Policing (North Wales)
Elfyn Llwyd Excerpts(12 years, 9 months ago)
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Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC)
I congratulate the hon. Member for Clwyd South (Susan Elan Jones) on securing time for this important debate.
I know a thing or two about north Wales, as we all do in the Chamber, unlike the previous speaker, the right hon. Member for Carshalton and Wallington (Tom Brake). I begin by quoting that esteemed organ of truth, the Daily Post:
“Overtime spending by North Wales Police rocketed to £3.6m in 2011. The news comes as the force struggles to keep as many front-line positions as possible intact while facing the need to make major budget cuts under the national public spending squeeze.”
It then refers to overtime payment soaring—
“from £3,591 in 2010 to £5,314”—
in one month. It goes on:
“A Freedom of Information request revealed that the force had increased its spending from £2.7m in 2010 to £3.6m in 2011”
on overtime. Perhaps that is an inevitable consequence of having too few officers on the ground. I can understand that fully. I am a huge supporter of the North Wales police. Close members of my family have been police officers and I am not here to detract from the work that they do, which is often dangerous and thankless. Without them, heaven knows where we would be.
Nine months ago, the chief constable of North Wales police announced that there would be a radical shake-up of policing in north Wales. There would be a given number of hubs—nine in all—from which rapid response vehicles and personnel would be dispatched when the need arose. The chief constable vowed that emergency calls to serious crime would not be compromised after the changes, but he warned that it was inevitable that police reaction to some low-level crime would be affected, as they coped with losing 121 uniformed officers and at least the same number of civilian staff. On the nine response hubs, he said:
“These will not improve response times but will keep them the same.”
That is not even an assurance that there would be an improvement in response times; there would merely be an effort to keep them the same. The hubs may be perfectly acceptable in areas where travelling is reasonably easy. I am sure that those areas bordering the A55 think it is a useful idea, given that a vehicle exhibiting blue lights can travel a long distance on that road in a relatively short time.
Mr Llwyd
The hon. Gentleman refers to Rhyl. That also surprises me. There has been a fairly high crime rate there for some years. Of course, we understand that this policy will be reviewed in the coming weeks. I hope sincerely that those who will be making the decisions will have some regard to what is being argued here today. I support fully what the hon. Member for Alyn and Deeside (Mark Tami) said.
Albert Owen (Ynys Môn) (Lab)
The right hon. Gentleman has a deep knowledge of north-west Wales and, indeed, Anglesey. The creation of hubs has actually led to the closure of local police stations, so policing is not even coming nearer to the people; it is moving away from local communities. Does he agree that that is an issue?
Mr Llwyd
I agree fully. My late father was a station officer once on Anglesey, in the hon. Gentleman’s constituency. Clearly, things have changed and the nature of policing has changed, but he is right. There is now a shake-up that has the potential to be very damaging, particularly in rural areas, as the hon. Member for Clwyd South pointed out. Further west, in my constituency of Dwyfor Meirionnydd, this policy does not make a great deal of sense, and there have been complaints about it in the past few months. For example, Pwllheli town council has written to the chief constable about its concerns, and I support fully its contentions. Furthermore, members of Tywyn town council have likewise had cause to complain, and I understand fully their reason for doing so as well.
Glyn Davies (Montgomeryshire) (Con)
Will the right hon. Gentleman give way?
Glyn Davies
I thank the right hon. Gentleman for allowing me to intervene. I congratulate him on making a very thoughtful speech about the management of North Wales police, an issue that is hugely important to us all. He is clearly unhappy with the arrangements that have been proposed for north Wales. Does he agree that this is exactly the sort of issue that will feature in the campaign for the election of a police commissioner? The public will then have the chance to express their view in the campaign.
Mr Llwyd
Indeed, but if there is no money in the kitty, it is a waste of time discussing it. The budget cuts are the problem—the core problem is that we are all meant to do much more with less. If there is no money to pay for it, it does not make any sense, however clever any candidate might be, but I take the hon. Gentleman’s point.
I referred to Tywyn, which is a town of approximately 2,500 inhabitants. There is now one community officer stationed there. The nearest hub would be Dolgellau, which is some 18 to 19 rather tortuous miles away. I wonder what the result would be if there were a major disturbance in the town, leaving only one officer to deal with it for at least 20 to 30 minutes before back-up arrived—it does not bear thinking about. It is no wonder that the Police Federation in north Wales is gravely concerned about the situation. It is unfair on individual police officers who face a difficult and dangerous job at the best of times, but it is equally unfair on the citizens of Tywyn and Meirionnydd, who pay the same level of taxes as everybody else and can therefore reasonably expect the same level of service.
The same is true of Pwllheli, where there are approximately 2,760 inhabitants. The nearest hub is Porthmadog. Again, it is a difficult drive to get there quickly, but the situation in Dwyfor is possibly even worse when we consider that the hub is meant to service Aberdaron at the tip of the Llyn peninsula. With the best will in the world, I do not know how any rapid response vehicle is possibly expected to reach Aberdaron from Porthmadog in less than 40 minutes. The situation is therefore critical, and we are almost waiting for something drastic to happen before the plan is scrapped. I will also mention the town of Blaenau Ffestiniog, which has again been denuded of police officers. Again, a town of 3,600 inhabitants is to be served by the hub in Porthmadog.
This looks like an exercise that has been dreamt up in an office, rather than by anyone who knows the geography of north-west Wales generally, and of Dwyfor Meirionnydd in particular. I am pleased to be able to use this debate to voice deeply held worries and concerns on behalf of my constituents. I understand that the scheme was put in place for a trial period and is now due for review. I urge the chief constable and the police authority to reconsider it urgently in light of the fact that, to my knowledge, on some weekends, the old county of Meirionnydd may have as few as three police officers on duty in the winter months. In the summer months, the population rises eight to tenfold. This is unacceptable and dangerous during the winter. It is dangerous during the summer—I would say scandalous. The authority must go back to the drawing board and reconsider the plans.
Victims and Witnesses Strategy
Elfyn Llwyd Excerpts(12 years, 9 months ago)
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Mr Clarke
It would be very nice to do that, but that is the history of this scheme from the start, which is why the aspirations of Parliament and Government have always run rather ahead of the available funding. I would like to compensate people with broken fingers or sprained ankles, but that would get us into arrears and months and years of delay before anyone could be paid. We have to concentrate on the most serious cases. As far as people abroad are concerned, all kinds of nasty things can happen abroad, although we hope that they usually do not. People can have all sorts of crimes committed against them or catch all sorts of peculiar diseases, but we have to bear in mind that British taxpayers’ obligation to compensate in such cases has to be limited to a certain extent.
On terrorism, the case has always been that it cannot be insured against, and that is why everybody has agreed that the taxpayer should compensate in such cases. I would be reluctant to accede more readily to going further and adding yet more people whom the British taxpayer has to compensate for unfortunate experiences in Africa.
Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC)
The victims code is most welcome, although not as novel as one might think. I seem to have heard about it a few times before. How will delivery of the service uniformly across England, Wales and Scotland be affected by the fact that the Lord Chancellor has closed 40% of the court venues, that police numbers are falling and that thousands of court staff have been made redundant?
Mr Clarke
The victims code has been steadily improved over the years—it is all very well for the right hon. Gentleman to be a little sarcastic about it; it has been renamed—and we intend to improve on that. The right hon. Member for Tooting (Sadiq Khan) says that he will make it a victims law, but it is the same thing. The one reason for not putting it on a statutory footing is that we are waiting to see what comes out of the European victims directive, which we have opted into, so that we can clarify the legal obligations. We will improve the service, and it has nothing to do with the closure of under-used courts in various parts of the country.
Oral Answers to Questions
Elfyn Llwyd Excerpts(12 years, 11 months ago)
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Mr Djanogly
With my honourable colleagues on the criminal side of the Department, I am looking at many areas in which to speed up court processes. Indeed, the speed of the magistrates court process has increased dramatically since we came into power.
Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC)
That is all well and good but what the Minister does not say is that people who need debt, welfare benefit or housing advice will now be out of scope, as he well knows, and that that will have a knock-on cost. This is simply short-termism. On the definition of domestic violence, he also knows that far more people will be litigating in person, which will also be a waste of money.
Mr Djanogly
I must put the right hon. Gentleman right: we are not ending debt advice or advice in some of the other areas he mentioned. In fact, we will still be spending some £50 million on social welfare advice.
Oral Answers to Questions
Elfyn Llwyd Excerpts(13 years ago)
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Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC)
Can the Lord Chancellor imagine a more needy victim than a child brain-damaged at birth whose parents are unable to sue for its financial security?
Mr Clarke
It is not true that they are unable to sue. We have a dispute about how much the lawyers should be paid in the event of a successful claim, which is an important matter, but I do not accept the assertion that none of these actions will be brought unless we leave the present no win, no fee arrangements completely untouched.
Legal Aid, Sentencing and Punishment of Offenders Bill
Elfyn Llwyd Excerpts(13 years ago)
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Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC)
I have never been a tribal politician, and I understand the dynamics of the House, but I am very disappointed that the hon. Member for Edinburgh West (Mike Crockart) and his colleague, the right hon. Member for Carshalton and Wallington (Tom Brake), had nothing to say on this issue in Committee. Worse still, an amendment that would have dealt with clause 12 was pressed to a Division, but they declined to vote for it. Indeed, they voted against it. The right hon. Member for Bermondsey and Old Southwark (Simon Hughes) came to the debate in the House on Monday and said that he was interested in dealing with the immigration law aspect in the Bill, but again, his colleagues said nothing about that in those lengthy Committee proceedings. The right hon. Gentleman said that he would pursue the matter. The modus operandi of the Liberal Democrat party is to sit on a Committee, do nothing, and then come back on Report and pretend they have done a hell of a lot. I am rather disappointed in the right hon. Member for Carshalton and Wallington in that regard. I have never been a tribal politician, but when I see this kind of behaviour, it makes me a bit sick.
Mr Slaughter
I have three headlines from The Guardian, which are like a tableau. From September, we have “Liberal Democrats urged to defy plans to cut legal aid”; from October, we have “Lib Dem MPs rebel against proposals to cut legal aid funding”; and from yesterday, we have “Lib Dems have their cake and eat it”. That last article features a lovely picture of the right hon. Member for Carshalton and Wallington (Tom Brake). They rebel, and at the last moment, they do not.
Mr Llwyd
I have made my point, so I will move on to the substance of this important debate, because others wish to speak.
I support the hon. Member for Makerfield (Yvonne Fovargue) on new clause 17, the amendments tabled by the Official Opposition, and new clause 43 and amendment 162, which were tabled by my hon. Friend the Member for Carmarthen East and Dinefwr (Jonathan Edwards).
However, I am against clause 12, which threatens through secondary legislation to limit advice and assistance at police stations. I shall not speak for long, but it is important to deal with one or two aspects of the measure. Clause 12 could thwart the fundamental right to legal advice when held in police custody, which frankly is a time when individuals are at their most vulnerable. That the Government did not consult on that measure has been widely criticised by many, and not simply those who allegedly want to raise money. The Lord Chief Justice is not dependent on legal aid, as far as I am aware.
I spoke in Committee of the importance of people having legal advice and assistance when they are detained in police stations. No consultation was held, but the measure was pushed through. Clause 12(3) is particularly worrying, because it would allow the Lord Chancellor to introduce regulations requiring the director to apply means-testing provisions if he or she considers them appropriate. It is well known that advice and assistance on arrest are not currently means-tested. The introduction of that in a police station is utterly inappropriate. What is more, as the Bar Council has pointed out, experience over the years shows that errors and abuses at police stations are responsible for very many miscarriages of justice, which cost not only lives, but finances.
Amendments 90, 104 and 125, which are in my name, would ensure that as a matter of course advice and assistance would continue to be made available for individuals held in police custody—they would not be subject to any means or merits testing. Amendment 104 would remove the word “station”, and amendment 125 would remove the need for a determination by a director. Furthermore, amendment 90 would remove subsection (9) and state in its place that:
“Sections 20 and 26(2) do not apply”.
The first point clarifies that means-testing cannot be introduced at police custody. Negating the application of clause 26(2) would ensure that the Lord Chancellor was unable to replace advice in person at police stations with
“services to be provided by telephone or by other electronic means.”
Clause 12 has a grave potential to destabilise access to justice for some of the most vulnerable in our society. As Liberty has pointed out:
“Justice requires that, as a bare minimum, all individuals taken into police custody have access to legal advice and representation when facing criminal allegations with the potential loss of liberty, disruption and damage to reputation they entail.”
As anyone who has practised criminal law will know, the first couple of hours in custody can be crucial in determining whether a case goes further, even on to an interview. Most people, when facing a police interview, particularly for the first time, are unable to think clearly and may not be cognisant of their best interests. As I said in Committee, at the very least the initial interview at the police station should proceed on the basis that the solicitor will be paid for the first couple of hours. It seems that the Government were unwilling to listen to that concession.
Keith Vaz (Leicester East) (Lab)
The right hon. Gentleman makes an important point which I support completely. However, there is another aspect to this matter. The solicitors who are available to give such legal advice usually have great expertise in the criminal law. If legal aid is removed and there is means-testing, the wrong type of professionals—those who do not have the expertise—will be available to give advice.
Mr Llwyd
The right hon. Gentleman is absolutely right. I note from my own experience that such people are highly qualified for the work that they do. If two hours are spent with a solicitor who is well-versed in procedure, a lot of work can be done and people’s reputations can be saved. It is vital that we do everything we can to retain that provision. I am not doing any special pleading for lawyers. I appreciate that there should be paring back in some areas of legal aid, but this is a fundamental matter of access to justice and it is important that the Government listen.
It is worth noting Liberty’s point that attempting to introduce means-testing when an individual is in police custody is likely to be “unworkable” because it
“requires documentary verification of financial resources”,
which an individual in custody is clearly unlikely to have on his or her person. That would again result in inevitable delay and the wasting of resources.
Jeremy Corbyn (Islington North) (Lab)
The right hon. Gentleman is making an excellent point. Is he aware of any representations on this matter from police sources? They must be worried that suspects will be held in police stations for an excessive time while documentation is sought and possibly not found. They will then be forced either to release the suspect or to take them to court without access to a lawyer, which a lot of police forces would not be willing to do.
Mr Llwyd
The hon. Gentleman is absolutely correct. I will say a few words in a minute about the Police and Criminal Evidence Act 1984, which is important in this regard. Clause 12 will run a coach and horses through it.
I do not believe that clause 12 is well thought through. What is worse, it undermines one of the core principles of our justice system: fair and equal access to justice for all citizens. I therefore cannot support it.
The Law Society’s head of legal aid, Richard Miller, has said:
“This is not only an assault on the rights of citizens, it is also a logistical nightmare to operate in practice.”
He has said that substantial hidden costs undoubtedly will follow and that it will be “simply unworkable”. Max Hill, the chair of the Criminal Bar Association, said that the Government were meddling with a “fundamental right”:
“To contemplate some sort of qualitative testing to decide when and if a member of the public should receive legal representation and advice…is deeply alarming.”
As I said, I will not speak at length, but I will say a word about miscarriages of justice. We know of a spate of miscarriages of justice that occurred in the ’70s and ’80s, and there was an official inquiry into several of them. The Birmingham Six were jailed for life in 1975 for pub bombings. The convictions were overturned in 1991 after evidence emerged of the police’s fabrication of confessions and suppression of evidence. The Guildford Four were convicted of a bombing in the same year. The conviction was secured on confessions that were obtained through coercion, violence and threats by the police. They were acquitted in 1989.
Jeremy Corbyn
The right hon. Gentleman is making a strong point. However, the Guildford Four were actually the first people to be arrested and convicted under the Prevention of Terrorism (Temporary Provisions) Act 1974, which meant that they were specifically denied access to anyone at the time of arrest. That was not the case with the Birmingham Six, who instead were abused in the police station.
Mr Llwyd
I stand corrected. I am pleased that the hon. Gentleman has corrected the record for me. However, my point still stands.
Stefan Kiszko wrongly served 16 years for rape and murder after being arrested in 1975. He confessed to the police after three days of questioning without a lawyer. That and several similar cases gave rise to the Police and Criminal Evidence Act, which gave a detained person the protection of proper legal advice. It also, crucially, gave protection to the police, which is the point made by the hon. Member for Islington North (Jeremy Corbyn). Clause 12 will undoubtedly drive a coach and horses through the 1984 Act and I believe that it should be resisted at all costs.
Stephen Lloyd (Eastbourne) (LD)
I rise to speak on new clause 17. I pay tribute to the hon. Member for Makerfield (Yvonne Fovargue), who was the chair of the all-party parliamentary group on Citizens Advice before I took over. I endorse what my right hon. Friend the Member for Carshalton and Wallington (Tom Brake) said. Originally we wanted to speak to amendment 149 under the social welfare grouping on Monday night and it was disappointing that that group was not reached. Consequently, although I do not agree entirely with new clause 17, I am minded to support it, particularly given how it relates to Citizens Advice.
Some of my points have been made by my right hon. Friend the Member for Carshalton and Wallington. I reiterate that at a time when we are making radical changes to the welfare system by introducing universal credit, replacing disability living allowance and making substantial changes to employment and support allowance, it is unwise to withdraw the support for people who are challenging bad decisions. As we all know, in the process of reform, mistakes can be made. As I am sure the House is aware, the introduction of ESA has generated a significant volume of appeals and 39% of ESA appeals are still being found in favour of the appellant. The position of the Department for Work and Pensions is that welfare advice should not be funded on issues of benefit entitlement because advice is available through DWP agencies such as Jobcentre Plus. However, I strongly believe that the solution is not to take welfare advice out of the scope of legal aid altogether, but to make appropriate distinctions over whether problems involve issues of complexity.
Ben Gummer
The motivation of my right hon. and hon. Friends on the Front Bench is unimpeachable, as I have found from sitting behind them in the Public Bill Committee.
Mr Llwyd
First, I agree with the hon. Gentleman about that form of legislation and he makes a valid point. A couple of minutes ago, he asked why a millionaire or multi-millionaire should not pay for legal advice and assistance. In my experience, the vast majority of very wealthy people have their own lawyers and in many cases they actually carry their number with them all the time.
Ben Gummer
The right hon. Gentleman makes a reasonable point. However, a point of principle is involved here. I do not understand why people on low incomes in my constituency or that of the hon. Member for Kingston upon Hull East should be subsidising the legal advice of those who can pay for it at a later date should they be convicted of a crime. We can have a debate about this. All I am saying is that we should have the debate now, perhaps with a new clause, or address it in another place in a different way.
I move on to the new clause tabled by the hon. Member for Makerfield (Yvonne Fovargue). Her expertise in social welfare law is probably unparalleled in this House and I very much value what she brought to this debate. However, I would remind her—I hope that she will not take this remiss—that at the last election she stood on a manifesto promising cuts in legal aid. Although the examples that she gave were pertinent, no recommendation has come from the Opposition Front-Bench team as to the alternatives they would introduce, either to make cuts elsewhere, which would otherwise be seen in her area of advice—
Mr Djanogly
I welcome the hon. Member for Darlington (Mrs Chapman) on the occasion of her first outing at the Dispatch Box.
Most of what was said by the hon. Member for Hammersmith (Mr Slaughter) concerned the scope of civil legal aid, and was therefore not directly covered by the new clauses and amendments. It would have been good if he had discussed all the amendments that he had tabled, but he could not even do that. However, he certainly showed us once again that he knows how to spend taxpayers’ money, but not how to save it. He mentioned only one saving, when he said that he would have proceeded with criminal contract competition to save money rather than cutting social welfare law. Criminal competition in line with Labour’s model would have secured a very small reduction in the £180 million spent on police station advice—a reduction of only about 10%—which is not really enough. The hon. Gentleman will have to say where else he would make cuts. When Labour tried to address contracting, it failed, and it had to pull its contracting proposals in 2009.
Amendment 123, to which the hon. Member for Hammersmith spoke, is intended to alter the provisions in relation to the independence of the director of legal aid casework. That subject was debated substantially in Committee, but having heard the hon. Gentleman speak about it again, I still fail to understand the rationale behind the amendment, and, as I will explain, I consider it unnecessary. Let me briefly explain the role and key functions of the director, and also explain why I believe that independence is important and why it is already enshrined in the Bill.
Under the provisions, the Lord Chancellor is obliged to appoint a civil servant as a statutory office holder who will be responsible for making funding decisions in individual cases, as well as funding decisions in relation to exceptional case applications under the Bill. The statutory office holder is to be known as the director of legal aid casework. The Lord Chancellor is also obliged to provide civil servants to assist the director in carrying out their functions.
Under the new structural arrangements, clause 4 is potentially the most important provision. It ensures that the director has independence in making funding decisions, and is free from any political interference in making those decisions. That independence is enshrined specifically by subsection (4), which the hon. Member for Hammersmith wishes to delete, and which prohibits the Lord Chancellor from giving guidance or directions in individual cases. There are provisions in the clause that oblige the director to comply with directions given by the Lord Chancellor and to have regard to guidance issued by the Lord Chancellor, but crucially they cannot relate to individual cases.
The protection of the director against interference in individual cases is an important safeguard. The Bill already establishes the director in a way that maintains and protects the director’s independence of decision making. The director is a separate office from the Lord Chancellor created by statute. I therefore believe that the Bill already establishes a proper role for the director, free from any political interference in individual cases. I therefore urge the hon. Gentleman to withdraw the amendment.
Mr Llwyd
On a point of order, Mr Deputy Speaker. I want to ask the Minister whether progress has been made on introducing a clause that would allow an appeal against the granting of bail. A concession was given in Committee, and several Members have tabled amendments, but we will not reach them today. Will the Minister update us?
Mr Djanogly
I would dearly have loved to reach the provisions relating to bail, and I think the right hon. Gentleman should ask the official Opposition why we have not done so.
Sadiq Khan (Tooting) (Lab)
When the Justice Secretary has been in government for 13 years in a row and has had crime going down by 43% with 7 million fewer victims a year, I will be lectured by him about law and order.
May I begin how the Justice Secretary began, with some thank yous? First, I thank the Front-Bench teams on both sides for their hard work during the Bill’s progress through Parliament. By and large, they have got on reasonably well, and have done a huge amount of hard work on Second Reading, in Committee and on Report. I thank them and their advisers for that. I also thank Back Benchers. Debates on Second Reading, in Committee and on Report have generally been well tempered.
Two days ago, some hon. Members cheered the fact that there were three days on Report. I hope that they now regret being so cheery. Government statements—let us be frank, they were filibustering—caused elements of the Bill to be wholly unscrutinised, including provisions on remand, knife crime, women in prison, conditional fee agreements, and social welfare.
Mr Llwyd
The right hon. Gentleman referred to remand. May I take him on to bail? One of the Under-Secretaries gave an understanding in Committee that there would be an undertaking to deal with appeals against the granting of bail. We were told that if that was not dealt with on Report, it would be dealt with in the other place towards the conclusion of the Bill's scrutiny. When I asked the Minister about that, I was boorishly swatted away. Having been a member of the Public Bill Committee, I had tabled amendments on the matter, as did other hon. Members. The subject deserves better than being slapped down, and we should press for some answers today.
Sadiq Khan
I have been in correspondence with the Justice Secretary and, to be fair, he responded to my letter. I am happy to allow him to intervene to put on the record the assurance that he gave me.
Legal Aid, Sentencing and Punishment of Offenders Bill
Elfyn Llwyd Excerpts(13 years ago)
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Mr Clarke
Normally I would give way, and if we had a full day of debate, I would have expected to give way to Members on both sides of the Chamber—[Interruption.] It is not my fault. Let me first finish explaining the general case. I will then try to give way as generously as I can. It would be quite possible to take so many interventions that they filled the remaining time, but I have no intention of doing so.
I remind the House that in June the Prime Minister announced that the Government intended to replace IPP sentences. He and I had agreed on that. We had originally proposed in our Green Paper greatly to restrict the number by raising the threshold above which IPP sentences were given. The sentencing parts of the Bill were received extremely well in public consultation because those who responded were largely those involved in the criminal justice system, but we received many representations saying that IPP sentences should abolished completely, which is why we have moved on.
Mr Clarke
I said that I would give way when I had finished my general points, and I will do so in a few moments.
I was referring not just to my opinion and that of the right hon. Member for Sheffield, Brightside and Hillsborough. I shall remind the House of some of the people who have said similar things. Louise Casey, the Commissioner for Victims and Witnesses, whose appointment to deal with problem families has been welcomed, said that she was pleased there would be a review of indeterminate sentences as they
“often leave victims in a horrible situation of not knowing when a criminal may be released from prison”.
She welcomed the proposal that tougher determinate sentences will be sought instead. Tim Godwin—as we all know, he was acting Metropolitan Police Commissioner until recently, and is now deputy commissioner and the criminal justice lead for the Association of Chief Police Officers—said he welcomed the review of IPP sentences and its focus on robust alternatives that will ensure the public is protected from the most serious offenders, as it is a source of frustration for victims and their families as to what a sentence actually means.
I cannot resist adding that the shadow Justice Secretary has suddenly taken up an extraordinarily far right position on this issue at the last moment. I have looked up what position he took, or at least what position Liberty took when he was its chairman in 2002, when indeterminate sentences were first introduced. At that time Liberty, under his chairmanship, denounced IPP sentences as
“a convoluted sleight of hand”
which aids neither accessibility of law for transparency in the sentencing process. His successors at Liberty have not changed their mind. I said yesterday that tomorrow he would press an amendment that has mandatory sentences for 12-year-olds. Old Fabians must be spinning in their graves as the former chairman of the Fabian Society takes up a totally opportunist position.
What is wrong is that indeterminate sentences are unfair between prisoner and prisoner. The Parole Board has been given the task of trying to see whether a prisoner could prove that he is no longer a risk to the public. It is almost impossible for the prisoner to prove that, so it is something of a lottery and hardly any are released. We therefore face an impossible problem.
As I have said, IPP sentences are piling up, and they have been handed down at a rate of more than 800 a year even after the changes made in 2008. At the moment, more than 6,500 offenders are serving those sentences, of whom more than 3,000 have finished what the public regard as their sentence—the tariff for what they have done. If we do not do anything about it, the number of IPP sentences will pile up to 8,000 or 9,000 by 2015—10% of the entire prison population. Sometimes, their co-accused who committed the same crime and were given a determinate sentence were released long ago. That is unjust to the people in question and completely inconsistent with the policy of punishment, reform and rehabilitation, which has widespread support. Only Opposition Front Benchers are still in favour of a punishment that leaves a rather randomly selected group to languish indefinitely in prison, for their lifetime if necessary.
Paul Goggins (Wythenshawe and Sale East) (Lab)
I share the concerns expressed by hon. and right hon. Members on both sides of the House, but I am grateful to the Lord Chancellor for the meeting he and his ministerial colleague held with my right hon. Friend the Member for Sheffield, Brightside and Hillsborough (Mr Blunkett) and I. I am also grateful for the Lord Chancellor’s assurance earlier that he would still be thinking hard about the provisions as they go from this place to the House of Lords.
I want again to assert briefly that the Northern Ireland experience was instructive, and if the Lord Chancellor was prepared to reflect on it, it would strengthen the flawed prospectus he has given us. The experience in Northern Ireland was based on a tragic case involving Trevor Hamilton, who murdered Attracta Harron when she was on her way home from mass in December 2003. My right hon. Friend the Member for Delyn (Mr Hanson) remembers the case well because he dealt with the issues too. Hamilton had been released at the halfway point of a seven-year sentence for rape, indecent assault and threats to kill. The public were outraged that such a dangerous individual could be released with no control whatever by the public authorities.
The framework in Northern Ireland is based on two key principles. The first is absolute judicial discretion, with no presumptions about previous offences, such as there were in the 2003 Act—so complete judicial discretion. Secondly, judges have to go through a very clear process. Does the offence justify a life sentence? If it does, that is what the offender gets. If it does not, the judge must consider an extended sentence, which can give some degree of control over the release date, but the offender must eventually be released at the end of the extended custodial period. If that is not sufficient for public protection, only then can the judge give an indeterminate sentence.
The result is instructive. The Northern Ireland Justice Minister, David Ford, has sent us a report, for which I commend him—the report should be put in the Library. There has been no significant change in the number of life sentence prisoners. There have been 68 extended sentences and eight indeterminate sentences in three and a half years. That system is in control and it offers the public protection.
There are real risks with what the Lord Chancellor is proposing. If he is right and judges suddenly start to impose more life sentences, he will simply have replaced one problem with what he described as the original problem. He will have replaced indeterminate sentences with life sentences, which will bring all the issues relating to resources and parole that he faces currently. The most serious thing is that under his proposals all dangerous offenders not given a life sentence will have a definite date for release, which is a risk too far for this or any Government to take. It will leave a gap, bridged in Northern Ireland by the indeterminate sentence not as a first or a second option but as a complementary third option.
I am glad that the Lord Chancellor is listening. I hope he heeds that lesson and that when he takes his legislation to the other place he will make further amendments.
Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC)
I am in favour of the Government’s decision to scrap IPP sentences in this instance. Liberty, among others, has said that IPPs could be a back-door measure to introduce life sentences for a huge range of offences. They were intended to be given only sparingly but of course they have been used far more frequently than expected. In March 2011, there were 6,550 IPP prisoners, half of whom served 240 days beyond their tariff, at a cost to the Exchequer of about £68 million. That is quite apart from the whole question of whether they were being held unlawfully, which worries many of us.
As it stands, the IPP regime has been a costly mistake. Furthermore, the indefinite legal limbo created by IPP sentences has in many instances undermined rehabilitation, leaving prisoners and their families uncertain when, if ever, release will be granted. Like the Lord Chancellor, I wonder why those sentences have not been challenged in the courts. I have campaigned on the matter for a long time. In February, I introduced a ten-minute rule Bill seeking the abolition of IPP sentences, so I am pleased about the Government’s decision.
New clause 32 would mean that prisoners serving an extended sentence of at least four years in custody, who have a prior conviction for one in a list of serious offences, will be required to serve two thirds of their sentence, instead of being considered for release at the halfway point. I argued for such a provision when I introduced my Bill, so I am pleased that it has been introduced. However, like the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith), I have concerns about new clause 34. I have grave concerns about interference in individual parole decisions. That proposal must be looked at in the other place. We do not have time to debate it properly today and I am sure that many Members, whatever their views, would have appreciated a sensible timetable.
Mr Kenneth Clarke
I shall correspond with the right hon. Gentleman and the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith). The new clause was tabled at my request so that we can contemplate changing the test for release by statutory instrument. I shall explore whether it gives rise to the problems described. I certainly have no intention at the moment of intervening in individual cases and making judgments about IPP prisoners.
Mr Llwyd
That is certainly reassuring, but had we had a decent amount of time to discuss the proposals we could have probed them earlier. There is also some confusion about new clause 33, which will no doubt be picked up in the other place.
I know that I have done nothing for my street credibility, and even less for the Lord Chancellor’s, but I believe that the IPP system has been brought into disrepute. It is only right that we do away with it, and to that extent I agree with what the Government seek to do.
Mr Robert Buckland (South Swindon) (Con)
I shall be brief. I support the Government’s amendments. We need a system that does not try to predict risk, but sentences according to the seriousness of the offence. The right hon. Member for Wythenshawe and Sale East (Paul Goggins) made some very interesting points that deserve consideration, but now is the time for change. The current system is not sustainable. We are not dealing with the risk that these people pose and a system of determinate long sentences would be a far better service to the victims of crime, who are too often left in the dark about what happens in cases—
Mr Blunt
I shall certainly be following Mr Speaker’s direction, and I hope that we will dispose of this matter in as short an order as we disposed of removing the limit on magistrates’ fines.
The question of how far one can go to defend oneself crops up again and again in the letters Members of Parliament receive from their constituents, and of course it is always a controversial issue in the press and the media. It usually arises because a hard-working, law-abiding home owner or shopkeeper has been forced to defend themselves against an intruder and has ended up being arrested for it. Being confronted by an assailant in one’s home, on the street or anywhere else can be a terrifying prospect. It is essential that the law in this area is clear, so that people who use reasonable force to defend themselves or to protect their properties can be confident that the law is on their side.
There will always be occasions when the police need to make an arrest to enable a prompt and effective investigation, especially if they turn up at an address and somebody is dead. We are working with the Home Office on new guidance for the police to ensure that arrests are made only where necessary, but these provisions should give people greater certainty that the law itself is on their side and they will not be prosecuted or convicted if they have only used reasonable force.
Mr Llwyd
Will the Minister advise the House how the provisions change the common law doctrine and principle of a person being able to protect his or her property using force and the doctrine of self-defence, where reasonable force is used to defend oneself? I asked the Lord Chancellor that yesterday and he told me to wait until today for the answer—I am all ears.
Mr Blunt
The right hon. Gentleman should listen out for the next passage of my remarks, as I hope it will give him and the rest of the House satisfaction.
On the specific provisions, the new clause is not designed to sweep away the fundamental premise that somebody can use reasonable force in self-defence. In my view, that aspect of the law is entirely sensible. Allowing somebody to use unreasonable or disproportionate force would be very dangerous indeed, as it would effectively sanction vigilantism or violent retribution. Instead our proposals are designed to clarify what “reasonable” force means in practice. The new clause will amend section 76 of the Criminal Justice and Immigration Act 2008 to make it clear that a person can use reasonable force to defend property in addition to defending themselves, other people or preventing crime, and that they are under no duty to retreat from an offender when acting for a legitimate purpose, although if they had a chance to retreat, the court may still consider it when deciding whether the force used was reasonable in the circumstances. We did not consult on these measures because of the limited nature of the amendments, but that should not detract from their importance in reassuring householders and small shopkeepers who use reasonable force to defend themselves and their properties that the law is on their side.
Mr Blunt
I cannot comment on that individual case—[Interruption.] The shadow Justice Secretary tempts me down that road, but I will resist. The much clearer message that will be sent if the House chooses to accept the Government’s proposals will mean that the position should be crystal clear to householders and shopkeepers on the force that they are entitled to use. That is the purpose of these provisions. We are seeking to reassure the public, and this all sits as part of our desire to have a society that can exercise its rights and properly defend those rights, and that does not feel that people have to pass by on the other side, particularly when their lives and property are at risk.
Mr Llwyd
May I suggest to the Minister that legislating is not all about giving out signals and that it is about making law? I have no axe to grind personally with the Minister, who is a perfectly decent man and who engaged with us in Committee on many matters, above and beyond his brief. However, he may have wished to circulate a photocopy of the Crown Prosecution Service guidance on self-defence and the prevention of crime. Any fool can read and understand it, as it says simply, under the heading of “Reasonable Force”:
“A person may use such force as is reasonable in the circumstances for the purposes of: self-defence; or defence of another; or defence of property”.
It goes on to describe a further two matters. Providing a copy of that would have done, rather than using legislative time.
Mr Blunt
I am very grateful—[Interruption.] I am not embarrassed in the least. This measure forms part of the coalition agreement. We are delivering on that, sending a clear message and putting the law beyond doubt. Having things buried away in guidance to prosecutors, given that reassurance is needed for home owners and shopkeepers, is a distinctly sub-optimal way of proceeding on an issue such as this. When viewed in conjunction with the Home Secretary’s plans to strengthen the code of arrest for the police, we hope that these measures will help to fulfil the commitments in the coalition agreement on this issue. We must take together the instructions to Crown prosecutors, the legislation that I hope will go on to the statute book as a result of these Government measures and that code of arrest for the police, and I can therefore happily commend these proposals to the House.
Mr Llwyd
It is often said in parliamentary circles that amendments, especially those moved by Opposition Members, are otiose, although I venture to suggest that few people outside this Chamber use that word, let alone know what it means: namely, that something is pointless. I start on the basis that this is pointless and I shall develop my argument point by point, if I am allowed to do so.
Sadiq Khan
Does the right hon. Gentleman mean the Justice Secretary or this new clause?
Mr Llwyd
No, like the right hon. Gentleman, I have the highest regard for the right hon. and learned Gentleman and I presume that this evening he is exercising his own right to self-defence by not being here. He has withdrawn from the Chamber and the possibility of being dealt a few blows that could actually hurt him. I say that not in a rude or pejorative fashion but in a semi-jocular way.
Yesterday, I asked the right hon. and learned Gentleman to answer the very question I also asked the Minister: what would be the exact difference in the law after this measure was introduced? Answer came there none from the right hon. and learned Gentleman, except, “Hang on until tomorrow and all will be revealed.” In the past few minutes, the Minister has revealed all and, blow me, I am underwhelmed! I listened intently but reason or logic came there none and changes less still, so I am still none the wiser. “Could it be,” I ask myself, “that the Government are speaking to an audience outside the Chamber?” Surely not; surely, they are not actually addressing an audience outside the Chamber such as the tabloid groups. No, never, that could not be right—I have dismissed that idea.
Currently, a householder may use reasonable force to defend him or herself or another, or in the prevention of crime, which includes defending a person’s property. The new clause therefore does nothing. The use of force in self-defence is governed by common law and the use of force in the prevention of crime is governed by section 3 of the Criminal Law Act 1967. In both cases, the test to be applied is whether the force used was necessary and, if so, whether the degree of force used was reasonable in all the circumstances.
Whether the force used can be considered reasonable is decided according to the circumstances and the danger that the householder perceived him or herself to be in. The beauty of that law is the fact that it is so open, because circumstances change and one looks at the circumstances of each case. We have heard about someone having his ear sliced off and I can tell hon. Members about a case I defended in which, in a public house in north Wales, two families who were not very friendly met up. One was a family of poachers and the other of gamekeepers. Three members of one family jumped on top of one member of the other family in the toilets and the only way in which the lad, who was by himself, felt he could defend himself was by squeezing one of the others’ testicles in the most awful way. It left some permanent damage by the way, so it was not altogether a laughing matter—certainly not for the man involved. Anyway, the question for the court was whether the force used there and then was reasonable in all the circumstances and the court said, yes. So every case is decided on its merits; that is the beauty of the law of self-defence.
I deduce therefore that the only possible justification for the change is to provide some form of clarification and/or, possibly, that somebody is addressing somebody outside. Section 76 of the Criminal Justice Act 2003 clarifies the operation of the common law and section 3 defences as listed in the 1967 Act. The 2003 Act did not change the current test that allows the use of reasonable force and neither, I suspect, will new clause 27.
Nor, indeed, can the Government argue that the law surrounding reasonable force is badly understood by the judiciary—professional or lay. The existing position with regard to property is set out clearly in layman’s terms in the CPS guidance “Self-defence and the prevention of crime”. It says:
“Reasonable force. A person may use such force as is reasonable in the circumstances for the purposes of: self-defence; or defence of another; or defence of property; or prevention of crime; or lawful arrest.
In assessing the reasonableness of the force used, prosecutors should ask two questions:
was the use of force necessary in the circumstances, i.e. Was there a need for any force at all? and
was the force used reasonable in the circumstances?”
The existing law works well and is well understood; 99% of the time it is well applied in courts and I do not know of any great tide of concern that the law needs further clarification.
Mr Cox
Of course I agree with almost every word that the right hon. Gentleman is saying, but does he not agree that if the Government first enact section 76 of the Criminal Justice and Immigration Act 2008 they might as well make it complete by including the defence of property? If they are going to bother with section 76 at all, they should make it complete and include the defence of property.
Mr Llwyd
I hear what the hon. and learned Gentleman says, and I suppose that that is right, but I come back to my earlier point that the whole process is otiose. I understand what he is saying, and he has logic on his side. We talk about logic, but parliamentary time is short. Yesterday we had to leave out consideration of a raft of important matters relating to social welfare and social justice. None of them was discussed. Yet we have time this evening to talk about something that is unnecessary. So although I respectfully disagree with the hon. and learned Gentleman, he has logic on his side. However, the new clause is not the right vehicle for clarification of the law.
Quite why the measure is being introduced now is rather baffling. I can only presume that it is to please the tabloids and that this Government, like the last, want to convince voters that they are not soft on crime. Those on the right of the Justice Secretary’s party have made clear their aspirations to amend the law on reasonable force for some time now. As far back as 2009, the then shadow Home Secretary, the right hon. Member for Epsom and Ewell (Chris Grayling), said that any future Conservative Government would push for prosecutions, and convictions, only where courts judged that the action taken had been “grossly disproportionate”. That would have stood the law on its head. A huge amount of jurisprudence would have emanated from that decision. No doubt the hon. and learned Member for Torridge and West Devon (Mr Cox) and I would have profited from it, but it would have been a bad step in my view. The Conservative party wound back somewhat after that was said.
I am glad that such an extraordinary change to the law has not occurred, at least not yet. As Michael Wolkind QC, who represented Tony Martin, who was found guilty of murder and wounding with intent under the existing law, has said, allowing householders to use force that is not “grossly disproportionate” would amount to “state-sponsored revenge”.
Indeed, an outsider looking in might be forgiven for suspecting that hundreds of people were being prosecuted every year under the current law. But an informal trawl by the CPS suggested that between 1990 and 2005 there were only 11 prosecutions of people who had used force against intruders in houses, commercial premises or private land. So that is what we are dealing with and it leads one to question why we are talking about it tonight.
As the chair of the Bar Council Paul Mendelle QC said—it has been mentioned by the right hon. Member for Tooting (Sadiq Khan), but it will stand repetition—
“The law should always encourage people to be reasonable, not unreasonable; to be proportionate, not disproportionate.”
Paul Mendelle also commented in the same article written in The Times that the present law worked well and was well understood by juries. Again, I ask why we are doing this.
Changes to the law should not be brought about to produce good sound bites. The common law of self-defence already makes it perfectly clear that a householder is able to use reasonable force against an intruder in defence of himself or herself or his or her property. Amending the existing law for no gain in matters of substance will serve only to increase vigilantism and is not a good use of parliamentary time. It could lead to people using excessive force because they think they might be above the law—“An Englishman’s home is his castle” and all that kind of thing. I do not know. It might give out all the wrong signs, not the signs that Ministers on the Treasury Bench hope and suspect they are giving out.
I believe that the new clause has more to do with internal party politics than with policy. We are using valuable parliamentary time to play this out. The amendment is otiose and serves only to play to the drum beat of the tabloid press. I have a lot of time for the Justice Secretary, who is a man of great integrity, but I fear that in introducing the new clause he is dancing to the tune of the tabloids.
Mr Blunt
I will turn to the remarks of the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd) towards the end of my speech, but first let me say how grateful I am to the right hon. Member for Tooting (Sadiq Khan) for his kind personal remarks. I was marginally upset that I did not leap the amorous threshold that my right hon. and learned Friend the Justice Secretary did, but I am grateful for the limited extent of his affection compared to that for my right hon. and learned Friend.
I was amazed at the chutzpah of the right hon. Member for Tooting in lecturing the Government about a public relations stunt and spin. It took me a moment to pick my jaw back up off the Bench as I listened to him. There is a clear answer to the right hon. Gentleman. He properly stood up for the legal system as it now sits. As my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox) said, it is an inconsistent message if we have changed section 76 of the Criminal Justice Act but have not applied it to property, so let us make the position absolutely clear to everyone that not only in the code for crown prosecutors and in the common law but in statute law, as passed by the House, property is included. That is a clear reason for making this change.
The right hon. Gentleman said that presumably the change was for an audience outside the Chamber. Yes, it is. It is all very well for sophisticates such as us, who understand the word “otiose”—used by the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd)—but the issue goes right to people’s hearts. They feel that they are entitled to defend their home or their shop, and we owe it to them to make it crystal clear that we absolutely support them in defending themselves, their families and their property. The proposals make that absolutely clear. We need to understand that when something is so central to how everybody feels about their home, shop or place of business we must send a clear signal from this place about whose side we are on.
Legal Aid, Sentencing and Punishment of Offenders Bill
Elfyn Llwyd Excerpts(13 years ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Simon Hughes
No, it is not pathetic at all. Let me say to the right hon. Member for Lewisham, Deptford that there are four groups of amendments and that we have until 10 o’clock. The Opposition Front Benchers want to press their amendments to a Division, as do other colleagues, including me and my right hon. and hon. Friends. I hope the Minister will be helpful—[Interruption.] No, he originally indicated following my intervention that he was willing to look at the case again. I am determined to win that case. Whether we can win it today is not entirely in my hands. I hope that that is helpful, and I look forward to the right hon. Lady’s continued assistance in ensuring that we win the argument.
Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC)
With respect to the right hon. Member for Bermondsey and Old Southwark (Simon Hughes), that speech was absolutely breathtaking. I have a high regard for him, but in this instance, his colleagues in Committee did not issue a single word about this and many other important humanitarian issues. I do not know which audience he is addressing, but no work whatever was done by his colleagues in Committee—I was there.
Simon Hughes
I know the right hon. Gentleman was there. As I understand it, this issue was not debated in Committee and no amendment on it was tabled by either Government or Opposition. That is why I am raising it now.
Mr Llwyd
Later on, I shall speak to my amendment that partially deals with this matter, and the right hon. Gentleman might wish to join us in the Lobby if I press it to a Division.
I want to be as quick as I can, because other hon. Members wish to speak and we have a lot of work to get through. If the hon. Member for Hammersmith (Mr Slaughter) is tempted to press amendment 74 to a Division, I will encourage my colleagues to follow me into the Lobby.
I should like to speak briefly to amendments 91 to 102, 83 and 103, which are in my name. I listened carefully to the Minister when he referred to amendment 91. He said that the words “or other intimate” are not necessary, which I accept. They probably are otiose, and therefore that point has been dealt with. I dare say that much of what the Justice Secretary will say tomorrow on self-defence will also be otiose, but that is another debate for another day.
Amendment 92 would broaden the definition by removing the words “physical or mental abuse” and replacing them with
“any incident of threatening behaviour, violence or abuse (whether physical, mental, financial or emotional)”.
The Minister knows that many people wrote to right hon. and hon. Members and we heard lots of evidence on a subject that has exercised many in the Chamber this evening just as it exercised those in Committee. I have begun to question whether pre-legislative scrutiny is worth anything, because if we get hundreds of pieces of evidence from informed bodies, people at the sharp end and practitioners, and then decide to do little or nothing about them, the process is brought into disrepute.
Amendment 93 would insert the words
“or where an allegation is made that B has been abused by A or is at risk of being abused by A”
to line 4 of page 103. Paragraphs 10 and 11 to schedule 1 provide for legal aid for the alleged victim in family cases involving domestic violence or child abuse. However, they do not provide for aid for the adult against whom the allegation is made. The amendment would bring the alleged perpetrator back within scope. That might sound strange, but I shall explain the thinking behind it in a moment.
Amendment 96 would insert the words:
“Civil legal services provided to an adult in relation to proceedings for financial relief in respect of a child who is the subject of an order or procedure mentioned in sub-paragraph (1)”,
and amendment 97 would add the words:
“Civil legal services provided in relation to proceedings in which the court is considering giving a direction under section 37 of the Children Act 1989 (direction to authority, where care or supervision order may be appropriate, to investigate child’s circumstances)”.
In responding to points made earlier, the Minister said that the section 37 investigation could well amount to nothing. However, such investigations are not taken lightly. They are always instigated on basic evidence, and caring for that child is not a routine matter, but an extremely important one.
Amendment 98 would add
“Civil legal services provided in relation to proceedings arising out of a family relationship involving a child in respect of whom a court has given a direction under section 37 of the Children Act 1989 (direction to authority, where care or supervision order may be appropriate, to investigate child’s circumstances); and “family relationship” has the same meaning for the purposes of this sub-paragraph as it has for the purposes of paragraph 10”
to line 39. That would bring within scope both proceedings leading to an order under section 37 of the Children Act 1989 and all subsequent steps in family proceedings after a section 37 order has been made. It would also ensure that the person against whom allegations of abuse are made is brought within scope.
Amendments 100 to 102 are consequential amendments. Their purpose would be to amend paragraph 13, which provides legal aid to child parties in cases that come under the relevant parts of schedule 1, but not to adult parties. That provision will result in unrepresented adults being forced to cross-examine expert witnesses and, in many cases, even the child concerned. The amendments would therefore bring adult parties in such cases within the scope of legal aid provision.
Amendment 103 relates to the director of the Legal Services Commission. We debated in Committee the role of the commission, the independence, or not, of the director in arriving at decisions and the question of whether those decisions will simply be cost-driven. The amendment is designed to deal with those issues. It states that
“the Director must determine that an individual qualifies for civil legal services where the services relate to a matter falling within paragraph 10 of Schedule 1 and—
(a) the individual has been admitted to a refuge for persons suffering from domestic abuse;
(b) the individual has obtained medical or other professional services relating to the consequences of domestic abuse, or
(c) an assessment for the purposes of possible mediation of a family dispute has concluded that the parties need not engage in mediation as a result of domestic abuse,
and in this subsection ‘domestic abuse’ means abuse of the kind to which paragraph 10(1) of Schedule 1 relates”.
The intention is self-evident.
I declare an interest at this late stage in my remarks. I practised family and criminal law for 15 or 16 years as a solicitor and for an equal number of years at the Bar, so I have some understanding of how the family courts work and would therefore gently admonish the Minister: the word “custody” went out of favour about 12 years ago—but that is by the bye. My background in this area of law leads me to believe that these changes might well have a devastating effect on families and, even more importantly, children. Both, of course, are closely interrelated: if it is disastrous for the family, it is obviously additionally disastrous for the young child as well. What is more, I believe that the Government’s decision to press ahead with a weakened definition of “domestic abuse” will result in many women—for it will be overwhelmingly women—entering into court proceedings alone and without legal aid funding.
Mrs Moon
Does the right hon. Gentleman agree that the problem is that we are coming from different directions? For Opposition Members, the priority is the protection of women and children who have been abused, who are facing abuse and who live in fear of their lives. For Government Members, the priority is saving money.
Mr Llwyd
I have to agree with the hon. Lady, and I would pray in aid another point about the more general civil cases where litigants in person will be 10 times more prevalent in courts than they were previously. That is simply to save money, but actually it will not save money. Instead, it will increase pressure on courts and court time and will be a complete disaster—a dog’s breakfast. It is worth remembering that 40% of magistrates and county courts have been closed and that the Ministry of Justice was looking for a 40% decrease in its first budget—that is rather convenient. However, I have no doubt that she is right, and it grieves me that money comes before the welfare of young children. We are talking about knife crime, juveniles going on the wrong side of the law and so on, and the Bill will do nothing to address that. Instead, I fear that it will make matters even worse, although I hope that I am wrong.
Catherine McKinnell (Newcastle upon Tyne North) (Lab)
Will the right hon. Gentleman give way?
Catherine McKinnell
The right hon. Gentleman is making a powerful case about the impact that the Bill will have not just on women suffering domestic violence, but on children in that situation. Does he agree that there is a significant risk not just that it will not save money for the MOJ, but that it will result in increasing costs across Departments, for social services as a whole and for the future of our society, leaving children in those difficult situations?
Yasmin Qureshi
Does the right hon. Gentleman agree that the criminal courts accepted many years ago that in criminal cases defendants could not cross-examine victims on matters such as sexual offences? To take away that right in the civil courts, where people are facing equally harrowing situations, is completely wrong and would be at variance with the criminal courts.
Mr Llwyd
Yes, and I wonder about the quality of the evidence coming out of that flawed process.
I was assisted in drafting amendment 93 by the Bar Council, which has said that the effect of preventing such distressing and costly consequences is worth looking into urgently. Amendments 94 to 102 relate to proceedings involving children’s welfare. As the Bar Council has said:
“It is not understood why, under Schedule 1, the provision of legal aid is limited to proceedings relating to the children, and not the associated financial remedy proceedings. The child’s economic welfare is important in abuse cases; particularly given the higher incidence of abuse in low-income households.”
Amendments 96, 97 and 98
“would have the effect of bringing within scope…proceedings leading to an order under the Children Act 1989 section 37…and…all subsequent steps in family proceedings once a section 37 order has been made. They would also ensure…that…the person against whom allegations of abuse are made is within scope.”
Amendments 94 and 95 are consequential amendments.
The Minister said in Committee that cases involving financial provision are not a priority for legal aid. I firmly believe that all private family cases should be retained within the scope of legal aid. It is difficult to overestimate the damaging effects on children caught up in untidy, bitter and lengthy disputes. Protecting the interests of children is at the heart of amendments 99 to 102. As the Bar Council has said:
“Paragraph 13 provides for the provision of legal aid for the child parties in cases which come under subsection (1)(a)-(e), but not for the adult parties,”
which, as I have said, will
“result in unrepresented adults being forced to cross-examine expert witnesses and, in many instances, the child concerned.”
Amendments 99 to 102 would have the effect of
“bringing within scope the provision of legal aid for adult parties in such cases.”
I want to talk briefly about amendment 83, my final amendment, which deals with judicial review. I thank the Immigration Law Practitioners Association for its help in briefing me on this amendment. We know that immigration-specific exclusions have been made. In their Green Paper, the Government set out a robust defence of judicial review and the need for retaining legal aid in such cases, saying:
“In our view, proceedings where the litigant is seeking to hold the state to account by judicial review are important, because these cases are the means by which individual citizens can seek to check the exercise of executive power by appeal to the judiciary. These proceedings therefore represent a crucial way of ensuring that state power is exercised responsibly.”
None the less, the Government have compromised their position in immigration cases. My amendment 83 seeks to rectify that anomaly. In explaining why immigration cases are to be exempted from legal aid for judicial review claims, the Government say that they have drawn on the response to the Green Paper by the senior judiciary, who raised concerns about unmeritorious judicial reviews, but in so doing the Government have ignored three key aspects of the judiciary’s proposals.
First, the judiciary’s proposals were advanced only on the basis that
“careful further consideration would need to be given”
before the proposals that the Minister is now pushing could be taken up. However, no consultation has been held on those proposals. What is more, the judiciary also advanced their proposals on the basis that, in principle, legal aid should be available for appeals before the first-tier tribunal. However, the Bill removes legal aid in such non-asylum appeals. Finally, the proposals were advanced on the basis that legal aid should not generally be excluded, but instead be available where a positive decision was made in favour of granting legal aid in any individual case—for example, because the judge decided that it had merit. However, the Bill removes legal aid for such immigration cases, regardless of the merit of any individual case. All in all, this is a sorry state of affairs.
The Government seek to justify the new exclusions for judicial review in immigration cases by stating that public funding is not merited in cases that have
“already had…one full oral hearing,”
yet the provisions exclude legal aid even where there has been no oral hearing. The Government have effectively reversed their position that holding the state to account was of especial importance—hence the need to retain legal aid for judicial review. As a consequence, legal aid will not be available to hold the state to account at any stage, because immigration applications and appeals are also being removed from the scope of legal aid—a Catch-22 situation, or perhaps “Kafkaesque” would be a better description.
To remind ourselves, the changes will affect cases involving non-asylum claimants who face removal from the UK, and therefore from their families, homes and communities. Such claimants include trafficking victims receiving rehabilitative care and treatment; British children and spouses facing permanent separation from their parents or partners; children who have lived in the UK for many years—sometimes all their lives—facing removal to countries that they have never seen and do not know, and where they do not speak the language; adults who have lived in the UK for many years, and sometimes decades, facing removal to countries that they do not know; and victims of torture and other trauma who are no longer at risk of persecution in their home countries, but who are reliant on professional care and treatment.
The position now advanced by the Government is not supported by their stated principles or by the position advanced by the senior judiciary, and would leave a powerful agency of the state—the UK Border Agency—free from effective judicial oversight when exercising powers to remove people from their families, homes and communities, including where doing so will harm their welfare, health or life prospects. For those reasons, sub-paragraphs (5), (6) and (7) of paragraph 17 of schedule 1 have no place in any legislation with any regard for human rights or humanitarian issues.
Caroline Lucas
I rise to speak to my amendments 23 and 113. I shall be brief, because we have much business to get through, but let me say at the outset that I support Labour’s amendment 74. However, I still want to speak to my amendment 23, because I am yet to hear anything from the Government to explain why there is such resistance to ensuring that the definition of “domestic violence” set out in the Bill reflects the working definition currently used across Departments, including the Home Office and the Ministry of Justice, and by the UK Border Agency.
In a debate earlier this month, the Minister for Equalities assured me that the Government had
“not sought to change the accepted definition of domestic violence. We are including all forms of domestic violence, physical and mental, in legal aid criteria.”—[Official Report, 12 October 2011; Vol. 533, c. 136WH.]
That commitment is incredibly important to thousands of women in my constituency who have experienced physical and emotional violence, as well as those who have suffered sexual violence, and to all women across the country who desperately need legal aid to try to protect themselves from domestic violence. However, I fail to understand why, having made that commitment, the Government are using a definition of abuse in the Bill that departs from the current, widely accepted definition. My fear—and that of many campaigners working on the issue, including the women’s institute, Rights of Women and Gingerbread—is that using a different definition will weaken protection for women and result in legal aid being unjustly denied in some domestic violence cases.
In the debate on 12 October, the Minister for Equalities pledged to continue to support the robust cross-departmental approach to tackling violence against women and girls—a position also detailed in the Government’s strategy, published last year. However, surely having the same definition of “domestic violence” in use in all relevant legislation and across all Departments is the cornerstone of a joined-up approach. Problems can arise for women if a robust cross-departmental definition is not adopted. For example, in the case of Yemshaw v. London borough of Hounslow, the local authority refused to recognise Ms Yemshaw as homeless as a result of domestic violence, because, although she had been subject to emotional, psychological and financial abuse by her husband, she had not experienced physical abuse. Not until the case reached the Supreme Court was Ms Yemshaw recognised to have experienced domestic violence and thus deemed to be eligible for housing assistance. I appreciate that the definition in the Bill addresses mental abuse, but the key point is consistency. Responding effectively to domestic violence relies on clarity, uniformity and consistency. There is a perfectly good definition already in widespread use, so let us include it in the Bill. If not, may we please have a much more rigorous response from the Government about why not?
Let me say a few words about amendment 113, the purpose of which is comprehensively to preserve legal aid in immigration cases for a person subject to domestic violence. It is also designed to highlight the inadequacy of Government amendment 59, which fails to provide legal aid for a specific group of individuals, namely those subjected to domestic abuse whose immigration status is dependent on their partner, where they have not been granted limited leave to remain for a probationary period at the end of which they may apply for indefinite leave to remain.
In July, the Minister undertook to bring forward a Government amendment that would bring immigration cases involving domestic violence within the scope of clause 10. Of course that is welcome, as was the Minister’s undertaking to consider the first part of my amendment 113, which he made when he got up to speak quite some time ago. What I would love to know from him is exactly when and how he is going to consider it. We are now in the last few days of debate on this really important Bill. At this stage, for Ministers to say that they are going to consider provisions in some unspecified way is simply not sufficiently reassuring.
Ben Gummer
That was one speech. On several occasions, we had three-hour speeches where points were recycled and regurgitated without use to the legislative process. It is unfortunate that the hon. Gentleman claims that I am padding things out, as I hope that I am addressing points not yet raised in this Chamber. I am going to do so briefly. I feel I should do so, as although I am happy to admit that I am not someone from a legal background and that I do not have a previous interest in this area of domestic violence, I have the experience of sitting in the Public Bill Committee and understanding the arguments put both by the Opposition and the Government in this difficult area. I speak as a layman and I hope to offer my support to points made by Members on both sides of the House.
On amendment 113, tabled by the hon. Member for Brighton, Pavilion (Caroline Lucas), we face a small issue about whether people from the European economic area are caught within this legislation. It will cover only a small handful of people, but the inevitable consequence of missing it out—if that happens—is that there will be some travesty and miscarriage of justice precisely in a case where someone falls through the gap. I hope that the Government will carefully examine that suggestion in the first half of the amendment.
I also fully support what my hon. Friend the Member for South Swindon said about undertakings. I have heard much evidence from people practising in this field who give a reasonable argument that a counter-productive eventuality of this Bill is that, if undertakings are excluded, it could end up greatly prolonging cases, and not only to the detriment of litigants: it would also affect the costs of the court. I hope that his constructive and sensible suggestions, which come with considerable experience of sitting on the bench and acting as counsel, will be taken up by the Government as the fair-minded suggestions that they are.
More broadly, we have a problem on self-reporting. I hope that hon. Members, especially Labour Members, will bear me out on this. Anyone who has contact with the family courts and who talks to family judges will know about the impact that allegations of child abuse have had in private law cases. In the opinion of many counsel and judges, in the past few years, allegations of child abuse have increasingly been made far too readily when no substance is behind the claims. It would be unfortunate if, under the new regime, allegations of domestic abuse and domestic violence were made as a precept to gain legal aid, because that would devalue the claims other people make completely legitimately. That is what is happening in the courts at the moment with allegations of child abuse. Several judges have remarked to me that so often is it claimed that one party or another has committed child abuse, it is beginning to numb the senses of the judges hearing those cases. It would be wrong if a similar situation were to arise with this new regime. The Government must therefore phrase the definition of domestic violence very carefully.
I hope that the Government have heard the concerns of Opposition and Government Members, such as those of my hon. Friend the Member for South Swindon, those that my hon. Friend the Member for Broxtowe has voiced on several occasions, and those raised today by my hon. Friend the Member for Maidstone and The Weald (Mrs Grant). I can hear from the way in which the Minister has been replying that he understands that some sort of uniformity would be desirable across government and that some recognition of the problems of encapsulating a definition within the Bill will be made here or in another place.
The Opposition went into the last election saying that they would seek cuts to legal aid and that promise has been reiterated both by the Leader of the Opposition, in January, and the shadow Secretary of State, who is sitting on the Front Bench, on several occasions. However, in Committee, the shadow Minister tabled dozens of amendments, some of which were, by his own admission, contradictory and many of which were culled from the handouts given by lobbyists, which extended considerably the Committee’s deliberations when we could have been discussing the meat of the proposals as we have tried to do today. He came to the House with a new amendment having denied the Public Bill Committee the ability to consider properly many of the issues that we should have discussed.
Ben Gummer
As ever, I am pleased by the right hon. Gentleman’s intervention because he highlights an inconsistency in the Opposition’s argument. They cannot say on the one hand that the Government are not listening and that the legislative process does not work—he said earlier that the pre-legislative system was not working—but on the other, when amendments are made, that the Government are either committing a U-turn or not listening. I do not understand how the Opposition and the right hon. Gentleman can reconcile those two statements.
Mr Llwyd
The hon. Gentleman was waxing lyrical about the absence of time to discuss Opposition amendments, but his party is equally to blame in that we have not even had sight of their amendments. At least the Opposition amendments were available to be seen before today; we have not even seen the amendments that are the subject of today’s announcement. That is the point I am making.
Ben Gummer
The right hon. Gentleman misses my point about the Public Bill Committee. There are many issues that needed to be raised that we could have fleshed out at greater length, but the Opposition tabled so many specious amendments, many of which were completely contradictory—largely in the name of the shadow Minister, not that of the hon. Member for Stretford and Urmston (Kate Green), who is shaking her head—that we did not get to the meat of some of the issues in the amendment we are debating. Had we been able to discuss sub-paragraph (10)(j) of amendment 74, which the shadow Minister has tabled, we might have been able to improve the Opposition’s amendment so that it could be acceptable to Members on both sides of the House. Instead, we have an amendment that was tabled a couple of days ago with aspects that clearly would not hold up to further legislative scrutiny. It is a pity that we did not have that discussion in Committee instead of discussing a series of amendments, some of which I doubt the shadow Minister had even read before he started speaking to them.
Putting all that aside, a principal issue for me is that many of the amendments tabled by the shadow Minister in Committee would have committed his party to spending increases costing £245 million, but whenever I or other members asked whether the Opposition had any alternative spending plans, they told us to look at the Law Society’s plans. Unfortunately, the Law Society has had to revise its plans, which were found wanting.
Mr Djanogly
My right hon. Friend makes a good point. High levels of successful appeals perhaps show that too many cases are going before the tribunals in the first place. The other day, I saw a figure of about 80% for special educational needs tribunals, which was not very impressive either. I can also tell him that I am personally engaging with Ministers in the Home Office, the Department for Work and Pensions and the Department for Education with the specific intention of getting them to work with the Department of Justice to improve their initial decision making. I am pleased to say that they are all are working with us, and that they want to make the system better. This is a matter of significant concern to me, not least because I would like to see fewer appeals relating to my Department coming through the courts and tribunals.
The hon. Member for Brighton, Pavilion (Caroline Lucas) talked about domestic violence, immigration and legal aid. She also talked about people who fall outside the domestic violence immigration rule, such as EEA nationals. As I mentioned earlier, we are looking at cases of EEA spouses who have suffered dramatic abuse. The right hon. Member for Dwyfor Meirionnydd mentioned immigration judicial reviews. I think that he accused the Government of putting appellants into a Catch-22 situation because legal aid would not be available for immigration appeals or for some judicial reviews. I can tell him, however, that people will still be able to appeal immigration decisions themselves and, as is often the case at the moment, they will still be able to get legal aid for a subsequent judicial review, as long as it is not on exactly the same or substantially similar issues, or on a removal direction. As I said earlier, we are making various exceptions to the exclusions, which will include ensuring that, when there has been no possibility of an appeal, legal aid will remain for judicial review.
My right hon. Friend the Member for Bermondsey and Old Southwark raised various points about immigration, and I will write to him about those. He specifically mentioned children, as did other hon. Members, so I shall briefly address that point. In most immigration cases, a child’s interests are represented by their parent or guardian. Most cases in which a child is unaccompanied involve an asylum claim, and legal aid will remain for those cases as at present. Unaccompanied children with an asylum or immigration issue would have a social worker assigned to them, whose role would include helping the child to gain access to the same advice and support as a child who was permanently settled in the UK. They could also offer assistance with filling in forms and explaining terms, and give emotional support. Legal support in such immigration cases may be found, if needed, from law centres and from pro bono legal representation. The Refugee Council provides services for separated children, which can include litigation friends.
A number of hon. Members asked how we justified plans that could disproportionately affect women. That question has also been asked in relation to disabled people, ethnic minorities and people who live in rural areas. The equalities impact assessment, published alongside the Government’s response to consultation, sets out our analysis of how the reforms will affect people with protected characteristics as set out in the Equality Act 2010. We have identified the potential for the reforms to have a greater impact on some groups, but we believe that those impacts are proportionate, and justified by the need to meet our objectives, including the pressing need to make savings from legal aid. We are also keeping discrimination claims relating to a contravention of the Equality Act 2010 within the scope of legal aid, which we consider will make a significant contribution to the fulfilment of our public sector equality duty.
The hon. Member for Stretford and Urmston asked about the removal of legal aid in many family cases, which she said would remove access to justice from many people. She asked how that could be right. Legal aid will remain available for family mediation and private family law cases, including private law children and family proceedings and ancillary relief proceedings. We want to encourage more use of such mediation. In ancillary relief cases, courts will be able to make orders for payment against a third party or a party who has the means to fund the costs of representation for the other party. Removing costly and often unnecessary legal aid does not mean removing access to justice. Litigants in person already feature in the justice system. Judges and magistrates currently assist litigants in person without compromising their impartiality, and we expect that to continue.
Finally, I was asked whether we expect all cases to be resolved through mediation. As I said earlier, the answer is categorically no. Cases involving domestic violence and child abuse, and emergency cases will still not be required to go through mediation. In addition, exceptional funding will be available when necessary for the UK to meet its international and domestic legal obligations via a proposed scheme for excluded cases. On that note, I rest my case.
Amendment 10 agreed to.
Mr Elfyn Llwyd
I beg to move amendment 80, page 99, line 21, leave out ‘other than’ and insert ‘including’.
Mr Deputy Speaker (Mr Lindsay Hoyle)
With this it will be convenient to discuss the following: Amendment 85, page 110, line 18, leave out ‘other than clinical negligence’.
Amendment 143, page 110, line 18, leave out ‘other than’ and insert ‘including’.
Amendment 86, page 110, leave out lines 28 to 30.
Amendment 142, page 110, line 32, at end insert—
19A (1) civil legal services provided in relation to Clinical Negligence.
(2) In this paragraph clinical negligence means breach of duty or care or trespass to the person committed in the course of the provision of clinical or medical services (including dental or nursing services)’.
Amendment 88, page 111, line 4, leave out ‘other than’ and insert ‘including’.
Amendment 132, page 118, line 27, after ‘negligence’, insert
‘with the exception of clinical negligence’.
Mr Llwyd
I will be brief, because other hon. Members wish to speak and, crucially, we need to get to the social justice provisions. The purpose of amendment 80 is to bring clinical negligence back within scope in cases involving abuse of a child or a vulnerable adult. Amendment 88 is designed to retain specific provision for tort and damages claims engaging European convention rights, and extending provision to cases involving clinical negligence. Amendments 85 and 86 are consequential, and cover the abuse of a position of power by a public authority. They would specifically provide for cases involving a particularly serious variety of public wrongdoing and would remove the exclusion of clinical negligence cases in such a context.
Taken together, the amendments reflect my concern, which I know is shared by many hon. Members, about the huge gaps in protection of the vulnerable that will come about as result of implementation of the exceptions to funding by legal aid. What is perhaps most concerning in such instances is that individuals will come up against the state during proceedings. People involved in cases of clinical negligence by a public authority are, by definition, at their most destitute. Frequently, parents or other family members will bring cases against public authorities resulting from traumatic injuries sustained by their children and their relatives.
As the hon. Member for Makerfield (Yvonne Fovargue) said in Committee:
“the inequality of arms is never more obvious than when an individual comes up against a decision made by the state”.––[Official Report, Legal Aid, Sentencing and Punishment of Offenders Public Bill Committee, 7 September 2011; c. 327.]
That is because the state will always have access to full and expert legal advice, and will often have a team of lawyers at its ready disposal. That is even more ironic when we consider the stark fact that the state should have a responsibility to ensure that every individual has the means to hold it to account. I said that on Second Reading, and I do so again. In the reforms, the Government seem to have lost sight of that all-important state duty to support the vulnerable, as well as to protect them.
The Minister said in Committee that there is often a viable source of alternative funding for cases of clinical negligence through contingency fee arrangements. That sounds all right, but is not as simple as it sounds. What about the people who, on entering into such an arrangement with solicitors, would not be able to afford a policy to cover them for the initial necessary medical examinations? I know that some ground has been given on that, but I would be grateful to hear more. For many parents, for example, contingency fees cannot be the answer since they do not have the money up front to buy a policy to provide cover when making an arrangement with solicitors. Indeed, very few firms would take on a clinical negligence case on a no win, no fee basis because of the complexity and specialism involved in this area of civil law.
Stephen Phillips (Sleaford and North Hykeham) (Con)
The hon. Gentleman is making a very serious charge against public authorities, and indeed those who represent them, by suggesting that they obfuscate and withhold evidence in circumstances where their disclosure obligations are very clear under the civil procedure rules. Can he put some flesh on the bones and substantiate his allegation?
Karl Turner
Does the hon. Gentleman agree that it is often the public policy of these authorities—certainly, in my experience, the national health service—to delay? I could not provide any examples either, but in my experience, they do delay.
Mr Llwyd
That is the point. Unless and until there is full disclosure at the very earliest point, these cases will be drawn out until the evidence is available. Everybody knows that any case against a health authority has to rely on expert evidence, and it is impossible to have that without experts’ reports from the health authority. This is the conundrum facing people who are often two, three or four years down the road and still no nearer to a conclusion. That is exactly the position that many people report, and that is why lots of these cases are, as we hear, high-value cases.
Stephen Phillips
The hon. Gentleman will obviously have absolutely no doubt about the bona fides of the charges that he is effectively laying at the doors of the national health service and others, but does he ascribe the position to problems with management or to seeking to protect individual medical practitioners? The two seem to me to be very different.
Mr Llwyd
I would speculate and say that it is probably to do with management rather than protecting individual practitioners, but I cannot give any assurances on that. What I am saying here today is common knowledge out there; it is not a new allegation that I have dreamed up just to try to grab a headline at this late stage. [Interruption.] To answer the hon. Gentleman’s question honestly, I do not know, but I would guess that it is a management issue, because whenever there is a claim, it is reported to management immediately—on the very first day, I expect.
Stephen Barclay (North East Cambridgeshire) (Con)
If it is a management issue, then that, as we have seen in the Public Accounts Committee, goes to the issue of accountability and governing structure. Should not the hon. Gentleman therefore be focusing his remarks on how those issues are tackled rather than trying to perpetuate an ever-increasing legal aid bill, which amounts to fixing the symptoms of the problem rather than addressing its cause?
Mr Llwyd
If the hon. Gentleman will bear with me, I will go back to my script; he may be interested to hear this part because it deals with the point that he rightly makes. If there were a duty on responsible bodies such as health authorities immediately to come clean with evidence, there would probably have been no need for these amendments because we would not be in the position that we are in. Side by side, on a parallel basis, we need to ensure that all health authorities, and any public bodies, are responsible in their dealings with the public; that goes without saying.
There are about 1 million adverse occurrences or accidents in the NHS every year, and about 10,000 lead to action being taken against the NHS. It is, therefore, a big area of law. In the earlier debate, the point was made that 66% of immigration appeals succeed because the initial decision was bad. In this instance, there would be far fewer long, drawn-out cases if all health authorities and public bodies were under a duty to disclose fully and urgently, and there would not be the astronomical costs that some of these cases result in.
Stephen Barclay
The right hon. Gentleman’s remarks are addressing supply, not demand. He is not addressing why there are so many clinical negligence cases, nor why the insurance that is charged is going up exponentially. There are existing rules for special severance payments for whistleblowers but, as was found in the National Audit Office’s report in 2005 and the Public Accounts Committee’s recommendations in 2006, there is still a problem in the way whistleblowers are tackled in the NHS and in the way such cases are dragged out. That is a failure of the previous Government. It is to that failure that he should address his remarks; not to the fact that we continue to fix a problem that is growing exponentially year on year.
Mr Llwyd
The number of cases each year because of accidents or negligence has not really increased. It has been around the 10,000 mark for many years. There has not been a sudden rise in specious claims in this area. This is not a growing market. I hear what the hon. Gentleman says and I agree that we should ensure that there is far better practice.
Such cases are capable of being resolved far earlier and without recourse to litigation. Medium-sized cases are often resolved by the hospital or health authority without resorting to litigation, and that is fine. However, in large cases, such as where a child is brain-damaged at birth, there is no appetite from either side to settle it in the hospital. Such cases are often extremely expensive because the child’s life has been ruined for their entire existence. That is why I raise these matters.
I hope that the hon. Member for Kingston upon Hull East (Karl Turner) will make a contribution because I know that he, too, has been campaigning on this issue. I will confine my remarks to those few points.
Tom Brake
I rise to make a few brief comments, particularly in relation to amendment 132, which appears in my name.
I have been ably supported by Action against Medical Accidents, which campaigns on the issue of clinical negligence and for a statutory duty of candour in relation to accidents in the NHS. If there was a statutory duty to confirm, at the outset, that an accident had taken place, it might ensure that many cases involving the NHS, which can drag on for many years, were brought to a much earlier conclusion. If, as was suggested earlier, it is management who get in the way of resolving such cases, they would not be able interfere to the same extent to delay proceedings—if, indeed, that is what they do—if confirmation that an accident had taken place was given at the outset.
I will focus on legal aid representation in relation to medical negligence. I welcome the confirmation we have been given that £6 million or £7 million of the £16 million that is currently spent on legal aid for medical negligence will be retained under the “Exceptional Funding” heading. The sum that is being discussed is therefore in the order of £10 million. Although we have received assurances that exceptional funding will be able to deal with many of the intense cases with which Members are familiar, such as cases of babies who have been seriously injured at birth, the question remains: which cases will not be funded once that £10 million is withdrawn from legal aid for medical negligence cases?
Given that the Government have a significant budget deficit to address and that this measure is part of that programme, I do not want to come empty-handed when it comes to saying where additional funding could come from if the Government were to restore that money. Later on, we will debate amendment 144, which is in my name. It would introduce a presumption against sending people to prison for a prison sentence of six months or less. The organisation that has done the calculations suggests that that could save the Government up to £400 million a year. That might be a slight or even a gross exaggeration of how much money could be saved, but it would be not unrealistic to expect that savings of the order of £10 million would be achievable if the Government were to look kindly on that amendment.
Medical negligence is high-profile. It might affect a relatively small number of families, but when it does, it does so dramatically.
Mr Llwyd
The hon. and learned Gentleman makes very good points. I tried to say that there should be a twin-track approach. In my perception, there is a problem with regard to the administration of health authorities and full early disclosure, so he is absolutely right. However, I still say that there should be more than just a basic safety net in awful cases such as when somebody is a paraplegic upon birth.
Stephen Phillips
I am grateful to the right hon. Gentleman for his observations, but he may be eliding two matters. The first is the unavailability of legal aid for what we might call cases in the middle—neither the severe cases that will be picked up by the exceptional funding arrangements or CFAs, nor the cases in which solicitors and counsel will be prepared to take the case on and earn their money well down the line. I agree that that middle group of cases is the difficult group, but as well as the CFA arrangements mentioned by the hon. Member for Kingston upon Hull East, one must consider whether those cases are likely to be picked up and run with by the legal profession. My judgment is that they are.
Never having done a clinical negligence case, and having no expertise in those cases at all, I base that judgment partly on my experience of the position as it prevails in many jurisdictions in the United States, where of course no state or federal funding at all is available for civil cases. A legal profession has grown up in which attorneys have had to educate themselves about which cases they should be prepared to take. They consider which cases are worth taking forward, but also those that they believe have merit from a perspective of social justice and ensuring that there is access to justice for all.
Having worked with many attorneys across many jurisdictions in the United States, I can tell the right hon. Member for Dwyfor Meirionnydd that there are attorneys who take cases that they suspect will lead either to a settlement, out of which they will get very little or nothing, or to an eventual loss if they have to take the matter to court. They consider that part of their professional obligation.
I hope that both limbs of the legal profession in this country will come to appreciate that we owe an obligation not merely to try to make money out of the practice of law, but to do what we all did when we first came to the law—have a burning sense of justice on behalf of our clients, so that they are properly represented whether or not we believe them, whether or not we think their case is meritorious and certainly whether or not we think we will make money out of it. I hope that that deals to a large extent with the right hon. Gentleman’s points. I am, of course, as concerned as he is that there may be a group of cases in the middle that will somehow fall through the net. If that is the position, we may have to revisit the issue later.
Mr Djanogly
That is hard to say, because it depends on the extent to which children will come within the scope of exceptional funding, but we believe that the figure for exceptional funding will be £6 million, and that a significant proportion of that would be related to children’s claims. I will return to that.
The figure does not account for the NHS Litigation Authority paying after-the-event insurance premiums for policies covering the cost of expert reports in some cases. My hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips) made that point very well. Based on figures published by the compensation recovery unit on claims settled, clinical negligence cases made up just over 1% of personal injury claims in 2010-11.
While Opposition Members were speaking, a thought came to my mind. Clinical negligence forms about 1% of the wider personal injury market. The last Government ended legal aid for personal injury claims, except in relation to clinical negligence. I am looking for help from Opposition Members because it is bizarre to hear them defend their position with such vehemence and conviction when their party scrapped 99% of this category. Let me develop the point.
Labour Members seem to be saying that if a drunk driver hit someone and caused brain damage, the injured person would not get legal aid. But if the same victim were brain-damaged to the same extent by a negligent doctor, they seem to be saying that that person should get legal aid—[Interruption.] If I have missed something, I am all ears. The hon. Member for Kingston upon Hull East (Karl Turner) may want to explain why I am wrong. The Opposition must find some consistency in their position.
Mr Djanogly
The injured person could make a claim, but so could the person who suffered clinical negligence. The point is, as the hon. Gentleman knows, that the position is inconsistent.
We recognise that many clinical negligence cases involve serious issues, but for most a conditional fee agreement will be a suitable alternative to public funding. According to NHS figures for 2010-11, 82% of clinical negligence cases, where the funding method is known, were funded by means other than legal aid. That is the current position. We therefore consider that legal aid is not justified in such cases, and that our limited funding would be better targeted at other priority areas, such as those involving physical safety, liberty and homelessness. However, we have proposed an exceptional funding scheme to ensure that some individual clinical negligence cases will continue to receive legal aid when failure to do so would be likely to result in a breach of the individual’s right to legal aid under the Human Rights Act 1998 or European Union law.
In considering whether exceptional funding should be granted, we will take into account the client’s ability to present their own case, the complexity of the matter, the importance of the issues at stake, and all other relevant circumstances. As I said to my hon. Friend the Member for Hastings and Rye (Amber Rudd), our impact assessment estimates that we will continue to spend some £6 million of the £16 million that we currently spend on representation in clinical negligence cases.
Mr Llwyd
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Speaker put forthwith the Questions necessary for the disposal of the business to be concluded at that time (Standing Order No. 83E).
Amendment made: 11, page 99, line 36, at end insert—
‘“personal representative”, in relation to an individual who has died, means—
(a) a person responsible for administering the individual’s estate under the law of England and Wales, Scotland or Northern Ireland, or
(b) a person who, under the law of another country or territory, has functions equivalent to those of administering the individual’s estate;’.—(Mr Djanogly.)
Amendment proposed: 92, page 103, line 35, leave out ‘physical or mental abuse’ and insert ‘any incident of threatening behaviour, violence or abuse (whether physical, mental, financial or emotional)’.—(Mr Llwyd.)
Question put, That the amendment be made.
Legal Aid, Sentencing and Punishment of Offenders Bill
Elfyn Llwyd Excerpts(13 years ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)
I have been fascinated by the proceedings while I have been waiting to move the motion. I beg to move,
That, notwithstanding that such provisions could not have been proposed in Committee without an Instruction from the House, amendments may be proposed on Consideration of the Legal Aid, Sentencing and Punishment of Offenders Bill to—
(a) provide for measures against the payment or receipt of referral fees in connection with the provision of legal services,
(b) create a new offence relating to squatting, and
(c) amend section 76 of the Criminal Justice and Immigration Act 2008 (reasonable force for purposes of self-defence etc).
The motion seeks to widen the scope of the Bill in order to provide for measures to be introduced on the payment of referral fees, on the creation of a new criminal offence relating to squatting and to amend the law that governs the use of reasonable force for the purposes of self defence.
I hope that this debate will be focused on the resolution and therefore be a short procedural debate. Obviously, there are points of substance to debate in the three areas that we are bringing into scope, but the obvious time to debate those issues is when we reach them in the course of your selection of amendments, Mr Speaker. We are all anxious to debate other measures in the Bill, for which we will have three full days on Report, so I think we should deal quickly with procedural matters and get on to the substance.
On sentencing, quite a lot will come tomorrow which I look forward to debating. I am being attacked from the right and from the left—that is the story of my life—but I regard all those attacks as entirely misconceived and I hope to answer them tomorrow. More importantly, today we have a lot of amendments on the Order Paper regarding legal aid and it is important that we get on to consider their merits on the Floor of the House in the light of debates in Committee. I hope, therefore, that the House will be satisfied if I merely explain why we are introducing measures on these three topics and bringing them to Floor of the House rather late in the day, on Report.
Referral fees are a familiar subject and have been discussed on the Floor several times in recent months. Since they were introduced—or since the ban on solicitors’ paying referral fees was lifted—in 2004, they have increased very rapidly and have contributed to an unwelcome increase in personal injury cases in our courts. They have tended to encourage the introduction of speculative claims and have certainly raised the cost of contesting litigation. The reason we have waited until Report to introduce amendments on the subject is that the proposals have been out to consultation for a few months and the consultation closed only recently. Even during the consultation we were under pressure from the right hon. Member for Blackburn (Mr Straw) to do something about this issue; I entirely agreed with the points he made and the Government are now responding.
On squatting, the Prime Minister announced on 21 June that we were again about to consult briefly on the possibility of introducing a criminal offence of squatting in the Bill. The consultation closed on 5 October. Anyone who has suffered from the presence of squatters in their property knows the distress and misery they cause. We have restricted the new criminal offence to residential properties precisely to avoid opening up the wider debate that might have ensued on squatting and I am not aware of any strong reaction to what we are doing. Existing laws provide some safeguards for property owners, but our making squatting in residential buildings a criminal offence will provide rather greater protection in circumstances where the harm caused is most severe. Again, I am not aware of much objection in principle to those measures. Personally, I have always found it difficult to see the difference between taking somebody’s car and taking somebody’s home. There is a need for a criminal offence.
Finally, the Prime Minister also announced on 21 June that we would put beyond doubt that home owners and small shopkeepers who use reasonable force to defend themselves or their properties will not be prosecuted. We think that further action on self-defence is necessary to reassure members of the public that they are allowed to use reasonable force to defend themselves or their properties against intruders or others.
Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC)
How will this law differ from the common law right to defend property and the existing law on self-defence under which one can use proportionate and reasonable violence to defend oneself?
Mr Clarke
I will address that when we reach the amendments in two days’ time—[Interruption.] Well, that is exactly where the Labour Government were two years ago. We are attempting to clarify the law and reassure people that the use of reasonable force is indeed legitimate in English law. The main thing it deals with is the fact that there is no duty to retreat when facing a dangerous or threatening attack, but we will discuss that when we come to that part of the Bill. If that was a fundamental change in the law, I would probably face objections to its introduction on Report. It is an attempt once more to build up public confidence in the perfectly reasonable right people have to use legitimate force when defending themselves and their property.
Chris Bryant
I am grateful to the Secretary of State for allowing me to intervene on his intervention, but his basic argument is, “This is just for the convenience of Government”—and for no other reason.
In relation to reasonable force, the right hon. and learned Gentleman’s argument, in so far as I could see it, was that basically, “It isn’t going to make the blindest bit of difference, so why not just let it go through?” When Ministers say, “We have to change the ordinary processes for the Government’s convenience, and we know we can do it because we have a majority—by definition, because we are the Government,” we almost always end up with bad legislation, as it is not sufficiently scrutinised. It certainly happened when we sat on the Government Benches, and I am absolutely certain that it will continue to happen now.
Chris Bryant
Precisely, and it is a bad idea to add to a Bill that is already pretty much a Christmas tree Bill a few more baubles at the last stage before it reaches Third Reading. It is a fundamental mistake and a bad way of proceeding, and I can tell from the body language of the Secretary of State and Lord High Chancellor that he is a little embarrassed about coming forward in this manner—
Legal Aid, Sentencing and Punishment of Offenders Bill
Elfyn Llwyd Excerpts(13 years, 4 months ago)
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Mr Clarke
I am grateful. My hon. Friend has been in practice much more recently than the right hon. Member for Blackburn (Mr. Straw) or I have. We will doubtless continue to study this after the debate.
The sentencing reforms are balanced. Again, I shall quote the words of my shadow, the right hon. Member for Tooting, who when I first published them in the Green Paper described them as
“a perfectly sensible vision for a sentencing policy”,
and they will in my view achieve a very significant transformation.
That brings me to the rest of the Bill covering legal aid and provision on litigation and funding. No Government look to tackle legal aid lightly, but the system as it stands is obviously unaffordable. Labour had 30 goes at fixing it between 2006 and the end of their period in office and we have sought to go back and think about what the taxpayer should pay for by way of litigation from first principles. Our priority is cases where people’s life or liberty is at stake, where they are at risk of serious physical harm or immediate loss of their home or where their children may be taken into care. After our reforms, legal aid will routinely be available in 25 areas, including for criminal cases, for most judicial review proceedings, for private family law cases involving domestic violence, child abuse and child abduction, for community care, for debt where the home is at immediate risk, for mental health cases and for cases concerning special educational needs. We modified our original proposals in response to consultation, listening carefully to the thousands of responses that we received.
Legal aid will no longer be routinely available in 13 areas, including most private family law cases, clinical negligence cases, non-discrimination employment cases, immigration cases, some debt and housing issues, some education cases and welfare benefits cases.
Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC)
How does the Lord Chancellor square what he is saying with what Baroness Hale of the Supreme Court has said about this being a ludicrous Bill and how these provisions will disproportionately affect the most vulnerable in society, particularly people from ethnic minorities?
Mr Clarke
I have always had a high regard for Baroness Hale, who is a very distinguished lawyer, and I have heard of her opinions. I shall have to study them and perhaps even meet her to discuss them, because I am surprised by her response. Where we started from was ensuring that we did not damage access to justice for vulnerable people in matters of such importance that society as a whole would want to be sure that they were protected. Either she has misunderstood the effect of our proposals or why we are doing it. We have to get back to spending an affordable amount of money on paying for things that the taxpayer should actually pay for to defend the vulnerable. We all start as lawyers, let alone as citizens, with a slight bias in favour of legal aid because everyone is used to it, but the scale of legal aid has expanded, its scope is too wide and it needs to be reformed.
Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC)
I am going to speak against much of this Bill, but probably not as vehemently as the previous speaker.
The Bill serves two purposes: it attempts to advance and also to set back our legal system. I am reminded of the section in Lewis Carroll’s “Through the Looking Glass” in which the heroine, Alice, takes one step forward only to find herself taking two paces back. Some of the proposed sentencing reforms in part 3 of the Bill will tidy up the current sentencing framework by correcting some anomalies to do with release on licence, yet the concurrent cuts to legal aid we are being asked to push forward would hijack any claim our legal system has to being just. In my contribution, I will briefly set out my thoughts on both aspects of the Bill.
Although I have mentioned Lewis Carroll, I hope it will not seem too topsy-turvy for me to start by considering the end of the Bill. As I have mentioned, part 3 introduces some positive reforms, and I am particularly interested in clauses 93 to 96. In February, I introduced a ten-minute rule Bill with the aim of correcting various anomalies in sentencing, and I am pleased that some of them have been included in the Bill. My Bill’s aim was to ensure that prisoners serving determinate sentences of four years or more, as well as those on indeterminate sentences for public protection, are released back into the community only when a parole board has determined that they are a low risk to the public. Harry Fletcher of the National Association of Probation Officers assisted me in making those arguments. Incidentally, my Bill also argued for the ability to have regard to mental health problems when sentencing convicted persons. I am pleased that clause 62 goes some way towards realising that.
Under section 244 of the Criminal Justice Act 2003, when a fixed-term prisoner has served the requisite custodial period, the Secretary of State should release them on licence. Since 2005, however, those serving four years or more have come out after serving only 50% of their sentences, regardless of what progress they make in prison. My Bill proposed to add a subsection that would have ensured that before the release of a person sentenced to four years or more in prison, the Parole Board must be satisfied that the individual is at low risk of causing harm to the public and of reoffending. Clause 94 goes one step forward in that regard, in that those released will not automatically be eligible for home detention curfew.
My Bill also suggested a reform of the indeterminate public protection sentence. I understand from the Lord Chancellor that there is to be a review of that. That is welcome, but the devil will be in the detail. The review is long overdue, and something must be done. As the hon. Member for Broxtowe (Anna Soubry) has said, one of the main problems is that there are no courses for those people. That is the backlog—where the wall is. I am glad that those sentences will be looked at. I continue to press the argument that participation in offender management programmes should be taken into account when deciding whether to release a prisoner early. All things considered, I am glad about that provision.
I come now to the disappointing aspects of the Bill. As I have indicated, any attempt by the Ministry of Justice to suggest that the reforms in the Bill aim to make the criminal justice system fairer are undermined at the outset by the provisions in part 1, which will result in cuts of roughly £450 million a year to the legal aid budget. The consultation document boasts that legal aid will be retained in cases in which people’s life or liberty is at stake, in which they face the threat of serious harm or immediate loss of their home, or in which their children will be taken into care. It is almost as if we are meant to applaud that magnanimous decision, but the self-same document proposes to slash legal aid for almost all private family law, clinical negligence, employment and immigration cases, and all but the most severe debt, housing and welfare benefits cases.
Jessica Morden (Newport East) (Lab)
Does the right hon. Gentleman agree that the timing of the proposals is particularly difficult? They are being made at a time when the Government are proposing major changes to the welfare system. Many who will wish to challenge unfair decisions will be left without access to legal aid at the time of most need.
Mr Llwyd
The hon. Lady is absolutely right and has hit on an important point. In any event, this is the wrong time for this Bill. I hope that the Government pause in Committee to think again.
As I set out in my contribution to the legal aid debate in February, if the legal aid reforms are implemented, they will create a market for legal aid, which will be driven by cost rather than by the needs of clients. The most vulnerable people, including those with mental health problems and other disabilities, will find it almost impossible to gain access to free legal advice, because their cases will be too complex for firms to take on. The MOJ’s equality impact assessment acknowledges that the losers will predominantly be women, ethnic minorities and disabled or ill people, at 57%, 26% and 20% respectively.
The proposals about which I was most concerned—removing ancillary relief and private family proceedings from the scope of legal aid—remain largely unchanged, despite respondents, including me, arguing that not all cases can be successfully diverted to mediation; that without early legal advice fewer cases would settle, increasing the burden both on courts and those involved in disputes; and that decisions should be delayed until the outcome of the family justice review. Those pleas have fallen on deaf ears. Ancillary matters, such as child custody and maintenance, will not be dealt with sensibly, I am afraid, and it is difficult to overestimate the devastating effect that that will wreak on children caught up in these kinds of disputes. I speak as someone with 30 years’ experience in family cases, both as a solicitor and a barrister—I should declare that many of those cases were publicly funded.
In their response to the consultation, the Government conceded that legal aid should be available for victims of domestic violence. That is an important step, since in a 2005 study by Tridner et al 53% of women reported physical or emotional abuse as a cause of separation. Sir Nicholas Wall, president of the family division, has pointed out how “ill advised” the Government are to concentrate on domestic violence alone. Abuse, as Sir Nicholas said, is much broader and can be psychological, financial and/or emotional. One-size-fits-all solutions simply do not work with the complexities of our justice system.
The cuts to legal aid will increase rates of injustice, which is difficult to square with what the Prime Minister said about the reforms. He said last week at a press conference on the wider proposed reforms that his mission was to make sure that families felt safe in their homes—a worthy aim, of course, but there are many, many problems with the detail of the Bill. Vulnerable people will be left to go it alone. As Justice has said:
“The duty of a democratic state should be to ensure that members of society abide by, and benefit from, the provisions of the law.”
Both considerations appear missing from the cuts.
Hon. Members do not need to take it from me how dangerous these moves are. The European Court of Human Rights has criticised them, as has the United Nations Committee on Human Rights and the UN Human Rights Council. Our justice system should serve everybody, not the few, but these cuts to legal aid are crude, cumbersome and callous. The cuts in the scope of legal aid will undermine not only the reforms that the Government are promoting, but, if the cuts are implemented, the very principles on which our justice system rests.
Legal Aid
Elfyn Llwyd Excerpts(13 years, 6 months ago)
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Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC)
It is a great pleasure to serve under your chairmanship, Mr Weir. I will truncate my remarks because other Members wish to speak.
I do not wish to trump the hon. Member for South Swindon (Mr Buckland), but I have 35 years’ experience of family and criminal legal matters, and I have been publicly and privately funded. However, I totally agree with most of what he said, and when people agree across the House, there is obviously something to worry about because there is a problem. The hon. Gentleman laid out some important facts. Like me, he is a member of the Justice Committee, and he made several of the points I was going to make.
I really wish that the Government would slow down. Many of their proposed changes, including those we are discussing today, are being rushed, and there is not adequate time for real consultation. Yes, there have been 5,000 consultees in this case, but the consultation has been a rushed job, and it has left a real fear out there. For example, Desmond Hudson, the chief executive of the Law Society, has said:
“If the government persists with these proposals it would represent a sharp break from the long-standing bipartisan consensus that effective access to justice is essential to underpin the rule of law.”
To that I say, “Hear, hear.”
Given the time constraints, I will confine myself to family law, although I recognise that there are problems in relation to immigration law, welfare law, housing law and many other parts of the social welfare legal system. As has been said, a mistake has been made, albeit one whose consequences were not imagined at the time. The way in which the qualification criterion relating to violence has been framed is utterly unworkable. As a practitioner, like the hon. Member for South Swindon, I have seen accusations made for various reasons, and it is as sure as the fact that I am standing here that people will make accusations of violence simply to avail themselves of a legal aid certificate, that being the only way in which they will be able to get representation.
Victims of violence may be brought to court by those seeking to continue their control over them. As has been said, we need to look at the definition. It could cover abuse, including mental abuse and all kinds of other dominant abuse. It will not always be male on female, but it will mostly be. To use European parlance, there will be an inequality of arms, which will, in effect, mean that if one party can afford a lawyer, and the other party is honest enough to say that there has been no violence, that party will not avail herself—it will probably be a woman—of any assistance. That must be wrong.
I accept, by the way, that mediation is a good step forward in some ways. It has been tried for many years in relation to a great number of issues, including some that are as far from the one we are discussing as multimillion-pound shipping contracts; indeed, it seems that London is the mediation capital of the world, and good luck to the lawyers involved. However, the issue before us is an entirely different kettle of fish.
I have received dozens, if not hundreds, of letters from lawyers practising in this field. Every time a lawyer claims that the loss of legal aid will damage members of the public, that is thought to be special pleading on behalf of the lawyer. Let us cut to the chase: legal aid lawyers have not had an increase in fees for the past 11 years, so anyone wanting to become a fat cat would not open a legal aid practice. As a lawyer yourself, Mr Weir, I suspect that you know that, too, although you should not get involved in the debate. This is not a question of self-serving special pleading; the people we are talking about are dedicated to providing a service, and as anyone will know if they have been in court when there has been the possibility that a family will be permanently broken up and one party will never see the children again—I have been in court on such occasions—such cases are very fraught and emotionally charged.
Mrs Grant
The proposals also rely on judges, chairmen of tribunals and magistrates having the time to give advice to litigants in person. Does the right hon. Gentleman agree that that time simply does not exist? Judges already have back-to-back lists. To give an example from Kent, there is already a five-month waiting list to see a judge for parents who are being denied access to their children. That is totally unacceptable for any parent.
Mr Llwyd
Yes, that is absolutely right. That is partly because of judges’ time, but it is also to do with the Children and Family Court Advisory and Support Service and various other things. I should add that if a person seeking legal aid to protect their relationship with their child is denied legal aid, they will not walk down the road and say, “Tough. That’s it. I’m not going to have anything done about this. I’ll walk away.” That person will go into court, very often without the expertise, knowledge and learning to do the job properly, and they may even do themselves down.
When he gave evidence to the Committee, Sir Nicholas Wall said that people do not give up easily in matters involving a child, and nor should they. As he and others have also said, the courts will be flooded out with litigants in person, and any conceivable saving that the Government are looking at will be swallowed up in dealing with that issue, let alone anything else. As we know, there is the “no order” principle in the Children Act 1989, and it will drive people to go to court to ensure that they have contact with their children.
I urge the Minister, by the way, to look at section 64 of the Family Law Act 1996 as some kind of backstop. That provision, for which I was responsible, would give the children independent representation. Nobody in this Chamber or anywhere else would want the children to suffer, because they are what this process is all about. When parents break up, they might throw things at each other and do whatever they want, but ultimately the damage is done to the young person or persons in the middle. I do not want to stand idly by and see that sector of society not being looked after properly; anything short of that is downright uncivilised.
Jim Shannon
In my experience over the past 30 years as a councillor and so on, I have found that those who need legal aid most are those who come looking for it. Does the right hon. Gentleman agree that if we are not careful, the changes that the Government are proposing will lead to a two-tier system—one for those who can afford it and one for those who cannot?
Mr Llwyd
I am sorry to say that that is exactly it. We are rapidly reaching that point, and one might argue that we are already there. Some people will get access and others will not, and that is abhorrent. We are all equal before the law, and are all entitled to equal access to the law and its procedures. It appears that these measures will definitely limit that scope. There will be law for some and not for others. I urge the Government again to look once more at the issue.
I will not go beyond the changes in family law today, for obvious reasons. The National Association of Guardians Ad Litem and Reporting Officers—if it does not know what it is talking about, nobody does—says that the changes are premature, that they have no sound evidence base and that children have not been considered as stakeholders for the purposes of the impact assessment.
In conclusion, I merely refer to page 71 of the Justice Committee’s report, the main part of which the hon. Member for South Swindon mentioned, about domestic violence as a criterion. In fairness to the Minister, he said when he came before the Committee that he would look at the issue again. With respect, he has had time to look at it again. Will he tell us today whether he has a better definition that will not work against the best interests of the children we are here to protect?