Justice and Security Bill [Lords]

Debate between Lord Clarke of Nottingham and Elfyn Llwyd

Tuesday 18th December 2012 Commons Chamber

[Mr Clarke]

The inference I would draw is that at least a judge, doing the best that he or she can, has had a chance to consider the evidence, and has delivered a judgment. If the judge is not allowed to consider the evidence, obviously no useful judgment can be pronounced at the end of the case. Of course it would be very much better if the evidence were given in an open procedure—in normal cases, the openness of justice is one of the proudest boasts of our system—but in cases in which national security will be jeopardised if evidence is given openly, it must be ensured that the evidence can be given in the best possible circumstances in the light of the obvious limitations of the case.

British judges are quite capable of deciding whether or not national security is involved. British judges do not need us to lecture them on the rule of law and the duty to be impartial between the parties. British judges will want to hear evidence openly if they think that that can possibly be practicable. British judges will be able to judge—they do it all the time—the weight to be given to evidence. Once the judges discover who was the source of the information, people can be challenged about the reliability of that source. Of course the system is not ideal—if we could only persuade all the country’s enemies to close their ears, there could be a perfectly ordinary single-action trial and we could hear everything—but I believe that the Bill will move us from what is currently a hopeless position to a better position that will allow us to hear the judgment of a judge in appropriate cases.

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

Is the right hon. and learned Gentleman aware of a criminal trial that took place some years ago in Caernarfon Crown court in north Wales, involving the damage to second homes, in which MI5 officers gave evidence behind a screen? Their anonymity was not compromised, and nor were the interests of the state.

[Mr Clarke]

Nothing in the Bill will affect the criminal law. No one will be prosecuted on the basis of secret evidence. However, there are plenty of cases—for instance, those involving MI5 or involving victims of certain types, such as vulnerable victims—in which it is proper to screen witnesses from public view, or otherwise protect them. The Bill, however, has nothing whatever to do with criminal cases.

The purpose of closed procedures is not just to ensure that no one can see what the agent looks like; there are some cases in which we cannot let people know what the agent was doing. The plaintiff may have been compromised as a result of terrorist or other activity, and he and his friends may be dying to know how they were caught. What were the British agents doing that put them on to it? They want to know who shopped them, and that will make things very difficult for a person who they come to suspect is the source of the material that is emerging. As I think everyone knows perfectly well, it is not possible to share that information with the parties in each and every case of this kind. However, while some people might consider it satisfactory to say “Well, in those cases the Government never defend themselves and we just pay millions of pounds”, I really do not think that we need tolerate that situation any longer.

Oral Answers to Questions

Debate between Lord Clarke of Nottingham and Elfyn Llwyd

Tuesday 3rd July 2012 Commons Chamber

[Mr Speaker]

I am now looking for stunning succinctness. I call Mr Elfyn Llwyd.

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

I shall try to stun you, Mr Speaker.

The Secretary of State knows that the relationship between probation officer and offender is crucial to the rehabilitation process. How will he assure the House that opening up to the private sector will not undermine that crucial relationship?

[Mr Clarke]

In all these things, I take the view that the status of the person involved—whether they are classified as public sector or private sector, or who exactly they work for or which union they belong to—is a slightly subordinate issue. This is a rather sterile debate of a few decades ago about whether there should be private sector or public sector provision. What matters is the quality of what is done, the quality of the person, the relationships they develop, and what is available to them to make a community sentence more effective.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Clarke of Nottingham and Elfyn Llwyd

Tuesday 17th April 2012 Commons Chamber

[Mr Clarke]

Such women will not get an injunction if it turns out that there is no reasonable ground for giving it and they are not in imminent fear of domestic violence. We will give them legal aid because we think it is important that these issues are tested in cases where legal advice is available. If women do not get the injunction, they will not get the legal aid later.

[Mr Llwyd]

What is being missed here is that the evidential gateway is being closed down. I am not saying that the right hon. and learned Gentleman wants to deprive every person of assistance in a domestic violence situation. I would never allege that; I know him to be a better person than that. What I am saying is that 46% of those who would be eligible will no longer be eligible under these so-called reforms, according to recent reports from Rights of Women and Welsh Women’s Aid. People who would genuinely qualify will no longer qualify, and that is the issue that we are now discussing.

--- Later in debate ---

[Mr Clarke]

But women will get legal aid for seeking the injunction. The hon. Lady is falling into what has happened throughout these debates. The definition that we are talking about as the gateway to legal aid for all other private family law cases goes far beyond injunctions.

If I may move on, I will remind hon. Members how far we have gone since we started the Bill—far beyond where the Opposition were first urging us to go—and we will go further in response to the debate in the House of Lords. The first issue is reflected in Lords amendment 192—whether or not we should use the definition used by the Association of Chief Police Officers, which we resisted in this House. The Government’s intent is to have a broad and inclusive definition and one that commands widespread agreement. To cut all the pressure, we are happy to support the spirit of the amendment and we are therefore adopting the ACPO definition. I half suspect that if we had offered that when the Bill was in the House of Commons—it was my mistake that we did not—we would have closed the discussion down in the House because that is what everybody was then pressing for.

In their amendment their lordships in their wisdom add words which are not in the ACPO definition. That rather goes against the arguments that have been put forward for one, single, cross-Government definition of domestic violence. We have therefore tabled further Government amendments in lieu of Lords amendment 192 which would define domestic violence in the same way as the ACPO definition as

“any incident of threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional) between individuals who are associated with each other.”

We think this should satisfy the concerns that have been expressed in both Houses on this point, so I shall ask the House to agree to this Government amendment in lieu of Lords amendment 192.

Amendments 194 and 196 concern the accepted forms of evidence of domestic violence. I have already said that when litigation is about domestic violence, the victims will always have legal aid. The issue is one of balance. Lords amendment 194, led by the learned Baroness Scotland and supported by a number of her colleagues in the other place, has prompted us to look again at other kinds of objective evidence to ensure that the test is as widely drawn as possible.

I have discussed that with colleagues in the House, and I am grateful to the colleagues with whom I had meetings, particularly to my hon. Friend the Member for Maidstone and The Weald (Mrs Grant), who is in her place, for advice on the subject because she knows far more about family law than I do, as I have never practised in this field, and in particular for making the point that we need to take care that the range of evidence does not force victims to take formal court action where it may not be suitable in individual circumstances. We do not want to force people to go to court who would not otherwise do so.

Therefore, in response to this House and the debate in the other House, we intend to accept as evidence—we will reflect this in regulations—the following matters: an undertaking given to a court by the other party in lieu of a protective order or injunction against that party for the protection of the applicant, where there is no equivalent undertaking given by the applicant; a police caution for a domestic violence offence by the other party against the applicant; appropriate evidence of admission to a domestic violence refuge; appropriate evidence from a social services department confirming provision of services to the victim in relation to alleged domestic violence; and appropriate evidence from GPs or other medical professionals.

We are prepared to accept those matters and ask the House to accept them this evening. They are in addition to those forms of evidence that the Government already accepted in our earlier debates. Those are: that a non-molestation order, occupation order, forced marriage protection order or other protective injunction against the other party for the protection of the applicant is either in place or has been made in the previous 12 months; that a criminal conviction for a domestic violence offence by the other party against the applicant is still in place; that there are ongoing criminal proceedings for a domestic violence offence by the other party against the applicant; that there is evidence from a multi-agency risk assessment conference of the applicant having been referred as being at risk of domestic violence from the other party and action has been recommended; and that there is a finding of fact by the courts of domestic violence by the other party against the applicant.

For the best part of 12 months we have reviewed this rather narrow point in one piece of litigation, and that is a fairly formidable list of things we are prepared to accept as evidence of domestic violence. If their lordships consult the people who have been sending them all the e-mails for the past few weeks, I am sure that they will be able to add to the list, as will Members of this House, but if we are not careful we will forget what the objective is: we want more of these cases not to be conducted by lawyers, financed by the taxpayer, who are engaged in adversarial litigation about where the children will live, what maintenance should be paid by one party or the other or what share of the matrimonial home should be owned by one party or the other. The Government have responded pretty generously because of our concern about domestic violence and, as I have already indicated, in key areas we have moved beyond where we were. This evening we have to insist that that is where it will end.

I should also point out that, on the time limits, where I do not think any history of domestic violence can be remembered and invoked, it is a question of ensuring that victims of recent or ongoing violence are protected, drawing a line so that Government regulations do not result in a permanent opening of access to legal aid. We will double the time limit we originally proposed from 12 months to two years, except in respect of a conviction for a domestic violence offence, where the only limit is that the conviction should not be a spent one.

Having moved on all those issues, the Government do not agree that the evidential requirements for those cases should be set out on the face of the Bill; the evidence I have described will instead be set out in regulations. The benefit is that that will allow greater flexibility to amend the scheme if required in the light of experience. If we set it all out in primary legislation, we would find that we had set things in stone for our successors.

[Mr Llwyd]

Can the Secretary of State assist us by telling us how the list he read out, which I must say is welcome, differs from Lords amendment 194, because they seem almost identical? Is he saying that, rather than putting them on the face of the Bill, they will be set out in cast-iron regulations?

[Mr Clarke]

I think that I am right in saying that what their lordships tried to do was put one form of definition used by the UK Border Agency on the face of the Bill. That is far too wide, and it is for a different purpose—[Interruption.] Well, that is an indication of the sorts of things it will take as evidence; it is not a qualification for anything. We need something that is the basis for making a clear decision on whether or not people are eligible for money, and we have opted for ACPO-plus. The other difference, as I have said, is that we do not think that we should spell it out and draft each of these forms—I of course bind myself by the words I read out earlier, which are what we are committed to. The advantage of regulating along the lines that the Government are committed to is that, if in the light of experience there is some mistake, it is much easier to make a change. It is always a mistake to fix everything in too much detail in primary legislation, because a future Minister or Government might have to try to find the parliamentary time to make the necessary changes to improve it.

--- Later in debate ---

[Mr Clarke]

My right hon. Friend anticipates the concession that I was going to explain; it is in the documents before us, and he has spotted it. Legal aid issues are usually, as everybody knows, about the factual basis of the claim or the proper application of this country’s extremely convoluted social security regulations, which I hope the current Government’s reforms, when we eventually get to a universal benefit, will greatly simplify, but most such issues are not legal. We have a tribunal system that was deliberately designed so that ordinary citizens might access it and argue their case, and when we invented all those tribunals, we went out of our way to say, “They are not courts and you don’t require lawyers, as these are places where people will argue,” but, as my right hon. Friend says, sometimes legal issues are raised in them.

The Government, in response to these debates, have tabled an amendment, which is a concession. It is Government amendment (a) in lieu of Lords amendments 169 and 240, and it would make legal aid and assistance available for welfare benefits appeals on a point of law in the upper tribunal, the Court of Appeal and the Supreme Court. It would also include funding for applications for permission made to the upper tribunal, and it would also make legal representation available for welfare benefits appeals to the Court of Appeal and to the Supreme Court.

Most surprisingly, that Government amendment in lieu was put forward in response to the argument. We did not wish to argue that in such cases, when the whole thing is a point of law, the applicant himself or herself should be expected to represent themselves without legal assistance, so we have tried to define those cases in which legal advice should certainly be available.

My right hon. Friend’s amendment, on the face of it, goes back to the whole of business of whether we should apply legal aid for legal advice in every welfare claim, but the question that concerns him most is, “What about the ones that involve legal issues?”, and I can conceive of cases in the lower tribunals in which what is raised really is a point of law. He wants me to find some equivalent to the upper tribunal, asking, “Is there some situation in which somebody, preferably the tribunal judge, certifies that there is a point of law involved where legal aid should be available?” We do not have such a situation at the moment, and we will have to try to devise one, as there is no system for it: just as we have accepted the argument about legal issues in the upper tribunal, we could of course do so if the same thing arises in the lower.

We will go away and work on the matter. We already have discussions under way with the Department for Work and Pensions, whose help we will also require, to see whether we could have some equivalent—whereby somebody other than the claimant or their lawyer certifies that a point of law is involved—and provide legal aid. I suspect that at this stage of the Bill’s passage through Parliament it is far too late to start introducing primary legislation in the House of Lords, but we have retained for ourselves powers to amend the scoping through regulation, so if we could solve the problem, we could bring something forward through statutory instruments. We are quite open to the argument for ensuring that we have legal representation when there is a legal issue that we cannot expect a lay person ordinarily to argue.

[Mr Llwyd]

I follow the right hon. and learned Gentleman’s logic on that, but surely if the point of law is a good one in the upper tribunal and all the way up to the Supreme Court, it is equally good in the first tier, but if the case is unrepresented in the first tier, it is not going to go anywhere else.

[Mr Clarke]

I should like to see whether we can devise, with the help of the DWP, my right hon. Friend the Member for Carshalton and Wallington and anybody else, a system whereby we identify in the lower tribunal such issues that involve a legal issue. We think that the number is comparatively small, because it is not the business of lower tribunals normally to find themselves arguing points of law, as they normally argue points of fact and of regulatory interpretation, but we will work on the matter, and if we can devise such a system, we undertake to respond as my right hon. Friend asks me to.

Oral Answers to Questions

Debate between Lord Clarke of Nottingham and Elfyn Llwyd

Tuesday 13th March 2012 Commons Chamber

[Mr Clarke]

We are not persuaded that that will give rise to any increase in costs. Everybody accepts that cuts need to be made to legal aid. It is just that the Labour party is against every single cut that we suggest in particular. This cut is perfectly straightforward and will not give rise to the difficulties that the hon. Lady points out—[Interruption.] I can only say to the Opposition spokesman that he is obviously so discommoded by realising that he nearly gave out a policy on the subject a moment ago that he is getting rather carried away. We have carefully selected cuts in legal aid concerning less serious cases where cuts can be made without any risk to justice whatever.

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

The president of the family division gave evidence to the Justice Committee and said that he did not think that when a parent was disappointed not to have got legal aid for a contact or residence case, the parent should just say, “Well, never mind. Let’s forget about the child. I’m not going forward.” That person will go to court alone, taking twice as much time as a person represented. That will waste the judge’s and everybody else’s time, it will be hurtful for all concerned and it will damage the children as well.

[Mr Clarke]

In family justice we are placing much more emphasis on mediation, which should be much more comfortable for all the clients and will lead to a much easier and less traumatic resolution of many disputes. We are putting more money into mediation and more money into training for mediation. We should remember that the purpose of this public service is to resolve disputes with the minimum of cost and time and to take all the emotion out, so far as is possible, of these difficult family cases. Access to justice is access to the most civilised way of resolving disputes. Access to justice does not depend only on how many lawyers the taxpayer pays for to go into adversarial litigation on every such issue.

Victims and Witnesses Strategy

Debate between Lord Clarke of Nottingham and Elfyn Llwyd

Monday 30th January 2012 Commons Chamber

[Mr Clarke]

It would be very nice to do that, but that is the history of this scheme from the start, which is why the aspirations of Parliament and Government have always run rather ahead of the available funding. I would like to compensate people with broken fingers or sprained ankles, but that would get us into arrears and months and years of delay before anyone could be paid. We have to concentrate on the most serious cases. As far as people abroad are concerned, all kinds of nasty things can happen abroad, although we hope that they usually do not. People can have all sorts of crimes committed against them or catch all sorts of peculiar diseases, but we have to bear in mind that British taxpayers’ obligation to compensate in such cases has to be limited to a certain extent.

On terrorism, the case has always been that it cannot be insured against, and that is why everybody has agreed that the taxpayer should compensate in such cases. I would be reluctant to accede more readily to going further and adding yet more people whom the British taxpayer has to compensate for unfortunate experiences in Africa.

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

The victims code is most welcome, although not as novel as one might think. I seem to have heard about it a few times before. How will delivery of the service uniformly across England, Wales and Scotland be affected by the fact that the Lord Chancellor has closed 40% of the court venues, that police numbers are falling and that thousands of court staff have been made redundant?

[Mr Clarke]

The victims code has been steadily improved over the years—it is all very well for the right hon. Gentleman to be a little sarcastic about it; it has been renamed—and we intend to improve on that. The right hon. Member for Tooting (Sadiq Khan) says that he will make it a victims law, but it is the same thing. The one reason for not putting it on a statutory footing is that we are waiting to see what comes out of the European victims directive, which we have opted into, so that we can clarify the legal obligations. We will improve the service, and it has nothing to do with the closure of under-used courts in various parts of the country.

Oral Answers to Questions

Debate between Lord Clarke of Nottingham and Elfyn Llwyd

Tuesday 8th November 2011 Commons Chamber

[Mr Clarke]

Again, I agree entirely. We find that of the victims who agree to take part—they must agree to take part—about 85% express satisfaction with the process. It gives victims some feeling that someone has apologised and that they are getting some redress.

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

Can the Lord Chancellor imagine a more needy victim than a child brain-damaged at birth whose parents are unable to sue for its financial security?

[Mr Clarke]

It is not true that they are unable to sue. We have a dispute about how much the lawyers should be paid in the event of a successful claim, which is an important matter, but I do not accept the assertion that none of these actions will be brought unless we leave the present no win, no fee arrangements completely untouched.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Clarke of Nottingham and Elfyn Llwyd

Tuesday 1st November 2011 Commons Chamber

[Derek Twigg (Halton) (Lab)]

rose—

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

rose—

[Mr Clarke]

Normally I would give way, and if we had a full day of debate, I would have expected to give way to Members on both sides of the Chamber—[Interruption.] It is not my fault. Let me first finish explaining the general case. I will then try to give way as generously as I can. It would be quite possible to take so many interventions that they filled the remaining time, but I have no intention of doing so.

I remind the House that in June the Prime Minister announced that the Government intended to replace IPP sentences. He and I had agreed on that. We had originally proposed in our Green Paper greatly to restrict the number by raising the threshold above which IPP sentences were given. The sentencing parts of the Bill were received extremely well in public consultation because those who responded were largely those involved in the criminal justice system, but we received many representations saying that IPP sentences should abolished completely, which is why we have moved on.

[Derek Twigg]

rose—

[Mr Llwyd]

rose—

[Mr Clarke]

I said that I would give way when I had finished my general points, and I will do so in a few moments.

I was referring not just to my opinion and that of the right hon. Member for Sheffield, Brightside and Hillsborough. I shall remind the House of some of the people who have said similar things. Louise Casey, the Commissioner for Victims and Witnesses, whose appointment to deal with problem families has been welcomed, said that she was pleased there would be a review of indeterminate sentences as they

“often leave victims in a horrible situation of not knowing when a criminal may be released from prison”.

She welcomed the proposal that tougher determinate sentences will be sought instead. Tim Godwin—as we all know, he was acting Metropolitan Police Commissioner until recently, and is now deputy commissioner and the criminal justice lead for the Association of Chief Police Officers—said he welcomed the review of IPP sentences and its focus on robust alternatives that will ensure the public is protected from the most serious offenders, as it is a source of frustration for victims and their families as to what a sentence actually means.

I cannot resist adding that the shadow Justice Secretary has suddenly taken up an extraordinarily far right position on this issue at the last moment. I have looked up what position he took, or at least what position Liberty took when he was its chairman in 2002, when indeterminate sentences were first introduced. At that time Liberty, under his chairmanship, denounced IPP sentences as

“a convoluted sleight of hand”

which aids neither accessibility of law for transparency in the sentencing process. His successors at Liberty have not changed their mind. I said yesterday that tomorrow he would press an amendment that has mandatory sentences for 12-year-olds. Old Fabians must be spinning in their graves as the former chairman of the Fabian Society takes up a totally opportunist position.

What is wrong is that indeterminate sentences are unfair between prisoner and prisoner. The Parole Board has been given the task of trying to see whether a prisoner could prove that he is no longer a risk to the public. It is almost impossible for the prisoner to prove that, so it is something of a lottery and hardly any are released. We therefore face an impossible problem.

As I have said, IPP sentences are piling up, and they have been handed down at a rate of more than 800 a year even after the changes made in 2008. At the moment, more than 6,500 offenders are serving those sentences, of whom more than 3,000 have finished what the public regard as their sentence—the tariff for what they have done. If we do not do anything about it, the number of IPP sentences will pile up to 8,000 or 9,000 by 2015—10% of the entire prison population. Sometimes, their co-accused who committed the same crime and were given a determinate sentence were released long ago. That is unjust to the people in question and completely inconsistent with the policy of punishment, reform and rehabilitation, which has widespread support. Only Opposition Front Benchers are still in favour of a punishment that leaves a rather randomly selected group to languish indefinitely in prison, for their lifetime if necessary.

[Mr Clarke]

I will now take some interventions, and then go on as quickly as I can to describe the much better, more sensible and tough regime with which we are going to replace IPP sentences.

[Mr Llwyd]

I actually agree with doing away with IPP sentences. It is costing about £70 million per annum to keep those who are beyond tariff in prison, so I welcome the right hon. and learned Gentleman’s announcement as far as it goes.

[Mr Clarke]

I am very grateful, and I really would be astonished if I had managed to make myself more radical than the right hon. Gentleman. No one ever regarded me as a liberal Home Secretary, but I am commending perfectly sensible, common-sense ideas.

--- Later in debate ---

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

I am in favour of the Government’s decision to scrap IPP sentences in this instance. Liberty, among others, has said that IPPs could be a back-door measure to introduce life sentences for a huge range of offences. They were intended to be given only sparingly but of course they have been used far more frequently than expected. In March 2011, there were 6,550 IPP prisoners, half of whom served 240 days beyond their tariff, at a cost to the Exchequer of about £68 million. That is quite apart from the whole question of whether they were being held unlawfully, which worries many of us.

As it stands, the IPP regime has been a costly mistake. Furthermore, the indefinite legal limbo created by IPP sentences has in many instances undermined rehabilitation, leaving prisoners and their families uncertain when, if ever, release will be granted. Like the Lord Chancellor, I wonder why those sentences have not been challenged in the courts. I have campaigned on the matter for a long time. In February, I introduced a ten-minute rule Bill seeking the abolition of IPP sentences, so I am pleased about the Government’s decision.

New clause 32 would mean that prisoners serving an extended sentence of at least four years in custody, who have a prior conviction for one in a list of serious offences, will be required to serve two thirds of their sentence, instead of being considered for release at the halfway point. I argued for such a provision when I introduced my Bill, so I am pleased that it has been introduced. However, like the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith), I have concerns about new clause 34. I have grave concerns about interference in individual parole decisions. That proposal must be looked at in the other place. We do not have time to debate it properly today and I am sure that many Members, whatever their views, would have appreciated a sensible timetable.

[Mr Kenneth Clarke]

I shall correspond with the right hon. Gentleman and the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith). The new clause was tabled at my request so that we can contemplate changing the test for release by statutory instrument. I shall explore whether it gives rise to the problems described. I certainly have no intention at the moment of intervening in individual cases and making judgments about IPP prisoners.

[Mr Llwyd]

That is certainly reassuring, but had we had a decent amount of time to discuss the proposals we could have probed them earlier. There is also some confusion about new clause 33, which will no doubt be picked up in the other place.

I know that I have done nothing for my street credibility, and even less for the Lord Chancellor’s, but I believe that the IPP system has been brought into disrepute. It is only right that we do away with it, and to that extent I agree with what the Government seek to do.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Clarke of Nottingham and Elfyn Llwyd

Monday 31st October 2011 Commons Chamber

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

I have been fascinated by the proceedings while I have been waiting to move the motion. I beg to move,

That, notwithstanding that such provisions could not have been proposed in Committee without an Instruction from the House, amendments may be proposed on Consideration of the Legal Aid, Sentencing and Punishment of Offenders Bill to—

(a) provide for measures against the payment or receipt of referral fees in connection with the provision of legal services,

(b) create a new offence relating to squatting, and

(c) amend section 76 of the Criminal Justice and Immigration Act 2008 (reasonable force for purposes of self-defence etc).

The motion seeks to widen the scope of the Bill in order to provide for measures to be introduced on the payment of referral fees, on the creation of a new criminal offence relating to squatting and to amend the law that governs the use of reasonable force for the purposes of self defence.

I hope that this debate will be focused on the resolution and therefore be a short procedural debate. Obviously, there are points of substance to debate in the three areas that we are bringing into scope, but the obvious time to debate those issues is when we reach them in the course of your selection of amendments, Mr Speaker. We are all anxious to debate other measures in the Bill, for which we will have three full days on Report, so I think we should deal quickly with procedural matters and get on to the substance.

On sentencing, quite a lot will come tomorrow which I look forward to debating. I am being attacked from the right and from the left—that is the story of my life—but I regard all those attacks as entirely misconceived and I hope to answer them tomorrow. More importantly, today we have a lot of amendments on the Order Paper regarding legal aid and it is important that we get on to consider their merits on the Floor of the House in the light of debates in Committee. I hope, therefore, that the House will be satisfied if I merely explain why we are introducing measures on these three topics and bringing them to Floor of the House rather late in the day, on Report.

Referral fees are a familiar subject and have been discussed on the Floor several times in recent months. Since they were introduced—or since the ban on solicitors’ paying referral fees was lifted—in 2004, they have increased very rapidly and have contributed to an unwelcome increase in personal injury cases in our courts. They have tended to encourage the introduction of speculative claims and have certainly raised the cost of contesting litigation. The reason we have waited until Report to introduce amendments on the subject is that the proposals have been out to consultation for a few months and the consultation closed only recently. Even during the consultation we were under pressure from the right hon. Member for Blackburn (Mr Straw) to do something about this issue; I entirely agreed with the points he made and the Government are now responding.

On squatting, the Prime Minister announced on 21 June that we were again about to consult briefly on the possibility of introducing a criminal offence of squatting in the Bill. The consultation closed on 5 October. Anyone who has suffered from the presence of squatters in their property knows the distress and misery they cause. We have restricted the new criminal offence to residential properties precisely to avoid opening up the wider debate that might have ensued on squatting and I am not aware of any strong reaction to what we are doing. Existing laws provide some safeguards for property owners, but our making squatting in residential buildings a criminal offence will provide rather greater protection in circumstances where the harm caused is most severe. Again, I am not aware of much objection in principle to those measures. Personally, I have always found it difficult to see the difference between taking somebody’s car and taking somebody’s home. There is a need for a criminal offence.

Finally, the Prime Minister also announced on 21 June that we would put beyond doubt that home owners and small shopkeepers who use reasonable force to defend themselves or their properties will not be prosecuted. We think that further action on self-defence is necessary to reassure members of the public that they are allowed to use reasonable force to defend themselves or their properties against intruders or others.

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

How will this law differ from the common law right to defend property and the existing law on self-defence under which one can use proportionate and reasonable violence to defend oneself?

[Mr Clarke]

I will address that when we reach the amendments in two days’ time—[Interruption.] Well, that is exactly where the Labour Government were two years ago. We are attempting to clarify the law and reassure people that the use of reasonable force is indeed legitimate in English law. The main thing it deals with is the fact that there is no duty to retreat when facing a dangerous or threatening attack, but we will discuss that when we come to that part of the Bill. If that was a fundamental change in the law, I would probably face objections to its introduction on Report. It is an attempt once more to build up public confidence in the perfectly reasonable right people have to use legitimate force when defending themselves and their property.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Clarke of Nottingham and Elfyn Llwyd

Wednesday 29th June 2011 Commons Chamber

[Mr Clarke]

I am grateful. My hon. Friend has been in practice much more recently than the right hon. Member for Blackburn (Mr. Straw) or I have. We will doubtless continue to study this after the debate.

The sentencing reforms are balanced. Again, I shall quote the words of my shadow, the right hon. Member for Tooting, who when I first published them in the Green Paper described them as

“a perfectly sensible vision for a sentencing policy”,

and they will in my view achieve a very significant transformation.

That brings me to the rest of the Bill covering legal aid and provision on litigation and funding. No Government look to tackle legal aid lightly, but the system as it stands is obviously unaffordable. Labour had 30 goes at fixing it between 2006 and the end of their period in office and we have sought to go back and think about what the taxpayer should pay for by way of litigation from first principles. Our priority is cases where people’s life or liberty is at stake, where they are at risk of serious physical harm or immediate loss of their home or where their children may be taken into care. After our reforms, legal aid will routinely be available in 25 areas, including for criminal cases, for most judicial review proceedings, for private family law cases involving domestic violence, child abuse and child abduction, for community care, for debt where the home is at immediate risk, for mental health cases and for cases concerning special educational needs. We modified our original proposals in response to consultation, listening carefully to the thousands of responses that we received.

Legal aid will no longer be routinely available in 13 areas, including most private family law cases, clinical negligence cases, non-discrimination employment cases, immigration cases, some debt and housing issues, some education cases and welfare benefits cases.

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

How does the Lord Chancellor square what he is saying with what Baroness Hale of the Supreme Court has said about this being a ludicrous Bill and how these provisions will disproportionately affect the most vulnerable in society, particularly people from ethnic minorities?

[Mr Clarke]

I have always had a high regard for Baroness Hale, who is a very distinguished lawyer, and I have heard of her opinions. I shall have to study them and perhaps even meet her to discuss them, because I am surprised by her response. Where we started from was ensuring that we did not damage access to justice for vulnerable people in matters of such importance that society as a whole would want to be sure that they were protected. Either she has misunderstood the effect of our proposals or why we are doing it. We have to get back to spending an affordable amount of money on paying for things that the taxpayer should actually pay for to defend the vulnerable. We all start as lawyers, let alone as citizens, with a slight bias in favour of legal aid because everyone is used to it, but the scale of legal aid has expanded, its scope is too wide and it needs to be reformed.

Prisons Competition

Debate between Lord Clarke of Nottingham and Elfyn Llwyd

Thursday 31st March 2011 Commons Chamber

[Mr Clarke]

I will consult those who negotiated the details of the contracts and write to my hon. Friend with an answer to that extremely pertinent question.

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

The Secretary of State will be aware of the recent report on HMP Bronzefield, a privately run women’s prison. It found seven cases of self-harm per day, one woman who self-harmed 93 times in a month, and one woman who was kept in segregation for three years with very little human contact. Health care was shockingly poor, with no female GPs, and pharmacy services were tortuous and inconsistent. How on earth can it be for the public good to extend private sector prisons?

[Mr Clarke]

Her Majesty’s inspectorate of prisons does extremely valuable work and over the years has exposed things that can be praised or strongly criticised in both public and private sector prisons. If we look back over the years, we see that no rule and no measure can be produced that shows that either sector is overwhelmingly likely to produce praise while the other is overwhelmingly likely to produce criticism. We must look at the inspectorate’s reports, take them seriously and ensure that where there are serious problems they are addressed. In my opinion—with respect—it is extremely out of date to say that what is wrong in such a case is the fact that the prison is private, whereas when another prison is criticised it somehow does not matter so much because it is public. The whole point of contracting and competition is that one specifies the quality one wants and the right price for the taxpayer, and then the inspectorate system ensures that real failings are addressed—and at the same time, we sometimes have penalties in the contract if providers fail to deliver.

Reforming Civil Justice

Debate between Lord Clarke of Nottingham and Elfyn Llwyd

Tuesday 29th March 2011 Commons Chamber

[Mr Clarke]

We have just completed a consultation on our estate, and we have announced the closure of a number of courts. We aim to reduce back-office costs and the unnecessary expense that flows from different jurisdictions. Obviously we keep the proper usage of our estate under continuous review, but I do not expect the proposal to have any significant effect on the future of the courts that survived the consultation that we carried out a few months ago.

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

I accept the need for rationalisation of the jurisdictions of the county courts and High Courts. I also accept that, ultimately, mediation will be a good thing. However, evidence from the Access To Justice Action Group provides numerous instances in which poor people will be excluded altogether following the change in the no win, no fee arrangements, and I am desperately worried about that. The evidence contains no special pleading. It is excellent evidence, and I ask the Ministry to re-examine it in due course. If something is not done, this will prove to be a benefit match for the insurance companies only.

[Mr Clarke]

We considered very carefully the large number of responses to the consultation document, many of which opposed changes based on Sir Rupert’s proposals. Most of them came from plaintiff solicitors, but I do not dismiss them on that ground, because I share with those solicitors an interest in proper access to justice. We considered whether modified no win, no fee arrangements could be justified in that context.

There are two questions to be asked: have we affected people’s access to justice, and have we affected the profitability of practices that engage in no win, no fee with a reasonable level of success? Most of the responses that we received dealt with much more complicated questions, but I believe that we have retained proper access to justice while lowering the costs—and therefore, unfortunately in some cases, the profit margins—to more reasonable levels.

Guantanamo Civil Litigation Settlement

Debate between Lord Clarke of Nottingham and Elfyn Llwyd

Tuesday 16th November 2010 Commons Chamber

[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.

Oral Answers to Questions

Debate between Lord Clarke of Nottingham and Elfyn Llwyd

Tuesday 20th July 2010 Commons Chamber

[Mr Clarke]

I do not mind being quoted from my freelance days on the Back Benches. However, in their enthusiasm to find quotes, people find the odd word and attribute them to things. I never accuse any of my colleagues of being anti-foreigner. Part of the confusion about the European convention tends to be that somehow it is not British, which I just addressed in pointing out that it was drafted by David Maxwell Fyfe and very much supported by the British Government and both main parties at the time. The Human Rights Act has now had 10 years, and it is time to review it. There is a range of views and sometimes concern in this country about exactly how it relates to Parliament and where our constitution now is on these matters. In due course, we will set up a convention to advise us on that.

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

5. How many representations he has received (a) in favour of and (b) against his recent proposals to close a number of magistrates courts; and if he will make a statement.