Oral Answers to Questions

Lord Beith Excerpts

Tuesday 28th June 2011 Commons Chamber

[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

Lord Beith Excerpts

Tuesday 21st June 2011 Commons Chamber

[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

Lord Beith Excerpts

Monday 23rd May 2011 Commons Chamber

[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.

--- Later in debate ---

[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.

Oral Answers to Questions

Lord Beith Excerpts

Tuesday 17th May 2011 Commons Chamber

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

Is the Minister aware that many victims greatly value the restorative justice process, because it brings the person who has caused them harm face to face with the harm that he has caused? Does the Minister recognise the need for it to be mainstreamed into the system rather more than it is at present? There are many areas in which it is currently not available to benches and courts.

[Mr Blunt]

I entirely agree with my right hon. Friend. It is important to bear in mind that restorative justice is a right for victims. I believe that if, in the circumstances described by the hon. Member for Ashfield (Gloria De Piero), a victim wished to exercise the right to engage in restorative justice and to demand an account from an offender who was pleading guilty or had been found guilty, he or she should have the opportunity to do so. The victim impact statement, as part of the restorative justice process for the benefit of the victim, must become a much clearer element of our justice system.

Prisons Competition

Lord Beith Excerpts

Thursday 31st March 2011 Commons Chamber

[Mr Clarke]

The right hon. Gentleman was indeed involved in the competition process, so he cannot start protesting—however mildly—about the outcome. I assume that he contemplated that either the private or the public sector bids would win, and that is what has happened. The public sector has the contract at Buckley Hall and the private sector has the contract at Birmingham and the other prisons. Serco was already the contractor at Doncaster. To show how ideology is fading, the irony is that Buckley Hall, when it opened, was a private sector prison, but it has been in the public sector and this renewal of the contract has been won by the public sector again. The law on TUPE remains in place, but we are consulting on the wider implications on transfers of ownership from the public to the private sector. The outcome of this competition should be the kind of thing that the right hon. Gentleman was perfectly happy to contemplate when he was party to the decision in 2009.

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

I welcome the Lord Chancellor’s decision to build reducing reoffending into the Doncaster contract, but will he assure us that he recognises that that will require the provider to work closely with a range of other organisations, and that they too increasingly need to be incentivised to reduce the reoffending that creates more victims of crime?

[Mr Clarke]

My right hon. Friend is right. There are two major voluntary parties with which the provider at Doncaster proposes to be in contact, but their names escape me—one is called Catch22 and the other is something else—and there will be local voluntary and charity groups subcontracted below them. Serco will manage the prison and will be the principal contractor, but the delivery that it hopes to achieve will be effected by subcontractors. I have emphasised to those who have attended seminars on this subject that I hope that the operator will deal responsibly with the small local contractors. Serco is entitled to use its bargaining power when negotiating with the representatives of Government to get the best deal it can, but I hope that it will not overdo it when dealing with smaller voluntary and charitable bodies that are also entitled to expect to boost their funds if they deliver the results required.

Oral Answers to Questions

Lord Beith Excerpts

Tuesday 29th March 2011 Commons Chamber

[Mr Blunt]

That is not a result of our Government’s spending cuts. The efficiency savings for the probation trusts for next year are largely the plans that those trusts had for the transfer from board to trust status, which was inherited from the previous Administration. The National Offender Management Service is taking 37% out of its headquarters’ overhead precisely in order to protect the front-line professionals in the probation service in delivering effective offender management.

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

Are probation trusts going to be providers of services, commissioners of services or both? If both, is there a conflict of interest?

[Mr Blunt]

I know that I am going to give evidence to the right hon. Gentleman’s Committee and we will look forward to examining those issues. I suspect that the answer in the end is very likely to be both.

Reforming Civil Justice

Lord Beith Excerpts

Tuesday 29th March 2011 Commons Chamber

[Mr Speaker]

Order. I emphasised yesterday and I repeat today that, in accordance with long-established convention, Members who came into the Chamber after the Secretary of State started his statement should not expect to be called.

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

Given the Lord Chancellor’s characteristic willingness to take what in “Yes, Minister” would have been called “courageous decisions” about success fees, insurance fees, after-the-event insurance and the scope of the small claims courts, will he tell us what he thinks about referral fees and claims farming, which are probably major contributors to the compensation and litigation culture?

[Mr Clarke]

The Legal Services Board is looking into that whole area. My right hon. Friend Lord Young of Graffham has referred to this as well, and it is an important area that we should look at. We are all in favour of no win, no fee; it has been introduced and no one is ever going to get rid of it, but a rather extraordinary form of practice has now developed at the margins. Claims advisers advertise for people who have had an accident to bring a claim; we see their advertisements on the backs of buses. They pay people to give them their claim if it looks good, and they then sell the claim to a solicitor. Solicitors may then trade the claims between themselves, before bringing a no win, no fee action. If they are successful, they get very high costs and a kind of bonus, called a success fee, on top. That is what makes these actions so expensive. I understand why, in response to consultation, some people defended that system vigorously, but I believe that the whole thing needs examining from beginning to end. As Sir Rupert Jackson’s report made clear, this explains why the whole process has become so frighteningly expensive for so many litigants.

Oral Answers to Questions

Lord Beith Excerpts

Tuesday 15th February 2011 Commons Chamber

[Nick Herbert]

I am afraid that prisoners were also spending too much time in their cells and not pursuing purposeful activity under the previous Government, when there were increases in spending, year on year. So this problem is not simply linked to spending. We are determined that prisons should be places of work and purposeful activity, so that we can focus on reducing reoffending.

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

Assuming that payment-by-results schemes get beyond the pilot stage, what commissioning organisations do Ministers envisage deciding between private, public and third sector bidders, and how will the scheme function to provide contracts on a scale that charities and third sector organisations can undertake?

[Nick Herbert]

As we set out in the Green Paper, we are consulting on how the five pilot schemes should proceed in various sectors, in order to see how we can make payment by results work. The existing pilot, involving the Peterborough social impact bond, is also still running. Our intentions are to unlock the expertise of the independent and third sectors in order to reduce reoffending, and to examine how the public sector can participate in the schemes.

Legal Aid Reform

Lord Beith Excerpts

Thursday 3rd February 2011 Commons Chamber

[Yvonne Fovargue]

I agree with my hon. Friend. I will go on to give some figures on the impact that the proposals will have on advice agencies.

Agencies that provide telephone advice such as National Debtline have a great role to play, but they cannot replace face-to-face advice, as my hon. Friend the Member for Nottingham South (Lilian Greenwood) said. The reality is that people need to sit down with an adviser. They need the reassurance and trust of a relationship that is built up over time.

There is a reason why social welfare law problems, including employment, housing, debt and benefits, were given primarily to advice agencies: the interlinking of those problems. Limiting the scope and the type of the problems that advisers can deal with limits their ability to deal with the whole person and with all their issues. For example, legal help might prevent somebody from losing their home because of debt, but it will not address the causes of that debt, such as unfair dismissal or a refusal of sickness benefits. I could give examples of many areas that are taken out of the scope of such help, but I believe that colleagues will mention them. The list is extremely long and access for the most vulnerable is severely curtailed in many cases.

I shall turn now to the effect on citizens advice bureaux and not-for-profit providers. The Ministry of Justice estimates that this sector will lose 97% of its legal aid funding. Currently, local citizens advice bureaux receive £26 million of legal aid funding, with the largest amounts being spent on debt and benefits. If the proposals are implemented, £20 million will go in one fell swoop and there will be a significant impact on the ability to deliver not only legal aid-eligible services but all other client services. A survey undertaken by Citizens Advice showed that if the proposal went ahead, 80% of local bureaux would have to withdraw specialist services, 85% would have reduced capacity to meet clients’ needs and, most shockingly, 51%—more than half—felt that there would be a risk to the continuation of the whole CAB service in their borough.

Legal aid funding cannot be treated in isolation from other sources of advice funding, especially as the consultation assumes that people can access other services to pick up the slack. The free advice sector is suffering disproportionately from public funding reductions, and even agencies such as the Royal National Institute of Blind People, which have no legal aid funding, have approached me to say that they could not deal with any increase in demand for their services due to the impact of the proposals.

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

The hon. Lady is making an eloquent case, particularly on behalf of organisations that are currently giving evidence on these matters to the Select Committee on Justice. Does she recognise that there ought to be some scope for funding to be provided for an examination of the sources of some of the problems on which advice is being sought, whether they are public bodies that make poor decisions, as the right hon. Member for Leicester East (Keith Vaz) rightly pointed out, or the banks?

[Yvonne Fovargue]

I totally agree that there is scope for other funding provision, but that has not been available yet. In fact, provision is being withdrawn because of the withdrawal of funding for face-to-face advice from citizens advice bureaux.

Estates of Deceased Persons (Forfeiture Rule and Law of Succession) Bill

Lord Beith Excerpts

Friday 21st January 2011 Commons Chamber

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

An even more telling point is that someone who has got into that situation without taking any precautions is, to put it mildly, extremely unlikely to be aware of this bizarre provision of the law.

[Mr Knight]

I accept that point absolutely and completely. The effect of the law does not produce the outcome that the intestate person in most cases would have wished anyway, and my Bill seeks to correct that anomaly.

There are a number of ways in which the state can and should seek to dissuade teenage pregnancies, but using the law of intestacy should not be one of them. I am not convinced that after a night out at a disco or bar, just before the moment of unprotected sex—perhaps in the back of a car—two young teenagers are going to feel in any way dissuaded from having sexual relations, and possibly thereby conceiving a child, by the expectation that they may die before reaching 18 or marrying, and thereby disinherit an unborn child that they might or might not be about to create. I absolutely agree with the comments made by the Chair of the Justice Committee.

We hope that most children are brought up in a loving relationship. Let us think of the poor child, who has an unmarried mother who is killed before she reaches the age of 18. What does the state say to the child? “Because of these circumstances, you will not be helped; you will not be able to inherit money that you would have inherited from your grandparents if your mother had reached the age of 18.” Clause 3, therefore, inserts new subsections (4B), (4C) and (4D) into section 47 of the 1925 Act. I remind the House that that Act lists what happens on intestacy. The subsections inserted by the clause deal with the situation of the young child of an intestate who dies under the age of 18 without having married or formed a civil partnership. As C is a minor at the date of Y’s death in the example, his or her interest in Y’s estate will be held in the statutory trusts imposed by the 1925 Act.

On commencement, clause 4(4) provides that only deaths occurring after the commencement of the Bill will be covered by it. Knowing, in this cost-conscious age in which we live, my hon. Friends’ concern about the financial implications, I draw their attention to the fact that the implementation of the Bill is not expected to impose any additional burden or to increase any other public expenditure.

--- Later in debate ---

[Mr Knight]

I am doing that for the simple reason that I have confidence and trust in the coalition Government and I saw no reason to seek to override them on so footling a matter. If the Minister tells the House that he supports the Bill—which I hope he will in a moment—I expect him in good faith to see that the Bill is brought into effect as soon as is reasonably possible. Because I have confidence, particularly in this ministerial team, I decided to leave it to the Government to make that decision.

[Sir Alan Beith]

I return to the point that the Law Commission had made. Its recommendation about creating trust provisions—originally with the Public Trustee—arose from an anxiety that money should be administered without benefit, particularly indirect benefit, to a killer. Although that could have been done by private trustees rather than the Public Trustee and without public cost, its original thinking was that something along those lines was needed. Is the right hon. Gentleman confident that he was right not to include it in the Bill?

[Mr Knight]

I think so, because the court has power to determine who manages an estate, and I would have thought that that power was sufficient. If the court felt that the estate was being manipulated by an incarcerated prisoner—the father who had murdered the grandparent—I would have thought that the courts would have power to intervene and take over the management of the estate. That was why I did not include those provisions in the Bill, particularly when I noted that there had been further discussions between the Ministry of Justice and the Law Commission and that they had both reached the conclusion that the special trust provision was unnecessary. I assumed, and still do assume, that because that was where the debate ended up, we need not bother with that extra tier of bureaucracy in the Bill. However, should the Bill be given a Second Reading and should evidence to the contrary arise, I am happy to look at the matter by way of possible amendment to the Bill—although I hope and believe that will not be necessary or desirable.

On public manpower, I tell my hon. Friends that no change in the work load of any Government Department or agency is anticipated if the Bill is implemented. Usually, Ministers have to make a statement about compatibility with the European convention on human rights. I am delighted to say that this is not a Government Bill, so it does not require a statement under section 19(1) of the Human Rights Act 1998. However, if it did, my understanding of that Act is that the provisions of the Bill are compatible with the convention in any event.

The Bill extends to England and Wales, and as my hon. Friend the Member for Christchurch has said, it will come into force when the Minister so determines should it pass through all its stages in both Houses. I am sure, if he supports the Bill, that he will not stand in its way.

The Bill is merely intended to make our law fairer, by removing technicalities that run contrary to the general policy of the law of succession. It will allow direct descendants to inherit ahead of more distant relatives on intestacy. Where there is a will, the Bill will allow the people whom the deceased intended, or could be assumed to have intended, to take the inheritance if the deceased’s first intended recipient does not. More importantly, the Bill will produce an outcome that is fair, rather than one based on legal technicalities.

I am most grateful for the courteous and helpful assistance that I have received from the Minister, his departmental team, Officers and servants of the House and members of the Law Commission to whom I have spoken. I am also grateful to the Justice Committee, which has indicated its support for the measure, and for the comments made by its Chairman, my right hon. Friend the Member for Berwick-upon-Tweed, whom I am delighted to see with us today. Finally, I am most grateful to all hon. Members for giving me a fair hearing today. I hope that they will in due course give this modest but worthy Bill a Second Reading.

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

I congratulate my right hon. Friend the Member for East Yorkshire (Mr Knight) on introducing the Bill and on his lucid presentation of a complex matter. Of course, as he indicated, the background is that a draft Civil Law Reform Bill was published in the last Session of Parliament and the Justice Committee studied the Government’s request in some detail. His Bill takes up a significant part of the draft Bill. Meanwhile, the Government have decided not to proceed with it.

I received a letter, dated 16 December, from the Under-Secretary of State for Justice, the hon. Member for Huntingdon (Mr Djanogly), who is dealing with the debate today, indicating how grateful the Government were for the Justice Committee’s report, but he said that

“as the draft Bill does not contribute to the delivery of our key priorities, we have decided not to take it forward.”

I am not unsympathetic to the Government’s decision not to proceed with the draft Bill in this Session. It is complex; it would require a lot of ministerial time and attention; and the Department has many urgent priorities to deal with. But I hope that the Government have not closed the door on sorting out some of the laws with which it deals.

Much of the draft Civil Law Reform Bill related to bereavement and dependency damages and damages in respect of gratuitous care under the Fatal Accidents Act 1976. It was complex; the Justice Committee did not agree with it all; and further work clearly needed to be done. I hope that that work is not brought to a complete halt by the decision not to proceed in this Session and that it can be taken forward in other Sessions. Of course, if that does not happen, it raises yet again a question that we have come up against several times: why have a Law Commission, which consumes considerable public resources in doing detailed and careful work on laws that need to be improved and brought up to date, if its recommendations are not implemented? Judicial time, as well as public expenditure, is involved. The record of successive Governments in implementing Law Commission recommendations is not very good.

However, into the breach has stepped my right hon. Friend to deal with laws that are significant to a small number of people. By definition, those few people are in pretty serious and challenging circumstances, particularly where a killing has taken place in the family or where a death—indeed, a death of a minor—has occurred. Those are awful family circumstances in which we want the law to be helpful, not unhelpful.

When a person dies without a valid will in England or Wales, intestacy laws determine who will inherit his or her property. Succession law is generally aimed at benefiting descendants in preference to other, more remote family members, and the order for doing so is set out in the Administration of Estates Act 1925—spouse, children, parents, siblings, half-siblings, grandparents, aunts and uncles, and half-aunts and uncles—and when no relative survives, the deceased’s money goes to the Crown.

Currently, the common law forfeiture rule prevents a person convicted of an unlawful killing from benefiting from the victim’s death, irrespective of whether the victim had made a will. Murderers are always prevented from benefiting from their victims’ deaths, but the court has discretion over whether to apply the forfeiture rule in cases of manslaughter or other forms of unlawful killing.

A child who has murdered his or her father cannot therefore inherit the father’s estate, even if he made such provision in his will. His or her children—the victim’s grandchildren—also cannot inherit because section 47 of the Administration of Estates Act 1925 and section 33 of the Wills Act 1837 require the death of the parent before the child can inherit from the grandparents.

The impact on a grandchild when his parent forfeits a grandparent’s estate under the forfeiture rule was heavily criticised in the case Re DWS in 2001, where a father had murdered both his parents. Both grandparents died without a will, and the Court of Appeal held that it had no power to treat the father, who was disqualified from inheriting by reason of his crime, as deceased, which would have allowed the grandson to inherit. The estate therefore went to other relatives. That led to the issue being referred to the Law Commission.

In such unusual circumstances, children who are indirect victims of a grave crime are denied the support that the murdered person would have wished them to have. Either they have expressed that wish in a will, or, having failed to do so, everyone realises that that is what the deceased person would have wanted. Added to the loss of a loved family member comes the loss of the benefit that that family member would have wished them to have.

The Bill would deem the person who disclaimed an inheritance or who is precluded by the forfeiture rule from inheriting as having died immediately before the deceased, unless the relevant will contains a contrary provision. Property would therefore to go to grandchildren, rather than more distant relatives, unless the deceased has explicitly excluded them from inheriting the estate in the will—a “deemed predeceased rule” is the legal term.

My right hon. Friend was also dealing with, and referred to, another anomaly: the case of the unmarried minor who has a child but dies without having married or entering a civil partnership. The Bill will allow the child to inherit in those circumstances by deeming that the parent died before the person from whom he or she was inheriting.

All that closely follows the Law Commission’s recommendations in the 2005 report, “The Forfeiture Rule and the Law of Succession”. That leaves only the commission’s recommendation that, if as a result of its other recommendations, property devolves on or is held for a minor descendant of a killer, the court should have the power to order that the property be held by the public trustee, who should administer it in order to avoid benefit to the killer.

There was a reason for that recommendation. Professor Hugh Beale, the law commissioner who led on the report, told the Justice Committee:

“We were worried that somehow the killer might benefit indirectly or directly by, as it were, either being able to get hold of some of the trust money, perhaps by influencing the trustee or possibly by encouraging the trustee to take on responsibilities which otherwise the killer himself or herself would bear: maintenance responsibilities”,

for example. The Government’s original draft Bill would have enacted that recommendation with a minor alteration: the court would have been required not to appoint the public trustee, but to consult the public trustee, who could then advise on a more suitable private trustee. Professor Beale described that as an “eminently sensible change”.

Concerns were raised by witnesses about the loose drafting of the relevant clause, which referred to

“an infant who is a child or remoter descendant of the offender”.

We recommend that the Government re-examine the drafting of what were then clauses 15 to 17, in the light of comments from the Bar Council and the Law Society. We expected all minors to receive suitable protection under the draft Bill. We said that we shared the Law Society’s concern that nothing should be done to impair the validity of existing wills. We welcome the proposal to ensure that minors who inherit under that provision have their inheritance protected. Whether there is a problem that ought to be dealt with, and could be dealt with without creating secondary problems, is worthy of at least some further consideration in Committee.

The primary argument against changing the law as proposed in the draft Bill, referring to the provision about minors, was discussed in an earlier intervention: the idea that the forfeiture rule could have a deterrent effect. The concept of deterrence is stretched at the best of times. Many crimes are committed with total unconcern for the consequences that might follow if someone were detected and brought to justice. The remotest and weirdest notion of deterrence would arise in circumstances when a child was conceived unexpectedly by a minor who did not then get married or enter a civil partnership—deterrence coming into play at that point is plainly absurd. The Law Commission took the view that killers were unlikely to be influenced by such changes in the law. That consideration is completely outweighed by the injustice that would be done to the deceased, whose property would be inherited by more distant relatives, and to the innocent children.

It was the effect of the present rules on innocent children in particular that influenced me in supporting the Select Committee view that the Law Commission proposals should be implemented. However, more generally, as I said in my opening remarks, we are concerned at the poor record of implementing Law Commission proposals. Our report said, at paragraph 194:

“We believe the delay in legislating on Law Commission recommendations is not only demoralising for that organisation but leads to a waste of limited resources because case law can change the legal context while recommendations await implementation requiring further consideration of the proposed changes. The last 10 years has seen a vast amount of criminal justice legislation introduced by the Government. In contrast, civil law measures have sometimes being neglected, to the public detriment.”

We are all grateful to the right hon. Member for East Yorkshire for filling part of the gap. In wishing his Bill success, I hope to prompt the Government not to neglect the area of civil law.

--- Later in debate ---

[Mr Djanogly]

I am delighted to pull the House back to the important issue of succession.

I was just saying that the property of the killer’s parents was distributed according to the statutory intestacy rules. The intestacy rules are a default regime; they apply where a person has not exercised his or her right to make a will or to the extent that his or her will is not valid. Their aim is to safeguard the deceased person’s family by providing for them from the deceased person’s estate in a manner that is thought to mirror the wishes of the average person had he or she made a will.

Generally speaking, an intestate estate will pass to the surviving spouse or civil partner and the deceased’s children first, but if the deceased is not survived by either of them, then other blood relatives of the deceased will inherit the estate in a strict order of priority set out in section 46 of the Administration of Estates Act 1925, as amended. I am not going to read out the rules, but if any hon. Members wishes to know more about them, I shall provide the information.

When there are no known eligible blood relatives to inherit, the estate is dealt with by the Treasury solicitor. On receiving the estate, the Treasury solicitor will make full inquiries into the estate and will advertise for eligible kin in the hope of distributing the estate. If there appear to be no eligible kin, or none can be traced, the estate becomes “bona vacantia” which means “ownerless goods” and it will pass to the Crown, the Duchy of Cornwall or the Duchy of Lancaster, depending on where in England or Wales the deceased lived.

When a minor inherits on intestacy, the property to which they will be entitled is held on trust. The terms of that trust are specified in the intestacy rules. Basically, the trustees will hold the property for the benefit of the child until he or she reaches the age of 18 or marries or enters a civil partnership under that age.

All that may seem relatively straightforward, and hon. Members could be forgiven for thinking that the grandchild in the DWS case would have inherited their property on reaching the age of 18, or marrying or forming a civil partnership before then, but there is a devil in the detail and, sadly, there was a family dispute that led to litigation. That culminated in the decision of the Court of Appeal in 2000 in the case Re DWS (Deceased). By that time, it was agreed that the son himself could not inherit because, as he had murdered his parents, the forfeiture rule prevented it. The forfeiture rule is a common law rule, applying the general rule of public policy that a person is not able to benefit from their wrongdoing. It is illustrated by the 1892 case of Cleaver v. Mutual Reserve Fund Life Association, when it was held that a person is not entitled to benefit from the estate of a person he or she has unlawfully killed.

A person who is convicted of the unlawful killing of another, or of aiding, abetting or counselling another to do so, is automatically disqualified from inheriting from his or her victim under the forfeiture rule. However, persons convicted of manslaughter or other offences less serious than murder may still be permitted relief to inherit the victim’s property by the court under the Forfeiture Act 1982.

The question for the court in Re DWS (deceased) was who would receive the grandfather’s property. Had the son died before his father, the property would have gone to the son’s only child, who was aged only two at the time of the murder and was also the grandfather’s only grandchild. However, the son—that is, the killer—was not dead, but merely disqualified from inheriting because of the operation of the forfeiture rule.

The relevant provision of the intestacy rules setting out the statutory trusts contained in the Administration of Estates Act 1925 provides that the grandchild will inherit only if his or her parent has already died. The court accordingly decided that the law did not allow the grandson to take the property. Instead, it was decided that the property would have to go to the estate of the dead grandfather’s sister, who had also died by the time of the court case. Thus, in this situation, not only is the killer disqualified from inheriting, but so also are all the killer’s direct descendants. The Court of Appeal expressed concern that this may have been an unforeseen and unintended consequence of the present intestacy rules.

In July 2003, the then Department for Constitutional Affairs, whose responsibilities in this regard have been assumed by the Ministry of Justice, asked the Law Commission to review the relationship between the forfeiture rule and the law of succession. The terms of reference were as follows: first, that in conjunction with its work on illegal transactions, the Law Commission should review the relationship between the forfeiture and intestacy rules; secondly, that the review should be carried out with reference to the difficulties highlighted in the case of Re DWS (deceased) and should explore ways the law might be reformed to prevent apparently unfair outcomes of this sort; and, thirdly, that the review should also consider any ancillary areas of succession law that might produce analogous outcomes—for example, disclaimer and attesting beneficiaries.

In October 2003, the Law Commission published a consultation paper, “The Forfeiture Rule and the Law of Succession”, which considered the problem raised in Re DWS, and discussed whether a similar problem arose in other contexts. The consultation paper provisionally proposed that in cases such as Re DWS there should be a “deemed predecease” solution—that is, where a person forfeits a benefit on intestacy through having killed the deceased, the estate should be distributed as if the killer had died immediately before the deceased. The Law Commission also proposed that the deemed predecease rule should apply where a gift under a will fails because of the forfeiture rule.

[Sir Alan Beith]

It is perhaps worth placing on the record—the Committee specifically sought to inquire into this—that the deemed predeceased rule has no other legal effect. In other words, determining that someone is deceased for the purposes of inheritance does not affect any other legal provision or right relating to them.

[Mr Djanogly]

I thank my right hon. Friend for setting out that important point. If that were not the case, it could have serious knock-on effects for other cases.

The Law Commission received responses to the consultation paper from 31 individuals and organisations. Those included leading academics in the field of succession law; the Society of Legal Scholars, Property and Trusts Section; a number of individual judges, including Lord Justice Sedley, one of the members of the Court of Appeal who had heard the Re DWS case, whose response wholeheartedly endorsed the Law Commission’s proposed solution; the Association of District Judges; specialist solicitors from leading firms; the Inland Revenue; the Bar Council; the Law Society; and the Chancery Bar Association. Most of the respondents agreed that the current law was unsatisfactory, that in Re DWS (deceased) the grandchild ought to have inherited, and that a “deemed predecease” rule would be the best way of achieving this.

The Chancery Bar Association must, however, be singled out for particular mention. It spotted that there was an analogous, albeit rare, circumstance, elsewhere in the law of intestacy, that should be addressed. This arises from the fact that where a child inherits from a parent or other relative on intestacy, that child’s interest is held “contingently” on the statutory trusts under the intestacy rules.

In July 2005, the Law Commission’s final report, “The Forfeiture Rule and the Law of Succession” was presented to Parliament. The report recommended that a “deemed predecease” solution should apply in three situations. First, where a person disclaims or forfeits the right to inherit from a person who has died intestate, the intestacy rules should then be applied as if the killer had died immediately before the intestate. Secondly, where a person disclaims or forfeits a benefit under a will, the will should be applied as if the killer had died immediately before the testator, unless the will contains a provision to the contrary. Thirdly, where a person loses a benefit under an intestacy by dying unmarried and a minor, but leaves children, the property should devolve as if that person had died immediately before the intestate. The Civil Law Reform Bill incorporated provisions to this effect, subject to minor modifications relating to the role of the public trustee, which for reasons I shall explain, need not concern us now.

I hope this explanation of the genesis of this Bill makes clear the problems that it is trying to address. The overall point is that in the three circumstances identified— forfeiture, disclaimer and the rights of the children of a minor heir on intestacy—the detail of the law does not produce the desired result. The general policy on intestacy is that once the interest of any spouse or civil partner has been satisfied, the property of the deceased should pass to closer blood relatives before more distant ones: the children of the deceased, for example, should be preferred to siblings of the deceased.

Where there is a valid will, the general policy of the law is that the wishes of the testator—the person who made the will—should determine who is to inherit what from the estate of the deceased. That gives effect to the principle of freedom of testamentary disposition, which lies at the heart of our succession law in England and Wales, and which was referred to by my right hon. Friend the Member for East Yorkshire and others.

The effect of the Bill will therefore be to change the law in the three areas mentioned, so that it is consistent with the general policy of the law. First, as was highlighted in the 2001 Court of Appeal decision in Re DWS (deceased), where a person forfeits an inheritance on intestacy because he or she has killed the person from whom he or she would have inherited, his or her children will also be disinherited. The forfeiture rule thereby disinherits not only the criminal but also the innocent grandchildren of the victim.

This problem is not confined to intestacy. For example, where there is a will that contains a gift specifying who is to inherit, if the first named recipient dies before the testator and that recipient forfeits his or her inheritance, the default gift cannot take effect because the recipient is still alive. Similarly, if there is a will giving a gift to a child of the testator without any further provision, the law implies a term that the gift will pass to his or her children if he or she predeceases the testator. If the testator’s child forfeits his inheritance, his or her children—the testator’s grandchildren—will not be able to inherit.

The same problem arises in both testate and intestate successions where the person who would be first entitled disclaims the inheritance. Anyone claiming through him or her will not be able to inherit. Let me explain the term “disclaimer” as that was raised by my right hon. Friend the Member for East Yorkshire, and discussed further by my hon. Friends the Members for Christchurch and for North East Somerset in the context of disclaiming gifts under a will. There was a further question as to why this needed to be done.

A beneficiary is free to accept or disclaim—that is, refuse—a gift that has been left to him or her in a will. The unwanted gift will form part of the testator’s residuary estate—the part of the estate remaining when all the specific gifts have been satisfied— unless, as is less usual, he or she has made a default gift in the event of a disclaimer. If the will does not make provision for the disposal of the estate, it will be distributed according to the intestacy rules.

My hon. Friend the Member for Christchurch went on to ask why that should be the case. Figures are not kept on the number of people who disclaim gifts in wills. However, in its consultation paper, “The Forfeiture Rule and the Law of Succession”—CP No. 172—the Law Commission commented that the usual reasons for disclaimer in will cases will either be to secure beneficial tax consequences or to enable the beneficiary to avoid inheriting onerous property such as a lease with repairing covenants. My hon. Friend then asked whether the disclaimer provision opens the way to evade inheritance tax. The answer is no, because in the example we have before us, the son could achieve the same results as a disclaimer under the Bill by varying the will or the intestacy rules. Deeds of variation can be used to vary the distribution of the estate for inheritance tax or capital gains tax purposes. That is only possible where all the original beneficiaries agree and the tax legislation permits it. These variations will often include disclaimers by some or all of the original beneficiaries, and the Bill simply enables the intended recipient to disclaim without thereby disinheriting anyone entitled to claim through him or her.

My hon. Friend the Member for North East Somerset then asked whether a disclaimer of inheritance can instead take the money and give it away. The answer is yes; the money would then be his or hers to do with as he or she wished, but he or she could not disclaim part of an inheritance, or having disclaimed, specify where the inheritance should go. That is for the deceased to say in a will or the intestacy rules, which act as a deemed will, if I can put it in those terms. So a beneficiary of an intestate estate is free to accept or disclaim the inheritance. When the disclaimer is a child of the deceased, the disclaimed interests passes to the child’s siblings. Clauses 1 and 2 of the Bill address those issues.

There is the rather unusual situation, which was spotted by the Chancery Bar Association—I take my hat off to the assiduous lawyer who noticed this one—in which if a person under the age of 18 who is prospectively entitled to inherit property under the intestacy rules, perhaps from his or her parent, dies before reaching the age of majority, leaving children but without having married or entered a civil partnership, those children cannot inherit in place of their parent. Right hon. and hon. Members used several interesting possibilities to explain how that could be put into practice, but that happens because the parent did not reach the age of majority or marry or form a civil partnership under that age. In more legal language, the parent did not attain a vested interest. That anomalous outcome, rare as it might be, discriminates against those children.

Clause 3 addresses that issue. In all three cases, the Bill would solve the problems by deeming the person who loses the inheritance to have died before the person whose estate is being distributed. That means that on intestacy, the children of the person losing out will be able to inherit under the statutory intestacy rules and, if there is a will, that the actual or deemed wishes of the testator will prevail. In short, the aim of the Bill is to try to ensure that the “right” people inherit. The Government support that aim.

I shall comment on the differences between the Law Commission’s draft Bill, published in 2005, and the equivalent provisions in the draft Civil Law Reform Bill, published in 2009. These issues were raised by my right hon. Friend the Member for Berwick-upon-Tweed, and my hon. Friend the Member for Christchurch touched on them, too. They largely derive from the comments of the Justice Committee and the people who gave evidence to it. Some of the changes are drafting changes, but others were more significant. The question arises of why they should have been left out of the Bill.

Although the Justice Committee welcomed the proposal to ensure that minors who inherit under the provision have their inheritance protected, several criticisms were made of the special trust advice chosen by the Law Commission to achieve that aim. On consideration of the responses to the consultation and the evidence to the Justice Committee, it has become clear that the special trust was unnecessary and would be problematic and expensive to operate. The existing law, which already imposes a trust and gives the court power to appoint alternative trustees and supervise those trusts, gives the property of minors adequate protection. We therefore believe that the Bill meets the concerns of the Justice Committee in that regard.

The Justice Committee welcomed the reforms and reached two conclusions. First, it stated:

“We welcome this clause as ending the current rule which penalises the children or other heirs of a killer who are themselves not only entirely innocent but are the people whom the deceased would probably have wanted to benefit from the estate in any event. We also welcome the proposal to ensure that minors who inherit under this provision have their inheritance protected.”

Secondly, it pointed out:

“We recommend the Government to re-examine the drafting of clauses 15 to 17 in the light of the comments made by the Bar Council and the Law Society. We expect all minors to receive suitable protection under the bill. Equally, we share the Law Society’s concern that nothing be done to impair the validity of existing wills.”

The main difference, however, as my right hon. Friend the Member for Berwick-upon-Tweed pointed out, is that the earlier draft Bills contained specific provisions intended to ensure that in forfeiture cases the criminal was prevented from gaining any benefit from the inheritance that would, under the terms of the draft Bill, pass to his or her children. Those special trust provisions attracted a good deal of criticism from witnesses to the Justice Committee and people who replied to the Ministry of Justice’s consultation on the draft Civil Law Reform Bill.

Two respondents—the Law Society and the Bar—considered that the safeguard provisions were not necessary because legislation already exists that would protect an infant beneficiary’s inheritance in forfeiture cases if such protection were to be needed. Both referred to section 116 of the Senior Courts Act 1981, which provides the court with discretion to pass over any prior claims to a grant and appoint someone else if by reason of any special circumstances it appears necessary or expedient to do so.

The Bar also mentioned section 114(2) of the 1981 Act, which provides that wherever a minority interest arises under a will or on intestacy, a grant should be made to a trust corporation or to two individuals, unless it appears to the court to be expedient that there should be a sole personal representative.

The same two respondents also expressed concern about the limited application of the safeguard provisions, which is restricted to the infant children or more remote issue of the offender, and only then if, as the Bar noted, the infant inherits by virtue of the reform rather than under, for example, a default gift in a will. It considered that there may be cases where court intervention is needed to prevent potential abuse of the inheritance, where those inheriting are infants but are not directly related to the offender.

The Bar also objected to the width of the power of the court to allocate any property in which the infant had an interest to the trust, and it raised a fundamental concern about the workability of the provisions, where both the infant and the disqualified person would inevitably benefit from the trust property—for example, where the former matrimonial home was held under the trust, and the infant and the disqualified person were both living there.

The Bar concluded:

“On balance, we consider the provision”

to safeguard an infant after forfeiture

“to be unhelpful, and likely to lead to increased expense in the administration of estates in circumstances which are bound to be tragic but are otherwise unpredictable.”

The Government have given particularly careful consideration to those comments, which we have discussed with the Law Commission and with Master Winegarten of the chancery division of the High Court, who was very critical of the special trust provisions. We agree with the Justice Committee that minors who inherit should have their inheritance protected and that all minors should have suitable protection under the Bill. However, it is clear from our more detailed consideration of how the special trust provisions would work that they are unnecessary, problematic and expensive to operate.

As my right hon. Friend the Member for Berwick-upon-Tweed pointed out, the Civil Law Reform Bill contained special trust provisions for children. He asked whether this Bill provides protection now that the special trust provisions have been taken out, an issue which I have dealt with. In our view, the existing law, which already imposes a trust to the benefit of minor children and gives the court power to supervise the administration of estates, gives effective and adequate protection.

[Sir Alan Beith]

My hon. Friend is giving a detailed analysis and providing fairly compelling reasons why the specific provisions involve many problems. However, it is not only the protection of the minor’s inheritance that is at stake, but the maintenance of the principle that the person who has carried out the murder should not benefit from that murder, which might happen indirectly.

[Mr Djanogly]

I take my right hon. Friend’s point. As we have discussed, I agree that there is the technical possibility of the murderer taking advantage, but it is far fetched. Indeed, my right hon. Friend has mentioned that that assumes that the murderer had a solid knowledge of the laws of succession, which would include the certain knowledge that they would spend many years in prison. As my right hon. Friend the Member for East Yorkshire pointed out, the Bill does not affect the forfeiture rule. In the light of the responses to the consultations by the Law Commission and the Ministry of Justice and the pre-legislative scrutiny by the Justice Committee of all those proposals, we do not believe that allowing a killer’s children to inherit from the victim will encourage people to kill.

[Sir Alan Beith]

My hon. Friend has misunderstood my point, which does not concern the absurd issue of deterrence. Someone who has committed a murder—they may even be in prison—may be able to evade financial responsibilities as a result of the provisions. It is not far fetched that those who have committed murder would seek to gain some benefit from the money that would rightly pass to their children under such provisions.

[Mr Djanogly]

I thank my right hon. Friend for making that clear.

The Law Society also made an important point about the wording of the provisions in new section 33A(2) of the Wills Act 1837, which would be inserted by clause 2(1) of the Bill. Earlier draft Bills provided that where a person disclaims, or is disqualified by the operation of the forfeiture rule from inheriting under the deceased person’s will, the will is to be construed as if that person had died immediately before the deceased, save in so far as there is any provision in the will about how the devise or bequest is to take effect. The Law Society thought that this “any provision” test was more demanding than the “unless a contrary intention appears by the will” test in other related statutory provisions, and the Bill now follows those other provisions. We hope that will provide consistency and simplicity.

We welcome my right hon. Friend the Member for East Yorkshire’s decision to make the Bill consistent with the Wills Act and I should add, for completeness, that the Law Commission is content with the Bill in its present form. We are very grateful to the Justice Committee and its witnesses, particularly the Bar and the Law Society, for drawing attention to these matters. The approach in the Bill is the right one. This is a small but worthwhile piece of technical law reform produced by the Law Commission. I applaud my right hon. Friend for taking up this serious topic and I wish the Bill a fair passage through this House and the other place.