Serious Further Offence Review (Jon Venables)

Lord Clarke of Nottingham Excerpts

Tuesday 23rd November 2010 Written Statements

[The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)]

Following the recall to custody and subsequent conviction of Jon Venables for the possession of indecent images of children, I commissioned Sir David Omand GCB to undertake an independent review of the post-release period of the case, covering Jon Venables’ supervision from release on life licence in June 2001 until 24 February 2010, when he was recalled to custody.

The review has encompassed the general principles of a serious further offence (SFO) review but has also considered the wider lessons to be learnt for the future management of this and similar cases.

The terms of reference of the review were:

to review the supervision of the subject, from his release on life licence until his recall to custody, in order to establish whether he was effectively supervised, having regard to national standards and guidance and to the particular circumstances/challenges of his case;

in doing so, to consider the actions of his offender managers, their supervisors, the local police, the local MAPPA meetings and the role of the National Management Board; and

to establish whether everything was done which might reasonably have been expected of all agencies involved in supervising the subject to monitor his compliance with his licence conditions and to assess and manage any risk of harm which he presented.

Sir David Omand has completed the review and submitted his report to me.

I have placed in the Libraries of both Houses a copy of his report, which has been redacted in a few places to comply with the terms of the injunction amended in the High Court on 23 July 2010 (commonly known as the Butler-Sloss injunction), to take account of data protection and other confidentiality laws and to protect very sensitive operational policing information.

Sir David has concluded that Jon Venables was effectively and properly supervised at an appropriate level and frequency of contact, having regard to the particular circumstances of his case. Sir David also concludes that no reasonable supervisory regime would have been expected to detect his use of the computer to download indecent images.

I have accepted the review’s recommendations, which will be taken forward by officials in the National Offender Management Service. Officials will provide me with an update on the implementation of the recommendations in due course.

Guantanamo Civil Litigation Settlement

Lord Clarke of Nottingham Excerpts

Tuesday 16th November 2010 Commons Chamber

[The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)]

With permission Mr Speaker, I would like to make a statement. On 6 July, the Prime Minister told the House that the legacy issues the Government had inherited around the treatment of detainees held by other countries needed to be addressed. Our reputation as a country that believes in human rights, justice, fairness and the rule of law otherwise risked being tarnished. There was also the risk of public confidence being eroded, with people doubting the ability of our security and intelligence agencies to protect us and questioning the rules under which they operate.

The Government are absolutely clear that national security and the protection of the rule of law go hand in hand. The Prime Minister has repeatedly made it clear that this coalition Government are unswerving in their opposition to torture or the ill-treatment of prisoners or detainees. We do not condone it, nor do we ask others to do it on our behalf.

We recognise that our longer-term security interests require that we defend our values and the rule of law, and that any allegations that threaten those must be treated seriously. In tackling the challenges posed by those serious allegations, the Government’s overriding objective is to ensure that the security and intelligence agencies can focus on their vital task of protecting the security and interests of the UK, and that the serious allegations that threaten their reputation and that of our country are examined properly. The security of this nation is the first concern of any Government. The security and intelligence agencies play an invaluable part in ensuring our security, and the Government are determined that they are free to do the vital job that we need them to do.

In his statement, the Prime Minister said that a single, authoritative inquiry was required to investigate the serious allegations of the Government’s complicity in the mistreatment of detainees held by other countries. The right honourable Sir Peter Gibson was appointed to head that independent inquiry. However, the Prime Minister also made it clear that the inquiry could not begin while related police investigations were ongoing and while so many of the Guantanamo civil law suits brought against the Government remained unresolved. To help to pave the way for the inquiry to begin, the Government committed to entering into a process of mediation with those held by the United States in detention in Guantanamo Bay who had brought civil actions against the Government.

I can today inform the House that the Government have now agreed a mediated settlement of the civil damages claims brought by detainees held at Guantanamo Bay. The details of that settlement have been made subject to a legally binding confidentiality agreement. They have been reported in confidence to the Chairman of the Intelligence and Security Committee of the House, to the National Audit Office, and, I think, to the Chair of the Public Accounts Committee.

[Margaret Hodge (Barking) (Lab)]

indicated dissent.

[Mr Clarke]

Ah. No.

No admissions of culpability have been made in settling those cases and nor have any of the claimants withdrawn their allegations. This is a mediated settlement. Confidentiality is a very common feature of mediation processes, as in this case. Confidentiality was agreed by both parties, subject to the necessary parliamentary accountability and legal requirements. I hope that the House will understand that I am unable to comment further on the details of the settlement without breaching that confidentiality with the claimants.

The alternative to any payments made was protracted and extremely expensive litigation in an uncertain legal environment in which the Government could not be certain that we would be able to defend Departments and the security and intelligence agencies without compromising national security. The cost was estimated at approximately £30 million to £50 million over three to five years of litigation. In our view, there could have been no Gibson inquiry until that ligation was resolved.

The Government will make a further statement to the House when the relevant police processes have been completed and the inquiry is in a position to begin its work. The mediated settlement actually represents a significant step forward in delivering the Government’s plan for a resolution of those issues in the interests of both justice and national security. The settlement has the support of the heads of the Security Service, the Secret Intelligence Service and the Whitehall Departments involved. The Security Service and the SIS are issuing a public statement to that effect today.

In his statement, the Prime Minister also announced plans for a Green Paper on the use of intelligence in judicial proceedings, which we hope to publish in the summer of 2011. It will examine mechanisms for the protection and disclosure of sensitive information in the full range of civil proceedings, inquests and inquiries. We will also consider complementary options to modernise and reform existing standing intelligence oversight mechanisms. The Government are engaging with relevant parliamentary bodies, key stakeholders and our international partners in developing these proposals further. Today’s announcement is a very important step forward, and we are closer now to getting the important Gibson inquiry into all these allegations finally under way.

[Sadiq Khan (Tooting) (Lab)]

I thank the Justice Secretary for advance sight of his statement and for our meeting earlier today. I welcome his decision this morning to make this an oral statement to the House, rather than the written statement originally planned. I would also like to put it on the record at the outset that up until November 2004, I was a senior partner at a law firm that acted for a number of the Guantanamo Bay detainees.

Does the Secretary of State agree that statements as significant as this should be made first to the House before they appear in the media? Will he therefore join me in raising concern that this extremely important announcement was leaked to ITN’s “News at Ten” programme last night?

On the substance of the right hon. and learned Gentleman’s statement, the House is united in its complete rejection of torture and mistreatment. That goes for the practice of and collusion or complicity in torture. It is illegal, it is internationally banned, and no Government should have anything to do with it. The Labour party has been, and will remain, completely opposed to Guantanamo Bay. We took action in government to remove all the British citizens and all but one resident from Guantanamo Bay, and my right hon. Friend the Member for South Shields (David Miliband) ensured that Britain’s Government were the first to get all their citizens out of there. What steps are this Government taking to secure the release of the one remaining resident still in Guantanamo Bay, Shaker Aamer? I note that the hon. Member for Battersea (Jane Ellison), who represents his family, is in her place.

Britain’s security services, under all Governments, are required to live up to the highest standards, while protecting our national security. They do an incredible job. Their work is rarely ever recognised, for obvious reasons of secrecy, but they save lives, and we should always remind ourselves of that. We should also place firmly on the record the human rights policy of our security services, and be proud of their stance. As John Sawers, the head of the Secret Intelligence Service, said last month:

“If we know or believe action by us will lead to torture taking place, we’re required by UK and international law to avoid that action. It makes us strive all the harder to find different ways, consistent with human rights, to get the outcome we want.”

To sustain the excellent work of the intelligence agencies, and to ensure that these standards are met in practice, it is vital that whenever allegations are made they are fully investigated.

You will know, Mr Speaker, that the previous Government began the process of publishing the consolidated guidance given to our intelligence officers, which was a process finished by the current Government earlier this year. It was and remains our view that all measures possible should be taken to satisfy ourselves, the public and our allies that if any wrongdoing is alleged, it is fully investigated, that any evidence is gathered and passed on, and that it is dealt with to conclusion. That is why the previous Attorney-General referred two cases where concerns had been raised to the police for investigation, and that is why we look forward to the judge-led inquiry into allegations of complicity in torture now that the civil cases are settled.

Can the right hon. and learned Gentleman confirm that the police will be able to conclude their investigations before the judge-led inquiry begins? Obviously, the House has not been privy to the detail of the settlements and the negotiations, but he will know that there are legitimate questions about the settlements that the Government have come to that mean that these 16 cases will no longer be resolved individually in the courts. We understand that the Government have had to consider this in the light of the ruling by the Court of Appeal in May. Can he confirm to the House that the settlements reached will not pre-judge the inquiry or pass judgement on the actions of our security services in advance of a full investigation?

Will the confidentiality agreement prevent the Secretary of State from telling the House and the public the sums of money involved in these settlements? If so, will he reconsider and agree with us that there is a public interest in knowing the total sum involved in this settlement? Will he commit to scrutiny of the settlements by both the Intelligence and Security Committee and the Public Accounts Committee? He said that the claimants would be able to give evidence to the Gibson inquiry. Can he tell the House what investigations within the scope of the inquiry will take place into the allegations in those specific cases? Will the inquiry pass judgment on each individual case? Can the right hon. and learned Gentleman say whether the scope of that inquiry has changed since the Prime Minister’s statement to the House in July?

Finally, can the right hon. and learned Gentleman also tell the House whether any other cases remain unsettled, and if so, what decision has been taken on their effect on the inquiry? It is important that the inquiry can be thorough and that its access to documents held by the Government should be as full as that enjoyed by the courts. Can he therefore confirm that the Gibson inquiry will have access to all the same information that has been or would be available to the courts? Everyone will appreciate the need to ensure that Britain’s security is not compromised, and that must be reflected in the way that the inquiry operates. However, as the allegations are comprehensively addressed, it is important that the public should have confidence in the process and its outcome. We say again: there is no place for the torture or mistreatment of detainees.

[Mr Clarke]

I, too, regret the leak. I am having a bad week for leaks. I made a statement yesterday that had been leaked by somebody at the weekend, and last night I was at dinner when I was told that ITV had details of this statement. It is early days in government to have them so frequently—but ’twas ever thus. I will do my best to ensure that there are no leaks of this kind in future.

We continue to press the Americans for Shaker Aamer’s release. We are trying to ensure his release, and we are in constant contact with them.

So far as the other questions are concerned, the determination of this Government, as soon as we took office, has been to try to draw a line under these cases and move on, in the light of the policy that the right hon. Gentleman supported, and on which all parts of the House agreed. This country is against torture. This country has a good, high-quality security and intelligence service. We wish to make it quite clear that it is not complicit—and must not be complicit—in the torture or ill-treatment of detainees, so the sooner we resolve these doubts and enable it to get on with its proper job of intelligence, the better. We were bogged down in litigation and complaints which were slowly going not exactly nowhere but could have taken years to resolve, because of all the difficulties with the admissibility of the evidence and the hearing of evidence in public.

For that reason, we have sought to draw a line under things. We published the guidance on treatment of detainees, as the right hon. Gentleman said, which is the first step that we took. We have now resolved these issues in a way that enables us to move on. We still have to wait for the police inquiry, to which he also referred. That is entirely a matter for the police, and no one—no Minister or anybody else—can intervene and start instructing the police on how to conduct such inquiries. We cannot get the Gibson inquiry under way until the police inquiries have been resolved. I do not know how long they will take—I hope that they will not take too long—but that is a matter for the police. If those inquiries lead to prosecutions, we will have to wait for the resolution of those prosecutions. If they lead to no prosecutions, we really will be clear to get on to the inquiry that lies beyond.

The settlement, which involves no concession of liability or withdrawal of allegations, does not prejudge the Gibson inquiry in any way. It will be entirely for Sir Peter and his colleagues to decide on the inquiry once its terms of reference have finally been settled. We see the inquiry as looking at the problem in general—that is, looking at the history and deciding whether there were problems and whether there are any lessons to learn, as well as making inquiries about how we might ensure that the standards that the whole House would want to uphold are put beyond doubt for the future. We have not altered the scope of the inquiry since the Prime Minister made his statement, and we expect it to have access to a wide range of information—indeed, all the information that it could reasonably expect. The problem with the courts is either that they cannot have access to a lot of the information because of all the security problems, or that they cannot share it with the complainants and the public. So far as I am aware, the settlements cover all the British residents and citizens from Guantanamo Bay who are making complaints. We are not aware of any other cases that could be raised on all fours with those.

The settlement has saved us money and, most importantly, time. It has stopped the intelligence service spending man-hours on sifting through evidence and coping with litigation, but it must remain confidential. It is legally confidential and could be reopened if either side broke that confidentiality, so I am afraid that I am unable to tell the right hon. Gentleman the precise sums involved, but the gain that has been achieved by mediating the claims is considerable and in the national interest.

[Several hon. Members]

rose—

[Richard Ottaway (Croydon South) (Con)]

Having been a member of the Intelligence and Security Committee for the past five years, I have reached the uncomfortable conclusion that if there is not to be a total breakdown in the intelligence-sharing relationship with the United States, my right hon. and learned Friend has reached the right conclusion. However, does he agree that he must now find a way of conducting such litigation without compromising national security? Has he considered expanding the scope of the Green Paper from civil cases to criminal cases?

[Mr Clarke]

I am grateful to my hon. Friend for his sensible proposition. The same issues arise, and I will certainly bear his suggestion in mind. The problem crops up over and over again. We currently have an inquest into the highly important matter of the explosions on 7 July, which has decided to extend itself into an inquiry into the activities of the intelligence services in informing themselves about possible risks to security throughout the country. Wholly foreseeably, it has run crash into the problem of exactly what evidence is supposed to be adduced about that in public. I have no idea—it is for Lady Justice Hallett to resolve—how we move on in that particular case. The Green Paper will be difficult. It will be difficult to reach clear conclusions, but we wish to do so as quickly as possible and the purpose of the Green Paper is to address that problem so that we can be sure that justice is done without compromising national security. At the moment, there is a tendency for claimants, the security service and everyone else to get bogged down in interminable litigation and judicial review. That has to be resolved.

[Mr Jack Straw (Blackburn) (Lab)]

I welcome the right hon. and learned Gentleman’s statement and the comments of my right hon. Friend the Member for Tooting (Sadiq Khan). Picking up on the remarks of the Chair of the Foreign Affairs Committee, the hon. Member for Croydon South (Richard Ottaway), may I ask the right hon. and learned Gentleman whether it will be possible for Sir Peter Gibson, who has great judicial experience, to feed into the important work on the Green Paper on the use of intelligence in judicial proceedings?

[Mr Clarke]

Sir Peter Gibson has indeed been the Intelligence Services Commissioner, and still is, although he will probably have to give that up when he takes on this inquiry. If he wishes to give his views on this difficult question, I am sure that they will be welcome, because, as the right hon. Gentleman knows, he is a considerable expert on the subject.

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

Is it a reasonable assumption that the UK Government would not agree to a mediated settlement if there were no evidence whatever of UK involvement in any illegal act?

[Mr Clarke]

The settlement is not to be taken as an admission of liability, as it were. It was not in the interests of either party to get stuck into civil litigation with a wholly unforeseeable outcome. As I have said, it could have taken years and cost tens of millions of pounds. Its resolution was holding up the wish of the Prime Minister and the Government to get on with sorting out the allegations and having a proper inquiry into them. It has cost us quite a bit of money to mediate them, because the complainants were pressing their claims. The situation is obviously difficult and unusual, but it was right, in the public interest, to pay the money. The idea that we should carry on arguing for the next five or six years—it could have taken that long—and find ourselves in a pale reflection of the Saville inquiry running on and on would not have done anyone any good at all, so we paid the money so that we can move on. I think we have saved public money by not continuing to contest the claims.

[David Miliband (South Shields) (Lab)]

I think there will be natural concern on both sides of the House about Government payments of compensation when culpability has not been admitted. It is, however, important to welcome the right hon. and learned Gentleman’s statement today. I also welcome his repetition—word for word, if my memory serves me right—of the previous Government’s position on torture and other cruel and inhuman treatment. May I bring him back to the subject of the police inquiries and the Gibson inquiry? Like him, I hope for a speedy conclusion to the police inquiries so that the Gibson inquiry can get on with its work and bring some facts to a debate that often sadly lacks them. Would it be possible for Sir Peter Gibson and his team to start work now, even if their public and other work cannot get going yet? It would be a pity if the police inquiries were to drag on for many more months, delaying bringing clarity to this area.

[Mr Clarke]

I share the right hon. Gentleman’s statement of this country’s values as far as torture and ill-treatment are concerned. I also share his impatience to see the Gibson inquiry get under way. The Government cannot, however, have the inquiry proceeding in parallel with either civil or criminal proceedings on part of the same subject. For that reason, we must make it clear straight away that both will have to be resolved before we can proceed. If Sir Peter were to start, and if there were a prosecution arising from the police inquiries, a criminal trial might be running in parallel to his inquiry. That would not be possible. We shall wait to see what the police decide, and the moment those matters are resolved, Sir Peter will be able to begin his work.

[Tony Baldry (Banbury) (Con)]

Without prejudicing any of the facts of this case, can my right hon. and learned Friend confirm that any act of torture, or conspiracy to commit acts of torture, by any UK citizen anywhere in the world will be a criminal offence, and that, as a matter of public policy, any evidence obtained by torture will always be inadmissible in UK courts?

[Mr Clarke]

Yes, I can give a straightforward, positive answer to both those questions. Yes, that is undoubtedly the case, and my hon. Friend has accurately stated the position.

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

I thank the Justice Secretary for giving me advance notice of his statement. Given the need to preserve confidentiality in relation to the settlement, how long does he think that that confidentiality will be preserved, bearing in mind the two serious leaks from his Department this week?

[Mr Clarke]

Exactly the same thoughts have crossed my mind, but I am bound by the confidentiality agreement and I must hope that everyone will abide by their legal obligations. However, I share the hon. Gentleman’s uncertainty.

[Kris Hopkins (Keighley) (Con)]

Might it be appropriate for us to seek to recover the costs of the compensation payments from those individuals who are responsible, in particular the former Labour Prime Minister, Tony Blair, who has made tens of millions of pounds since leaving this House?

[Mr Clarke]

The costs have been incurred in civil litigation between the detainees and the Government, and we have settled the matter. I do not think that that would be proper—I do not agree with my hon. Friend’s suggestion, and I do not think that there is really the slightest claim against the previous Prime Minister.

[Mr George Howarth (Knowsley) (Lab)]

Does the Secretary of State accept that many people will find this settlement a bitter pill to swallow? Will he confirm that, if our intelligence relationship with the United States were to break down, which was a real possibility, it would imperil the lives of many, many citizens of this country?

[Mr Clarke]

I agree that the Government’s relationship with the United States and the close relationship between our intelligence services and those of the United States make a vital contribution to our protection of the security of this country and the lives of individuals here. That must not be jeopardised.

[Dr Julian Lewis (New Forest East) (Con)]

Does the Secretary of State agree that it would be wrong to infer from the fact that there is a confidentiality agreement about the substantial sums paid to these individuals that that confidentiality agreement was imposed at the behest of one side rather than the other?

[Mr Clarke]

The other side wanted confidentiality as well, I am assured. It is not at all unusual, when mediating an action of this kind, for both sides to agree that they wish to have confidentiality. My hon. Friend is quite right: there is no point in trying to read into this that either side has resiled. Anyone who has been involved in any kind of civil litigation on a less serious matter will know that, often, a party that has been busily protesting its side of the argument can be quite well advised to stop running up costs, to stop wasting management time, to make a reasonable offer and to get out of it. In this case, the considerations were much more important for the public interest. How much longer did we want man-hours in the intelligence services to be absorbed, and how many tens of millions were we prepared to spend on interminable litigation?

[Mr David Winnick (Walsall North) (Lab)]

Leaving aside the cheap political point made by the hon. Member for Keighley (Kris Hopkins) a moment ago, let me tell the Justice Secretary that I find it difficult to understand—as will many people—how compensation could be paid unless there was substantial substance to the allegations made by those who claim that they were transferred illegally and tortured abroad. Surely the clear lesson to be learned is that a state such as ours, based on the rule of law, must ensure that all its officials observe the rule of law, and must not be complicit in any way with agents abroad who carry out torture.

[Mr Clarke]

It is not unusual in many walks of life for a settlement to be reached with neither party making any concessions on their arguments, but both parties agreeing that the settlement constitutes a sensible way of reaching a compromise in the dispute without going further.

I entirely agree with the statement of principle in the second part of the hon. Gentleman’s question. The Government are opposed to torture. Torture is a serious criminal offence. We are opposed to the ill-treatment of detainees and prisoners in any circumstances. We will not condone it, and we will not be complicit in it. Those are the essential values that we must defend, even when we face such dangers as we do now from terrorism in the world.

[Jane Ellison (Battersea) (Con)]

I welcome my right hon. and learned Friend’s statement. Further to his comments about Shaker Aamer, does he agree that if we are to achieve closure gradually over the next few years, it is important that Shaker Aamer is released to this country so that he can give evidence to the torture inquiry in person?

[Mr Clarke]

Yes, I do agree. I know that there are people who feel very strongly about the release of Shaker Aamer. We continue to be in contact with the United States, and we continue to hope that he will be released and returned to this country. I know that my hon. Friend has been arguing and campaigning for that for some time. I agree with her, and we are doing our best.

[Mike Gapes (Ilford South) (Lab/Co-op)]

Is the Secretary of State comfortable with the fact that millions of pounds are being paid out during the week in which he is announcing big cuts in the legal aid budget? Should we not be ensuring that if those who receive the money themselves breach the confidentiality agreement, or their lawyers do, the money is taken back from them?

[Mr Clarke]

That might involve reopening the settlement, which I would not be willing to do. We must be careful about the confidentiality because, certainly in principle, the settlement could be reopened. I entirely understand that there are a large number of aspects of this with which everyone is uncomfortable, and which some people will strongly dislike. However, we must keep our eye on the ball, and decide what is truly in the national interest. What is truly in the national interest is allowing the intelligence services to get on with their job, allowing us to put the reputation of this country beyond doubt, and learning lessons that may have to be learned—we do not know yet—from anything that Sir Peter Gibson puts forward.

As for the legal aid proposals, we said that legal aid would still be available, on a means-tested basis, to anyone who wished to challenge the state by way of judicial review. Other claims would have to involve exceptional public interest.

[Mr Tobias Ellwood (Bournemouth East) (Con)]

I welcome the statement. I am sorry that we did not do more to speak out against Guantanamo Bay and everything that it stands for. The creation of the term “enemy combatants” allowed the nation, indeed the world, to ignore the Geneva conventions.

My I ask my right hon. and learned Friend to turn to the issue of compensation for British victims of terrorism overseas? As he will know, those who were caught up in the 7/7 bombings were adequately supported and compensated, but as soon as such an event takes place abroad we see that there is no support whatsoever, whether it be in Bali, Mumbai or Sharm el Sheikh. That is simply wrong, and it needs to change.

[Mr Clarke]

I know of my hon. Friend’s continuing interest in this subject. As part of our policy considerations in the light of the public spending review, we are having to examine the criminal injuries compensation system and the proposed terrorist injury compensation system. We are having to decide how we should judge the Government’s responsibilities for compensating those who have been injured by crime, either at home—we have always compensated those people—or abroad: I know that my hon. Friend has been campaigning for that.

[Keith Vaz (Leicester East) (Lab)]

A year ago, I wrote on behalf of the Home Affairs Committee to the previous Attorney-General, asking about the police inquiries, and I see that the Secretary of State is surrounded by Law Officers today. While not seeking to influence or instruct the police, which would be totally improper, surely it is in everyone’s interests that we know if there is a timetable. What is holding up this inquiry, which has gone on for several years?

[Mr Clarke]

If the police follow these exchanges, I am sure they will note the right hon. Gentleman’s impatience that we move on and get some resolution to inquiries, which I think have been going on for about 15 to 18 months. He knows, because he is as good a lawyer as anybody else involved in these discussions, that it would be quite improper for anyone to approach the police and put pressure on them to put in place a timetable or to press them one way or the other.

[Henry Smith (Crawley) (Con)]

I welcome the Gibson inquiry, and I agree that what has been announced is necessary for the sake of our national security, but will my right hon. and learned Friend acknowledge the concern expressed by many people that a settlement has been paid using British taxpayers’ money for foreign nationals—non-British citizens—detained in a foreign country by a foreign Government?

[Mr Clarke]

The cases involve British nationals or British residents. Although there is one case where that is a slightly doubtful statement, it had already got under way before we came into office, and at some stage the jurisdiction had been accepted. Twelve cases are already before the court, and four would have come before the court if we had not proceeded as we have. We have not started compensating people at large for what happened in Guantanamo Bay. We have only dealt with British residents and British citizens.

[Mr Dennis Skinner (Bolsover) (Lab)]

Have I got this right? Is the Secretary of State paying out large sums of money—he will not tell us how much—to people who are giving no guarantees about not breaking confidentiality? Can it be true that he cannot say to the House that this matter has ended? Is he not buying time? This sounds like money for old rope. The other week, the Conservatives were giving prisoners votes; now they are giving them lottery millions. I think I have already discovered the soft underbelly of this Government.

[Mr Clarke]

In answer to the hon. Gentleman’s question, no, he is not right: the confidentiality is binding on both sides. The people who brought the claims have bound themselves by confidentiality and so have the Government. That is a perfectly usual term of a mediated settlement of what was going to be a hugely expensive problem for the British taxpayer if it had not been resolved.

[Mr Dominic Raab (Esher and Walton) (Con)]

I welcome the statement. As I understand it, the mediation is designed to address the potential cost of litigation arising from the Guantanamo cases and is estimated to be between £30 million and £50 million. The inquiry is also wider than that, and will deal with non-Guantanamo cases where individuals have been detained in other countries. What is the estimated cost of the potential litigation in those cases?

[Mr Clarke]

I agree that the Gibson inquiry does have wide terms of reference, although these matters finally have to be settled. It is looking at the whole question of the ill treatment of detainees generally, although, of course, usually in cases where there is some British involvement, such as where our allies have been involved or where we have been engaged in theatre. My hon. Friend the Member for Chichester (Mr Tyrie) takes a great interest in these allegations and as he cannot be present today he has been on the telephone to me, because he is very anxious that rendition should be included.

I cannot give an estimate of the cost, but we are anxious that there should be a reasonable time scale, and so is Sir Peter. We do not want this to go on for ever. The inquiry will take a general look at the position, and it will take such evidence as it feels fit and go as wide as is necessary to guide future British policy. Beyond that I cannot go, however, because in the end this will be a matter for Sir Peter and his two colleagues on the panel.

[Kevin Brennan (Cardiff West) (Lab)]

We know that the settlement was under £30 million because that is what the right hon. and learned Gentleman said was the minimum cost of the alternative. I confess that I am not a lawyer—most British people are not lawyers—but I cannot understand why the Government, in making this settlement, took the view that they wanted to keep the sum of money involved a secret from the British people. Why was that the Government’s position in this case?

[Mr Clarke]

This was negotiated and the other side wanted confidentiality, and it was settled on the basis of confidentiality, subject to parliamentary accountability. I understand the hon. Gentleman, and, with great respect, I anticipated his questions, as they are going to occur to quite a lot of people. We could settle this on the basis of confidentiality and we have done so. We have notified the National Audit Office, I think that we offered a briefing to the Chairman of the Public Accounts Committee and we have briefed the Chairman of the Intelligence and Security Committee, but it would be folly to break the legal confidentiality, which was part of the settlement, if the result is to jeopardise the settlement and put us back where we started.

[Ian Austin (Dudley North) (Lab)]

I am sorry to strike a discordant note, but ordinary decent people out there are going to think that the world has gone mad. People making wild, unsubstantiated and baseless allegations of torture are getting more money than victims of terrorism here in London. If, as the Secretary of State says, it is the law that has forced him to do this, what people out there will want to hear from him are assurances that he will accelerate proposals to change the law and ensure that we never have any of this nonsense again.

--- Later in debate ---

[Mr Clarke]

It is the rule of law, I am afraid. The hon. Gentleman is prejudging the claims that were being fought out before the courts. The claims were for compensation for serious problems that these detainees had suffered—I have met these people. The argument was about the complicity of the British security services, which was not and is not admitted. The detainees were bringing a legal action. It might be that had this ever been fought to a conclusion, the court might have come to the hon. Gentleman’s conclusion that these claims were baseless, but we are never going to discover that now, because we have settled this. We did so as it was not worth discovering, because the bigger public interest was in making sure that we could put a line under all this, get back to having the reputation of our intelligence services restored and get Sir Peter Gibson to advise on how to make sure that that reputation remains intact in future.

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

Will my right hon. and learned Friend assure me that if these allegations were wild and unsubstantiated, as has just been suggested, the Government would not have been keen to settle these cases?

[Mr Clarke]

I think that in all forms of litigation it is wrong to start reading whether a settlement made with no admissions on one side and no withdrawal of allegations on the other indicates which side was winning—it does not necessarily do so. The fact is that these two sides were locked in litigation, which was going nowhere fast because of the very difficult legal problem of what evidence can be admitted and whether that evidence should be admitted publicly. If Members want, they can read into this that one side was admitting it or that the other side was producing frivolous claims and got away with murder. The court was entertaining these claims; 12 civil actions were under way. But I think everybody understands from the most extraordinary circumstances of this case that it was better to settle it than just to let it go on to see who eventually won. No one should read into this admissions of liability and no one should read into this that one side packed up its claims; we just agreed to come to a very sensible mediated settlement.

[Paul Flynn (Newport West) (Lab)]

Can we demonstrate that we have learned the lesson of the damage done to our reputation by the protracted nature of these investigations by guaranteeing that when fresh allegations are made of bad behaviour, such as the 21 cases cited by The Guardian following freedom of information requests, those present and future allegations will be investigated swiftly and thoroughly?

[Mr Clarke]

That is why we need the Green Paper, in order to try to establish some rules on the admissibility of intelligence evidence or evidence that may be of relevance to national security. As I believe I said in answer to an earlier question, this issue is cropping up with ever more frequency and we need to resolve it. This is not just something that the Government or Parliament can simply declare we are going to do. We have to resolve this in a way that is compatible with the rule of law, with the judgments that British Courts are likely to come to and with the strong opinions held by the judiciary in this country in their role of defending our fundamental rights, the rule of law and the independence of the courts. We have to consider our international obligations. It will not be easy to produce a Green Paper, but that is the secret to getting back to resolving these matters at a decent pace. I entirely share the hon. Gentleman’s wish that we could do that, so that they can be sorted out pretty clearly, fairly and straightforwardly whenever they arise.

[Geraint Davies (Swansea West) (Lab/Co-op)]

You will know, Mr Speaker, that my former constituent Feroz Abbasi was held for many years in Guantanamo Bay in intolerable conditions without charge and was later freed. May I ask the Justice Secretary that if members of MI5 or MI6 are found to be complicit in torture, what penalties will they face?

[Mr Clarke]

That is speculative. I should make it clear that the allegations in these cases were not, so far as I am aware, that any member of the British security services had directly been involved in torture or ill treatment. They were argued to be complicit—that is, they had known that others were doing that and had somehow been complicit, which is not admitted by the security services. That was the issue. No one, I think, has been accused of torturing. It would be a very serious matter if anybody in the British intelligence services was ever found to have taken part in torture or the deliberate ill treatment of a detainee.

Legal Aid and Civil Cost Reform

Lord Clarke of Nottingham Excerpts

Monday 15th November 2010 Commons Chamber

[The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)]

With permission, Mr Speaker, I wish to announce today proposals for the reform of legal aid in England and Wales, and proposals for the reform of civil litigation funding and costs in England and Wales.

I have today laid before Parliament two documents, “Proposals for the Reform of Legal Aid in England and Wales” and “Proposals for the Reform of Civil Litigation Funding and Costs in England and Wales”, which consult on these issues; copies will be available in the Vote Office and on the Ministry of Justice’s website. The changes will require primary legislation and, subject to consultation, I hope to include proposals in a Bill as soon as parliamentary time allows.

I would like to apologise to the House, Mr Speaker, for the well-informed although not wholly accurate leaks of my proposals that appeared in the newspapers at the weekend, which caused me to bring forward this statement. I was hoping to abide by the convention of announcing this to Parliament, but it was obviously going to run for the week if I left it until Thursday to make the announcement.

Legal aid forms a vital part of a system of justice of which we are rightly proud. The Government strongly believe that access to justice is a hallmark of a civilised society. However, I believe that there is now a compelling case for going back to first principles in reforming legal aid. The current system bears very little resemblance to the one that was introduced in 1949. Legal aid has expanded, so much so that it is now one of the most expensive such systems in the world, costing the public purse more than £2 billion each year. It is now available for a very wide range of issues, including some that do not require any legal expertise to resolve. It cannot be right that the taxpayer is footing the bill for unnecessary court cases that would never have even reached the courtroom door, were it not for the fact that somebody else was paying.

The previous Government made many attempts to reform legal aid, conducting more than 30 consultations since 2006. However, successive changes have been of a piecemeal nature and have failed to address the underlying problems. I have gone back to basic principles to make choices about which issues are of sufficient priority to justify the use of public funds, subject to people’s means and the merits of the case. I have taken into account the importance of the issue at stake, the litigant’s ability to present their own case, the availability of alternative sources of funding and alternative routes to resolving the issue, as well as our domestic and international legal obligations.

My proposals have also been designed with the aim of achieving significant savings. No other Government in the world believe that the taxpayer should pay for so much legal aid and litigation as we do in the United Kingdom. We have made clear our commitment to reducing the fiscal deficit to encourage economic recovery. Last month’s spending review set out the scale of the challenge. My Department’s budget will be reduced by 23% over four years. Legal aid needs to make a substantial contribution to that reduction. I estimate that the proposals in the consultation paper, if implemented, will achieve savings of about £350 million in 2014-15.

I do not propose any changes to the scope of criminal legal aid. However, I propose to introduce a more targeted civil and family scheme that will discourage people from resorting to lawyers whenever they face a problem and instead encourage them to consider more suitable methods of dispute resolution. Legal aid will still routinely be available in civil and family cases where people’s life or liberty is at stake, or where they are at risk of serious physical harm or immediate loss of their home. For example, I plan to retain legal aid for asylum cases, for debt and housing matters where someone’s home is at immediate risk and for mental health cases. It will still be provided where people face intervention from the state in their family affairs that may result in their children being taken into care, and for cases involving domestic violence or forced marriage. I also propose that legal aid should remain available for cases where people seek to hold the state to account by judicial review and for some cases involving discrimination that are currently in scope. Legal assistance to bereaved families in inquests, including for deaths of active service personnel, will also remain in scope.

However, prioritising those areas requires that we make clear choices about the availability of legal aid in other areas. Therefore, we propose to remove from the scope of the scheme issues that are not, generally speaking, of sufficient priority to justify funding at the taxpayer’s expense. I therefore propose to remove private family law cases, unless domestic violence, forced marriage or child abduction is involved. I will continue to provide funding for mediation, which can benefit those involved in family disputes by avoiding long, drawn-out and acrimonious court proceedings.

Other cases that I am proposing to remove from the scope of the civil legal aid scheme include clinical negligence, where, in many cases, alternative sources of funding are available, such as no win, no fee arrangements. The cases I am proposing to remove from scope also include education, employment, immigration, some debt and housing issues, and welfare benefits, except where there is a risk to anyone’s safety or liberty, or a risk of homelessness. In many of these, the issues are not necessarily of a legal nature, but require other forms of expert advice to resolve.

I recognise that there will be some cases, within the areas of law I propose to remove from scope, that international or domestic law will require to be funded by the taxpayer. I therefore propose a new exceptional funding scheme for excluded cases. I want to ensure that those who can pay for or contribute to their legal costs do so, so that we ensure continued access to public funding in those cases that really require it for those who have little or no funds of their own. On eligibility, therefore, I propose that all clients with £1,000 or more of disposable capital should make a minimum £100 contribution to their legal costs, and that the capital of any prospective legal aid clients is taken into account when considering eligibility.

I also looked at how best to reform the way in which we pay lawyers who provide legal aid services. I want to ensure that criminal cases are resolved quickly and cost effectively, and that legal aid fee structures support that aim. In the long term, I propose to fulfil the recommendation that Lord Carter of Coles made to the previous Administration to move towards a competitive market to replace the current system of administratively set fee rates. It will not be possible, however, to fulfil that aim in the short term. I am therefore proposing some more immediate changes to the current fee structure.

I propose to ensure that in Crown court cases that could realistically have been dealt with in the magistrates courts, a single fixed fee for a guilty plea will be paid based on fee rates in the magistrates court. I also propose that the same fee should be paid in respect of a guilty plea in the Crown court regardless of the stage at which the plea is entered, and to do more to contain the costs of very high-cost criminal cases. These proposals complement other reforms to the justice system that I will be bringing forward designed to encourage cases to be brought quickly and efficiently to justice, so sparing the victim the ordeal of giving evidence in court unnecessarily, and sparing the justice system significant but avoidable costs.

It is important to strike a balance between the need to ensure that legal aid provision is innovative, efficient and good value for taxpayers’ money on the one hand, and ensuring that people can continue to access legally aided services where necessary on the other. I believe that more can be done to strike the balance. I propose to reduce fees paid in civil and family cases by 10% across the board, and to make similar levels of reductions in rising experts’ fees. I also propose to extend telephone access to advice through the Community Legal Advice telephone helpline, which has a high rate of public satisfaction, to help people find the easiest and most effective ways to resolve problems.

I am also consulting on proposals to make better use of alternative sources of funding for legal aid. In particular, I would welcome views on making use of the higher rates of interest generated on money invested in a pooled account used by solicitors to hold their clients’ money, and on making use of a supplementary legal aid scheme. Lastly, I seek views on how to make the administration of legal aid less bureaucratic for solicitors and barristers doing legal aid work. I recognise that processes have become overly complex, and I want to do what I can to simplify these, while remaining consistent with the highest standards of accounting practice.

Furthermore, on 26 July, the Government announced their intention to consult on implementing Lord Justice Jackson’s recommendations on the reform of civil litigation costs and funding arrangements. Sir Rupert Jackson’s independent and comprehensive report, published in January 2010, makes a clear case that the costs in civil cases in England and Wales have become too high, and he makes a broad range of recommendations for reducing those costs. I am convinced by Sir Rupert’s argument that achieving proportionate costs and promoting access to justice go hand in hand. I believe that the consultation proposals for the reform of civil litigation funding and costs presented today would help to rebalance access to justice with proportionate costs in civil cases.

In particular, Sir Rupert’s proposals would reform the operation of no win, no fee conditional fee agreements. CFAs are funding agreements under which lawyers are not paid if they lose, but may charge an uplift or a success fee of up to 100% on their base costs if they win. CFAs, as they currently operate, allow claims to be brought at no financial risk to individual claimants, but the other side of that coin is that CFAs impose substantial additional costs on defendants. The Government have already accepted the recommendations of my right hon. and noble Friend, Lord Young of Graffham's recent report on health and safety and the compensation culture, entitled “Common Sense, Common Safety”. His typically cogent report endorses Sir Rupert’s proposals.

The key proposal is to abolish recoverability of high success fees and the associated after-the-event insurance premiums in CFA cases. Under the current regime, defendants must pay those additional costs if they lose, and they may be substantial, as the success fee may be double the base legal costs. In addition, significant costs may arise from claimants’ purchase of after-the-event insurance. ATE insurance may be taken out by parties in such cases to insure against the risk of having to pay their opponent’s costs and their own disbursements if they lose. We are proposing that claimants should have to pay their lawyer’s success fee. They will, therefore, take an interest in controlling the costs being incurred on their behalf. That will also reduce the disproportionate costs burden on defendants.

We are also seeking views on implementing other recommendations by Sir Rupert, which are designed to balance the impact of these major changes, and in particular to assist claimants. The recommendations include a 10% increase in general damages to help the claimant to pay the success fee, and a mechanism of qualified one-way costs shifting. That would protect the vast majority of less well off claimants from having to pay a winning defendant’s costs and therefore reduce the need for ATE insurance.

We also propose to allow damages-based agreements or contingency fees in litigation before the courts. These are another form of no win, no fee agreement, under which lawyers may take a proportion of the claimants’ damages in fees. This would increase the funding options available to claimants.

Other proposals would further encourage parties to make and accept reasonable offers, and introduce a new test to ensure that overall costs are proportionate. We also propose to increase the modest costs that can be recovered by people who win their cases when they represent themselves without lawyers.

Taken together, my proposals complement the wider programme of reform that I will bring forward to move towards a straightforward justice system: one which is more responsive to public needs, which allows people to resolve their issues out of court using simpler, more informal remedies when appropriate, and which encourages more efficient resolution of contested cases when necessary. I commend this statement to the House.

[Several hon. Members]

rose—

[Sadiq Khan (Tooting) (Lab)]

I am grateful to the Lord Chancellor for giving me advance sight of his statement, and I note his apology at the beginning of it. One must admire the mind-reading ability of senior journalists at The Sunday Telegraph and The Times. It was a huge discourtesy to the House, but it provided the advantage of 24 hours’ notice of a statement to be made on the Floor of the House. I am grateful to both Patrick Hennessy and Simon Coates for their ability to do just that.

The Green Papers on cutting legal aid and reducing civil costs are among the most important that the Government have published to date. Legal aid is one of the pillars of the welfare state, and was set up by the Labour Government after the second world war. It plays a crucial role in tackling social exclusion, especially in hard times such as now. It ensures that everyone may have access to justice, regardless of their means. Under successive Governments, the legal aid budget has grown to the point where it now stands at more than £2 billion. That is not sustainable, especially in the current economic context.

I have six questions for the Lord Chancellor. The previous Labour Government had moved to cap the legal aid budget, and to reduce it. We also planned to turn the Legal Services Commission into an Executive agency. Do the Government have any plans to introduce legislation to achieve that aim?

In recent years, we brought the principle of fixed fees into civil and family legal aid cases, introduced means testing into magistrates and Crown courts, and on the very day that the general election was called we signed off on cuts to advocates’ fees in the higher courts. We took these decisions because we recognised the need to reduce the legal aid budget. It is worth reminding the House that many of our actions were taken in the teeth of opposition, from both the legal profession and Conservative and Liberal Democrat Members. I am looking forward to hearing their contributions to this debate.

Let me be clear: had we been in government today, we, too, would have been announcing savings to the legal aid budget. That is a reality that we all have to acknowledge. The crucial questions are: where to make those savings, and how to spend the money that is left available. What equality impact assessment has the Lord Chancellor undertaken of the proposals? Our policy was—and is—to control the legal aid budget and get value for money for the taxpayer, while optimising services for people who need support the most. That is why we concentrated much of our investment on social welfare legal aid. Legal aid delivered has the power to change lives and save money. The housing possession court duty scheme, for example, saved thousands of people from repossession. It delivered a social and financial good. Are the Government committed to preserving that and similar schemes?

What balance do the Government intend to strike between civil and criminal cases? Can the Lord Chancellor explain why he is proposing more severe cuts in civil and family legal aid than in criminal legal aid? Can he say whether he agrees with the Attorney-General, who said that

“legal aid is no longer available for a large number of people who ought to be entitled to it”?

If so, in what areas does the Lord Chancellor intend to expand the provision of legal aid?

We will carefully consider the Green Paper on legal aid and the equally important paper on Lord Justice Jackson’s review of civil legal aid costs before we respond in further detail. I would note, however, that Sir Rupert Jackson argued against cutting the legal aid budget, and the Lord Chancellor has decided to ignore that view. In conclusion, the basic test that we will apply in both cases is whether the proposals will deliver a saving to the public purse while ensuring that no one is denied access to justice because of their means.

[Mr Kenneth Clarke]

Mr Speaker, if I may, let me first respond to your comments. When I finalised the statement before coming here, I realised that it was far too long, but the fact is that the subject is complex and the leaks were quite detailed but not wholly accurate, so it was necessary to go through it with some care, for those outside this House as well as those within it. I am grateful for the fact that my shadow spokesman was given a little more warning of some of the statement.

I congratulate the right hon. Gentleman on acknowledging that Labour would have been reducing the legal aid bill as well—I came well armed with quotations from him and all his colleagues about their intention to reduce the legal aid bill. Indeed, it featured in the Labour party’s manifesto at the election. It is starkly obvious that the England and Wales legal aid system has become far too expensive, and it is an obvious place to start tackling deficit problems, which has to be done on a logical basis. The Labour party had taken quite a lot of decisions and had made reductions, affecting criminal as well as civil legal aid, but the effect of what it did was largely to stabilise what had been the rapid growth of legal aid before that. Legal aid expenditure exploded in this county until about 1999. Thereafter, the Government wrestled with it, trying to bring it down, but they succeeded only in stabilising it. It is right to get legal aid expenditure back to something nearer to the norm in other democratic and common-law countries throughout the world, which we are far above at the moment.

We intend to go ahead with the last Government’s proposal to make an agency of Government to replace the Legal Services Commission. That will have to feature in our legislation when it comes. We have, obviously, done an equality assessment, to have a look at the impact on various sectors of the population. Apart from the fact that the decision will obviously have an impact on the legal profession, affecting both barristers and solicitors, more importantly, one has to look at what impact it will have on gender, ethnic minorities and the poor. It is inevitably the case, of course, that litigation, and legal aid in particular, tend to be focused on the disadvantaged groups in society. Some aspects of legal aid are more resourced by women, as well as men; nevertheless, we have to be mindful of that. We have done an equality assessment, and we believe that the impact of the changes is, on balance, justified by the public interest in ensuring that the taxpayer pays only where there is a public interest in having a dispute resolved.

The right hon. Gentleman referred to the balance between civil legal aid and criminal legal aid and asked why, on this occasion at least, the scope of criminal aid is not affected. First, we already spend more on criminal than civil legal aid in this country. The reason we do so is that it is absolutely essential in the public interest to see that justice is done in every case. It is an unfortunate feature of our legal aid system—I accept it, and we always have accepted it—that we often wind up giving it to people who turn out to be rather unattractive.

[Mr Jack Straw (Blackburn) (Lab)]

Or criminals.

[Mr Clarke]

Yes, or criminals.

Before bringing the full severity of law to bear on a criminal, however, we have to make absolutely sure that he is indeed the guilty party and that he has been given every chance to claim and demonstrate his innocence to save us from making a mistake. As the liberty of the subject is at stake in all serious criminal cases, we really cannot cut back the scope of criminal legal aid.

I think the reason why we spend spectacularly more than other countries on legal advice and litigation is that we have extended the legal aid system in the past to practically every kind of civil and family issue. That is why, when it comes to cutting back the scope, the present package on which we are consulting concentrates on those areas.

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

The Justice Committee will look forward to an early session with the Lord Chancellor on the details of his proposals. Are not the issues around education, employment, debt and housing, which he says do not require special legal expertise, those on which people do need help, which they currently get through LSC contracts, citizens advice bureaux and neighbourhood law centres? From where else will they get that help in future?

[Mr Clarke]

In some cases, as with housing issues where a person’s home is at risk and they may lose possession, we will continue to make legal aid available. Any cases involving the risk of homelessness or loss of liberty will still be covered by legal aid. The right hon. Gentleman gave a list and I will not deal with them each in turn, but they are all addressed in other ways than through litigation. Employment issues go before a tribunal, for example, and those tribunals were originally designed precisely to avoid representation by lawyers and legalism. They were designed to be more straightforward and accessible forms of justice. Debt certainly requires advice, but much of it is not so much of a legal nature as of a practical nature—advising how to cope with negotiating with creditors and sort out the management of the debts incurred. I agree with the right hon. Gentleman that citizens advice bureaux and other such organisations are a central source of this advice. We will have to consider how far we can continue to enable such organisations to step in and give a wider range of advice, which will be needed when we stop paying people to go to lawyers all the time, as we tend to on all these issues.

[Mr Straw]

May I endorse what my right hon. Friend the Member for Tooting (Sadiq Khan) said in every particular, including with respect to the commitment in our own manifesto to cut legal aid. The Lord Chancellor will understand that my right hon. Friend cannot endorse every particular of what is being put before the House at this stage, but he and I will, of course, examine the proposals with great care.

Let me ask the right hon. and learned Gentleman some specific questions about the proposals on criminal legal aid and guilty pleas. First, I have no argument with the principle, but is he certain that he will structure the payment systems to avoid giving any perverse incentive to lawyers, and therefore to defendants, not to continue to plead not guilty all the way through to the point of trial? That is a real danger.

Secondly, the right hon. and learned Gentleman says that where a case goes to the Crown court but it is judged that it should have been handled at the magistrates court, the fee will be paid only in respect of what would have been appropriate in the magistrates court. I understand that. Under the present legislation, however—I sought to change it, but the Conservatives, the Lib Dems and the other place overturned my attempt—defendants have an absolute right in either-way cases to take their case to Crown court. Unless the Lord Chancellor introduces primary legislation to change that, we are left with the odd situation in which the Legal Services Commission says that a case should not have gone to the Crown court while the defendant says that he has an absolute right to that under statute.

[Mr Speaker]

Order. I have also been hanging on almost every word spoken by the right hon. Member for Blackburn (Mr Straw) for the last 13 years, but now I know what is meant by those who say that lawyers are paid by the word.

[Mr Clarke]

We are working on incentives to stop them from being paid by the word outside the House, Mr Speaker.

I am grateful to the right hon. Member for Blackburn (Mr Straw) for what he said. We both know that any responsible Government who had won the last election—any parties that had taken office—would have cut the legal aid bill. I think we should all remind ourselves of that, because, as we know, all kinds of lobbies outside who are adversely affected will start coming to us and telling us that the whole spirit of British justice is being undermined by the threat to their particular activities. We simply have to do this, and I hope that we can achieve a fair consensus on the sensible way in which to proceed.

The question of cases in which people do not plead guilty early enough is very serious. I hope we will ensure that we remove perverse incentives from the system, if they exist. The sentencing proposals that I shall present will recommend further inducements to people to plead guilty at an early stage—not only in order to save money and prevent time from being wasted, but in order to prevent victims and witnesses from fearing that they will have to attend court and give evidence, when that is actually a waste of time because the defendant will plead guilty in the end.

As for the question of either-way cases and those who opt for jury trial, I am afraid that I am one of the many Members who do not agree with the right hon. Gentleman that we should address it. I have always been a firm defender of the principle that anyone has the right to opt for jury trial, and the House has resisted any attempt to erode that right in recent years. The last Government’s attempt to change the position was defeated in the House of Lords during the last Parliament, and my party was elected—as, indeed, were the Liberal Democrats—on the basis of a firm commitment to retaining it. It is not just that I do not want to throw myself on the spears; I genuinely agree with those who believe that we should not alter the current ability to opt for jury trial.

[Robert Halfon (Harlow) (Con)]

Following the decision to remove legal aid from clinical negligence cases, how will my right hon. and learned Friend ensure that the most vulnerable in such cases are protected, and are not exploited by ambulance-chasing lawyers?

[Mr Clarke]

At present, about half the total number of clinical negligence cases are brought on a no win, no fee basis, and about half are brought on legal aid. No doubt some are privately financed. No win, no fee is a perfectly suitable way of proceeding in clinical negligence cases. We have decided that that—as amended by Sir Rupert Jackson—is likely to be the way in which people will proceed in future. What we have done completes a process of steadily taking legal aid out of criminal injury claims, which has been going on for some years, and I commend it as a logical next step.

[Keith Vaz (Leicester East) (Lab)]

The last Government, of course, also cut legal aid. The issue is quality, and how we focus that legal aid.

This morning, by chance, I visited our old college, where I saw the portraits of former Lord Chancellors who had attended it. When the college puts up a portrait of the current Lord Chancellor—or he may even be entitled to a mini-statue in the grounds—how would he like the epitaph to read, in relation to legal aid?

[Mr Clarke]

The last Government made many changes to legal aid, which stopped the increase in spending throughout most of the past decade. I have tried to return to basic first principles, and to ask “What is legal aid for?” Let us now put in place a logical structure that is defensible and may last.

I have not the first idea what kind of statue or picture that the college that I share with the right hon. Gentleman might ever erect to me. I do not think that a mini-statue would do justice to my full stature, but I should be very flattered if anything at all were put up. However, I trust that the college will acknowledge that we have tried to create a logical and defensible system which can be afforded by a civilised democracy that needs a legal aid system.

I should probably experience more difficulty in persuading my legal friends and the legal institutions to which I belong of the wisdom of all this than in persuading my old college.

[Nick de Bois (Enfield North) (Con)]

I welcome the continuing support for asylum cases under legal aid, but I welcome even more the curbs on immigration cases under legal aid. Given that over the period of the last Parliament some £400 million was spent on combined asylum and immigration cases, can the Lord Chancellor confirm whether these proposals will make substantial reductions in that expenditure, and if so, can he give an idea of how much will be saved?

--- Later in debate ---

[Mr Clarke]

Yes, we certainly intend to confine legal aid in immigration cases to those where detention or liberty is an issue, or in respect of asylum to where there may be a duty to provide asylum to someone who has been facing persecution. Other than that, we will make considerable reductions in legal aid in immigration cases involving purely personal reasons, which can include someone who has come here on a student visa and wants to transfer to a different course. Many such cases will still be brought of course, but there is no reason why the British taxpayer should pay for legal aid. I hesitate to give an estimate off the cuff of how much we will save under that heading, and I should emphasise that all the estimates we are giving of how much we will save are, indeed, estimates, because successive Governments have found it very difficult to predict how much legal aid will actually cost. Much depends on demand in particular areas, which is often unpredictable and outside the control of the Government.

[Ms Karen Buck (Westminster North) (Lab)]

Legal aid plays a vital function in creating a level playing field between the powerful and the powerless, and, even at a lower level, it must continue to do that. There are none so powerless as children. Will the Secretary of State clarify how he believes that children’s interests should be protected, particularly in respect of special educational needs in what is an increasingly decentralised school system?

[Mr Clarke]

Serious issues arise for parents in educational cases, and, obviously, the interests of the children should be paramount, as they are in most other cases. The difficulty is that the problem to be resolved usually relies more on educational expertise than on the law, and too often we are financing people who argue about the process that has been followed to resolve problems, instead of finding the best way of resolving the merits of how best to teach the child, where the child should be taught, or what support the child should have. We believe it is simply not right for the taxpayer to help inject an element of what is really legalism into problems that should in the end be resolved taking into account the best interests of the child from an educational point of view. Some of these cases can be turned into enormous legal battles, which seem to me to be very far removed from the object of ensuring that a child is best educated in school.

[Mr David Nuttall (Bury North) (Con)]

One group of people my constituents in Bury North would like to see excluded from the scope of criminal legal aid are Members of Parliament. Will the Lord Chancellor ensure that, in future, legal aid is not granted to any Member of Parliament accused of wrongdoing?

[Mr Clarke]

Considerable adverse comment was made about the unfortunate case of our recent colleagues who succeeded in obtaining legal aid for their defence because, I think, their case was listed in a Crown court that had not yet introduced means-testing. I can assure my hon. Friend that all Crown court cases that might involve legal aid will be subject to means-testing in future, and although MPs are not paid a king’s ransom, all are likely to have resources that will put them beyond the reach of full legal aid, which some of our colleagues recently obtained.

[Sir Gerald Kaufman (Manchester, Gorton) (Lab)]

Taking into account the Lord Chancellor’s wish, stated this afternoon, to encourage more efficient resolution of contested cases, will he press the Legal Services Commission to negotiate a settlement with South Manchester law centre ahead of the scheduled judicial review next month, given that the LSC lost a judicial review to the Law Society at immense public expense on the same kinds of points? It is essential, both to my constituents and more widely, that the South Manchester law centre continues to be able to help people on low means.

[Mr Clarke]

I will inquire into the case that concerns the right hon. Gentleman, but I must point out that the Legal Services Commission is currently a totally independent body and is not subject to ministerial control. We propose to change its status and make it an agency, which would make it more directly accountable and would enable us to exercise more control over efficiency, but we would still proceed on the basis of having no ministerial involvement in individual applications for legal aid, as it would be quite wrong to seem to politicise individual cases. Nevertheless, I hope that the dispute is resolved rapidly and I shall make inquiries as to whether the speeding up of a resolution can be facilitated.

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

Following the question of the Chairman of the Justice Committee, my right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith), and the Secretary of State’s very positive response about the role of the National Association of Citizens Advice Bureaux, is the Secretary of State willing to meet me and representatives of NACAB to discuss how it can carry on its excellent work in the wider fields of welfare benefits, homelessness and debt relief?

[Mr Clarke]

I have been considering this issue with colleagues and I shall continue to do so because we are concerned, more widely, about the present financial crisis affecting all kinds of outside bodies such as voluntary organisations and charities in many fields. Not-for-profit bodies such as NACAB are very important in giving the kind of advice and help that we are concerned with, so we will continue to look for a solution to that problem. I certainly promise the hon. Gentleman a meeting with me or the Under-Secretary of State for Justice, my hon. Friend the Member for Huntingdon (Mr Djanogly), who has put a great deal of work into producing this package.

[Mr Geoffrey Robinson (Coventry North West) (Lab)]

The Lord Chancellor will be aware that there is widespread understanding of his statement throughout the House, and his approach to this principled and rational discussion in no way undermines the continued, vital role for legal aid in our overall legal system. He must be aware of the correspondence that my office has had with his about certain law firms in Coventry that have carried out very good legal work on many good cases within the existing rules, but find it impossible to get paid for their work and are therefore opting out of the whole system of legal aid. Will he bear that issue in mind in the context of what he has said today?

--- Later in debate ---

[Mr Clarke]

I realise that we have had such problems. The LSC’s accounting has been criticised and its performance has not always been what it might—hence the complaints of late payment. The commission seems to have been making great efforts to improve its performance, which we hope to maintain. Obviously, we hope that the transition to the new agency arrangements, as first proposed by the previous Government, will not interrupt that. We will continue to make sure that we do not face straightforward complaints about late payment for services that have been rendered.

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

First, I declare an interest as a legal aid lawyer. Given your earlier comments, Mr Speaker, I hope that that will have no bearing on the length of this question. Will my right hon. and learned Friend measure the success of his proposals in relation not just to the amount of public money saved but to greater access to justice, because there is not always a need for a contested hearing?

[Mr Clarke]

I hope to, but I hesitate to claim that we are providing greater access to justice given that we are taking quite a few things out of the scope of legal aid assistance. However, I share my hon. Friend’s hope that we will encourage better resolution of disputes, of which there are plenty of examples. The president of the family division, Sir Nicholas Wall, has talked about how, in many family cases, long, adversarial conflict proves not to be the best way of resolving differences between parents and certainly is not in the children’s best interests. There are plenty of other areas in which I hope definite advantage in resolving disputes will come from our proposals.

[Chris Leslie (Nottingham East) (Lab/Co-op)]

Will the Justice Secretary try to estimate the impact of the proposals on the very poorest in society, particularly in our city of Nottingham? I know of welfare advice centres and citizens advice bureaux that will be in serious jeopardy of closing because of the way that the rules he has announced are skewed towards hitting the very poorest in society when it comes to welfare advice and housing. Can he assure us that he is not abandoning the very poorest in society to a desert in which they are left with no advice and completely without representation?

[Mr Clarke]

I realise the need for such services and I know that citizens advice bureaux are a particularly valuable source of advice for his constituents and mine in our area of Nottingham. I should point out, however, that not every bureau provides legal advice or gets legal aid and that bureaux have been eligible for it only since 2000, and we have moved into a situation in which some have become rather dependent on it. I can only say that I shall consider the problem. Legal aid probably never was the best way of financing such organisations and my colleagues and I will have to discuss whether some necessary measure can be introduced to ensure that wider advice is available, particularly to the most vulnerable in society. We are all agreed that the taxpayer should be involved only when people cannot reasonably be expected to pay at least a modest sum to get some advice of their own.

[Guy Opperman (Hexham) (Con)]

Given the restrictions that will apply in relation to education funding, can we be clear that there will be no legal aid funding, in whatever way, for special educational needs provision or other forms of education work?

[Mr Clarke]

Not normally, unless in an exceptional case we are under a legal obligation to provide legal aid. Education cases include all kinds of things, such as litigation regarding exclusion of particular pupils, and whether someone has been granted a place at the school of their children’s preference and so on. All such disputes can be litigated. The special educational needs cases are the most difficult. I repeat what I said before: these are educational problems, and there should be a process of resolving them that does not involve going all the way through the courts. I heard that the Supreme Court was hearing a special educational needs case. Although I am sure it came to the right decision, I am not sure whether it was the best way to resolve the problems of how to educate a particular child with particular problems.

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

I acknowledge the rational and very thoughtful way in which the Secretary of State has approached this issue. As he seeks to deliver the aid, advice and mediation services as a network across the country, will he make sure that some sort of protection for the poor and vulnerable is in place so that they are not driven into the hands of exploitative private sector operators who will want to take their money for immigration advice and the like—advice that is often dud and costs far more than they can afford?

[Mr Clarke]

I agree with the thoughts that underlie the hon. Gentleman’s intervention. Let me make it clear that legal support for mediation remains important in the family field, and we believe that it is a much better way of proceeding. I will certainly bear in mind what the hon. Gentleman said about immigration advice. We have all known for many years that some of that advice, usually given by non-lawyers, to those having difficulties with the immigrations authorities is not very good and that the prices charged are rather unscrupulous. People are being taken advantage of by those who are affecting to help.

[David Mowat (Warrington South) (Con)]

Has consideration been given in this review to the further savings that may be achieved by addressing the structure of aspects of the legal profession? In particular, the criminal Bar enjoys a near monopoly in some courts, but still constrains new entrants into the profession in a way that keeps rates higher than they might otherwise be?

[Mr Clarke]

That question was asked more frequently many years ago. The exclusive rights of audience in the higher courts were lost some years ago. There are now quite a lot of solicitor advocates. I am not sure whether the shadow spokesman, the right hon. Member for Tooting (Sadiq Khan), was a solicitor advocate, but he could have been if he had wanted to be. The profession is not as closed as it used to be. Changes are about to take place on new business structures for legal practice of all kinds, which will produce a considerable transformation in some areas of legal practice. We are in a far more competitive situation than we used to be.

[Gareth Johnson (Dartford) (Con)]

As a practising solicitor, I welcome this long-overdue full review of the legal aid system. Will my right hon. and learned Friend reassure the House that we will retain a key principle of the criminal justice system, which is that no one who faces the realistic prospect of imprisonment and who cannot themselves afford to pay will be refused legal assistance?

[Mr Clarke]

Yes is the best and most straightforward answer to that. My hon. Friend underlines an absolutely fundamental principle of justice in any civilised society, so the answer is an emphatic affirmative.

Prisons and Probation Ombudsman for England and Wales

Lord Clarke of Nottingham Excerpts

Thursday 11th November 2010 Written Statements

[The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)]

Stephen Shaw CBE stood down as prisons and probation ombudsman earlier this year to take up appointment as chief executive of the health professions adjudicator. Stephen was appointed as ombudsman in 1999.

The Ministry of Justice will shortly be advertising the vacancy and seeking applicants for the office of prisons and probation ombudsman. Although the post is not within the remit of the Commissioner for Public Appointments, the appointment will be made using a process which takes account of the commissioner’s code of practice as best practice. I will inform the House once I have selected my preferred candidate for the office.

Mental Capacity Act 2005

Lord Clarke of Nottingham Excerpts

Thursday 28th October 2010 Written Statements

[The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)]

I am today laying before Parliament the Government’s memorandum to the Justice Select Committee on post-legislative scrutiny of the Mental Capacity Act 2005.

The primary purpose of the Act was to empower and protect people who may lack capacity to make decisions for themselves and to enable people to be able to make provision for a time in the future when they may lack capacity. Implementation of the Act has ensured that these measures are in place.

Inquiries Act 2005

Lord Clarke of Nottingham Excerpts

Wednesday 27th October 2010 Written Statements

[The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)]

I am today laying before Parliament the Government’s memorandum to the Justice Select Committee on post-legislative scrutiny of the Inquiries Act 2005.

The Inquiries Act 2005 introduced a comprehensive statutory framework for inquiries set up by Ministers to look into events that have caused or are capable of causing public concern. There are wide-ranging measures in the Act aimed at restoring public confidence in inquiries by making inquiry process swifter, more efficient and less costly while meeting public need for thorough and far-reaching investigation.

Right to Information (Criminal Proceedings)

Lord Clarke of Nottingham Excerpts

Monday 25th October 2010 Written Statements

[The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)]

The Government have decided to opt-in to the directive on the right to information in criminal proceedings. The directive meets the criteria set out in the coalition agreement with regard to EU justice and home affairs measures.

The draft directive will provide minimum standards for individuals subject to criminal proceedings. British citizens abroad will benefit under the directive from increased confidence in procedural standards across the European Union. It will also increase security at EU level by supporting existing provisions which help combat crime and promote the rule of law.

The Government will approach forthcoming legislation in the area of criminal justice on a case-by-case basis, with a view to maximising our country’s security, protecting Britain’s civil liberties and preserving the integrity of our criminal justice system.

Dr David Kelly

Lord Clarke of Nottingham Excerpts

Friday 22nd October 2010 Written Statements

[The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)]

I have today placed copies of the post-mortem examination report and the toxicology report relating to the death of Dr David Kelly in July 2003 in the Libraries of both Houses and on the Ministry of Justice website at: http://www.justice.gov.uk/publications/ kelly-pm-toxicology-reports.htm

I am publishing these reports in the interests of maintaining public confidence in the inquiry into how Dr Kelly came by his death.

While I firmly believe that the publication of these documents is in the public interest, I am mindful that the contents may be distressing. I hope that the privacy of Dr Kelly’s family will be respected at this difficult time.

Oral Answers to Questions

Lord Clarke of Nottingham Excerpts

Tuesday 19th October 2010 Commons Chamber

[Andrew Griffiths (Burton) (Con)]

6. What estimate he has made of the number of prisoners in England and Wales addicted to class A drugs.

[The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)]

We estimate that on average, 55% of all people entering prison have a serious drug problem, but we are unable to give a robust and precise estimate of the number of prisoners who are addicted to class A drugs. A recent study reviewed 1,457 newly sentenced prisoners from 49 prisons. It showed that 62% of prisoners reported some drug use, and 41% of the sample reported heroin, cocaine powder or crack cocaine use during the four-week period prior to the study.

[Andrew Griffiths]

The Secretary of State will know that more than 60,000 prisoners received methadone or another drug intervention in our prisons last year alone. Almost 24,000 of them received a regular methadone prescription. Does he agree that that state-induced dependency must end?

[Mr Clarke]

rose—

[Andrew Griffiths]

And will he urgently bring forward proposals to tackle the problem?

[Mr Speaker]

Order. The hon. Gentleman is testing the knee muscles of his right hon. and learned Friend.

[Mr Clarke]

I was compelled by my hon. Friend’s first question and I had not thought that there was more to come. As he said, we must move away from the overuse of drugs and methadone maintenance, and aim at detoxification and returning people to a condition in which they might stay out of prison. Methadone maintenance is sometimes necessary when dealing with people who are seriously addicted when they enter prison. If people are serving a very short-term sentence, there is not much more we can do than maintain them on methadone.

However, the Ministry of Justice is looking, with my right hon. Friend the Health Secretary, to see what can be done in the context of his health reforms to deal more constructively with the huge problem of drugs offenders and crime. As I said, more than half the people whom we admit to prison are believed to have a serious drug problem when they arrive, and some who enter drug-free become addicted while there.

[John Mann (Bassetlaw) (Lab)]

Some of us believe that decisions on drug treatment, including in prison, should be taken by doctors, not by politicians. Which Government agency will take the lead on drug treatment in prison under this Government?

[Mr Clarke]

I know that the hon. Gentleman takes a close interest in drug treatment in his constituency, where he has an excellent record on the subject. Responsibility for such treatment in prisons has been transferred to the NHS. I agree with his proposition that clinical judgments must lie at the heart of any drug treatment programme, but it is necessary for Departments to collaborate. My right hon. Friend the Secretary of State for Health and I hope to produce a combined framework on treatment in prison and treatment for convicted drug users in alternative residential accommodation. That might include the transfer of prisoners in suitable cases to community-based mental health care. All those things must be tried, because the current situation is quite appalling. However, in the end, treatment of an individual must be a clinical decision. It is certainly not a decision for politicians.

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[Andrew Jones (Harrogate and Knaresborough) (Con)]

18. What recent discussions he has had with ministerial colleagues on the provision of training for prison service staff on the management of offenders with mental health conditions.

[The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)]

Ministry of Justice and Department of Health Ministers and senior officials discuss offender health issues regularly. Over 17,000 prison officers received mental health awareness training between 2006 and 2009. A new mental health training framework was launched in 2009-10, which regional offender health teams now co-ordinate.

[Mr Buckland]

I am grateful to my right hon. and learned Friend for that answer and I am delighted to hear that his Department is working with the Department of Health. Will he do all that he can to work effectively with that Department to ensure the proper commissioning of mental health services, which will not only improve intervention in the police station, but ensure a wider range of effective sentences in our courts?

[Mr Clarke]

That is precisely what we want to do, and my hon. Friend’s approach is very much in the right direction. Much reform will take place in the Department of Health, including obviously the commissioning of services for mental health. It is important that account is taken of the need to commission proper services of all kinds for prisoners, and that is being taken on board by my right hon. Friend the Secretary of State for Health and his team. We will work closely with them. The present prison population includes people whose criminality goes alongside a definite need for support—in this case for mental health problems—which, if tackled successfully, might reduce their liability to reoffend.

[Dr Poulter]

Does the Secretary of State agree that the treatment of prisoners with mental health problems does not just end when they leave prison but continues far beyond? Will he please outline what steps the Government plan to take to support prisoners with mental health problems after they leave prison?

[Mr Clarke]

I agree entirely. It is all part of what we hope to do on rehabilitation. In addition to tackling prisoners’ problems inside prison, we have to look ahead and almost certainly join up with the community mental health services providing support for prisoners when they are released. That will be an important part of ensuring that the reforms we are carrying out to the prison service and the criminal justice system are properly tied up with my right hon. Friend the Secretary of State for Health’s important reforms to the future shape of the NHS.

[Mr Speaker]

Order. May I gently encourage the Secretary of State to look at the House when he addresses us?

[Andrew Jones (Harrogate and Knaresborough) (Con)]

How do the Government intend to implement the proposal in the coalition agreement to explore alternative forms of secure treatment-based accommodation for mentally ill and drugs offenders?

[Mr Clarke]

I recall that proposal in the coalition agreement. I think I mistakenly drew upon it a few moments ago when talking about drug treatments—I do not think we will be moving to that quite so rapidly. However, that is an important part of the coalition agreement, and I can only say at this stage that we certainly have not forgotten about it and are working on it. Undoubtedly, if we can set up a proper and, where necessary, secure treatment facility, it would perhaps be a better place to treat mental illness than an overcrowded prison.

[Dr William McCrea (South Antrim) (DUP)]

What discussions have been held between the Secretary of State’s Department and the devolved Administrations on this important issue? Are there any glaring variations between the training available across the different regions of the United Kingdom?

[Mr Clarke]

These matters are devolved. I have no doubt that we will look at good practice on both sides of the Irish sea from time to time to ensure that we benefit from what we each do. I am in regular contact with my opposite number in the devolved Northern Ireland Government, and I will try to take the opportunity to discuss these matters with him to see how we are both getting on.

[Mr Chuka Umunna (Streatham) (Lab)]

I am encouraged by the responses from the Secretary of State, particularly given that this is a big issue in my constituency, which is home to Her Majesty’s Prison Brixton. We want to expand provision for mental health services in that prison so we are keen to know whether he agrees that it would be a mistake this week to reduce funding for mental health services in our prisons?

[Mr Clarke]

Not surprisingly, everyone is trying to anticipate tomorrow’s announcements. We will have to make fairly marked reductions to the budget of the Ministry of Justice and the various services for which we are responsible. Against that background, we will need to take an approach to how we tackle these problems that is more radical and reforming than the previous one, which involved simply paying for more and more places for more and more people, leading to overcrowded prisons. Our approach will underline the need to take a particular look at drugs, mental health, illiteracy, innumeracy, foreign national prisoners and all the other things to ensure that we find better ways of dealing with rehabilitation problems whenever possible.

[Hazel Blears (Salford and Eccles) (Lab)]

9. What recent discussions he has had with the Sentencing Guidelines Council on its guidance on short custodial sentences.

[The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)]

The Sentencing Guidelines Council has not issued any specific guidance on short custodial sentences. We have had no discussions with the council on this topic, which we are considering as part of our assessment of sentencing policy.

[Hazel Blears]

The Secretary of State may be aware of a recent case in my constituency in which a young man suffering from autism and Asperger’s syndrome was subjected to a series of horrific attacks by three other young men. The judge said that the attacks could almost amount to torture, yet the three perpetrators were given community orders. During the general election, the right hon. Member for Witney (Mr Cameron), now the Prime Minister, told the country that we are not convicting enough. He then explicitly said that

“when we do convict them, they’re not getting long enough sentences.”

Just two weeks ago, in his speech to the Conservative party conference, the Prime Minister said that

“offenders who should go to prison will go to prison”.

I agree with the Prime Minister—does the Secretary of State?

[Mr Clarke]

One of the failings of the last Government was to take a popular subject from the popular press and make rather shallow partisan points out of it. Sentencing in individual cases is not a matter for Ministers, and should not be a matter for sensational comment to the newspapers by Ministers with the frequency that it was. We have to ensure that justice is done, particularly to the victims of crime, and that justice is carried out in such a way as to reduce the risk of reoffending. We have made our approach to crime perfectly clear: we must punish the guilty. Prison is the right place for serious criminals—they will not commit more crimes while inside—but we also strive to avoid reoffending. The case that the right hon. Lady mentions was obviously a serious case for the victim, but newspaper cuttings from Salford are not the source of future criminal justice reform.

[Philip Davies (Shipley) (Con)]

Will the Secretary of State take this opportunity to acknowledge that very few people are sentenced to prison for a first offence? The vast majority of people who serve short-term prison sentences do so only because they have been given community sentence after community sentence, all of which have failed. The last thing to do with those people is to give them another community sentence, only for it to fail once again.

[Mr Clarke]

It is very pleasant to say that I largely agree with my hon. Friend. He has probably been upset by reports that I am minded to abolish short prison sentences. Actually, I have always expressed precisely the opposite opinion. It has never been my view that we should abolish all short prison sentences. Indeed, I have rather shared his opinion that with the kind of irritating recidivist offender who is causing a lot of damage, if they offend over and over again there is quite often no alternative to a short prison sentence. There are too many such offenders, and although there are cases in which we can avoid the use of short prison sentences, if we do that we must have a very effective alternative.

[Sadiq Khan (Tooting) (Lab)]

May I begin by saying how much I genuinely relish the prospect of debating—and, dare I say, arguing—with the Lord Chancellor and his team on the matters in their portfolio? I am also looking forward to working with the coalition Government where there are areas of agreement between us, notably on the use of restorative justice projects such as community payback—a subject that has already been raised by the hon. Member for South West Norfolk (Elizabeth Truss) and other colleagues. However, the right hon. and learned Gentleman will know that most people who receive short prison sentences are persistent offenders who have refused to change their behaviour, even after undergoing community sentences, as has been said. He has said that he is not against abolishing the power of magistrates to award short sentences. Will he commit today not to reduce, in the sentencing review now taking place, the power of magistrates to give custodial sentences where appropriate?

[Mr Clarke]

I welcome the right hon. Gentleman to his place, and I look forward to debating with him. He has certainly got to Cabinet level a damn sight more quickly than I ever did, so I am sure that he will prove a formidable challenge to the Government. As I have already said, we will not take away powers from magistrates courts, which sometimes find it absolutely inevitable that they have to give somebody a short prison sentence, because everything else has failed and that person is continuing to cause damage to other people. However, we hope to provide magistrates with the full range of alternatives. As my right hon. Friend the Minister for Policing and Criminal Justice said a few moments ago, more credible community sentences—sentences with a properly punitive element that might have a better chance of rehabilitating the offender—should be tried in more cases, and we will try to provide them for magistrates.

[Sadiq Khan]

I am grateful to the Lord Chancellor for that answer. He has made it absolutely clear that magistrates will not have the power to give short sentences taken away from them. For clarity, will he also confirm that the cuts that will be announced tomorrow will not lead to a reduction in any prison places or to any prisons being closed?

[Mr Clarke]

I hope that the right hon. Gentleman is not going to follow his predecessors in making a great policy point about a target for the number of people in prison, because there is no evidence that that does any good to anybody. We do have to—[Interruption.] The present numbers are enormous compared with the numbers when we were last in office. There are 20,000 more people in prison than there were when we last had a Conservative Home Secretary in charge. We are looking at what works, and what protects the public. Prison must be used for those for whom it is essential, but it is simply not the case that prison is the only way of dealing with all offenders. Once we have punished people and given others a break from their activities, the key thing is to do more than the present system does to reduce the risk of their reoffending and committing more crimes against more victims, to which the present system almost condemns us. More than half of prisoners—

[Mr Speaker]

Order. I am grateful to the Secretary of State, but we now need shorter questions and shorter answers.

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[Stephen Mosley (City of Chester) (Con)]

11. What progress his Department has made on implementation of its payment by results policy for the rehabilitation of offenders; and if he will make a statement.

[The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)]

The Government are committed to introducing payment by results as part of a new approach to offender rehabilitation. We will provide further details in the rehabilitation and sentencing Green Paper.

[Stephen Mosley]

With 60% of offenders on short-term sentences reoffending within a year, it is absolutely critical to have a major step change in our attitudes to rehabilitation. To that end, will my right hon. and learned Friend tell us whether he plans to introduce any more pilot schemes, and if so, when and where will they occur?

[Mr Clarke]

I entirely share my hon. Friend’s view, and we are hoping to get more pilots under way in the new year, as soon as we have got our Green Paper out and drawn up the framework contracts that we shall have to enter into with providers. The country is full of people with extremely good ideas on how to improve rehabilitation and reduce reoffending, and we must ensure that we have a proper means of engaging with people in the voluntary and independent sectors and in private sector companies—in any combination of those that people wish—to try to produce the result that my hon. Friend and I, and all our constituents, would like to see.

[Mr David Ward (Bradford East) (LD)]

13. What steps his Department is taking to increase access to legal representation for the most vulnerable.

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[Paul Maynard (Blackpool North and Cleveleys) (Con)]

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

[The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)]

I would like to point out that we recently launched the new legal ombudsman scheme on 6 October 2010. The legal ombudsman, established under the Legal Services Act 2007, will act as a one-stop shop for all complaints against legal service providers. The new scheme replaces the previous complaints-handling regime, whereby service complaints about lawyers were dealt with by their regulatory body. The legal ombudsman will preside over the new complaints system, which will be efficient, easily understandable for consumers, and clearly independent from the legal profession.

[Paul Maynard]

I recently received a letter from a constituent who in 2000 received a three-year custodial sentence for a non-violent crime. Despite successful rehabilitation and gainful employment, he now discovers that his conviction can never be legally spent—with a dreadful impact on the future lives of both himself and his family. Given the Lord Chancellor’s enthusiasm for rehabilitation, and also the inflation in sentencing over the past 10 years, will he commit to look again at the threshold at which convictions can be legally spent?

[Sadiq Khan (Tooting) (Lab)]

Will the Lord Chancellor confirm that in the forthcoming review of the Human Rights Act, its abolition has been ruled out?

[Mr Kenneth Clarke]

The coalition agreement sets out that we will appoint a commission, which will probably happen next year. We will certainly not resile in any way from our obligations under the European convention on human rights, which the Government accept. We will also examine the prospects of improving understanding of how human rights legislation works in this country.

[Andrea Leadsom (South Northamptonshire) (Con)]

T3. Are my right hon. and hon. Friends aware of the devastating consequences, particularly for victims of domestic violence, of the decision taken by the Legal Services Commission to halve the number of legal aid providers? In the whole of my constituency of South Northamptonshire we have only one small firm specialising in domestic violence legal aid cases, yet it has just been told that its licence will be revoked. Can Ministers do anything to help my constituents?

[Mrs Louise Ellman (Liverpool, Riverside) (Lab/Co-op)]

T2. What action will be taken to ensure that the arrest and prosecution of foreign nationals can be undertaken only by the Crown Prosecution Service and the Metropolitan police?

[Mr Kenneth Clarke]

I will make careful inquiries into what steps are being taken. Obviously foreign nationals should be treated on the same basis as any other residents of this country when it comes to being dealt with via the criminal law. However, if the procedures give rise to some concern, perhaps the hon. Lady would draw the specific problem that troubles her to my attention and that of my team, and we will look into it.

[Graham Evans (Weaver Vale) (Con)]

T5. Given the potential closure of Northwich court in my constituency, as a result of which people will have to travel a considerable distance to reach the nearest court in Chester, what plans have the Government to encourage the use of technology to minimise the necessity for members of the public physically to attend the court for routine purposes?

[Rosie Cooper (West Lancashire) (Lab)]

Does the Secretary of State think that there should be a public acceptability test relating to the time that prisoners spend in purposeful activity?

[Mr Kenneth Clarke]

I think that it would be very publicly acceptable if there were a more work-based regime in more of our prisons. I am not sure what specific tests would need to be devised, but we would need to ensure that, whenever possible, the hours spent in productive employment by prisoners reintroduced to the work habit were similar to those to which they would have to adapt if they obtained a job when they left prison, and that they would be able to produce goods, for instance, generating earnings that would help them to make a contribution to compensation for victims. However, I am not sure that each of those programmes would need to be subjected to a public acceptability test.

[Matthew Hancock (West Suffolk) (Con)]

T6. Many millions of pounds are spent on court cases involving divorcing couples. Yesterday David Norgrove was quoted as saying that the Department was looking to a Swedish model to help to resolve divorce cases— Name her! What changes does the Secretary of State propose to make, and how much would—[Interruption.] Order. I want to hear the rest of the question. It is becoming more fascinating by the word. What does the Secretary of State intend to learn from the Swedish model, and how much money would be saved?

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[Mr David Winnick (Walsall North) (Lab)]

How many of those who were seriously injured in the 7/7 bombings are still waiting for compensation? Presumably the Department has some responsibility in that regard. As for the claims that have been finalised, is the Secretary of State aware that there is a good deal of dissatisfaction among those who have received inadequate sums, in view of the serious injuries inflicted by the mass murderers?

[Mr Kenneth Clarke]

Because of the system that we have inherited, the criminal injuries compensation scheme will have to be re-examined. It simply has not received adequate funds in each year’s budget to keep up with the level of claims. We will have to establish how we can produce a system that works more efficiently, is affordable, and does not depend entirely on huge delays before payments are made because no one has been allocated any money to settle all the outstanding claims.

There is quite a lot behind the hon. Gentleman’s question, but of course everything possible is being done to provide the compensation due to people as quickly as possible. Obviously I cannot comment on the assessment of damages in individual cases, but I note the hon. Gentleman’s remarks about the disappointment that some have felt.

[Mr Christopher Chope (Christchurch) (Con)]

T7. As part of his efforts to save money by reducing the workload of the magistrates courts, will my right hon. and learned Friend make it his policy to decriminalise the non-payment of the BBC television licence fee, so that the BBC, like every other organisation, must recover its civil debts civilly rather than through the magistrates courts?

[Mr Clarke]

I am not sure that that is my responsibility at present; I will consult my right hon. Friend the Secretary of State for Culture, Olympics, Media and Sport. I can only say that the last time I can remember a Government attempting to do that, the idea was not met with a great deal of favour by the BBC—but I shall find out exactly where we are now.

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

Like many others, I would like to see less use of short-term prison sentences, but will the Justice Secretary expand on his curious remark a little earlier that there is little evidence that prison does any good to anyone?

[Mr Clarke]

If I said that, it was one of those slips of the tongue that I very rarely make. Prison is the best and only punishment for serious criminal offenders; it is the one that we all want to use. It has a strong punitive element if the just and correct sentence is given, and the public are, of course, spared from the crimes of the individual for so long as he is in prison—but we should also strive to do much better than we have ever done before in reducing the likelihood of the person reoffending and committing new crimes as soon as he is released. I am, however, delighted to hear that the right hon. Gentleman agrees with me that short-term sentences are used too much. He should have a word with his party’s newly appointed Front-Bench spokesman, before that Front-Bench spokesman slips into the folly of the last 10 years.

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

Since no funding was in place from the previous Government for the post of chief coroner, the decision not to go ahead with it was hardly surprising, but does that not leave a gap both in raising standards and in having an appeal procedure less costly than judicial review?

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

T8. My right hon. and learned Friend the Justice Secretary will be aware of the considerable disquiet felt about the Judicial Appointments Commission both by those within the ranks of the judiciary and by those seeking preferment to it. According to the Library, the cost of the JAC to his Department is in the order of £10 million annually. That is for the discharge of functions formerly performed by the Lord Chancellor’s Department for an amount that I have little doubt was one twentieth of that. We saw the axe taken to a number of quangos this week; when can the House expect the JAC to join them?

[Mr Kenneth Clarke]

I do not think we are going to abolish the JAC, and it did not appear on the list for the axe this week. My hon. Friend makes a well-founded point, however. While retaining the commission, we will take a close look at improving the way it operates, particularly in respect of the amount that it is now costing, the time it is taking to make appointments, and the burdensome processes that are sometimes introduced.

[Ian Austin (Dudley North) (Lab)]

Perhaps it was also a slip of the tongue when the Secretary of State completely failed to answer the question asked by my hon. Friend the Member for Liverpool, Riverside (Mrs Ellman). Before the election, Members now sitting on the Government Benches, from the current Prime Minister down, all promised on umpteen occasions to sort out the issue of universal jurisdiction. Why have they so far completely failed to do anything about it at all? Why are they shilly-shallying about? When are they going to get it dealt with?

[Mr Clarke]

I am grateful to the hon. Gentleman; for some reason, I completely failed to get the full point of what was being said. I thought it was being suggested that there should be a different method for dealing with foreign arrests than for domestic arrests. I entirely agree with the point that has been made. We have already said we are going to readdress the law. The Leader of the House is sitting alongside me, and he tells me that legislation will be introduced in the House very soon.

[Julian Smith (Skipton and Ripon) (Con)]

T9. When can those opposed to the closure of Skipton court expect to hear a decision about it, and can the Minister reassure me that its unique rural case will be listened to carefully?

[Thomas Docherty (Dunfermline and West Fife) (Lab)]

Will the Lord Chancellor update the House on the Government’s thinking on prisoners having the right to vote?

[Mr Kenneth Clarke]

The Government, led by my right hon. Friend the Deputy Prime Minister, are giving careful consideration to that point.

[Dr John Pugh (Southport) (LD)]

T10. The Ministry has a laudable and exemplary commitment to evidence-led policy. Given that, can the Minister assure me that when he reviews the magistrates courts, he will look critically at the information on the condition and use of Southport’s courts in the Ministry’s consultation document—which is, frankly, duff, inaccurate and misleading?

Judiciary (England and Wales)

Lord Clarke of Nottingham Excerpts

Thursday 16th September 2010 Written Statements

[The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)]

I am announcing today proposals to bring the tribunals judiciary in England and Wales under the overall leadership of the Lord Chief Justice. The changes require primary legislation and I hope to include them in a Bill as soon as parliamentary time allows.

An announcement was made in March that the Ministry of Justice would be bringing together Her Majesty’s Court Service and the Tribunals Service in a single, unified organisation. The new organisation will be established by 1 April 2011.

I subsequently agreed with the Lord Chief Justice and Senior President of Tribunals that in bringing together the administration of the courts and tribunals the current judicial structure should also be reviewed.

Our shared vision is to work towards a unified judiciary encompassing both courts and tribunals. This could be achieved, so far as concerns England and Wales, by transferring the statutory powers of the Senior President of Tribunals to the Lord Chief Justice, and creating a new office of Head of Tribunals Justice with a statutory obligation to protect and develop the distinct and innovative features of the tribunals.

The Senior President of Tribunals is a statutory role that has jurisdiction in both Scotland and Northern Ireland. Further, a number of important tribunal jurisdictions extend to one or both of those countries, and cross-border sittings are a normal part of the judicial work of many tribunal judges. I recognise the importance attached by them and the Senior President to this aspect of their work, and the advantages it offers to the interests of users and the efficiency of the system overall. I am in discussions with judicial leaders and with Scottish and Northern Ireland Ministers about whether and how we might transfer the Senior President’s tribunal responsibilities to the Lord President and Lord Chief Justice of NI respectively. Any such transfer will wish to preserve the benefits of existing arrangements.