns about the definition of domestic violence.
The Government have missed an opportunity in not taking up our recommendation on the “polluter pays” principle. If Departments faced a financial penalty for having too many decisions overturned on appeal, they would change their behaviour and public money would be saved. The Government’s response concentrates on individual cases. This is an overall proposal under which, if Departments rose above a certain threshold, they would have to pay money out of their budgets. That is the only way we will effect the behavioural change and get the right decisions first time.
As I have indicated, I have particular concerns about clinical negligence cases in which determining liability is a complex problem, particularly those concerning children with serious handicaps arising from birth injury. The Under-Secretary of State for Justice, the hon. Member for Huntingdon (Mr Djanogly) wrote to me about this and said that the Department was discussing with the national health service litigation authority and other stakeholders how the commissioning of reports could be improved with joint reports, and the Secretary of State has also referred to that. However, I understand from my discussions with the NHSLA that that is not proceeding or is not proving to be practical. I hope that the Minister, when he winds up, will explain what is happening on that front. The other element in the Government’s attempt to deal with this problem was retaining after-the-event insurance for cases of this kind, but it is not clear to those who understand the system that there would be a viable market in after-the-event insurance in such a narrow field, when it has been abolished in other areas.
The Bill introduces some of Lord Justice Jackson’s proposals but not others. The proposals are a package, so if bits of them are missed out there is a real danger that they will not achieve the intended effect.
Jonathan Evans (Cardiff North) (Con)
Does my right hon. Friend share my concern, which has also been expressed by the right hon. Member for Blackburn (Mr Straw), about the absence of proposals on referral fees, which have been properly described as a “scandal”? They were a scandal at the time of the miners’ compensation scandal, which resulted in 27 law firms being disciplined. Does he think that that is a missing part of the Bill?
Sir Alan Beith
Yes I do, and I was just coming to that as my final point. First, just let me complete my earlier point by saying that the absence of qualified one-way cost shifting leaves an imbalance in the implementation of the Jackson proposals. It is not even clear from the Bill precisely what the Government are doing.
Finally, let me address what I, too, have described as the scandal of referral fees under which insurance companies and some other bodies, such as trade unions, make money from selling the details and claims of the victims of accidents. It will not be enough merely to ban referral fees, because the Government and the industry must deal with a system of fees that has a fundamental fault. If there is a system of fees in which a lawyer can still make a profit from a relatively small claim having paid hundreds of pounds for the privilege of pursuing that claim, then we have to address the fixed costs as well as the referral fees.
Mr Clarke
The reason why we did not deal with that part of Jackson was because the Legal Services Board had taken it on itself to review the future of referral fees. We now have its report and the Under-Secretary of State for Justice, my hon. Friend the Member for Huntingdon (Mr Djanogly), and I are considering referral fees. I take on board what my hon. Friend the Member for Cardiff North (Jonathan Evans) and the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) have been saying.
Sir Alan Beith
I am grateful to the Secretary of State. I know no one who agrees with the Legal Services Board’s conclusions, but I hope that the matter will be considered urgently to see whether the Bill can be used to complete the process of dealing with what is undoubtedly a scandal, which puts up costs for our constituents.
The Bill is part of a necessary process of reform in both sentencing and legal aid, but it needs a great deal of work before it leaves this House and a great deal of monitoring when it comes into force.
Oral Answers to Questions
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Sir Alan Beith (Berwick-upon-Tweed) (LD)
Why does the Minister not merely look at referral fees, but give us a clear commitment that that outrage will be removed under the Bill?
Mr Djanogly
The Legal Services Board reported on that only a matter of weeks ago. We are looking at its recommendations, which go much further than a ban and, in particular, deal with transparency, which was what the Select Committee on Transport focused on. We will look carefully at all these issues.
Sentencing Reform/Legal Aid
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Mr Clarke
Well, first of all I can confirm what the right hon. Gentleman says: the proposals that I presented for consultation and the Green Paper were the proposals of the Prime Minister, the whole Cabinet and I, and the proposals that I am putting forward today in response to the consultation and the comments that we invited are the responses of the Prime Minister, the whole Cabinet and I. Indeed, we had a discussion at Cabinet this morning. We run a collective Government.
I remind the right hon. Gentleman that we carried him with us on our Green Paper. His reaction to what the Prime Minister and I said at the time—it is all accessible in Hansard—was that this was a
“perfectly sensible vision for a sentencing policy, entirely in keeping with the emphasis on punishment and reform that Labour followed in government”.—[Official Report, 7 December 2010; Vol. 520, c. 171.]
We carried him with us then, and I have hopes that if he looks at the consultation and listens to the arguments, we will carry him with us again. If he wants to turn and change his mind, he is free to do so.
Early guilty pleas were a genuine attempt to help victims and witnesses, who are mightily relieved if they hear that the accused decides to plead guilty. Had they worked, they would have saved a very great deal of money and time for the police service and Crown Prosecution Service, as well as for prisons. I do not know quite what the right hon. Gentleman’s view on this is, but I paid particular regard to the legal opinions that I was getting from serious members of the judiciary and others. The arithmetic just went too far in some serious cases. A week or two ago, I said that I thought the proposal would survive, because I thought that by introducing some judicial discretion, I could solve the problem, but I could not. For that reason, the Government are sticking with the present system. That is what consultation is all about.
We have consulted on our remand proposals, and we are pushing on with them. Carrying on with a system whereby people are refused bail when everybody knows they will not be sent for a custodial sentence if they are convicted at their final appearance is simply not the best use of a very expensive place in our prison system. It is cheaper to put our prisoners in the Ritz—and many of them would like to be there—but while the public prefer them to be in prison, we will keep them in prison. Nevertheless, the remand proposals are, I think, extremely sensible.
The proposal on knife possession has been made to send a message about its seriousness. I do not think that the right hon. Gentleman expressed an opinion on it, but I would advise him to support this perfectly sensible measure. On IPPs, which I have said we are minded to repeal and replace with a better version of what preceded them, I refer him to the consultation and the attacks on IPPs from sensible people. David Thomas QC, who writes the bible on sentencing so far as criminal law practitioners are concerned—his book on sentencing is the book for those practicing in the courts—described IPPs as an “unmitigated disaster”. We are carrying out a review to decide what will replace them by way of a strong system of determinate sentences that protects the public.
On legal aid, I could rapidly find a quotation from the right hon. Gentleman saying that if the Labour party was in government, it would be cutting legal aid. He has nothing to say on legal aid that challenges the case I made a moment ago. On citizens advice bureaux and other forms of general advice, I hope to be able to say something on Second Reading—I am making advances, but we will see how much we can come forward with. We think there are better ways of resolving problems, and I agree that CABs and other voluntary bodies sometimes provide better advice than adversarial lawyers.
In commenting on the probation service and other matters, the right hon. Gentleman asked where the savings are coming from. I have held protracted negotiations with the Chief Secretary to sort out my Department’s finances, in the light of some of the problems left behind. We have now resolved all those problems. Over this period we will be making £2 billion of savings a year on the total expenditure of my department, and we are looking elsewhere for another £100 million. We are not cutting any particular area but achieving efficiency, and half of that will come from administrative savings. If we have further policies to find the money we are not saving, I will come forward with them. I prefer to proceed with proper policies in joined-up writing upon which I have consulted, and got the approval of, my colleagues, and after that to come to the House. I am now considering how to ensure that the final touches to the major savings we are making in my Department can be achieved in the light of this consultation.
Sir Alan Beith (Berwick-upon-Tweed) (LD)
Although the Justice Committee will continue to have concerns about the extent of the legal aid changes, may I press the Justice Secretary on sentencing? Do his Cabinet colleagues recognise that we will protect our citizens from crime not by tough talk or favourable headlines, but by appropriate sentences geared to making offenders face up to what they have done and changing their behaviour? Sometimes resources are required to do that and should not be commandeered by the prison system.
Mr Clarke
I agree with the right hon. Gentleman. Talking tough is easy and most politicians do it; delivering tough is rather difficult, as the Labour party discovered only too often. I will not use the quotes I have used before—the right hon. Gentleman knows them perfectly well. I agree that prison is of course the right punishment for serious and violent offenders, who will keep being sent there for long sentences whenever that punishment is justified, so that they can make reparation. However, we also tackle crime by trying to reform them, getting more of them to go straight, reducing reoffending and finding other ways of stopping the accumulation of more victims and more crimes committed by people coming through the system. I think that that is accepted by my colleagues. We are giving up the remorseless and hugely expensive increases in the prison population, and looking for a more intelligent way of protecting the public, which is our principal priority.
Sentencing
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Sadiq Khan
I can tell the hon. Gentleman exactly what the leader of my party believes. He thinks that it is inappropriate and offensive both to victims and our criminal justice system if all offenders are given a discount of up to 50% for pleading guilty at the earliest opportunity.
Further evidence that the Government are out of touch is provided by their Commissioner for Victims and Witnesses, Louise Casey, who has argued:
“A discount of 50% offends many victims, underplays the harm that may have been caused…and can seem to be placing administrative efficiency over justice.”
Campaign groups such as Justice and the Criminal Justice Alliance also oppose the policy. The judiciary have also been critical. Lord Justice Thomas, vice-president of the Queen’s bench division, and Lord Justice Goldring, senior presiding judge for England and Wales, have said that halving sentences because of guilty pleas will fail to reflect the seriousness of offences.
The Government’s policy on law and order is a mess. They just do not get it. Before the election, the Prime Minister made promise after promise to get elected. He promised to protect front-line services and he is now cutting 14,000 prison and probation staff. His Government are also cutting front-line police, which we will debate later this evening, and 23 specialist domestic violence courts are being closed. They promised a prison sentence for anyone caught in possession of a knife—that promise was broken. They promised honesty in sentencing and that they would introduce minimum and maximum sentences—those promises were broken.
Sir Alan Beith (Berwick-upon-Tweed) (LD)
What did the right hon. Gentleman’s party leader mean when he said:
“When Ken Clarke says we need to look at short sentences because of high re-offending rates, I’m not going to say he’s soft on crime”?
Has that gone by the board?
Sadiq Khan
If only the Justice Secretary was investing in alternatives to short sentences and in some of the important, aggressive and intensive work that is required instead of cutting some of those services around the country. I hasten to add that the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) has voted for some of those cuts. When the Justice Secretary talks about rehabilitation and community sentences—real alternatives—he should invest in them, too.
Sir Alan Beith (Berwick-upon-Tweed) (LD)
I begin by saying that the Lord Chancellor should not have used words that led people to believe that he did not treat all rapes as serious crimes. However, when I set that against his attempt to create a rational debate on criminal justice policy, I know on whose side my sympathies, in general, lie. In addition, it was a tactical mistake of the Opposition to turn that into a resignation issue, and a further demonstration that we need such a rational debate.
Furthermore, the debate on extending the discount for early guilty pleas should not have become focused on rape, because it might be more appropriate for other crimes. I remain to be convinced that the enhanced discount will produce the full intended savings in the prison population. It is worth pursuing for some crimes and would be inappropriate for others. The current one third discount needs the careful exercise of the judge’s discretion, which is in some ways circumscribed too much, because distinctions must be drawn between cases in which a guilty verdict is almost inevitable, and those in which a guilty plea avoids lengthy proceedings with an uncertain outcome.
The aim of getting guilty pleas earlier is sensible, but many court-door pleas are based on the lack of early knowledge of the prosecution case, or a belief that witnesses will be intimidated into not turning up. Greater discounts will not of themselves change that. If the policy succeeds, it will enable other cases to be brought to trial more quickly, which would be a very welcome development, even if it might not assist in making financial savings because it could lead to more custodial sentences.
The public continue to see length of sentence as the only way of asserting society’s abhorrence of serious crimes, regardless of whether the long sentence has any deterrent effect, which it clearly does not in some cases, and regardless of whether the offender considers the sentence to be particularly punitive. Some offenders regard community punishments as more exacting than prison, which means bed and breakfast, and three meals a day. For many offenders, life outside is disorganised, dysfunctional and not particularly comfortable.
We must ask, as my right hon. and learned Friend the Justice Secretary is asking, whether we are spending the vast resources that we commit to the criminal justice system in a way that is effective in reducing the crime and victimisation that result from reoffending. Resources are not unlimited, and it is our responsibility to use them to protect our constituents from becoming victims of crime. That requires a transfer of some resources from custody to community punishment, and from custody to preventing people, particularly young people, from getting involved in crime in the first place.
If we had only ever treated the symptoms of illness and devoted minimal effort to prevention and public health, we would have made very little progress in eradicating diseases and increasing life expectancy. We must apply some of that philosophy to preventing crime and reoffending. Every crime and instance of reoffending that is not prevented makes victims of our constituents. We need a rational debate on how we organise policy so that we prevent people from becoming involved in crime and from returning to it.
Michael Ellis
Further to the right hon. Gentleman’s medical analogy, does he agree that it is highly likely that people would stop prescribing a medicine if it did not work 70% or 80% of the time?
Sir Alan Beith
The hon. Gentleman is absolutely right. What is more, we would be better to prevent people from getting the condition in the first place than to give them medicine late in the day.
Successive reports of the Select Committee on Justice have tried to launch, support and encourage a rational debate on our criminal justice policy. That, I believe, is what the Lord Chancellor has been trying to do, and I encourage him to continue in that endeavour.