Legal Aid, Sentencing and Punishment of Offenders Bill Debate
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Lord Clarke of Nottingham
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Legal Aid, Sentencing and Punishment of Offenders Bill
Lord Clarke of Nottingham Excerpts(13 years, 5 months ago)
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The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)
I beg to move, That the Bill be now read a Second time.
I shall try to observe your strictures, Mr Deputy Speaker, but this is a very large piece of legislation; I shall probably have to restrict the number of times I give way to interventions.
I am determined to reform the justice system in this country. Keeping the public safe, ensuring that those who break the law face the consequences and providing swift, cost-effective access to justice are fundamental responsibilities of the state towards its citizens. Yet the last 13 years of government have left us a system whose cost and scale have exploded and whose failings can no longer be tolerated.
In the area of criminal justice, more than 20 new Acts of Parliament, thousands of new criminal offences and a huge increase in the prison population cannot mask very deep flaws in the system. Briefly, our sentencing framework is a mess of byzantine complexity that even trained lawyers and judges—never mind the general public—find confusing.
Our punishments do not work. Community sentences are weak, asking little of offenders, and prisons have become so crowded that there is no space for governors to enforce regimes of meaningful work or reparation. Far too many prisoners are left idle in their cells, often on drugs. For that model, the taxpayer has the privilege of paying out an extraordinary sum—£44,000 per prison place per year. I have just been assured that the Ritz is even more expensive, so I slightly exaggerated, but £44,000 per prison place per year is enough to pay the salaries of two newly qualified nurses or teachers.
Mr Straw
I am grateful to the Lord Chancellor. We have heard about this alleged litany of failures. When the right hon. and learned Gentleman was Home Secretary, crime was at a post-war peak on both the measures that the Prime Minister used to discuss crime at questions earlier today. Since then, burglaries have dropped by 70%, thefts by 50%, and crime overall by 50%. Is the fact that the Lord Chancellor never, ever refers to the outcomes of our record due to the fact that that happened mainly under us or the fact that the process started under his successor, Michael Howard?
Mr Clarke
The idea that I set off a crime wave when I was Home Secretary is a charge that I will answer on some other occasion, frankly. As far as the decline in crime is concerned, the biggest decline has been in theft because car manufacturers made cars more secure. The courts used to be full of taking and driving away offences, but are no longer because it is more difficult to take the cars.
The fall in burglary coincided with an economic boom—one of the consequences that came from it. The 20-plus Bills that the right hon. Gentleman and his predecessors brought before the House—more than one criminal justice Bill a year—and the countless changes in sentences filled up the prisons, but in my opinion had no provable, demonstrable effect at all on the levels of crime in this country.
Mr Clarke
The right hon. Gentleman is an ex-Front Bencher. I will give way to him later, but I should observe the strictures of Mr Deputy Speaker, although I enjoy debating with the right hon. Gentleman. I should move on a little further into my speech.
As the right hon. Gentleman has heard me say before, reoffending rates are a national scandal; that is why the system is failing. Half of offenders—49%—have been reconvicted, in part because the system is not tackling the underlying causes of their criminality such as drug abuse, poor mental health and inadequate skills. The consequence of that failure is new victims of crime every day. Despite improvement, victims and witnesses too often still get treated as an afterthought, not a central concern of justice. That is why we need intelligent, radical reform of the criminal justice system to protect and serve the needs of law-abiding members of society.
Chris Leslie (Nottingham East) (Lab/Co-op)
Will the Lord Chancellor give way?
Mr Clarke
I will later, but let me deal with what we are having to tackle in civil justice. The sad truth is that it, too, has serious weaknesses. Courts should be accessible and efficient, but generally turned to as a place of last resort, not a first choice. But we have a litigious society and far too many cases go down the court route unnecessarily. Last year, more than three quarters of claims in the civil system set down to proceed to trial were settled before the trial took place. Many of those cases might have been resolved earlier, with different approaches aimed at simpler dispute resolution. Ordinary citizens find the law an expensive, daunting nightmare, not a public service.
Mr Clarke
I will in a second. Courts are slow and burdened by high costs and bureaucratic processes and procedures. For example, the average length of a public family law case in 1989 was 12 weeks; by 2010, it stood at 53 weeks, with similar cases taking four times as long as they used to.
Chris Leslie
I am grateful to the Lord Chancellor. Many victims of crime will be shocked at his proposals to limit the freedom of judges to remand a defendant in custody. Why is he limiting and fettering the ability of judges to put those defendants on remand?
Mr Clarke
I was going to argue this later; I will try to avoid repeating myself. I cannot understand why people are so incensed that people who are not going to be sent to prison might not be kept in prison awaiting trial. Every year, 16,000 people are refused bail, kept in prison, convicted and immediately given bail. A quarter of all the people kept in custody are released when they come up for trial. I shall come back to the matter, although I shall try to avoid repeating the same arguments. It seems to me that unless one is trying to fill up the prisons with people, that is one of the more obvious steps we can take. If they are not going to justify imprisonment when they get to trial, it seems to me pointless to refuse them bail, except in the case of domestic violence cases, where we have agreed to make an exception because we cannot grant bail to someone who is going back to live with the alleged victim of the domestic violence.
David T. C. Davies (Monmouth) (Con)
The Secretary of State will be aware that many people are remanded on bail because they refuse to turn up to court, causing the taxpayer all sorts of expense. Can he assure us that even if the crime committed is not one that would normally result in a jail sentence, people who consistently refuse to turn up to court will be remanded in custody?
Mr Clarke
No, I am sorry. I respect the right hon. Gentleman, but I must move on.
I have said that ordinary citizens find the civil law a rather nightmarish experience when they resort to it. Thanks to the present scope of legal aid and the way in which the no-win, no-fee system operates, many people and, in particular, many small businesses live in fear of legal action. I accept that access to justice for the protection of fundamental rights is vital for a democratic society—something on which I will not compromise. However, our current legal aid system can encourage people to bring their problems before the courts when the basic problem is not a legal one and would be better dealt with in other ways. The scope of legal aid has expanded too far. It cannot be right, for example, that the taxpayer is forced to pay for legal advice to foreign students whose visa applications are turned down. There are many other examples.
Our legal aid system also faces a completely unignorable problem of affordability. I have listened to arguments in the media today challenging that, but we have by far the most expensive system in the world, after Northern Ireland, where I am sure the same problem will be tackled. It costs £39 per head of population in this country, each year, compared with £8 in, for example, New Zealand, which has a similar system of law. In any circumstances our system would need reform; in the country’s current financial crisis reform is imperative.
I have some advice for Labour Members. I do not usually give gratuitous advice, but I think the Labour party is facing one of the problems that we faced in 1997. It should find the courage to admit that it made some mistakes and left some things in a mess. It has been acknowledged by my opposite number, the right hon. Member for Tooting (Sadiq Khan), that, on Labour’s watch:
“Playing tough in order not to look soft made it harder to focus on what is effective”—
wise words. I thought, when we set off on this process of consultation, I had the widespread support of many Opposition Members. I ask the right hon. Gentleman to reflect on the way in which he started his consideration before he gets on with the rest of the debate.
In fact, when Labour was in office, its strategy for our prisons and our courts was legislative incontinence combined with kneejerk populism. On prisons, the Labour Government made the mistake of being unable to make proper provision for the demand for places that they stimulated. Overcrowding devoured the very budgets that should have been used productively to cut reoffending and improve public safety in a lasting way. What was the final result that we all remember? They had to reduce the release point from two thirds to halfway through the sentence. They then had to resort to the financial chicanery of keeping the cost of building prisons off the balance sheet—the so-called Carter prisons. Finally—the ultimate absurdity—they had to let out 80,000 prisoners early, before the end of their sentence, to offset the cost of the allegedly tougher sentences that they had imposed. That is why we need reform now—to reverse that nonsense.
On wider justice matters, the Labour Government proved little better at getting a grip. They had 30 consultations on legal aid from 2006; they did not act decisively, put the system on a sustainable footing or address the litigiousness to which its excessively widely available funding contributed.
Sir Alan Beith (Berwick-upon-Tweed) (LD)
My right hon. and learned Friend has had a consultation, to which I hope he has listened, particularly in respect of criminal negligence affecting children with multiple injuries that may have resulted from birth. It is not clear to me yet that the Government have found a way of ensuring that that very deserving and small group of people will have access to justice and to the settlements that they need.
Mr Clarke
We have addressed clinical negligence, a large part of which is now conducted on a no-win, no-fee basis. That is the way we should proceed. Clinical negligence cases of the kind to which the right hon. Gentleman refers are especially expensive and it is quite difficult to decide whether to proceed with them, so we are making special arrangements, particularly for the expensive medical reports that have to be obtained before a case can properly be decided on. We are making arrangements to make the insurance reimbursable in those cases. I would also like to see a system developed by the NHS litigation authority and the best of the practitioners to exchange expert medical reports at a very early stage, so that we can avoid unnecessary litigation about whether a tragic disaster to a newborn baby was actually a natural tragedy or the result of negligence, and so that such cases need not drag on for the many years that they can take to go through the courts. I accept that that is a special case, and we considered it carefully during the consultation. We made quite a lot of changes during the consultation, some of which were referred to dramatically in outside comment.
Nicky Morgan
I hear what the Secretary of State says about the failure of the last Government to tackle the burgeoning legal aid system. Did they not also fail to tackle the complexity of other departmental work that our citizens advice bureaux, which do such valuable work, help with—for example, Department for Work and Pensions forms? The Government’s response hints at a review of some of the other parts of legal aid which will inevitably have to be cut. Will the Secretary of State give more detail about that review and about whether the burden will be shared across Departments?
Mr Clarke
Yes, I will. I try to avoid jumping from subject to subject, because it is such an enormous Bill, but I promise my hon. Friend that I shall return to the whole question of alternative forms of advice and the CABs, and make an announcement at a later stage in the proceedings on the Bill.
Bridget Phillipson
Another aspect of the changes to legal aid is the removal of legal aid from women applying for indefinite leave to remain under the domestic violence rule. In an answer to a parliamentary question, the Minister for Immigration reported that only 710 women were granted that, so we are not talking about a considerable number, but they are very vulnerable individuals. Will the Secretary of State think again on that aspect of his proposals?
Mr Clarke
Indeed. Ministers have talked about the matter and considered it carefully, and I leave it to my hon. Friend to give an authoritative reply in his winding-up speech.
I hope that I have already indicated that the mess that we have inherited requires a bold, sustained and principled effort, not salami slicing and half-measures. The Bill is one part of the balanced package of reforms that is needed. Unusually, I made a full statement to the House last week on the subject, and it was debated for one and a half hours, so I do not propose to repeat in depth what I said then. Let me turn to the inevitable controversy that any measures on criminal sentencing are bound to provoke. It is a natural part of contemporary political debate to simplify the subject and to make extremes out of it all. I am resigned to the fact that on law and order issues above all there is a tendency to polarise, and to frame reforms as either dry and tough, or wet, soft and liberal. The truth is somewhere in between. The aim of the measures I proposed was to consult on a balanced package, and it remains so.
The measures address the weaknesses that we inherited. For serious crime, the public must have confidence in the system of effective punishment and just retribution, so my reforms include, for example, introducing a 40-hour working week across the prison estate to introduce productive hard work into prisons in place of enforced idleness.
The Bill toughens community sentences by allowing courts to curfew offenders for longer—16 hours a day for up to 12 months—and to ban them from going abroad. As I signalled last week, we intend to introduce measures to clarify householders’ rights of defence and to consult on criminalising squatting.
The Bill creates a new offence of possessing a knife to threaten or endanger a person, with a prison sentence of at least six months for over-18s to send a clear message to those who possess a knife to threaten others.
We are conducting a review with the intention of replacing the discredited sentence whereby people are locked up for an undetermined and indefinite time—the so-called imprisonment for public protection—with a tough determinate sentencing regime. I propose to deliver a system that offers better reparation to victims. The Bill will replace and augment the Prisoners’ Earnings Act 1996, which the previous Government never implemented—it was a Conservative measure. This will allow us to deduct wages from prisoners so that instead of their just being a drain on the system we can deduct money to help to pay for services for the victims of crime. The Bill places a positive obligation on courts to make offenders pay compensation directly to victims.
Paul Goggins (Wythenshawe and Sale East) (Lab)
The Lord Chancellor mentions the review of indeterminate sentences. My concern is that he will reach the wrong conclusion. When he conducts his review will he look at experience in Northern Ireland, where extended and indeterminate sentences have been available since 2008 but where, crucially, the assessment of danger is left in the hands of judges? It is a smaller system, but in the three years since its introduction there have been only 63 extended sentences and seven indeterminate sentences. Public safety has been combined with manageable numbers: will he look at that experience?
Mr Clarke
We are having a review, so I will look at that. Legislation was enacted in 2003, in the belief that a few hundred people might be affected. It commenced in 2005. The previous Government, of whom the right hon. Gentleman was a member, tried to reform it in 2008, because it was already out of control. I proposed further reforms in the Green Paper, and a very large number of people in the criminal justice system said that the legislation should be repealed. Last week, I quoted David Thomas, the author of “Thomas on Sentencing”, who described the whole thing as an unmitigated disaster. I will look into the right hon. Gentleman’s suggestion to see whether some aspects of the Northern Irish system might be appropriate.
After punishment and reparation comes rehabilitation to reduce reoffending, which is at the core of our process of reform. Sentences must be punitive and reformative. The Bill will help to ensure that more offenders with drugs, alcohol or mental health problems are addressed and receive treatment at the earliest opportunity.This complicates our efforts—
Mr Clarke
Complements—it might do both, but I hope it will complement our efforts to tackle drugs in prison.
Drugs are widely available in prisons, but we shall start by introducing drug-free wings. My single most radical proposal on rehabilitation is a non-legislative change to introduce a fundamental shift in how we approach the issue by paying by results to unlock private capital, benefit from the innovation of the voluntary sector and get the whole system pulling in the same direction. We will pay providers a return on their ethical investment for what works in the public interest: turning criminals into ex-criminals should be an object of the system.
Jeremy Corbyn (Islington North) (Lab)
I am interested in the Secretary of State’s comments on the number of people in our prisons who, unfortunately, suffer from mental illness and need support and treatment, which is often inadequate. Will he recognise the greater problem: that many people who need support with mental illness or who are experiencing mental health crises do not get it, and there are insufficient resources and insufficient understanding among the police and others that the real cause of minor offences often is mental illness and nothing else. We need a more sympathetic, supportive and therapeutic approach to dealing with these poor, unfortunate people.
Mr Clarke
My right hon. Friend the Secretary of State for Health agrees with the hon. Gentleman and me. My ministerial team and my right hon. Friend’s ministerial team have been holding discussions. My right hon. Friend has a strategy for trying to improve mental health services to the population as a whole. As part of that we are addressing what can be done to help the mentally ill who find themselves in prison. Some of them should be diverted from the criminal justice system altogether; some can be better treated in secure accommodation in the national health service; and many can be treated better than they are at present when being incarcerated in prison is not suitable. I assure the hon. Gentleman that my right hon. Friend and I share his concern.
Underpinning punishment, reparation and rehabilitation is what might be called system reform—simplification, restoration of discretion to judges and the relief of unnecessary pressures on the system. At the same time we must take a more robust approach to costs in the system, including that of prison. We have already shown that through competition it is possible to get prison costs down while improving service quality. Key measures in the Bill include reforming the use of remand. I dealt with this a moment ago. I have told the House that preventing reoffending is the central idea of my reforms. One of the main barriers to doing things in the past few years has been the fact that the prisons have been clogged up, sometimes with people who do not need to be there at all. I will not repeat the arguments that I made a moment ago that give rise to the part of the Bill that restricts the power of courts to remand those who have no reasonable prospect of receiving a custodial sentence, with the exception that I have already described of cases of domestic violence.
Mr Straw
In answer to the hon. Member for Monmouth (David T.C. Davies) the Secretary of State said that where a defendant failed to return to court on time, the court would still be able to remand him in custody so that he could get to court. The Secretary of State clearly spoke in error, because if he looks at page 166 of his own Bill he will see that paragraph (5) to schedule 10 makes it absolutely clear that even where a defendant has failed to surrender to bail and has been arrested he cannot be detained in custody to appear in court unless there is a real prospect of his subsequently being sentenced to imprisonment. How will the public be made safer or witnesses protected by that?
Mr Clarke
I will address the extent to which we retain discretion, as determined under the bail Acts, according to which bail is granted or refused. In 2010, more than 16,000 people were in custody but were released when they appeared for trial and either pleaded guilty or were convicted. Continuing a system whereby people are refused bail when everyone knows that they will not be imprisoned if convicted is a very wasteful use of a very expensive place in our prison system.
Anna Soubry (Broxtowe) (Con)
Someone who breaches bail commits a criminal offence and can therefore, and usually does, receive a custodial sentence, especially if they did not attend court when they should have.
Mr Clarke
I am grateful. My hon. Friend has been in practice much more recently than the right hon. Member for Blackburn (Mr. Straw) or I have. We will doubtless continue to study this after the debate.
The sentencing reforms are balanced. Again, I shall quote the words of my shadow, the right hon. Member for Tooting, who when I first published them in the Green Paper described them as
“a perfectly sensible vision for a sentencing policy”,
and they will in my view achieve a very significant transformation.
That brings me to the rest of the Bill covering legal aid and provision on litigation and funding. No Government look to tackle legal aid lightly, but the system as it stands is obviously unaffordable. Labour had 30 goes at fixing it between 2006 and the end of their period in office and we have sought to go back and think about what the taxpayer should pay for by way of litigation from first principles. Our priority is cases where people’s life or liberty is at stake, where they are at risk of serious physical harm or immediate loss of their home or where their children may be taken into care. After our reforms, legal aid will routinely be available in 25 areas, including for criminal cases, for most judicial review proceedings, for private family law cases involving domestic violence, child abuse and child abduction, for community care, for debt where the home is at immediate risk, for mental health cases and for cases concerning special educational needs. We modified our original proposals in response to consultation, listening carefully to the thousands of responses that we received.
Legal aid will no longer be routinely available in 13 areas, including most private family law cases, clinical negligence cases, non-discrimination employment cases, immigration cases, some debt and housing issues, some education cases and welfare benefits cases.
Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC)
How does the Lord Chancellor square what he is saying with what Baroness Hale of the Supreme Court has said about this being a ludicrous Bill and how these provisions will disproportionately affect the most vulnerable in society, particularly people from ethnic minorities?
Mr Clarke
I have always had a high regard for Baroness Hale, who is a very distinguished lawyer, and I have heard of her opinions. I shall have to study them and perhaps even meet her to discuss them, because I am surprised by her response. Where we started from was ensuring that we did not damage access to justice for vulnerable people in matters of such importance that society as a whole would want to be sure that they were protected. Either she has misunderstood the effect of our proposals or why we are doing it. We have to get back to spending an affordable amount of money on paying for things that the taxpayer should actually pay for to defend the vulnerable. We all start as lawyers, let alone as citizens, with a slight bias in favour of legal aid because everyone is used to it, but the scale of legal aid has expanded, its scope is too wide and it needs to be reformed.
Mr David Burrowes (Enfield, Southgate) (Con)
I am grateful to the Lord Chancellor for saying that legal aid will be available to defend the vulnerable. I declare an interest as one who has been a duty solicitor in the police station. I would like him to consult carefully about the practical implementation of proposals to limit legal aid for advice and assistance in police stations, given that his officials no doubt bear the scars of previous implementations that became bureaucratic nightmares. Losing the benefit of the informed legal advice that one needs in the police station can lead to inefficient justice.
Mr Clarke
We will look at that and consider it carefully as we proceed. At the moment, the Bill replicates a provision taken from an earlier Bill by the Labour party. It appears to give a power to take away the right to legal aid. It appears to give a power to take away access to legal advice in the police station. The last Government legislated to do that but never did it. We have no current intentions of doing it. We will consider the issue and no doubt my hon. Friend or others will return to it in Committee. I realise that there has been some concern.
Kate Green (Stretford and Urmston) (Lab)
At the annual general meeting of Liberty earlier this month, the right hon. Member for Haltemprice and Howden (Mr Davis) said that the Government should reconsider their plans to remove certain categories of social welfare law, at least for a period while Government reforms elsewhere in the system—such as welfare reforms—create increased demand for advice. Will the Lord Chancellor accept that excellent advice from his right hon. Friend and protect those categories of legal aid, at least during a transition period?
Mr Clarke
We have consulted very carefully on legal aid, on both parts. We have made quite significant changes to what we originally proposed. On welfare benefits, we are still of the opinion that the welfare system was not intended to provide a source of litigation where legal advice was required to take an appeal in the last resort to a tribunal. That was not intended to be a legalistic activity but to try to apply what my right hon. Friend the Secretary of State for Social Security is trying to make more comprehensible by dealing with the rules of entitlement to social security in a sensible fashion. I do not think it is a promising area for legal advice.
Joan Ruddock
I was present at Lady Hale’s lecture and wrote down what she said:
“Courts should be and are a last resort but they should be a last resort which is accessible to all––rich and poor alike.”
Let me tell the Lord Chancellor this now: my constituents are people who need advice on immigration, on welfare and on housing and whose very lives can be wrecked by the fact that they cannot get legal assistance. Where am I to send them? How are they to get justice with the provisions in his Bill on legal aid and on no win, no fee?
Mr Deputy Speaker (Mr Nigel Evans)
Order. May I remind the House how many Members wish to contribute? Our mission should be to limit our interventions.
Mr Clarke
I have already said that access to justice is fundamental, but the fact is that the taxpayer’s money cannot be used to give access to justice to large numbers of people in large areas of law where the ordinary citizen would not contemplate litigating because the ordinary citizen on an ordinary income would not think that they could afford to embark on it. That is why we consulted very carefully. We concentrated on vulnerable people and on those areas that were of such importance that society as a whole would plainly feel that there was a need to finance people of limited means so that they could have access to justice. I ask the right hon. Lady to judge all our proposals on that basis. Lady Hale seemed to think that we were abolishing other access on the basis that people were using it too much. That is not the reason. But we do have a system that is four times as expensive as that of New Zealand. We have to concentrate the mind and decide what it is justified to expect the taxpayer to pay for.
Mr Clarke
I shall follow your helpful steer, Mr Deputy Speaker, and make progress. I realise that these are important matters, but I could find myself giving way to everyone in the Chamber.
Few of these are easy choices, but they often involve disputes about financial issues rather than life and liberty. It is sensible to give such things as financial disputes a lower relative priority. It is sensible, too, to address areas that the public consider unreasonable. For example, we are cutting out legal aid for squatting. Following representations from the Judges Council, we are ending legal aid for some repeat judicial reviews on immigration and asylum cases that have already had a hearing and where repeated review is being used only to obstruct and delay proceedings.
Across some of these areas, reformed no win, no fee arrangements will be available, but our broader ambition is that people will be encouraged to use alternative, less adversarial means of resolving many of these important problems. For private family law cases, the Government are increasing spending on mediation and legal advice in support of mediation by two thirds, or £10 million, to a total of £25 million a year. Mediation has a high success rate––about 75%––in resolving most of the family disputes that go before it.
We have made no blanket funding exclusions. The Bill establishes an exceptional funding scheme for exceptional cases, administered by a statutory office holder free of ministerial control. That will provide funding for an excluded case where in the particular circumstances the failure to provide support would be likely to result in breach of the individual’s right to legal aid under the Human Rights Act 1998 or European law.
Elizabeth Truss (South West Norfolk) (Con)
Will my right hon. and learned Friend give way?
Mr Clarke
Let me deal with this important point, because I have heard widespread concern, including from my hon. Friend the Member for Loughborough (Nicky Morgan), about the future of not-for-profit advice centres. I agree that they do important work in providing quality, worthwhile advice of the kind required by very many people who should not need adversarial lawyers. Legal aid represents only one of several income streams for many organisations, with 85% of citizens advice bureaux funding coming from other sources. Half of all bureaux get no legal aid funds at all. This issue needs to be, and has been, considered on a cross-Government, interdepartmental basis. We are working with the sector and across Government to ensure that the Government reforms help to improve the efficiency and effectiveness of the advice services available to the public, and we will provide up to £20 million of additional funding in this financial year to help achieve that. We are also, of course, mindful of the impact of reforms beyond this financial year and will continue to consider the issues arising from that.
Oliver Heald (North East Hertfordshire) (Con)
Will my right hon. and learned Friend give way?
Mr Clarke
Not at the moment; I shall carry on a little further.
In addition to the changes to the scope of legal aid, the Bill includes wider reform provisions, as some reform of the situation that we inherited is urgently and obviously needed. I do not believe the public understand a system that can pay out millions of pounds from taxpayer-provided central funds to compensate acquitted companies and wealthy people for their legal costs, whether that involves the £21 million paid to the firms in the Hatfield rail crash case, the £18 million paid to a number of pharmaceutical firms accused of price fixing, or the hundreds of thousands of pounds that have on occasion gone to celebrities accused of affray, assault and other crimes.
Part 2 of the Bill therefore establishes that defendants who decline legal aid and pay privately in the higher criminal courts will no longer be able to recover the costs of an expensive private lawyer if acquitted. In the magistrates’ courts, the sums recoverable will be limited to legal aid rates. Firms will be expected to insure against criminal prosecutions, and will no longer be able to recover costs from the taxpayer.
The Bill is therefore about delivering reform across the justice system, and we have tried to think about that in a joined-up way. Let us consider problems often affecting women—about which Lady Hale was concerned when she spoke the other day. For victims of crime, I have recently announced funding for 15 rape crisis centres on a more secure long-term basis than in the past and funding for four new centres. For women using the justice system, in our legal aid reforms we are prioritising those cases where there is greatest risk of harm, retaining legal aid for cases involving domestic violence, child abuse and child abduction, and we have broadened the range of evidence accepted.
In private family law, the taxpayer is increasing funding for mediation and legal advice in support of mediation. More broadly on family cases, part 2 of the Bill extends the powers for courts to require one party to pay towards the other’s legal bills in some cases where resources are not equal. For example, when a couple have parted and the man remains very prosperous whereas the woman is almost penniless and is seeking some remedy, the court will have the power to require one party to pay towards the other’s costs. In public family law, the taxpayer will still be providing more than £400 million for family legal aid.
For female offenders in the criminal justice system, we have not replaced—and I have never proposed replacing—short-term prison sentences with community sentences, but if we can increase confidence that community sentences will be meaningfully punitive, they could make the justice system more sensible in some situations, such as in ensuring that there are decent non-penal options for offenders with caring responsibilities where their being sent to prison would cause chaos for innocent children in their families. In dealing with women prisoners and offenders, we are, in fact, proceeding on a very similar basis to the previous Government.
My vision is a legal system that is substantially reformed. In addition to implementing changes to legal aid and the Jackson proposals on no win, no fee, my Department is developing and supporting work to improve civil legal processes, criminal justice efficiency and family justice. It is a measure of the challenge before us that the Bill, which on any measure is a huge Leviathan of a piece of proposed legislation, is only part of the overall reforms we need to deliver. The changes we are making are, of course, financially necessary, but they will also make the system more sensible and civilised.
I never shrink from robust debate about improvement to important and sensitive public services, and changes in the criminal law have always excited an extraordinary level of controversy, and they always will. If we get this right, however, the prize is a justice system that properly contributes to a safer, fairer society, and a justice system that is user-friendly, that works, that does not deny access to justice and that has less daunting waste, with costs under control. I would, in fact, have liked to introduce such a major reforming Bill 20 years ago, if I had stayed long enough at the Home Office. I now have the opportunity to do so, and I commend the Bill to the House.
Sadiq Khan (Tooting) (Lab)
I usually take all interventions, but today I shall try to observe your recent stricture on that, Mr Deputy Speaker, as I know that many colleagues wish to discuss the Bill.
The Government’s approach to criminal justice is in tatters. We have a hotch-potch that does nothing to win the confidence of victims, of people in the justice system or of the public at large. This Bill is controversial as much for what is absent as for what has found its way in. Key policy areas that were consulted on are absent and others are to be the subject of further review, while there are some clauses on issues that were not consulted on at all. The Lord Chancellor knows as well as I do that within weeks, if not days, of this Bill moving to Committee, there will be a flood of new amendments and new clauses. After 13 months, three Green Papers and three consultations, there is no excuse.
Last week, the Prime Minister unveiled the right hon. and learned Gentleman’s legislation in his absence. A number of eye-catching proposals were announced on squatting, self-defence and knife crime. The favourable coverage they received was precisely the Prime Minister’s aim. Suddenly, because of the Prime Minister’s last-minute intervention, the Bill was spun as being tough on crime. Even the words “punishment of offenders” found their way into the name of the Bill, but we must be clear from the start: the clause on knife crime is still a Conservative broken promise. It is not what the party promised in its manifesto. The new offence of aggravated knife possession carries a mandatory six-month sentence, but applies to a much narrower category of cases of those caught carrying a knife. The offence of aggravated knife possession is using a knife to threaten someone, and that is already a crime; the sentencing guidelines already recommend a minimum sentence of six months. It is not even properly mandatory. A court will not have to hand down the sentence; it will be up to the judge to decide, given the circumstances of the case or the offender. Knife crime is a persistent and worrying concern, and it impacts in particular on young people and the disadvantaged. It is unclear how this hollow proposal will help communities blighted by knife crime.
Two other headline grabbers—squatting and self-defence against burglars—are not even in the Bill, but as the Justice Secretary has admitted today, the provisions on self-defence will not be a new law; they are just a reiteration of the existing law. This is yet another chapter in a rather depressing story that has been repeated since May 2010: a string of broken promises on criminal justice. Before the election, there was a commitment to match Labour’s prison building programme. Instead, spend has been slashed to almost zero. The Tories promised minimum and maximum sentencing, but that has now also been ditched, and the electorate were promised that those caught carrying a knife would face the presumption of jail, yet what we have been presented with is entirely different.
Let me also give an accurate account of our record. The Justice Secretary inherited levels of crime that were 43% lower than in 1997; crime went down under Labour. He inherited a system with a greater focus on diversion for those with mental health problems and drug dependencies. He inherited a capital programme upgrading and expanding our prison estate. He inherited innovative payment-by-results schemes, including the one he now boasts about in Peterborough. Reoffending, particularly among young people, fell under Labour, thanks to investment in effective intervention programmes now threatened by his Government. This Bill risks all that progress.
That has generated an impressive coalition opposed to the plans, from the judiciary, victims groups, legal organisations, charities that act on behalf of some of the most vulnerable in society, and some of the Justice Secretary’s own party’s Back Benchers—but not, I note, from the Liberal Democrat Benches. Briefing note after briefing note from organisations as diverse as Scope and Justice demonstrate that the Prime Minister’s perceived rescue of the justice Bill is fooling no one.
I support penal reforms, but these are the wrong reforms: carelessly thought out, badly framed, confusingly argued, weakly handled and grossly under-resourced from the start. It will be communities around the country that suffer.
Mr Kenneth Clarke
I am glad to hear that the right hon. Gentleman is in favour of penal reform, but he has not, so far as I am aware, made a single suggestion on that. Will he give us one or two examples of the liberal reforms that he has in mind?
Sadiq Khan
The right hon. and learned Gentleman will be aware of our progress in relation to mental health, following the Bradley report, which he has now agreed to follow with a reduced budget. He will also be aware of the work done by Corston on diverting women away from prison, and of payment by results. He knows that he has under-resourced the work that we began, and he is putting our strategy at risk.
Shambolic, last-minute changes to the Bill have left a £140 million black hole in the Justice Secretary’s plans. The Prime Minister has said that that money will need to be found within the Ministry of Justice budget, and the Justice Secretary admitted this morning that he is not sure where he will find it. The House needs to know the exact details. The progress of the Bill depends on knowing where that money will come from, and what implications that might have on other spend.
Why do we have this problem? We have it because the Justice Secretary simply failed to argue his corner with the Treasury. He boasted that he did not wish to be involved in a “macho contest” with Cabinet colleagues over who could have the smallest budget cut. The figures are testimony to that: his budget cut of 23% is one of the biggest in Whitehall. As a result, that is how he justifies his ill-thought-out policies. Cuts to prison, probation and the legal aid budget all stem from his lackadaisical attitude towards the Treasury. He needs to realise that he is no longer the Chancellor of the Exchequer, but the Lord Chancellor. His justice policy is retrofitted around his prison population reduction target, which is in turn driven by the 23% budget cuts. Our justice system deserves a better advocate.
Sir Alan Beith
I must conclude, so I shall give way only to the Secretary of State.
Mr Clarke
The reason why we did not deal with that part of Jackson was because the Legal Services Board had taken it on itself to review the future of referral fees. We now have its report and the Under-Secretary of State for Justice, my hon. Friend the Member for Huntingdon (Mr Djanogly), and I are considering referral fees. I take on board what my hon. Friend the Member for Cardiff North (Jonathan Evans) and the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) have been saying.
Sir Alan Beith
I am grateful to the Secretary of State. I know no one who agrees with the Legal Services Board’s conclusions, but I hope that the matter will be considered urgently to see whether the Bill can be used to complete the process of dealing with what is undoubtedly a scandal, which puts up costs for our constituents.
The Bill is part of a necessary process of reform in both sentencing and legal aid, but it needs a great deal of work before it leaves this House and a great deal of monitoring when it comes into force.
Mr Straw
No, of course I will not. The explanatory memorandum makes exactly the same point.
Let me address the issue of indeterminate sentences for public protection. I entirely endorse what my right hon. Friend the Member for Tooting (Sadiq Khan) has said from the Front Bench. The Secretary of State made one of his sweeping statements, saying that those sentences have been discredited. No, they have not. Who has discredited them? He has, because he has been forced to save money on indeterminate public protection sentences having had to surrender the 50% cut in the bail discount, as he well knows. IPPs have worked.
The Secretary of State comprehensively failed to answer the hon. Member for Shipley yesterday, when the hon. Gentleman said that the reoffending rate for IPPs has been spectacularly successful—of the 1,449 people released, only 11 have reoffended. The Secretary of State laughs, but what we are dealing with here is the most serious offenders who, under the law, are expected to show that they would go straight, if they were released. He is laughing, but the laugh will be on the other side of the Conservatives’ faces when and if his measures go forward and people are released before it is safe for them to be released and they commit further offences. He will be the person to blame for that.
Mr Kenneth Clarke
The right hon. Gentleman is referring to the 200 people who have been released, but more than 6,000 of them are still in prison with no idea when or if they are going to be released. Their reoffending rate is, I agree, very low, but that is not a justification for the system. The vast majority of respondents to our consultation regard it as something of a disgrace that the measure has been put on to the statute book and is working in this way.
Mrs Grant
The problem is that not all cases can be mediated, and the difficult ones—the ones that we are dealing with—usually end up in court anyway.
The plans have telephone advice as an alternative to a trusted and recommended solicitor, but the law is complicated. The law can be an ass, and it is not easy to understand. Having tried to explain maintenance pending suit or some other aspect of the Matrimonial Causes Act 1973 to a frightened and vulnerable litigant, I can tell hon. Members that it makes clients feel frustrated and confused and leaves solicitors feeling quite inadequate.
The plans badly impact on women, especially in the categories of family, education and housing law. Some 75% of domestic violence victims are women, 90% of single parents are women, and 97% of those who are eligible for child maintenance are women. Women are more likely to be in non-unionised jobs, and men are more likely to be financially better off and able to pay privately.
Over the years, my firm has looked after about 14,000 clients in south London, Surrey and west Kent. The family profile that I describe is, sadly, not unusual. One mother presented with some learning difficulties and a history of self-harm and drug abuse, but says that she is now clean. She has three children, all girls, with three different fathers. The father of the eldest daughter sought a residence order and a contact order. Mother and daughter were resistant in view of the father’s history of bullying and drunkenness. There were no previous injunction orders, but many police call-outs. All the girls were having problems at school, and the middle daughter had been diagnosed with ADHD—attention deficit hyperactivity disorder. The school had threatened suspension due to disruptive behaviour. The mother was on income support and was being chased by loan sharks due to debt. She was feeling suicidal and was on antidepressants. All the children were on the child protection register.
When I took instructions from that lady, judging by her physical appearance and demeanour, I thought that she was about 50. It was only when I asked her for her date of birth that I realised that she was just 25 years old. Under the current plans, that highly vulnerable woman would not be entitled to help with residence and contact applications, debt problems or her children’s educational difficulties. That is what family life is like for many in our country. Those are the people who rely on the family courts and legal aid to resolve their problems. Tragically, the children growing up in such families are watching and learning bad behaviour, have absent boundaries, and are breeding future generations of victims and perpetrators. It is a vicious circle.
Legal aid cost £500 million in 1982. The cost is £2 billion today. I make no case for ring-fencing from the cuts, and I see a genuine need for reform.
Mr Kenneth Clarke
I have a high regard for my hon. Friend’s expertise on the issue, which greatly exceeds mine as a result of her practice. The case that she makes is moving, but surely such things do not lend themselves to litigation. Our argument is not that we will leave such people with no support at all, but that legal advice and litigation are not the best way of proceeding to resolve important social and family problems of the kind that she describes.
Mrs Grant
If matters such as residence and contact can be resolved without litigation, as they sometimes are, that is a good thing. Unfortunately, a woman in the situation that I have described and a man who has historically been difficult, drunken and abusive might not, regrettably, be able to sort things out.
We must accept that the past 50 years have created a social mess, caused largely by the demise of the family unit and stalling social mobility. We cannot pull the rug from under the feet of 500,000 people who have no genuine alternative. Civil liberty is about the freedom of our nation; civil legal aid is about protecting citizens. For some, civil legal aid is the only sword and shield in their armoury. We must therefore wear kid gloves when handling that delicate aspect of the public purse. For all the above reasons, I hope that further significant changes will be made to this important Bill in Committee and on Report.
Pat Glass (North West Durham) (Lab)
I want to speak today about legal aid and social welfare law, not because I am an expert in either, but by drawing on my many years’ experience in education and my year as a new MP. Before that, however, I want to comment on today’s debate. As with many debates, some hon. Members have popped in, ranted a bit and left, but overall this afternoon I have sat through some of the most informed and thoughtful contributions that I have ever heard in the House. They have come from Members on both sides of the House and indicate the level of concern on both sides. It was a shame that the Lord Chancellor was not here for the contributions from his colleagues the hon. Members for Maidstone and The Weald (Mrs Grant) and for Dewsbury (Simon Reevell).