Freedom of Information

Elfyn Llwyd Excerpts

Thursday 24th January 2013 Westminster Hall

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

It is a pleasure to see you chairing this session, Mr Hollobone. It is also a great pleasure to follow the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith), who chairs the Justice Committee with great aplomb and ability. He has eloquently summed up the Committee’s work vis-à-vis scrutinising the Freedom of Information Act 2000 and, although there will inevitably be some repetition, I hope that my remarks do not duplicate his too much.

The Act was the product of many years of campaigning, discussion and commitment from various political spheres. When the Act came into force in 2005, it proved, I believe, to be a landmark piece of legislation. I do not think that it would be hyperbole to say that the Act revolutionised how the public were able to engage with public authorities and with local and central government. It presented a radical development in the extent to which the public were able to engage, and I emphasise that because whether the Act has fulfilled that purpose is a matter of some debate.

In December 2011, the Justice Committee, of which I am a member, called for submissions to its inquiry into post-legislative scrutiny of the Freedom of Information Act. Those giving evidence were asked to consider whether the Act worked effectively, what its strengths and weaknesses were, and whether it was operating as intended. As our report sets out, the Committee received 140 pieces of written evidence and recorded oral evidence from 37 witnesses.

If we are to adjudicate on whether the legislation operates effectively, it is necessary to set out the primary motivation for introducing it in the first place. The Ministry of Justice’s memorandum on post-legislative scrutiny of the Act identifies four objectives: increasing openness and transparency, improving accountability, facilitating better decision making, and increasing public involvement in the decision-making process. In its evidence to the inquiry, the constitution unit based in University college London identified another objective—to promote better understanding of the Government’s decision making. The Committee broadly agreed with that delineation.

On the Act’s first objective, that of increasing openness and transparency, before the Act’s provisions came into force in 2005, information on decision making in central and local government and in other public- facing organisations was obtainable only through official documents and leaked information that had made its way into the press. By contrast, the new legislation provided for a statutory right to gain access to information held by public authorities, and placed a duty on the authorities to establish a proactive publication scheme that was subject to the approval of the Information Commissioner. It sought to make public authorities more transparent in a reactive sense, in that anyone would have the right to put questions to such an authority via an FOI request, and by encouraging a more general cultural change through proactively publishing information.

In our report, we quote from the speech made in the Bill’s Second Reading debate by the then Home Secretary, the right hon. Member for Blackburn (Mr Straw). He said, about the Act:

“It will transform the default setting from ‘this should be kept quiet unless’ to ‘this should be published unless’. By doing so, it should raise public confidence in the processes of government, and enhance the quality of decision making by the Government.”—[Official Report, 7 December 1999; Vol. 340, c. 714.]

In practice, of course, the proposed publication schemes did not work as the then Government intended. The duty to produce publication schemes in section 19 of the Act is accompanied by extensive guidance from the Information Commissioner’s Office on what exactly would constitute a model scheme.

[Sir Richard Shepherd (Aldridge-Brownhills) (Con)]

The right hon. Gentleman touched on the role of the right hon. Member for Blackburn (Mr Straw). We were all present, and we have lived through the development of the Act and are very familiar with it—those of us who were friends of it and those who were not. The now Lord Clark was the initiator of the Bill. The members of the Cabinet, including the right hon. Member for Blackburn, all signed every single word of the pledge. David Clark was then dropped and despatched to the House of Lords, and the right hon. Member for Blackburn has now given us several versions of his position on the matter. I have tried to coax him to say that it was the greatest thing that the Labour party ever did while in office. He has repudiated that. He has adopted it. He has changed his view. And he was the agent who tried to limit the whole Act. So I do not hold him as the flame bearer of that essential part of the Act, and I think that that will be the view of anyone who has had any dealing with the right hon. Member for Blackburn on the question of freedom of information.

[Mr Llwyd]

I am very grateful to the hon. Gentleman for that intervention. He has been intimately involved in this matter for many years and I defer to his greater knowledge. He will see from other remarks I shall make that although I usually hold the right hon. Member for Blackburn in high esteem, in this instance the hon. Gentleman is, I think, right. It seems, from some of the right hon. Gentleman’s utterances of late, that he is rowing like nobody’s business away from the mother ship on this issue, and I am not too sure why. Many people across the political spectrum have worked hard to get us even to where we are now. I do not attribute that progress to one particular person; it has been a joint effort by all the parties over a long period, and I know that the hon. Gentleman has played a pivotal role in that.

The view of many of those who gave evidence to the inquiry was that most public authorities had failed to make full use of the schemes into which they were supposed to enter. There was also much inconsistency across Departments. One of the principal reasons why so few schemes were successful, according to Dr Ben Worthy of the University college London constitution unit, was that technological advances have made proactive disclosure redundant. He said that

“one of the reasons why publication schemes have not taken off in the way that many had hoped is that it has been superseded by the internet search engine and the fact that people can find a way of asking a question rather than looking for the information.”

The right hon. Member for Berwick-upon-Tweed has already touched upon that.

Whereas an authority or organisation may be selective about the data that are released through a publication scheme, modern technology, as we know, has allowed anyone with an internet connection to search for the information themselves. When the Act was drafted, it did not take into account the fast-developing nature of the world wide web.

Roger Gough, the cabinet member for business strategy and support on Kent county council, said that the notion of a publication scheme was “fairly antiquated.” The Information Commissioner’s Office is holding a consultation on the publication schemes, the outcome of which I am sure we all look forward to reading.

But it is not only the internet as a medium that has altered in the years since the Act was first published. Through being used to having information almost literally at the touch of a button, the public now expect more information more rapidly. For that reason, it is doubtful that the Freedom of Information Act has improved public participation in decision making. More often than not, it is those who are already engaged in public life, or those who are acting in a professional capacity, such as journalists and campaigners, who lodge FOI requests. Lord Falconer told the other place that the Act aimed to show citizens

“how government works—and to show them how decisions are taken.”

But as the constitution unit said in its evidence to the Select Committee,

“FOI is used by people already engaged in the political process, rather than bringing new participants into it.”

By contrast, for the vast majority of the UK’s population, and certainly for those under the age of 35, the principal means of obtaining information appears to be via the Google search engine. Here, too, we see why many believe that the Act was doomed to fail in increasing public confidence in public authorities. News stories disseminated online tend to sensationalise information and to focus on the negative aspects of any given story—no surprise there. One is unlikely, for example, to read a long piece online dedicated to congratulating a local council or organisation on its commendable bookkeeping.

Perhaps unsurprisingly, Maurice Frankel, representing the Campaign for Freedom of Information, told our Committee that he had witnessed a surge in trust among those who directly seek information from public bodies but that the majority of the population were more likely to read the outcomes of freedom of information searches through the media.

--- Later in debate ---

[Mr Philip Hollobone (in the Chair)]

Thank you, Sir Alan, for that point of order. The Clerk made us aware of the Division, but I will ensure that your comments are relayed to the appropriate authorities.

[Mr Llwyd]

As I mentioned, the Freedom of Information Act has developed—some might say radically—the extent to which the public are able to engage with the decisions made by public bodies. First, however, they must choose to engage.

Perhaps inevitably, the tendency of the media is to focus on the negative stories coming out of FOI requests; some say, which I believe could be true, that this may have led to a perverse incentive to hide information. The former Cabinet Secretary, Lord Gus O’Donnell, said in his evidence that he had experienced that at first hand:

“I decided to release, since I am not paid by anybody at the minute but I am a Member of the Lords, some hospitality information. I do not think anybody else does that. Surprise, surprise, you get a snidey press story in Private Eye as a result of this.”

The Select Committee, however, was very much of the opinion that the increased and, yes, sometimes unfair criticism of those in public life was a price well worth paying for greater openness.

To what extent has the Act facilitated decision making by public authorities and central Government? Regrettably, many witnesses thought that in trying to avoid the possible embarrassment of disclosure, fewer bodies were inclined to keep detailed records of meetings or to keep a log of policy information. Martin Rosenbaum, representing BBC News, argued that any change in culture brought about by the Freedom of Information Act had been inconsistent, and that the Act has done relatively little to advance transparency on account of the cumbersome nature of the FOI process. He said that

“the Act now enables us to obtain on a very crude level…facts and figures—how much was spent on this, statistics about the performance of public services and so on. The sorts of things that were harder to get previously now tend to be very easy to get, but what it has not produced, and the civil service is certainly very resistant to this, is internal discussion documents, policy discussion, minutes of meetings and so on.”

Witnesses spoke about the “chilling effect”, to which the right hon. Member for Berwick-upon-Tweed referred, that has led to civil servants being less candid in their advice to Ministers, fewer external organisations being willing to submit information to the Government and fewer meetings being held with formal minutes taken—greatly damaging the official record. As Lord O’Donnell pointed out, that “chilling effect” not only impacts on the engagement of our own generation with decision making, but will make it increasingly difficult for future historians, too, to get an accurate picture of how decisions were made, as so little evidence will remain.

Other witnesses pointed out that that unintended consequence of the Act has the potential to weaken Cabinet collective responsibility, since many key decisions will not be made in Cabinet, where formal minutes are taken, but in safe places, be it on mobile phones or behind closed doors. On the other hand, it is imperative to draw attention to the fact that the Act contains safeguards against that problem—namely, exemptions to the right of access to information in exceptional circumstances, as well as other ministerial vetoes for when information is deemed too sensitive to release.

[Sir Alan Beith]

It is worth noting that there is, or should be, a countervailing pressure in the mind of any civil servant who might be tempted not to record a reservation that he or she had about a decision or counter-argument. Frankly, if I were a civil servant and thought that the record would not reveal that I had warned the Minister that a policy was fraught with danger, my response would be that that must be minuted so that it could be seen that I had warned that that could happen.

[Mr Llwyd]

The right hon. Gentleman is absolutely right. Not only is that based on sound common sense, I am sure that it often happens in practice. There is a counter-argument, as he rightly says.

The Committee did not conclude that such a chilling effect had come about as a result of the Act. The constitution unit has published research on the subject and suggested that its impact was insignificant, thus agreeing with the right hon. Gentleman. Although the Committee decided against recommending any major change to the Act, we were mindful that Parliament is expected to pass legislation recognising the need for a safe place for high-level policy formation. It is difficult to determine when that space will be needed because, by its very nature, the evidence for when private discussions are used is patchy. Certainly, this right must not be exploited needlessly.

It has become increasingly common for minutes of private meetings and even text messages between Ministers and representatives of external organisations to be seized and published by inquiries into Government decision making. Both the Chilcot and Leveson inquiries were examples of that, and it would be highly regrettable if it led to fewer records being kept. Yet however private or embarrassing evidence may be, it is inexcusable for people to attempt to destroy or alter data to prevent their disclosure. That is why the Committee recommended extending the time limit on charging someone with this offence under section 77 of the Act. The Information Commissioner’s Office has seen evidence of such offences, but because of the inherent difficulties of charging someone within six months of the offence being committed, no one has yet been prosecuted. The Committee has further recommended that a higher fine should be available to the Crown court to reflect the gravity of the crime.

Of equal cause for concern, however, is the inadvertent destruction of records as a result of new methods of storing information. The right hon. Member for Blackburn (Mr Straw) acknowledged that when the FOI Act was drafted, the Government

“had no serious conception about the internet, which was in its infancy.”

Lord Hennessy of Nympsfield also commented on the associated changes to archive-keeping. He said:

“If you look at the archives that were created before there was even a 50-year rule, in 1958, they are very full. The 30-year rule is still very full indeed. I do fear that historians”

in future

“are going to have a much tougher time for two reasons. One is”

freedom of information,

“but there is also the digital revolution. It ceases to be a paper culture.”

One is put in mind of the BBC domesday project in the 1980s, when children conducted a survey of the UK to mark the 900th anniversary of the Domesday Book. The findings were stored on laserdiscs, which became obsolete within a few years. Although the material was saved after a laborious and costly process, the UK Data Archive faced heavy criticism for failing to preserve the material in an enduring format ab initio. The irony, of course, is that the original Domesday Book is still readable.

The Freedom of Information regime must be viewed in the wider context of information storage and retention. The internet is an exciting place in many respects. It is a vital educational tool, but it is also fast evolving. According to the National Archives, digital records deteriorate faster than paper records. The preservation of records is important for the accountability of officials, not just today, but for posterity. Indeed, many people—I am one —believe that one can educate oneself about the future from an understanding of the past. That is important.

On the whole, the evidence gleaned by the Committee was that the Act is operating fairly well. The costs associated with its administration are greatly outweighed, although not always, by the transparency and better accountability of those who make decisions that affect the public’s daily life. Freedom of information requests may lead indirectly to a reduction of costs because public authorities are now fully aware of the risk of exposure if they misuse funds. Although the Act has succeeded in its primary aim of increasing transparency and accountability, it is less clear whether it has facilitated decision making, and it has not gone far down the road of creating greater confidence in those of us who serve in public office.

In the light of the media’s tendency to sensationalise bad news, it was perhaps unrealistic ever to expect that the Act would contribute to greater public confidence in those in power. Individuals certainly have the tools to engage with decision making as a result of the Act, but those who choose to participate are usually those who have a professional stake in the outcome. The FOI regime offered enhanced democracy, but in the years since it was drafted, the parameters of public debate have shifted greatly, and internet search engines disclose information that the Government would rather keep hidden. The onus must be on Parliament and ourselves as individuals within it to face this brave new world and the challenges that technology inevitably presents.

--- Later in debate ---

[Mr Slaughter]

I hope that, rather than being churlish, I am being balanced in saying that the Government—both parties in the coalition—have taken steps on transparency and that there is an impetus from at least some parts of the coalition to move forward the ambit of the Act. I have never been able to understand why, for example, council housing departments should be subject to it but housing associations should not and why the NHS should be subject to it but Network Rail, which is also a large public sector organisation, should not. We should be resistant to special pleading from organisations.

I addressed a conference of university officials some time ago, and freedom of information was a big concern of theirs—that is, not being subject to it. I will say a little more in a moment about the research, with which I do have some sympathy, but the idea was that universities should not be subject to it because, they were saying, it costs them money and they are relatively small organisations in the great scheme of things. I am not sure that is true, for a start, but the number of requests that an organisation receives probably bears some relation to its size and therefore to its means. I suspect that many of our universities are rather bigger than, say, some small district councils.

We should therefore resist special pleading. Where there are grey areas, we should err on the side of openness rather than exemption. In particular, we should look at the points that the hon. Member for Aldridge-Brownhills made in relation to the increasingly blurred lines between the public and private sectors.

My right hon. Friend the Member for Tooting (Sadiq Khan), the shadow Lord Chancellor and my boss, made it very clear in his Labour party conference speech last year that the next Labour Government would extend FOI to

“cover the delivery of public services”,

such as prisons, schools and hospitals, by private companies and the voluntary sector. That must be right. It is right in any event, but the contractual roles that organisations —we know the usual suspects: Capita, Serco and G4S—are taking on not only involve huge additional powers, but often mean that whole areas of Government service, policy and decision making are devolved to them.

[Mr David Amess in the Chair]

I was talking to the Public and Commercial Services Union this week about the fact that it is envisaged that the criminal fines enforcement process—collection—be passed to a private company on a very long contract that delegates not only administrative, operational and decision-making powers, but some powers that until recently were judicial.

[Mr Llwyd]

What the hon. Gentleman says is right. The transfer of public functions to the private sector may not have been uppermost in people’s minds when the Act was drafted, but it is increasingly becoming an issue. Before we know it, much of the prison estate will be privatised, so, in that regard, it is absolutely crucial that FOI structures are in place.

[Mr Slaughter]

I am grateful, I agree and I hope that the Minister will address that point directly when she responds.

I shall leave that aside, because we could all discuss for a long time the types and numbers of organisations that we want to add. I would rather talk about the other two issues I mentioned: how the Act is operating and how the ongoing policy issues are being resolved or not resolved. The report deals with those matters well.

I have serious concerns about how the Act operates on a day-to-day basis. I am a prolific but I hope responsible user of the Act, so I can say from experience that the quality of service one gets varies hugely. Some organisations are good: they take matters seriously, provide comprehensive information timeously and obey not only the letter but the spirit of the Act. Many do not.

I shall give one example. It is not an extreme example at all; it is very typical. On 26 October last year, I made a request to my local authority. I was aware that it had delegated to itself, from committee to officers, the ability to sell off property as it became vacant, but it was not reporting it anywhere. Simple questions: how many properties have you sold in the past four years and what is the value of those properties? Every two or three weeks after the 20-day deadline passed, we chased them. Nothing was done. There was no attempt to comply with the Act—“You’ll get it next week.” “We’re very sorry. Don’t you have that yet?” Those were the kinds of faux-amateur ways in which it responded.

I am sure that I would not have the answers now had I not written to the chief executive earlier this week and said that I was going to raise the matter in this debate. The very straightforward answers arrived yesterday. They reveal that over that period, more than 200 properties were sold, at a value of more than £88 million, which, in the past two years, represented more than 10% of the total stock that had become vacant. Those facts and figures are important, not only because of the amount of public money involved, but due to the policy and human implications of disposing of good quality property that could be re-let, when 11,000 people are on the waiting list and many of my constituents are being moved out of London because it is said that there is no affordable accommodation. Those data should and could be available, not in 20 days, but in 20 hours.

That is a mild example. In other cases, I have waited over two years for responses. If a public authority does not wish to respond, it can find myriad ways not to do so. To give another example, we have a proportionately large number of free schools and academies in my constituency and I wanted to see the financial base on which they were funded, the capital grants, the costs they were paying for land and matters of that kind. Two years on, I still do not have that information. The excuses I have been given vary from commercial confidentiality to the notion that it would be embarrassing for those organisations, lest they are not successful, to reveal what their basis for bidding is at the time. They have even been based on tiny semantic points. It was not one of mine, but another request asked what a particular piece of land was sold for, and at the end of the process the response came back after months of delay, “Although contracts have been exchanged, there has not been completion, and therefore it cannot be right to say that this property has been sold.” I thought that was slightly disingenuous given that the people who bought it were building on the land at the time.

I will not take up the House’s time with my private grievances, but I use those examples to show that if a public authority does not wish to follow the Act, it can find myriad ways not to do so, which can range from using unqualified staff and devoting insufficient resources to deliberate obfuscation and devious avoidance. The problem is, as the Committee correctly notes, that there is no immediate penalty and the elaborate process of review is, again, often used to delay rather than bring justice.

I hope I am not quoting out of context, but the Committee says:

“We were pleased to hear relatively few complaints about compliance with the 20 day response time. We believe that the 20 day response time is reasonable and should be maintained.”

I suspect that people are put off and do not go through an additional complaints procedure or use the process of internal review and appeal. I agree with the Committee that it is important that the process of internal review is also prescribed, so that what should be a method of redress is not used for further delay. I have taken cases to the Information Commissioner where that process has had to be gone through, and unfortunately, it can take one or two years—longer in some cases—by which time, saving the most important cases of national interest, the issue will almost certainly be dead. That, of course, is the objective of the defaulting party. I hope that there is more scrutiny, by Government and the Ministry as well as the Select Committee, of the simple procedural operation of the Act and whether its spirit and letter are in turn being obeyed.

The hon. Member for Aldridge-Brownhills mentioned Maurice Frankel and the Campaign for Freedom of Information. I associate myself with the hon. Gentleman’s remarks. The campaign is a fantastic organisation, which does more than anyone else to keep us on the straight and narrow. It notes that more than 44% of requests to central Government exceed the 20-day limit. That is poor, even when the correct process is followed. We could do much better.

I shall turn to some of the policy issues. I cannot better what the Committee said on the veto and the alleged chilling effect on policy development. The Chair would not put it in these terms, but the Committee has seen through those objections and does not recommend change. I hope the Government will follow that view. There is a risk, as the right hon. Member for Dwyfor Meirionnydd acknowledged, that people will try to subvert or get round the Act in many ways, and we have heard examples of using private devices or e-mails to keep things out of the public realm. The last thing that we want to do in response to that—we should acknowledge the problem and try to work out ways of challenging it—is to say, “Well, in that case, we should allow more secrecy, because that is the only way to get that balance right.” Those debates will continue, because the agenda is both moving and changing.

There are other issues, which I had hoped could have been put to rest, that the Government in their response have kept going and even revived. The first is the issue of fees. I appreciate that the Government have resisted that, which is right, and requests to cover their costs. None the less, they have introduced the possibility of fees at tribunal, which may be a slippery slope. Certainly, if a complaint has reached such a level, which is quite a challenge for any applicant to achieve, the issue of fees should be resisted.

The Newspaper Society, in its briefing for today’s debate, as well as the Campaign for Freedom of Information and a number of national newspapers, have tried to draw attention to the worrying fact that ways are being found to limit access by way of cost. Generally speaking, those are occult ways of doing it; it is not a head-on attempt to restrict. When I say occult, I am not referring to the ghosts and zombies in the Cabinet Office or in Leeds city hall. I am talking about ways that are, ironically, not open.

I have a number of questions for the Minister to answer. If the Government are thinking of reducing the number of hours beyond the marginal levels that the Select Committee proposes, what are those proposals and how can they be justified? Are they thinking of introducing the aggregate claim, whereby an individual or an organisation will only be able to put in a certain number of claims before hitting the cash limit? Moreover, in totting up the number of hours on any individual request, will the Government include thinking time? If they do, what is the rationale for that and where is the impact assessment that will show the effect that that will have? Maurice Frankel quotes an estimate that says that just the thinking time clause alone will affect 4% of requests to central Government and 10% of requests to other public bodies. Those are significant figures, but, as Maurice Frankel points out, that is based on the actual time spent and not on the estimated time, which of course could be a lot greater. Any one of those measures, let alone the aggregate of them, would have a significant effect on the number of requests that are refused on the grounds of cost, which is a route that we do not want to go down.

There is a general acceptance, I think, that there has to be a limit on costs. No one in this debate has said that the overall cost of the Act is prohibitive and I do not think that the Government have said that either. None the less, cost is a convenient way to turn down requests without having to justify things more thoroughly. As I have said, I have had every possible reason thrown at me. One very common one is commercial confidentiality, which is often presented in a nonsensical way. Let me give an example. There was a significant and controversial land sale in my constituency between two public sector bodies—part of the BBC estate was being sold to Imperial college. The whole matter was resolved; there were no outstanding issues and no ongoing negotiations. Yet both parties resisted requests on the basis of commercial confidentiality. We need to be more sceptical about some of the excuses that are used. I hope the Government will not be seduced by those arguments, and that we can have some clarity on that.

There is an argument when it comes to research. I do not accept the argument for exemption of universities, but, given what is happening in Scotland, it may well be that the Government are right on this. We want to protect genuine research, but we do not want to allow that to become a catch-all for refusal. We should consider exemptions very carefully. This is an area in which the Government, thus far, do not have a bad record.

The Minister will have heard me say very often, even in the short time that she has been in post, that the Government have a bad record on the citizen’s right to access justice and information. We have cuts in legal aid and the prospect of further cuts, the wholesale change to conditional fee agreements, a review of judicial review, and charges increasingly being introduced for courts and tribunal services. That is a poor record, and a signature of this Government of which they should be ashamed. Let us not add freedom of information to that catalogue. So much has been achieved over the past 15 years with a reasonable degree of consensus. We want to allow the citizen far, far greater access to information, and to change what has been very secretive government in this country, under all parties, into something that is genuinely open. That will be as beneficial to the Government as it will to the citizen, so let us not shy away from it now.

[The Parliamentary Under-Secretary of State for Justice (Mrs Helen Grant)]

It is a great pleasure to serve under your chairmanship, Mr Amess. I congratulate my right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith) on securing this debate, and I thank all hon. Members who have contributed. I am grateful to the Justice Committee for its thorough work on the post-legislative scrutiny and to all those who contributed to its inquiries. I re-endorse the sentiments that have been made this afternoon in relation to my right hon. Friend’s great aplomb and his ability to chair the Committee.

The Government remain committed to greater transparency—the Freedom of Information Act is a key part of that—and we have been successful in our key aims of increasing openness, transparency and accountability. I agree with hon. Members that it is perhaps less clear how much of our secondary objectives of increasing trust and public participation have been met and that, to some extent, those objectives may not have been realistic ambitions. I agree with the Justice Committee that the Act has been a

“significant enhancement to our democracy.”

It is not perfect, but it is generally working well. For that reason, the Government are not proposing a radical overhaul.

Before turning to the specific issues raised by post-legislative scrutiny, it is important to say that we need to put them in the context of the Government’s wider transparency agenda. Since we came to power, we have published almost 9,000 data sets, covering a wide range of subjects connected to health, education, transport, crime and justice. In June 2012, we published the open data White Paper, “Unleashing the Potential”, which sets out how the transparency agenda can help to provide greater access to and the re-use of raw data. We have set up the Open Data Institute to promote innovation, using the data that the Government publish, and pushed strongly for more transparency internationally, including through the international Open Government Partnership.

I assure my right hon. Friend that the Government’s transparency agenda is no substitute for, and will certainly not diminish, the important work that is being done in relation to the Freedom of Information Act. As we take the transparency agenda forward, we will push for greater openness and accountability, so that people know what is being done in their name and with their taxes.

Proactive publication needs to be complimented by an effective system that allows the public to seek information for themselves about how public authorities do their jobs. That is why the Freedom of Information Act is so important and why we are taking a number of steps, following scrutiny, to strengthen and extend it.

We are reducing from 30 to 20 years the lifespan of some of the exemptions to disclosure in the Act. That reflects and is simultaneous with the changes that we are making gradually to replace the 30-year rule under which public records are released by the National Archives with a 20-year rule. We have made secondary legislation to begin that transition over a 10-year period, and it came into effect on 1 January.

We are introducing enhanced rights to access and reuse data sets under the Protection of Freedoms Act 2012. A public consultation on a draft code of practice to help public authorities to meet those new obligations concluded on 10 January, and the provisions will be commenced shortly.

We are taking steps to extend the Freedom of Information Act to more organisations that perform public functions and to companies wholly owned by any number of public authorities. We have already extended it to all academies, the Association of Chief Police Officers, the Financial Ombudsman Service and the Universities and Colleges Admissions Service.

In our response to post-legislative scrutiny, we made it clear that we intended to conclude consultations with a wide range of other bodies, including more than 200 harbour authorities, awarding bodies, approved regulators under the Legal Services Act 2007 and 2,000 housing associations. Therefore, unless there is good reason for not doing so, we can extend the Act to any public function that they carry out. Our aim will be, where possible, to introduce secondary legislation over the next two years to implement the changes that we decide are warranted.

I am aware of some Members’ concerns about the position under the Act of contractors and other companies that provide public services. The challenge that outsourcing public services poses to transparency is real, and it is one that we have sought to address proportionately. We do not currently propose the formal extension of the Act to providers of outsourced public services. We prefer the Justice Committee’s recommendation that contractual transparency clauses be used and enforced to ensure that freedom of information obligations are met.

We strongly encourage public authorities and contractors alike to go further than the minimum requirements in the Act and voluntarily to provide more information. To that end, we will issue guidance that sets out the circumstances in which we want to see further information released. My hon. Friend the Member for Aldridge-Brownhills (Sir Richard Shepherd) and the shadow Minister raised powerful concerns about this issue, but I reassure them that if our proposals do not have the desired effect, formal extension of the Act can be considered and is always possible.

We have sought to balance the need for transparency with the need to minimise burdens on business and to encourage active participation by bodies large and small in the provision of public services. Some people might not consider that enough, but it is a light-touch, good approach requiring the co-operation of public authorities and contractors alike. As I said, however, if that approach yields insufficient dividends, we will consider what other steps we need to take to ensure accountability, and that includes formal extension. I hope that provides reassurance.

Let me now turn to the Act’s cost. Despite the many benefits that the Act has brought, we cannot ignore concerns about the burdens that it imposes on public authorities. That is especially important in the current challenging financial climate and at a time when more freedom of information requests than ever are being received. Central Government received 47,000 initial applications in 2011, at a cost of £8.5 million in staff time alone. Local authorities and other public bodies are also affected. We aim to focus our efforts on the disproportionate burdens placed on public authorities by what we call industrial users of the Act.

[Mr Llwyd]

I am listening carefully to the Minister, especially on this part of her speech. I do not recall any local authority that gave evidence to the Committee saying that the costs were prohibitive. Perhaps she is over-stressing that aspect.

[Mrs Grant]

Whether or not I am over-stressing them, these matters will be considered in great detail through consultation, and there will be ample opportunity for others to have an input and become involved.

Our research indicates that a very small number of requests contribute to a relatively large proportion of the cost of freedom of information: 8% of requests to central Government cost more than £500 to answer and make up 32% of total staff costs. The Justice Committee recognised that issue in recommending a small reduction in the cost limit beyond which requests need not be complied with. We believe that would result in only the most minimal reduction in costs, so we will consider whether to go further.

My right hon. Friend the Member for Berwick-upon-Tweed raised consideration time, and the shadow Minister raised thinking time. We recognise, of course, the practical difficulties in including such tasks, but they are worth considering to find out what might be done.

The introduction of fees for tribunals has also been raised by Members today, and we will certainly consider what we can do to recover the costs associated with the running of tribunals, but we do not think anything that we do will impede access to justice. We will also consider other ways to reduce burdens fairly and proportionately, including addressing where one person or group of people use the Act to make unrelated requests to the same public authority so frequently that it becomes an inappropriate burden.

I assure Members that whatever measures we ultimately decide to take, we will have regard to the need to reduce burdens without an excessive impact on transparency. An example of that is our decision in the post-legislative scrutiny response not to introduce new fees for answering freedom of information requests. To do so would both deter the legitimate use of the Freedom of Information Act and prove expensive for public authorities to administer.

The third key area addressed by post-legislative scrutiny was the protection afforded to highly sensitive information. The Government welcome and share the Committee’s conclusion that it was Parliament’s clear intention that the Act should protect safe space for policy formulation and Cabinet discussion. That issue has rightly been raised by my right hon. Friend the Member for Berwick-upon-Tweed, and I note his and other hon. Members’ references to the allegation of a possible chilling effect.

We agree with the Committee that the current system of protection in the Freedom of Information Act, including exemptions for the disclosure of information and the availability of the veto, has generally worked well. We share the Committee’s view that new absolute exemptions are not necessary. Although we are committed to transparency, so that any freedom of information regime can operate effectively, it is right that we keep under review the protection given to genuinely sensitive information. Effective government depends on the protection of the principle of collective responsibility and the ability of both Ministers and officials to provide advice freely, frankly and with candour.

We have announced our intention to review and, as appropriate, revise the Government’s published policy on the use of the veto. The policy is designed to assist where use of the veto is considered in respect of information that relates to Cabinet collective responsibility. However, no limitation in the Freedom of Information Act prevents the veto being used for other information. Indeed, the Government have concluded that its use was justified in other contexts on more than one occasion last year. Accordingly, we propose to consider whether the veto policy can be adapted both in terms of the process for its use and to offer greater clarity and reassurance on its ability to be used in appropriate cases that do not involve Cabinet-related information.

Other changes that we will introduce to improve the operation of the Freedom of Information Act will require a combination of primary and secondary legislation.

Transforming Rehabilitation

Elfyn Llwyd Excerpts

Wednesday 9th January 2013 Commons Chamber

[Chris Grayling]

I intend to continue the work done by my predecessor, the right hon. and learned Member for Rushcliffe, on increasing the amount of work done in prisons. He has done good work in extending that already and it is particularly important that that work continues after prison. That was why my hon. Friend the Member for Reigate (Mr Blunt) and I worked hard to ensure that prisoners who came out of jail entered the Work programme on day one and started to get back-to-work support straight away. I want to see an integration of support that not only delivers the life management and mentoring I have discussed today but ensures that we provide proper back-to-work support for offenders alongside that, as that is the best way of stopping them reoffending.

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

During his statement, the Secretary of State said that sometimes we must believe that something will work rather than having a pilot. That same Secretary of State believes that we should drastically increase electronic tagging, despite his own impact assessment saying that that will have no impact on reoffending. Should we take the consultation seriously?

Oral Answers to Questions

Elfyn Llwyd Excerpts

Tuesday 18th December 2012 Commons Chamber

[Jeremy Wright]

I am grateful to my hon. Friend, who knows of what he speaks. The important point is that we need to recognise the achievements and the contribution of probation officers, alongside making sure that we introduce new and good ideas into the process of rehabilitating offenders. I will consider carefully what he has said and we will look at what we can do along the lines that he suggests.

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

Will the Minister confirm that it is his Department’s intention to brief the press this afternoon at 4 o’clock on possible privatisation of the probation service, a day in advance of advising the House?

[Jeremy Wright]

The right hon. Gentleman will have to wait and see exactly what we propose and exactly when we propose it, but what he has just described is not going to happen.

Leveson Inquiry

Elfyn Llwyd Excerpts

Monday 3rd December 2012 Commons Chamber

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

As hon. Members know, the press of late have come in for some knocking—justifiably—for scandal, corruption and illegal practice, but it is also obvious from the inquiry that urgent action needs to be taken to restore the public’s confidence in the media. I do not intend to dwell on the reasons for the inquiry because all hon. Members agree on them. We also agree that it is vital that freedom of the press is maintained and upheld, as it is in any strong democracy, but I was glad that the inquiry did not shy away from controversy, and that it recommended, in effect, a regulatory body whose independence is guaranteed by law. We have heard fine speeches from hon. Members on both sides of the House—there are entrenched feelings on both sides, and this debate is an important one.

Unlike wholly independent regulation, regulation by either the state or the media would clearly fail to be truly accountable. At the same time, it is vital that we do not throw out the baby with the bathwater, so protecting freedom of expression and high standards of journalism is non-negotiable. Much attention has been paid recently to the kind of model we could look at for the regulated body. Something similar to the Office for Judicial Complaints or those bodies overseeing medical practitioners, vets, barristers or lawyers, have been suggested by some. There is, of course, a crucial distinction. They are licensed and, because they are licensed, they are entitled to practice, and that is an entirely different thing altogether. Incidentally, all those bodies are creatures of statute and nobody says that they interfere politically with anybody delivering services. However, I would think that every journalist would baulk at having to be licensed, and naturally so.

We need something to replace the Press Complaints Commission, which palpably has failed over many years to deliver. It has been characterised by lack of teeth and ineffectual compromises and, in addition, it has only covered the actions of the press that have opted into the system. Some serial transgressors decided to opt out and redress against them was then limited to the libel courts, access to which was unaffordable for many people—indeed, the vast majority.

We have heard about the Irish model. Although that is not a statutory body, it is recognised in legislation—the Defamation Act 2009. It has the power to deal with complaints made against its member publications. There is also a press complaints ombudsman, and both the ombudsman and the Press Council of Ireland are funded by a levy paid by each member title, based on circulation. Member titles of the PCI become members on a voluntary basis and are subject to a code of practice. Interestingly, as has been mentioned, all UK newspapers that also publish in Ireland have joined the PCI, and that includes even those that now oppose what they think is statutory regulation in the UK. During the inquiry, oral evidence was heard from many corners. A number of individuals suggested that the PCI could be a model to be replicated in England and Wales, and that it is recognised by statute, but not set up by statute.

The PCC is UK-wide. It is confusing, however, that despite servicing all parts of the UK, the PCC, which is based in London, states on its website:

“Newspapers from all four countries circulate across borders and are often owned by the same companies. Separate PCCs…would lead to confusion…as well as considerable additional expense.”

It is disheartening that the Prime Minister has hitherto hinted that he is reluctant to follow suit and implement the findings of the inquiry in total. Supporting regulation in principle is not enough. Changes must be implemented in practice for there to be a meaningful change. We have heard about 70 years and seven attempts and so on, but central to any new system must be access to restitution, and a simple and easy-to-navigate complaints process.

In his statement to the press last week, Sir Brian Leveson chose his words very carefully. He pointed to the elephant in the room: the internet and Twitter, which is another issue that we will have to look at in the not-too-distant future. I would welcome comments from Government Members on how we can tackle that anomaly.

Lord Leveson’s inquiry was a careful and thoughtful process, and its recommendations have been reached by hearing a vast amount of evidence. Sir Brian has said that statutory underpinning is vital. He was at pains to say that freedom of the press was vital, and that freedom from political interference is, of course, extremely important. On statutory underpinning, he said:

“What would the legislation achieve? Three things. First, it would enshrine, for the first time, a legal duty on the Government to protect the freedom of the press. Second, it would provide an independent process to recognise the new self-regulatory body and reassure the public that the basic requirements of independence and effectiveness were met and continue to be met; in the Report, I recommend that this is done by Ofcom. Third, by recognising the new body, it would validate its standards code and the arbitral system sufficient to justify the benefits in law that would flow to those who subscribed; these could relate to data protection and the approach of the court to various issues concerning acceptable practice, in addition to costs consequences if appropriate alternative dispute resolution is available.”

He goes on to say:

“Despite what will be said about these recommendations by those who oppose them, this is not, and cannot be characterised as, statutory regulation of the press.”

[Eric Joyce (Falkirk) (Ind)]

We have heard a great deal about the great and good so far in this debate, and it has been interesting, but does the right hon. Gentleman think that sometimes Leveson might just say something—it might actually be so—but that we might take a different view?

[Mr Llwyd]

Having read large parts of the report—it is a carefully constructed document that has evaluated the evidence—I take Sir Brian Leveson at his word. I do not see what benefit would accrue to him if he said something he did not believe to be true, and I do not think for one minute that he would say that.

[Eric Joyce]

We just might disagree.

[Mr Llwyd]

Others may disagree, of course—that is why we are having the debate. I respect the fact that others may disagree—that is what debate is all about.

Personally, I do not quite see the merit in the current debate being about “non-statutory” or “statutory”. It seems to me that there will have to be some form of legislation in any event. Some argue that because the head of Ofcom is appointed by Government, choosing Ofcom or a similar body as the underpinning regulatory body—or, say, a version of it—could lead to political interference. I had a debate on the radio on Friday with the ex-head of legal affairs at the Telegraph—a man I have known for many years and whose views I respect. He proposed the notion that involving Ofcom amounted to possible political interference. I asked him for examples of where Ofcom had acted politically in the past. I am yet to hear of any example of where that may be the case. Sir Brian’s proposals are clearly well thought out and the exact opposite of “bonkers”. The Government should adopt them in full.

[Stephen Williams (Bristol West) (LD)]

The right hon. Gentleman has just confirmed what I was hoping he would say—that he feels that the proposals are not bonkers. We have all been written to by Christopher Jefferies on behalf of the Hacked Off campaign. He is a constituent of mine and someone I have known for over a decade. He was arrested, during which time he was traduced by the national newspapers, something he has said was the worst period of his life. He asks us to endorse Lord Leveson’s proposals. Does the right hon. Gentleman agree?

[Mr Llwyd]

Yes, I do—that has been the theme of what I have been saying for the last seven minutes. [Interruption.] The hon. Gentleman has got his intervention in and that is quite important. However, I say with respect that I agree. We have all received letters from families and individuals who have suffered immensely at the hands of the press of late. I therefore welcome the proposals. We owe it to all those families and individuals to get it right, because if we in Parliament fail to grasp the nettle for the eighth time in 70 years and do not put matters right, it will be tantamount to letting them down very badly indeed and turning our backs on this historic opportunity.

[David Simpson (Upper Bann) (DUP)]

Does the right hon. Gentleman believe that the Leveson recommendations contain sufficient protection for whistleblowers?

[Mr Llwyd]

Surely it is up to us as parliamentarians to ensure that we build those protections in. There are many important core things that we need to ensure. For instance, we need to ensure that people’s sources are kept in the private domain, and there are many other things that we need to do. Those are the details that we shall have to go through carefully in the coming weeks.

Like the press, we Members of Parliament are now held in low esteem, because of the scandals involving some Members. Failure to deal decisively with this problem without fear or favour will plunge us into further and deeper opprobrium, and we will deserve it.

Police Pensions

Elfyn Llwyd Excerpts

Wednesday 28th November 2012 Westminster Hall

[Keith Vaz (Leicester East) (Lab)]

Let me begin this important debate by paying tribute to the bravery and dedication of police officers across the United Kingdom. They do a unique job that is without parallel in the public sector. We are rightly proud that our police service is the best of the best. The Minister and I saw for ourselves very recently such acts of bravery when we attended the police bravery awards evening, organised by the Police Federation.

The whole country saw the danger that officers put themselves in every day to keep our community safe when two young unarmed and exceptionally courageous officers, Fiona Bone and Nicola Hughes, lost their lives in the line of duty. Thanks to the police and other stakeholders, there has been a 40% reduction in crime over the past 15 years. It was police officers who, along with the Army, were responsible for the safety and security of the magnificent Olympic games this summer after we were all let down by G4S. As we hold this debate in the warmth of Westminster Hall, police officers are out saving lives, helping people in towns and villages to escape the rising floodwaters.

As this is the first debate with the Minister since he has taken over his new portfolio, may I congratulate him on winning his asylum appeal and moving, after seven long years with the immigration brief, into policing? He must be missing the UK Border Agency terribly, but I can assure him that we will keep him very busy with policing issues.

I am also pleased to see so many right hon. and hon. Members from all parts of the House here today. They will forgive me if I take a limited number of interventions because time is short, but I promise that I will acknowledge their presence at the end of my speech.

The Government’s proposal to increase the pension age to 60 is wrong. The Winsor review found that the average age at which police officers currently retire is around 50 to 51. Some police officers may want to continue to serve and work beyond that age, but it is unfair and unjust to mandate them to serve until the age of 60.

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

I thank the right hon. Gentleman for giving way and congratulate him on securing this important debate. May I make two brief points? First, is it not distasteful to change a contract of employment halfway through and, secondly, given the special nature of the work that these brave men and women do, should we not be careful about expecting them to defend us on the streets at the age of 60 plus?

[Keith Vaz]

I have a quick answer to both questions, which is yes and yes, and I cover them both in my speech. If we expect police officers to stay on until the age of 60, it is a matter of fact that some will find their roles harder as they become older, as people like me know. Those officers will have to be relocated to back-office positions, which are precisely the functions that the Government are urging forces to cut while maintaining front-line numbers. The consequence of these proposals for police officers and forces will be seriously damaging.

Oral Answers to Questions

Elfyn Llwyd Excerpts

Tuesday 3rd July 2012 Commons Chamber

[Mr Speaker]

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

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

I shall try to stun you, Mr Speaker.

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

[Mr Clarke]

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

Family Courts

Elfyn Llwyd Excerpts

Thursday 24th May 2012 Westminster Hall

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

It is a pleasure to serve under your chairmanship, Mrs Osborne.

Few though we are in number today—it is the last day of term and there is a debate under way in the main Chamber at the same time—we are here to consider the report that the Select Committee on Justice published in June 2011, and to hear an update from the Minister, who I am glad to see in his place. The Committee’s report, “Operation of the Family Courts”, followed the publication of the family justice review’s interim report that rejected the introduction of a shared parenting presumption; proposed a legislative statement reinforcing the importance of the child having a meaningful relationship with both parents; recommended a new statutory time limit of six months in care and supervision cases; and proposed a fundamental restructuring of the family court system through the creation of a family justice service.

The Justice Committee broadly welcomed the review’s approach, although we remained neutral on the creation of a family justice service, because at that stage the evidence of how it would be constructed was limited. The Norgrove review final report was published in November 2011, and the Government’s response to it was published in February 2012. All three—the Norgrove review, the Justice Committee and the Government—considered a number of main themes: the underpinning principles, including shared parenting if it is a relevant concept; the use and promotion of mediation; the Children and Family Court Advisory and Support Service; the family court system; the use of expert witnesses; and media access to family court hearings. I will deal with them in that order.

This is a timely debate, because on 9 May, the Government announced their intention to introduce a children and families Bill in early 2013. There will be an opportunity for the Committee to undertake pre-legislative scrutiny of draft clauses before the formal introduction of the Bill. If the state in the form of the judiciary— the court system—is going to intervene in family relationships, or if the state in the form of the protection authorities is going to do so, it must promote and protect children’s safety and well-being. The family justice system considers cases ranging from the separation of a couple where the unresolved issues may be financial, to public law cases that may involve physical, sexual or emotional child abuse. In the most serious cases, a child’s life may be at risk, as we know from some chilling cases in the past few years.

In March 2010, there were 46,709 children on the child protection register because they were thought to be at risk of abuse or neglect. Private law actions deal with the consequences of relationship breakdown. Public law actions are brought by local authorities for child protection purposes. Both types of case can involve highly contested views and a great deal of emotion that is difficult to channel in the courtroom and which often makes the judicial procedures seem remote from, or inappropriate to, the circumstances being dealt with. The Ministry’s judicial and court statistics tell us that in 2009 there were 163,000 court cases involving children, of which 137,000—I am rounding the figures—were private law cases and approximately 26,000 were public law cases. We received evidence about both kinds of case.

Throughout our inquiry, the Committee found it difficult to form a clear picture of trends and changes in the family justice system because of flaws in the compilation of data. We recommended the creation of a robust evidence base for the formation and scrutiny of policy. The Committee is concerned that major changes to the system are being undertaken when there have been such gaps in the evidence base. I know that Ministers and the permanent secretary—we congratulate him on his forthcoming appointment as head of the European Bank for Reconstruction and Development—have sought to improve the quality of financial and outcome data in the Ministry of Justice. This is a major issue in the Ministry of Justice and it is being addressed, but we felt that in this area, as in others, the evidence base was not there for some of the conclusions that were being drawn. We asked the Government to report back to us, which they did to some extent in their response to the Norgrove review. Indeed, they commissioned work from one of our special advisers, Professor Judith Masson. However, this issue needs to be watched carefully and we will do so.

On the underpinning principles, the Children Act 1989 introduced three principles: the child’s welfare shall be the court’s paramount consideration; parents share not rights, but responsibilities; and in any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child. The evidence before the Committee showed that courts rarely deny contact between child and parent. The majority of applications resulting in no contact are applications that have been abandoned by the applicant parent. This is an emotive issue that has led to some intensive campaigning—some of which has been proper; some rather less commendable in its methods—on important issues.

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

I congratulate the right hon. Gentleman on the contents of the report. As a member of the Justice Committee, I am aware of his wise counsel to all of us in the preparation of the report. Does he share my concern that the concept of shared parenting is gaining traction in government, particularly as we have seen international comparators—Australia is one such country—where it had been tried and failed abjectly? Its adoption would surely undermine the paramountcy principle to which the right hon. Gentleman referred.

[Sir Alan Beith]

The right hon. Gentleman, who is an extremely valued member of the Justice Committee, anticipates what I am going to say. He is right to say that we looked at evidence from Australia and were very concerned by what it showed. To us it seemed obvious that a court would realise, without having to be told, that it is in the interest of the child, as far as possible, to maintain a relationship with both parents. Once some kind of shared parenting provision is embodied, we are moving away from the principle that the court starts with—that the welfare of the child is of paramount consideration. Paramountcy does not sit easily with additional presumptions or additional qualifications, and the Australian experience underlined that. Our report states:

“The Panel itself admits that such a statement is not intended to change the law but believes it could ‘guide’ parents who are splitting up. In our view it is obvious to the court that a child deserves a loving, caring relationship with both his or her mother and father. A statement which might be taken to qualify the principle that the best interests of the child must prevail could give the impression of a change in the law and could cause confusion.”

We referred to the evidence from Australia that

“the ‘shared parenting’ approach had not only confused parties about how the “best interests of the child” test should operate, but can encourage a more litigious approach by parents in private law cases. This is in direct opposition to the greater emphasis on mediation and out-of-court agreement…which both the Government and the Family Justice Panel are pursuing.”

The shared parenting presumption would be a dangerous road to go down. It would be a legal requirement for the courts to consider making orders for children to spend equal or substantial and significant time with each parent, unless that is not in the child’s best interests or reasonably practicable. Doing that would further extend the present profoundly unsatisfactory situation in which a court tries to decide whether a child should be with one or other parent on the Friday night, or whether the child is free to make their own choice to go to scouts or guides, or to a youth group in a different town from the one they are being told to go to. That would become much worse if the shared parenting principle were applied.

The alternative gaining some traction in government, as the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd) said—it varies depending on which bit of Government you inquire of: that is not a statement about parties; it is a statement about individuals—is a legislative statement enshrined in legislation, reinforcing the importance of the child having a meaningful relationship with both parents, alongside the need to protect the child from harm. However, that undermines the paramountcy of the interests of the child.

When we considered the Australian experience in more detail, we found that it was mirrored by some evidence from home, which showed that the England and Wales court system does not always ensure that judges have relevant evidence in front of them relating to safety fears and violence towards a child or partner, or even relating to proceedings in another court, such as non-molestation orders or criminal proceedings, and that judges may not give appropriate weight to such evidence. Research shows that high levels of domestic violence exist in private law cases that reach court, and it is in such cases that the legislative statement is likely to have an impact.

In Australia, the presumption caused confusion and was misunderstood as mandating or entitling parents to shared care—it did not do that, but it was misunderstood as doing so by quite a lot of people—and caused concern that the child’s interests were not considered to the extent that they should be and were not paramount. In some cases, the presumption seemed to lead to parents being less willing to negotiate and resolve arguments over child contact outside the court.

We concluded that the child’s well-being must be the paramount aim and objective of the family courts and the “best interests of the child” test should remain the sole test. The Norgrove review came to the same conclusions. Because different people interpret shared parenting differently, legislating for it gives the impression of parental rights to a particular amount of time with a child and takes away the focus from the child’s well-being—the child’s rights.

We disagreed with the proposal for the legislative statement in the Norgrove review’s interim report, but paragraph 61 of the Government response says that there

“should be a legislative statement of the importance of children having an ongoing relationship with both their parents…where that is safe, and in the child’s best interests.”

The Government state that they are

“mindful of the lessons which must be learnt from the Australian experience”

and their stated aim is that the

“presumption of shared parenting will…enhance the prospect of an agreement between parents”.

The Government stated that the legislative statement will not disturb the “best interests of the child” test. It is unclear to the Committee how this can be achieved. I remain concerned that the introduction of a statement will lead to confusion and would take greater prominence than the current best interests tests.

We share the Government’s concern about early intervention, which is another important issue, not only in relation to our specific work on family justice, but much more generally, because the circumstances in which children and young people become involved in offending behaviour can develop as a result of many public and private law cases, so there is massive public interest in trying to ensure that the right advice gets to the right people at the right time.

We mentioned the signposting of advice and contact opportunities and said:

“There is no point in referring parents to services which have no capacity to cope with additional demand. However, we know that resources are scarce and that it is unrealistic to make demands for widespread increased Government spending in the current climate.”

We noted the Government’s ideas about the big society bank, or Big Society Capital as it is now called, as

“a potential source of capital for charities”

and called on them

“to confirm that such bodies which provide early intervention for families which need assistance would…be eligible for such capital”.

That related to a previous Committee report on justice reinvestment, which made the case for more funding to be spent on early intervention, with eventual consequential reductions in expensive prison places. We cannot go on as a society pouring money into an ever-expanding prison system. We would be much more likely to reduce crime if we used some of those resources at the stages that we are talking about here, when family breakdown takes place. I think the Government agree with us in principle and I should like to hear that they are making progress.

Courts are unsuited to resolving the kinds of highly emotive disputes that can arise in family cases and there are circumstances in which the authority of the court to resolve the dispute is rarely recognised by both parties. Such cases are charged with emotion and mistrust. Mediation is a better route to follow in a large proportion of cases. There is clear evidence that mediation can be effective, with a high proportion of parties reaching agreement or narrowing the issues in dispute. There will always be a hard core of cases where mediation is not appropriate and provision must be maintained for these.

I welcome the Norgrove review recommendation that mediators should meet the current requirements set by the Legal Services Commission. However, in the mediation process it is vital that the Government should ensure that the voice of the child is heard. The child is not a commodity to be negotiated over, as in a property case, but the person to whom the proceedings are most important. We look to the Government to ensure that mediators understand that and exercise that responsibility.

There is a history to our consideration of CAFCASS. The severe but necessary criticisms of CAFCASS by our predecessor Committee, as long ago as 2003, led to the resignation or removal of the entire board. In our recent report, we called on the family justice review to address directly the future structure of CAFCASS. I welcome the recommendation that CAFCASS be made part of the proposed new family justice service. We said that that would be a first step, but only a first step; in itself, it will not be enough:

“It needs to be the first step in a series of reforms designed to transform Cafcass into a less process-driven, more child-focused, and integral part of the family justice system.”

We recognise that CAFCASS operates within a cash-limited system, but it has to be able to deliver a timely, consistent service to all children—regardless of changes in the volume of cases, over which it does not have control. We welcomed CAFCASS’s recent progress in reducing the number of unallocated cases. We shared the Public Accounts Committee’s concerns about CAFCASS’s ability to sustain its progress when there was no sign of a future fall in the number of care applications. We were concerned to ensure that CAFCASS became refocused on the best interests of the child. There needs to be a safe minimum level of service during this period of difficulty when there is an increased number of cases.

We were concerned about the amount of time that CAFCASS officers spend with children, which we felt was too low—unacceptably low—in the longer term. CAFCASS officers agree with us; they want to spend more time with children, and this should be facilitated. That is consistent with what the Government are trying to do about giving police officers and other professional public servants time to do the job.

The Government intend to transfer the sponsorship of CAFCASS from the Department for Education to the Ministry of Justice. That has been out of our terms of reference for a while; when our predecessor Committee reported on it, it was a Lord Chancellor’s Department function, then it went off to the Department for Children, Schools and Families. The Government now propose to return it, which is logical, because CAFCASS’s work is close to the courts and it ought to be an integral part of the family justice system, with a strong voice within that system to champion children in the courts. However, I am afraid that the history of CAFCASS is one of inadequacy. It must continue to improve and be seen to improve by participants.

I turn now to delays in case management in the family court system. Delay, to a child, has massive consequences. Two parties to a commercial dispute may be inconvenienced by delay, but a child whose case waits for months or years is losing crucial years of contact, bonding and personal development—all the things that we take for granted, but which are completely disrupted by delay.

Delay is endemic and rising. The average case took 53 weeks in 2010, although the Children Act target is 12 weeks. The Norgrove review suggests that the average case took 60 weeks. Witnesses suggested to the Committee various causes of delay, including fixed and limited resources—not just financial resources, but sitting days available to use courts for family court business, for example, as Mr Justice Ryder mentioned—the slow speed of CAFCASS reports, which the National Society for the Prevention of Cruelty to Children told us about, along with insufficient numbers of experts of sufficient quality. I shall return to the issue of experts.

Other causes of delay were variations in the quality of case management by the judiciary, to which Sir Nicholas Wall referred, and a lack of trust between social workers, the judiciary, CAFCASS and the parties, leading to repeated adjournments to seek further evidence, to which the Public Accounts Committee referred in its report. Barnardo’s, commenting on public law cases, told us that the impact of delay on children’s ability to form relationships was harmful and long-term:

“Two months of delay in making decisions in the best interest of a child equates to one per cent of childhood that cannot be restored”.

The potential outcome of cases can be prejudiced. The opportunity to have an outcome that is in the best interests of the child is often lost by delay. By the end of the process, options that might have been available are no longer available, and are thought by the courts to be no longer available, perhaps because of the time that has elapsed since the child has had contact with one of the partners. That is a profoundly unsatisfactory state of affairs. The Norgrove review recommended the introduction of a statutory six-month time limit for the completion of care cases, which I understand the Government support. I welcome the intention, but will it happen? Is it enforceable? I would like to hear the Government’s thinking.

A related topic is judicial continuity—the same judge. Having the same judge manage and hear a case not only allows for effective case management and efficient use of judicial time, but is an important signal to parties, above all to the children, that their case is being treated with the respect that they deserve; they can establish more clearly who the authority figure in the situation is. We welcome the president of the family division’s recognition of the issue and his willingness to reconsider how things are often dealt with at the moment.

On litigants in person, the Ministry of Justice told us that the number of unrepresented litigants in the family courts was “significant” but it did not know how many—to go back to the issue of data, which I mentioned earlier. During the course of our inquiry, the Government consulted on and legislated on legal aid for family law cases, ending it except for those involving domestic violence—in certain limited categories—or if mediation was to be facilitated. The Ministry estimated that at least 210,000 cases would no longer be eligible for legal aid, such as cases in which the presence of legal aid on one side created an inequality between the parties, and they may include cases that do not involve children.

The Government believe that the removal of legal aid will force more litigants into alternative dispute resolution, which some people will no doubt use—I certainly hope so—but it is inevitable that the number of litigants in person will increase. It is self-evident that many parents are unlikely to give up applications for contact, residence or maintenance simply because they have no access to public funding.

[Mr Llwyd]

The point touched on by the right hon. Gentleman was reinforced by Sir Nicholas Wall, the president of the family division, who said that parents were not likely to pack up simply because they do not have legal aid. I did a full residence and contact case two years ago in which, at the last minute, the applicant sacked his solicitors and appeared in person. The hearing was down for three days but lasted seven. That, I am afraid, is a typical story and any reform of the family courts not predicated on that very fact will be utterly unworkable.

Finally, I apologise to the right hon. Gentleman, to you, Mrs Osborne, and to both Front Benchers that I shall not be present at the conclusion of the debate, because I must leave shortly. I am pleased to have made a brief contribution.

[Sir Alan Beith]

The right hon. Gentleman has already told me about the event he has this evening, which I understand that he must attend, so I fully accept his apology. He brings considerable court experience to our proceedings, as is evident from his interventions. He is right that in some cases the litigant in person is difficult and does not fit easily with courts. The very fact that that was someone who had legal advice and then sacked the legal advisers illustrates the kind of problems with litigants in person often seen by the courts.

I fully recognise the difficulty, but we must ask to what extent the ordinary taxpayer, going about his or her life in an economical and sensible way, should fund the legal proceedings of those who choose to do battle in the courts over separation, divorce and financial settlement. The state must get involved if the interests of the children require it—that is part of what I am saying—but neither I nor, I think, the Committee as a whole believe that we can write a blank cheque for a system of legal representation that is not in practice the best way to resolve a large number of the cases. Legal aid is necessary in some difficult cases, but I look on the situation as a non-lawyer and I see a lot of money being spent to hire two people to argue for a long time over the affairs of a child who seems distant and removed from the proceedings.

The right hon. Gentleman is right that non-lawyers accessing the family courts can find the process confusing, frustrating and baffling, and we welcome the Government review of the available support system. The courts will need to become more attuned to dealing with parties representing themselves and to develop clearer procedures and guidance. A heavy responsibility rests on the court system—not only the family courts—to facilitate that.

I turn to the use of expert witnesses. A fairly commonly held view is that many cases have too many expert reports. We noted the Minister’s comments that greater use could be made of non-expert witnesses, such as foster carers—although they have a distinct role and can provide valuable information—but in some cases there is a genuine need for expertise.

The Norgrove review recommended that expert evidence should be used only when that information was not available and could not properly be made available from the parties already involved. The review also recommended making judges responsible for instructing expert witnesses, rather than legal advisers, in order to control the scope of questions and, further, that agreed quality standards for experts in the family courts should be developed, with criteria including adherence to set time scales, membership of appropriate professional bodies and completion of specified court-focused training, peer review and continuing professional development. I understand that the Government agree with those recommendations, and so do I; perhaps the Minister can confirm how the Government will proceed.

On the access of the media to family court hearings, the witnesses who appeared before our Committee were unanimous in opposing implementation of the scheme legislated for in part 2 of the Children, Schools and Families Act 2010. There are clearly dangers to justice and to the perception of justice when courts operate in secret. The aim of ensuring that secrecy does not cause injustice or the perception of injustice to children is important, but the Act was not well thought through and went through Parliament in some haste, so there was a failure to take account of the views of children. I speak as someone who wanted more openness in the family courts.

Research shows that a clear majority of children are opposed to any details of their case being reported. Children fear being identified and bullied, and consider the details of their families and the ordeals that they have undergone to be private. Children must not be inhibited from giving vital information to family justice professionals for fear of being reported by the media. I therefore support the decision not to proceed with that piece of legislation, but that does not preclude anonymous judgments and must not be allowed to conceal from wider scrutiny the principles on which decisions are taken in the family courts or to cover up systemic failures on the part of public authorities. I welcome the Government’s acknowledgment that the current legislation is flawed, but the Ministry of Justice must try again.

Those are some of the issues brought out in our report, which are important as we proceed with the reform of the family courts, consistent with the Secretary of State’s broad objectives to make the courts serve their customers properly. Our recommendations need to be dealt with in order to have a family court system that serves the most important customer best.

The most important customer of the family court system is the child, who is either the subject of public law proceedings and may be taken away from their family—perhaps for a good reason, perhaps for a less compelling reason—or is in a family that is breaking up. The child’s complex interests and development may be profoundly affected and set back by wrong decisions and by slow and delaying processes in which they are not heard. Those are difficult challenges, but we must get them right—not only because we owe that to children, but because the future health of our society depends on getting them right.

Prisoners: Ex-Servicemen

Elfyn Llwyd Excerpts

Tuesday 15th May 2012 Ministerial Corrections

[Mr Llwyd]

To ask the Secretary of State for Justice if he will conduct a study involving (a) all prisons or (b) more than one prison to ascertain how many former military personnel are in the prison system.

[Official Report, 15 September 2011, Vol. 532, c. 1339W.]

Letter of correction from Crispin Blunt:

An error has been identified in the written answer given to the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd) on 15 September 2011.

The full answer given was as follows:

[Mr Blunt]

In September 2010, MOJ and Defence Analytical Services Advice (DASA) published the results of joint work to determine the number of regular ex-service personnel in prison in England and Wales. The report provided a figure of 2,280 ex-service personnel that were serving a sentence in prison in England and Wales.

This remains the most comprehensive and reliable piece of research on this matter to date and we have no current plans to repeat the exercise as there is no evidence to suggest that the proportion of veterans within the prison population has changed significantly.

The correct answer should have been:

Legal Aid, Sentencing and Punishment of Offenders Bill

Elfyn Llwyd Excerpts

Tuesday 17th April 2012 Commons Chamber

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

The hon. Gentleman said at the commencement of his remarks that this measure was about targeting resources a bit better. The Government’s impact assessment says that they might save between £1 million and £2 million under this unfortunate scheme. However, the cost will be three times that amount, in terms of people being let down, losing their homes, not being able to receive assistance, and so on, along with all the other problems that will flow from this. The cost will be far more than £1 million to £2 million.

[Mr Djanogly]

The right hon. Gentleman’s points go more to scope, which is not the subject of this debate, than the telephone service.

Some in the other place raised concerns about the gateway being mandatory and what that means for access by particular categories of vulnerable callers. However, that is precisely why we are applying the gateway in a limited number of areas—debt, discrimination and special educational needs—but not community care, which we have agreed should not be available initially. It is also why we are building in strong safeguards. Not only will there be an exemption for emergency cases, those in detention and under-18s, but even where a case is in scope and not in those groups, face-to-face advice will always be available where deemed to be required. Although those seeking advice in the three areas of law will be required initially to contact the helpline to apply for legal aid, callers eligible for legal aid who cannot give instructions or act on advice given over the telephone will be referred to face-to-face advice. I should also emphasise that, in response to concerns raised in another place, a review of the implementation of the mandatory gateway, including the operation of the gateway in the three areas of law, will be undertaken, and the report of that review will be published.

In all those areas—a duty to provide legal aid, the independence of the exceptional funding scheme and the operation of the gateway—the Government’s priority is to protect access to justice while modernising the service and ensuring that it is affordable. We agree with the need to underline the independence of a funding decision in an individual case. However, we cannot accept measures that would create legal confusion about what services the scheme provides, nor can we agree that it is unreasonable to ask claimants in three areas of law to access the service by the simple expedient of ringing a phone line—a modernisation entirely familiar from other walks of life.

I ask hon. Members to support the Government on all these amendments.

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[Simon Hughes]

I was grateful for the Minister’s reassurance, but I have to say that I am not persuaded. Like any MP with a constituency containing people from many different races and backgrounds, with many different first languages, and with all the disabilities that any mixed community has, I simply do not believe that a telephone route into deciding eligibility for legal aid is right for everybody. It may be right for many people, and I understand that it will be a good service, but if we ask constituents such as mine whether they have always been satisfied with the council response line—whether under Labour now, or with us running it, as previously—the answer is always no. That does not change, irrespective of who is running the show. I understand the Government’s position, and I hear what they say about a review, although I add a request for the review to be regional as well as general, but I believe that the Lords who pressed for amendment 24 have a well-made case. I shall support the Lords in respect of amendment 24.

[Mr Llwyd]

I have just one or two brief remarks. I am pleased that the right hon. Member for Bermondsey and Old Southwark (Simon Hughes) said what he did, because Liberal Democrat Members in Committee did not make those points at any stage. In any case, I am glad that he said it, and I am sure he is sincere in doing so.

By definition, the people whom we are dealing with are likely to be the most vulnerable in society. Our system of justice is based on the equality of arms. Unless we have equality of arms, we will prevent certain individuals from having access to justice. I do not want to be part of any legislature that will do that. I come back to my intervention on the Minister. The Government’s own figures suggest savings of £1 million to £2 million. How many savings will be made when people are not allowed to be given basic advice about debts, housing, welfare and all the other problems they face? We should remember that people often face not just one problem but five or six, as the right hon. Member for Tooting (Sadiq Khan) said.

[Sadiq Khan]

Has the right hon. Gentleman had a chance to read the Citizens Advice report published today? The final paragraph on the first page states:

“A key message from this report is that early intervention in casework funded by legal aid works. In the absence of free legal advice, the risk is that these individuals will not only be out of scope, but out of mind.”

[Mr Llwyd]

That is absolutely right, and I am concerned about it. I understand the need for the Government to look for some savings, but they are going after what they perceive to be a soft target. It is the wrong target. Even at the eleventh hour, I hope that they will think long and hard about it. Members in the other place argued long and hard; we were not allowed to argue sufficiently long in Committee or indeed on the Floor of the House, which is a disgrace in itself. Those who took time to go through all the available evidence concluded with an alternative view, and those people are right. If we have a vote, I will encourage all my hon. Friends, and any Member who has a conscience, to vote in favour of the Lords amendment and not to accept this mealy-mouthed excuse from the Government.

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

I encountered a Member of the House of Lords yesterday. She said, “I hope you will agree that we have done a good job on this Bill.” I said, “You have done a brilliant job, but it is all going to be overturned by the Conservatives and Liberal Democrats in the House of Commons tomorrow.”

The fact is that this Government, who do not need finance for their own legal aid, are forcing people to obtain legal advice by telephone operator. If they hold constituency surgeries, they will know that people cannot present a concise account of their problems. They have to discuss them, and when they have discussed them, it is possible to get to the core of what they need and help them—but these people do not care about that. I will say this, Mr Deputy Speaker. It is out of order in this House of Commons to accuse anyone of hypocrisy, so I—

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[Mr Clarke]

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

[Mr Llwyd]

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

--- Later in debate ---

[Mr Clarke]

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

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

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

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

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

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

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

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

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

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

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

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

[Mr Llwyd]

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

[Mr Clarke]

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

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[Mr Clarke]

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

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

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

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

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

[Mr Llwyd]

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

[Mr Clarke]

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

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[Tom Brake]

I thank my right hon. Friend for that intervention and for putting on the record the fact that the Justice Secretary has made that point clear, which is welcome.

Finally, with respect to our Liberal Democrat amendment, I am satisfied with the undertakings that the Justice Secretary has given to look at points of law relating to lower tribunals, so it is not my intention to press it to the vote.

[Mr Llwyd]

That last comment winded me, because I fully expected the Liberals to vote on their amendment, particularly given the right hon. Gentleman’s performance in Committee—where he said absolutely nothing during the entire Committee stage.

I must say to the Lord Chancellor that I accept and am grateful for how he has moved on the definition of domestic violence, which is most welcome. On the gateway, things have greatly improved, too. The hon. Member for Maidstone and The Weald (Mrs Grant), who is greatly experienced in these matters, has made her speech, so I can curtail what I had intended to say. Suffice it to say that I think three years might be better than the two-year limit, but two years is still an improvement. In any event, this represents a great improvement on where we were just a few weeks ago—certainly a vast improvement on where we were in Committee. I hope that this will be a far fairer regime on domestic violence and on assisting the most needy in society.

As to the welfare benefit cases, the Government have now accepted the relevant amendment. Again, it is an improvement, but there is a lack of logic in saying that a second tier would be covered in respect of points of law for the Court of Appeal and the Supreme Court. Let us just face the fact that the number going to those two courts will be a handful in any year, if even that. The truth is that it would be far better to extend downward to ensure that where a genuine point of law is at stake —I am not sure how exactly we are going to measure it—it is only right that something should be done at the very lowest level. Again, the cases will be few and far between.

Since becoming a Member of Parliament, I have seen 200 or 300 benefit cases of various kinds before the tribunal—gratis, I have to say. It is necessary to put your ducks in a row and prove that the medical officer has been less than honest in assessing the needs of the individual. We heard one glaring example from the hon. Member for Newcastle upon Tyne North (Catherine McKinnell) earlier and I could provide many more. As I have said in this place before, the system is wrong because the people who do the tests are most keen on getting them through in 25 minutes and picking up their cheque—and that is that. I have seen some abominable cases. I remember one case in which a young lad was invalided out of the Air Force, having lost a leg and badly damaged a shoulder. He was alleged to be able to walk 100 metres in the given short space of time. That was absolute nonsense. He went to appeal, and in 10 minutes the tribunal said yes.

There are some cases where points of law are relevant. They are few and far between. The Justice Secretary said this evening that he will look to provide some cover there, and it is particularly important to include any points of law that arise lower down, as it were.

I shall curtail my comments this evening, as others wish to speak, but I think that amendment 171, which deals with young people, remains a matter of grave concern to many Opposition Members. The scope of the amendment is fairly wide. If passed, it would retain the provision of legal aid for children who are party to a number of specified legal proceedings. According to the organisation JustRights, it would retain legal aid in civil cases for children who need that aid in their own right in order to deal with their problems independently from the needs or support of their parents or carers, if they exist.

Most of the children affected are likely to be teenagers who have little or no contact with their parents. If they are not eligible for legal aid, they will be left to steer through an adult-orientated legal system involving tribunals and court hearings with no specialist support or advice. Most of the children whom the amendment seeks to protect would not be represented by a litigation friend, as most would be bringing cases as a direct result of having no parental support in the first place.

I remind the House that the present Government, like their predecessors, are bound by the United Nations convention on the rights of the child and the Council of Europe guidelines to secure a justice system that is considerate towards children. Last year, 41,000 children gained access to legal aid as the primary applicants. If the Bill is passed unchecked, 6,000 of them—14%—will lose that entitlement. Not only will it be distressing for children to attempt to navigate the legal and quasi-legal systems without support, but it will take longer for cases to be resolved owing to the increase in the number of inexperienced litigants in person.

The Local Government Association has estimated that removing legal aid for unaccompanied child asylum seekers in immigration cases alone will cost local authorities an extra £10 million a year. Given the additional costs that will be incurred by the national health service and the welfare system, we can only surmise that cutting legal aid for the most vulnerable group will do no more than shift costs from one department to another. It is only right for children to be protected by our justice system, and leaving that vulnerable group to travel alone into a quagmire of legal niceties will not be palatable to any civilised society.

The Justice Secretary has moved a long way on several points of contention, and I ask him, even at this eleventh hour, to look again at this one.

[Dr Wollaston]

I welcome the significant improvements that have been made in respect of domestic violence, so I shall concentrate on Lords amendment 168.

The Secretary of State says that because welfare appeals often involve arguments about points of fact rather than points of law, welfare appellants should not qualify for legal aid. However, justice is about facts. Many of the people whom we meet in our surgeries have fallen through the gaps in Atos assessments. They may not have ticked the right boxes, but within five minutes it is abundantly clear that the wrong decision has been made. In my experience, the expert and professional advice marshalled by the citizens advice bureaux makes all the difference to whether our constituents receive justice. Cost-shifting might be reasonable, but only if the £20 million per year went far enough to fill the gap that has been created.

Historically, South Hams CAB in my area has received 60% of its funding through legal aid. It was not a question of local authority cuts; the authority had not funded the CAB in the first place. Although some of that £20 million has gone to my local CAB and will make a significant difference, the CAB has nevertheless had to cut staff, and has lost 45 hours per week of high-quality professional time. Of course we all pay tribute to the volunteers, but it is mostly the detailed and specific marshalling of facts by specialists that determines whether the right decision is made at a tribunal.

I believe that the employment of more decision-makers would make a big difference, but I also believe that the work done by CABs saves us a great deal of money in the long term. I ask the Secretary of State to think again about how much more we can do to fill the gap so that our CABs can maintain the incredibly high-quality professional service that they provide for all our constituents.

--- Later in debate ---

[Ian Lucas]

I shall be brief, Madam Deputy Speaker. I have read an excellent letter from my right hon. Friend the Member for Wythenshawe and Sale East (Paul Goggins) to the Lord Chancellor, which set out an unanswerable case against this proposal. It is wrong, in principle, that the Government are proposing this evening to reduce the damages of a successful mesothelioma claimant. I am a solicitor, and I did not go into the law to take damages away from a dying person, pending the outcome of a claim.

I have been very much strengthened in my conviction by the words of my constituent Marie Hughes, whose husband, Phil, a massively respected head teacher in Wrexham, died from mesothelioma, having worked for four years at the Brymbo steelworks in his youth. She has written to me explaining, in her own words, why she thinks this proposal is wrong, and I am going to read this out to the Minister, whom I respect. I hope that he will listen. She says:

“Had we had to undergo the further anxiety of financial implications we would not have attempted to claim. The thought of ‘shopping around’ for deals on success fees like other claimants as the Government suggests would be an unimaginable burden. Any monies available were needed to sustain our day to day costs, my inability to go to work while my husband was ill, and the need for travelling/sustenance funding when receiving treatment away from home, also supporting our family in further education. If there was a chance of treatment, we could not gamble with our savings as the stakes were too high. By the final 3 months of Phil’s life, tumours had also developed on his spine resulting in paralysis from the chest down—and all this while he was fighting to breathe.

My husband was not there to proudly escort his daughter down the aisle, though he had spoken of this dream several times during our precious time together. He never saw grandchildren. He bravely bore his condition and battled to the end but Mesothelioma takes no prisoners.”

I appeal to Government Members to reconsider their position. They should listen to the Lords and accept the amendment. To take damages away from these victims would be an appalling act of which the Government should be ashamed.

[Mr Llwyd]

I agreed with everything the hon. Member for Wrexham (Ian Lucas) said. His views are shared by many Members on the Opposition Benches—and one or two on the Government Benches as well, I am sure.

I want to speak briefly to amendments 31 and 32. I am sure I am not the only MP who has received many representations on the important issue in question. Lawyers should not skin people who are dying. I was a lawyer—both a solicitor and a barrister—and I would be ashamed of taking back as much as possible from the damages claims of people who may not have long to live. That is disgusting, but there is a very real worry that the Government are creating that problem in attempting to address what they call the compensation culture. Many of us do not recognise that such a culture exists, but even if it does, it involves petty claims such as whiplash injuries and people tripping up, or pretending to trip up, on pavements. In trying to sort out that problem, the Government are creating a problem for industrial injuries cases.

Under clause 43, a success fee under a conditional fee arrangement will not be recoverable from a losing party in all proceedings. Instead, it will be paid out of the damages of the injured person, meaning they may lose 25% of their damages.

[Mr Djanogly]

I should address this point as it has been raised about half a dozen times. The 25% is a maximum. Because under the current system people will always pay the lawyers the maximum, Members seem to be assuming that under the new system the maximum will still be claimed, but under the new system people will be encouraged to pay their lawyers less, not the maximum.

[Mr Llwyd]

Well, that is what a person such as the Minister thinks will happen, as he believes in the market ideology. He was a commercial lawyer, and never got his hands dirty as some of us have had to do over the years.

Clause 45 removes the recoverability of the after-the-event—ATE—insurance premium from the losing defendant. Therefore, that premium will in many instances be taken out of the damages awarded to the injured party. The amendments passed in another place would exclude industrial disease claims from these provisions, thus allowing the claimants to keep 100% of their compensation. We must uphold those changes and exempt such individuals and therefore prevent what would be a glaring miscarriage of justice.

Industrial disease cases are utterly different from road traffic claims. Cases centring on diseases such as asbestosis and mesothelioma are complex and require intensive research before liability is admitted. As a result, fraudulent industrial disease claims are almost an impossibility. Because of their complexity, such claims cannot be dealt with by inexperienced litigators, but if there is neither the uplift required to allow a solicitor to take a case on a CFA nor a recoverable ATE premium, many experienced solicitors will be unable to take on cases where the chance of recovering their costs is low without the client having to pay them from their damages. That is particularly true of low-value cases in which the additional liabilities may dwarf the amount of damages awarded, leaving the claimant worse off than when they started.

The potential for injustice, I am afraid, is huge. The defendant in such cases is often a multi-million pound organisation with access to teams of lawyers. It is also worth noting that after-the-event insurance also pays for additional expenses such as medical reports, without which industrial disease claims would fall at the first hurdle. Thus, without expert reports, which are necessary to prove liability, and the support of experienced solicitors who know this area of law thoroughly, claimants will simply be unable to proceed with their cases.

Oral Answers to Questions

Elfyn Llwyd Excerpts

Tuesday 13th March 2012 Commons Chamber

[Mr Clarke]

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

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

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

[Mr Clarke]

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