Mesothelioma (Insurance Premiums)

Andy McDonald Excerpts

Wednesday 29th January 2014 Westminster Hall

[Andy McDonald (Middlesbrough) (Lab)]

It is an honour to open this important debate and to serve under your chairmanship, Mr Hollobone. I draw Members’ attention to my entry in the Register of Members’ Financial Interests.

It would be remiss of me to start my speech without paying tribute to my right hon. Friend the late Paul Goggins, who was such an assiduous advocate for mesothelioma sufferers and their families. I attended his funeral the week before last at Salford cathedral with many other colleagues, and had a conversation with the hon. Member for Foyle (Mark Durkan), in which he reflected on Paul’s innate decency and many wonderful qualities. He summed up Paul’s parliamentary contributions by saying that his arguments were well marshalled and his responses well mannered. I will strive for those high standards today, but I fear I will never be able to emulate such a brilliant parliamentarian.

In essence, this is a mercifully simple matter, but perhaps a few moments spent establishing the background are warranted. We are here to address provisions in the Legal Aid, Sentencing and Punishment of Offenders Act 2012—LASPO—that relate to mesothelioma cases. The relevant background is that changes were made by LASPO to the way in which the generality of legal cases were funded.

I practised for many years as a solicitor with Thompsons, and before arriving in this place in December 2012, headed up a specialist unit looking after those who suffered catastrophic injuries, including brain and spinal chord injuries, and sadly, on too many occasions, cases resulting in fatalities. I also had the privilege of representing members of the armed forces who sustained serious injuries in the service of their country. I never did represent those suffering from asbestosis or mesothelioma, but I had the privilege of working alongside some wonderful colleagues who devoted their professional, and often significant parts of their personal, life to the service and representation of those suffering from this most dreadful of diseases and their families. I pay tribute to the tireless work of my former colleague, Ian McFall, who is not only an international authority in the field of mesothelioma litigation, but has been, and continues to be, a wholly committed advocate of the cause.

With the move away from legal aid support for personal injury cases, and with such state support being removed altogether, the era of the conditional fee agreement came into being. I cannot count the number of conversations I had while in practice over many years, in which I tried to explain that the description of so-called “no win, no fee” agreements was wholly inadequate. The basis of conditional fee agreements, as they are properly termed, was that if a claimant was unsuccessful, he or she would not face a bill for either their costs and disbursements or those of their opponent. Any risk was principally borne by the claimant’s lawyers. Their reward was that when they succeeded for their clients, they benefited from an uplift on their costs—a success fee paid for by the unsuccessful defendant. All that was designed to take account of other cases that were unsuccessful.

The structure was underpinned by insurance: in the event of the claimant not succeeding, wholly or in part, that insurance would provide cover for the unrecoverable disbursements and the defendant’s costs. In the absence of suitable pre-existing, before-the-event legal expenses cover, that policy would be arranged on an after-the-event basis, known as ATE. The insurance premium was borne by the unsuccessful defendants in cases where the claimant won. In successful cases, the defendant bore a success fee and the ATE premium.

All that changed with LASPO. In short, from 1 April 2013, in return for a 10% uplift on the damages paid, the principle of recovering success fees and ATE premiums was extinguished, and those cost items would now be paid by the claimant; that represented a significant erosion of a claimant’s damages. It was argued in this place that mesothelioma cases should not fall foul of those provisions, and that those cases should be exempt. It was entirely right to have those exemptions in that Act in section 44, which concerns success fees, and section 46, which relates to after-the-event insurance premiums, and the reason for that was eloquently summed up in recent times by Paul Goggins:

“An amendment was passed in the House of Lords that exempted mesothelioma sufferers. Hon. Members from both sides will recall our vigorous debates in the House of Commons over the issue and the strong sense that it was repulsive that people who are given a diagnosis of mesothelioma and know that they might have only months to live might have to give up 25% of their damages to pay a success fee to their lawyers and would therefore have to shop around to get the best deal from those who might represent them. The idea was repulsive.”––[Official Report, Mesothelioma Public Bill Committee, 12 December 2013; c. 93.]

The idea remains repulsive, and no case has been made for changing the position. A claimant in these dire circumstances should be focusing on the quality of representation and nothing else. The exemption, securing 100% recovery, allows that to happen.

Section 48 made it clear that there would be a review, in that sections 44 and 46 could not be brought into effect in cases of diffuse mesothelioma until such time as the Lord Chancellor had

“carried out a review of the likely effect of those sections in relation to such proceedings, and…published a report of the conclusions of the review.”

The Government will doubtless point to the consultation launched in July 2013 on mesothelioma claims. The relevant part is chapter 4, which runs to three pages and asks:

“Do you agree that sections 44 and 46 of the LASPO Act 2012 should be brought into force in relation to mesothelioma claims, in the light of the proposed reforms described in this consultation, the increase in general damages and costs protection described above, and the Mesothelioma Bill?”

With respect, that can hardly be properly described as a review, but more importantly, that chapter dealt with one of many matters consulted on, including fixed costs, secure gateways and new protocols, all of which were abandoned. It simply cannot be properly described as a review; equally, what happened subsequently was not by any means a report.

What we have had is an announcement, by way of a written ministerial statement from the Under-Secretary of State for Justice, the hon. Member for North West Cambridgeshire (Mr Vara), who announced that the Government

“have concluded that they intend to apply sections 44 and 46 of the LASPO Act to mesothelioma cases”.—[Official Report, 4 December 2013; Vol. 571, c. 56WS.]

That cannot by any stretch of the imagination amount to a credible review or report as specified by section 48. Statute says that those things simply have to happen before the relevant sections can apply to mesothelioma cases.

To have introduced a new regime in April 2013 with the exceptions, and then to consult on whether the exceptions should still apply, alongside a host of other matters in relation to mesothelioma claims, in July 2013 was simply ludicrous. There were just three months between the introduction of the new regime in April and the July review; that was simply far too soon for any proper assessment to have been made of the likely effects of sections 44 and 46 on mesothelioma claims. No one can tell at this stage how much clients will be charged by solicitors under LASPO. The situation is developing as the market adapts. The same can be said of the cost of ATE insurance. The Government are jumping the gun. They need to pause and commit to a genuine process of review.

[Ian Lavery (Wansbeck) (Lab)]

I congratulate my hon. Friend on bringing this very timely debate to the Chamber. With regard to the section 48 review, it is generally thought that it is pure poppycock and nonsense, although probably not in legal terms. Would it not be better to abandon the section 48 review and instigate a thorough review of the effects of sections 44 and 46 on mesothelioma claims?

[Andy McDonald]

I am grateful to my hon. Friend. His intervention is apposite. There is only one respect in which I would slightly disagree with him: he says that the review is poppycock, although perhaps not in the legal sense, but we may find that there are legal consequences to it. I am of the view that it does not withstand scrutiny as a proper process. No doubt we will return to that.

Making these changes at this pace makes it abundantly clear that the Government had made their mind up way before April 2013 that these exemptions would not last any time at all. Thereafter, to try, in some tortured way, to create a link between the mesothelioma scheme as laid out in the Mesothelioma Bill and the provisions in LASPO is simply to conflate unconnected matters. If there was one American blues artist who epitomised the approach of the Government on this issue, it would be the inimitable Muddy Waters.

[Kate Green (Stretford and Urmston) (Lab)]

I congratulate my hon. Friend on securing this important debate. He will be interested to know that on 13 December, while the Mesothelioma Bill was in Committee—I was a member of that Committee—the Minister wrote to me, saying that

“the Mesothelioma Bill is relevant to the timing of the application of sections 44 and 46 of the LASPO Act to diffuse mesothelioma claims, since we have always intended to implement any such decision in a synchronised manner with other reforms directed to improving the position of mesothelioma sufferers. This was made clear when parliament agreed the relevant provisions in the LASPO Act 2012.”

Has my hon. Friend found any indication of that being made clear to Parliament in 2012? I cannot recall that happening, and I have not been able to find anything that makes it clear to me.

[Andy McDonald]

I am grateful to my hon. Friend for her intervention. Her point is absolutely valid: I have seen no evidence of that. We are trying to compare apples and pears, and it simply does not work. There should be no linkage between LASPO and the Mesothelioma Bill. We are dealing with wholly separate and distinct matters. On the one hand, we are talking about the conduct of cases where employers and insurers are known; those cases progress in the ordinary way. On the other, we are talking about a scheme to deal with cases where insurers are not traced. It is simply disingenuous and grossly insulting to sufferers to try somehow to make a link between the two, and to justify changes that will impact on the conduct of civil cases by saying that the “untraced” scheme is being progressed. If someone suffering from mesothelioma can trace an insurer, their case will proceed in the ordinary way. That others who cannot locate an insurer have recourse to a scheme has no bearing whatever on the conduct of ordinary civil cases. It would be refreshing if the Minister could make that abundantly clear when he responds to the debate, as in my view there is no integrity whatever in such an argument.

Without success fees, some cases that should run will not, as they will be too risky. Removal of the exception will result either in those cases not running, or in mesothelioma victims having to pay out of their compensation. That was clearly not the intention of Parliament, and I urge the Government to reconsider.

[Several hon. Members]

rose—

--- Later in debate ---

[Ian Lavery]

My hon. Friend has hit the nail on the head with that important point, which she raised during the progress of the Bill.

The second issue is the fact that the section 48 review did not ask respondents to make the case for the mesothelioma exemption. It asked if respondents agreed with the Government that the exemption should be lifted in the light of the consultation reforms, plus the CFA reforms and the Mesothelioma Bill. Had the Government asked for the case to be made, the recent legal ombudsman’s report on no win, no fee arrangements would have been most pertinent. The report states that the CFA agreements are not simple to understand and contain unclear terms and conditions, and that there is evidence of some lawyers failing to make clear the financial risks of CFA agreements and trying to pass on the risk to customers. That is precisely the situation that the Lords feared and would not tolerate for dying mesothelioma sufferers.

As it stands, the review is not based on the effects of sections 44 and 46 on mesothelioma claims. It is based on a reiteration of the Government’s intention to apply the CFA LASPO reforms to mesothelioma claims. That can hardly be described as a review. Members of Parliament should ask the Government to abandon the so-called review and seek a proper, fuller one.

[Andy McDonald]

Does my hon. Friend agree that the whole premise of the review is fatally flawed? It includes the question:

“Do you, agree that sections 44 and 46…should be brought into force in relation to mesothelioma claims, in the light of the proposed reforms described in this consultation”?

Those did not proceed; they were abandoned. Does not that put the skids under the entire project?

[Ian Lavery]

I fully agree with my hon. Friend about that—it is question 15 of the section 48 review. It is even more reason for us to seek agreement to the abandonment of the review, and to get to grips with the real problems cutting across the Mesothelioma Bill. MPs should ensure that the outcome of a proper section 48 review is brought before Parliament and not introduced via a commencement order, as the Government probably intend. [Interruption.] Someone has turned my telephone on during the debate, Mr Hollobone: I am sure I switched it off before. I apologise for that.

The legal aspect of the matter seems extremely complicated, and I make an appeal to politicians from across the Chamber. The legislation is not really what I or many other Labour Members wanted, but it is progress. It will mean that individuals can get some form of compensation through the scheme. We must put individuals at the heart of things—the sufferers: people who are losing their lives, and families who will lose loved ones within 18 months. Such things should be cleared pretty quickly, so that families will not be bogged down in legal problems, and will fully understand the compensation procedures they want to embark on. Even if there was 100% compensation for mesothelioma it would not be enough; there cannot be enough compensation for the loss of a breadwinner, father and husband, or mother and wife. There cannot be enough compensation for the loss of someone so important in family life.

--- Later in debate ---

[Mr Vara]

I hope the hon. Lady will agree that, given the sensitivity and importance of the matter, it is right and proper that we should make known to the public our broad thrust of thought, rather than people having to wait a further few months before the report comes out. The hon. Member for Sefton Central (Bill Esterson) secured a debate when there was much agitation about the timing of the review, what it would say and so on. I am sorry if trying to be helpful is now being held against the Government.

Let me say at the outset that the Government recognise that mesothelioma is a terrible disease and has a devastating impact on the families of its sufferers. We take very seriously the plight of sufferers and their right to be able to claim compensation for negligently caused personal injury. The subject is, understandably, emotive, and that has been demonstrated in our heartfelt and thorough debate today, as well as during the passage through both Houses of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Debates on LASPO included consideration of the Government’s reforms to no win, no fee conditional fee agreements, or CFAs, and led to the limited exception of mesothelioma cases, to which I will return shortly.

This debate has highlighted the importance of the issue, and the Government wholeheartedly agree that, given the short life expectancy after the disease has been diagnosed, it is imperative that there is early payment of compensation when necessary. That is why we announced on 4 December 2013 that we will explore whether more can be done to improve the compensation claims process.

I appreciate that today’s debate has been about the Government’s decision to remove the limited exception from no win, no fee reforms in relation to mesothelioma cases. I want to deal with three main issues. The first is why our reforms to CFAs are the right way forward, and the second is the limited exception to these rules in respect of mesothelioma claims and the circumstances in which that exception will end; thirdly, I want to clarify the position relating to the section 48 review and how it was carried out.

I will start by setting out briefly the rationale for our changes to CFAs. Many mesothelioma claims are funded under such agreements. Legal aid has not been available for some time. The previous Government’s Access to Justice Act 1999 removed legal aid for the majority of personal injury cases, including mesothelioma cases, when alternative forms of funding, such as CFAs, were available. As hon. Members will know, the Government have introduced reforms in England and Wales relating to the way that civil cases are funded, and the costs involved in bringing those cases. Those reforms are set out in part 2 of LASPO and took forward recommendations by Lord Justice Jackson, a distinguished Court of Appeal judge.

Hon. Members will be aware that Lord Justice Jackson had been asked to investigate the high costs of civil litigation, and to make recommendations for reform. He found that the arrangements for CFAs were

“the major contributor to disproportionate costs in civil litigation in England and Wales.”

He recommended that the recovery of success fees and after-the-event insurance from defendants be abolished, saying that that would lead to

“significant costs savings, whilst still enabling those who need access to justice to obtain it.”

The Government accepted the recommendations, and they were implemented in sections 44 and 46 of LASPO, with the reforms coming into effect in April 2013.

These important reforms will generally ensure that meritorious claims can still be pursued, but at a more proportionate cost. As part of our reforms, earlier settlement will be encouraged, and damages for non-pecuniary loss, such as pain, suffering and loss of amenity, will be increased by 10%. The Government agreed with Lord Justice Jackson that the level of such damages in England and Wales was generally low, and that a 10% increase could assist claimants in meeting the costs of the success fee and other funding changes. Lord Justice Jackson argued that in the majority of cases his proposals

“should leave successful claimants no worse off than they are under the current regime”.

Those words are relevant.

During LASPO’s passage through Parliament, the Government accepted that the reforms should not be brought into effect for mesothelioma claims until a review had been carried out of the likely effect of those reforms on such cases. That review provision is in section 48 of the Act. If Parliament had intended the LASPO provisions not to apply to such claims at all, it could have legislated to that effect. In the event, mesothelioma claims were exempted, and Parliament legislated to the effect that the provisions could be commenced for claims following the conduct of a review, as set out in section 48. Of course, we must recognise that a review could lead to a number of possible outcomes—to claims continuing to be exempted from the reforms, or alternatively to the exemption not continuing.

The Government carried out the section 48 review as part of the consultation on reforming mesothelioma cases, which concluded on 2 October 2013. That was a 10-week public consultation, and all interested parties had the opportunity to participate. Some 105 responses were received from interested parties and expert stakeholders on both sides of the debate; that is the specific advantage of a public consultation. The respondents included Thompsons, the personal injury solicitors firm to which the hon. Member for Middlesbrough referred when declaring an interest at the outset of the debate.

Some respondents to the consultation questioned the timing of the review and how it was carried out. However, the Government are satisfied that it meets our obligations under section 48. The Act makes it clear that in conducting the review under section 48, the Government are required to consider the likely effect of sections 44 and 46 on proceedings on a claim for damages in respect of diffuse mesothelioma. That is what we have done.

Comments have been made about the Mesothelioma Bill and the timing of the review. As Members will know, the Government introduced the Bill in May 2013. It creates a compulsory payment scheme for victims who are unable to trace a liable employer, or liable employer liability insurer, from which to claim the damages that are rightly due. The Bill has completed all stages in both Houses and is awaiting Royal Assent. It is an important milestone in ensuring that those who were previously unable to claim can do so when the scheme is up and running.

[Andy McDonald]

Will the Minister give way?

[Mr Vara]

I am about to come to the point to which I think the hon. Gentleman wants to refer, but I am happy to take a question.

[Andy McDonald]

The Minister is concentrating on the Mesothelioma Bill, but we are talking about LASPO. Does he accept that there is no connection between the two?

[Mr Vara]

I am coming immediately to the point that I anticipated the hon. Gentleman would refer to. In conducting the review, the Government focused their consideration on matters relevant to claims for mesothelioma that are subject to litigation—in other words, where a solvent defendant is identified. The provisions of the Mesothelioma Bill, however, apply to sufferers who cannot trace a defendant to sue for compensation. If claimants are able to identify a defendant, the Mesothelioma Bill is not directly relevant to their claim, and the Government have carefully borne this in mind.

The Government have not therefore taken the Bill into account in relation to litigated cases in respect of the review. However, the Bill is relevant to the timing of the application of sections 44 and 46 of LASPO, since we have always intended to synchronise the implementation of any decision on this matter with other reforms directed at improving the position of mesothelioma sufferers. This was made clear when Parliament agreed the relevant provisions in LASPO. Much was made of that in earlier speeches, so I refer hon. Members to a debate on LASPO on 24 April 2012. The late Paul Goggins asked the then Justice Minister, my hon. Friend the Member for Huntingdon (Mr Djanogly):

“Crucially, how will the commencement of the relevant provisions of the Bill be aligned with the proposals that the Department for Work and Pensions hopes to publish before the summer recess? I would be happy to take an intervention from the Minister if he wishes to make a clear commitment this afternoon that he will not seek to implement the relevant provisions in the Bill unless and until an improved system of compensation is in place.”

My hon. Friend the Justice Minister replied:

“I do not want to give any binding commitments about the process today, because things have not been finalised. However, I can tell the right hon. Gentleman that if the process is to be improved by the Department for Work and Pensions, which we hope it will be—he will have some insight into our proposals from the discussions he has had—that could well require DWP legislation, in which case”—

the relevant words—

“we would look to roll the ending of the provisions into the commencement of the DWP provisions. That is how I foresee the process now, but again, I am not making that a commitment.”—[Official Report, 24 April 2012; Vol. 543, c. 838-39.]

The following day, the noble Lord Alton questioned the Justice Minister in the upper House, the noble Lord McNally. Lord Alton asked:

“First, is the Minister able to assure us that there will be absolute synchronisation between the Ministry of Justice and the Department for Work and Pensions to ensure that the mesothelioma provisions in the Bill will not be implemented in advance of the new regime coming into force?”

Later in the debate, Lord McNally responded:

“I can absolutely guarantee that we will work in a synchronised way with the DWP.”—[Official Report, House of Lords, 25 April 2012; Vol. 736, c. 1818 and 1824.]

The hon. Member for Stretford and Urmston (Kate Green) was present at the House of Commons debate. She made a contribution at Hansard column 834—

[Mr Vara]

I hope that I am clear when I say that it is important that we synchronise the timing, so that everyone affected by this terrible illness knows what the position is, whether or not they have a traceable employer or liable insurer. It is the timing that is at issue. That is what was referred to in the debates in both the upper and lower Houses.

[Andy McDonald]

rose—

[Mr Vara]

I am happy to give way, because it is the hon. Gentleman’s debate, but I hope that hon. Members accept that I have limited time, and I want to get through things.

[Andy McDonald]

I am grateful to the Minister for giving way. Will he explain something? We have a group of people way over in the distance with one group of problems—in Weymouth, for example—and another group of people in Wolverhampton with another set of problems. If he addresses one situation, how would that benefit the people in the other place? They are not connected; it is just that he is trying to do things at the same time. Does he not agree with that analysis?

[Mr Vara]

It was agreed by Parliament in the debate that there would be a synchronisation of what the Department for Work and Pensions did and what we did. That is what has happened. I trust that Members will now allow me to proceed, because a number of issues were raised, and I want to put the Government response on the record.

The Government have carefully considered the likely effect of implementing the LASPO reforms on mesothelioma claims, including the evidence put before us by respondents to the consultation. The issues raised, however, were generally similar to those in other very serious personal injury cases to which the reforms already apply. There was little explanation of any particular feature of the mesothelioma claims process that would lead to a different or disproportionate effect on claimants’ access to justice, should the reforms apply. Ultimately, in our view, there needs to be a specific justification for the continued difference in treatment between mesothelioma cases and other personal injury cases—most particularly, other serious personal injury cases that have their own tragic features involving, as some do, catastrophic injury and the need for substantial care arrangements for the remainder of a claimant’s life, sometimes when the claimant is very young.

Let me emphasis that we entirely understand that mesothelioma victims face an appalling and fatal disease with which they and their families have to come to terms, while also having to engage with the claims process. Without in any way seeking to minimise the distress that this entails, however, there are many other serious personal injury and fatal claims, to which the LASPO reforms already apply, that produce difficult challenges for victims and families.

On 4 December, we announced that we intended to apply sections 44 and 46 of LASPO to diffuse mesothelioma cases from July this year, when the Mesothelioma Bill is expected to be implemented. When the reforms take effect, claimants will be entitled to a 10% increase in general damages. The average general damages for such cases, as set out in the Judicial College guidelines, is £70,000, so that would be an average additional £7,000 in damages.

Claimants will be liable for any success fee claimed by their lawyer, as in any other personal injury case, but there is no requirement for a success fee to be charged. The amount of any success fee is a matter for negotiation between claimants and their lawyer. Claimants will also benefit from costs protection in the form of qualified one-way cost shifting, to protect them from having to pay the other side’s costs if the claim fails. Additionally, the costs of any after-the-event insurance that claimants feel they need in order to deal with defendants’ part 36 offers—a process of negotiation between parties on a reasonable offer for resettlement—are expected to reduce. If a part 36 offer is unreasonable, a claimant is not at risk for rejecting it. Claimant lawyers tend to know what is and is not a reasonable offer. Claimants are of course liable for disbursements in relation to their case, but the general rule in all civil litigation is that reasonable costs will be paid by a losing defendant.

We announced in December that we anticipate publishing the Government’s response some time in the next few weeks. Colleagues will appreciate that we could have waited until we announced the outcome of the consultation, but we were keen to let stakeholders know the outcome as soon as possible, especially on those issues that we are not currently taking forward.

I want to emphasise that the Government firmly support the right of those who suffer from this terrible disease to be able to claim compensation. Over the past 10 years, significant progress has been made in streamlining the process, including in relation to those matters headed by Senior Master Whitaker. We wish to explore further ways of streamlining the process, and we seek the co-operation of the appropriate stakeholders.

The LASPO reforms are about tackling the high cost of civil litigation, rather than questioning the validity of claims. The Government believe that the reforms should apply to all personal injury cases, including those of the utmost severity. We have conducted the review as required, and as soon as we are able to do so, we will publish our report. In the meantime, my thanks again to the hon. Member for Middlesbrough for securing this debate. It is fair to say that we are united on at least one matter: the great importance of this issue.

Shrewsbury 24 (Release of Papers)

Andy McDonald Excerpts

Thursday 23rd January 2014 Commons Chamber

[Andy McDonald (Middlesbrough) (Lab)]

I thank my hon. Friend the Member for Blaydon (Mr Anderson) for securing this debate. I also want to thank the hon. Member for Aldershot (Sir Gerald Howarth)—I am delighted he is back in the Chamber—for his stout defence of exploitative and abusive employment practices and his argument for sustaining one of the most grievous miscarriages of justice in living memory, because it reminds me of exactly why I came into politics.

This is an immensely significant case and one that has already shone a light into some of the darkest recesses of the British establishment. What is abundantly clear is that this case will continue to be a running sore until such times as all Government and Cabinet and other documents over the relevant period from the early ’70s to date in connection with this matter are released. The sooner the nettle is grasped the better.

The Government’s determination to keep documents secret and to keep information from the appellants casts a very dark and long shadow over our democracy and serves only to heighten concerns that there has indeed been a conspiracy—not a conspiracy to cause affray at a building site, but one politically to engineer criminal charges and to interfere with the criminal justice system. It can hardly be more serious.

This campaign will ultimately succeed, and when the full truth emerges it will not be a good day for this country. The longer it goes on, the worse it will get. It is a travesty that men have already gone to their graves without this matter having been resolved. The campaigners’ case is simple: they were wholly innocent of the charges made against them. The dispute had come to an end, and no complaint had been made about their conduct at the time. The subsequent investigations many months later, the prosecution and then the sentences imposed upon them were draconian, wholly inappropriate and, worst of all, politically motivated. I want to spend some time talking about the sacrifices that the men made, but time does not permit me to do so.

At this remove, the demands of the workers seem so modest and reasonable, but in the dark days of 1972 they were seen as other things altogether. However, their cause was just and right. They vehemently opposed and exposed the abuses and exploitative and blackmailing practices endemic in the construction industry, which provided workers with absolutely no security of employment. They were working on the lump for appalling pay and, as has been said, fatalities were a regular occurrence. Robert Carr wrote a letter at the time. He said:

“I intend once again to draw the attention of Chief Constables to the provision of the law and discuss with them what further action they might take to defeat such violence and intimidation in industrial disputes.”

So much for the operational independence of the police. The Attorney-General wrote to him at the time and said:

“A number of instances … have been submitted to me recently in which the intimidation consisted of threatening words and in which there was no evidence against any particular person of violence or damage to property.”

He recommended that proceedings should not be instituted. We have clear, unambiguous advice from the country’s leading law officer that proceedings should not be instituted, yet despite that, charges were laid and prosecutions taken. He was also of the view that a jury trial would lead to an acquittal, so Treasury Counsel advised that the principle of jury trial should be abandoned.

It is scandalous that successive Governments have refused to release all the papers about this matter. We are led to believe that it would compromise national security. It is much more likely that individuals and previous Governments will be ashamed and embarrassed by their dreadful cover-up, and the time has come for the Government to do the right thing. These men and their families have waited far too long for the truth to come out and they should wait no longer. As Ricky Tomlinson himself might say, “Guilty? My goodness me, nothing could be further from the truth.”

[Several hon. Members]

rose—

Oral Answers to Questions

Andy McDonald Excerpts

Tuesday 17th December 2013 Commons Chamber

[Mr Vara]

I thank my hon. Friend for that question. Given that the Competition Commission is undertaking that inquiry, it is probably best to listen to what it has to say, take note and see whether we can improve on its suggestions.

[Andy McDonald (Middlesbrough) (Lab)]

T10. Given that new entrants will potentially be coming into an immature private probation market, will the Secretary of State guarantee that low and medium- risk prisoners will be managed correctly when their risk level increases so that public safety is not compromised?

[Chris Grayling]

A crucial part of the reform plan and the contracts that we are putting together will be to require an element of co-location between the members of the national probation service who carry out risk assessments and the teams in the new providers to ensure that there is a simple process that happens in the same office so that risky offenders can be transferred to multi-agency supervision as quickly as necessary when the circumstance arises.

Oral Answers to Questions

Andy McDonald Excerpts

Tuesday 12th November 2013 Commons Chamber

[Jeremy Wright]

I can assure the hon. Gentleman that there is no complacency whatsoever. It is exceptionally important that prisoners learn literacy and numeracy skills, which many of them lack. It is also important that they develop vocational qualifications, because we know that gaining those qualifications leads on to higher chances of employment, and maintaining a job is the best way we know of keeping someone away from crime. That is hugely important.

The hon. Gentleman will also be reassured to know that we are looking carefully at how we can improve education within the youth estate. As a former Chairman of the Education Committee he will recognise the importance of our duty to educate those young people properly, and when the contracts come up for renewal next year, we will expect better.

[Andy McDonald (Middlesbrough) (Lab)]

How does the Minister reconcile the competing demands of tier 1 providers in reducing reoffending and disseminating good information with the retention of data on intellectual property? How will he reconcile those two competing issues?

Offender Rehabilitation Bill [Lords]

Andy McDonald Excerpts

Monday 11th November 2013 Commons Chamber

[Andy McDonald (Middlesbrough) (Lab)]

Will the right hon. Gentleman give way?

[Sir Alan Beith]

No, I will conclude because many hon. Members wish to speak.

Elements of the Bill will provide the opportunity to realise the Justice Committee’s vision of how we can reduce crime through more effective use of taxpayers’ money. Currently, we waste taxpayers’ money in not dealing effectively with reoffending. That must change. However, there are significant risks in the pace at which the Government intend to implement the programme. We must ask questions about that, and my Committee will do so.

--- Later in debate ---

[John Healey]

There are some useful provisions in the Bill. My right hon. Friend the Member for Tooting (Sadiq Khan) has said that the Opposition do not object to some of the Bill. Additional requirements as part of supervision orders are sensible. Extending the supervision requirement to those who are released from custody after short-term sentences is sensible. My argument is that the legislation is part of a wider programme, the policy purpose of which lacks evidence and justification, but not the ideology that drives the Justice Secretary. That purpose—that end—is the privatisation of our probation services. It is not about the means to a better probation service or better protection for the public.

Let me develop my argument. I have mentioned the first and second coalition consultation reports. To be fair, the third report—“Punishment and Reform: Effective Probation Services”—which was published in March 2012, restated the intent to open up the market for the supervision of low-risk offenders. However, it also proposed a stronger role for probation trusts and a stronger emphasis on partnership working. The report states:

“We intend that there will be a stronger role for public sector Probation Trusts as commissioners of competed probation services…We will devolve to Probation Trusts the budget for community offender services”.

At that time, the Government said:

“Trusts are best placed to work with courts and with local partners to design and commission services jointly…We will support the joint commissioning of services for offenders between probation and key partners such as local authorities, health and the police.”

[Andy McDonald]

Does my right hon. Friend agree that the current proposals run the risk of dispensing with excellent services in the not-for-profit sector, which Government Members say they want to preserve? Will the proposals not leave that door open, because such charitable organisations do not have the critical mass to enable them to bid for the contracts or withstand a payment-by-results mechanism?

[John Healey]

My hon. Friend is right. One of the real worries about this so-called reform programme is that it borrows from the Work programme, which the Justice Secretary introduced when he was Minister of State for Employment. Frankly, many of the failures, flaws and potential fraud in the Work programme could be replicated in our probation service.

Returning to probation trusts, I quoted from the March 2012 consultation report. What has changed since then? The Justice Secretary has changed. He has stopped the pilots; he has added medium-risk offenders who have served a custodial sentence, and those on community sentences and suspended sentences, to the list of offenders who will be handed over to the private sector; and he has issued the invitation to contract for £450 million of services before the Bill has even had its Second reading in this House. There has been no testing, no costing, no evidence to support such sweeping changes and no backing from any serious professional probation voices.

Clause 1 was inserted by the Lords as a vote of no confidence in the case that the Justice Secretary has been making. That was not a party political move, as it was led by Cross Benchers and a former chief inspector of prisons. Clause 1 was introduced and approved because there are still too many doubts about the Bill and the programme of privatisation—doubts about the viability, accountability, affordability and safety of services under a new, largely privatised system. How much will it cost? How much will it save? How will it be more effective? How will it reduce reoffending? How great will the risk be in putting serious offenders in the hands of private companies? How much money will be offered up front? How much will be held back and paid via payment by results? How will the repeated failures of the Work programme be avoided? How will the fiasco and fraud we have seen before be avoided in the Ministry of Justice’s management of contracts?

To justify the proposed legislation, the Justice Secretary has to address those concerns, and he has not. He has to be able to demonstrate that his plans are better than building on what is already in place. He cannot do that because all 35 probation trusts in England and Wales have been independently judged either good or excellent. All 35 probation trusts are hitting all the targets they have been set. Reoffending rates for those under their supervision have been falling every year for more than a decade. Imagine the credit the Secretary of State for Communities and Local Government would take if all local authority children’s services were judged good or excellent. Imagine the purring pleasure of the Secretary of State for Education if all schools were judged good or excellent. Imagine the huge relief of the Secretary of State for Health if all hospitals were judged good or excellent. No other part of the public sector performs so consistently, and to such a high professional standard, as the probation service.

Probation Service

Andy McDonald Excerpts

Wednesday 30th October 2013 Commons Chamber

[Andy McDonald (Middlesbrough) (Lab)]

During my brief time serving on the Justice Committee, I have seen this Justice Secretary rolling out disaster after disaster under his stewardship. The outsourcing of translation cases resulted in whole cases being abandoned at huge cost to the courts service and putting at risk the liberty of individual citizens. The Ministry of Justice was repeatedly warned that ALS—Applied Language Solutions—was incapable of delivering a contract of that size, but those warnings were ignored. Although Her Majesty’s Courts and Tribunals Service forbade front-line staff to talk to the Justice Committee, the Committee’s investigation resulted in a declaration that the privatisation was not sustainable, even after the intervention of ALS’s parent company, Capita. The electronic-tagging debacle has now required the intervention of the Serious Fraud Office, yet G4S and Serco, which won those contracts, have not been banned from entering bids to run probation services.

The problems do not stop there, however. The damning report of the private, G4S-run HMP Oakwood by Her Majesty’s chief inspector of prisons demonstrates the great dangers of putting private profit above prisoner rehabilitation. Oakwood is an institution in which inmates have died because defibrillators were locked away, and where levels of violence and victimisation are high. The Minister has called Oakwood

“an excellent model for the future of the Prison Service.”—[Official Report, 5 February 2013; Vol. 558, c. 114.]

Well, we saw a snapshot of that future this week in the form of the sickening images from G4S-run Mangaung prison in South Africa—yet G4S will be able to bid to manage the rehabilitation, in our communities, of the very sex offender prisoners whom it did nothing to rehabilitate in Oakwood prison.

There is an organisation that has been banned from bidding for these franchises, despite being superbly placed to do so. It has a dedicated, experienced staff, and it has over a century of proven results in this area. The latest independent reports have praised its competence, and it continues to work with charities and social investment organisations at every level. That organisation is the probation service, via the probation trusts. There is no greater indication that this is an ideological attack on the public sphere than the fact that none of the trusts can bid—not even my own local trust, Durham Tees Valley, which was rated as showing excellent performance. The 8,000 low and medium-risk offenders whom it supervises will now be transferred to private providers—unless, of course, those offenders become high-risk again, in which case the probation trust will have to pick up the pieces. The justification for forbidding probation trusts to bid for franchises is that it would risk public money because of the “payment by results” system. The Minister’s mechanism for improving standards bans the best practitioner right out of the gate.

The Ministry of Justice simply does not have the skills to deal with private sector contracts of this magnitude. In evidence to the Justice Committee, its own permanent secretary, Dame Ursula Brennan, said that the lesson learnt from the previous contracting disasters was this:

“When you have something really big and complicated, biting it off in bite-sized chunks is now thought to be a better way of going.”

Why, then, is the Minister ignoring that very lesson, and proceeding with a radical, hurried, nationwide overhaul?

Notwithstanding the calls for plurality, the current proposals would allow 21 probation trusts to be run by just five companies. Those organisations will have to have the financial reserves that will enable them to wait for results-based payments, and the depth to underwrite any potential losses. In other words, there will be the same old cartel consisting of Capita, Serco, A4e, MITIE and G4S.

It is not the family silver that is being sold off in this instance; it is the foundations of the house. It is madness that the administration of justice—the basic purpose of the nation state—should be sold to the highest, or in this case the lowest, bidder. I urge the Secretary of State to look at the trail of calamities that this dogmatic pursuit of ideology over evidence has caused, and to reconsider before it is too late. With its latest proposal, the Ministry of Justice is not only endangering the public finances, but endangering the public.

Interpreting and Translation Services

Andy McDonald Excerpts

Thursday 20th June 2013 Westminster Hall

[Sir Alan Beith]

No, but we think that the Ministry of Justice should have some reasonable estimates of those costs. Such estimates are quite hard to put together, but we have talked to people in the courts—judges, counsel, solicitors and court staff—and they all point to incidents, each of which involves significant additional costs, which clearly have to be offset against the savings.

[Andy McDonald (Middlesbrough) (Lab)]

Does the right hon. Gentleman share my concern that we are hearing from people, such as the chairman of the Bar Council, about the significant costs and money wasted when trials collapse because of failures under the terms of the contract? Does he share my view that perhaps we would be better served if we considered saving those costs, rather than embarking on a revolution in legal aid provision and putting all that at risk again?

Oral Answers to Questions

Andy McDonald Excerpts

Tuesday 21st May 2013 Commons Chamber

[Chris Grayling]

I am not aware that I have received a letter concerning that. I obviously have regular meetings and exchanges with the Northern Ireland Minister. I will come back to the hon. Gentleman if I have received such a representation; I am not aware of having seen it.

[Andy McDonald (Middlesbrough) (Lab)]

Is not a defendant’s freedom and ability to instruct a solicitor of their own choosing the fundamental basis of our criminal justice system? Will not these proposals restrict the numbers of corporate entities, with vested interests and conflicts of interests, running prisons, probation services and representing defendants? And if Eddie Stobart gets a contract, why do not the Government go the whole hog, put the magistrates court in the back of the wagon and be done with it?

Rehabilitation of Offenders

Andy McDonald Excerpts

Thursday 9th May 2013 Commons Chamber

[Chris Grayling]

That is a fair point. A range of different issues affect reoffending. I expect our providers to provide a glue between the different organisations that can play a role in reducing reoffending, with help on debt advice, housing options, rehab support and so on. Providing that central support, help and encouragement for the individual will be of fundamental importance.

[Andy McDonald (Middlesbrough) (Lab)]

May I echo the comments of my hon. Friend the Member for Kingston upon Hull East (Karl Turner) on the perceived lack of engagement with those in the legal profession on some of the proposals, particularly those relating to criminal legal aid? They do feel that they are not being listened to. Given that payment by results is at the cornerstone of the proposals, if the Secretary of State cannot say now whether it will be 25% up front and 75% payment by results—or 50:50, 75:25 or 90:10—will he indicate when he can outline the proposals with more clarity? A number of excellent third sector providers will want to engage with this process and they need to have that information sooner rather than later.

[Chris Grayling]

The whole point of the bidding process is to look at quality, price and the proportion that individual organisations will be able to put at risk. We will publish a detailed tender document in due course, and that will give indicators of options and parameters within which they can work. I intend to publish that document for the House at the appropriate time. On meeting the legal profession, hardly a week goes by at the moment without a member of my ministerial team or myself having a detailed discussion with senior figures of representative groups in the legal profession. The last such meeting I held was yesterday.

Oral Answers to Questions

Andy McDonald Excerpts

Tuesday 19th March 2013 Commons Chamber

[Andy McDonald (Middlesbrough) (Lab)]

Does the Minister agree that, given the incidence of special educational needs in our custodial system and the incidence of acquired brain injury there, a lot of young people who are in custody should not be there? Does he agree that there ought to be earlier intervention at an earlier screening, long before they get into custody?

[Jeremy Wright]

I agree substantially with what the hon. Gentleman has said, and we need to work harder, together with our colleagues in the Department of Health and elsewhere, to ensure that such young people are diverted away from the criminal justice system earlier. However, it is also right to say that we have a responsibility to ensure that provision is appropriate for those young people who do need to be in custody, and that a large proportion of those, as he says, have special educational needs and other issues.