Family Courts

Lord Beith Excerpts

Thursday 24th May 2012 Westminster Hall

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

It is a pleasure to serve under your chairmanship, Mrs Osborne.

Few though we are in number today—it is the last day of term and there is a debate under way in the main Chamber at the same time—we are here to consider the report that the Select Committee on Justice published in June 2011, and to hear an update from the Minister, who I am glad to see in his place. The Committee’s report, “Operation of the Family Courts”, followed the publication of the family justice review’s interim report that rejected the introduction of a shared parenting presumption; proposed a legislative statement reinforcing the importance of the child having a meaningful relationship with both parents; recommended a new statutory time limit of six months in care and supervision cases; and proposed a fundamental restructuring of the family court system through the creation of a family justice service.

The Justice Committee broadly welcomed the review’s approach, although we remained neutral on the creation of a family justice service, because at that stage the evidence of how it would be constructed was limited. The Norgrove review final report was published in November 2011, and the Government’s response to it was published in February 2012. All three—the Norgrove review, the Justice Committee and the Government—considered a number of main themes: the underpinning principles, including shared parenting if it is a relevant concept; the use and promotion of mediation; the Children and Family Court Advisory and Support Service; the family court system; the use of expert witnesses; and media access to family court hearings. I will deal with them in that order.

This is a timely debate, because on 9 May, the Government announced their intention to introduce a children and families Bill in early 2013. There will be an opportunity for the Committee to undertake pre-legislative scrutiny of draft clauses before the formal introduction of the Bill. If the state in the form of the judiciary— the court system—is going to intervene in family relationships, or if the state in the form of the protection authorities is going to do so, it must promote and protect children’s safety and well-being. The family justice system considers cases ranging from the separation of a couple where the unresolved issues may be financial, to public law cases that may involve physical, sexual or emotional child abuse. In the most serious cases, a child’s life may be at risk, as we know from some chilling cases in the past few years.

In March 2010, there were 46,709 children on the child protection register because they were thought to be at risk of abuse or neglect. Private law actions deal with the consequences of relationship breakdown. Public law actions are brought by local authorities for child protection purposes. Both types of case can involve highly contested views and a great deal of emotion that is difficult to channel in the courtroom and which often makes the judicial procedures seem remote from, or inappropriate to, the circumstances being dealt with. The Ministry’s judicial and court statistics tell us that in 2009 there were 163,000 court cases involving children, of which 137,000—I am rounding the figures—were private law cases and approximately 26,000 were public law cases. We received evidence about both kinds of case.

Throughout our inquiry, the Committee found it difficult to form a clear picture of trends and changes in the family justice system because of flaws in the compilation of data. We recommended the creation of a robust evidence base for the formation and scrutiny of policy. The Committee is concerned that major changes to the system are being undertaken when there have been such gaps in the evidence base. I know that Ministers and the permanent secretary—we congratulate him on his forthcoming appointment as head of the European Bank for Reconstruction and Development—have sought to improve the quality of financial and outcome data in the Ministry of Justice. This is a major issue in the Ministry of Justice and it is being addressed, but we felt that in this area, as in others, the evidence base was not there for some of the conclusions that were being drawn. We asked the Government to report back to us, which they did to some extent in their response to the Norgrove review. Indeed, they commissioned work from one of our special advisers, Professor Judith Masson. However, this issue needs to be watched carefully and we will do so.

On the underpinning principles, the Children Act 1989 introduced three principles: the child’s welfare shall be the court’s paramount consideration; parents share not rights, but responsibilities; and in any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child. The evidence before the Committee showed that courts rarely deny contact between child and parent. The majority of applications resulting in no contact are applications that have been abandoned by the applicant parent. This is an emotive issue that has led to some intensive campaigning—some of which has been proper; some rather less commendable in its methods—on important issues.

[Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC)]

I congratulate the right hon. Gentleman on the contents of the report. As a member of the Justice Committee, I am aware of his wise counsel to all of us in the preparation of the report. Does he share my concern that the concept of shared parenting is gaining traction in government, particularly as we have seen international comparators—Australia is one such country—where it had been tried and failed abjectly? Its adoption would surely undermine the paramountcy principle to which the right hon. Gentleman referred.

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[Sir Alan Beith]

The right hon. Gentleman, who is an extremely valued member of the Justice Committee, anticipates what I am going to say. He is right to say that we looked at evidence from Australia and were very concerned by what it showed. To us it seemed obvious that a court would realise, without having to be told, that it is in the interest of the child, as far as possible, to maintain a relationship with both parents. Once some kind of shared parenting provision is embodied, we are moving away from the principle that the court starts with—that the welfare of the child is of paramount consideration. Paramountcy does not sit easily with additional presumptions or additional qualifications, and the Australian experience underlined that. Our report states:

“The Panel itself admits that such a statement is not intended to change the law but believes it could ‘guide’ parents who are splitting up. In our view it is obvious to the court that a child deserves a loving, caring relationship with both his or her mother and father. A statement which might be taken to qualify the principle that the best interests of the child must prevail could give the impression of a change in the law and could cause confusion.”

We referred to the evidence from Australia that

“the ‘shared parenting’ approach had not only confused parties about how the “best interests of the child” test should operate, but can encourage a more litigious approach by parents in private law cases. This is in direct opposition to the greater emphasis on mediation and out-of-court agreement…which both the Government and the Family Justice Panel are pursuing.”

The shared parenting presumption would be a dangerous road to go down. It would be a legal requirement for the courts to consider making orders for children to spend equal or substantial and significant time with each parent, unless that is not in the child’s best interests or reasonably practicable. Doing that would further extend the present profoundly unsatisfactory situation in which a court tries to decide whether a child should be with one or other parent on the Friday night, or whether the child is free to make their own choice to go to scouts or guides, or to a youth group in a different town from the one they are being told to go to. That would become much worse if the shared parenting principle were applied.

The alternative gaining some traction in government, as the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd) said—it varies depending on which bit of Government you inquire of: that is not a statement about parties; it is a statement about individuals—is a legislative statement enshrined in legislation, reinforcing the importance of the child having a meaningful relationship with both parents, alongside the need to protect the child from harm. However, that undermines the paramountcy of the interests of the child.

When we considered the Australian experience in more detail, we found that it was mirrored by some evidence from home, which showed that the England and Wales court system does not always ensure that judges have relevant evidence in front of them relating to safety fears and violence towards a child or partner, or even relating to proceedings in another court, such as non-molestation orders or criminal proceedings, and that judges may not give appropriate weight to such evidence. Research shows that high levels of domestic violence exist in private law cases that reach court, and it is in such cases that the legislative statement is likely to have an impact.

In Australia, the presumption caused confusion and was misunderstood as mandating or entitling parents to shared care—it did not do that, but it was misunderstood as doing so by quite a lot of people—and caused concern that the child’s interests were not considered to the extent that they should be and were not paramount. In some cases, the presumption seemed to lead to parents being less willing to negotiate and resolve arguments over child contact outside the court.

We concluded that the child’s well-being must be the paramount aim and objective of the family courts and the “best interests of the child” test should remain the sole test. The Norgrove review came to the same conclusions. Because different people interpret shared parenting differently, legislating for it gives the impression of parental rights to a particular amount of time with a child and takes away the focus from the child’s well-being—the child’s rights.

We disagreed with the proposal for the legislative statement in the Norgrove review’s interim report, but paragraph 61 of the Government response says that there

“should be a legislative statement of the importance of children having an ongoing relationship with both their parents…where that is safe, and in the child’s best interests.”

The Government state that they are

“mindful of the lessons which must be learnt from the Australian experience”

and their stated aim is that the

“presumption of shared parenting will…enhance the prospect of an agreement between parents”.

The Government stated that the legislative statement will not disturb the “best interests of the child” test. It is unclear to the Committee how this can be achieved. I remain concerned that the introduction of a statement will lead to confusion and would take greater prominence than the current best interests tests.

We share the Government’s concern about early intervention, which is another important issue, not only in relation to our specific work on family justice, but much more generally, because the circumstances in which children and young people become involved in offending behaviour can develop as a result of many public and private law cases, so there is massive public interest in trying to ensure that the right advice gets to the right people at the right time.

We mentioned the signposting of advice and contact opportunities and said:

“There is no point in referring parents to services which have no capacity to cope with additional demand. However, we know that resources are scarce and that it is unrealistic to make demands for widespread increased Government spending in the current climate.”

We noted the Government’s ideas about the big society bank, or Big Society Capital as it is now called, as

“a potential source of capital for charities”

and called on them

“to confirm that such bodies which provide early intervention for families which need assistance would…be eligible for such capital”.

That related to a previous Committee report on justice reinvestment, which made the case for more funding to be spent on early intervention, with eventual consequential reductions in expensive prison places. We cannot go on as a society pouring money into an ever-expanding prison system. We would be much more likely to reduce crime if we used some of those resources at the stages that we are talking about here, when family breakdown takes place. I think the Government agree with us in principle and I should like to hear that they are making progress.

Courts are unsuited to resolving the kinds of highly emotive disputes that can arise in family cases and there are circumstances in which the authority of the court to resolve the dispute is rarely recognised by both parties. Such cases are charged with emotion and mistrust. Mediation is a better route to follow in a large proportion of cases. There is clear evidence that mediation can be effective, with a high proportion of parties reaching agreement or narrowing the issues in dispute. There will always be a hard core of cases where mediation is not appropriate and provision must be maintained for these.

I welcome the Norgrove review recommendation that mediators should meet the current requirements set by the Legal Services Commission. However, in the mediation process it is vital that the Government should ensure that the voice of the child is heard. The child is not a commodity to be negotiated over, as in a property case, but the person to whom the proceedings are most important. We look to the Government to ensure that mediators understand that and exercise that responsibility.

There is a history to our consideration of CAFCASS. The severe but necessary criticisms of CAFCASS by our predecessor Committee, as long ago as 2003, led to the resignation or removal of the entire board. In our recent report, we called on the family justice review to address directly the future structure of CAFCASS. I welcome the recommendation that CAFCASS be made part of the proposed new family justice service. We said that that would be a first step, but only a first step; in itself, it will not be enough:

“It needs to be the first step in a series of reforms designed to transform Cafcass into a less process-driven, more child-focused, and integral part of the family justice system.”

We recognise that CAFCASS operates within a cash-limited system, but it has to be able to deliver a timely, consistent service to all children—regardless of changes in the volume of cases, over which it does not have control. We welcomed CAFCASS’s recent progress in reducing the number of unallocated cases. We shared the Public Accounts Committee’s concerns about CAFCASS’s ability to sustain its progress when there was no sign of a future fall in the number of care applications. We were concerned to ensure that CAFCASS became refocused on the best interests of the child. There needs to be a safe minimum level of service during this period of difficulty when there is an increased number of cases.

We were concerned about the amount of time that CAFCASS officers spend with children, which we felt was too low—unacceptably low—in the longer term. CAFCASS officers agree with us; they want to spend more time with children, and this should be facilitated. That is consistent with what the Government are trying to do about giving police officers and other professional public servants time to do the job.

The Government intend to transfer the sponsorship of CAFCASS from the Department for Education to the Ministry of Justice. That has been out of our terms of reference for a while; when our predecessor Committee reported on it, it was a Lord Chancellor’s Department function, then it went off to the Department for Children, Schools and Families. The Government now propose to return it, which is logical, because CAFCASS’s work is close to the courts and it ought to be an integral part of the family justice system, with a strong voice within that system to champion children in the courts. However, I am afraid that the history of CAFCASS is one of inadequacy. It must continue to improve and be seen to improve by participants.

I turn now to delays in case management in the family court system. Delay, to a child, has massive consequences. Two parties to a commercial dispute may be inconvenienced by delay, but a child whose case waits for months or years is losing crucial years of contact, bonding and personal development—all the things that we take for granted, but which are completely disrupted by delay.

Delay is endemic and rising. The average case took 53 weeks in 2010, although the Children Act target is 12 weeks. The Norgrove review suggests that the average case took 60 weeks. Witnesses suggested to the Committee various causes of delay, including fixed and limited resources—not just financial resources, but sitting days available to use courts for family court business, for example, as Mr Justice Ryder mentioned—the slow speed of CAFCASS reports, which the National Society for the Prevention of Cruelty to Children told us about, along with insufficient numbers of experts of sufficient quality. I shall return to the issue of experts.

Other causes of delay were variations in the quality of case management by the judiciary, to which Sir Nicholas Wall referred, and a lack of trust between social workers, the judiciary, CAFCASS and the parties, leading to repeated adjournments to seek further evidence, to which the Public Accounts Committee referred in its report. Barnardo’s, commenting on public law cases, told us that the impact of delay on children’s ability to form relationships was harmful and long-term:

“Two months of delay in making decisions in the best interest of a child equates to one per cent of childhood that cannot be restored”.

The potential outcome of cases can be prejudiced. The opportunity to have an outcome that is in the best interests of the child is often lost by delay. By the end of the process, options that might have been available are no longer available, and are thought by the courts to be no longer available, perhaps because of the time that has elapsed since the child has had contact with one of the partners. That is a profoundly unsatisfactory state of affairs. The Norgrove review recommended the introduction of a statutory six-month time limit for the completion of care cases, which I understand the Government support. I welcome the intention, but will it happen? Is it enforceable? I would like to hear the Government’s thinking.

A related topic is judicial continuity—the same judge. Having the same judge manage and hear a case not only allows for effective case management and efficient use of judicial time, but is an important signal to parties, above all to the children, that their case is being treated with the respect that they deserve; they can establish more clearly who the authority figure in the situation is. We welcome the president of the family division’s recognition of the issue and his willingness to reconsider how things are often dealt with at the moment.

On litigants in person, the Ministry of Justice told us that the number of unrepresented litigants in the family courts was “significant” but it did not know how many—to go back to the issue of data, which I mentioned earlier. During the course of our inquiry, the Government consulted on and legislated on legal aid for family law cases, ending it except for those involving domestic violence—in certain limited categories—or if mediation was to be facilitated. The Ministry estimated that at least 210,000 cases would no longer be eligible for legal aid, such as cases in which the presence of legal aid on one side created an inequality between the parties, and they may include cases that do not involve children.

The Government believe that the removal of legal aid will force more litigants into alternative dispute resolution, which some people will no doubt use—I certainly hope so—but it is inevitable that the number of litigants in person will increase. It is self-evident that many parents are unlikely to give up applications for contact, residence or maintenance simply because they have no access to public funding.

[Mr Llwyd]

The point touched on by the right hon. Gentleman was reinforced by Sir Nicholas Wall, the president of the family division, who said that parents were not likely to pack up simply because they do not have legal aid. I did a full residence and contact case two years ago in which, at the last minute, the applicant sacked his solicitors and appeared in person. The hearing was down for three days but lasted seven. That, I am afraid, is a typical story and any reform of the family courts not predicated on that very fact will be utterly unworkable.

Finally, I apologise to the right hon. Gentleman, to you, Mrs Osborne, and to both Front Benchers that I shall not be present at the conclusion of the debate, because I must leave shortly. I am pleased to have made a brief contribution.

[Sir Alan Beith]

The right hon. Gentleman has already told me about the event he has this evening, which I understand that he must attend, so I fully accept his apology. He brings considerable court experience to our proceedings, as is evident from his interventions. He is right that in some cases the litigant in person is difficult and does not fit easily with courts. The very fact that that was someone who had legal advice and then sacked the legal advisers illustrates the kind of problems with litigants in person often seen by the courts.

I fully recognise the difficulty, but we must ask to what extent the ordinary taxpayer, going about his or her life in an economical and sensible way, should fund the legal proceedings of those who choose to do battle in the courts over separation, divorce and financial settlement. The state must get involved if the interests of the children require it—that is part of what I am saying—but neither I nor, I think, the Committee as a whole believe that we can write a blank cheque for a system of legal representation that is not in practice the best way to resolve a large number of the cases. Legal aid is necessary in some difficult cases, but I look on the situation as a non-lawyer and I see a lot of money being spent to hire two people to argue for a long time over the affairs of a child who seems distant and removed from the proceedings.

The right hon. Gentleman is right that non-lawyers accessing the family courts can find the process confusing, frustrating and baffling, and we welcome the Government review of the available support system. The courts will need to become more attuned to dealing with parties representing themselves and to develop clearer procedures and guidance. A heavy responsibility rests on the court system—not only the family courts—to facilitate that.

I turn to the use of expert witnesses. A fairly commonly held view is that many cases have too many expert reports. We noted the Minister’s comments that greater use could be made of non-expert witnesses, such as foster carers—although they have a distinct role and can provide valuable information—but in some cases there is a genuine need for expertise.

The Norgrove review recommended that expert evidence should be used only when that information was not available and could not properly be made available from the parties already involved. The review also recommended making judges responsible for instructing expert witnesses, rather than legal advisers, in order to control the scope of questions and, further, that agreed quality standards for experts in the family courts should be developed, with criteria including adherence to set time scales, membership of appropriate professional bodies and completion of specified court-focused training, peer review and continuing professional development. I understand that the Government agree with those recommendations, and so do I; perhaps the Minister can confirm how the Government will proceed.

On the access of the media to family court hearings, the witnesses who appeared before our Committee were unanimous in opposing implementation of the scheme legislated for in part 2 of the Children, Schools and Families Act 2010. There are clearly dangers to justice and to the perception of justice when courts operate in secret. The aim of ensuring that secrecy does not cause injustice or the perception of injustice to children is important, but the Act was not well thought through and went through Parliament in some haste, so there was a failure to take account of the views of children. I speak as someone who wanted more openness in the family courts.

Research shows that a clear majority of children are opposed to any details of their case being reported. Children fear being identified and bullied, and consider the details of their families and the ordeals that they have undergone to be private. Children must not be inhibited from giving vital information to family justice professionals for fear of being reported by the media. I therefore support the decision not to proceed with that piece of legislation, but that does not preclude anonymous judgments and must not be allowed to conceal from wider scrutiny the principles on which decisions are taken in the family courts or to cover up systemic failures on the part of public authorities. I welcome the Government’s acknowledgment that the current legislation is flawed, but the Ministry of Justice must try again.

Those are some of the issues brought out in our report, which are important as we proceed with the reform of the family courts, consistent with the Secretary of State’s broad objectives to make the courts serve their customers properly. Our recommendations need to be dealt with in order to have a family court system that serves the most important customer best.

The most important customer of the family court system is the child, who is either the subject of public law proceedings and may be taken away from their family—perhaps for a good reason, perhaps for a less compelling reason—or is in a family that is breaking up. The child’s complex interests and development may be profoundly affected and set back by wrong decisions and by slow and delaying processes in which they are not heard. Those are difficult challenges, but we must get them right—not only because we owe that to children, but because the future health of our society depends on getting them right.

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[Mr Djanogly]

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

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

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

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

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

[Sir Alan Beith]

rose—

[Mr Djanogly]

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

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[Sir Alan Beith]

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

[Mr Djanogly]

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

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

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

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

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

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

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

Oral Answers to Questions

Lord Beith Excerpts

Tuesday 15th May 2012 Commons Chamber

[Mr Blunt]

I am grateful to the hon. Lady for her question. I do not know the precise answer and suspect that it would be difficult to get the precise data to analyse the problem. There is such a problem, not least with sex offenders, who are often reluctant to engage with the system and often protest their innocence when they are not innocent. It is a problem to get such people to engage with offender behaviour programmes. The hon. Lady is right that there is a class of prisoner who does not engage in that way, rightly or wrongly, and who presents the system with particular problems. I will follow up that matter.

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

Presuming that, even under the prescription of my hon. Friend the Member for Shipley (Philip Davies), most prisoners will eventually be released, is there not a danger that putting massive expenditure into an ever-increasing prison population would mean cutting expenditure to ensure that when people are released, they do not commit more crimes?

Transparency and Consistency of Sentencing

Lord Beith Excerpts

Thursday 2nd February 2012 Commons Chamber

[Mr Clarke]

I do not disagree. I have always held up the arrangement at Peterborough prison as a model of where we want to go. It is exactly what I wish to encourage. People are imprisoned, first, because they have to make their reparations to the public and be punished for what they have done but, as my hon. Friend has rightly said, there is now an extremely interesting situation in place where attempts to start reforming criminals start in the prison and are followed through outside by St Giles Trust, which is the partner of the private sector managers of the prison. We hope to replicate that pilot across the country, which is an example of where we ought to go. People get the punishment first and then proper efforts to stop them offending when they are released.

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

To pursue that point further, is it not the case that if we have a system that faces constant increases in numbers, overcrowding and prisoners being moved around in order to accommodate the problems that the system faces, we will not get sentence planning, the careful structuring of sentences or measures to prevent reoffending, which are needed.

[Mr Clarke]

I entirely agree with the right hon. Gentleman. Indeed, that problem has constantly recurred with the extraordinary explosion in the number of people in prison in recent years.

As I have said, I am not saying that everything is perfect in the wider criminal justice system. I freely acknowledge that reporting and public understanding of our system is far from ideal, which is one reason why the coalition Government have a far-reaching programme of criminal justice reform as well as measures to promote transparency and public understanding. However, we should not muddle the problems of an overly complex body of law, which is too rarely reported accurately, with the rules governing how our judiciary apply the law in particular cases.

For the avoidance of doubt, it is worth saying that although the Sentencing Council is a recent innovation, the approach that it embodies is not new. Sentencing has operated in England and Wales for more than 100 years under broadly the same well-established constitutional settlement, in which Parliament sets the overarching legislative framework within which courts sentence, including the maximum penalty and, for some offences of particular public concern, the minimum penalty available to the courts. The role of independent judges is to work within that framework.

Since 2010, the Sentencing Council and its predecessor, the Sentencing Guidelines Council which was created in 2005, have provided courts with a decision-making process to assess the harm that offences cause to victims and communities, suggesting common starting points and ranges, and highlighting aggravating factors. The Sentencing Council has not fundamentally changed the basic division of responsibilities or the balance of power between Parliament, Government and the judiciary. Before the previous Government created the Sentencing Council, the Court of Appeal carried out this function. Its criminal division gave guidance to courts when it thought that discrepancies were beginning to occur. The Court of Appeal has not lost that power entirely and still gives guidance when it feels it necessary. However, the council now provides the great majority of such support to the courts.

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[Sir Alan Beith]

Is the hon. Gentleman making a commitment that a future Labour Government—if there were such a thing—would increase expenditure on policing by 20% and expenditure on justice by a similar amount?

[Mr Slaughter]

I do not know whether the right hon. Gentleman is committing himself to the coalition in perpetuity in making those comments, but he knows the answer to his question, because the shadow Home Secretary set it out very clearly. We would have made cuts, but we would not have made 20% cuts, and we would not have made the cuts in front-line police officer numbers that are happening everywhere, but particularly, as I can attest, in London.

We need options for judges; we need prison places, which, as we know, are already at crisis level; and we need community sentencing. Every probation service and YOT can name at least one community sentencing project that has had to shut down in the face of cuts, and that is without looking at the cuts in youth services that divert young people away from crime and anti-social behaviour.

The Secretary of State and his Ministers talk a lot about restorative justice, and we have heard about it today. Restorative justice can indeed be transformative justice. As compared with control groups, those sentenced to restorative justice see falls of between 10% and 50% in reoffending. However, despite its success in Northern Ireland, the Government will not resource restorative justice conferencing.

The Opposition support effective alternatives to custody, but where are they? If magistrates and judges do not have the option of, or the confidence in, community punishment, they will be forced to impose custodial sentences. Cutting probation service, YOT and community justice budgets to the extent, and at the speed, that this Government are doing will fatally undermine their plan to reduce detention numbers.

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

I was going to begin by complimenting the previous Government on setting up the Sentencing Council, but given that the Labour spokesman devoted his final paragraph to the cuts, I have to say, before turning to the work of the Justice Committee, that since the Labour party envisages cuts on a similar scale to the Government’s—they might be slightly smaller, but spread over a longer period—we are all talking about the same amount of money. Were there a realistic prospect of removing from the Ministry of Justice the obligation to make significant cuts in expenditure, we could all think of ways of spending the money, but any party confronted with office now would have the problem of funding desirable things out of a shrinking resource of public expenditure. If we can all be realistic about that, we may be able to make more progress on those things that we agree on.

One of the things that we seem to agree on is that the Sentencing Council is a valuable body. The Justice Committee has a statutory role in being consulted on the council’s proposals, as has happened in several cases—a couple of reports are on the Order Paper today, one relating to drugs and burglary and the other relating to assault. Our normal practice is to take detailed evidence, after which I normally write to the chairman of the council, Lord Justice Leveson, on behalf of the Committee, and we publish the letter along with the evidence that we have received. I strongly recommend that Members concerned about the council read the evidence from representatives of bodies such as Victim Support and others who come to hearings and give their views about the impact of sentences and about what they think is appropriate.

We believe that the system works well but faces serious inherent difficulties. On the evidence base, we have drawn attention to a fundamental absence of sufficient empirical evidence on which to base decisions on guidelines—for example, those relating to the cost and effectiveness of specific sentences. This is a general problem for those in the judiciary, be they judges or magistrates. Rarely do they get much evidence on the effectiveness of sentences, still less on the effect of sentences on individuals—unless of course they see the same individuals coming back again and again, having committed further offences. We need to ensure that we have the empirical evidence to provide a realistic basis for decisions about appropriate sentences.

Another problem has been mentioned today: the need to produce guidelines which the general public can understand and which are not simply lawyers talking to lawyers—that was an expression that Javed Khan of Victim Support used in evidence to the Committee. There is a tension between providing guidelines that are reliable and soundly worded—for legal purposes—and enabling the public to understand what the Sentencing Council is doing. It is a challenging task, the importance of which we have drawn to Lord Leveson’s attention. We also encourage Lord Leveson’s efforts in matters of public awareness, to increase public understanding of sentencing and work more effectively with the media, a role that the judiciary did not want to undertake in earlier times, for understandable reasons, but which is now much more widely recognised to be important.

Having referred to the work that we do on the Sentencing Council, I want to address what the purposes of sentencing are. The first purpose in my view—this view is generally shared across the Committee—is public safety and the maintenance of law and order. Therefore, there are people who have to be sent to prison, in some cases for very long periods, because they represent a serious danger to public safety and there is no obvious way of reducing that danger while they are at large. Prison therefore has an important part to play in the system. However, public safety also requires that sentences be imposed that are most likely to prevent further offences and the creation of further victims. The vast majority of people who are sentenced in court will come out again—whether after a short sentence or after a longer sentence—committing further offences and still representing a potential danger to our constituents. In many cases, they will have committed offences for which it would not be reasonable, by comparison with more serious offences, to impose very long sentences; therefore, we have to accept the reality. People will come out of prison, and at the moment, far too many of them come out and commit further offences—often repeat offences—over a number of years, which creates more victims.

[Mr Stewart Jackson]

The right hon. Gentleman is making a reasoned and moderate contribution, if I may say so. Indeed, he certainly takes a more robust view than many in his party. However, what would he say to the family of my constituent, John Hutchinson, who on 31 October was attacked by a group of feral teenagers, one of whom has subsequently been sentenced to a nine-month referral order, which is effectively a glorified contract promising to be good? My constituent is now having to leave his home and go into institutionalised care. Where is the faith and trust of my constituents in the criminal justice system when such an incident happens, and when they know that that individual is likely to go out and commit further crimes in future?

[Sir Alan Beith]

The hon. Gentleman’s constituent has obviously had a terrible experience, but we should all resist the temptation, in this place and elsewhere, to comment on particular sentences when we do not know all the circumstances in which they were given. If the sentence in a particular case is not appropriate, the Attorney-General has the power to return to the courts and seek a longer sentence, a point that the Lord Chancellor made earlier.

The second purpose of sentencing is deterrence, but the effectiveness of deterrence is often exaggerated. The fact is that when they commit offences, most criminals, first, think that they will not be caught and, secondly, do not have much idea what the sentence will be if they are. Therefore, sentencing is not usually a matter that is firmly in criminals’ minds when they commit offences in the first place. There are many circumstances where the function of deterrence in sentencing is exaggerated. It is there, and it has a role to play. For example, after the public disorder last summer, there was a legitimate reason to believe that unless we made people realise that the offence of theft in the context of public disorder would be treated very seriously, there might be a failure to understand how the courts were going to deal with such matters. There was a deterrence aspect in that case, but there are many offences where deterrence plays no role at all, even though it is one of the legitimate purposes of sentencing.

That brings me to the third purpose of sentencing, which is punishment. Punishment is a wide concept, because it involves the community declaring that it rejects and abhors crime with all its harmful effects. We sometimes fail to understand that purpose of sentencing. One reason why people react as they might have done on reading in the newspaper about the case that the hon. Member for Peterborough (Mr Jackson) raised a moment ago is that they think the court has not demonstrated how seriously the community takes a crime of that kind.

[Sarah Newton (Truro and Falmouth) (Con)]

I could not agree with my right hon. Friend more. Does he agree that the Legal Aid, Sentencing and Punishment of Offenders Bill, which is currently in the other place, firmly demonstrates the Government’s commitment to that principle in relation to the crimes of sexual exploitation and paedophilia, by clearly saying that two thirds of a sentence must be served and that if somebody goes on to perpetrate another horrendous crime of that nature, they should receive a life sentence?

[Sir Alan Beith]

Yes, but there is also a public safety aspect to the kind of cases that the hon. Lady has described, in that they may involve criminals where the likelihood of their not reoffending is very low and where long, determinate sentences are therefore appropriate. However, the problem with this very necessary part of sentencing is that it can lead to a tension between society declaring very clearly that it will not put up with something and what would be likely to lead to that person not reoffending—I am not thinking of the kind of case to which she has just referred, but a much broader range of crimes.

Understandably, the public read about crimes and compare how different ones are treated by the courts; indeed, we all do that. We want to be sure that the worst crimes are taken the most seriously. Prompted by media reports in particular, the relative seriousness issue tends to be judged according to whether a sentence is a prison sentence and how long it is. Such sentences might not be the right answer for every case, however. The likelihood of reoffending could be greatly reduced in some cases by tackling a drug or alcohol problem, for example. If that is not done, it does not matter how long the person is kept in prison, because they will commit further offences when they come out, fuelled by their problem. The judiciary therefore has to bear in mind all the purposes of sentencing. Considerations of public safety, deterrence and punishment must all inform each decision.

In the light of those principles, we should also consider how the judicial processes work. We want them to enable the most effective sentences to be available and to be applied. As I mentioned earlier in a different context, however, we have a weak evidence base for allowing the judiciary to determine whether sentences have been effective. Few judges are able to tell how the sentences that they have passed have worked out in practice, or whether they have had the desired effect. The exceptions are those cases in which an offender comes back before the court. We need to deal with that evidence problem.

We have also seen a lack of effective management of sentencing and post-release provisions. The Government have set about improving that situation, and the Committee very much welcomes that. We have discussed in some detail the payment by results model and other ways in which the Government have sought to ensure that people coming out of prison have access to provisions that actually work. We cannot achieve that, however, if our prison system is in turmoil. A system in which people are simply shunted around in order to create spaces for other prisoners is the enemy of effective sentence management.

There is an institutional bias in the system in favour of the use of custody, regardless of whether it is the best option. If a judge or magistrate passes a community sentence, the first question has to be, “Are the necessary facilities available in this area?” That applies to residential provision for tackling a drug problem and to the various kinds of community disposal. We have to ask what is available. If a custodial sentence is passed, however, the prison van rolls up outside and the prisoner is taken away. The judiciary can be confident that that will happen, although it might not know where the prison place will be found. The system will find a place somewhere, however, and there is an institutional bias in the system in favour of such disposals.

Custodial sentences and non-custodial sentences are commissioned by different people. The commissioning of custodial sentences is a national function, carried out by the National Offender Management Service largely on a national basis. There is an attempt to provide prison places locally, but in practice, prisoners are often circulated and shunted around. Non-custodial sentences are commissioned much more locally. In the case of youth custody, we have seen how much more effective the process can be when it is handled locally. My Committee has regularly sought to interest this Government and their predecessor in the idea of more local commissioning of custodial and non-custodial disposals, so that a balance can be struck more locally. Clearly, there will still be a need for responsibility to be taken at national level for high-security prisons and other specialised services, but local commissioners could buy into that provision. In many areas, including the health service, this Government and the previous one have seen the value of a separation between commission and provision, and it seems strange that that is still not fully appreciated within the Ministry of Justice.

I want to refer to one of our Committee’s earlier reports, “Cutting crime: the case for justice reinvestment”, which was published not long before the general election in 2010. It was very well received and is still much quoted, which we find gratifying. The report identified a never-ending cycle of spending money on the punishment of offenders whose crimes we ought to have been able to prevent from happening in the first place. If we had spent the same amount of money on diverting young people away from criminality into positive activity, on education, particularly for those whom the education system has failed, on intervention to deal with problem families and on very early intervention for young children, we could have prevented some of the crimes. Instead, we are spending money on incarcerating the people who committed them.

I very much welcome what the Government are doing—particularly on the latter two issues I have mentioned thanks to the efforts of the Minister of State, Department for Education, my hon. Friend the Member for Brent Central (Sarah Teather)—in insisting that even in these straitened times, we must find money for early intervention and early access to education, especially for those in deprived circumstances. I welcome that commitment.

The theme of our report, which has sadly been overtaken in this respect by the circumstances in which we now find ourselves, was that there should be a real resources shift from the custodial system into crime prevention. On this issue, people often say, “You can’t do that because the crime has happened,” but if we do not start in some way to inject and invest money at the stages where people’s propensity to commit crimes begins, we will continue to have to spend more and more money dealing with the consequences of crime.

We had, of course, hoped that financial circumstances might allow the money to start that process moving to come from elsewhere, but they have not allowed that— except to the limited extent to which the Government have been able to invest in early years education. The Ministry of Justice has thus had to find from within its own budget money to spend on more preventive measures. It is not just a matter for the Ministry of Justice, because it also involves the Department for Education, the Department of Health and a whole series of Departments whose expenditure decisions will determine whether some of our constituents are victims of crime in the future. Only to the extent that they divert those most likely to commit crimes away from that course will we achieve the purpose of preventing crime and promoting public safety.

The purpose of the sentencing system, as viewed here from the perspective of parliamentarians, must surely be the protection of our constituents—keeping our constituents safe. We should spend public money on sentences that cut crime rather than on the grim and often devastating consequences of crime. That is the principle towards which I believe all Governments should work, and I hope that this Government will work towards it.

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[Philip Davies (Shipley) (Con)]

These debates on criminal justice matters always resemble a lawyers’ dinner party; it is all very fascinating, but I am not sure that most of my constituents will be entirely impressed with the conclusions drawn from a lawyers’ dinner party. Once again, we have a cosy consensus in this place, and that usually precedes a disaster in public policy. There was the exchange rate mechanism, which all the parties fell over themselves to agree with, and which was, of course, an unmitigated disaster; and the Child Support Agency, which all parties thought was absolutely marvellous, but which, again, ended up a complete disaster. Today, all three parties are falling over themselves to agree on the merits of sending ever fewer people to prison. Once again, we face consensus, which is a disaster.

I am sometimes misunderstood, so I should say at the start that I think the Secretary of State for Justice is a great man. He would be a greater man, however, if he was in charge of a different Department. That should not be misconstrued as my lobbying for him to become the Minister for Europe, by the way, but I do think his talents would be better used in another Department.

We have had a sterile debate on this issue for far too long. I believe that the first duty of any Government is to protect the public. There has been a long-running debate in which people are characterised as belonging to one of two separate camps: the camp that believes in prison, and the camp that believes in rehabilitation. The right hon. Member for Leicester East (Keith Vaz) seemed to reinforce that view towards the end of his speech, and it is a false division. I believe in sending people to prison; I also believe in rehabilitating people while they are in prison, and I do not see why a difference should be seen between the two. We must have a more sensible and nuanced debate.

There are two myths about the criminal justice system—first, that we send far too many people to prison; secondly, that prison does not work—and I want to try expose them both. The liberal elite are always conditioning us to believe that we send too many people to prison, but according to figures provided by the House of Commons Library, for every 1,000 crimes recorded in the UK, we send 17 people to prison. That compares with 29 in Ireland and 31 in Spain—in fact, virtually every other country in the European Union sends more people to prison for every 1,000 crimes committed than we do. Of course, in America they send more than 200 people to prison for every 1,000 crimes committed. People may mock, but they have a crime rate that is less than half the UK’s.

I got the House of Commons Library to produce an interesting piece of evidence showing the prison population per 1,000 crimes committed, and the crime rate, in 45 different countries around the world. Obviously, there was not an exact correlation, but it was striking how close it was. The countries with the highest prison population also had the lowest crime rate. That really should not come as a great shock to people, because to be perfectly honest, most of the public would think it blindingly obvious that the more criminals we send to prison, the fewer we have on the streets committing crimes. It is blindingly obvious to everybody—apart, it seems, from the cosy consensus of the three major parties in this country.

My right hon. Friend the Secretary of State made the case again today that crime goes up when we have an economic recession and down when we have a boom. I asked the Library to test that theory, too, and it produced a graph showing the crime rate, prison population and gross domestic product in this country since the war. There is a striking, remarkably close correlation between the prison population and the crime rate: as the former goes up, the latter tends to go down. There is absolutely no correlation whatsoever between GDP and the crime rate, so that is an absolute myth. It might seem logical to think that such a comparison exists, but all the evidence from the Library shows absolutely no link whatsoever.

I would argue not that there are too many people in prison but too few. Of course, under the previous Government and the end of custody licence scheme, 81,578 prisoners were released early, including 16,000 violent offenders, 1,234 of whom went on to commit 1,624 new offences—including at least three murders— during the time when they would normally have been locked up. That is 1,624 unnecessary victims of crime as a result of having fewer criminals behind bars.

A district judge told me about a bizarre situation that arose. On a Saturday morning, he sentenced somebody to six weeks in prison for theft. Three days later, on the Tuesday morning, the very same person came before him, having already committed another crime, despite having been sentenced to six weeks in prison just three days earlier. I asked how on earth that was possible. The judge explained that only half such a sentence is served, which automatically brought the sentence of six weeks—or 42 days—down to 21 days. Everybody was being released 16 days early, so that brought it down to five days. The individual in question had spent five days on remand before his trial, so, despite having been sentenced to six weeks in prison, he was let straight out. What an absolutely farcical situation. It is an utter farce and then we wonder why nobody in this country has any confidence in the criminal justice system.

The Government’s policy is also based on a premise which we heard again from the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith)—the idea, which we are encouraged to believe, that it is so easy to be sent to prison in this country. A myth has built up that someone can commit a minor offence and will be mopped up by the police, marched straight to the courts and, without a by-your-leave, sent to prison. If only that were the case. I would love to live in such circumstances, but it is far from the case. In the real world, people commit crime after crime and go to the magistrates court where they are given community sentence after community sentence until, eventually, a magistrate or district judge gets bored and finally says, “I have no other option, I have sent you on every possible programme going and I now have to send you to prison.” That is what happens in this country despite what the right hon. Gentleman said.

[Sir Alan Beith]

I suggest that the hon. Gentleman has a look at the evidence given by two ex-offenders who appeared before the Justice Committee during our probation inquiry, who both told us separately that their community sentences were extremely demanding, that they were fed up with them and that they had committed further crimes to get into prison, where they got three square meals a day and had much less to do.

[Philip Davies]

They must have had to commit an awful lot of crimes to get themselves into prison, because it is very difficult to get sent to prison in this country.

Let me emphasise the point. In 2009, according to the Ministry of Justice, 2,980 burglars and 4,677 violent offenders with 15 or more previous convictions were still not sent to prison. Today, the Secretary of State was saying that if someone commits a burglary they should expect to go to prison. In one year, however, 2,980 burglars with 15 or more previous convictions still were not sent to prison, which seems rather to defy the message that the right hon. Member for Berwick-upon-Tweed is trying to give.

--- Later in debate ---

[Anna Soubry (Broxtowe) (Con)]

It is a great pleasure to follow my hon. Friend the Member for Dartford (Gareth Johnson). I agreed with many of the points that he so ably made based on his experience. It is easy to joke about the profusion of lawyers taking part in debates such as this, but in reality many of us stopped practising only within the past two years, before we came to this place. We therefore bring with us an abundance of experience and knowledge, especially those of us who were at the criminal Bar and both prosecuted and defended, which gave us an insight into cases from both perspectives. That is a great feature of the criminal Bar and, I hope Members will concur, adds to our ability to bring real experience and hopefully insight to this important debate.

I shall put my cards on the table. I practised at the criminal Bar for some 16 years until my election, and I am very proud of that. I should perhaps not put this too strongly, but it was one of the most rewarding and enjoyable jobs I have ever done, for all manner of reasons. As a member of the criminal Bar I defended far more than I prosecuted.

I should like to put it on record that I find it most peculiar that the Labour party, certainly in my constituency, seems to think it should criticise me for standing up in the House and talking about the law, particularly the criminal law. Often, I speak in defence of not only my own profession but solicitors, who are suffering in a way they have never suffered before due to the reduction in legal aid. I find it perverse that the Labour party attacks people such as me in those circumstances. It professes to be the party of the poor, the repressed, the deprived and some of the most needy in our society, but it is those very people whom so many at the criminal Bar and solicitors have represented for a long time, often with very little reward.

When I joined the criminal Bar, somebody said to me, “You are going to be a social worker wearing a wig.” Those of us who have been at the Bar or worked as solicitors and who have defended criminals will know from experience how often we go beyond the fee—and it is not a very great fee. We know how often we have given a fiver or £10 to clients who have no money in their pockets so that they can get home when they find themselves in the fortunate position—my hon. Friend the Member for Shipley (Philip Davies) will despair at this point—of not going into custody when they thought they might receive a prison sentence.

I once gave a client £10 so that he could catch the train back to Worksop. This perhaps shows my naivety. I took him to Nottingham railway station and assumed he would spend the money I had given him on his ticket. In fact, he went off and bought a large amount of heroin and was arrested by the police. Hon. Members can imagine my reaction when I found out what he had done with the money.

I digress from the subject of the debate, but I want to make the point that the criminal justice system could not operate without the Bar and solicitors who often go that extra mile, often at their own expense, to ensure that it works properly. I fully understand and appreciate that the legacy we have inherited means we have no option than to reduce the amount that goes into the legal aid pot, which means that members of the criminal Bar are seeing a reduction in their fees—that is in the context of having had no genuine increase since 1997. I know the Government can do nothing about that at the moment, but when the time comes we must ensure that those who do legal aid work are properly remunerated. It could be said that I have diverged from the subject of the debate, but I wanted to make that point.

Consistency in sentencing can be truly achieved only when the following occurs. It starts at the beginning. To achieve consistency in sentencing, we must ensure from the outset that there is a proper and full investigation of the allegation. That means that witness statements must be properly taken and that all relevant evidence must be properly gathered. A constituent who has come to me has quite properly complained following an assault allegation—she was the victim. She suffered cuts that required stitching to her face and a broken jaw, but the police did not collect her medical records despite the fact that she had signed the right form. She has now been told that the police are going to make the charge “common assault”. On the basis that what she told me is true, it is clear that the charge should be either for wounding or for a section 20 offence, or perhaps for an even greater offence. It was not a common assault, and it is clear that the police did not do a proper job in their investigation and in ensuring that all relevant evidence was available, which is important not just for the progression of the case, but so that the sentencing judge can pass the right sentence. In order to do that, we need to ensure that there is a full and proper investigation from the outset and that the right charge is reached. We also need to ensure that witness statements are properly taken, which includes, if appropriate, a victim impact statement.

My hon. Friend the Member for Dartford said that the previous Administration were overly prescriptive and mandatory—a long-standing complaint of many of us about their conduct of the criminal justice system. I do not want police officers to go out with a checklist of all the things they must do when they take a witness statement. I want them to be properly trained to be able to rely on their own plain common sense. I do not want them to be overly prescriptive and certainly not stereotypical.

In his statement the other day, the Secretary of State talked about the changes we intend to make to the compensation scheme. This might be difficult to understand, but he quite properly mentioned the fact that not all victims of crime look at the crime in the same way. I have been burgled more times than I care to remember; in some instances, that did not have a particularly upsetting effect on me, and I would be the first to say that, but on one occasion it upset me greatly because my grandmother’s engagement ring was stolen. I do not know the value of the ring, and it does not really matter; what mattered to me was my sentimental attachment to that piece of jewellery. On another occasion when my home was broken into, I found it distressing that somebody had been through items of a very personal nature in my study. On another occasion, nothing much was particularly disturbed, so the trauma, or the effect, was not as great. However, we cannot say everybody will be the same, because, as we all know, crimes come in all different shapes and sizes, and they affect each and every one of us differently.

[Sir Alan Beith]

Did the hon. Lady welcome, as we on the Select Committee did, the fact that the Sentencing Council was prepared to treat burglary as an offence against the person, as well as against property?

[Anna Soubry]

Absolutely. If I may say so, there was so much I agreed with in the right hon. Gentleman’s speech. From my short time on the Select Committee, I know he brings a huge weight of experience and plain, good common sense to his chairing of the Committee. I absolutely agree with what he says.

To be frank, I would never stand up and say we definitely want to keep the Sentencing Council. I know some of us disagree about this, but I always thought the Court of Appeal was a good place to determine the issues we are discussing, and I could see no good reason why that should not continue. However, we are where we are.

What we do know—this has already been mentioned—is that the sentencing judge will look at the aggravating and mitigating features in relation to every offence. It is therefore important that when the police go out and take witness statements, they make sure everything that should be in them is in them so the judge can pass the right sentence. If items of great sentimental value are stolen in dwelling-house burglaries, for example, that is an aggravating feature.

The same is true of trashing or ransacking the property, and of inducing fear in a particularly vulnerable person. One of the burglaries I suffered was at night-time, and my children were of an age where they were very frightened. They thought—this is common among children who have the misfortune to have their homes burgled at night—that the person would come back, and they were in fear of that. Such things must be in the witness statements so the judge can pass the right sentence. That will give us the consistency we want.

One of the things that is extremely annoying for somebody who has been the victim of a car crime is the fact that they lose their no claims bonus. There is also the huge inconvenience caused by the fact that their car has a broken window and that they will not be able to use it because it has to go off to the garage. Again, those are important aggravating features.

In offences of violence, there can be an assessment of the physical scarring that might remain, and of the pain and suffering the victim might have been caused, but their mental anguish must also be set out in detail so that the proper sentence can be passed.

I would go further and say that when police officers go out to get statements from witnesses, they should include in them the effect of a particular crime on the witness. The classic example is somebody who witnesses a fight in the street, which might be a particularly violent and unpleasant incident. That will have an effect on the witness, and if it does, it should be in the witness statement.

At the heart of good, consistent and transparent sentencing is an overriding and underlying belief in the fact that we should trust our judges. I say that with absolute certainty in one respect: if I had not come to this place, I would undoubtedly never have been made a judge. I am not, therefore, making these comments to curry favour with any judge. Hon. Members may not find this surprising, but the reason I would not have become a judge is that I fell out with so many judges.

Oral Answers to Questions

Lord Beith Excerpts

Tuesday 31st January 2012 Commons Chamber

[Mr Djanogly]

Specifically, legal aid will be provided for a lot of debt advice after our changes. We are reducing our spend on legal aid, and law centres will be affected by that, but the Government recognise and highly value the important role of not-for-profit organisations such as law centres. That is why we launched a £107 million transition fund last year and the £20 million advice services fund this year. It is why the Cabinet Office has also announced a review of not-for-profit advice centres, which is a welcome and important development.

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

Is it not an assumption behind the Government’s reforms that the availability of advice needs to replace a great deal of litigation? If that is to be achieved, is it not necessary to ensure that there is a long-term, not merely a short-term, solution to some of the funding problems of law centres and citizens advice bureaux?

[Mr Djanogly]

My right hon. Friend makes an important point. We are changing the way funding works and looking for alternatives to be taken up. However, we appreciate that, in the meantime, while the reorganisations are happening, there is a need to support law centres, which is why we are looking at transitional provisions to ease that passage.

EU Criminal Policy

Lord Beith Excerpts

Wednesday 25th January 2012 Commons Chamber

[Mr Blunt]

Yes, I am happy to reassure my hon. Friend that that is the position.

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

Does the Minister recognise, when considering an opt-in or when seeking to establish whether there is genuine necessity, the importance of engaging with the relevant Select Committee at an early stage? The Select Committees, with their specialist knowledge of subjects such as agriculture and fisheries or home affairs, have an opportunity of ascertaining whether necessity has been established.

[Mr Blunt]

As a Justice Minister, I would be extremely unwise not to acknowledge the merits and wisdom of the recommendation of the Chairman of the Justice Committee. My right hon. Friend makes the proper point that there is an expertise in the Select Committees that should be engaged, if possible. Much of the process sits with the European Scrutiny Committee, and we are today making recommendations that the House should consider matters. I shall, of course, leave the detail of process, and the way in which the House should do that, to my right hon. Friend the Leader of the House. However, I hear what my right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith) says, and I acknowledge the force of his point.

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[Mr William Cash (Stone) (Con)]

We have just heard a breathtaking example of complacency from the Government—sorry, I mean the Opposition. I say that because, unfortunately, the manner in which this issue is being approached, and the reason why the European Scrutiny Committee thought this matter should be debated, is very simple. We have heard reservations expressed so far by the Minister and shadow Minister, but they do not take express account of the fact that once a communication has got going—particularly a communication under the aegis of the Lisbon treaty—we effectively open the door to considerable, radical proposals for the expansion of European criminal law.

I am glad the Minister made the comments he made and I endorse all of them. I am also glad he agrees with the Committee on a wide range of matters, particularly the nomenclature and the phrase “Euro-crimes”. However, this is a substantial issue. The document that was presented to us by the Commission concludes that

“the new legal framework introduced by the Lisbon treaty … considerably enhances the possibility to progress with the development of a coherent EU Criminal Policy which is based on considerations both of effective enforcement and”—

it claims—

“a solid protection of fundamental rights. This communication represents a first step in the Commission’s efforts to put in place a coherent and consistent EU Criminal Policy by setting out how the EU should use criminal law to ensure the effective implementation of EU policies.”

It could be no clearer than that. That is the intention, and believe me, it is the direction and the line of route.

Other hon. Members will no doubt deal with other matters arising from that, but as Chairman of the European Scrutiny Committee, I want to explain why we insisted that this matter should be debated. The Committee recommended the document for one simple reason: the communication outlines how a supranational organisation intends to pass criminal legislation that will have a direct impact on our citizens. This is indeed a sensitive area, as the enactment of criminal law is traditionally the domain of sovereign legislatures.

In the conclusion to our report, we noted the emphasis in the communication that the Commission places on respecting the general principles of subsidiarity, necessity based on clear evidence, proportionality, including the principle of ultima ratio—in other words, criminal law as a means of last resort—and the legal traditions of the EU member states when deciding whether to propose criminal sanctions to ensure the effective implementation of EU proposals. Those words are welcome, but we wait to see whether they are respected. Evidence to the contrary is abundant in relation to matters of this kind. That is because the manner in which it is proposed to move down the route of criminal law—albeit under the Lisbon treaty, which my party opposed tooth and nail during its enactment—relies heavily on the fact that there is a desire among many people in the European Union to have one country, which, by its very nature, means they would prefer to have one European criminal law policy. There is therefore a direct contradiction between the manner in which the proposals are being made and the words used. We argue that we should wait to see whether the suggestions that lie behind the Commission’s statements are respected.

We are gratified by the Government’s reaffirmation that any EU action in the field of criminal law will have to be justified on the basis of robust evidence, as well as demonstrating why lesser administrative penalties are not appropriate. The Committee intends to hold the establishment to strict account on that question. We also support the Government’s cautious approach to the Commission’s communication, but we add further caveats of our own. The European Union should not seek to harmonise the traditional rules on extraterritorial criminal jurisdiction in member states. The UK does not assert extraterritorial jurisdiction over those who are “habitually resident”—an expression that has found its way into EU criminal legislation—in this country. The EU should also refrain from defining “mitigating and aggravating circumstances” for the commission of crimes, which is best left to the discretion of the sentencing judge. Furthermore, the expression “Euro-crimes”, which is used in the communication for the 10 offences listed under article 83.1 of the treaty, is inappropriate and misleading. We ask the Government to do their utmost—in fact, we would go so far as to insist that they do this—to ensure that the term does not enter the EU’s lexicon. Indeed, I was extremely glad to hear what the Minister had to say about that.

The other point is that although there is the question of opt-ins and whether we are to accept the provisions, we have seen a torrent of opt-ins over the last few months, since this coalition Government came to power, and a significant number of Members of Parliament are deeply concerned about the tendency in that direction. Furthermore, in addition to the opt-ins, there is the emergency brake. We understand all that, but we have to have regard to that tendency, because of what can happen once the door is opened on that scale. In the light of what I said about what is in the mind of the Commission and others in the European Union, and about the tendency to move towards a policy of further integration, which would include criminal law, we should be not merely cautious, but extremely resistant towards any attempt to move further down that route.

[Sir Alan Beith]

When I was chairing the Justice Committee, I do not remember ever meeting anybody, in any justice committee in any member state, who believed that we should be working towards a single, harmonised criminal law that would replace the criminal law of member states across Europe. Is the hon. Gentleman not conjuring up a spectre?

[Mr Cash]

Certainly not. I am not conjuring up a spectre; I am talking about a tendency. In almost every area, the original proposals—from Maastricht, through to Nice, Amsterdam and Lisbon—have adopted a minimalist approach at the beginning, but then expanded, moving further and deeper into the areas of competence that have been acquired. I am not going to dispute what the right hon. Gentleman says about what he has heard; I am merely referring to what I have observed, which is also understood by many others, including the Government.

--- Later in debate ---

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

I support the motion, and I shall preface my remarks by saying that any free trade area needs an enforceable and effective system to secure compliance with the requirements put in place to create and maintain an open market. Europe also needs to keep pace with the international, cross-border nature of a great deal of crime, and with the ease of movement that criminals enjoy. Indeed, in combating crime, Europe should take advantage of its capacity for co-operation and combined effort in order to defeat criminals and criminal organisations. All our citizens, whatever their views on the European Union, would recognise the value of that.

We cannot ignore enforcement failures in various member countries, because they often harm the interests of British businesses, which can be put at a competitive disadvantage. British farmers and fishermen can also be adversely affected by inadequate enforcement in other countries. Obviously, the converse can also be true. It is usually unhelpful, however, to add new structures and layers of law, of the administration of justice and of prosecution authorities to the well-developed national systems that exist in most member countries. I therefore agree with the motion when it mentions subsidiarity and the need for robust evidence of necessity when EU measures are to be considered.

I do not entirely share the European Scrutiny Committee’s dislike of the idea of fostering citizens’ confidence in the fact that they live in a Europe of “freedom, security and justice”. It is an important feature of the European Union that membership of it commits member states to maintaining a range of important values including freedom, justice, security and human rights. The Committee calls this an example of ideological thinking. I thought that ideological thinking was making a comeback in the Conservative party, but perhaps it is still disapproved of. I remember that during my earlier political life ideology was frowned on by the Conservatives, but then Mrs Thatcher came along with an ideology of her own. That is a byway that I shall stray no further along, however. The principal responsibility for achieving these aims rests with the member states of the European Union.

The Minister said that we were about to embark on a complex opt-out—or opt-in—process, which is relevant to what we are discussing today. Under the Lisbon treaty, the Government could opt out of everything in the home affairs and justice area. They could also opt in to everything. The more likely outcome, however, is that they will seek a negotiated package, in which we opt in to those areas where it is genuinely beneficial for us to do so without complicating our system by opting in to areas that would be inappropriate for us. I hope that the Government will share with us their developed thinking on how that will be achieved, as a great deal of negotiation will be involved.

The Commissioners tend to proceed by launching a large number of proposals; they fire off a hail of bullets, very few of which reach their target. If the Select Committees of this House were to devote time and attention to every idea that appeared in a Commission paper, we simply would not be able to get on with our work on domestic policy issues. It is therefore important for Select Committees to be able to identify those elements that would benefit from careful Select Committee attention. This is true of home affairs and justice matters, and of others.

The European Scrutiny Committee carries out an important role. It does the valuable and not always very inviting work of examining the legality and proportionality of EU proposals. However, it is the Select Committees that relate to Departments that have experience and expertise in specific policy areas. It would be unreasonable to expect the European Scrutiny Committee to know enough in any given case about whether there was a necessity justification for something and whether it was a policy direction that would be appropriate in the United Kingdom. That is the kind of work that Select Committees are expected to do.

[Mr Cash]

I understand that there is obviously a complementarity between the European Scrutiny Committee and departmental Select Committees. It is important, however, to reaffirm the fact that we rarely recommend a communication for debate, but on this occasion, because of the nature and coherence of the proposals advocated by the Commission on criminal policy, we thought it was a good idea at least to give it a kick-start on the Floor of the House.

[Sir Alan Beith]

I entirely agree with the hon. Gentleman and with the action he has taken on this matter, and I very much welcome the fact that the debate is taking place. It is certainly the view of the Liaison Committee that more attention needs to be given to developing European proposals that will, if we are not careful, only come to the House at too late a stage for us to have any significant influence on them. The work of the European Scrutiny Committee in all that is extremely valuable, but there are limits to what it can do.

In conclusion, let me remind Ministers of two things. First, we want to secure as much help as we can get for Select Committees from the UKRep staff in Brussels, who are extremely good when we go as visiting Committees in giving us advice on what is happening, what is being proposed and which of the Commission’s brainwaves is getting somewhere and which does not look likely to do so.

[Keith Vaz]

I fully support what the right hon. Gentleman is saying. I do not know about his Committee, but we find we are so busy that we simply do not have the time to cover European issues, and we rely heavily on the European Scrutiny Committee to alert us if anything is going wrong. One way in which we could be more involved would be if UKRep was more responsive to our work.

[Sir Alan Beith]

It is not so much about being responsive, because when we have asked representatives for help, they have given it. I am looking for a proactive approach. It would be very helpful if the Foreign Office gave the team in Brussels a clear indication that it would be helpful to alert Select Committees to proposals that looked like gaining traction, and would have important implications for the United Kingdom.

Secondly, of course, it is important that Ministers come to Select Committees before important Council meetings and afterwards, if it is necessary to secure a report back. The House too often finds that a set of complex documents that are extremely difficult to decipher comes before us in the General European Committees at a stage far beyond that at which it would be possible to influence or change it. We have relied unfairly on the members of the European Scrutiny Committee, whose work I again recognise as extremely important, and Select Committees have a job to do that is difficult to incorporate in a crowded work programme, so the more help we can get from Ministers and our officials to alert Select Committees to important issues that are coming up, the more effective we can be.

Oral Answers to Questions

Lord Beith Excerpts

Tuesday 13th December 2011 Commons Chamber

[Mr Blunt]

No, Government policies are going to improve the probation service. If the hon. Gentleman looked at the probation budget, he would see that the position of probation has been substantially protected relative to the demands being placed on the overall budget of the Ministry of Justice.

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

What is the Minister doing to make sure that probation officers’ work with prisoners is not undermined by prisoners being moved from prison to prison for no very good reason or for entirely administrative reasons?

[Mr Blunt]

We are trying to give the notion of prison clusters much greater prominence. The right hon. Gentleman will have seen that the OLASS—Offender Learning and Skills Service—review presages a situation in which prison clusters would procure education and skills training, and that should reflect the prisoner journey. We want to have a prison estate that is not under the enormous pressure it is under now—due to the terrible situation we inherited—so that we can get prisoner journeys from local prisons through to resettlement prisons, while both getting support from offender management and delivering programmes.

Public Bodies Bill [Lords]

Lord Beith Excerpts

Tuesday 29th November 2011 Commons Chamber

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

I beg to move,

That this House does not insist on their Amendment No. 47 to which the Lords have disagreed.

Following consideration of Commons amendments in the other place last Wednesday, hon. Members will know that the Government no longer intend to abolish the Youth Justice Board as part of the Bill. Therefore, I will not be asking hon. Members to insist on the Government amendment agreed by this House on Report. The amendment has reintroduced the Youth Justice Board into schedule 1 to the Bill. As my noble friend Lord McNally made clear in the other place, the Government have never waivered in our commitment to maintaining a distinct focus on the needs of children and young people in the youth justice system. We have never proposed to remove youth offending teams or dismantle the dedicated secure estate for young people.

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

It is an unusual experience for a Committee to publish just after midnight a report containing recommendations that are accepted by midday the following day. As my hon. Friend has mentioned youth offending teams, I wanted to remind him that the Justice Committee, as well as pointing to the dangers of abolishing the Youth Justice Board, stated that if it survived it would have to take a lighter touch and a less centralised approach to the management of youth offending teams than it had taken in the otherwise good work it had done.

[Mr Djanogly]

I thank my right hon. Friend for that contribution and acknowledge that the recommendation appeared in his report. I will certainly take it back to the Under-Secretary of State for Justice, my hon. Friend the Member for Reigate (Mr Blunt), who will take up the matter in due course.

--- Later in debate ---

[Jon Trickett]

I am grateful to the right hon. Gentleman for his comments and for the moderate way he expressed them. We will see over time exactly what the Government’s intentions are.

The Government have set out to remove the independence of the youth justice system. The Minister repeated that they want, in effect, to bring it under direct ministerial accountability. There is no financial case that I can see for what the Government are trying to do. I have reservations about something as important as the operation of the criminal justice system, whether or not it deals with young people, being brought under ministerial direction. That is not a debate to be had this afternoon because the Government have withdrawn the proposal. However, any attempt to bring the criminal justice system under direct ministerial accountability will be resisted in this Chamber and in the other place, because it is a long-established tradition that the criminal justice system should, as far as possible, operate independently of the Executive.

The Government have not recognised the case for independence. As my hon. Friend the Member for Wallasey (Ms Eagle) said in Committee, the Government are committed to bringing the YJB under the remit of central Government. It is, in effect, a nationalisation. The Government want to nationalise the criminal justice system, whereas we want to defend its independence, as one would expect. In my view, none of the YJB’s core functions will be able to be carried out within central Government.

I do not wish to repeat all the arguments that have been debated elsewhere, but I simply urge the Government to keep in mind, in whatever review they carry out in future, that the independence of youth justice and of the criminal justice system in general needs to be maintained. After all, as has been widely acknowledged, the YJB does an amazing job. It has reduced youth offending, it has protected young people, and on the whole it has made the youth justice system better. In Committee, the YJB was praised, as it has been here today and was in the Lords the other week, by Members on both sides. I am glad that the Government have now recognised formally that it does invaluable work, and that they have withdrawn this proposal. We look forward to seeing in due course whatever the Government do next in relation to this matter.

[Sir Alan Beith]

The hon. Member for Hemsworth (Jon Trickett) is slightly confusing the very necessary and important independence of the courts with the status of a body such as the Youth Justice Board. The Executive are, and must be, accountable to Parliament for the efficient provision of things such as custody and alternatives to custody. They may choose to do this by way of a semi-independent or arm’s length body, but that is much more an administrative decision than a decision about judicial independence, for example. The two concepts are different and should not be confused.

I rise to underline and clarify the points made by the Justice Committee in its 10th report, which was published on 23 November, just after midnight. In that report, we set out our concerns about what would happen if the Youth Justice Board was abolished and what the Ministry of Justice would have to do in order to ensure that youth justice got the focus that the YJB had given it in the good work that it had done. We also set out what needs to happen in the circumstances in which we now find ourselves, whereby the Government have taken the decision not to abolish the YJB. Our concern was that one of the YJB’s weak points—perhaps the only one that came out strongly in evidence—was that quite a lot of people working in the sector felt that it was too “top down” in its approach to youth offending teams. The success that we have seen in youth justice has been achieved by youth offending teams bringing together every agency at local level and working together. That has been encouraged and supported by the YJB. However, the YJB itself told us that its oversight of youth offending teams will be lighter touch in future and that it is working to

“promote peer support and allow more room for professional judgement”.

That lesson needs to be learned. Indeed, when the Minister gave evidence to us, he gave examples from his own experience to underline that that approach was necessary. He also set out his own case for having greater ministerial accountability and greater ministerial awareness of what the YJB is doing.

The Youth Justice Board will continue. Many people will welcome that because it has provided a very specific focus and enabled things to be achieved in youth justice that have not been achieved in the rest of the criminal justice system. There has been a much better understanding of where to strike a balance between custody and alternatives to custody in youth justice than in other fields. There has also been much better local co-operation between the various agencies that deal with young people. We need to build on those experiences.

I wish the board well in the future. However, I underline the point that the Select Committee made in its report and hope that Ministers have noted it.

--- Later in debate ---

The problem is that if aggrieved parties are denied the right of appeal to the chief coroner, they will seek judicial review, as the Minister confirmed. I suggest that the cost to the taxpayer of abolishing the appeal process will therefore be far greater than the savings made.

[Sir Alan Beith]

The hon. Gentleman talks as if the appeals system exists and is about to be removed, but in fact it does not exist, because the chief coroner was not appointed and the clauses were not put into effect. The situation that he is describing as some strange and horrific future possibility is actually what we have now.

[Jon Trickett]

Of course it is, and I am baffled by that intervention, given that I have just said that section 40 allows for an appeals system to be introduced in due course. What was envisaged was a proper coronial system with an appeals process and a chief coroner who would have authority over the whole system. The Government are seeking to stop that logical process, which could be tested first by a pilot, and to put in an illogical system, with a chief coroner who would effectively be reduced to a purely administrative post.

In response to a series of parliamentary questions and freedom of information requests, Ministers have revealed that at no stage have the Government estimated the likely costs of additional judicial reviews, as opposed to an appeals system. On that basis, it is odd to argue that savings will be inherent in this decision.

--- Later in debate ---

[Mr Deputy Speaker (Mr Nigel Evans)]

Order. Before I call the next speaker, may I point out that discreet use of hand-held devices is allowed in the Chamber? If it were not, I would have disallowed it in this instance.

[Sir Alan Beith]

The Select Committee on Justice has taken extensive evidence on the failings in the coronial system and the need for reform. We felt strongly that there should be a chief coroner and I continued to press that argument with Ministers on many occasions. The Government found alternative ways of trying to achieve the same things, and it would be wrong to suggest that in their use of the powers of the Lord Chief Justice they were not hoping to achieve significant reform.

Clearly there is consensus about reform. Anyone who has seen the experience of families who have had delayed inquests or poor service from coroner’s offices, and who is aware of the completely patchwork system of support for coroners around the country, realises that fundamental reform is required. That can now be achieved through the office of chief coroner, which I felt all along was the sensible way to do it. That involves professional leadership, training and tackling the jurisdictional issues so that, for example, the chief coroner can move inquests to a coroner who is in a position to provide the service when there is too much pressure in another coronial area.

Where there is not consensus is on the appeal issue. I know how strongly the Royal British Legion feels about that and I respect its campaign, but significant legal questions are raised by whether we substitute the decision of one coroner for that of another—that is a quite different process from judicial review. We do not have time to debate that in detail today, but I simply say that there is wide consensus on the need to reform the coroner system. There are many good coroners and many excellent coroner’s offices, but it is a very uneven system. The chief coroner should now be a mechanism for undertaking that reform, but the issue of appeals is one on which there is much more to be argued over and we might be holding out to families the false promise that they will somehow be in a better position than they would be with the present system. It would be wrong of us in this House to do that, so I urge the Minister to get on with the crucial reforms of the system, which the chief coroner can achieve.

[Simon Hughes]

I strongly endorse the views just expressed by my right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith). I represent a coroner’s court in Southwark and we have had very good coroners—Monty Levine, who was very famous, and Andrew Harris, the current coroner, who is a friend of mine. However, like other colleagues, I have had experiences, involving constituents and others, of really bad coroner’s decisions. The Taylor family have been mentioned by the hon. Member for Stoke-on-Trent South (Robert Flello), and Michael, who died, was a constituent of mine. I am also talking about the inquests after the Marchioness sank in my constituency, the battle that the lovely late Eileen Dallaglio had to fight on behalf of her daughter and the battles that all the others like her had to fight. In the end, they had to go through a judicial review because they were terribly treated by the coroner who dealt with that case.

I welcome the fact that the Government have changed their mind and that the scheme introduced eventually by Labour—we had to push but it was eventually put on the statute book—can now be implemented in respect of creating a chief coroner. I urged, as others have, that that decision be taken. It is reasonable to proceed gradually along the road that has now been accepted by the Government. They are clear that they are going to report back on Army coroner’s inquests—the Armed Forces Bill does that. As Lord McNally said in the other place, this is not just about training; it is about monitoring, reporting and direction. That will give us a good base. There will also be an annual report to Parliament.

May I end by saying that I also have the privilege of being the Member of Parliament for the headquarters of the Royal British Legion, and I know that INQUEST has worked with the RBL very well. They are very honourable organisations, they have fought an honourable fight and they have won an honourable victory. The House owes its gratitude to them and to the Government for understanding the strength of feeling on this case.

Oral Answers to Questions

Lord Beith Excerpts

Tuesday 8th November 2011 Commons Chamber

[Mr Clarke]

My hon. Friend has rightly been chasing me on this subject, and with her I have approached the Cabinet Office. My right hon. Friend the Minister of State, Cabinet Office, hopes to make an announcement shortly about the distribution of the money. As the sort of people we are talking about need the general advice offered by such voluntary bodies, I very much hope that he will soon make an announcement on behalf of the Government.

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

Is it not clear that what most people will need with these changes is well-supported advice services, a user-friendly tribunal system, and Government Departments that give people what they are entitled to in the first place?

[Mr Clarke]

Yes, I entirely agree. That is what I hope we can deliver. The number of mistakes made by bodies that distribute funds, which result in appeals to tribunal, is obviously far too high.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Beith Excerpts

Wednesday 2nd November 2011 Commons Chamber

[Mr Slaughter]

I know the Minister does not want to hear this, but in relation to the director the point is that the Government wish to decide who has merit and who does not. That is the charge that the Government have to answer, and in this case they will do so only by ensuring the independence of the director.

Let me move on, because we are in the midst of a radical reform of the social welfare system. The Secretary of State for Work and Pensions has embarked on restructuring the way benefits are assessed, calculated and provided, local authorities have had budgets radically reduced, and a housing benefit cap is being introduced. In short, the benefits system is in a period of turmoil, and as a consequence the system of checks and balances on state decision making through the first-tier tribunals is also significantly under pressure, such that more staff are being taken on daily to deal with a growing number of appeals against decisions taken by Jobcentre Plus.

When in October last year the coalition produced its Green Paper on the reform of legal aid in England and Wales, we were shocked to see that there were cuts of £450 million, as defined in the latest impact assessment, and that they overwhelmingly came from civil legal aid. Things such as education, employment, welfare benefits, debt, housing matters and clinical negligence were taken out of scope, either in their entirety, as in the case of employment, welfare benefits and clinical negligence, or substantially, as in the case of debt, housing and education.

Means-testing will also change. The Government have proposed the abolition of capital passporting, by which those receiving certain income-based benefits are automatically eligible for legal aid, and the introduction of a new minimum capital contribution, a personal financial contribution towards legal costs.

The philosophy behind the cuts is explained in the Government’s impact assessment, in which they state:

“Legal aid may be regarded as a redistributive transfer of resources from taxpayers to those who are most needy, in relation to both the nature and merits of their case and also to their financial position… The Government may consider intervening if there are strong enough failures in the way markets operate…or if there are strong enough failures in existing government interventions”.

The amendments under discussion simply seek to address the Government’s failure to abide by those principles as set down in their own impact assessment. We are in a period of great need and of great changes to the system, and many meritorious cases are being referred to tribunal. By definition, the financial position of those requiring help with welfare benefits, employment law, debt and housing is necessarily the most precarious of any in society, and £70 a week is often all that stands between some of my constituents and utter destitution. They are in a desperate place.

Let me give the House one example, in relation to eligibility for disability living allowance. There are so many problems with the private contractor Atos that many seriously ill people are being judged fit for work. I leave aside operational issues, such as the fact that, according to its own website, 20% of Atos’s 141 medical assessment centres do not have wheelchair access, because, according to a newspaper report, one third of those refused DLA by Atos have appealed to the first-tier tribunals, and 39% of decisions have been overturned. Furthermore, the report states:

“The tribunals service…has had to double its capacity in the social security section to deal with the large number of appeals, recruiting an extra 170 paid medical panel members.”

In a letter to The Guardian, leading mental health charities and a senior consultant from the Royal College of Psychiatrists say:

“We’ve found that the prospect of incapacity benefit reassessment is causing huge amounts of distress and tragically there have already been cases where people have taken their own life following problems with changes to their benefits.”

These are not just economic issues; they profoundly affect the most vulnerable individuals.

The Government’s proposals will seriously damage access to justice for the most vulnerable in society, and their own impact assessment shows that there will be a disproportionate impact on women. Similarly, there is the potential for the cuts to impact disproportionately on black and ethnic minority clients and on those with disabilities.

That is something the Minister himself acknowledges. When it was put to him that groups with protected characteristics would be affected, he dismissed it, as only a Conservative Minister can, although the Liberal Democrats are getting there, by saying, “Well, that’s because they are disproportionately represented among the most vulnerable.” That is the logic of the Government’s case—“Because vulnerable people get legal aid, and we are cutting it, what do you expect to happen?” Those principles show an absolute absence of moral guidance.

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

I understand the hon. Gentleman’s argument, but is he proposing cuts in other areas of legal aid in order to maintain his objective of cutting the overall cost while putting legal aid back in place in those fields?

[Mr Slaughter]

I was going to deal with that at the end of my remarks, but let me do so now. I am grateful to the right hon. Gentleman for giving me the opportunity to do so, because two days ago the Minister said, “Oh, the Labour party wants to reinstate £245 million of cuts.” On the same day, however, he put out a press release saying that the Labour party wanted to reinstate £64 million of cuts, and I have grown tired of responding to him. He has heard my response from this Dispatch Box, in Westminster Hall and in Committee time and again, and it is simply this: we would not have made at present the cuts to social welfare legal aid.

The Minister quantifies those cuts as £64 million, but why did he not proceed with the final parts of Lord Carter’s review and go through the criminal tendering exercise, which was in place and ready to go when the Government took office last year, and which included savings that might have raised twice that sum? I anticipate the figures changing. The figures on savings have changed from £350 million to £450 million within two impact assessments, but, without being more precise than that, we believe that if the Government looked for efficiencies in the criminal legal aid system, first they would save more money than they are by cutting social welfare legal aid, and secondly there would not be the same social or financial consequences.

The Green Paper talks frequently about the possibility of self-representation as a reason for withdrawing legal aid provision, but data provided in answer to a written parliamentary question indicate that there are considerable differences in success rates between those with and those without representation. Owing to a lack of representation, 51,223 meritorious cases that were successful in 2010 at the first-tier tribunals, many of which involved applicants for DLA, incapacity benefit, jobseeker’s allowance and so forth, would not have been successful if the proposed cuts had been in place. The changes will close or severely reduce the operation of law centres, citizens advice bureaux and hundreds of independent advice centres, and limiting the scope of issues which legal aid-funded advisers can help with means that they will not be able to solve people’s problems fully.

New clause 17, in the name of my hon. Friend the Member for Makerfield, addresses precisely that issue. At the end of Monday’s debate, I gave the example of the Wiltshire law centre in the constituency of the hon. Member for South Swindon (Mr Buckland). That will lose 90% of its funding, and that is not untypical of the cuts being made. In most cases they are above 80%.

The specific issue that is dealt with my hon. Friend’s new clause is the interconnectivity of people’s problems. We are all too familiar, as constituency MPs, with the individual who comes in with two plastic bags full of paper and is unable to convey the scale of their distress, let alone the complexity of their problems, which may include unpaid debts, threats of eviction, underlying mental health problems and the inability to access the welfare benefit system. Sometimes we can help, and I pay tribute, as I am sure all hon. Members do, to the constituency staff who have developed phenomenal skills at unpicking these issues and dealing sympathetically with them. In many cases, however, legal expert help is needed, but that help will now be severely compromised. If one is allowed to deal only with the threat of eviction but not with the underlying issues of accessing benefits and dependency on debt, one is working with one hand tied behind one’s back.

The exceptions to the withdrawal of legal aid in certain cases, such as when an applicant for legal aid is at risk of homelessness, are nonsensical distinctions. People who come for aid early on, while they still have manageable rent arrears, can see their case deteriorate rapidly and drastically. The legal aid that would help exactly those people has been withdrawn, and that is Shelter’s No. 1 priority for what should be restored. Let me add, at this point, that we support the hon. Member for Carmarthen East and Dinefwr in his wish to undo what is a calumny in the Bill—measures allowing the Secretary of State by order further to restrict what is in scope for legal aid, but not to expand it. I do not know whether the hon. Gentleman is going to press his amendment to a vote tonight but I hope that, if he has an opportunity to speak, the Minister will give an indication that that glaring error in the Bill will be corrected.

The cost of dealing with a single case of homelessness has been estimated at £50,000 by Shelter. Early intervention is an extremely efficient and cost-effective way of preventing cases from becoming more complex, difficult to resolve and commensurately expensive. The legal aid Green Paper suggests a shift to telephone advisory services, and this brings us to amendment 148. Although these methods are an efficient and often effective means of delivering certain types of advice, clients presenting with complex or chronic problems gain far better outcomes from face-to-face advice.

Research by the Legal Action Group has highlighted the issues faced by the most vulnerable in utilising telephone advisory services. It found that full-time employees were the most likely to access an advice service through the telephone line or the internet, at 43%, whereas people in the lowest social class, DE, were least likely to access advice through an advice line or the internet, at 26%. This class of people was also the most likely to experience a social welfare law problem. The Minister’s own impact assessment says that the bottom 20%, in terms of income, will represent 80% of those who suffer from the withdrawal of these services. Overall, people of social class DE are twice as likely as people in all other social classes to experience problems with debts or benefits.

Issues facing the most vulnerable people include language, comprehension and somewhat more prosaic economic issues such as the expense of calling an 0845 number from a pay-as-you-go mobile when trying to get advice upon being rejected for jobseeker’s allowance. Citizens Advice has noticed a dramatic rise in the volume of cases and the number of people seeking advice in this recession. Advice has been focused on debt, housing, employment and difficulty accessing the benefit system. For example, between April 2008 and 2009, CABs in England and Wales saw daily inquiries relating to redundancy increase by 125%. Local authority cuts combined with the cuts in the Ministry of Justice have inflicted a double whammy on law centres, CABs and third sector organisations. Many organisations that are staffed by a mixture of volunteers and modestly paid staff will be forced to close or reduce staff and service breadth, depth and reach. Indeed, that is already happening.

We agree that the legal aid budget needs to be contained, as I have already said in response to the intervention of the Chair of the Justice Committee, the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith), and that ways of making savings need to be found. When we were in power we did not shy away from taking those decisions and containing the budget. We had begun and were continuing to implement the recommendations of Lord Carter of Coles and we believe that those outstanding recommendations should have been implemented by this Government. Frankly, we are at a loss to understand why the Government have not looked at the scope of criminal legal aid or at how it is delivered in this country, preferring instead to target the poorest and most vulnerable. I accept that those changes would not have been popular with all the legal sector but they would have delivered substantial savings, which would have been greater than the total cuts to social welfare legal aid we have discussed this week. Let me pay tribute to my colleague the noble Lord Bach who, as Minister with responsibility for legal aid, took exactly that line. He was prepared to be very tough on his own profession but he always protected social welfare legal aid.

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[Tom Brake]

The hon. Lady makes a point that is worth considering. Clearly, certain organisations are financial beneficiaries of some of the funding, but I do not want to throw out all the concerns that have been raised because, equally, there are legitimate concerns that the Government need to monitor very carefully.

I turn to new clause 17. I had hoped that during the debate on Monday we would reach the group of amendments on social welfare in which my amendment 149 on complex welfare benefits was listed. Also in the group was amendment 131, which sought to ensure that advice on housing repossessions was available sooner. I regret that we did not reach that group, as, I am sure, does my hon. Friend the Member for Eastbourne (Stephen Lloyd), who is chairman of the all-party group on Citizens Advice. However, new clause 17 touches on many aspects of what was included in amendment 149. I welcome the fact that the hon. Member for Makerfield has put the matter up for debate today because it provides an opportunity to discuss some of the points that would have been raised on amendment 149. Her definition in trying to ensure that legal aid is extended to complex cases is

“that the individual has complex, interconnected needs”

and that

“not all of those…legal services would otherwise be available to the individual”.

It is reasonable to speculate that many, or most, individuals with complex and interconnected needs will also have welfare benefit issues that will often also be complex. Under the Government’s proposals, welfare benefit cases, complex or otherwise, are excluded from the scope of legal aid.

I acknowledge that the scope of the hon. Lady’s new clause is slightly different from what was proposed in amendment 149. However, if it had been restricted to individuals with complex and interconnected needs who require legal help with complex welfare benefit issues, I suspect that we would have been discussing exactly the same area of legal aid, because virtually every individual who has a benefit advice problem involving issues of legal complexity, significant evidential hurdles or daunting adjudication processes will have complex and interconnected needs. According to Citizens Advice, that more targeted approach would help to achieve a compromise position whereby more complex cases can be covered by the legal help system. When we asked Citizens Advice what it would identify as a single priority as regards what the Government should change, that is what it proposed.

Citizens Advice has calculated the cost impact of its proposal. It says that the current welfare benefits advice spend is £25 million on just under 140,000 cases, and that restricting it to complex welfare benefit cases covering only reviews and appeals, which applies to two thirds of the current welfare benefit cases, would cost £16.5 million and help around 100,000 people. The cost could fall further if, as the Government and all hon. Members intend in practice, decision making first time round is improved and becomes much more effective. The CAB calculation is that if we were to improve first-time decision making by 30%, the costs of that provision could fall to £12 million.

[Sir Alan Beith]

Is it not absurd that the Government should be scrabbling around for money to meet the costs of bad decision making and bad communication between Departments and those who are affected by their decisions? Ought not the Government’s priority be to ensure that those Departments change those processes, which they are more likely to do if they have an incentive, which is provided by the fact that their budget will meet some of the costs if they do not do so?

[Tom Brake]

There has not been much consensus in the Chamber, but I suspect that there is broad agreement on that point.

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I absolutely understand the case that the hon. Member for Makerfield (Yvonne Fovargue) makes in her new clause. I have many constituents—we all do—who present with one issue, whereupon we discover that there are four, or their whole life is in a mess, whereupon we have to start trying to put it together again. Their situation will involve finance, relationships and housing, and it may involve the custody or care of children, but those complex cases absolutely need to be looked at and with legal support. That ties in to my point about telephone advice services, because people with such complex needs—whether or not they have plastic bags when they come through the door—cannot quickly and efficiently put their case on the telephone. Sometimes they cannot do so face to face, either, but one is much more likely to get an answer having had face-to-face engagement than if one tries to do so remotely, on the telephone.

[Sir Alan Beith]

Does my right hon. Friend agree, however, that in just those cases a high proportion of the advice required is not legal advice, but the advice of a sensible person with some experience in the area? Bodies such as Citizens Advice are very good at providing it.

[Simon Hughes]

For example, there is an organisation based in the constituency of my hon. Friend the Member for Bradford East called Christians Against Poverty, and it has people working in my constituency who are really good at dealing with debt. They have been tried and tested by me and others, so if one such element is debt I will often refer my constituent to them. They will unravel those issues and try to get them sorted even when in the county court there might be a legal issue, such as a possession action by the council or a housing association for the person’s flat, which one might need to manage as well.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Beith Excerpts

Tuesday 1st November 2011 Commons Chamber

[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.

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[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.

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[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.

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[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.

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[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.

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I congratulate the Minister on banning referral fees, but he must ensure that the multitude of scams that existed to hide the way in which referral fees were being paid before 2004 does not re-emerge. If this is going to work, he must ensure that those who dream up inventive ways of charging referral fees are looked into. I suggest that he talk to the claims management regulator, because it will have seen most of the scams that came to light in relation to the miners compensation scheme. My right hon. Friend the Member for Blackburn has also highlighted some of the scams, or inventive ways in which people can get round the regulation of referral fees. I welcome the ban on referral fees, and I wish the Minister’s proposals well. I would, however, issue a word of warning in that he will need to look out for the various scams that people will come up with in order to get round it.

[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.

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[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.