Detainee Inquiry

Debate between Lord Clarke of Nottingham and Sadiq Khan

Thursday 19th December 2013 Commons Chamber

[Sadiq Khan (Tooting) (Lab)]

I thank the Minister for his statement and Sir Peter Gibson for his work and the interim report.

As I respond to the right hon. and learned Gentleman’s statement, I should make it clear that I have not had sight of the redacted version of Sir Peter Gibson’s interim report, which is published today.

I am confident that I speak for the whole House when I say that MPs from all parties condemn all forms of inhumane, cruel and degrading forms of treatment. Our freedoms and the high standards we promote in protecting human rights distinguish us as a nation, and our influence across the globe is strengthened as a result. Those freedoms are fundamental to our society, and our security and intelligence services work on an ongoing daily basis to protect us and the freedoms we hold dear.

We owe those services a debt of gratitude for keeping this country safe from threats—work that is dependent on men and women taking grave personal risks on a daily basis. Again, I know I speak on behalf of Members from all parties and the public in thanking them for their crucial role. Notwithstanding the crucial work that the agencies do to keep us safe, any allegations of involvement by members of our security and intelligence services in serious breaches of the law need proper and full investigation.

Any acts that might contravene the law in the ways alleged would run counter to everything our nation stands for and believes in. For that reason, it is important there is a full and proper investigation, exposing any wrongdoing and bringing those responsible to account. We also need to ensure that the appropriate lessons are learned and that there is no repeat in the future. We need to do that in as independent, open and transparent a manner as possible, in a way that maintains the confidence of the public.

It is now almost two years since the Minister stood at the Dispatch Box and announced that his Government’s inquiry, led by Sir Peter Gibson, was to be abandoned because of ongoing criminal investigations. I have some questions for the Minister that I hope he will be able to answer this afternoon. Why has there been such a long delay in the publication of Sir Peter Gibson’s report? Of course, we understand why sensitive parts of the report need to be redacted, but who decided which sections were redacted?

The Minister was categorical in January 2012 that a future judge-led inquiry would be restarted at an appropriate time in the future. That is particularly important in light of the commitments made by the Prime Minister, the Foreign Secretary and the Deputy Prime Minister that it had to be an independent judge-led inquiry. Bearing in mind that the interim inquiry by Sir Peter Gibson has identified 27 issues that require further examination, why have the Government changed their mind about the importance of the restarted inquiry also being judge-led?

There are recent examples of a judge successfully examining material in an inquiry without compromising criminal investigations. Will the Minister therefore explain why he has handed the inquiry into the issues that Sir Peter has raised over to the ISC rather than a judge? I have great respect for the Committee’s work and recognise that it has increased powers and increased resources, but does the right hon. and learned Gentleman believe that his original aspirations—and those of the Prime Minister, Deputy Prime Minister and Foreign Secretary—for the inquiry to be as independent, open and public as possible can be met by such an investigation?

Bearing in mind that much of the litigation in this area will inevitably be conducted under closed material proceedings, the scope and coverage of which the Government extended last year to include such cases, does the Minister agree that there is even more reason to ensure that any investigation is as independent and transparent as possible, and has the confidence of the public? Does the Minister believe that the public will have greater confidence in an ISC investigation than in a judge-led one? If so, will he explain his thinking?

Organisations representing detainees and their families had concerns that Sir Peter Gibson’s original inquiry was not compliant with articles 3 and 6 of the European convention on human rights. They chose to disengage from the process. I asked the Minister back in January 2012 what he intended to do to ensure that the inquiry’s legitimacy was bolstered by working to re-engage those groups and organisations. The interim findings, published by Sir Peter Gibson today, could have been used as an opportunity to show the non-governmental organisations and the public that the judge-led inquiry was working under its terms of reference to win back the confidence of the public. Does the Minister think that that is an opportunity missed?

My final question for the Minister is what additional steps he and the ISC will take to address the perception—fair or unfair—that today’s announcement of the ISC taking over the inquiry is a whitewash? Ultimately, the key aims are to get to the bottom of what happened and to ensure that lessons are learnt and justice is done, as well as maintaining public confidence. We will work constructively in any way we can to satisfy those aims.

[Mr Clarke]

First, I certainly share the right hon. Gentleman’s frustration with the delay, which was not contemplated by the Prime Minister or anyone in government when we embarked on this process. Indeed, we are extremely anxious to inquire as necessary as quickly as possible so that we can draw a line under this matter, learn lessons and ensure that the House can be totally confident that there would be no similar problems in future. The delay has been caused by the length of time taken for the police to investigate these matters. No politician has control over the police and it is right for them to inquire into issues where they believe it is justifiable to do so, but the result has been a timeless delay. Nobody has been able to proceed, in Sir Peter Gibson’s case, to the calling of witnesses and the taking of evidence, because that could compromise any criminal procedures and investigations that needed to take place in due course.

I join the right hon. Gentleman in praising the work of Sir Peter and his panel in producing this report, which, in the circumstances, is extremely valuable, but as the panel makes clear, it can come to no conclusions and make no findings of fact or conclusive allegations against anybody, and nor can it clear anybody conclusively, because it relied on documents that were frustrated when it came to calling witnesses.

Only one passage in the report is redacted. We did our best to reach agreement with the panel on the redactions and we were anxious to publish as much as possible, as was the panel. The redactions relate to a matter that is already subject to a public interest immunity certificate in the courts. In my and the Government’s opinion, there was no going back on that. Sir Peter and the panel acknowledge in the text that the redaction is of no significance to the general narrative and the issues set out in the report.

The Prime Minister was quite clear about preferring a judge-led inquiry. When he said that almost two years ago, I said we would set up the judicial inquiry once the police investigations were over and we could get the inquiry under way. That has not proved possible, however. Nobody contemplated at that time that in December 2013 we would still be trying to work out when we would be capable of proceeding.

A judge-led inquiry normally involves the publication of evidence as the inquiry proceeds, although in cases such as this the evidence is sometimes redacted. The whole process of a judicial inquiry could conceivably compromise a criminal investigation. It is true that some recent inquiries, such as that conducted by Lord Justice Leveson into a totally different matter, proceeded although criminal investigations were taking place, but Lord Justice Leveson avoided, very scrupulously, any areas that might compromise the criminal investigation. The trouble with Sir Peter Gibson’s scope is that the only matters that he is considering are the subject of criminal investigations, so the same situation could not arise. The Prime Minister has therefore come up with the solution of referring the issue to the Intelligence and Security Committee in the House of Commons.

I hope that the right hon. Gentleman can be persuaded that that is a very good way of proceeding. The ISC’s inquiry can start now, whereas a judge-led inquiry could not. Moreover, the House of Commons has greatly strengthened the ISC. When we debated these matters last year, Members in all parts of the House agreed that we should make the ISC independent, more powerful, and capable of calling for, rather than merely requesting, the information that it wanted. I think that we now have an opportunity to demonstrate that its work is a valuable addition to all the other requirements in our constitution to ensure that the activities of our intelligence services are properly accountable, and that, as far as is feasible, there is some democratic oversight of what can be done.

Finally, the right hon. Gentleman reminded me that, two or three years ago, non-governmental organisations and perfectly reasonable lobbies had criticised Sir Peter Gibson and refused to co-operate with him because, in their view, his inquiry did not comply with article 3 of the European convention on human rights. I remember that exchange, which disappointed me at the time. The organisations concerned appeared to be arguing for a full-blooded public inquiry in which everyone would be represented—detainees present, press sitting in the gallery at the back—and in which a great deal of evidence would be produced that would be of enormous value to this country’s enemies. No country in the world would sensibly deal with matters in that way. I think that the process we are adopting, with the use of the ISC, is the best way of ensuring that our intelligence services remain as strong and effective as we all want them to be, that their bravery is respected, and that they are protected when they carry out work on behalf of all of us, while also ensuring that there is proper scrutiny and a proper inquiry so that we can be reassured that the highest ethical guidelines are being followed.

Justice and Security Bill [Lords]

Debate between Lord Clarke of Nottingham and Sadiq Khan

Monday 4th March 2013 Commons Chamber

[Sadiq Khan]

I believe that one of the impact assessments gave a figure of seven, whereas the press reports I read over the weekend mentioned one of 15. For those reasons, it is important to attach great weight to the conditions to which David Anderson refers. We would not wish, inadvertently, to see more cases than the Government say they expect to be reaching a CMP.

[Minister without Portfolio (Mr Kenneth Clarke)]

It seems to me that we do not know how many of these cases there will be, because we do not know what effect the new process will have. This is becoming a popular jurisdiction and the number of cases is slowly climbing, because no defence is offered to people’s claims and they are being awarded quite large sums of money. Once it is possible for the Government to defend themselves, people will, presumably, think more clearly about the substance of their allegations before bringing claims, and we just do not know how many we will have.

[Sadiq Khan]

May I adopt the Minister’s arguments in support of our sunset clause, which we will be debating later? He cannot predict the number of cases, which is why we think a sunset clause is appropriate.

--- Later in debate ---

[Sadiq Khan]

I thank the right hon. Gentleman for that clarity, which shows the advantages of being nice to Liberal Democrats. In case any of his colleagues have any doubt about the advice given, I have the report with me and will remind them of what the Joint Committee said just last week on the Government’s manoeuvres upstairs in Committee.

Given that in Committee the Minister unpicked the Lords changes to the Bill, amendments 26 to 40 are designed to emulate the same improvements as were made in the other place. Our amendments seek to put in place appropriate checks and balances on the use of CMPs. We do not underestimate the difficulties in reconciling the issues of justice and security as contained in the Bill’s title, but this is difficult and not impossible. By putting appropriate measures in place, we believe that the use of CMPs could be made proportionate to the scale of the problem they are intended to address. As has been said, our position is backed by the Joint Committee on Human Rights, whose most recent report systematically goes through the changes made in Committee by the Government and is consistent with the Government’s independent reviewer of terrorism legislation and with the views of the House of Lords.

So here we are once again, trying at a late stage in proceedings to bring some balance to the proposals in front of us. Our amendments address four main areas: judicial balancing both outside and inside proceedings, the use of CMPs as a last resort and equality of arms. I shall deal first with judicial balancing.

We have consistently agreed with David Anderson when he said that

“the decision to trigger a CMP must be for the court, not the Government.”

The original bill, as published, included no substantial role for the judge. I accept that this has been moved on since then, but some of the progress made in the other place has now been undone. Despite claims to the contrary, the Bill does not give a judge the proper discretion to decide between whether to hold proceedings in the open or to move proceedings behind closed doors. The Government chose to remove the Lords amendments that put in place a proper judicial balancing of these competing interests—the so-called Wiley balance.

Last week’s report from the Joint Committee on Human Rights is very powerful on this issue. I pay tribute to the Chair of the Committee, my hon. Friend the Member for Aberavon (Dr Francis), for all its hard work on this. In its report—Liberal Democrat colleagues will be keen to hear this—the Committee says that

“there is nothing in the Government’s revised clause 6 which replaces it with anything requiring the court to balance the degree of harm to the interests of national security on the one hand against the public interest in the fair and open administration of justice on the other.”

[Mr Kenneth Clarke]

I must have misheard the right hon. Gentleman. He seems to think his amendment widens the discretion of the judge. It actually narrows it. The Bill as it stands says that the judge may hold a closed session after the three conditions are satisfied, which are mainly the fair and effective administration of justice. We have now reached the situation where critics are so nervous about what the judge may do that they want to lay down additional tests that the judge must put to himself before he makes a judgment one way or another. Lord Woolf, the former Lord Chief Justice, this morning made it clear that the judge now has complete discretion to decide what to do, and it is the critics who are so worried that there might be closed material proceedings that they are trying to put in extra tests to try to put the judge off. As the right hon. Gentleman’s amendments narrow the judge’s discretion, he might at least put his case the right way round. As the Bill stands, the judge has a pretty unfettered discretion.

[Sadiq Khan]

On at least four occasions over the past 18 months the Minister has told the public, the media, MPs and Members of the House of Lords that judges had full discretion, notwithstanding the four changes that he has agreed to make over the past 18 months. He cannot be right on all four occasions. Let me tell him what the House of Lords did, pursuant to the report of the Joint Committee on Human Rights. It put on the face of the Bill the balancing exercise that a judge should undertake, balancing on the one hand the public interest in the open and fair administration of justice and the public interest in making sure that there was no damage to our national security as a consequence of material being disclosed. In Committee the right hon. and learned Gentleman tried to tie the hands of that balancing exercise. In a new report last week from which I quoted, the Joint Committee said that he tried to do the very same thing. He is again arguing today why he is right and all the members of the Joint Committee are wrong.

--- Later in debate ---

[Sadiq Khan]

I really must make progress; there will be time for hon. Members to contribute after I have finished.

David Anderson, the Government’s independent reviewer of terrorism legislation, has himself said that

“the court’s power to order a CMP should be exercisable only if, for reasons of national security connected with disclosure, the just resolution of a case cannot be obtained by other procedural means (including not only PII but other established means such as confidentiality rings and hearings in camera).”

We should not legislate in a way that means that CMPs will replace tried and tested methods for dealing with sensitive material in open proceedings if those methods will do the job. Only if it is deemed, after consideration by a judge, that those tried and tested measures cannot be employed in a way that would allow important evidence to be used in a public court, would the option of a CMP be considered. The Bill as it stands does not allow for this. Our amendments would not, as some have argued, including the Minister on Second Reading, mean that a full and lengthy PII exercise had to be undertaken before a CMP could even be considered. On the contrary, the key word in all this is “considered”. Our amendments would deliver this. I hope that the House will support that as part of our efforts to maintain as much as possible of the precious traditions of openness in our justice system.

Some have interpreted the Government amendments tabled at the eleventh hour last week as delivering what we and others have asked for. They will lead to a Minister—in other words, one of the parties in the civil action or judicial review—considering the use of PII and the judge having to take their conclusion into consideration when deciding whether to grant a CMP. In our view, this is not an appropriate check and balance, and we will therefore look to amend the Bill accordingly.

Amendment 38 deals with the Wiley judicial balance within the CMP. The Government’s argument for resisting this is the same as their reason for resisting full judicial balancing on the decision on whether to order a closed proceeding in the first place. We are not persuaded of their arguments in that circumstance. We believe that this is another key component of judicial balancing and a crucial check and balance.

Our amendments also deal with the equality of arms. On Second Reading, the Minister said:

“We will also accept that any party, not just the Government, should be able to ask for a closed material procedure.”—[Official Report, 18 December 2012; Vol. 555, c. 722.]

We welcomed that statement. After all, equality of arms is backed by the JCHR and the independent reviewer of terrorism legislation, David Anderson QC. However, following the changes that the Government made in Committee, we now know that their idea of equality of arms is very different from everyone else’s. The JCHR report published last week is highly critical of what was done to the Bill in Committee. It says:

“in our view the Government’s amendment enabling all parties to proceedings to apply for a CMP does not provide for equality of arms in litigation because it would unfairly favour the Secretary of State”.

In short, it is a two-tier equality of arms—or, in the real world, an inequality of arms. Our amendment would restore proper equality of arms. I am pleased that the Government have decided to support us and have signed our amendment.

Some have said that the debates at this late stage are nothing more than angels dancing on the head of a pin. I disagree. There remain some fundamental differences, chiefly about judicial balancing and last resort, about which we are still concerned. I hope that colleagues in all parts of the House will support, in particular, amendments 30 and 31. We will first need to vote on amendment 26, which is a paving amendment that would ensure that the Bill contained the proper checks and balances that it needs without having to rely on the other place—with Lib Dem support, I hasten to add—to make sure that there is equilibrium in the great balancing act that we face between our national security and the rights of individuals.

[Mr Kenneth Clarke]

I rise early in the debate because I want to speak to the Government amendments that stand in my name. I have already added my name to two Opposition amendments. As we do not have a great deal of time to discuss some quite complex issues, it will be helpful to set out what those issues are so that we do not have so many interventions when the person who is being intervened on is agreeing with the person making the intervention, as happened several times to the Opposition spokesman.

I think that an ordinary, intelligent person from the outside world who is listening to this debate would be rather baffled as to what is causing us so much concern. It has seemed to me for some time that we are in complete agreement on policy and there is no disagreement between us on the principles of the very great need to protect national security and the equally great need to protect the rule of law, the principles of British justice and all the values that we seek to uphold. We have spent the entire time trying to work out a process for reconciling those principles.

The Opposition spokesman entirely agreed with the interventions by the right hon. Member for Salford and Eccles (Hazel Blears) and my hon. Friend the Member for New Forest East (Dr Lewis), who both put forward the principle that we must find some way of trying these cases properly so that everybody knows that there is justice and that a judge has been able to reach a conclusion on the merits or otherwise of the allegations made. Nobody has yet got up to say otherwise. The real critics of this Bill—I do not think that they are Members of this House—say that, somehow, it is a lesser evil to keep paying out millions of pounds in order to not extend the principle of closed proceedings further than it already exists in British law. The idea seems to be, “What a pity. We hope that none of the millions will go to bad causes,” although I do not think that that argument has an advocate in this place.

What we are doing—we have been having this debate for months—is discussing amendments that would underline the fact that this is a judge-made decision, made with proper discretion and taking the right things into account, and that closed material proceedings will be used only in a very small number of cases that would give rise to issues of national security if they were held in open court.

--- Later in debate ---

[Mr Clarke]

I will in just a second.

There is a serious risk, in our opinion and in the opinion of those who have considered the drafting, that it will introduce a huge, expensive and discouraging process. David Anderson, the independent reviewer of terrorism legislation, has described this sort of clause as requiring the court to bang its head against a brick wall. I think the Lords Constitution Committee also said that it did not want full PII. The hon. Member for Hammersmith (Mr Slaughter), who led for the Opposition, said this:

“None of us wants exhaustive PII or a Minister tied up for a year exhaustively going through paperwork, if it were obvious to all concerned that it was not needed”.––[Official Report, Justice and Security (Lords) Public Bill Committee, 5 February 2013; c. 167.]

We are resisting amendment 31 because we think ingenious lawyers will use the argument that we have to settle down to a few years of process and paperwork to satisfy the requirement exhaustively to consider every other possible way of trying the case.

[Sadiq Khan]

Does the Minister accept that good judges will throw out frivolous applications by ingenious lawyers? If he is concerned about judges spending too much time considering documents, why does Government amendment 47 put the same obligation on the Secretary of State to consider PII, which we are seeking to put on the judge? All we are asking is that the judge considers PII, and the Government amendment requires the Secretary of State to consider it. Rather than the defendant in a claim having to consider, why not the judge?

[Mr Clarke]

Let us not make this a competition about which of us most trusts British judges to make reasonably sensible decisions. I have just described how we have put the whole thing in the hands of the judge, and I think that the right hon. Gentleman agrees that a British judge will instinctively want an open hearing and will have to be persuaded to go closed, and he will only do so as a last resort—to use a colloquial term—because his or her preference will be for open justice. There would have to be a very compelling reason for going closed.

--- Later in debate ---

[Mr Kenneth Clarke]

With the leave of the House, I will respond on behalf of the Government. I will briefly address the comments of those Members who have, with great passion and sincerity, opposed the whole policy of the Bill; who think that closed procedures should not be permitted and are simply incompatible with our standards of justice; and who plainly wish things to stay as they are. They include the hon. Members for Brighton, Pavilion (Caroline Lucas) and for Hayes and Harlington (John McDonnell), and even the hon. Member for Cambridge (Dr Huppert) got very near to that at one point, rather to my alarm.

I share the exasperation expressed by many Members who are more supportive of the Bill that much of the opposition to it is based on the idea that the present law does not call for amendment and that what happens now is satisfactory. Three or four Members expressed the exasperation I sometimes feel in these debates, because a growing number of people who seem to be more liberal than me, at least on this point, think that PII certificates are the ideal way of handling these cases. Most of the people who have tried to argue that point with me outside the Chamber, I am quite sure, would not have defended the PII certificate system 12 months ago and instead would have attacked it.

As we—the Bill’s defenders—have repeatedly pointed out, the whole point of PII is to exclude from anybody’s use in a case the evidence that is sensitive. Of course, one can gist and redact such as one can, but what one leaves out is anything that obviously threatens national security, which is the very information that everyone says ought to be heard. I do not accept all those allegations. I would like the civil courts to be able to decide some more of those allegations. To those who, like the hon. Member for Brighton, Pavilion, are convinced that our security services have been torturing and mistreating people and that we are trying to suppress all kinds of outrageous allegations, I can only say that if we stay with the law as it is, none of that will ever appear in a court before a judge.

The problem at the moment is that where a Government wish to bring forward their records and witnesses to try to answer these claims, there is no closed material procedure in civil proceedings to enable them to do so. We used to think that the court did that out of its own volition, but I am afraid that there have been rulings making it quite clear that that is for Parliament to decide. I will not repeat what people said a few moments ago. The absolutism of the people on the ultra-liberal wing is quite extraordinary. They are demanding silence. They are demanding no judgment from a judge. They wish things to stay as they are. I ask them to reflect on the deeply unsatisfactory nature of that. It is not true that there are other countries where one can do that.

I do not think—I am open to correction—that there is any jurisdiction in the world in which someone is trying to create a procedure whereby one can bring in highly sensitive evidence of this kind in a civil claim against the Government. Somebody calmly said that the Americans allow that. I can assure them that the Americans are extremely alarmed about the fact that we are giving those powers to our judges and wish to be reassured that national security will be protected. As has been said, they are already reducing their co-operation with us, and they will reduce it further if they think that we are opening some kind of sieve in their information. Where they issue a certificate of state security it is not challengeable. People are bringing actions in our courts claiming that we are sometimes complicit with what they say American agencies have done because they cannot bring those actions in America. They come here under Norwich Pharmacal trying to get documents from us to support action in other countries because they think we have the only courts in the world where they might be able to get hold of American intelligence material—and to do so for other people. So in supporting our approach in principle, the Government, the Labour party and the Liberal Democrats are demonstrating how committed we all are to the rule of law, human rights and the wish to be accountable to our courts. We think that we can contrive a process that does secure national security and does respect the interests of our allies while allowing a judge to consider all the relevant evidence and give a judgment.

My next point will be the final one I make on this, because I realise that the right hon. Member for Tooting (Sadiq Khan) has to wind up the debate. I still hope that we get the widest possible all-party support on this important constitutional matter, and I think that the Liberals are with us. Nobody in this House has given views that are contrary to the interests of justice or anything of that kind, but we are almost quibbling about rather important amendments; we are talking about how we can best frame our response to the Joint Committee on Human Rights and so on without actually compromising the process and making it unworkable.

I had the formidable support of the Ministers in the former Government who were responsible for these matters at various times and in various ways: the right hon. Members for Blackburn (Mr Straw), for Salford and Eccles (Hazel Blears), for Wythenshawe and Sale East (Paul Goggins) and for Knowsley (Mr Howarth). I think that the latter was right in saying that I am probably the most liberal of the five of us on most issues that come before this House. I spent my time opposing the right hon. Members when I was in opposition and they still have not persuaded me that 90 days’ detention without charge was remotely justifiable—we sat up all night arguing about that. The fact is that we are moving to resolve a serious problem, and the Labour party should give careful consideration to whether they press these measures.

I am asked by Labour Members and by others whether there is any further that we can go. I have already described the number of amendments that we have made, and the huge discretion and control that we have now given to the judge. I have indicated that we will have a look at the rules of court. I cannot be persuaded that putting “as a last resort” in the Bill is not risky. The Wiley balancing test as it is on the amendment paper is not the Wiley balancing test but a stronger version of that test, and it has been argued about interminably. It is totally unsuitable for a closed proceeding; it is designed as a stiff test when one is proposing to take all the evidence out of consideration altogether.

I urge restraint on the Opposition, who claim to wish to be in government one day—needless to say, I regard that proposition with dread. If they take some of these objections to bizarre lengths when there is complete agreement on principle between us, I can say only that were they to succeed, they would regret it. I also think that, for the reputation of our security services, for the reputation of our justice system and for the confidence of our allies, it would be very helpful if we had the support of the bulk of the three major parties. I have tried to explain why people of utmost sincerity who take the more purist view are actually living in a dream world. We will do better in holding our agents to account by having this Bill.

[Sadiq Khan]

With the leave of the House, Mr Deputy Speaker, may I repeat what I said almost four hours ago by citing the words of the independent reviewer of terrorism legislation? As I said, the Opposition accept that there is

“a small but indeterminate category of national security-related claims, both for judicial review of executive decisions and for civil damages, in respect of which it is preferable that the option of a CMP—for all its inadequacies—should exist.”

That is our position and we are not seeking to exclude part 2 from the Bill—to be fair to the Minister, he did not suggest that we were.

I just remind the Minister that when the Green Paper was published, many on both sides of the House thought that it was perfectly adequate. When the draft Bill was first published, some on both sides of the House thought that it was adequate. We did not think that, and we pushed for improvements. When the Bill was published, before it went to the House of Lords last June, many on both sides of the House, including the Minister, thought that it was perfect and in need of no amendment. The Bill has been changed on three or four occasions in a number of areas, not least by the changes made in the House of Lords. The other place sought to put into the Bill some of the recommendations made by the Joint Committee on Human Rights. Not all of its recommendations were put into amendments standing in the names of Cross Benchers, including Lord Pannick, but some were—the ones thought to be important in order to secure the checks and balances required in this Bill.

I remind the Minister that Labour Front Benchers have on no occasion sought to remove part 2 from the Bill. He will know, as he has been in this game far, far longer than I have, that we could well have won votes in the House of Lords to remove part 2, but we appreciate the important challenge the Government face. As the Chair of the Intelligence and Security Committee and colleagues on both sides of the House have put it, “How do we get the balance with our wish to make sure that our citizens are as safe as possible, bearing in mind the huge heroic work that our security services do, relying on intelligence from other countries?” The Opposition accept the control principle and always have done, and we will debate that after the votes at 8 pm. Nobody who has spoken today in favour of our amendments has tried to caricature the people against them as not being concerned about civil liberties and human rights. To be fair, those against our amendments have not tried to caricature our position as being against, or not understanding the importance of, national security.

The hon. Member for Cambridge (Dr Huppert), who represented the Liberal Democrats in Committee, made a speech today, and I think he indicated that he will be supporting our amendments at 8 pm. I pray in aid the fact that it is not just Opposition Members wishing to press these amendments, as I will shortly. The Joint Committee on Human Rights, in its most recent report last week, confirmed that it was unhappy with the shredding of the Lords amendments in Committee. The special advocates also agree with our amendments, as does the House of Lords. The independent reviewer of terrorism legislation and the former Director of Public Prosecutions also believe that our amendments strike the right balance between national security and ensuring that individuals are able to hold the Executive to account.

During the debate, my view—the Opposition’s view—has been characterised as considering PII perfect and a utopian panacea for some of the challenges we face, but I have not said that. I deliberately took some time to pray in aid the Supreme Court decision in al-Rawi, when the court said, to paraphrase, that it would like the additional tool of CMPs and suggested that it would like Parliament to give it that ability. That is what I am seeking to do.

I say to the Minister without Portfolio that the danger lies is some of the comments made by others, who gave the impression that CMPs are often preferable to PIIs and that rather than being the exception—a point made by a number of colleagues on the Government Benches—they would become the default position. That is where he must be careful. A number of Members on both sides of the House have said that PII is rubbish, that it is not the answer and that CMPs are far preferable, and they have asked why a judge would not opt for a CMP. We are simply seeking to put in the Bill the amendments passed by huge majorities in the House of Lords on the recommendation of the JCHR to ensure that a judge understands that he must consider the other options before he decides to go for a CMP.

I know that the Minister without Portfolio did not mean it when he said that every time he makes a concession, ingenious lawyers move fresh amendments; our fresh amendment would have become stale by now, as it is four months old. I would like to press to a vote amendment 26, which is a paving amendment for amendment 31 to make CMPs a last resort, and amendment 30, which is the gateway for the Wiley balancing test for maximum judicial discretion.

Question put, That the amendment be made.

The House proceeded to a Division.

Justice and Security Bill [Lords]

Debate between Lord Clarke of Nottingham and Sadiq Khan

Tuesday 18th December 2012 Commons Chamber

[Mr Clarke]

I was intending to return to the details of closed material procedures later. We could easily trade quotations, because various judges and legal authorities have expressed different views.





Closed material procedures sometimes achieve success. We have them now—the previous Government introduced them—and as I shall say later, as I should save it until I get to the relevant part of my speech, there are cases in which the special advocates have overturned the Government’s case. The most well known case is that of Abu Qatada, who won in a closed material procedure before a British judge only about a month ago—

[Sadiq Khan (Tooting) (Lab)]

It is being appealed.

--- Later in debate ---

[Sadiq Khan]

I will come to some of the huge improvements made in the other place.

The Government claim that they are unable to defend themselves in court because the nature of the evidence they would need to deploy is so bound up with sensitive intelligence as to make it impossible for it to be made public. As a result, they are having to settle cases and pay out-of-court compensation. By allowing CMPs in situations involving national security, the Government are seeking to avoid situations where cases are not seen through to their conclusion and avoid the premature payment of compensation.

Let us go right back to the very beginning of this legislative process. The original proposals that were published in the Green Paper involved huge issues. The Minister said at the time that after the consultation on the Green Paper, he expected a White Paper, followed by a Bill. We had serious problems with the Green Paper, but we were encouraged by the sensible pace at which he proposed to progress.

As I have said, the original Green Paper was roundly criticised by others for being too broadly drafted in its coverage of CMPs. After the consultation, the Government decided to jettison secret inquests, making a virtue, as has happened again today, of this concession. I pay tribute to the Royal British Legion and the non-governmental organisation, Inquest, for successfully fighting that barmy idea. Many suspect, however, that the inclusion of inquests in the first place was a wheeze—an idea that would be later binned and presented as a major concession. It is the oldest trick in the book.

The process then changed: there was no White Paper. Instead, we jumped straight from the Green Paper to a Bill, which, while including inquests, did not take on board the wide range of concerns that had been raised about the proposals. In many people’s eyes, the Bill’s process for deciding when there should be a CMP was worse than the process set out in the Green Paper. Even more power was concentrated in the hands of Ministers to decide what would stay secret, while judges had fewer powers to take a balanced view on whether it was in the national interest to keep something secret or whether it was in the public interest to disclose it.

It is on this point that the right hon. and learned Gentleman disagrees with many independent experts, including judges, about how the process will work. He insisted that the CMP process was a judge-led, balancing exercise and that it was not a Minister-led process. He repeated that several times, criticising those who dared to question his assertions, and he has done so again today. I and many others have picked him up on this, because the Bill as drafted was clear: it was not a judge-led process. In the old clause 6, there was no balancing exercise. It was a grab for power by Ministers. They would have decided what stayed secret and what did not. Judges were left with no option but to grant a CMP. The word used was “must”, not “may”. It was simply unacceptable. The power that that would have handed to the Executive to keep material secret was unacceptable and I am pleased that the right hon. and learned Gentleman has accepted the change made in the other place.

[Mr Kenneth Clarke]

Extraordinary assertions keep being made outside this House that the Bill allows Ministers to decide whether there should be closed material proceedings, but that is complete nonsense. The “must” to “may” amendment arises in circumstances where the judge who takes the decision decides that national security would be at issue. The original Bill said that once he finds that there is a risk to national security, he “must” have a closed material procedure. Such is the concern of all these critics that we have made it clear that we will accept a wider discretion, so even when the judge—not the Minister—is satisfied that national security is at risk, he “may” have a closed material procedure. I submit that people should think about the possibility that that leaves the judge with all the discretion in the world to think about all the other issues that might mean there is some compelling reason in a particular case not to allow a CMP, even when national security is threatened. I simply do not understand why the right hon. Gentleman—he is not the first; I am not singling him out—and others keep asserting that Ministers will decide on that when the Government gave up that position months ago.

[Sadiq Khan]

I know that the right hon. and learned Gentleman has not practised law for a while, but he is wrong. The old Bill clearly said that if a Minister decides that there is a threat to national security, the judge must order a CMP. The improvements made by the House of Lords changed that and I am glad that he has accepted them.

The right hon. and learned Gentleman has lashed out—he did it again today—at what he called the “reactionary” elements of the civil liberties community. He is sniggering, but he will recall that he was once a part of that community. Does he really believe that David Anderson QC, the Government’s independent reviewer of terrorism legislation, fits that description? I remind him of what Mr Anderson said about the Bill’s original proposal that Ministers would trigger a closed hearing:

“That proposal seems to me profoundly wrong in principle. The decision whether to order a CMP is properly for the court in the exercise of its case management functions.”

He also said that a CMP should be used only if

“the just resolution of a case cannot be obtained by other procedural means (including not only PII but other established means such as confidentiality rings and hearings in camera).”

It seems that it was not just me who got it wrong; according to the Minister without Portfolio, his own independent reviewer of terrorism legislation also got it wrong.

Advocates also appear to have got it wrong by not understanding the Bill as previously drafted. Many esteemed legal Members of the other place, such as Lord Pannick, Lord Macdonald and Lord Phillips, also got it wrong if the Minister without Portfolio is correct.

On 19 November, the day the other place considered the Bill on Report, an editorial in The Times—hardly a member of the “reactionary” civil liberties community—said:

“The Justice and Security Bill being considered in the House of Lords today cannot be allowed to stand in its current form”.

The Daily Mail, which is not historically known to be a “reactionary” element of the civil liberties community, either, has also consistently opposed the right hon. and learned Gentleman’s original proposals.

I accept that some have argued strenuously against the whole principle of CMPs in our civil courts. Others have focused their energies on ensuring that the Bill has proper checks and balances in place.

[Mr Kenneth Clarke]

rose—

[Sadiq Khan]

I will give way to the Minister without Portfolio. Clearly, one hour was not enough for him.

[Mr Clarke]

We are merely warming up. To refresh the right hon. Gentleman’s memory, I have a copy of the original Bill. I think he is talking about a debate that was last sensibly carried out when the Green Paper, in which we said that it would be for a Minister to decide on this matter, was considered. Clause 6(2) of the old Bill says:

“The court must, on an application under subsection (1), make such a declaration if the court considers that…(b) such a disclosure would be damaging to the interests of national security.”

We published the Bill on the basis that it was a judge’s decision. We are making the judge’s discretion wider. He does not have to have a CMP. Even if he is satisfied that national security is at risk, he “may” make a declaration, which is what has been proposed to us by the House of Lords.

[Sadiq Khan]

The right hon. and learned Gentleman can use the present or past tense, but the reality is that, previously, the judge would have had to order a CMP if the Minister said that there were national security issues. There was no balancing exercise. The changes made in the other place mean that the process is now judge-led and I am glad that the Minister without Portfolio welcomes them. I am glad that legal experts agree with me. We will have a chance to come back to the issue later.

The defeats inflicted on the Government in the other place were truly stunning—the Minister without Portfolio used the phrase, “Pushing at an open door”—with majorities of 100, 105 and 87. Those defeats mean that, as the Bill stands, there will be an equality of arms between the two parties in a civil action and a full judicial balancing of the competing public interest. Moreover, if CMPs are to be granted, it must be as a last resort—I know that the right hon. and learned Gentleman does not like that change made in the other place—and, importantly, there will now be judicial balancing within the CMP.

I have no doubt that there would have been more defeats had the Minister in the other place, Lord Wallace, not seen sense and conceded on other amendments. The scale of those Government defeats is testament to the enormous levels of unhappiness of distinguished legal experts and serious people with the Bill as originally published.

I pay tribute to the Joint Committee on Human Rights, particularly its Chair, my hon. Friend the Member for Aberavon (Dr Francis), for the work it has done. Its amendments—the Opposition supported the majority of them—were the basis of the victories in the House of Lords. We will seek to make other changes to the Bill in Committee, in order to ensure greater fairness. We will oppose any attempts to water down the improvements that have already been made.

I want to touch briefly on clauses 14 and 15, which address the so-called Norwich Pharmacal cases. They prevent the disclosure of “sensitive information” that the Secretary of State certifies it would be contrary to the interests of national security or international relations to disclose. In those cases, a party seeks an order for the disclosure of evidence in order to pursue or defend a case against a third party, possibly outside the jurisdiction, as in the cases that have attracted attention in which the defendant—that is, the Government—is to some degree mixed up in events, perhaps by quite innocently coming into possession of some information.

Disclosure via Norwich Pharmacal is, we are told, already seriously undermining confidence among our most important partners, including the United States of America. That is an important matter for our intelligence agencies, which I have already paid tribute to, because they probably work more closely with their colleagues in the USA than those in any other country. We understand the importance of the control principle.

Although there may be an issue that needs to be addressed and a case for regularising the situation created by the Norwich Pharmacal cases, we question whether the Government’s approach is too broad. We will test that in Committee. The independent reviewer of terrorism legislation, David Anderson QC, agrees with our position and has publicly accepted that there is

“a case for restricting the novel application of the Norwich Pharmacal jurisdiction to national security information.”

He concluded, however, that what is now clause 14 was too broad in its application.

We do not intend to oppose the Bill on Second Reading. However, I hope that I have made it clear that we wish not only to hold on to the improvements that were made to the Bill in the other place, but to use the Committee stage to seek further improvements. How we vote on Report and Third Reading will be determined by the Government’s actions in Committee between now and then.

Oral Answers to Questions

Debate between Lord Clarke of Nottingham and Sadiq Khan

Tuesday 3rd July 2012 Commons Chamber

[Mr Clarke]

I personally disapprove of a parliamentary vote on the appointment of judges, but that is the system that has prevailed there since 1947. Fortunately, the British put forward three excellently qualified candidates for the judgeship, so I congratulate Mr Mahoney on his election and I am sure he will make a very considerable contribution.

[Sadiq Khan (Tooting) (Lab)]

I am sure the Justice Secretary will agree that it would be inappropriate for him as a member of the Executive or me as a Member of the legislature to interfere with the appointment of judges in the UK. In the light of that and of his last answer, what are his views not on the vote but on the political interference that appears to have taken place with the appointment of the UK representative to the European Court of Human Rights?

[Mr Clarke]

The Council of Europe works on the basis that the Parliamentary Assembly votes from a shortlist of three people provided by the member state, and now steps are taken to ensure that all three come up to certain standards, which I am glad to say the British nominees quite easily did. It sounds as though the right hon. Gentleman and I would not start from here, and I agree that normally politicians should not vote on which judge ought to be appointed to any judicial post, but they did and Mr Mahoney, I am sure, will prove an excellent choice.

--- Later in debate ---

[Mr Clarke]

There has been repeated litigation involving several member states that do not allow prisoners to vote, as we have never done. The most recent litigation was Scoppola v. the Italian Government, in which our Attorney-General intervened on behalf of the British Government to argue that Parliament was more responsible for this issue than the Court. The Government will respond to that judgment, which went against a blanket ban, in due course.

[Sadiq Khan (Tooting) (Lab)]

There are 6,500 prisoners who have been ordered by trial judges to serve indeterminate sentences for public protection. It is important for public safety that they be released only after a proper risk assessment, but more than 3,500 are waiting for appropriate programmes and a risk assessment. Does the Justice Secretary have any plans to increase the number of programmes and assessments to address this issue?

[Mr Clarke]

This system, which we are getting rid of, as the Under-Secretary of State for Justice, my hon. Friend the Member for Reigate (Mr Blunt) reminded us earlier, has put a tremendous load on the prison service in terms of programme design, availability of suitable places and the Parole Board system. We are addressing that and trying to reduce the delays, but it will take us some time to get through the system. Of course, some will remain indeterminately imprisoned, but we want as many as possible to finish their proper sentence, to get them out and to put behind us this rather shameful chapter in the history of sentencing in this country.

[Sadiq Khan]

As is normal, the Justice Secretary did not answer the question I asked. Let me try another. His ministerial colleague said that there were no immediate plans to change the release test. Yesterday, Lord McNally said that the Government may use Executive action to release those serving IPPs, and would also change the balance of judgment to be made by the Parole Board to free up prison places. Those two actions could lead to prisoners who are currently serving IPPs being released without due regard to public safety. Which Minister should we believe, and is it really worth taking a risk with public safety to reduce prison numbers?

[Mr Clarke]

I will check what Lord McNally actually said. We are not contemplating either of those steps at the moment. We are putting extra resources into programmes and into addressing the problems that the Parole Board is faced with. We are quite determined not to take risks with public safety, but indeterminate sentences really were one of the worst ways of trying to do that, as they left a grave sense of injustice and difficulty coping with the proper assessment of people, for open-ended release.

Defamation Bill

Debate between Lord Clarke of Nottingham and Sadiq Khan

Tuesday 12th June 2012 Commons Chamber

[Sadiq Khan]

I thank the hon. Gentleman for raising that concern. I am afraid that many colleagues will be familiar with the type of bullying, harassment and intimidation that he talks about, which ultimately leads to people considering taking their own lives. When the Government drafted the Bill, they were keen to address a void that has not previously been filled. Clause 5 will allow websites to have action taken against them, but websites will be given greater protection from being sued if they help to identify those posting defamatory messages. It is hoped that that will lead to greater responsibility among both those who operate websites and those who post messages. People will know that they when they put a post on a website, it is possible that their details will be passed on to a potential claimant bringing an action.

[Mr Kenneth Clarke]

Does the right hon. Gentleman agree that it would be helpful in that context to look at what else can be done about bullying, as opposed to defamation? The House should bear in mind section 127 of the Communications Act 2003, which creates an offence of sending or causing to be sent

“by means of a public electronic communications network a message or other matter that is”

genuinely

“offensive or of an indecent, obscene or menacing character”.

That gives rise to many prosecutions, but the right hon. Gentleman is probably right that it does not give rise to many defamation actions. It must be looked at in the round. We agree that people abusing the internet to abuse people to whom they happen to have taken a dislike is an increasing problem.

[Sadiq Khan]

A chilling effect can sometimes be a good thing. A prosecution brought against someone involved in such behaviour can lead to others not doing the same thing for fear of prosecution. The Justice Secretary is right to remind the authorities, who might be watching the debate or might read of it, that they have tools at their disposal to bring criminal prosecutions.

Subsections of clause 5 set out the circumstances in which the defence could be defeated. This is a key area in which technological developments have outstripped our laws. As has been said, a duty will be placed on internet service providers to identify internet trolls without victims needing to resort to costly legal action. The Opposition welcome that development, but the detail will be provided in regulations that we have not seen. It is important that this well intentioned clause does not inadvertently lead to a website being required to disclose the identity of a whistleblower when they are the source of a post on a website, or to websites being easily censored by casual threats of litigation against their operators.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Clarke of Nottingham and Sadiq Khan

Tuesday 17th April 2012 Commons Chamber

[Mr Clarke]

That is an interesting argument. I do not dismiss it, but I do not know of any evidence to support it. However, as I have said, the Bill covers serious cases involving children.

[Sadiq Khan]

Babies.

[Mr Clarke]

Babies, yes, although exceptional funding rules will apply to other serious cases involving children. Under the European convention on human rights, one must plainly provide someone with access to funding to have a fair resolution of a dispute. We therefore think that we are covering most cases. The amendments that I am suggesting that the House should disagree with cover all kinds of routine cases. They state that simply because a person is under a particular age, they should get legal aid in cases for which an adult would not receive it.

Oral Answers to Questions

Debate between Lord Clarke of Nottingham and Sadiq Khan

Tuesday 31st January 2012 Commons Chamber

[Mr Clarke]

First, I am delighted that my hon. Friend and I agree that the Prime Minister gave a brilliant speech in Strasbourg last week. It went down very well there. Yes, I meet judges. As I mentioned in an earlier answer, I hold discussions with judges. There is widespread acceptance in Strasbourg of the need for reform, so long as people are satisfied that we will continue to uphold the convention and we regard the Court as the right forum in which to consider serious issues of principle in all 47 member states. I am sorry that my right hon. Friend the Prime Minister was unable to meet judges, but I am sure that I can facilitate the opportunity for him to do so, if he or the judges wish it. However, the Foreign Secretary, the Attorney-General and I are in touch with the judges and our opposite numbers in all the relevant countries.

[Sadiq Khan (Tooting) (Lab)]

May I ask the Justice Secretary for a short answer to a straightforward question? Does he share the apparent view of the Prime Minister and many of his Back Benchers that if the Government cannot persuade the other 46 Council of Europe members to reform the European Court of Human Rights, as set out last week, the UK should withdraw from the European convention on human rights?

[Mr Clarke]

The Prime Minister has never expressed that view to me or publicly, so far as I am aware, and if he did, I would not agree with it.

--- Later in debate ---

[Mr Clarke]

These conventions got worse when our opponents were in office. I say that before the right hon. Member for Tooting (Sadiq Khan) starts attacking me. I, too, have expressed views in the past about honesty in sentencing. What happens currently is that for most sentences, half the term is served in prison; beyond that, prisoners become eligible for release, but they are on licence and liable to recall for the full term of their sentence if they do not adhere to it. There are measures in the Legal Aid, Sentencing and Punishment of Offenders Bill, currently in the other place, that address the penalties to be imposed for various offences. In place of indeterminate sentences for public protection, for example, we are going back to how sentences used to be so that people will have long determinate sentences, and will normally serve two thirds of it before they are released. That is at least a step in the right direction for my hon. Friend.

[Sadiq Khan (Tooting) (Lab)]

It is fair to say that, until she left her post in early October last year, the Victims’ Commissioner was a bit of a thorn in the side of this Government and this Justice Secretary in particular. The consultation paper on victims and witnesses, which was published yesterday, was completely silent on the future of that important post. Will the Justice Secretary reassure the House that he will not abolish this important advocate for victims and witnesses? When will the post be filled?

[Mr Clarke]

First, I can assure the right hon. Gentleman that I got on excellently with Louise Casey when she served in that role; it is a pity that she went away to carry out another even more important role in dealing with problem families. That can be checked with Louise Casey, but I would be surprised if she did not confirm my view. She made a contribution to policy. We are looking at this post again, and as I reminded the right hon. Gentleman the last time he raised the fact that we were still considering it, the last Government legislated for it in about 2004 and then took five years before they appointed anybody. There is a variety of views—from those responsible for victim support and others—on the best way to give proper force to victims’ views in government. We are considering those views before we make any announcement.

Victims and Witnesses Strategy

Debate between Lord Clarke of Nottingham and Sadiq Khan

Monday 30th January 2012 Commons Chamber

[Sadiq Khan (Tooting) (Lab)]

First, I thank the Justice Secretary for his usual courtesy in giving me advance sight of the statement, albeit a much-delayed statement that it has taken the Government 20 months to draft.

Our attitude towards victims should always be at the top of our priority list. Quite simply, without victims and witnesses there would be no justice system. Without victims having confidence that our justice system will effectively punish and reform offenders, fewer would report crimes or come forward with evidence as witnesses. That is one reason why we have a basic duty to treat victims of crime and witnesses with the dignity that they deserve.

Sometimes it is the little things that make a big difference, such as ensuring that victims and witnesses have court proceedings explained to them, so that they understand how the trial is progressing. However, sometimes it is the bigger things that matter, such as giving them the support that they need to recover from the trauma of a crime, or ensuring that sentencing is transparent and fair in delivering effective punishment. Many of those things do not cost anything.

As a result of Labour’s record on crime, there were 7 million fewer crimes a year by the time we left government in 2010 than in 1997. There were therefore countless fewer victims of crime. That is the most sure-fire way in which we can help. We must have policies backed up by adequate resources to ensure that people do not become victims in the first place.

This Government’s policy on law and order is all over the place. The way they treat victims of crime is a prime example. Over the past 20 months, their policies on bail, sentencing, the chief coroner, domestic violence and rape have shown them to be out of touch with victims of crime in this country.

I welcome the fact that, after nearly three years in government, in April 2013 the Justice Secretary will finally honour the commitment to compensate innocent victims of overseas terrorism. However, the time that it has taken to come to that decision, despite cross-party support, is shameful. Will he confirm that the funds for that policy will not come from the resources destined for victims of crime in this country?

On the Criminal Injuries Compensation Authority, the Justice Secretary focused on the £75 million that has been paid to those with unspent convictions, which was just 3% of the total over the past 10 years. Will he confirm that there will be no further cuts to the CICA budget?

I put it on the record that we continue to support the victims surcharge, which was introduced by the previous Government and under which offenders work and pay towards victims’ services and victims. Will the Justice Secretary assure the House that none of the services that are funded by the surcharge will face cuts because of the additional surcharge that he referred to, which will go to the CICA?

As well as presiding over a 43% reduction in crime, Labour sought to improve the experience of victims in the justice system. To be fair, the 98-page White Paper lists some of the advances made over the 13 years of a Labour Government. I am already on record as saying that Labour would commit to working with victims groups and the Government to introduce a victims law so that the rights of the bereaved families of homicide victims were honoured, and I am pleased that the right hon. and learned Gentleman has announced a victims code today. I am pleased also that he has taken on board the announcement that I made at the Labour party conference—I have no problems with his stealing our ideas, I just hope that he will go the whole distance and ensure that the code is enshrined in statute and not just another unenforceable and ignored code of practice.

We have a duty to support victims through all stages of the process, and today’s strategy will be judged against that duty. My fear is about whether the Government will be able to deliver the justice that victims in this country deserve, bearing in mind their record over the past 20 months. I hope that I am wrong.

[Mr Clarke]

The right hon. Gentleman first touched on the arguments that we have been having on a wide range of other justice and sentencing issues, and on one or two subjects on which I was not aware that we had any differences on policy. The fact that he started on that basis rather led me to believe that he was not really very opposed to a great deal of what we have put forward in our consultation document.

I shall deal with the right hon. Gentleman’s specific questions. We are able to go ahead with terrorism compensation. I quite accept that it has taken some time since it was announced, and supported by us, during the time of the previous Government. We are putting it on exactly the same basis as the domestic CICS, and the time has been taken up getting the details of that scheme right. The domestic compensation scheme was left to us with an enormous financial deficit, and we are striving to make it sustainable and financeable, I hope without significant further change, in a way that it has never really been since it was first introduced back in the 1960s.

The right hon. Gentleman asked whether I could guarantee that there would be no further reductions in criminal injuries compensation. As I have just said, I very much hope there will not be. The scheme was set up in 1964 and ran into financial difficulties almost straight away. It was altered in 1996, and the last Government kept consulting on it but not doing very much. By one measure, when I took over from my predecessor there was an unfunded deficit of £750 million. We have had to find a lot of extra money from the Treasury to deal with unfunded pre-tariff liabilities, and we are trying to put the matter on a set footing for the future.

The victims surcharge will be raised in a fairer way, and I do not think there is any question of any cuts being made. At the moment the surcharge is levied only on those who pay fines. It is fair that it should be levied also on those who go to prison or serve community sentences, and that is how we are changing it. We hope to get a substantially bigger contribution from those who commit a crime, to compensate the people who have suffered from it.

As we move the detail of the current services to local responsibility and to the new police and crime commissioners, we will still provide specialist services for bereaved families nationally. We have put extra money into that, and into specialist groups, on Louise Casey’s recommendation, but we will not reduce the support for Victim Support. Support will be provided more locally and sensitively by the commissioners, who will have to build up partnerships with a lot of local agencies. We have of course done such things as putting extra money into rape support centres to open some new ones and give the current ones long-term funding security for the first time.

I concede that the last Government made considerable improvements on victims and witnesses during their term of office. Awareness of the inadequacies of how the criminal justice system dealt with victims and witnesses began to grow in the ’80s and ’90s, and it has been a fairly continuous process from the early 1990s onwards. However, we are making a significant step forward. As I said when I began my reply, I believe that the right hon. Gentleman and his hon. Friends will find it quite difficult to find very much with which they disagree.

Detainee Inquiry

Debate between Lord Clarke of Nottingham and Sadiq Khan

Wednesday 18th January 2012 Commons Chamber

[Sadiq Khan (Tooting) (Lab)]

I thank the Secretary of State for advance sight of his statement. The whole House unequivocally condemns torture, and inhumane, cruel and degrading forms of punishment. We must not condone it or ask others to do so on our behalf. One of the marks of a civilised society is that we will do everything in our power to champion human rights, both at home and abroad, and that we will properly investigate, prosecute and punish those alleged to have committed such crimes in this country or on behalf of this country elsewhere across the globe. So, allegations that members of our security and intelligence services may be involved in the improper treatment of detainees held by other countries, with acts that contravene these basic levels of human decency that we hold so dear as a nation, need proper and full investigation.

The investigations in Operations Hinton and Iden relate to serious and highly sensitive matters involving, as they do, allegations about members of the Security Service and the Secret Intelligence Service. Operation Hinton followed a referral from the former Attorney-General, my right hon. and learned Friend Baroness Scotland, in November 2008 and Operation Iden followed a referral, also by the former Attorney-General, in June 2009. These independent investigations concluded on 12 January this year, as has been said, with a decision not to charge any named individuals in relation to the investigations in Operations Hinton and Iden.

Our security and intelligence agencies perform vital work on our behalf and we owe them a debt. Without public recognition, the men and women of these services take the gravest personal risks to protect the security of our country. But it is clearly right that, in the light of the further, specific allegations of ill-treatment made recently, the Metropolitan Police Service and the Crown Prosecution Service investigate these thoroughly. Although it was also right that the inquiry led by Sir Peter Gibson was put on hold while investigations into criminal proceedings were ongoing, I would ask the Justice Secretary why he has decided not to have a further hold in Sir Peter Gibson’s inquiry while these further investigations are carried out. It is also important that the pause is used as an opportunity to ensure that the former detainees and the human rights and campaign groups who chose not to engage in the Sir Peter Gibson inquiry are brought back into the fold.

May I ask the Justice Secretary what his views are on the representations made by those acting on behalf of the detainees, non-governmental organisations and others that an inquiry conducted with the current terms of reference and protocol does not comply with articles 3 and 6 of the European convention on human rights? It is clearly important that any inquiry has legitimacy, and I invite the Justice Secretary to use the period while the allegations are being investigated by the police to work with ourselves, NGOs and other experts to ensure that the new inquiry has as much legitimacy as is possible. I also ask the Secretary of State when and how he intends the work of Sir Peter Gibson, or as much as is realistically possible, to be published.

The key point is that we must get to the bottom of what happened. We are firmly of the view that there must be an independent inquiry as the quicker these questions are answered, the quicker we will be able to draw a line under these issues.

[Mr Clarke]

I am grateful to the right hon. Gentleman for his broad support for the aims we are pursuing. I agree with everything he said about the security services and I think we owe it to them, as well as to the reputation of this country, to draw a line under these matters as quickly as possible, which involves investigating them all properly and making the position clear as well as considering matters such as the supervision of the services in future.

The right hon. Gentleman asked why we did not have just another pause in the Gibson inquiry, as we were previously just waiting for the outcome of the police inquiries into the Guantanamo Bay cases. With great respect, it is not even fair to the team to keep things going on in that way. I had hoped to be able to come to the House and say, if anyone asked me, that the Gibson inquiry was now under way, that it was starting its proceedings and that all was going smoothly. We now have to wait for an as yet unknown period of time while the Libyan investigations are carried out and while we see where they go. The Metropolitan police took three years to look into the Guantanamo Bay cases and I think everybody is anxious that we should be quicker than that as we look at the Libyan cases, but we have no idea how long it will take.

Sir Peter and his colleagues have done some work and the sensible thing is to publish the outcome of their preparatory work now, wait to see what happens to the investigations and to set up an independent judge-led inquiry as soon as it is feasible, which might require a fresh team of people to carry it out. We have the terms of reference for Gibson because we think the Gibson inquiry itself should not take too long and I have discussed the terms of reference with NGOs, representatives of former detainees and so on. I will quite happily continue those conversations and I have been trying to persuade them that the Gibson inquiry meets their needs and that they should actively participate and engage in the process. I will continue that and I will listen to their views, too, about the nature of the inquiry. I can assure the right hon. Gentleman and those outside the House who have an interest that the Government will hold an independent judge-led inquiry. We are where we are, and the Gibson proposals are our proposals.

Oral Answers to Questions

Debate between Lord Clarke of Nottingham and Sadiq Khan

Tuesday 13th December 2011 Commons Chamber

[Mr Kenneth Clarke]

We have had the chairmanship of the Council of Europe since 7 November, and my right hon. Friend the Foreign Secretary and I have been seeking to move forward our agenda of reforming the Court in due course. Indeed, I will be lobbying two more Ministers tomorrow at a meeting of the Justice and Home Affairs Council. We are seeking to get the Court to concentrate on the most important cases which require some international jurisdiction to get rid of the huge arrears of cases clogging it up at the moment, most of which are inadmissible, and to make sure that the national courts and national Parliaments discharge their primary duty of delivering the convention.

[Sadiq Khan (Tooting) (Lab)]

Perhaps the Justice Secretary will advise his right hon. Friend the Foreign Secretary not to walk out of those talks while he is chairing them, if he does not get what he wants in the first few weeks. The Justice Secretary will be aware that the number of prison places is now just below 90,000. It has gone up over the past 18 months as a consequence of doubling up prisoners in prison cells and as the previous Government’s investment in capital programmes comes on stream. At the last Justice questions, the right hon. and learned Gentleman refused to answer my simple question about whether he thought prisoner numbers would go up, go down or stay the same, which is crucial for planning. He said that anybody who tried to predict prisoner numbers was “an idiot”. May I ask him another simple question? Perhaps he will rest the bluster and answer the question. Is he making plans for the usable operational capacity to go up, go down or stay the same during this Parliament?

[Mr Clarke]

The right hon. Gentleman’s remarks might best be addressed to Ministers in the previous Government, who obviously made some errors somewhere when they found that they had to release 80,000 prisoners before they had completed their sentence because they had no room for them on the prison estate. We are maintaining capacity to meet whatever demand we face from the courts. What I said last time, from which the right hon. Gentleman took the slightest extract, was that we respond to the decisions of the courts, we respond to the level of crime, and at present we have managed—[Hon. Members: “Have the numbers gone up or down?”] They have gone up. It is possible that with the prolonged recession and the long period of youth unemployment, there will be an increase in acquisitive crime. If that is the experience that we have in this country, we are responding to that. The Prison Service is responding very well to it at the moment, though of course we have to adjust the capacity of the estate.

[Sadiq Khan]

One way of reducing cost to the British taxpayer and at the same time increasing prison places is by removing the thousands of foreign prisoners in British prisons. May I refer to the European Union and events last week? Last week the European Union framework directive on prisoner transfers, negotiated and signed by the Labour Government, who stayed in the room and argued for our national interest and got a good agreement, came into force. Fifty prisoner transfer agreements with other nations were also negotiated by the last Government. When will the Justice Secretary be able to negotiate successfully this Government’s first prisoner transfer agreement, and how many nations does he expect the Government to sign agreements with during this Parliament, or is it the case that in addition to failing to repatriate any powers from Europe, this Government will fail to repatriate any foreign prisoners from this country?

[Mr Clarke]

Again, under the last Government the number of foreign prisoners in our jails soared until the Government eventually managed to stabilise it. We are maintaining roughly the same level of deportation of foreign prisoners who complete their sentence as was maintained under the previous Government. The new European arrangements have come into force, but not many states are yet ready to implement them. We are ready to implement them and they will provide some help. We are of course seeking to negotiate agreements with other Governments, but it requires the other Governments to be willing to undertake an obligation to take prisoners repatriated from this country.

Oral Answers to Questions

Debate between Lord Clarke of Nottingham and Sadiq Khan

Tuesday 8th November 2011 Commons Chamber

[Mr Clarke]

Featherstone 2 is one of two new prisons that we have coming on stream in 2012, and I am sure that it will provide a very valuable source of local employment when it opens, as it is quite a large prison. It will also, of course, contribute to our battle against crime and to the need to punish serious criminals.

[Sadiq Khan (Tooting) (Lab)]

I know the Justice Secretary does not like being reminded of this, and that is clearly why I am going to do so. He had a target to reduce the prison population by 3,000 by 2015, and, as my hon. Friend the Member for Blaenau Gwent (Nick Smith) helped to remind the House, it is now 87,747, which is about 3,000 more than when the right hon. and learned Gentleman became Justice Secretary. As a consequence of this Government’s policies, which projection does he believe will be the case? Will the prison population in May 2015 be the same, more or less than it was in May 2010?

[Mr Clarke]

It is simply not the case that I have ever had a target for prisons, because as I have just explained it is not within the control of Ministers. That is why Ministers in the previous Government used to produce these various scenarios. I do not have a target. We make an estimate of the effect that legislative changes will have on the future prison population, and as the right hon. Gentleman knows, the Legal Aid, Sentencing and Punishment of Offenders Bill that the House has just passed will, other things being equal, which they never are, reduce the prison population by about 2,600.

[Sadiq Khan]

We have a complacent Justice Secretary who, one third of the way through this Parliament, has no idea whether the prison population will go up, down or stay the same. He has cut our prison building programme, cut capital investment in prisons, he is cutting probation officers and cutting prison officer numbers. Is he surprised that the chief inspector of prisons has seen no evidence of a rehabilitation revolution and thinks that there should be a rocket up this Justice Secretary’s backside?

[Mr Clarke]

The future level of crime depends on a huge number of variables, which are not within the control of any Government or Minister. What one does is to make sure that one does not exacerbate any problems, and that one accommodates those who come in. I am trying to establish in prisons a more intelligent regime that will achieve some improvements in reoffending rates for those who have to be punished by going to prison. If any of my predecessors ever gave an exact forecast of the prison population, two or three out, that predecessor was in my opinion an idiot. I do remember, however, that the previous Government so miscalculated things that they had to let 80,000 people out of prison, short of their sentence, because prisons were bulging at the seams and they had nowhere to accommodate them.

--- Later in debate ---

[Sadiq Khan (Tooting) (Lab)]

One cannot help but notice the good mood that the Justice Secretary is in today, which I am sure has nothing to do with the spot of bother the Home Secretary is in. May I ask him a question on a similar issue—foreign prisoners? He will be aware that in 2007, the Labour Government negotiated with the EU a prisoner transfer agreement, which comes into force next month, which will mean that no prisoner consent is required, and that the other country must comply with a request for a transfer. The Prime Minister promised the repatriation of thousands of foreign prisoners by personally taking charge of negotiations with individual countries. We all know that he likes to keep his promises, so can the Justice Secretary tell us how many new prisoner transfer agreements have been successfully negotiated with individual countries in the past 18 months, and how many foreign prisoners does he expect to be repatriated this year?

[Mr Kenneth Clarke]

First, I want to put the right hon. Gentleman’s mind at rest: I agree with my right hon. Friend the Home Secretary in her handling of the current problems, so it is just my usual bonhomie; there is no particular cause for it today. It is true that this important transfer of prisoners agreement is about to come into force, and it will make a difference to our problem with foreign prisoners, although, of course, there are derogations to some important countries, such as Poland and Ireland, where it will not come into effect for a few years. The right hon. Gentleman hits on a serious problem, though: we need to find a way of reducing the foreign prisoner population. At the moment, we have only one international bilateral agreement near to conclusion, but we are continuing to work on it, because foreign prisoners take up more than 10% of places in our prison system.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Clarke of Nottingham and Sadiq Khan

Wednesday 2nd November 2011 Commons Chamber

[Sadiq Khan]

I have been in correspondence with the Justice Secretary and, to be fair, he responded to my letter. I am happy to allow him to intervene to put on the record the assurance that he gave me.

[Mr Kenneth Clarke]

I was not here during the incident to which the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd) referred, but I am sure that he was not swatted away. There was probably anxiety to finish the debate.

I am happy to repeat the undertaking that the Under-Secretary of State for Justice, my hon. Friend the Member for Huntingdon (Mr Djanogly) gave then and in Committee. We accept that in principle there is a good case for saying that there should be appeals against the allowing of bail in the Crown court. We are working on the details of that, and we propose to table amendments in the House of Lords to meet that point. There is no difference in this case, and I have already written to say what we are striving to do. We intend to table an amendment to meet the wishes of the right hon. Members for Dwyfor Meirionnydd and for Tooting, and some hon. Members on the Government Benches.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Clarke of Nottingham and Sadiq Khan

Tuesday 1st November 2011 Commons Chamber

[Mr Clarke]

Because the judge, in full knowledge of the circumstances of the offence and the offender, has decided that such a serious offender should get life imprisonment, it is—

[Sadiq Khan (Tooting) (Lab)]

The same now.

[Mr Clarke]

It is not. What I think the right hon. Gentleman is saying—I will listen to him in a moment—is that he proposes to defend what is left of the last Government’s proposals, the author of which acknowledged quite early in my speech that they plainly needed to be changed. If I get the chance, I will listen to what the right hon. Member for Blackburn (Mr Straw) is trying to argue, but he seems to be reassuring us that life sentences fulfil that requirement for the very worst people—that they are looked at carefully before being let out again—and those people will be on licence for life: once they start going in for aberrant behaviour, they can be recalled to prison and punished once more.

Apart from the very outlying people on the right and the left, I hope that I have satisfied everybody. It is high time that we reformed indeterminate sentences. Personally, I am amazed that they have survived judicial review and challenge in the courts thus far, but if something was not done, they would not survive very much further, which would lead to unfortunate consequences if a court suddenly started ordering us to release such prisoners and decided that they were being held unlawfully. I have recently described them as a “stain on the system”. I said that at a private meeting in the House of Lords—although it soon found its way into the press—but it is my opinion. What we are putting in place is protection for the public: far more rational, certain, determinate sentences, which is much more in line with how we think the British system should behave.

I will, of course, be followed in this debate by the right hon. Member for Tooting (Sadiq Khan). I have already expressed my amazement at his position, and I have found some other quotations from him in my time. I cannot understand how he can match up to his present position. For example, when we both started in July last year, his leader—the current Leader of the Opposition—said:

“I don’t think we should try to out-right the right on crime,”

and said that I was

“opening up an opportunity for us to redefine part of the debate about criminal justice.”

Only a few weeks ago, addressing the Howard League, the right hon. Member for Tooting said—in a lecture that I thought put him in a very convoluted position between his conscience and where he is at present—that

“our big challenge is to communicate that punishment and reform can and should go hand-in-hand…To deliver this calls for an honest debate”.

The right hon. Gentleman, the shadow Justice Secretary, is a radical lawyer from south London—he is more radical than I am—and he is trying to “out-right” me in what is an absurd and hopeless case. What we are putting in place is an altogether rational and sensible system.

[Sadiq Khan]

I thank the Justice Secretary.

“Public safety remains our primary concern and indeterminate sentences will always be appropriate for the most serious crimes”—

not my words, although I agree with them entirely, but those of this Government’s Green Paper, “Breaking the Cycle”, which was published in December 2010. How things have changed in just 11 months: instead of what was said then, at the last minute—and after interference from No. 10 Downing street—there was suddenly no mention of indeterminate sentences when the Bill was published in June, more than four months ago. At the last possible moment—at one minute to midnight—we are presented with new clauses that propose the total abolition of indeterminate sentences.

--- Later in debate ---

[Mr Kenneth Clarke]

The right hon. Gentleman seems to be using his time to complain about not having enough time. Before he develops any conspiracy theories, may I make my position clear? I have spoken out against indeterminate sentences in the House before. The Green Paper proposed to restrict them, and I explained why. The announcement in June was made after the most careful discussion with the Prime Minister. We both agreed it, and the idea that I have been forced into accepting the abolition of indeterminate sentences is complete nonsense. The consultation process encouraged me to believe that serious people in the justice system were prepared to go for total abolition, and I leapt at the opportunity, as should the right hon. Gentleman, as a former chairman of Justice and of the Fabian Society. I cannot imagine where he thinks he is taking the labour movement to.

[Sadiq Khan]

We now know that, when this Government review policy, it means that they abolish it. This is the same Justice Secretary who signed off the Green Paper last December.

Not for the first time, the Government will have to leave it to colleagues from all parties and none in the other place to perform the scrutiny that this Bill deserves. The Justice Secretary is presenting us today with a blueprint that will risk more crime, more victims, and more serious and dangerous offenders being out on the streets. It is as simple as that, and he knows it. No amount of smoke and mirrors can disguise the fact that, by abolishing indeterminate sentences, he is risking the safety of communities in each and every constituency.

“Many dangerous criminals will be released, including repeat offenders, regardless of the risk they pose to the public.”

Those are not my words, but those of the right hon. Member for Arundel and South Downs (Nick Herbert), now the Minister for Policing and Criminal Justice, back in 2008, when he was commenting on the changes to indeterminate sentences that we made when we were in government. We made changes to them, but this Government are now proposing to abolish them altogether. What happened to the party that believed in law and order?

I spent a few minutes this morning finding recent cases in which judges had given an indeterminate sentence to a convicted offender to protect the public. I will not give the names of the offenders or the victims, as I do not want to cause the victims further distress. A South Wales police press release from September this year bears the heading “Indeterminate prison sentence for convicted rapist”.

It goes on:

“A Cynon Valley man described as a ‘dangerous individual’ has been given an indeterminate sentence for the rape of two women and wounding of another…D, who the judge described as a dangerous individual, will not be considered for parole for six years. D’s victims have released the following…statement: ‘Our lives will never be the same after the trauma D has put us through. We were physically, mentally, financially and emotionally abused and controlled by him. We are satisfied with the court’s decision to give him an indeterminate sentence and relieved that no-one else will suffer like we have.’”

In this October’s online version of the Birmingham Mail was the headline, “Teenager jailed for stab attacks on father and son in West Heath”. The article stated:

“A teenager has been given an indeterminate sentence for stabbing a father and son while they tried to protect a ‘petrified’ youngster who sought refuge in their Birmingham home…Judge William Davis QC said: ‘You stabbed both the householder and his son causing both of them significant injury. It is a very serious offence because two people were attacked on their own door step and one of them left perilously close to death.’ The judge said he believed J to be a ‘dangerous young man’. After sentencing”,

the victim said,

“I am extremely pleased the judge recognised the seriousness of the offence. It shows the public that carrying knives will not be accepted in society today.”

This month’s North-West Evening Mail contained the headline, “Caustic soda brute loses appeal against sentence”, and continued:

“A ‘dangerous and manipulative’ thug, who scarred a teenager for life by pouring caustic soda on her face, has been told by top judges he deserved his indefinite jail term…On Thursday G challenged his indefinite jail terms, with his lawyers also arguing the minimum five years he was ordered to serve before applying for parole was ‘excessive’. But his appeal was thrown out by judges sitting at London’s Criminal Appeal Court, who described G as a ‘very dangerous man’ who should not be released from prison until the Parole Board considers it safe to do so…Sentencing him, the crown court judge said he was a ‘controlling, manipulative, emotionless and uncaring man’ who was a danger to women…The appeal judge”,

Mr Justice Spencer,

“said: ‘The judge was quite correct to conclude that the appellant should not be released until the Parole Board deems it safe for him to be released.’”

[Mr Kenneth Clarke]

Can the right hon. Gentleman think of any good reason why, given the remarks he has provided about the sentences, that the perpetrators would not have been given a life sentence? Normally, people like that would get a life sentence. Since there have been IPP sentences, some people have got them, but in the cases the right hon. Gentleman describes, judges will go back to the normal practice of giving a life sentence.

[Sadiq Khan]

They will not. The right hon. and learned Gentleman’s proposals require there to have been a first offence, and the schedule provides for sentences of 10 or more years. The person found guilty will have to have come back for a second offence and be found guilty of an offence that also requires a sentence of 10 or more years. In all these cases—the right hon. and learned Gentleman knows this—the Government will have taken away from the judge who has heard all the evidence and knows the facts of the case the power to give the IPP sentence.

--- Later in debate ---

[Mr Clarke]

There is no qualification for a life sentence. People can be sent down for a life sentence for their first offence if it is serious enough and demonstrates the danger posed to the public. We are not introducing any qualifications at all to the power to give life imprisonment.

[Sadiq Khan]

I could not have demolished the arguments better than the right hon. and learned Gentleman just has. He makes the exact point for me. Under the proposals we are presented with today, our judges will be stripped of the power to prevent the most serious criminals from being released and going on to be a danger to society. We can imagine a scenario—and an horrific one at that—of someone committing a serious and violent assault being caught, charged and found guilty. Under the Government’s new proposals, I accept that they might receive an extended determinate sentence and be eligible for release after two thirds of their sentence, should the Parole Board be satisfied. However, even if the Parole Board were not satisfied after two thirds of the sentence had elapsed, there would be nothing to prevent release at the end of the full sentence handed down by the judge. Dangerous individuals would be released at the end of their extended determinate sentence irrespective of whether they posed a risk to the public. Under the new proposals, judges will be able to do absolutely nothing about that. They will be powerless to deprive the offender further of his liberty in order to keep the public safe. I should be happy for the Justice Secretary to intervene on that point, but he apparently does not wish to do so.

[Mr Clarke]

The right hon. Gentleman clearly did not understand my question. He gave some dreadful descriptions of dreadful cases, featuring what—when the full circumstances are known—are clearly some of the worst examples of violence and sexual offences that could be found. The point is, however, that such people will receive life sentences, because such sentences are available to the court, and they will not be released until someone is satisfied that they are no longer as great a risk as they were. They will be subject to licence for the rest of their lives, and it will be possible to recall them if they start behaving in any sort of threatening way. The life sentence fills the gap that the right hon. Gentleman claims I am creating. We are not changing the position at all.

[Sadiq Khan]

I realise that the Justice Secretary has not practised law recently, but if a judge could deliver a life sentence for such offences now, he or she would do so. It is because judges have the power under the IPP sentence to deliver indeterminate sentences to protect the public that they deliver those sentences. I am afraid that the Justice Secretary is not right.

A critical weapon will be absent from a judge’s arsenal, preventing that judge from handing down the most appropriate sentence. The judge will simply not be able to sentence the offender with the condition that only when the authorities are satisfied that he is not a risk to society will he be released. I know that that will free up prison places and save the Government money, but taking risks with public safety is plain wrong, which is why we will oppose new clause 30.

Public safety will also be compromised by the proposed “two strikes and you’re out” sentences. That is a great media soundbite and a sure-fire way of making the Government seem tougher than they really are, and it is precisely the kind of thinking that lies behind the inclusion of the words “punishment of offenders” in the Bill, but policies relating to public safety cannot be determined by a public relations strategy.

We do not have to scratch very far beneath the surface to see that the Government’s plans are riddled with problems. Not only are they a rehash of failed Conservative policy from the 1990s, but they introduce a worrying amount of risk—risk that will undermine public safety. Through their “two strikes” policy, the Government absolve themselves totally of any responsibility to identify the serious, violent offenders who are most likely to reoffend. That should be done at the time when the first sentence is handed down for the commission of a heinous crime. It was for the purposes of precisely this scenario that the previous Government created indeterminate sentences, but this Government are making no effort to protect the public from those who are most likely to commit further serious and violent crime following their release. They will address the problem only once the offender has committed a second crime.

Legal Aid, Sentencing and Punishment of Offenders Bill (Programme) (No. 2)

Debate between Lord Clarke of Nottingham and Sadiq Khan

Monday 31st October 2011 Commons Chamber

[Sadiq Khan]

I underscore the important contribution from my right hon. Friend, who chairs the Home Affairs Committee. When we discuss knife crime on Wednesday, we will also discuss legal aid, litigation funding and costs, sentencing, bail, and release and recall of prisoners. The suggestion that we can have anything like the substantive debate that our constituents demand is folly.

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

To assist the right hon. Gentleman in his preparation for the debate on knife crime, the Chairman of the Home Affairs Committee will recall that I was particularly hostile to mandatory sentences for young children. The Order Paper includes an amendment tabled by the official Opposition on mandatory six-month sentences for 12-year-olds and above. I do not think anything I said to the Select Committee should encourage the right hon. Member for Tooting (Sadiq Khan) to think I will agree with him when we come to that subject.

[Sadiq Khan]

If the right hon. and learned Gentleman is so happy to have a debate, why is he so scared? Let us have proper time for the debate. Let us set aside time for it, and discuss the matter. Let us not have knives in the programme motion. Why is he running away? Let us have the debate, at any time, in any place—[Interruption.] We have no choice but to press the programme motion to a Division. It is important that the other place sees what happens in this Chamber. The Government claim that they want debate, but when it comes to important issues of huge significance to our constituents, what do they do? They run away.

Justice and Security Green Paper

Debate between Lord Clarke of Nottingham and Sadiq Khan

Wednesday 19th October 2011 Commons Chamber

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

With permission, Mr Speaker, I should like to make a statement. I have today laid before Parliament the justice and security Green Paper. The document is the culmination of more than one year of careful analysis and consideration on how to respond to a difficult challenge for any liberal democracy: addressing how sensitive material can be properly handled in the civil justice system and how the work of the security and intelligence agencies can be properly scrutinised and those bodies held accountable.

The problem is this: in recent years, there has been an increase in the number and diversity of judicial proceedings that examine national security-related actions. In many cases, the facts cannot be fully established without reference to sensitive material, but this material cannot be used in open court proceedings without risking serious damage to national security or international relations. Difficulties arise both in cases in which individuals are alleging Government wrongdoing and in cases in which the Government are seeking to take Executive action against individuals who pose a risk to the public. The consequence is a Catch-22 situation in which the courts may be prevented from reaching any fully informed judgment on the case because they cannot hear all the evidence in the case. They cannot hear all the evidence because it would do serious damage to national security if the evidence was available to all parties and the public. The Government are left with unsatisfactory choices: they could risk damage to national security by disclosing the material or summaries of it, or attempt to defend a case with often large amounts of relevant material excluded. If the material cannot safely be disclosed, the Government may be forced to settle cases, either by paying compensation or by withdrawing a case brought against an individual.

Further problems are posed by applications for the disclosure of sensitive material being sought for use in other legal proceedings, particularly those overseas. The material has sometimes been generated by foreign Governments and shared with the United Kingdom Government on the most confidential of bases. In these cases, disclosure would endanger crucial international partnerships and put at risk the sharing of information, which is critical to Britain’s national security.

These are issues of the utmost importance, which the previous Government faced just as much as the current one do. The work of the security and intelligence agencies, and the sensitive information that they and foreign partners produce, is essential to prevent terrorist attacks, disrupt serious crime networks and make the case for Executive actions such as deportations and asset freezing.

The current situation is clearly unsatisfactory for everyone: the Government are unable to defend their actions; claimants are left without clear judgments based on all the relevant information; and the public are left with no independent judgment by the court, because it has not been able to consider all the evidence. So the justice and security Green Paper contains a number of proposals to address these extremely difficult issues, and takes account of recent Supreme Court judgments. The Green Paper seeks views on a range of proposals including: extending the so-called closed material procedures, such as those used already in certain civil contexts, to all civil proceedings; clarifying the law on the requirement to provide a summary of the sensitive material heard in closed procedures to the other party when the procedures are utilised; enhancing the existing special advocate system to equip it to best serve the interests of the individual affected by the closed hearings; and ensuring that security issues are properly considered in cases seeking disclosure of material for use in other legal proceedings, including proceedings overseas.

The Green Paper has a further vital goal: reviewing the existing oversight arrangements for our security and intelligence agencies and the wider intelligence community. Allegations of misconduct undermine public confidence in the work of the security and intelligence agencies. It is essential that we have a strong system for overseeing their activities.

In recent years the context in which the agencies work has changed significantly, with the conflicts in Iraq and Afghanistan and the terrorist attacks of 11 September 2001 and 7 July 2005. There have been revolutionary changes in the way that people communicate and use technology. Cyber-security is a major and growing issue, and the budgets and public profiles of the agencies have increased substantially. Given all these changes it is important to ensure that scrutiny of the agencies and the wider intelligence community is effective and credible in the eyes both of Parliament and the public.

The Green Paper makes proposals further to develop the status and remit of the Intelligence and Security Committee, the Intelligence Services Commissioner and the Interception of Communications Commissioner. The Intelligence and Security Committee—that is the existing Committee—has recommended a number of detailed reforms and these have formed the basis of several of the proposals in the Green Paper. Significant reforms that we are floating include changing its status to become a statutory Committee of Parliament, giving Parliament a greater say in ISC appointments and giving the ISC greater powers to require information from the security and intelligence agencies.

The document seeks views on the appropriate balance of arrangements across the overall system of oversight. The Government welcome scrutiny of their activities in every area, including national security. The Green Paper seeks ways to increase both judicial and other independent scrutiny of such matters to unprecedented levels without undermining protection of the public and whilst maintaining strong safeguards for the rights of individuals. Faced with difficult challenges, Governments are sometimes encouraged to suppose that they need to choose between security on one hand and the rule of law on the other, but that is a false choice. As I hope this Green Paper shows, we must have both. I commend this statement to the House.

[Sadiq Khan (Tooting) (Lab)]

First, may I thank the Secretary of State for Justice for giving advance sight of his statement this morning and for the briefing that was provided last week? We are supportive of the attempts by the Government to find a solution to the challenging situations that are encountered in sensitive legal cases. At the outset, I would like to take the opportunity to pay tribute to our security and intelligence services for the difficult and challenging work they do in keeping our country and citizens safe.

As the Secretary of State said, the work of the security and intelligence agencies and the sensitive information that they and foreign partners produce is essential to prevent terrorist attacks, disrupt serious crime networks and make the case for Executive action such as deportations and asset-freezing. It is important that we support them with this difficult task, and finding a sensible way of handling intelligence material in judicial proceedings is one way in which we can do that. The starting point for all of us is, I hope, restating the principle of open justice, which is a central tenet of our justice system. However, we also recognise that there are occasions when the use of classified intelligence can prove to be a challenge to maintaining open justice. This is compounded by the fact that we are in a globalised environment where the sharing of intelligence between international allies is crucial to ensuring our national security and interest overseas.

I agree with much of what the Secretary of State has said about the challenges we face in this area. I hope that he has had a chance to read the excellent piece in The Independent today written by my right hon. Friend the shadow Home Secretary on the importance of strong oversight for strong national security. It recognises that changes are required to ensure that scrutiny of the agencies and the wider intelligence community is effective and credible in the eyes of both Parliament and the public.

We need, as a matter of urgency, to bolster the safeguards and scrutiny mechanisms concerning issues of security and intelligence. I welcome the fact that the Secretary of State is proposing measures to enhance the powers of the Intelligence and Security Committee. We support the publication of a Green Paper: it is right and proper to foster a debate on what are challenging issues and to encourage key stakeholders to contribute their thoughts.

That being said, I want to take this opportunity to ask a number of questions of the Secretary of State. First, who will decide which cases are treated in the way that he sets out in his Green Paper? How many cases does he believe will be dealt with in the manner suggested and what advice has he received from special advocates and from others involved in the Special Immigration Appeals Commission? How will the overall system be scrutinised? Who will undertake the role of overseeing the whole system? Can the right hon. and learned Gentleman comment on the views of the intelligence and security agencies on these proposals? Are they supportive of what has been recommended in the Green Paper?

We are happy to work with the Government to increase both judicial and other independent scrutiny of the intelligence and security agencies without undermining the protection of the public and while maintaining strong safeguards for the rights of individuals.

[Mr Clarke]

I thank the right hon. Gentleman for his extremely constructive response, which is important. As I said, these problems were just as acute for the previous Government as they are for the present one, and with the mounting number of actions being brought in this field, the situation is getting steadily worse. I can assure the right hon. Gentleman that the Government hope to get cross-party agreement. This is a very green paper. We are genuinely open to suggestions as to how to tackle the issue.

It is very much in the national interest that we do that. As the right hon. Gentleman has just said, we intend to protect our system of open justice and at the same time to protect the security of our intelligence agencies and public safety. It is essential that we set aside the ordinary partisan debate and seek to produce a system whereby our public and our allies can be reassured that these matters will be handled sensitively in this country. People will share intelligence with us knowing that it will be used properly, will not be misused and will not be disclosed in areas where it would do damage. At the same time, the public will be able to find out more often the outcome of complaints and actions involving the security services, and have a judge take the matter to a conclusion. I welcome what the right hon. Gentleman said.

I have indeed read the article in The Independent produced by the shadow Home Secretary. I have to say that she, too, was briefed on Privy Council terms, I think. I am used to that. I have been briefed on Privy Council terms quite frequently in the past by members of the previous Government and did not always leap out to the nearest newspaper in order to give a reaction to the briefing that I had just had, but of course in the spirit of bipartisanship that I have just proclaimed, I will take her views seriously. She is trying to find reasons for disagreeing with us on both sides of the argument, but sooner or later she will decide whether we are being too draconian and protective or too indifferent to individual liberties. I look forward to further instalments as, no doubt, does my right hon. Friend the Home Secretary.

The first question that the shadow Justice Secretary asked is key. He asked who will decide that the closed material procedure is the right way to proceed in whatever civil action we are talking about. In the first case it will be put to the court by the Secretary of State, but the final decision will rest with the judge. That is absolutely key. The special advocate is quite entitled to challenge the fact that this evidence is being given under the closed procedure, and the judge will have to be satisfied that on what he or she knows of the claim, it is indeed reasonable to proceed on that basis and there is indeed a threat to national security. That is a considerable reassurance.

I do not know how many cases there will be. The present pattern is that the numbers of cases is steadily increasing. It is becoming fashionable, almost, to start challenging the courts in encounters of any kind with the intelligence agencies. I do not dismiss all these actions, but there are about 30 coming through the pipeline now, so it is urgent that we address the matter.

Accountability is like the ordinary accountability for the court process, but the ISC will no doubt play a part in seeing how the proposal is working and its impact on the Security Service. On the Intelligence and Security Committee’s views on its own reform, as I have already said, we have based many of our recommendations on what the Committee itself has said. It is my understanding—I may discover more clearly in a moment, if any of my right hon. Friends intervene—that the ISC is broadly supportive of where we are going. We are undoubtedly strengthening the Committee. It is being made a Committee of Parliament. It will be accountable to Parliament as well as to the Prime Minister, and it will have increased powers if our proposals gain favour in the course of the consultation.

Oral Answers to Questions

Debate between Lord Clarke of Nottingham and Sadiq Khan

Tuesday 13th September 2011 Commons Chamber

[Sadiq Khan (Tooting) (Lab)]

The Secretary of State has, on a number of occasions, said and written that he intends to reduce the prison population significantly over this Parliament. As he has confirmed, 16 months into the Parliament, the prison population is at a record high. It was also at a very high level before the riots. As he is aware, the prison estate is struggling to cope. Prison officers and probation officers are increasingly stretched, and prisoners are spending even longer times idling in their cells rather than engaged in productive activities such as work. In the light of that, is he still committed to reducing the prison population significantly, and if so, how will he do it in a way that puts public protection first?

[Mr Clarke]

I do not think I have ever said that. I have made it quite clear that the prison population responds to demand. I did not anticipate the riots, but we have to have a prison population that can cope with the judgment of judges and magistrates who send us a number of people who have to be dealt with and punished in that way. I have said that I expect to have a more stable system, but I cannot understand why everything possible was done under the last Government to push up the total number of prisoners but to let them all out earlier, so that the system looked tough but actually turned into something of a shambles. I am also hoping that prison can be made somewhat more effective, and that it might be better at putting people to work, getting them off drugs, tackling their mental health problems and getting fewer of them to go on to commit more crimes—

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Clarke of Nottingham and Sadiq Khan

Wednesday 29th June 2011 Commons Chamber

[Sadiq Khan (Tooting) (Lab)]

I usually take all interventions, but today I shall try to observe your recent stricture on that, Mr Deputy Speaker, as I know that many colleagues wish to discuss the Bill.

The Government’s approach to criminal justice is in tatters. We have a hotch-potch that does nothing to win the confidence of victims, of people in the justice system or of the public at large. This Bill is controversial as much for what is absent as for what has found its way in. Key policy areas that were consulted on are absent and others are to be the subject of further review, while there are some clauses on issues that were not consulted on at all. The Lord Chancellor knows as well as I do that within weeks, if not days, of this Bill moving to Committee, there will be a flood of new amendments and new clauses. After 13 months, three Green Papers and three consultations, there is no excuse.

Last week, the Prime Minister unveiled the right hon. and learned Gentleman’s legislation in his absence. A number of eye-catching proposals were announced on squatting, self-defence and knife crime. The favourable coverage they received was precisely the Prime Minister’s aim. Suddenly, because of the Prime Minister’s last-minute intervention, the Bill was spun as being tough on crime. Even the words “punishment of offenders” found their way into the name of the Bill, but we must be clear from the start: the clause on knife crime is still a Conservative broken promise. It is not what the party promised in its manifesto. The new offence of aggravated knife possession carries a mandatory six-month sentence, but applies to a much narrower category of cases of those caught carrying a knife. The offence of aggravated knife possession is using a knife to threaten someone, and that is already a crime; the sentencing guidelines already recommend a minimum sentence of six months. It is not even properly mandatory. A court will not have to hand down the sentence; it will be up to the judge to decide, given the circumstances of the case or the offender. Knife crime is a persistent and worrying concern, and it impacts in particular on young people and the disadvantaged. It is unclear how this hollow proposal will help communities blighted by knife crime.

Two other headline grabbers—squatting and self-defence against burglars—are not even in the Bill, but as the Justice Secretary has admitted today, the provisions on self-defence will not be a new law; they are just a reiteration of the existing law. This is yet another chapter in a rather depressing story that has been repeated since May 2010: a string of broken promises on criminal justice. Before the election, there was a commitment to match Labour’s prison building programme. Instead, spend has been slashed to almost zero. The Tories promised minimum and maximum sentencing, but that has now also been ditched, and the electorate were promised that those caught carrying a knife would face the presumption of jail, yet what we have been presented with is entirely different.

Let me also give an accurate account of our record. The Justice Secretary inherited levels of crime that were 43% lower than in 1997; crime went down under Labour. He inherited a system with a greater focus on diversion for those with mental health problems and drug dependencies. He inherited a capital programme upgrading and expanding our prison estate. He inherited innovative payment-by-results schemes, including the one he now boasts about in Peterborough. Reoffending, particularly among young people, fell under Labour, thanks to investment in effective intervention programmes now threatened by his Government. This Bill risks all that progress.

That has generated an impressive coalition opposed to the plans, from the judiciary, victims groups, legal organisations, charities that act on behalf of some of the most vulnerable in society, and some of the Justice Secretary’s own party’s Back Benchers—but not, I note, from the Liberal Democrat Benches. Briefing note after briefing note from organisations as diverse as Scope and Justice demonstrate that the Prime Minister’s perceived rescue of the justice Bill is fooling no one.

I support penal reforms, but these are the wrong reforms: carelessly thought out, badly framed, confusingly argued, weakly handled and grossly under-resourced from the start. It will be communities around the country that suffer.

[Mr Kenneth Clarke]

I am glad to hear that the right hon. Gentleman is in favour of penal reform, but he has not, so far as I am aware, made a single suggestion on that. Will he give us one or two examples of the liberal reforms that he has in mind?

[Sadiq Khan]

The right hon. and learned Gentleman will be aware of our progress in relation to mental health, following the Bradley report, which he has now agreed to follow with a reduced budget. He will also be aware of the work done by Corston on diverting women away from prison, and of payment by results. He knows that he has under-resourced the work that we began, and he is putting our strategy at risk.

Shambolic, last-minute changes to the Bill have left a £140 million black hole in the Justice Secretary’s plans. The Prime Minister has said that that money will need to be found within the Ministry of Justice budget, and the Justice Secretary admitted this morning that he is not sure where he will find it. The House needs to know the exact details. The progress of the Bill depends on knowing where that money will come from, and what implications that might have on other spend.

Why do we have this problem? We have it because the Justice Secretary simply failed to argue his corner with the Treasury. He boasted that he did not wish to be involved in a “macho contest” with Cabinet colleagues over who could have the smallest budget cut. The figures are testimony to that: his budget cut of 23% is one of the biggest in Whitehall. As a result, that is how he justifies his ill-thought-out policies. Cuts to prison, probation and the legal aid budget all stem from his lackadaisical attitude towards the Treasury. He needs to realise that he is no longer the Chancellor of the Exchequer, but the Lord Chancellor. His justice policy is retrofitted around his prison population reduction target, which is in turn driven by the 23% budget cuts. Our justice system deserves a better advocate.

Oral Answers to Questions

Debate between Lord Clarke of Nottingham and Sadiq Khan

Tuesday 28th June 2011 Commons Chamber

[Sadiq Khan (Tooting) (Lab)]

Last week the Prime Minister announced the Justice Secretary’s new law on self-defence. However, there is no mention of it in the Green Paper, the Government response or the 119-page Bill. Is the Justice Secretary aware that the Director of Public Prosecutions is on record as saying that the current guidelines, which permit people to use reasonable force to protect their property, work well? Will he spell out how his proposal differs from the current law?

[Mr Kenneth Clarke]

We intend to clarify the law on self-defence by amending the Bill at the earliest possible stage. We are finalising the drafting of that. Essentially, we are clarifying the law. It will still be based on a person’s undoubted right to use reasonable force when they choose to defend themselves or their home against any threat from an offender.

Sentencing Reform/Legal Aid

Debate between Lord Clarke of Nottingham and Sadiq Khan

Tuesday 21st June 2011 Commons Chamber

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

With permission, Mr Speaker, and further to the written ministerial statement I laid in the House earlier today, I would like to make a statement.

Last autumn, the Government launched two consultations on far-reaching plans to reform punishment, rehabilitation and sentencing of offenders, and on legal aid in England and Wales. Today I have laid before Parliament the government’s responses to those consultations. I will also introduce the Legal Aid, Sentencing and Punishment of Offenders Bill to give effect to the measures we are taking forward that require primary legislation.

Protecting the public from crime and punishing lawbreakers are the most fundamental responsibilities of the state towards its citizens. The sad truth is that after 13 years of government, over 20 criminal justice Bills, more than 3,000 new criminal offences and an explosion in the prison population, Labour left the system in crisis. Most of our prisoners spend their time behind bars idling in their cells, with ready access to drugs. A bigger scandal still is our reoffending rates, which are straightforwardly dreadful. Within a year of leaving jail, half of offenders will have been reconvicted of further offences. The same people cycle round the system endlessly, committing more crimes against more victims. The best way to reduce crime is to reduce reoffending, and that remains the central feature of our programme of radical reforms.

Prisons must be places of both punishment and reform. Today I can confirm that we plan to deliver a full working week across the prison estate. We will legislate to extend powers to use money earned by prisoners to support victims. We have never proposed that community sentences should replace prison sentences, but we will introduce tougher, properly enforced community punishments whereby offenders work longer hours, unpaid, at least four days a week.

Drug abuse lies behind much, if not most, criminality in this country. It is not acceptable that drugs are too readily available in prison. We are taking forward plans to reduce addiction across the prison estate by improving security and introducing drug-free wings in jails. We must tackle other root causes of criminality, particularly alcohol addiction, mental illness and a lack of skills, but we will ensure that we put taxpayers’ money only into rehabilitation programmes that actually work.

Public confidence in the criminal justice system is unacceptably low. That is why we want to take forward plans for a new offence, with a mandatory minimum prison sentence of six months, for adults who use a knife to threaten and endanger. We will also consult on proposals to criminalise squatting, and we will bring forward legislation to clarify the law on self-defence. In addition, I can confirm our intention to improve the use of remand and reduce the number of foreign national prisoners in our jails.

Discounts for early guilty pleas have been part of the criminal justice system for decades, for good reason, and we consulted on changes to that system. Personally, I was particularly impressed by the representations of the senior judiciary and other criminal justice experts who said that increasing the maximum discount on offer for a guilty plea at the earliest possible stage might result in the sentence served being too short in some serious cases. I was hoping to address that problem, and I considered doing so by introducing a greater degree of judicial discretion, but we could not make that work. We have therefore decided to retain the present system.

The consultation also produced strong opposition to the indeterminate sentencing framework. It was introduced by the last Government and sold as a way of protecting the public from a small number of the most dangerous offenders, but it has never worked as Parliament intended. It has created a flawed system in which thousands of offenders have already served their normal sentence or tariff, but no one can predict when or if they might ever be released. That is why, as the Prime Minister confirmed this morning, we are reviewing so-called indeterminate sentences of imprisonment for public protection, with a view to replacing them with a more sensible, tough system of long, determinate sentences. That will see judges handing down life sentences in a greater number of very serious cases, including mandatory life sentences for the most serious repeat offenders. Serious sexual and violent offenders will spend at least two thirds of their sentence in prison, rather than being released halfway through. We intend to return to the best aspects of the system before IPPs were introduced in 2005 by new Labour.

I turn to legal aid reform. We have much the most expensive system in the world, except for Northern Ireland, costing £39 per head of population. That compares with, for example, £8 per head in New Zealand, a country with a broadly similar legal system. The last Government consulted on the subject more than 30 times since 2006, and still left us with the mess that we now have to tackle. In some cases the system encourages people to bring issues before the courts when other solutions might be better. In others it enables people to pursue litigation that they would not contemplate were they paying for it out of their own pocket.

Following careful consideration of more than 5,000 responses, I am bringing forward proposals that I believe will ensure access to public funding in the cases that most require it, encourage early resolution of disputes instead of unnecessary conflict and ensure much better value for money for the taxpayer.

I can announce that we will retain legal aid in 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. In response to consultation, that will include strengthened provision for victims of domestic violence and for children at risk of abuse or abduction, and the retention of legal aid for special educational needs cases.

Legal aid will no longer be routinely available for most private family law cases, clinical negligence, employment, immigration, some debt and housing issues, some education cases, and welfare benefits. It will also no longer be available for squatters resisting eviction.

We have also decided not to abolish, as we originally proposed, the current capital disregards for pensioners and for equity in the main home in assessing an applicant’s eligibility for legal aid. We will not now introduce a £100 contribution from capital for those assessed as having £1,000 or more disposable capital.

All that amounts to a balanced and sensible package of reforms of the kind that the Government were determined to achieve when we published our proposals and started to consult on them. Our plans mean a return to common sense in the justice system. On legal aid, the overall effect will be to achieve significant savings while protecting fundamental rights of access to justice. On sentencing, we will deliver punishment, protection and a renewed focus on breaking the cycle of crime and reoffending. I look forward to debating the proposals on Second Reading and during the Bill’s subsequent stages.

[Sadiq Khan (Tooting) (Lab)]

I thank the Justice Secretary for advance sight of his statement.

Our justice policy should be about protecting the public, punishing and reforming offenders, being on the side of the victim and bringing crime down. That underpinned our record in government, which led to a 43% fall in crime, reductions in reoffending and serious improvements in youth offending rates. However, the Government demonstrate that that is not what matters in their approach to crime and justice. Instead, it is about cutting cost, despite the impact it could have on communities across the country.

The Government have seen sense and taken heed of opposition to cost-driven proposals to reduce sentences by 50% on early guilty pleas. A coalition of victims, the judiciary, justice groups, the Sentencing Council and victims groups rightly questioned the motivation and effectiveness of that policy. Let us be clear: the policy had been agreed by the Cabinet. I asked the Justice Secretary during the Opposition day debate on sentencing whether the Prime Minister agreed with him. His response was:

“This was an entirely collectively agreed policy”.—[Official Report, 23 May 2011; Vol. 528, c. 672.]

It is therefore no good No. 10’s distancing itself from it. In oral questions last month, the Justice Secretary said that the policy would survive the consultation. Of course, some Government Members voted against our motion—although some had the sense not to—which opposed the proposal on 23 May.

Will the Justice Secretary outline why the Prime Minister ditched the proposal when the Government were so wedded to it only a matter of weeks ago? When was the decision made to change the Bill’s title from the Legal Aid and Sentencing Bill, as it was called up until late last week, to the Legal Aid, Sentencing and—I like this—Punishment of Offenders Bill? What did he hope to achieve by tinkering with the title?

We know from the impact assessment that was provided with the Green Paper that removing the option of remanding offenders in custody for certain cases could save £50 million and 1,300 prison places. I note that that proposal remains. Will the Justice Secretary outline the view of the Magistrates Association on the proposal and say whether he believes that the Police Federation and the Association of Chief Police Officers support the policy?

In the past 13 months, we have seen broken promises on minimum and maximum sentencing, prison building and knife crime. Today the Justice Secretary proposes a new offence of a mandatory custodial sentence for knife possession in aggravated circumstances, with a minimum sentence of six months. Even that proposal is less than that promised to the electorate in the Conservative manifesto, which stated that

“we will make it clear that anyone convicted of a knife crime can expect to face a prison sentence”.

That is still a broken promise, and tinkering with the Bill’s title will not change that.

On indeterminate sentences for public protection, I have consistently questioned the Justice Secretary on how he will ensure the safety of our communities when considering which offenders should be released and when. Again, the impact assessment helpfully tells us that financial savings will be “sizeable”. From that, it is obvious that the focus is saving money, not what is in the public’s best interests. Today we find that the Justice Secretary is to undertake an “urgent review” of IPPs with a view to replacing them. Will he explain to the House why he needs another review when he has had 13 months, a Green Paper and a consultation that he has consistently described as an opportunity to review IPPs?

How does the Justice Secretary reconcile losing thousands of front-line, experienced prison and probation staff with the desire to increase the numbers of offenders diverted into specialist drug, alcohol and mental health facilities, and how does he reconcile that with more prisoners working, because they will clearly need more supervision?

The legal aid proposals have been roundly criticised across the board as devastating social welfare law—[Interruption.] Has the Justice Secretary—[Interruption.]

[Sadiq Khan]

I am grateful, Mr Speaker.

As I was saying a moment ago, the proposals on legal aid have been roundly criticised across the board as devastating social welfare law. Has the Justice Secretary seriously considered the alternative funding options proposed by, for example, Justice for All? Does he accept that his changes will have a huge impact on the viability of many law centres, citizens advice bureaux and high street practices up and down the country that do an enormous amount to provide access to justice for some of our most deprived citizens? The Prime Minister claims that the whole point of a Green Paper is to listen and to be ready to change one’s mind, so why have the Government made no substantive changes to their proposals on social welfare legal aid?

This morning the Prime Minister said that savings that would have been made by the 50% sentence proposals will be found elsewhere in the Ministry of Justice budget. Can the Justice Secretary explain exactly where those savings will be made and when?

We are seeing cuts to the police and cuts to prison staff and probation trusts, but where is the strategy to cut crime? The Government’s policies on crime and justice are a shambles. We have always known that we cannot trust the Tories on the NHS, but now it seems that we cannot trust the Tories on law and order either.

[Mr Clarke]

Well, first of all I can confirm what the right hon. Gentleman says: the proposals that I presented for consultation and the Green Paper were the proposals of the Prime Minister, the whole Cabinet and I, and the proposals that I am putting forward today in response to the consultation and the comments that we invited are the responses of the Prime Minister, the whole Cabinet and I. Indeed, we had a discussion at Cabinet this morning. We run a collective Government.

I remind the right hon. Gentleman that we carried him with us on our Green Paper. His reaction to what the Prime Minister and I said at the time—it is all accessible in Hansard—was that this was a

“perfectly sensible vision for a sentencing policy, entirely in keeping with the emphasis on punishment and reform that Labour followed in government”.—[Official Report, 7 December 2010; Vol. 520, c. 171.]

We carried him with us then, and I have hopes that if he looks at the consultation and listens to the arguments, we will carry him with us again. If he wants to turn and change his mind, he is free to do so.

Early guilty pleas were a genuine attempt to help victims and witnesses, who are mightily relieved if they hear that the accused decides to plead guilty. Had they worked, they would have saved a very great deal of money and time for the police service and Crown Prosecution Service, as well as for prisons. I do not know quite what the right hon. Gentleman’s view on this is, but I paid particular regard to the legal opinions that I was getting from serious members of the judiciary and others. The arithmetic just went too far in some serious cases. A week or two ago, I said that I thought the proposal would survive, because I thought that by introducing some judicial discretion, I could solve the problem, but I could not. For that reason, the Government are sticking with the present system. That is what consultation is all about.

We have consulted on our remand proposals, and we are pushing on with them. Carrying on with a system whereby people are refused bail when everybody knows they will not be sent for a custodial sentence if they are convicted at their final appearance is simply not the best use of a very expensive place in our prison system. It is cheaper to put our prisoners in the Ritz—and many of them would like to be there—but while the public prefer them to be in prison, we will keep them in prison. Nevertheless, the remand proposals are, I think, extremely sensible.

The proposal on knife possession has been made to send a message about its seriousness. I do not think that the right hon. Gentleman expressed an opinion on it, but I would advise him to support this perfectly sensible measure. On IPPs, which I have said we are minded to repeal and replace with a better version of what preceded them, I refer him to the consultation and the attacks on IPPs from sensible people. David Thomas QC, who writes the bible on sentencing so far as criminal law practitioners are concerned—his book on sentencing is the book for those practicing in the courts—described IPPs as an “unmitigated disaster”. We are carrying out a review to decide what will replace them by way of a strong system of determinate sentences that protects the public.

On legal aid, I could rapidly find a quotation from the right hon. Gentleman saying that if the Labour party was in government, it would be cutting legal aid. He has nothing to say on legal aid that challenges the case I made a moment ago. On citizens advice bureaux and other forms of general advice, I hope to be able to say something on Second Reading—I am making advances, but we will see how much we can come forward with. We think there are better ways of resolving problems, and I agree that CABs and other voluntary bodies sometimes provide better advice than adversarial lawyers.

In commenting on the probation service and other matters, the right hon. Gentleman asked where the savings are coming from. I have held protracted negotiations with the Chief Secretary to sort out my Department’s finances, in the light of some of the problems left behind. We have now resolved all those problems. Over this period we will be making £2 billion of savings a year on the total expenditure of my department, and we are looking elsewhere for another £100 million. We are not cutting any particular area but achieving efficiency, and half of that will come from administrative savings. If we have further policies to find the money we are not saving, I will come forward with them. I prefer to proceed with proper policies in joined-up writing upon which I have consulted, and got the approval of, my colleagues, and after that to come to the House. I am now considering how to ensure that the final touches to the major savings we are making in my Department can be achieved in the light of this consultation.

Sentencing

Debate between Lord Clarke of Nottingham and Sadiq Khan

Monday 23rd May 2011 Commons Chamber

[Mr Clarke]

I do not agree with that. It is not evidence; there are a variety of opinions. However, it is a perfectly good question. We have got down to the fact—I can be precise—that the difference appears to be 17%. That is what we are arguing about. I do not think that anybody in this House has any principled difference whatever on the policy.

The present system is not working effectively, so we have gone out to consultation on proposals that might improve the encouragement offered to people to plead guilty earlier. In over 10,000 cases listed, the trial stops right at the courtroom door; judge, jury, victims, police officers, probation officers are all amassed for a full trial, and then at the last minute the person pleads guilty. Those long delays are wrong, not only because of the cost to the police and the waste of time of everybody attending for any purpose connected with the trial, but because victims and serious witnesses have to endure the uncertainty of it all as they prepare for the ordeal of reliving the trauma of what are sometimes very harrowing experiences.

I hope that the right hon. Member for Tooting will forgive me for saying that saving a bit of cost to the police, the Crown Prosecution Service, Her Majesty’s Courts and Tribunals Service and the public purse might be advantageous, although I know that it was not new Labour’s approach. If we could get more of those involved in these cases to plead guilty earlier, an awful lot of victims would feel that they have been better treated by the system.

[Sadiq Khan]

The right hon. and learned Gentleman has enthusiastically set out the case for why he believes an increase in the discount of up to 50% should be carried through. Does the Prime Minister agree with him?

[Mr Clarke]

This was an entirely collectively agreed policy on which we went out and consulted, so the answer is yes, of course. The Prime Minister runs a scrupulously collective Government, and I am an extremely loyal Minister much used to collective Government. I do not think the right hon. Gentleman has much experience of collective Government, but I commend the system to him—and to the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper), who was of course fiercely embattled on one side in the previous Government.

We agreed that this was a reasonable proposition on which to consult because, as I said, the system that we inherited is not achieving the benefits that the previous Government presumably thought it might achieve when they set it up.

[Sadiq Khan]

I thank the right hon. and learned Gentleman for generously allowing me a second bite of the cherry. He has correctly said that the Prime Minister signed up to the consultation, which ended on 4 March this year. He talked about collective responsibility. Can he confirm that last Tuesday morning the Cabinet Committee signed off on this proposal?

[Mr Clarke]

Even in a collective Government, one does not analyse what happens in Cabinet Committees before coming to one’s final conclusions. I am not going to disclose the contents of the Cabinet Committee’s proceedings for at least 20 years. The right hon. Gentleman will not be surprised to know that we do go to Cabinet Committees, but we have not yet finished our consultation process. [Interruption.] He is persisting, so let me repeat what I asked earlier: how many days ago did he and the Leader of the Opposition decide that they were going to run with this? Was it by any chance connected with the slight flurry of excitement in the media at the end of last week? He and his party, and his Front-Bench team, have not had a policy on this or any other subject to do with criminal justice for the past nine months. Let him study the processes that this Government follow, and no doubt they will guide him if ever he is lucky enough to get into great office.

The current system does not get enough early pleas and is a complete waste of resources. The police, the Crown Prosecution Service and others in the legal system use up millions of hours preparing cases that never make it beyond the door of the courtroom. That has to be changed. The Director of Public Prosecutions, Keir Starmer, has called for

“a reorientation of our approach so that guilty plea cases can be dealt with as swiftly as possible, leaving us to devote our valuable time and resources to cases that really require them. That way we may just begin to tackle the delays that still bedevil criminal justice.”

We are still considering the responses to our Green Paper proposals to increase the maximum discount for the very earliest pleas to one half, and to then have a taper, to encourage the earliest plea and disincentivise the late plea. We received many calm and reasoned responses over many months. There was no loud opposition at all to the principle of the proposal until last week. The rush for this debate is slightly pathetic and slightly comic. I do not know where it came from. I have a feeling that the Leader of the Opposition, not yet having decided what he was for, was wandering the streets looking for a passing bandwagon and prodded the right hon. Member for Tooting into putting down a motion.

Some people are claiming that the proposal is simply to reduce the sentences available for criminals, and that is worrying some of my colleagues. As I began by emphasising, it is no part of our reforms to reduce sentences, the protection of the public or the punishment for serious crime. That is not what the Government or I are about. In response, I say very clearly that judges will continue to have discretion in setting the appropriate sentence in individual cases. I will not shorten the length of sentences available to them in any kind of criminal case. I do not think that the Opposition contest the principle, as has been emphasised. I do not understand the argument that they would be in favour of my reforms if they were not combined with saving public expenditure. That is not a compelling point. Reforms to the efficiency and effectiveness of the system are required.

Oral Answers to Questions

Debate between Lord Clarke of Nottingham and Sadiq Khan

Tuesday 17th May 2011 Commons Chamber

[Mr Clarke]

I do not think any of us know whether the number is increasing. As far as I am aware, there have been two super-injunctions since the John Terry case, but the word “super-injunction” gets used very widely. I realise there is increasing concern, however. I personally have strong views on the secrecy of justice. We have a tradition of open justice in this country. Plainly, I believe in the freedom of the press and freedom of speech in this country, even when it is sometimes exercised provocatively, as it is supposed to be in a free country, but there are also areas where an individual is entitled to have their privacy protected. The time is certainly coming when the Government are going to have to look at this matter, although we will probably wait until we have had the report of the Master of the Rolls, who is looking rather more closely at the procedural aspects.

[Sadiq Khan (Tooting) (Lab)]

The Lord Chancellor is right to remind us that it is important that we get the balance right between freedom of speech and an individual’s right to privacy, but he will be aware of the public disquiet about the use of the anonymity injunction or super-injunction, both in terms of its abuse—or alleged abuse—and its circumvention, for example by the use of Twitter. As he has said, the current situation is not satisfactory, but the Master of the Rolls is simply looking at the process, rather than the substance. What does the Lord Chancellor intend to do about that, so as to provide leadership on this issue?

[Mr Clarke]

First, I agree that the Master of the Rolls is looking at process, and I am sure what he says will be very valuable. As I have said, we will wait until he reports back before starting to take a proper look at the issue, but I think the Government will now have to study it and decide whether there is a case for intervening. There will never be unanimity on all these judgments, precisely because it is so difficult to balance the competing parts of the convention on human rights and the competing interests involved. There have been cases where we have certainly needed to know—such as where people are disposing of waste material by dumping it off the coast of Africa. That is easy in one direction, but in the other, every time I watch a football team I do not think I necessarily need to know about the sex life of each of the players.

[Sadiq Khan]

As is often the case, I find myself agreeing to a large extent with what the Lord Chancellor says, but let me say this. Super-injunctions are not granted by European judges using European law; they are granted by British judges using British law, and Parliament has supremacy over that law and those judges. If clarity and guidance is required and suitable, and bearing in mind the fact that we have the draft Defamation Bill and the forthcoming justice Bill, why does he not just say that he will use those vehicles to provide clarity and guidance?

[Mr Clarke]

We will consider these matters, and it is probably right that Parliament passing a privacy Act might well be the best way of resolving the issue, but we need to get somewhat nearer a consensus and to know exactly how we are trying to strike the balance before something is submitted for the judgment of Parliament. We may well not have to wait until the end of a long, controversial process such as that, and instead find some other way of tackling the issue, but we are considering it and we will come back with proposals in due course. If there were debate on a privacy Bill, there would be an interesting range of opinions even in Parliament, but I have not met many people yet who seem to have the perfect answer as to how to get the balance right.

--- Later in debate ---

[Mr Clarke]

I have not seen that case, but I agree that it sounds like a rather sweeping interpretation of the right to family life, which is what the European convention confirms. If my hon. Friend will let me have the details, I will inquire into the case to see how it reached such a startling conclusion. It is possible that the report that he read, in whichever newspaper he read it, did not bear a very close resemblance to what actually occurred.

[Sadiq Khan (Tooting) (Lab)]

The Lord Chancellor has announced plans—this was raised by the previous Lord Chancellor—to reduce by half the sentence for an offender if he or she pleads guilty. In a remarkably flippant response, his junior Minister, the Under-Secretary of State for Justice, the hon. Member for Reigate (Mr Blunt), asked us to pause and reflect on the thoughts and views of a victim of rape. It is not only Labour MPs who think this is nonsense, nor only judges or victims groups: the Lord Chancellor’s own Commissioner for Victims and Witnesses says that it is bonkers. Will the right hon. and learned Gentleman reconsider?

[Mr Clarke]

We are going to give the outcome of our consultation shortly, but I think that that proposal is likely to survive. The fact is that we have always had a reduced tariff for early guilty pleas in this country. It always startles the public when they discover that this has underlined our sentencing policy for many years. It is true that we are thinking of putting up the reduction to a half. It makes an enormous difference to costs, police time and the involvement of unnecessary preparations for trial if everybody leaves guilty pleas to the last possible moment. As my hon. Friend the Under-Secretary rightly said, victims and witnesses are put through an ordeal if they are preparing for a trial where they expect to be accused of lying because the man has not been induced to plead at an early enough stage. Those are the considerations that lay behind this proposal.

Prisons Competition

Debate between Lord Clarke of Nottingham and Sadiq Khan

Thursday 31st March 2011 Commons Chamber

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

With permission, Mr Speaker, I should like to make a statement.

The House will be aware that in 2009 my predecessor announced a competition for the management of five prisons: Her Majesty’s prisons at Birmingham, Buckley Hall in Rochdale, Doncaster and Wellingborough, and the new prison, currently called Featherstone 2, near Wolverhampton, which is due to open in 2012. I am now able to announce the results of that competition process.

Let me remind the House that these prisons were selected by the right hon. Member for Blackburn (Mr Straw) for a variety of reasons. Birmingham and Wellingborough are currently managed by the public sector and were chosen after being identified by the National Offender Management Service as performing poorly. Buckley Hall and Doncaster are establishments that have been previously competed for and their contract is due for renewal. Buckley Hall is currently managed by the public sector and Doncaster is currently managed by Serco.

During the preparations for the bid it became apparent that competition could not produce improvements at HMP Wellingborough without significant capital investment to secure its long-term viability. In the current financial climate, this is clearly not a tenable proposition, so I took the decision to remove it from the competition process. HMP Wellingborough will continue to be managed by the public sector, and will need to deliver approximately 10% efficiency savings, in line with other public sector prisons, over the next four years.

I am now able to announce the results of the four remaining prison competitions. HMP Birmingham will be run by G4S plc. HMP Buckley Hall will be run by HM Prison Service. HMP Doncaster will be run by Serco Group plc. Featherstone 2 will be run by G4S plc. The new contracts will be effective from October 2011 for the prisons at Birmingham, Buckley Hall and Doncaster, and from April 2012 for Featherstone 2. I would like to put on record my thanks to all the bidders for contributing to what has been a challenging contest, which will secure significant quality improvements and savings at all the establishments involved.

The Government are committed to delivering reform in our public services. This process shows that competition can deliver innovation, efficiency and better value for money for the taxpayer, but also that it can do so without compromising standards. Before the bids were evaluated for anything else, they needed to demonstrate their fundamental ability to provide safe and secure custodial services. I can confirm that over the spending review period the new contracts will deliver savings of over £21 million for the three existing prisons. In the same period, the new Featherstone 2 prison will be delivered at £31 million less than the costs originally approved by the previous Government. Cumulative savings over the lifetime of the contracts for the three existing prisons are a very impressive £216 million.

But public protection is not just about how we manage prisons in order to punish people. It is also about how we achieve genuine and long-lasting reductions in crime by cutting reoffending. I am therefore particularly pleased to be able to announce that, for the first time, the contract award for HMP Doncaster will include an element of payment by results in reducing reoffending. Payment by results is central to our rehabilitation reform plans, because it means that we can concentrate on paying for what works to reduce reoffending. The current system funds services, but not outcomes. Providers of services face few consequences if what they offer does not succeed in cutting reoffending, and little reward if they do succeed in cutting reoffending. Payment by results looks to change this by rewarding performance against the outcomes specified in a contract. In the Green Paper I outlined plans to develop this policy further and commission at least six new pilots for payment by results. The contract for HMP Doncaster is an important first step towards fulfilling this commitment.

The new contract price for HMP Doncaster will in itself deliver significant annual savings. In addition, however, the introduction of payment by results means that 10% of the contract price will be payable only if the operator reduces the reconviction rates of offenders a year after they are discharged from the prison by five percentage points. If they achieve this, the contract will, of course, have significantly reduced crime, and for a cost of at least £1 million below what we currently pay. I regard this as a win-win approach. It translates to savings for the taxpayer, lower reoffending rates and a return for the service provider that improves their performance.

I know that Members on both sides of the House recognise the benefits of effective competition—at least I hope they still do. Today’s announcement shows it has a significant role to play in delivering value for money, better outcomes and broader reform. I encourage providers from any sector to rise to the challenge. The public are entitled to expect safety and security and better results to go hand in hand with efficiency and innovation. I commend this statement to the House.

[Sadiq Khan (Tooting) (Lab)]

I thank the Secretary of State for advance sight of today’s statement, and I welcome its tenor and how he delivered it. He will be aware that our policy was and is based on what works, rather than dogma. During our time in government, nine new private sector prisons were provided and three new establishments had been opened and run by the public sector, and I recognise that they have played a successful role in our prison system. It is right that we began the market testing that he is reporting on today.

I wish to ask the Justice Secretary a number of questions arising from his statement. First, he refers to the fact that during the bid preparations it became apparent that competition could not produce improvements at HMP Wellingborough without significant capital investment, so may I ask him what plans he has for such investment at Wellingborough prison? How much will be invested, and over what period? Does he understand the frustration of hard-working prison officers and other staff working in public sector prisons that need capital investment when they are compared with prison officers and other staff in newly built or refurbished private prisons? Can he confirm that the decisions on the Birmingham and Doncaster prisons are no reflection on the hard work of prison officers and staff there?

May I echo the Justice Secretary’s comments about the importance of delivering efficiency, innovation and better value for money for the taxpayer without compromising standards? Indeed, he has referred to the £216 million that will be saved as a consequence of this process, which was begun by the Labour Government. Does he therefore accept that the savings he is now championing are actually the fruits of the previous Government’s attempts to improve the efficiency of the Prison Service? Can he confirm that he will reinvest that money in the Prison Service?

The Justice Secretary’s announcement on payment by results is interesting and welcome. He will be aware that we began piloting payment by results in Peterborough, where we were trying to reduce reoffending. However, that is a pilot scheme and we recognised that lessons would need to be learnt before any full roll-out. What lessons have already been learnt from the yet to be completed Peterborough pilot? Can he confirm that Doncaster is a pilot and he will wait to see the results before the approach is rolled out further? His statement referred to the criteria for payment by results. He will be aware that 20% of offenders reoffend within three months of leaving prison and that 43% do so within a year, so will he explain further the criteria by which he will judge “if the operator reduces the reconviction rates of offenders a year after they are discharged from the prison by five percentage points”?

Finally, I wish to ask the right hon. and learned Gentleman about the workers in the prisons that he listed. Staff at HMP Birmingham and HMP Doncaster will understandably be worried about their future in these uncertain times. Does he anticipate any redundancies as a result of his decision? Can he confirm to the House that public sector terms and conditions will be protected under Transfer of Undertakings (Protection of Employment) Regulations arrangements? In addition, he will doubtless have seen the newspaper reports of contingency planning by his Department to deal with any industrial action that might result from his announcement. We have read that troops have been put on alert. Will he confirm whether that is the case? May I ask what discussions he or his Prisons Minister have had with the Prison Officers Association and others who represent prison staff? Does he agree that it is crucial that he and/or his Prisons Minister should meet the appropriate representatives today and begin a dialogue to avoid the sort of speculation reported in the media from becoming a reality?

[Mr Clarke]

I am grateful to the right hon. Gentleman, because I was interested to see whether the Labour party was in the position that I thought it was going to be in, and I am reassured by what he said. As he said, putting competition into the system in order to ensure the best standards at the lowest cost to the taxpayer is a continuous policy, and things have moved on an awful long way since I was Home Secretary 20 years ago, when privately managed prisons were a highly controversial subject. We got the first one under way at Wolds, but under Blairism the policy was taken a whole lot further, with all the private finance initiative prisons. As I readily acknowledge, the right hon. Member for Blackburn (Mr Straw) started this tendering process, which we have taken to what I believe to be this successful conclusion. It must be in the public interest and it must be right—I readily acknowledge what the right hon. Member for Tooting (Sadiq Khan) just said—that we leave aside stale ideology and dogma, and instead look at what works and what produces the right solutions for the public.

We have problems with the building at HMP Wellingborough. It is not a terribly old building—as I recall, it is largely a 1960s construction—but we are under notice that something has to be done about it and it cannot just carry on as it is. The building is not going to be adequate for very much longer. We are considering what to do about HMP Wellingborough. Its staff are responding very well to the problems that they face, but I hope to be able to come back soon to announce what will happen at Wellingborough.

The contract for Birmingham prison is now going to G4S. I acknowledge that the staff at Birmingham have made considerable efforts and that they put in a good public sector bid as part of the tendering process, but the fact is that that process is objective and the private sector bid was just better, and somewhat less costly. On the right hon. Gentleman’s later comments, the National Offender Management Service will, of course, have high regard to the interests of the staff at Birmingham. A new prison is opening not far away, which may offer some opportunities, but we will give all the appropriate support and hope to avoid an unnecessary number of redundancies.

Payment by results was indeed initiated at Peterborough by the previous Government, and we strongly support that worthwhile experiment. The only political claim that I would make is that I believe the previous Government responded to the policies suggested by the then Conservative Opposition in advocating payment by results. We suffered the fate that often happens to Opposition parties—I hope that this will happen to the right hon. Gentleman, too—of putting forward good ideas which then get stolen by the Ministers in power. However, at least we are at one on this policy.

The Doncaster scheme is another pilot. For the first time, the prison operator is entering into having a payment by results element in the contract; the operator will get extra reward if it succeeds, but it will share the risk with the Government, and will lose if it does not succeed. Five percentage points is what has been negotiated—a somewhat impenetrable figure. It means five percentage points down from the current percentage, so an 8.3% reduction from the current reoffending rate would be required for the operator to be paid.

It is indeed true that we have undertaken contingency planning in case we get the wrong sort of reaction to today’s announcement, although of course we very much hope that we shall not, because industrial action will be no more in the interests of prison officers than it is in the interests of anyone else. Contingency planning for disorder in prisons has always been done, as it has to be. It has been done for as long as I can remember, although I think the previous Government suspended it when they reintroduced the criminal law making it illegal to strike in prisons. They carried out an experiment when they lifted the legal ban, but they had a very bad strike in 2007, and put it back again. We have been bringing the contingency planning up to date, but we very much hope that that is a mere precaution. In the interests of public order, we have to ensure that we are prepared in case anything goes wrong in a major prison, but we very much hope not to have to put any of this into effect. We have had discussions with the Prison Officers Association and we are open to further such discussions, and we hope to be able to answer its legitimate queries in any way that we can.

Reforming Civil Justice

Debate between Lord Clarke of Nottingham and Sadiq Khan

Tuesday 29th March 2011 Commons Chamber

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

With permission, Mr Speaker, I wish to make a statement. I have today laid before Parliament two documents—the Government’s response to our recent consultation on Lord Justice Jackson’s recommendations for reforming no win, no fee arrangements, and a fresh consultation document on proposals further to overhaul the civil justice system. Copies of both documents will be available in the Vote Office and on the Ministry of Justice website. I hope to bring forward legislation on the Jackson reforms as soon as parliamentary time allows.

To many people in this country, the prospect of legal action is an expensive, daunting nightmare. One of the worst features of our compensation culture is that our justice system has increasingly become closed to vast rafts of the ordinary public by legal costs out of all proportion to the dispute or the claim. The proposals that I am announcing today will, I hope, begin to restore proportion and confidence in our system of justice, for both claimants and defendants.

First, following careful consideration of the consultation responses, I have decided to reform no win, no fee arrangements to stop the perverse situation in which fear of excess costs sometimes forces defendants to settle, even when they know they are in the right.

I can therefore announce that the Government will seek legislation to return the no win, no fee system to the first principles on which it was set up. We plan to end the recoverability of success fees and insurance premiums that drive legal costs; to award claimants a 10% uplift in general damages where they have suffered loss; and to ensure that they take an interest in controlling the bills being run up on their behalf by expecting them to pay their own lawyers’ success fee. We will also bring forward our plans to encourage parties to make and accept reasonable offers, to protect the majority of personal injury claimants from paying a winning defendant’s costs, and to allow claimants to recover the cost of expert reports in clinical negligence cases.

I am also publishing a consultation paper that I believe paves the way for the more efficient and effective delivery of civil justice after 15 years of stagnation. The current system is slow, stressful and expensive, and change is long overdue. My aim is to help people to avoid court wherever possible, while reducing costs where that is unavoidable. We are proposing that small-value cases should automatically be referred to mediation so that many people are able to avoid the experience of court entirely; and that the maximum value for small claims be raised from £5,000 to £15,000 to enable more cases to be heard through the simple small claims process rather than a more costly, complicated trial.

We are also proposing: to increase the value below which claims cannot be brought in the High Court to £100,000 so that the county court jurisdiction is extended and the High Court is reserved for only genuinely complex or high-value cases; new measures that will improve the ability of courts to tackle those who evade payment of their debts even though they have the means to do so, while ensuring that those who cannot pay continue to be protected, for example by setting a minimum level of consumer debt at which property could be put at risk for non-payment; and the extension of a successful online system to cut waiting times and legal expenses in personal injury cases, as recommended by my noble Friend Lord Young of Graffham.

We have a duty to deliver a civil justice system that is more equitable, accessible and just. Resorting to the law need not be the long, drawn-out and expensive nightmare that so many people experience today, but could become a sensible and affordable way of resolving disputes in a proportionate manner. I believe these reforms, on which we are now consulting, will help to restore those fundamental values of proportion and fairness in our civil justice system, and I commend this statement to the House.

[Sadiq Khan (Tooting) (Lab)]

I thank the Secretary of State for his usual courtesies and advance sight of his statement, which, on face value, is difficult to disagree with. We accept that the issue of costs in civil proceedings is worth investigating, and did so in government. I note that my right hon. Friend the Member for Blackburn (Mr Straw) is in his place. Those suffering injury through the negligence of public and private bodies who cannot afford to fund actions privately must have recourse to the civil justice system. There is a fear, however, that these plans go so far in trying to keep down costs that some claimants with meritorious cases will find it difficult, if not impossible, to find a lawyer to take on their case.

I am afraid that the devil will be in the detail of today’s announcement. I have a number of questions for the Justice Secretary that I hope will tease out some of the detail. He referred to the Lord Justice Jackson report to justify his announcement. However, has he taken into account Lord Justice Jackson’s view that his proposals are a package and should not be subject to cherry-picking, and will he take into account Lord Justice Jackson’s desire to retain civil legal aid for criminal negligence and housing cases currently under threat from the Government?

The Justice Secretary proposes that claimants’ solicitors will be able to recover up to 25% of their costs from the damages that a claimant recovers. He will be aware that the increase in compensation from defendants to claimants will be only 10%, not 25%, and will apply only to general damages, not to total damages. Why should someone who has suffered the trauma of an injury at work be told that the money they have justly received as compensation will go to their lawyer?

Has the Justice Secretary had a chance to assess the road traffic accident portal scheme, which was introduced by the last Government to reduce costs? The scheme uses fixed fees and efficient processing to limit costs, and came into force in March last year. Does he accept that it has reduced costs by half in 75% of personal injury cases? Does he agree that expanding the scheme to personal injury claims would save costs?

The Government have said that one aim of the reform is to reduce the costs that defendants have to pay. Many defendants are insurance companies. In light of that, can the Justice Secretary say what reductions he expects in insurance premiums? Can he confirm whether an impact assessment has been conducted on how the changes affect access to justice, cost to defendants and reductions to insurance premiums? Is he concerned that, although there will be limitations on a claimant’s ability to bring a case and the costs incurred by their solicitors, there will be no such controls on a defendant in defending a case, raising concerns about the inequality between the two sides?

Finally, a fundamental principle of our justice system is proper access to justice. I agree with the previous Government, who agreed with senior judges such as the Lord Chief Justice, Lord Judge, as well as Lord Justice Jackson and others, that the costs of civil litigation were sometimes excessive. We would all like the costs of litigation to be reduced and alternatives to it found wherever possible, but the effect of the proposals could be to restrict access to justice, particularly for those who do not have their own means of funding. It will be on this key issue that we will hold the Government’s actions to account.

[Mr Clarke]

I welcome the right hon. Gentleman’s agreement with me on the importance of tackling cost. He has focused principally on the conclusions that I have announced today of the Government’s consideration of the consultation on Rupert Jackson’s proposals, which I accept were initiated by my predecessor, the right hon. Member for Blackburn (Mr Straw), under the previous Government. We are trying to get the cost of litigation down.

The right hon. Gentleman talks about access to claims. We are going back to no win, no fee arrangements of the kind that existed when they were first set up by my noble Friend Lord Mackay in the mid-1990s. It was the changes made at the turn of the century that led to the cost escalating to such an extraordinary extent. Among other things, in many cases the legal fees paid by a losing defendant now far exceed the damages paid to the claimant. Indeed, it can be an extremely profitable area of practice if people have some successes. We will keep no win, no fee on the basis of the kind of arrangements we used to have—the kind that are familiar in most jurisdictions. The arrangements that we are proposing to sweep away are unparalleled in any other country and are making litigation too expensive for those faced with it.

The right hon. Gentleman then asked about the cost that can be borne by the plaintiff out of his damages. As he quite rightly said, the 10% enhancement to the level of damages that can be awarded is designed to help plaintiffs and claimants, but it will be confined to general damages, otherwise the figure could be astronomical in some cases. However, the costs that can be recovered—the success fee or bonus paid to a solicitor who has won a case—will be limited to 25%, so they will be kept in proportion.

The right hon. Gentleman mentioned the road traffic accident portal scheme, which has certainly speeded up and helped many personal injury cases. We are indeed proposing to extend the scheme to other personal injury cases, as he suggested.

The right hon. Gentleman asked me what would happen to insurance premiums. The answer, of course, is in the hands of the insurance industry and the competitive market in which it works. We all think, “Oh well, it doesn’t matter: it’s only the insurance company that is paying colossal legal fees”—on top of damages—“in no win, no fee cases,” but that could be one explanation for why car insurance costs have leapt to such an extraordinary extent in this country. I hope to see insurance premiums come down.

Impact assessments were produced at an earlier stage, after Sir Rupert had received wide representations from all sides. We have taken quite a long time getting to this point, and we are pretty clear on what the impact will be. On balance, I think it will be highly desirable. [Interruption.] I cannot read my notes on the last question that the right hon. Gentleman asked.

[Sadiq Khan]

It was about cherry-picking, and clinical negligence and housing cases.

[Mr Clarke]

Yes, the right hon. Gentleman raised an important point about clinical negligence cases, which can be very expensive to start. We are therefore making an exception in regard to the non-recoverability of insurance premiums. We will allow the recoverability of such premiums when they are used to cover the cost of expert evidence in clinical negligence cases. We are, however, working with the NHS Litigation Authority with a view to getting the NHS and other defendants to co-operate with claimants to produce joint medical reports. That should narrow the dispute and cut the costs for all parties, making justice more easily attained.

Oral Answers to Questions

Debate between Lord Clarke of Nottingham and Sadiq Khan

Tuesday 29th March 2011 Commons Chamber

[Sadiq Khan (Tooting) (Lab)]

The Justice Secretary is not afraid to speak his mind, and he has many fans on the Labour Benches as a result. Does he agree that there has been a great deal of confusion on the Government’s policy on the Human Rights Act 1998 and the Bill of Rights? Can he explain in plain, simple English whether his Government are in favour of abolishing, or in favour of keeping, the Human Rights Act, which brought into domestic law the European convention on human rights?

[Mr Clarke]

I would welcome vigorous attacks from the Opposition on any of my policies. The lack of such attacks might undermine my credibility with certain sections of the House and the outside world.

We have carried out the coalition commitment to set up a commission to investigate the case for a British Bill of Rights. Of course the Government accept the commitments and obligations under the European convention on human rights. The commission will look at the whole range of issues in this subject. Personally, I would like the debate to concentrate on what is more immediately attainable, which is sensible reform of the Court in Strasbourg. That is much overdue. I think that we could command a wide range of support from other member states of the Council of Europe on such reform. Perhaps we might decide on subsidiarity, and on the role of the Court vis-à-vis the Parliaments and courts of member states.

Oral Answers to Questions

Debate between Lord Clarke of Nottingham and Sadiq Khan

Tuesday 15th February 2011 Commons Chamber

[Sadiq Khan (Tooting) (Lab)]

In this Saturday’s excellent Mary Riddell interview in The Daily Telegraph, the Lord Chancellor said:

“I slightly expect that some crimes will go up”.

I remind the House that in times of both growth and recession between 1997 and 2010 the level of crime consistently went down. I know that he is neither sloppy nor complacent, so can he tell the House what crimes he thinks will go up, why he thinks they will go up and what he is going to do about it?

[Mr Clarke]

During the period of the Labour Government, to which the right hon. Gentleman refers, acquisitive crimes against property fell particularly sharply. That was because of the growth of the economy and the boom, among other matters; these things are not too simple. The biggest fall in crime achieved when Labour was in office was on vehicle crimes, because the vehicle manufacturers greatly improved the security of the vehicles and made this more difficult. In this contentious and not simple area of what causes crime and what does not, I have always been inclined to believe that in times of recession the level of crime against property is likely to rise and in times of growth it tends to fall. That is why I have to be prepared to accommodate however many people are sent to us by the courts. What we are doing about it is making what I hope is a more effective system of preventing crime and of diverting people out of crime but punishing severely those who commit it.

Oral Answers to Questions

Debate between Lord Clarke of Nottingham and Sadiq Khan

Tuesday 11th January 2011 Commons Chamber

[Mr Clarke]

One by one, various countries have been challenged on that front, and one by one the more restrictive measures are falling. Some have no restrictions at all, and just allow prisoners to vote. It was necessary for the Government and my right hon. Friend the Deputy Prime Minister to take the best legal advice on what could protect us against the risk of future claims and judgments, draw a line under that and comply with legal objections. That is the basis on which we arrived at four years, and as I have just explained, there is some logic in putting a four-year threshold in, as we can refer back to the old definition of long-term imprisonment to explain rationally why we have chosen that threshold.

[Sadiq Khan (Tooting) (Lab)]

It is worth reminding the House that details of plans to allow people serving sentences of up to four years to have the vote was given via press release on the last Friday before we broke up for Christmas. May I ask the Secretary of State what role Ministers in his Department played in the Deputy Prime Minister’s plans, and can we take it that he, his Ministers and all the Law Officers agree with the Deputy Prime Minister that four years is the appropriate threshold?

[Mr Clarke]

I was obviously involved in the collective discussions, as were colleagues, and we took the best legal advice. I remind the right hon. Gentleman that the previous Government accepted the legal obligation. The Government in which he recently served undertook two consultations, and they canvassed four years as a possibility. [Interruption.] With great respect, they did canvass four years, and they also accepted that prisoners should vote in all elections, including local government elections and referendums. We have drawn back from that. We are proposing that they should vote only in parliamentary and European elections.

--- Later in debate ---

[Mr Clarke]

We addressed this problem in the Green Paper, on which we are consulting. It is quite obvious that the IPP system has never worked as either the previous Government or Parliament intended. Indeed, the previous Government made one attempt to revise it to stop the unexpectedly large numbers of people who were going into the system. IPP prisoners are almost all high-risk, and they should be released only once they have been assessed by the Parole Board, but of course it is extremely difficult to form judgments about the risks that they pose when they are in prison and sometimes unable to access rehabilitation courses. We published our proposals in the Green Paper and are now consulting on them, but we have no intention whatever of putting the public at more risk by releasing people without some assessment by the Parole Board. However, it has to be a sensible assessment that can sensibly be made.

[Sadiq Khan (Tooting) (Lab)]

I welcome the last part of the Secretary of State’s answer in particular. He will be aware that indeterminate sentences are given to serious criminals such as the ring leaders in the grooming of vulnerable girls for sex convicted last week at Nottingham Crown court. He will appreciate concern that, in his desire to reduce the prison population, he may release dangerous convicted prisoners prematurely. He talked about those currently serving IPPs who have served their minimum tariff. How soon does he think his proposals will have an impact on those prisoners, and how will he address the British public’s legitimate concerns?

[Mr Clarke]

At the moment, more than 3,000 people on an IPP sentence have completed their minimum tariff, which is the punishment for the crime for which they are sent to prison, and a very small proportion of those are being released. The numbers are piling up all the time, and recommendations are frequently made to the Department that the matter has to be re-addressed, because we have more than 3,000 people whose release from prison is totally uncertain. We are now consulting and there will be legislation in the spring, which will have to be enacted and improved by the House before a new system comes into effect. That system will retain the need for the Parole Board to make a sensible assessment of whether the risk posed by those in question can properly be managed in the community.

Oral Answers to Questions

Debate between Lord Clarke of Nottingham and Sadiq Khan

Tuesday 23rd November 2010 Commons Chamber

[Mr Clarke]

My right hon. Friend Lord McNally has the responsibility and the honour to lead on matters concerning Crown dependencies, which I assure my hon. Friend he takes very seriously. I keep discovering that he has made visits to the Crown dependencies to discuss these matters. I was quite unaware of this problem and I shall make inquiries of Lord McNally and those responsible for the ceremony about the background to this issue of laying a wreath on behalf of the Channel Islands and the Isle of Man.

[Sadiq Khan (Tooting) (Lab)]

The Secretary of State announced in the House last week—a day after ITN—that significant sums of money were to be paid to British residents and citizens who were detained at Guantanamo Bay, and he explained the factors behind the decision. Does he agree that there is an urgent need to resolve the claims of British victims of terrorist attacks overseas and will he commit today to such compensation being paid as a matter of urgency?

[Mr Clarke]

The right hon. Gentleman rightly expresses irritation about leaks to newspapers and the television, and I assure him that I share all that irritation. [Interruption.] If I were indulging in the kind of masterful spin-doctoring of the previous Administration, I would have trailed them better than occurred either in the newspapers or ITN. I made the statement when I did because I was told that ITN had carried the news the night before. I assure the right hon. Gentleman that, if he helps me to find out where the information is coming from, I will take appropriate steps.

On compensation for victims of terrorism and crimes, we are having to review the criminal injuries compensation scheme. We are having to look at the prospects for the compensation for terrorism scheme. The fact is that we were left with a system of criminal injuries compensation that was not working. We have enormous liabilities piling up for which the previous Government had not made adequate funds available, so we have hundreds of millions of pounds-worth of arrears of claims.

[Sadiq Khan]

That is a different issue.

[Mr Clarke]

It is not a different issue. They are related issues and we will give our conclusions in due course.

Guantanamo Civil Litigation Settlement

Debate between Lord Clarke of Nottingham and Sadiq Khan

Tuesday 16th November 2010 Commons Chamber

[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.

Legal Aid and Civil Cost Reform

Debate between Lord Clarke of Nottingham and Sadiq Khan

Monday 15th November 2010 Commons Chamber

[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.

Oral Answers to Questions

Debate between Lord Clarke of Nottingham and Sadiq Khan

Tuesday 19th October 2010 Commons Chamber

[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—

--- Later in debate ---

[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.