Disclosure of Youth Criminal Records

Bambos Charalambous Excerpts

Thursday 28th March 2019 Westminster Hall

[Robert Neill]

That is certainly true, and it indicates the need for a much more joined-up and holistic approach to dealing with this matter. I am sure it is something we need to return to and address. Although it can only deal with a part of that problem, disclosure and barring needs to be resolved itself. The updating of the whole approach to dealing with criminal records, disclosure of information and the regulation of social media is important, because all of them can get in the way of helping people to turn their lives around.

The point made by my right hon. Friend the Member for Chipping Barnet (Theresa Villiers) about examples from other countries is significant. Our criminal justice system has some of the worst reoffending results among our comparators, and one reason for that is the difficulty of getting people back into employment, education, homes, work and relationships. To a greater or lesser degree, the mechanistic operation of the current disclosure and barring system can be a bar to people moving on in those directions, all of which, the evidence overwhelmingly shows, make people less likely to reoffend. We are getting in the way of that.

[Bambos Charalambous (Enfield, Southgate) (Lab)]

Does the hon. Gentleman agree that the cumulative impact of disclosing youth criminal records is an avoidable barrier to employment, education and housing, which can be devastating for a young person and can lead to long-term adverse effects way into adulthood?

[Robert Neill]

Yes it is, and the evidence, as I will perhaps demonstrate if I make a bit more progress, shows exactly that. That is entirely the problem that we find. The particular difficulty is that the system is not only mechanistic but is in practice arbitrary—there is no real discretion—and has no right of appeal to speak of. None of those can be just.

As my hon. Friend the Member for Cheltenham (Alex Chalk) and others pointed out, certain things can be filtered out, but that is arbitrary. A single conviction can be filtered out, provided it did not result in a custodial sentence, was not for a listed offence—broadly, a serious offence, although that is probably not the issue most of us would take, as other bits come into it later—and that more than 11 years have elapsed since the date of the convictions. All the evidence suggests that, nowadays, for young men in particular, maturity and desisting from criminal behaviour kick in around the age of 25. Eleven years back from that, they could have been convicted as a teenager for exactly the sort of stupid incident that my hon. Friend referred to, which would then not be filterable at a time when they sought to move into education and work. That is an obstacle, as the evidence clearly shows, and it is no longer realistic, in our submission.

Single offences can be filtered provided that the sentence was non-custodial and was not a listed offence, as well as that more than 11 years have elapsed since the date of the conviction, or more than five and a half years if the person was under 18. That could still be within a key time when they were moving into their mid-20s and getting jobs.

Short Prison Sentences

Bambos Charalambous Excerpts

Thursday 7th March 2019 Westminster Hall

[Bambos Charalambous (Enfield, Southgate) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Davies. I congratulate my hon. Friend the Member for Lewisham West and Penge (Ellie Reeves) on securing the debate, and it is a pleasure to follow the hon. Member for Bromley and Chislehurst (Robert Neill). I wholeheartedly agree with much of what he said.

In England and Wales, roughly 83,000 people are presently in prison, and the majority are there for sentences six months or less. In 2017 almost 50,000 offenders were sentenced to custody for six months or less. In England and Wales, we incarcerate 139 people per 100,000 of the population. That is the highest number in Europe. The Netherlands, for example, incarcerates 61 people per 100,000. In Denmark it is 63 people; in Germany it is 76; in Italy it is 99; and in France it is 104. We therefore incarcerate far more people proportionate to the population than those countries.

In the past five years, more than 250,000 custodial sentences of six months or less have been given to offenders. More than 300,000 sentences were for 12 months or less. However, nearly two thirds of those offenders go on to commit a further crime within a year of being released. Clearly, custody is not working for those people. They are the ones whose situation we need to address so that, as well as punishment, there can be rehabilitation that stops them reoffending.

Some 27% of all reoffending is committed by those who have served 12 months or less, and the most common offence for which a sentence is given is shoplifting. More often than not, offenders who shoplift have a drug or alcohol problem, and almost half of the sentences in question are given to women; 60% of female offenders who are convicted of shoplifting are victims themselves—many have been victims of domestic violence and have mental health issues. Part of the problem, therefore, is that we are not addressing those issues. We need to tackle them in order to get to the root of why the offending occurs in the first place.

[Kate Green]

My hon. Friend is right about the high incidence of short custodial sentences imposed on women for shoplifting. Is he aware of the initiative in Greater Manchester that the police have taken up with some large stores? When a woman is found shoplifting in one of those shops, they can immediately refer her not to the police—and into the criminal justice system—but to our women’s centres. Does he agree that that would be a really positive model for the Government to encourage across the whole country?

[Bambos Charalambous]

I am aware of that initiative. More investment in women’s centres would be a great thing that would help to stop reoffending, particularly by female offenders. I support women’s centres in their plight; we should provide them with as much funding as we can.

All the evidence shows that there is a strong case for abolishing sentences of six months or less, but we also need to have a robust community order regime. The Revolving Doors Agency made a freedom of information request and found that, of those people sentenced to six months in custody, three in five reported a drug or alcohol problem on arrival in prison, one in four were released homeless, and seven in 10 reoffend within a year of release. Clearly short sentences are not working. In his speech on 18 February, the Secretary of State for Justice said:

“Why would we spend taxpayers’ money doing what we know doesn’t work, and indeed, makes us less safe?”

I entirely agree with him about that.

I have touched on some of the issues where our investment could help. Accommodation is a big factor. When people leave prison and they are homeless, they are more prone to reoffend. Clearly, the through-the-gate resettlement service has not been working with the probation service, which needs to be looked at. Making sure that prisoners are housed and have accommodation when they leave prison would help prevent reoffending.

Many of the support services that prisoners need when they are released relate to benefits applications. They also need to be looked at, as well as the mental health support that they need. Sometimes people leave prison having had some treatment, but they do not get treatment further on. Finally—I meant to mention this earlier—when they are in prison people can receive treatment for some of their addictions, but six months is too short a time for them to have the full support they need. All these areas need investment.

The Secretary of State also said in his speech that he supported “smart” justice. I agree with the gist of what he said, but much more needs to be done. There is a place for punishing people. We need prison for serious offenders and it should also be there as a deterrent. There may be an issue with why prison is not working as well as it should do; the reoffending rate is high, and there may be issues about what goes on in prison, the prison estate itself, the fact that there are insufficient prison officers, the prevalence of drugs in prison and various other factors. Clearly, prison is not working for some people.

I suggest that community orders are the best way forward for short sentences. There should be an element of rehabilitation but community orders should be tough, should not be treated as a soft touch, should be fully enforced, and people should be made to fulfil them. Serving them over a longer period of time could also help offenders change their ways.

Community orders would also save us money. The Revolving Doors Agency estimates that community sentences would save £9,237 per prisoner. I am often staggered by the fact that it costs roughly the same amount to send somebody to Eton as to send them to prison. I say let us send them to Eton—that is instead of prison, not as well as prison. These areas need to be looked at. I look forward to hearing the Minister’s response. I broadly support what the Secretary of State has set out and I hope he has the courage of his convictions to follow through. We could be in a position where these measures save us money in the long run and we are able to rehabilitate offenders, which has long-term benefits for us all.

--- Later in debate ---

[Sir John Hayes]

Yes, but if we look at the number of crimes committed in the year of my birth, 1958—I know that is hard to believe, but that is the year—compared with the number of crimes committed now, in almost every category crimes have grown. The number of homicides, for example, in that year, the number of violent crimes in that year, the number of sex-related crimes in that year—if the Minister looks at the figures, which by the way are available from the Library, he will see that in all those categories and many others, the number of crimes has grown immensely over my lifetime, the period I mentioned at the beginning of my remarks.

I want to address the specifics of the debate introduced by the hon. Member for Lewisham West and Penge (Ellie Reeves). It is useful that she has brought this matter to the attention of the House, because the figures from the Minister’s Department make clear that the effect of doing what I understand the Minister has advocated, and with which others may agree, would essentially be that 34,000 offenders who currently go to prison would no longer do so. Roughly speaking, 30,000 of those are repeat, not new offenders. Their offences include burglary, theft, public order offences and weapon and drug possession, as well as drink-driving and other similar things.

Those are not offences that most members of the public would regard as inconsequential, slight or not a cause for worry—far from it. I suspect that the vast majority of our constituents would anticipate that those sorts of things should attract a prison sentence. If any hon. Members take the opposite view, I would be happy to debate with them in their constituencies on a public platform, and see who held the majority view and who was seen to be on the margins. I wonder whether the hon. Member for Enfield, Southgate (Bambos Charalambous) is on the margins; I will give way to him.

[Bambos Charalambous]

I thank the right hon. Gentleman for giving way. He has just said that there are 30,000 repeat offenders. Those are people who have already been to prison, so clearly that would indicate that prison has not worked for them and we should look at other forms of punishment. Does he agree that prison is not the only form of punishment that would act as a deterrent, and that other options might work better and stop people being recycled into prison?

[Sir John Hayes]

I mentioned recidivism a moment ago, but since the hon. Gentleman was clearly listening, I cannot have made myself clear. I did not say people who had been to prison once; I said repeat offenders. These may be people who have had other kinds of sentences and then gone to prison, because very often, for a first offence, people do not go to prison; they go to prison for a second or later offence. When I speak of repeat offenders, I do not necessarily mean people who are in and out of prison regularly. It is very important to be precise about these things.

The problem with that kind of policy is not only what it would do to public faith in criminal justice, on which it would have a devastating effect—in its response to the Government’s proposals, Civitas, the think-tank, says that it would unleash a crime wave on hundreds of thousands of citizens—but that it would reinforce the idea that prison cannot work. We have profound problems at present; the Minister is aware of that and has spoken very openly and straightforwardly about it. The hon. Member for Enfield, Southgate has just alluded to those problems—prisons becoming universities of crime, where people who go in are worsened by the experience, rather than rehabilitated.

Even from the rehabilitative perspective, therefore, prison is not doing what it could, but that is not a good enough reason to say to the public, “We are worried about sending people to prison, because they might get worse, so we will leave them on the streets.” That cannot be the signal that this place or this Government want to send. Let us get our prisons right, not be embarrassed or ashamed to send people there.

Missing Persons Guardianship

Bambos Charalambous Excerpts

Tuesday 12th February 2019 Westminster Hall

[Bambos Charalambous (Enfield, Southgate) (Lab)]

I beg to move,

That this House has considered missing persons guardianship.

It is a pleasure to serve under your chairmanship, Mr Hollobone.

Imagine that someone you love went missing out of the blue. Try to imagine the anxiety, the shock and the sadness, and then imagine not being able to sort out any of their affairs in their absence. That frustration, confusion and hurt is exactly what my constituent experienced.

My constituent came to my surgery in May last year to tell me about her missing brother. She told me that he was an experienced traveller who was used to travelling alone. He had gone to visit the Galapagos islands, and it was from there that he vanished. He was last sighted on 11 March 2017 and never returned to his hotel room. He was a keen photographer, and his last photograph was taken on the island of San Cristóbal. Despite extensive searches on the islands, he was never found. My constituent was very close to her brother, who would contact her regularly when he was abroad, so when she had no contact with him for more than 10 days, she suspected that he was dead. No body was ever recovered.

After the shock and grief of her brother’s disappearance, my constituent set about trying to manage his affairs, but she came across a number of problems. She discovered that banks and other financial institutions would not directly engage with her, as she could not prove that her brother was dead. During that time, mortgage payments and utility bills went unpaid, and direct debits continued to be withdrawn from her brother’s bank account. She found the situation incredibly frustrating, and it caused her even more anguish after she had just come to terms with the fact that her brother was missing and, in all likelihood, dead.

Shocked by my constituent’s experience, I told her that Parliament must legislate to stop it happening again. Imagine how disturbed I was when she told me that Parliament had already done so. I promised to look into the matter further, and I was staggered to discover that the Guardianship (Missing Persons) Act 2017, which dealt with my constituent’s exact circumstances, had received Royal Assent on 27 April 2017 but had not yet been implemented.

With time against her and options running out, my constituent was forced to go down the presumption of death route to get an order allowing her to deal with her brother’s affairs. However, although she applied for a presumption of death order, she was not certain to get one, due to the provisions of the Presumption of Death Act 2013. That Act makes it clear that if the missing person has not been missing for seven years, the court has to be convinced that they are dead. If it is not, it can refuse to make an order. That is the route the family of Lord Lucan had to go down 42 years after his disappearance, with no body ever having been recovered. They were easily able to satisfy the Act’s seven-year threshold, whereas my constituent could not. Although she was ultimately successful, she should not have had to go down that route for her brother, who had been missing for just over a year, when there was a more straightforward alternative.

The charity Missing People estimates that more than 1,000 people go missing for more than 12 months in the UK each year. The families of those who go missing suffer the distress and anguish of not knowing what has happened to their loved one, which is compounded by the powerlessness of not being able to manage their affairs. Family members have to make futile telephone calls to banks, building societies and utility companies, which will not co-operate with them due to fears of data protection breaches and fraud.

All the while, arrears accrue. If things escalate, the family may have to deal with bailiffs and lawyers to stop their loved one’s home being repossessed. They will also be unable to stop direct debits from draining that person’s account. If it is a joint account, that makes matters even worse, since financial institutions often insist on getting both parties’ express consent to change anything. Financial institutions are among the strongest supporters of the 2017 Act, as it is their staff who are forced to say no to the families of loved ones. An order declaring that someone has a right to deal with their loved one’s affairs makes it far easier for all concerned and removes the additional stress and worry from the equation.

At an event organised by Missing People, I had the privilege of meeting Mr Peter Lawrence, the father of missing person Claudia Lawrence. He told me about the challenges he faced in dealing with financial institutions in the aftermath of his daughter’s disappearance. I am pleased to say that Peter is here with us today. Peter is a remarkable man, and I have nothing but admiration for his ongoing efforts to reform the law. It was partly due to his campaigning and raising of public awareness that the Government eventually decided to legislate for the guardianship of missing persons.

In preparation for the debate, I read transcripts of previous debates about guardianship for missing persons. I note with some disappointment that the very same points I have made so far today were made by the hon. Members for York Outer (Julian Sturdy) and for Thirsk and Malton (Kevin Hollinrake) and my hon. Friend the Member for Islwyn (Chris Evans) in March 2016. In that debate, there was criticism of the Government’s failure to progress legislation they had consulted on in 2015. The Minister closed his remarks by saying:

“It is vital to get the reform right, given that it creates a legal power over another’s assets. We are committed to proceeding as swiftly as we can, never forgetting for a moment the scope that it offers to ease…the pain and suffering endured by the families who have lost loved ones.”—[Official Report, 23 March 2016; Vol. 607, c. 596WH.]

I am sure that that debate had a bearing on what happened next, as a year later the Guardianship (Missing Persons) Bill had been drafted and was making progress. On 6 April 2017, when that Bill had its Second Reading in the other place, the Minister said that it

“is unlikely to come into force earlier than one year after Royal Assent, but the Government will endeavour to keep any delay to an absolute minimum.”—[Official Report, House of Lords, 6 April 2017; Vol. 762, c. 1188.]

The Bill passed all its stages and received Royal Assent on 27 April 2017.

The 2017 Act is a good piece of legislation. It defines what guardianship orders are and who can apply for them and in what circumstances. It covers the scope of the orders and their duration, and provides for their revocation. It was supported in Committee by all political parties. It was one of those rare pieces of legislation that transcended party politics and had genuine cross-party support. At a time of division in the country, it was something that everyone could sign up to. Unfortunately, since then, there have been a number of false dawns and dashed hopes with respect to when the Act will finally be fully implemented and when people will be able to use it. Some 21 months have passed since the Act received Royal Assent, and it has not been possible to apply for a single guardianship order.

I accept that there may be complications with getting the judiciary to familiarise themselves fully with the provisions of the Act, and no doubt some technical measures need to be properly scrutinised and overcome. I also appreciate that Brexit continues to take up significant time in Departments and that the Ministry of Justice, which has had significant cuts to its budget over a number of years, is probably very stretched. I cast no blame on the Minister, whom I have always found to be true to his word and helpful in my dealings with him. But the fact remains that the current state of affairs just is not good enough.

Since the 2017 Act received Royal Assent, the Ministry of Justice has introduced two more Bills to Parliament, both of which have passed all their stages and are now Acts—the Civil Liability Act 2018 and the Courts and Tribunals (Judiciary and Functions of Staff) Act 2018 both received Royal Assent on 20 December. I do not suggest for one minute that those are not important pieces of legislation, but I am concerned that they managed to leapfrog the 2017 Act and will in all likelihood be implemented before it. How is that possible? I suggest that the 2017 Act has not received the priority it deserves. Time and again, it has been put to the bottom of the pile while other things have taken precedence.

In my first and only question to the Prime Minister, on 28 November 2018, I asked about that delay. I am relieved that, since then, things have started moving. On 19 December 2018 the Ministry of Justice launched its consultation on the implementation of the Guardianship (Missing Persons) Act 2017, which among other things covers the code of practice, rules of court, practice directions, the registration and supervision of guardians, and fees—I note that, by some strange coincidence, that consultation ends today.

I have received assurances from the Ministry of Justice that the 2017 Act will be implemented fully by July 2019, but that is still five months away, and although I very much welcome that commitment, I am concerned to avoid further delays. I therefore ask the Minister to give a commitment that the Act will be implemented by July this year, and that if there is any delay, he will explain the reasons for it and allow hon. Members to question him.

[Mr Gregory Campbell (East Londonderry) (DUP)]

I congratulate the hon. Gentleman on securing this timely debate on an emotive subject, which he is dealing with properly and appropriately. Does he agree that, in advance of the legislative change in July, there will be an expectation—hopefully as a result of this debate and other pressures—that financial institutions will consider these matters practically and sensibly when dealing with families?

[Bambos Charalambous]

I entirely agree, and one of the biggest areas of distress for people is dealing with financial institutions. If measures can be introduced to enable things to run more smoothly, I would strongly support that, as, I hope, would the Minister.

[Chris Evans (Islwyn) (Lab/Co-op)]

As we know, the hon. Member for Salisbury (John Glen), who first promoted the Presumption of Death Act 2013 as a private Member’s Bill, is now the Economic Secretary to the Treasury. I wonder whether the Minister discussed this emotive issue with him in the hope that we can bring the financial services to the table.

[Bambos Charalambous]

I was not aware of that, and my hon. Friend makes a good point. I hope the Minister will hold such discussions with the Economic Secretary, if he has not already done so.

[David Simpson (Upper Bann) (DUP)]

I congratulate the hon. Gentleman on securing the debate. I agree with everything he has said so far, and it is important that the 2017 Act is implemented by July. He mentioned the figure of 1,000 missing people, but perhaps the Minister could give some indication of what the number would be if we included all those who are in the pipeline for an application.

[Bambos Charalambous]

The hon. Gentleman makes an excellent point. One thousand people go missing a year, but some people have been missing for many more years, and the figure will obviously be far higher than the 1,000 I mentioned.

[Kevin Hollinrake (Thirsk and Malton) (Con)]

I promoted the Guardianship (Missing Persons) Act 2017, and in my experience the financial services are keen on its provisions. They wish to help and to take a different approach when these tragic situations occur, but the difficulty is that they are tied to the law on such issues. We therefore need this change so that they can provide more assistance to those who face such difficulties.

[Bambos Charalambous]

I entirely agree. If a person dies, probate can be granted to financial institutions and used as a way of allowing the executor to access a person’s accounts. More needs to be done, and financial institutions need to be protected in that area.

I hope the Minister will agree that those who have a missing family member should not have to endure the indignity of being unable to deal with their loved one’s affairs because they cannot prove death, especially when they should not need to. The 2017 Act needs to be implemented as soon as possible, because no one should have to endure the anguish endured by my constituent. The Act will make a huge difference to the lives of the families of the missing. It will bring closure to some of them, as well as some comfort following the suffering and anguish they will have endured not knowing what fate may have befallen their loved one. This is a great opportunity for the Minister to show Parliament at its best, with Members coming together to make a real difference and doing something that we all agree on and that will make a positive change to some people’s lives.

--- Later in debate ---

[Bambos Charalambous]

I will be brief in my remarks. I thank the Minister for giving details about the next steps and how the matter will progress from here. I look forward to getting updates in the near future about how things are progressing. He has given a commitment that the Act will be fully implemented in July, and I look forward to that. I thank him for being so candid.

Question put and agreed to.

Resolved,

That this House has considered missing persons guardianship.

Legal Aid: Post-Implementation Review

Bambos Charalambous Excerpts

Thursday 7th February 2019 Commons Chamber

[Bambos Charalambous (Enfield, Southgate) (Lab)]

I welcome the Secretary of State’s acknowledgement that early advice is an issue, but I am disappointed that the pilot on social welfare law does not go far enough. It should go further and consider immigration law, family law and housing law. The report outlines how people with protected characteristics may not be able to access online or telephone help and signposting well enough. Will the Minister consider extending the pilot to cover the areas I have mentioned?

[Mr Gauke]

The technology pilots could apply to any area of law, so that certainly does not preclude their applying to the areas the hon. Gentleman mentions. The early intervention pilot is looking at social welfare law as the right place to start. That is where the case for early intervention making a positive difference is strongest, so we are looking into that area. The hon. Gentleman mentioned immigration; we are extending the scope to unaccompanied minors and immigration. I hope that is helpful to him.

Bailiffs: Regulatory Reform

Bambos Charalambous Excerpts

Wednesday 9th January 2019 Westminster Hall

[Bambos Charalambous (Enfield, Southgate) (Lab)]

Is the practice by bailiffs of not accepting affordable repayments a cause for people getting further into debt, thus exacerbating the problem and leading to unfortunate experiences for those people?

[Emma Reynolds]

Indeed it is. It seems to me that it is not in the interests of the local authority. For instance, Hammersmith recognised that if people are forced into more debt, they are unlikely to be able to pay it off. As I understand it, there is no compulsory obligation on bailiffs to accept a repayment plan, which the Government should consider carefully. In fact, all the incentives seem to be stacked against the bailiff being cautious or sympathetic to the debtor. All the incentives seem to be for the bailiff to collect as much money or as many possessions as possible on that visit.

Bailiffs have extraordinary rights to seize possessions and the police are the only other profession that I can think of that is permitted by law to enter someone’s property. The police can do so only if someone is suspected of serious criminality and they have to secure a search warrant and read someone their rights. Those with a complaint can report the police to the Independent Office for Police Conduct. Bailiffs too need a court order, but there seems to be no requirement for bailiffs to tell someone their rights. Indeed, evidence suggests that bailiffs often misrepresent people’s rights to gain entry to their home and seize possessions.

Courts and Tribunals (Judiciary and Functions of Staff) Bill [Lords]

Bambos Charalambous Excerpts

2nd reading: House of Commons
Tuesday 27th November 2018 Commons Chamber

[Mr Gauke]

Journey times are taken into account. I am conscious that substantial issues can arise in rural areas, but journey times are considered. As for technology, if I remember correctly, the change at Northallerton magistrates court is conditional upon ensuring that the technology is properly in place. In the context of this Bill, authorised staff will be able to play a bigger role in determining start times, for example, and one hopes that that might enable the process to run as smoothly as possible and ensure that people’s concerns about when they can get to court can be properly considered.

[Bambos Charalambous (Enfield, Southgate) (Lab)]

With the distance between courts being a factor not just for claimants and defendants but for witnesses, does the right hon. Gentleman agree that witnesses may sometimes choose not to go to a court if it is too far away, which can cause hearings to be cancelled?

[Mr Gauke]

The hon. Gentleman takes me further in the direction of the debate about the court closure plan, but we need to ensure that our resources are deployed as efficiently and effectively as possible. In that context, we have reduced the number of courts, but that money makes a contribution to our overall finances and can be reinvested as part of the court reform programme. We have to take every opportunity to make use of new technology to ensure that the experience of the justice system—the hon. Gentleman rightly highlights that witnesses are important in many cases—is as positive as possible.

I have touched on this already, but safeguards are important. Clearly, the delegation of certain judicial powers to court and tribunal staff needs to be done sensitively and sensibly, and with appropriate safeguards. Independent, judiciary-led procedure rule committees, which govern the rules within courts and tribunals, will determine which functions court staff may exercise in each jurisdiction and what qualifications and experience they will need. Those rules will then be subject to parliamentary scrutiny. All staff authorised to exercise judicial functions will ultimately be accountable to, and subject to, the direction of the Lord Chief Justice or the Senior President of Tribunals.

I am grateful for the valuable insight that Members of the other place brought to debating and scrutinising the measures in the Bill, particularly in relation to the exercise of judicial functions. Many of them drew on their own wealth of judicial experience and expertise in considering the practical issues of implementation.

Concerns were raised in the other place about the safeguards in delegating judicial functions to authorised staff. For example, concerns were raised that certain powers, particularly those that affect the rights and freedoms of citizens, should only ever be directly discharged by the judiciary. Indeed, the right hon. Member for Kingston and Surbiton raised that point.

We have listened to those concerns, and we tabled amendments in the other place that will prevent specific judicial functions from being undertaken by authorised staff, including authorising a person’s committal to prison; in most cases, authorising a person’s arrest; granting certain injunctions; making orders for repossession of residential property, where the orders are contested; and making search orders.

We tabled amendments that will require the procedure rule committees, when making rules to allow authorised staff to exercise judicial functions, to consider whether the rules should include a right to judicial reconsideration of decisions made by such staff. The amendments will also require that, if a procedure rule committee decides against the creation of such a right, the committee will have to inform the Lord Chancellor of its decision and of the reasons for it. This will ensure much greater transparency and accountability.

The measures in the Bill strike the right balance between creating a framework for the delegation of judicial functions to authorised staff, with appropriate safeguards, and giving discretion to procedure rule committees and the senior judiciary to make the arrangements work in practice.

Future of Legal Aid

Bambos Charalambous Excerpts

Thursday 1st November 2018 Westminster Hall

[Bambos Charalambous (Enfield, Southgate) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Bailey. I congratulate my hon. Friend the Member for Hammersmith (Andy Slaughter) on obtaining this important and timely debate.

I will begin my assessment of the future of legal aid by outlining its origins. The first legislation to provide for legal help paid for by the state—there had been ad hoc funding for legal representation since Tudor times—was the Poor Prisoners Defence Act 1903. Payment was made only once a prisoner could establish a defence to a criminal charge. At about the same time, there was a “poor man’s lawyer” movement in east London, providing free legal advice up to but not including court. Pro bono representation was also available for divorce, but, again, that was patchy and ad hoc.

In 1944 the wartime coalition Government set up a committee, chaired by the Conservative peer Lord Rushcliffe, to assess the need for legal advice provided by the state. Lord Rushcliffe’s committee’s recommendations were accepted by the Labour Government, which stated in a White Paper that legislation would be introduced

“to provide legal advice for those of slender means and resources, so that no one would be financially unable to prosecute a just and reasonable claim or defend a legal right; and to allow counsel and solicitors to be remunerated for their services”.

Those are the principles that underpin our legal aid system.

The Legal Aid and Advice Act 1949 provided legal representation for those of small or moderate means in all courts and tribunals where lawyers normally appeared for private clients. Since then, legal aid has been chipped away by successive Governments. Since the passage of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, the legal aid budget has been slashed by £950 million, and many people have been taken out of scope, so that they do not get funding for cases involving matters such as housing disrepair, immigration, welfare benefits and family law.

On 11 July, the Joint Committee on Human Rights produced its report “Enforcing Human Rights”. The Committee said in the report that access to justice was an essential component of the rule of law, and referred to Lord Bingham’s statement:

“Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve”.

The report was critical of the effect of LASPO, saying that it had

“deleterious and discriminatory effects on particular groups”

and

“a disproportionate impact on various groups, including disabled people, women, children and migrants.”

Let me consider each of those in turn.

The charity Mind conducted a survey of 10,058 adults in England and Wales. It found that 18% of respondents suffered from stress, depression or other kinds of mental health problems, and that people with mental health problems were almost twice as likely to have experienced legal problems. One in four of those had experienced six or more legal complaints. The fact that the vast majority of those people would find it hard to access legal aid to get the help they need is deeply worrying.

People with immigration problems are also badly affected by LASPO, which took applications for refugee family reunion out of the scope of legal aid. In the absence of legal aid, people with refugee status in the UK are vulnerable to exploitation, as they have to take out informal, high-interest loans to pay for their family reunion applications, which are often complex and not straightforward. There is exceptional case funding, but it is not feasible for many applicants to access it, due to the large proportion of applications rejected. Many people are left in a very difficult situation.

Young people are also affected. According to Youth Access research, 18 to 24-year-olds are significantly more likely to have problems, but, as my hon. Friend the Member for Westminster North (Ms Buck) said, the vast majority—84%—get no help from a professional adviser or lawyer. Of the 15% of 18 to 24-year-olds who recognise that their problem is legal, only 6% are eligible for legal aid on financial grounds.

The situation is just as bad for women. Rights for Women, in its submission to the Joint Committee on Human Rights, quoted a woman responding to a survey for legal aid who said:

“I earn a low income, yet I’ve been assessed as having too much disposable income…and when you aren’t eligible, you’re expected to pay full solicitors’ costs—there’s no help anywhere in between. I’ve had to face my violent ex-partner in court twice now, and will have to continue to do so as I simply cannot afford costs.”

Even if people are eligible for legal aid, remuneration for lawyers means that there are advice deserts across the country. Legal aid rates today are the same as in 1994, yet inflation has increased prices by 89.3% since then. I recently had the pleasure of shadowing a junior barrister at Thames magistrates court; she told me that she would get a legal aid rate of only £50 for the hearing that she attended.

The hon. Member for Bromley and Chislehurst (Robert Neill), the Chair of the Justice Committee, has already mentioned advice deserts, which were highlighted in the Committee’s report on criminal legal aid. The report warns of the decline of duty solicitors and says that very few younger lawyers are entering the profession. In Dorset, Somerset, Wiltshire, Worcestershire, west Wales and mid-Wales, more than 60% of criminal law duty solicitors are over 50. The Law Society’s heat map study suggests that criminal defence lawyers in England and Wales could become extinct if nothing is changed. Many criminal law firms have fragile finances and small profit margins. What will happen if those firms close is deeply worrying.

It is not just criminal law firms that are affected. The House of Commons Library debate pack refers to advice deserts for housing law. It states almost one third of legal aid areas have just one, and in some cases zero, law firms providing legal advice through legal aid. The truth is that legal aid is in crisis and is teetering on the brink of a precipice. It may take generations to recover, if it ever does.

The aims of LASPO were to discourage unnecessary and adversarial litigation at public expense, to target legal aid at those who need it most, to make substantial savings and to deliver better value for money. Having saved £950 million, LASPO certainly has delivered substantial savings, but at what cost? Is it delivering better value for money? Given the closure of many law firms and the spread of advice deserts, people who are eligible are left with little or no choice of solicitors who do legal aid work. Law firms specialising in the relevant area of legal aid are often overrun, and it may be impossible to get an appointment for many weeks, if at all. People may need to travel long distances to get legal advice.

The examples I have set out make it clear that, under LASPO, legal aid is not being targeted at those who need it most. The intention behind LASPO was to discourage adversarial or unnecessarily litigation, but many people who need legal aid do not have the choice—for example, people who need to challenge benefits decisions, which have a more than 50% chance of being overturned at tribunal. If the Minister has any doubt about the impact of the cuts to legal aid, I encourage her, if she has not already done so, to read the excellent book “The Secret Barrister”, which explains how our legal system is broken.

What is to be done? I ask the Minister to do three things. First, restore access to early advice so disputes can be resolved fairly and reasonably, and so people do not embark on ill-advised, costly litigation. Restore access to welfare advice so the people who are most desperate can get the advice and support they need to challenge unfair decisions. Secondly, simplify the criteria for those who need legal aid—at the moment, many people find it hard to access legal aid, and there are conflicting and competing areas of application, which do not make much sense. Finally, justice cannot be done on the cheap. Please find the money to invest in legal aid.

Civil Liability Bill [Lords]

Bambos Charalambous Excerpts

3rd reading: House of Commons & Report stage: House of Commons
Tuesday 23rd October 2018 Commons Chamber

[Chris Philp]

My hon. Friend is right—he makes exactly the point that I was about to come on to. Over about a decade in which accidents have reduced by 30% and cars have become safer, the number of claims has gone up by 40%. He asks why, and I think it goes back to qualified one-way costs shifting. There is a huge financial incentive for claimants to have a go—encouraged, of course, by claims management companies—in the hope that they can make a successful claim. Defendants, typically insurance companies, have rather irresponsibly taken the view that because defending one of these claims—probably successfully—will cost £10,000 or perhaps more, they should simply choose to settle, which may involve paying out £3,000 or £4,000, without bothering to defend the claim. Obviously word has spread both in the claims management community and among the wider public that people can simply make a claim and the insurance company will settle, because it is cheaper for them to settle a bad claim than to fight it. That has created the most extraordinary perverse incentives. Insurance companies have been seriously at fault, as they have set up this situation by paying out for claims with no merit, for understandable commercial reasons, but they have made a big mistake, and we now have to correct it through the Bill.

My hon. Friend asks why the number of claims has increased so dramatically. It is because claims management companies have been phoning around, encouraging the public to submit fraudulent claims, and I will elaborate on that in a moment.

[Bambos Charalambous (Enfield, Southgate) (Lab)]

The hon. Gentleman makes my point for me in saying that insurance companies are paying up on a regular basis. They are not even defending these claims, yet the Bill is designed to protect them. What does he say about that?

[Chris Philp]

The companies are not defending the claims because qualified one-way costs shifting makes it more expensive for them to successfully defend a claim than simply to pay it out. The system simply is not working.

--- Later in debate ---

I would also like to draw attention to the personal anecdote offered by my hon. Friend the Member for Croydon South (Chris Philp) about being phoned up by various claims management companies. I have had a similar experience—which I will not repeat in full—although I was going to Scotland rather than to the south-west. I am still receiving phone calls from the company, and the fundamental reason for that is the incentive structure under which the whole industry operates. Do I agree with hon. Members on both sides who say that certain things in this area need to change? Yes, I do, but does that mean that I should reject a piece of legislation that is designed to tackle certain injustices? No, it does not. So I agree with my hon. Friend on that point.

[Bambos Charalambous]

Is the hon. Gentleman aware that many of these claims companies operate on a no win, no fee basis? Therefore, if no payment is made and a claim is defended, the claimant will not be paid if they are defeated.

[Bim Afolami]

That is obviously factually accurate, but we need to ensure that we deal with the cause of these problems. As I have said, the Bill does not deal with everything, but it does deal with at least part of the problem. That, in and of itself, is a valuable thing.

--- Later in debate ---

This package of measures will keep the system fair by ensuring that claimants receive the compensation they deserve while ensuring that the public are not paying unduly high premiums. Together with the changes to the small claims limit, these measures will deliver some £1.1 billion-worth of consumer savings a year and could lead to motorists’ insurance premiums falling, on average, by £35 a year. That is very welcome to most families, and it is why this legislation is right, necessary and timely.

[Bambos Charalambous]

Madam Deputy Speaker, is it appropriate for me to speak to new clause 2?

[Madam Deputy Speaker (Dame Eleanor Laing)]

For the sake of clarity, yes, you may speak to new clause 2.

[Bambos Charalambous]

I support new clause 2, which is in my name and in the name of other hon. Members. I am concerned that the Bill takes away the protection for children and protected parties such as people with a mental capacity disability.

Under the current civil procedure rules, children and protected parties are required to have legal representation in court when there is a settlement following a civil claim. Children and protected parties are not excluded from the Bill as vulnerable road users. Prior to introducing the Bill, the Government gave exemptions to a small category of vulnerable road users, including cyclists and horse riders, but no such exemption was given to children or protected parties despite their being protected under rule 21 of the civil procedure rules.

The Government should exempt children and protected parties in accordance with rule 21, and the Minister’s own Department, the Ministry of Justice, is responsible for setting these rules. I raised this issue with him when the Bill was in Committee and, being a man of his word, he duly got back to me, but his response was disappointing. Part 21 of the civil procedure rules states that for a child or protected party settlement to be made it has to be with the approval of the court. The settlement has to go before a court; there is no issue of it going to a portal. For court approval, children and protected parties need legal representation.

The Minister’s response to me suggested that the insurance industry would provide legal representation and that this would solve the problem. Except there would be a clear conflict of interest if the same party were paying for the legal representation of both sides. When choosing a litigation friend for a child or protected party, one of the criteria, under paragraph 3.3 of practice direction 21, is that the party seeking to represent the child or protected party as a litigation friend should have

“no interest adverse to that of the child or protected party”.

Clearly someone who is being paid by the insurance industry against the child’s claim cannot say that they have no adverse interest.

Sometimes children will be suing their parents in a road traffic accident personal injury case, meaning that the parents will have an adverse interest and cannot act for or represent their children. By not excluding children and protected parties from this Bill, the Minister is making a mockery of the current rules that govern personal injury in England and Wales.

Why should a child be able to access legal representation in a case where they have been injured at, say, an amusement park but not when they suffer the same injuries in a road accident? As things stand, the child or protected party would still have to get a legal opinion before the court makes a settlement, but the cost of the advice would not be recoverable from the negligent defendant, or their insurer, in cases subject to the small claims tariff. Why does the Minister want to take money away from children and protected parties in order to benefit insurers?

There are complexities in these cases, and legal representation is needed more than ever in matters involving children and protected parties. I cannot understand the Government’s logic or rationale in excluding horse riders and cyclists from this Bill but not children or protected parties. Are they saying that injuries suffered by children and protected parties through no fault of their own should be treated less seriously than injuries suffered by cyclists or horse riders? This goes to the heart of the Bill, which is ill-conceived and drafted solely from the point of view of the insurance industry and not of innocent victims who make a claim.

It is shameful that the Government are willing to sacrifice the interests of innocent injured children, and to take away the protection they currently have, enshrined in law, to give the multi-billion pound insurance industry an even bigger advantage in court.

[Ruth George]

I rise to speak to amendment 1. This Bill was drafted at the behest of the insurance industry, as is clear from every speech in favour of it.

--- Later in debate ---

[Andy Slaughter]

There is an element of semantics going on here. We have guidelines at the moment. Judges do not pluck figures out of thin air. They look at the guidelines and hear submissions, or they would have heard submissions when representation was available—it seems it no longer will be—and they make a decision, but they have discretion around the individual circumstances of the case. That is a basic and fundamental principle of law, but one that we are deviating from. I cannot say strongly enough that that is wrong.

To add insult to injury—if I may put it that way—rather than taking the average in the guidelines and having a rough rule of thumb that someone will get a bit more or a bit less than their individual case deserves, or going for an average and calling that a tariff, we are saying that a tariff should be a tiny percentage of the current award. This is nothing but an attempt to say, “We do not wish to pay out money in this way. We wish to diminish both the ability to make a claim and the compensation paid.” Whatever one’s view on fraud, the massive majority of cases will be meritorious and honest cases in which people have genuinely suffered injury.

I will conclude with the words of the former Lord Chief Justice of England and Wales, Lord Judge, on Report in the other place:

“What I cannot accept is a solution which means that a dishonest claim is handled in exactly the same way as an honest one. We cannot have dishonesty informing the way in which those who have suffered genuine injuries are dealt with. That is simply not justice. There should not be any idea that an honest claim for a whiplash injury made by the victim of a car accident should be less well compensated than an identical injury suffered by someone at work.”—[Official Report, House of Lords, 12 June 2018; Vol. 791, c. 1600.]

That is what the Government are doing in the Bill and what is so inherently unfair, and they are doing it at the behest of special interests. They may genuinely believe that there is a problem to be resolved with whiplash. I could dispute that—we could go on for a lot longer than we are today—but even if they are right, there are other, better and fairer ways to tackle that issue.

[Bambos Charalambous]

Is my hon. Friend aware that under the criminal injuries compensation scheme someone gets £1,000 for a whiplash injury lasting six to 13 weeks but that under this tariff scheme the proposal is for £470 for three to six months?

[Andy Slaughter]

My hon. Friend, who knows far more about these matters than I do—and more, I suspect, than many on the Government Front Bench—is quite right. He draws attention to the fact that there is no logic in the system.

I feel a bit sorry for the Minister as he has to push these proposals forward; he is normally a very logical and fair man. It is difficult to speak at the Dispatch Box having been given a brief of this quality. When parliamentarians of his stature and of the stature of the hon. Member for Cheltenham, with his spurious points about special damages, are reduced to this level, and when Government Back-Bench Members are hauled in here, as we saw in the previous debate, to make speeches only to be told to stop making them because they are talking such arrant nonsense, one does despair. I hope even at the 11th hour that the Government might take pity on us, listen to the wise voices in the other place and support us on these amendments.

--- Later in debate ---

[Kwasi Kwarteng]

I am not an anatomist. I am not a biological specialist. I cannot give any scientific explanations for why our necks have become flimsier, or less sturdy, over the last 10 years. It may be related to obesity; I do not know.

This is, however, a serious issue, which has come up again and again over the last 15 years. As my hon. Friends have suggested, the number of claims has risen while the traffic accident rate has gone down. It is entirely legitimate for a Government, and, indeed, parliamentarians to ask what is going on. Something is not quite right. It is apparent that many people are making claims, which may or not be fraudulent—let us give them the benefit of the doubt—and clearly it often makes sense to an insurer to do a deal, as it were, and pay the money before the veracity or otherwise of the claim has been established, simply because the legal process would take too long.

[Bambos Charalambous]

Does the hon. Gentleman agree that by paying early, insurance companies are encouraging people to make these allegedly fraudulent claims?

[Kwasi Kwarteng]

The hon. Gentleman cannot have it both ways. It may well be the case that the companies are paying early, and clearly if they are paying early, people will be incentivised to make claims. The hon. Gentleman’s colleagues, however, are suggesting that no fraudulent claims are ever made, or that only a tiny proportion of claims are fraudulent. Logically, the more that insurers pay early, the more incentive there is to make a fraudulent claim. That is pure logic, and no great subtlety is required to appreciate it.

We have a problem. I think it entirely legitimate for insurers to pay out in order to forgo expensive legal costs. They have to manage their books and their businesses on a daily basis, and they will take a hit—if that is the right way to describe it—in order to facilitate business and manage cash flow. As we have heard throughout the debate, they are quite likely to make early payments, and as the hon. Gentleman has suggested, the more an insurer pays early, the greater incentive that gives someone to make a fraudulent or insubstantial claim.

[Bambos Charalambous]

Surely the answer is to fight those claims so that they do not succeed, and send the message that insurers will fight them and there will be no easy money for allegedly fraudulent claims.

[Kwasi Kwarteng]

If the hon. Gentleman were an insurer, managing a business on a daily basis, he would have to make a call every single day on which claims to fight and which not to fight. Often, for reasons of cost, the insurer will simply pay the money, without regard to the veracity or otherwise of the claim.

--- Later in debate ---

[Mike Wood]

Reading through The Law Society Gazette, I see that Jack Straw’s actual comment was:

“Whiplash is an innovation of fertile legal minds which has no real foundation in medical knowledge. Everybody knows the vast majority of whiplash claims are completely unjustified. I support any measures to eliminate soft-tissue injuries.”

I understand that he was referring to compensation for soft tissue injuries, rather than eliminating the injuries altogether.

Hon. Members have spoken about the apparent paradox when we have the long-term reduction in the number of road traffic accidents, the increasing safety of more of the cars on the road and the long-term reduction in the number of deaths and serious injuries as a result of road traffic accidents, and yet the number of personal injury claims for whiplash and other minor injuries having increased significantly—it has gone up by 30% in 12 years. That enormous statistical increase cannot be dismissed as coincidental.

It has been suggested that the idea of a compensation culture is more about perception than reality, but how many of us have not had regular phone calls inviting us to claim for an accident that we have not had, encouraging us with the idea that a fortune was surely around the corner if only we referred the case to the firm that was ringing us up. I have no problem with solicitors—some of my best friends are solicitors, as they say. Indeed, many years ago my wife worked with one of the country’s leading personal injury solicitors’ firms, mostly doing administration on road traffic accident claims. But we need to look at the state we are now in. All the empirical evidence suggests that the initial intentions behind addressing no-win, no-fee claims for personal injuries have generated a spiralling increase in claims that are not the result of pecuniary loss—they are about not loss of earnings or quantifiable losses, but a figure being placed on pain, suffering and loss of amenity.

Previous studies have suggested that, contrary to what others have been saying, the amounts awarded by courts in England and Wales are significantly higher than those awarded in most other European jurisdictions for personal injury claims. When there is a serious injury, especially if the effects are permanent or long-lasting, or even if it results in disability, clearly no one disputes that it is right that there is compensation, especially for the loss of opportunity and amenity caused by that injury. However, shorter-term soft-tissue injuries do not really fall within that category. That is why it is proportionate for the Bill to introduce a tariff that sets out the amounts payable for certain categories of minor, non-permanent injuries.

[Bambos Charalambous]

Is the hon. Gentleman aware that, under the criminal injuries compensation scheme—one of the Government’s own schemes—a person can get £1,000 for a criminal injury of whiplash? Under these tariffs, however, someone would get £470 for the same injury, except it would not have been the result of a criminal event.

[Mike Wood]

I understand the hon. Gentleman’s point, but there is clearly a distinction between being the victim of crime and being involved in an accident, even a road traffic accident.

Oral Answers to Questions

Bambos Charalambous Excerpts

Tuesday 9th October 2018 Commons Chamber

[Bambos Charalambous (Enfield, Southgate) (Lab)]

T4. Recent research published by the Law Society found that people who did not receive early advice were 20% less likely to have had their issue resolved than those who did. Will the Minister commit to reintroducing legal aid for early advice?

[Lucy Frazer]

I read that advice from the Law Society with interest. I recently met the Law Society and a number of solicitors that it brought with it to discuss the issues that face the profession, in relation not only to legal advice but to the age of the profession. As I have mentioned, we are doing a legal aid review, which will report at the end of the year.

Civil Liability Bill [ Lords ] (Second sitting)

Bambos Charalambous Excerpts

Committee Debate: 2nd sitting: House of Commons
Tuesday 11th September 2018 Public Bill Committees

[Rory Stewart]

Unfortunately, something is being missed in the way the right hon. Gentleman is framing his arguments. He is suggesting that there is a fixed, stable situation—the Chancellor of the Exchequer offered £50, nothing changed, and now it is £35. If that were true, it would indeed be a disgrace, but the reality is that, following the negotiations that took place in the consultation and in the House of Lords, the savings that the insurance companies will realise and will be in a position to pass on to the man or woman paying the premium have been considerably reduced.

When the Chancellor of the Exchequer—[Interruption.] The right hon. Gentleman might be interested in listening to the answer rather than talking to somebody else. When the Chancellor of the Exchequer spoke, he of course suggested that all general damages would be entirely removed. His proposal was that there would be no general damages at all. It is therefore perfectly reasonable. If no general damages at all were paid, the insurance company’s savings would be considerably larger, and the savings passed on to the consumer might indeed have been £50.

Due to the very good work that the Opposition and the noble Lords put in, there have been a number of compromises to the Bill, which mean that the savings passed on to the insurers, and from the insurers in the form of premiums, will be considerably reduced. One of those compromises is that, whereas in the past there were going to be no general damages paid to anybody getting a whiplash injury of under two years, there is now a tariff for money to be paid out. As it gets closer to two years, the tariffs paid out will be much closer to the existing Judicial College guidelines, so the savings will be considerably less.

[Bambos Charalambous (Enfield, Southgate) (Lab)]

We have been here before with the Domestic Gas and Electricity (Tariff Cap) Act 2018, in which the Government fixed the energy price cap and said that the big energy companies would give money back to the consumers, even though the money is not as high as we expected. Then it was £100, and now it is about £70. Why does the Minister not want to do that with insurance companies?

[Rory Stewart]

That is a very good question. The hon. Gentleman and the right hon. Member for Delyn are essentially asking the same question. Indeed, that is what this whole debate is about. The question is about the extent to which the Government wish to interfere in the market to fix prices. As the hon. Member for Enfield, Southgate suggested, a very, very unusual and unprecedented decision was made about the energy companies following a suggestion originally made by the Labour party that we should get involved in fixing prices. That is something about which, from a policy point of view, we generally disagree with Labour because—this deep ideological division between our two parties goes back nearly 100 years—we are a party that fundamentally trusts the market.

The Financial Conduct Authority and the Competition and Markets Authority argue that the insurance companies are operating in a highly competitive market. The reason why we did not initially suggest that we need to introduce anything equivalent to new clause 2 is precisely that we believe that the market is operating well, and that the savings passed on to the insurance companies will be passed on to the consumers, as happens in every other aspect of the market. I have not yet heard a strong argument from the Opposition about why they believe that not to be the case. Logically, Opposition Members can be making only one argument: they must somehow be implying that the insurance companies are operating in an illegal cartel.

--- Later in debate ---

For that reason, it is important that we should ensure that the correct checks and balances, regular reviews and expert-led setting of the rate form part of the Bill. I hope that by implementing those measures we will not see a repeat of the access-to-justice crisis caused by LASPO, employment tribunal fees and—an anticipated impact—changes to the small claims limit. The Government should take the time to implement the amendments to part 2 of the Bill.

[Bambos Charalambous]

Let us be clear what we are talking about with the discount rate: damages for people who have suffered catastrophic, life-changing injuries. The lump sum they receive is to last them their entire life and is to pay for urgent treatments, care, support, adaptations—a whole host of things. We need to be very careful how we deal with this, as very small variations in the discount rate can have serious impacts.

As an example, I have been advised by a leading law firm that it settled a claim in 2015 for a client in her 30s who suffered cardiac arrest and irreparable brain damage due to negligence. She was awarded £9.95 million when the discount rate was 2.5%. That award was to pay for extensive medical treatments, childcare and live-in carers for the rest of her life. Had the claim been settled in 2017, when the discount rate was changed to -0.75%, it would have resulted in a settlement of £20 million.

Such cases are relatively few in number, but when they do occur, we must make sure that they are dealt with as precisely as possible, without leaving such large fluctuations to chance. We would all agree that the time between the setting of the two discount rates was far too long. I very much support a shorter period of time for that to take place. Someone who receives such a lump sum would surely choose to invest it in as low risk a manner as possible—they would not want any risk if possible—because it has to last them their entire life. The discount rate should be set on the basis that the investment will be very low risk.

In setting the discount rate, the Lord Chancellor is given wide-ranging discretion. That opens up potential for other factors to influence the Lord Chancellor, which could adversely impact the compensation received by someone who has suffered catastrophic injuries. We need to be clear about the reasons why the Lord Chancellor will be setting the rate. As my hon. Friend the Member for Lewisham West and Penge mentioned, the Justice Committee recommended setting up an independent panel of experts to advise the Lord Chancellor on setting the rate. It also recommended that the panel’s advice be published in full. The Bill has removed that transparency. I have grave concerns about the reasons for that and how the rate will be set. We need to know how the rate has been set. When the Bank of England sets interest rates, it has a panel of experts and it gives reasons why. A similar system should apply here.

I support the amendments and new clause. It would be right and proper for the power to be taken away from the Lord Chancellor and for the rate to be set by an independent panel of experts, at regular periods.

[Rory Stewart]

I have enormous sympathy for the amendments, in particular the arguments on amendments 24, 22 and 23. As the hon. Member for Lewisham West and Penge and the hon. Member for Enfield, Southgate have clarified, we are dealing here with people who have suffered catastrophic, life-changing injuries and we have a very particular responsibility, particularly since some of those people can be immensely vulnerable. They can include children who have catastrophic, life-changing injuries. We all have an obligation to ensure that the principle of 100% compensation is met.

The discount rate can seem a slightly technical mathematical formula. It is there to try to hedge effectively against inflation and the expected rate of investment returns in setting an award. As the hon. Member for Enfield, Southgate pointed out, a shift in the discount rate could mean a difference between an award of £10 million and an award of £20 million—a very significant difference.

In setting the discount rate, our first obligation has to be to the very vulnerable individuals who have suffered a catastrophic or life-changing injury. We need to ensure that they are able to make an investment that does not carry substantial risk. We cannot guarantee everything because inflation and markets can move. Insofar as we can do so in advance, we should attempt to arrive at a rate that fairly reflects the likelihood of their getting the compensation that it was anticipated they would receive from the judge. That means that we should not aim to chase a median rate. We should aim to chase a rate on the basis of advice from the Government Actuary and later from the expert panel, to determine the fair rate of return.

In that case, why are the Government challenging amendments 24, 22 and 23? The answer is that amendments 22 and 23 reflect the original position of the Government on the Bill, so we are slightly going round in circles. We had originally suggested in the version of the Bill that we presented to the House of Lords that the Lord Chancellor should consult the expert panel before setting the rate. Under pressure from Opposition Members in the House of Lords, in particular Lord Sharkey, the Lords pushed us into a position where we agreed that, instead of an expert panel, it should be the Government Actuary, working with the Lord Chancellor, who set the first rate.

The argument made by the Lib Dem peer and backed by others, including Lord Beecham, was that the problems for the NHS caused by the discount rate are so extreme and the costs on the public purse so extreme, that the first change in the discount rate should happen relatively rapidly, on the advice of the Government Actuary. Were we now to reject that amendment, which we accepted after long negotiation in the House of Lords, we would have to go back to the drawing board and set up the expert panel again, leading to a very significant delay, which would impose costs on the NHS.

We are in the ironic position that the Opposition are now proposing as amendments the original Government position, which the Opposition struck down in the House of Lords. We are slightly in danger of going round in circles. We are where we are and, given the problems of time, I suggest that the pragmatic compromise is that the Government Actuary, who is an independent individual with enormous expertise, works with the Lord Chancellor on the first setting or the rate, and that for subsequent settings of the rate, the expert panel comes in, as the House of Lords recommended.

That brings us to the lengthy amendment 24, which the hon. Member for Lewisham West and Penge introduced with great eloquence. That essentially argues that the rate should be set by the expert panel alone and not by the Lord Chancellor. We disagree fundamentally with that because the expert panel and the Government Actuary would argue that it is not their position to set the rate. It is their position to provide actuarial advice on different investment decisions that could be made, the likely rates of inflation and the likely rates of return.

Ultimately, a Minister accountable to Parliament should set that rate, because they have to balance some very different issues: our obligation towards vulnerable people who have suffered catastrophic life-changing injuries and our obligation on the costs to the national health service, which run into billions of pounds, and balancing these different public goods.

It simply would not be fair to expect an actuary to make those kinds of political and social decisions. It is entirely appropriate to expect actuarial experts to provide the expert advice on what the range of options would be, and to reassure individuals that the Lord Chancellor is not likely to make a decision that would have a significant negative impact. It is only necessary to look at what the Lord Chancellor did two years ago in setting the rate of -0.75%. If it had been the case that the Lord Chancellor was fundamentally driven by Treasury calculations and was not interested in defending the vulnerable individual, they would not have moved the rate from 2.5% to -0.75%, effectively doubling the compensation paid. The Lord Chancellor, in setting this rate, on the advice of the expert panel, will be acting as the Lord Chancellor, not as the Secretary of State for Justice.

[Bambos Charalambous]

The Minister said there was a big change when a previous Lord Chancellor set the rate at -0.75%. I wonder what advice and from whom she received in setting that rate. Clearly, she would have had some advice, rather than plucking that figure out of the air. I wonder what the situation is now.

[Rory Stewart]

At the moment, the advice received would be from actuaries. Ultimately, we commission the Government Actuary’s Department voluntarily to provide the best advice on what the rate should be. It then arrives at a gilt rate, which drove us towards -0.75%. The Bill puts the role of the Government Actuary into law, so it is no longer voluntary but compulsory. It will be obligatory for the Lord Chancellor to consult, and in future there will be a broader expert panel around the Government Actuary.