Transparency and Accountability Bill

John Hemming Excerpts

Friday 17th October 2014 Commons Chamber

[John Hemming (Birmingham, Yardley) (LD)]

I beg to move, That the Bill be now read a Second time.

This is in a sense the Bill’s second outing. I had the impression from its previous outing that it would be allowed to get its Second Reading, but now I know that it will be talked out. That is rather sad, because in the long term the Government will regret not having adopted a number of the measures in the Bill at an earlier stage because of the wider impact throughout the world.

There are greater tensions in today’s society. One of the failures of society rests in the tension between the Executive and the legislature. The issues in the Bill are not party political, but they are political in the sense of the tension between the Executive and the legislature. I find sympathy for my concerns across the House in all parties, but there is a blockage when it comes to the Executive responding. It tends to be very difficult to get anything out of the Executive.

For example, in the Ashya King case, the father talked of himself as being a refugee from the UK because he was threatened with care proceedings, and we know that there was a wardship application against the family. It was clear that the hospital would have had an emergency protection order had they not left the country. When I raised that with the Prime Minister, he did not understand that I was asking Parliament to have a collective investigation into what is going on.

There are many issues in the Bill that I will come to, but the difficulty is that, because of the secrecy surrounding such issues, it is easier for this to be debated in other countries. For instance, English family law has been the subject of television programmes in Brazil and Belgium, and there was a three-hour debate on Slovak television, but there is very little discussion in the UK, mainly as a result of the constraints on debate.

I will look first and foremost at some of the matters that were not in my previous Bill and then deal with the others. I aim to finish by 2.10 or 2.15 pm to allow for two other speeches before the 2.30 deadline. Sadly, when the Procedure Committee on which I sat put forward proposals to make private Members’ Bills more effective and to strengthen the legislature, the Executive decided that they did not like it.

The context of the Bill is to improve transparency and accountability in the public sector, and within that I have included a number of different elements. With regard to the super-complaints proposal from Which?, the idea is basically to give a designated representative body the power to make a super-complaint to regulators of public services to address systemic issues. That sort of thing does go on. There can be difficulties within the health service. It is far better to enable challenge from outside the system. We saw with the Commission for Social Care Inspection and the Care Quality Commission the tendency for even the regulators to cover things up.

We have too many cover-ups in Britain, and the Bill seeks to reduce their number. If we try to challenge the state, we tend to be hit by costs, which is another aspect dealt with in the Bill. Basically, a super-complaint allows the representative body to bring forward evidence that a feature of a market is harming the interests of service users and ensures that the relevant regulator considers the response to the issue. Under the Enterprise Act 2002, designated representative bodies can make super-complaints to the Competition and Markets Authority about detrimental features of private markets. This power does not currently extend to markets for public services where detrimental features can also arise. We know all about that.

My Bill would address that gap in the super-complaint regime, and in the protection of consumers, by giving designated bodies the power to make super-complaints to regulators of public services to address systemic issues on behalf of consumers. Public services are vital to millions of people across the UK, but people’s voices are not always heard when they experience a problem.

Also, people do not always speak up when they have a problem. Which? has found that a third of people who have experienced a problem with public services in the past 12 months did not complain. That is potentially a huge number of people whose experience, if shared, could help improve public services for everyone. Which? also found that people would be more likely to complain if they felt that it would make a difference to other people’s experience and result in a change. More needs to be done to ensure that people’s voices are heard in our public services.

Those clauses have obviously been written by Which?, and of course it will be progressing the issue outwith the Bill. I scheduled my Bill for the same day as the European Union (Referendum) Bill because I thought that nobody else would, and I think that my judgment was right—ordinarily, I would not have had an opportunity to say anything, so I am pleased to have such an opportunity today. The advantage of a private Member’s Bill is that we get a response from the Government and the Opposition and the issue gets an outing in front of colleagues. It is a way of progressing an idea. It would be nice if we had greater powers for the legislature, but we do not—that is life.

Another organisation that contributed to aspects of the Bill is the Campaign for Freedom of Information. This relates to closing a loophole in the Freedom of Information Act 2000 that allows contractors providing public services to escape scrutiny. They are not subject to FOI requests in their own right and so provide only the information that they are considered to hold on behalf of the authority.

[Mr David Davis (Haltemprice and Howden) (Con)]

Does the provision also deal with the issue of limited companies being created to provide public services? The most egregious example was the Association of Chief Police Officers, which, as a limited company, could refuse to answer FOI requests, even though it did serious and sensitive public work.

[John Hemming]

I am not 100% certain that this Bill legally traps it, but that was the intention. I do not think that it is perfectly drafted, so we do not know—that is one of the difficulties with these Bills.

Let us take some examples given by the Campaign for Freedom of Information. The information that the Information Commissioner has said does not have to be made available under FOI includes the number of parking tickets issued, and then cancelled on appeal, by traffic wardens employed by a council contractor and who are offered Argos points as an incentive to issue tickets. That example is similar to what the right hon. Gentleman is talking about. We effectively have the exercise of a public power of enforcement but no proper accountability for it. That is a good example.

Other examples include: how often a contractor-managed swimming pool had been needlessly closed to the public because it had been booked by schools that did not use their slots, which again relates to public resources; the arrangements made by a subcontractor to restore the Leyton marsh after its use as a temporary basketball court during the Olympics; the qualifications of assessors used to verify that incapacity benefit claims have been properly dealt with by Atos, the Department for Work and Pensions contractor; and the cost of providing Sky television to prisoners and the number of cells with their own telephones at HM Prison Dovegate, which is privately managed. As the director of the Campaign for Freedom of Information, Maurice Frankel, said,

“each new outsourcing contract reduces the public’s access to information because of a loophole in the FOI Act. Information that is vital to the public may be kept secret simply because the contract doesn’t provide for access. The Bill would restore the public’s right to know.”

That is another point that shows that this is unfinished business. This cannot just be allowed to drift. We need action from the Government, whoever is in government and at whatever stage, to deal with those exemptions, because what are clearly public functions are escaping accountability.

I will come to the family courts and justice matters later, but the Bill also contains provisions that relate to the Criminal Cases Review Commission.. Again, this is a privatisation issue, because the Forensic Science Service is now a private contractor, rather than one controlled by the state. It no longer has access to information to check whether or not somebody has been subject to a miscarriage of justice. When it was in the public sector, it did have that access, but in the private sector it does not. I believe that the equivalent body in Scotland does have that access.

To me, this is a no-brainer. It is a shame that the Bill will not go to Committee, where those relatively straightforward issues could be resolved. Potentially, they could go through the regulatory reform process, because it could be argued that that would reduce a burden on the Criminal Cases Review Commission. I serve on the Regulatory Reform Committee, and, if I may say so, we are not that busy—not that overwhelmed with things going on. It would be good to free up the Criminal Cases Review Commission to monitor and access information and to reduce the number of miscarriages of justice.

The Bill has another aspect to do with miscarriages of justice. There is the difficulty of people who do not admit their guilt being kept in jail beyond their tariff, and the question of whether their numbers should be counted. If people do not accept their guilt and they are guilty, they are potentially unsafe to release because they do not accept that they have done anything wrong. If they are not guilty and do not admit their guilt, they are stuck. My concern is that the Government do not even count these situations, so we have no knowledge of how many of those cases there are.

Those are the matters that were not covered so much in my previous private Member’s Bill. I will now come to the family court issues and talk more widely about where we stand. I think I mentioned the Brazilian television case. North Tyneside council threatened an injunction against Brazilian television, and there have been attempts to injunct Czech TV as well. The system does not really work. To be fair, I have a lot of time for the current president of the family division, who is making gradual but sustained progress in dealing with the situation. However, there is a long way to go.

Earlier this week, a gentleman from German radio came to see me. He was concerned about the situation in Rotherham, which he had been investigating. Not only did the local authority take children into care, where they were found to be less well protected, but if they became pregnant it put them up for adoption on the basis that there was a future risk of emotional harm. There is always a challenge when medical evidence—medical opinion—is provided as part of judicial processes, and that exists whether it is in the family courts on a balance of probabilities or in the criminal courts on the basis of beyond reasonable doubt. To some extent, when an expert goes around saying that people are guilty, they are treated as guilty. However, a lot of people come to see me saying, “We just took our child to hospital because we thought they were ill and suddenly we find that we are being prosecuted for all sorts of things.”

To be fair, the triad of symptoms of shaken baby syndrome has now been recognised to be flawed. It was always known that this happened spontaneously for cases of butyric aciduria, so we know that in certain circumstances the triad occurs spontaneously. What we do not know is all the circumstances in which that has occurred. However, the symptoms have been used to convict and imprison people and to remove their children and put them up for adoption.

One of the clauses that I am particularly interested in would allow for academic scrutiny of court proceedings. I am talking about academic social workers, medical challenge and psychological challenge. At the moment, in essence, the only really effective audit on family court proceedings, particularly for public family law, is the example of international cases. The advantage of international cases is that two different jurisdictions are looking at the same case. Earlier I cited the King case, where the family went off to Spain and are now in the Czech Republic. Obviously that case was considered by the Spaniards. The family were lucky because they managed to get their story out on YouTube and were not injuncted.

There are similar cases. The Paccheri case is well known—it concerns the lady who was forced to have a caesarean when she visited the UK whose child was then adopted. When we investigate the medical evidence put to the Court of Protection, we find, looking at the considerations by experts on the internet—there are experts on the internet and some people do that work very well, but not everything on the internet is true: do not believe everything you read on the internet—that there was a good, detailed critique of the judgment, but it was published only because we found out about what had gone on; it was not published as part of an ordinary process.

The judge was in a very difficult situation. The court was presented with one piece of medical evidence by the hospital. The medics from the hospital came and said, “You’ve got to force this lady to have a caesarean.” There was no medical challenge to that. There was somebody representing the hospital trust and somebody representing the official solicitor, who is in theory representing the protected person, although I do not think they had spoken to the protected person. The decision, however, was based on medical evidence, but there was no challenge or second opinion. I have been going on about this issue for some time: there is no right to a second opinion. Had detailed consideration been given to a second opinion in this case, it would have said, “Actually, this isn’t necessary.” The traumatic way in which the lady was treated did not help her in the long term.

Last Monday’s “Inside Out” was about refugees from the UK and the issue was also covered in “Panorama” earlier this year. I understand that there are more than 100 families in Ireland who left the UK to escape the system. That is a lot of people. I have been dealing with cases such as that of Angela Wileman for about seven years, so this has been going on for some time. My own personal recommendation is not to go to Ireland, because its authorities will tend to act on behalf of the English authorities, whereas those in Spain or France will not and will treat the case properly.

There are two types of international cases: those whereby people leave the UK to escape the system, and those whereby a foreign citizen’s case is decided on by the UK jurisdiction. The advantage of the Paccheri case is that the Rome family court gave a judgment that is publicly available and basically says that it does not understand what is going on in England.

Another judgment has been issued this week—I think it was last night—in respect of a Czech case. Under The Hague convention, each country has a central authority that deals with international family law issues, be they public or private. The Czech central authority—which, about two years ago, refused to do anything on any case—said, “We can’t understand this case. There is a Czech family living in the Czech Republic with a baby and you won’t let them have their two-year-old.” How is that in accordance with article 8 of the European convention on human rights? If we are going to talk about critiques of the convention, it has been the dog that has not barked in the night about public family law. Marica Pirosikova, who is one of the Slovak Government’s two representatives at the European Court of Human Rights, has expressed concern about that particular aspect. In fact, she was one of the organisers of a conference in Prague about a week and a half ago on public family law, with a particular focus on the UK.

Interestingly, the Council of Europe carried out an investigation on public family law and it was headed by a Russian politician who came to visit me here. Sadly, because the Russians have withdrawn from the Council of Europe, that particular inquiry has got stuck. My understanding is that it managed to get a lot of useful comparative information from different jurisdictions about how they deal with public family law. The inquiry found it odd that more complaints were made about England and Wales than about other countries combined. There was a real hubbub of complaint with regard to the UK. In fact, petitions were presented to the European Parliament either earlier this year or late last year, and a lot of things have been going on at the Council of Europe: this is its second inquiry, but it is much bigger than the first one. When I was asked why the volume was so low, I said it was because people do not do the maths right. My critique has often been that the Government are not adequately scientific.

[Mr Christopher Chope (Christchurch) (Con)]

May I correct the hon. Gentleman on one thing? The Russians have not withdrawn from the Parliamentary Assembly of the Council of Europe. Many members of the Parliamentary Assembly wish that they would until they allow Crimea to be part of Ukraine again and take their troops off Ukrainian soil, but they have not withdrawn. There is no reason for there to be any delay at the Council of Europe.

[John Hemming]

I thank the hon. Gentleman for correcting me. As the previous inquiry’s rapporteur, he will obviously have better knowledge than me. I have been told that there is a problem, so I will need to chase that up. I might visit his office for some assistance. That would be good.

The Government have always got themselves confused on the flows and quantity of children in care. On compulsory care, if we look at emergency protection orders, police decisions, interim care orders and care orders, we will see that about 12,000 children a year are removed from their families compulsorily, leaving about 65,000 in care. When calculating the proportion of children who were adopted, the Government always made the error of comparing it with the total number in care and concluded that 6% or 7% is not very many. However, given that 5,000 children left care in the year to 31 March 2014 and 12,000 a year are going into care, that is quite a high proportion. When one drills into the figures for children under five years old, one sees that the majority of them are in care. One can see where the criticism is coming from. I have always argued that the Department has got the formula wrong.

We know what happens. The managerial priorities of local authorities determine what their staff do. If they do not do those things, we see what happens. There is the case of Joanna Quick, who wanted to recommend the return of a baby to its parents. She would not do what she was told by the management, so they fired her. One cannot blame social workers who are in that environment for doing what their management tell them to do.

The difficulty is that the system makes the assumption that the evidence is independent. That relates to the issue in Lashin v. Russia, which is that if a serious decision is to be made on expert evidence, that evidence should be independent of the bodies that have an interest in the decision. That is obviously the case when it comes to public family law, because the system is being driven to do the wrong thing so much that people do not even notice. Relatively poor people, people with learning difficulties and people who are on the margins of society, such as immigrants, are complaining, but their voice is not heard and they get injuncted.

People are still going to jail for what they put on Facebook. I am tracking the number of people who do not have public judgments in accordance with the practice direction that was issued in May last year. Clause 8 states that there should always be a published judgment if somebody is imprisoned for contempt of court. One of the good things about the previous version of the Bill is that things are gradually happening, although things are not going as far as the provisions in the Bill. The Government are counting the number of people who are in prison for contempt of court. Six, seven or eight people a month are imprisoned for contempt of court, but there are perhaps one or two published judgments, which means that about five people each month are imprisoned in secret. As the Minister said, I talked to judges in the Court of Appeal about one particular case earlier this week.

Let us look at the effect that the clauses in the Bill would have. There are issues with litigation capacity. I am aware of only one case in which there was an attempt to remove a lady’s litigation capacity and it failed. That was the subject of a parliamentary petition. In that case, it failed because she contacted me and I found a McKenzie friend who could assist her in representing herself against her own solicitor. Someone’s capacity is removed when their solicitor does not think that they have the capacity to make decisions on their own behalf and so asks the court to appoint the Official Solicitor or some other litigation friend, rather than a McKenzie friend, on their behalf. In this case, the lady worked in compliance in financial services, so she was very bright, but she was deemed not to have capacity because she had querulous paranoia as she did not trust the system. If they did the same to me, I would not trust the system, so it is rather a self-fulfilling prophecy.

A couple of the clauses deal with the issues of litigation capacity. It is a difficult position, conceptually, if one’s lawyer says, “Next week, I am going to apply to the court to remove your capacity to instruct me because I do not like your instructions and think that they are stupid.” That is what happened in the situation that I am describing. How can one challenge that? It is difficult to do so. There are issues with legal aid in such circumstances. How can someone fight an overweening state that says, “I’m sorry, but you’re stupid,” when they are not?

I have met a number of people whose litigation capacity has been removed. In some of those cases, it clearly was not valid. There are cases in which the power is needed. If somebody is in a coma, it has to be possible to remove their litigation capacity, because they cannot make decisions. However, there are clearly cases in which people’s litigation capacity has been removed wrongfully. They are then stuck. They are a non-person as far as the system is concerned. If they want to appeal to the court, the application cannot be accepted because they have no capacity. People go down to the courts, but get turned away on that basis.

Clause 7 is about the right to report wrongdoing. Some interesting progress has been made on that. There was a privilege case in Victoria in Australia, in which the owner of a caravan site threatened litigation against a citizen if an MP spoke about the site. That was rightly found to be a breach of privilege. I think that privilege is involved when it people prevent MPs from finding out about things.

The right hon. Member for Haltemprice and Howden (Mr Davis) and the Secretary of State for Business, Innovation and Skills did some work on ensuring that reports to Members of Parliament are treated as protected disclosures for employment purposes. That was excellent work. I asked local schools that were subject to the Trojan horse inquiries—a long saga—to put out copies of the library research document that claimed that talking to an MP about issues is a protected disclosure, to ensure that people had the comfort of knowing that they could come and talk to me about things—and people do, which is important. The issue does not always get into the public domain, of course, but it gives people a way of challenging the system.

I saw one case in which the police would not investigate something because of an injunction, and that is dangerous. The police have the right to ignore somebody—that is fair enough—but an injunction to stop people reporting things to the police is fundamentally wrong yet it still goes on from time to time. If somebody is vexatious, there is an issue about phoning 999 all the time, because people can be obsessive, but they should not receive an injunction to bar them from reporting to the police what they see as wrongdoing. The police should have the option—as they do—to say, “That’s rubbish” and ignore it or potentially prosecute that person for wasting police time, but for the information not to get to the police is fundamentally wrong. This is about the right to report wrongdoing, which has clearly been a particular problem.

As I said, the president of the family division has done a lot of good work and there has been gradual progress in dealing with issues in the family courts. The recent work on expert witnesses is also good—there is no question about that. Clause 2(1) would allow people to have observers with them to provide them with a little support. When I go to the courts, I find that my constituents get treated with a bit more respect than they do if I am not there, and they have told me that when I disappear they get treated completely differently from when I am present, which is wrong. To have other observers is a useful process—I always refer to the social science equivalent of Heisenberg’s uncertainty principle, which is that the observer interferes with what is observed, and people behave better in circumstances under which they can be observed. Even if people expect somebody to observe them, they behave in a better way than if they know they are not being observed and there is no accountability.

Clause 2(2) is about providing information for academic research. The Department says, “Well, we can instruct people to make inquiries”, but it does not. It does one or two inquiries every so often—the Ireland report found that two thirds of the psychological reports in the family courts were rubbish, or sufficiently bad not be relied on, but that still goes on. The problem is that the system always protects itself, and as we have seen in many circumstances—Hillsborough is a good example, or the Savile case—the system is good at covering up.

Having mechanisms for an external challenge would be better, and the academic challenge is actually the best challenge because we are trying to do what is best for children and families. My view is that what we are doing is awful for children and families and, as time goes on, we are finding out more and more that that is the case. The situation first seen in A and S (Children) v. Lancashire county council showed that an independent reviewing officer challenging the local authority was a waste of time, because that officer was an employee of the local authority. We saw the same situation in Rotherham, because children were taken into care and treated worse there, and accountability was all to the same management structure. There was no independence in terms of accountability.

On the maltreatment of grandparents—I went to a Grandparents Plus event, and grandparents are not treated with respect by the system. There is evidence that each change of placement for a child taken into care, including the first change of placement, is psychologically damaging, but obviously at times we need to do that because leaving a child where it is can be worse—although the Rotherham case showed that at times that does more damage than in other circumstances. Going and staying with granny, however, is generally not that much of a problem because it is the sort of thing that has happened and the child is used to it. We should be a little more focused on families and the wider family—aunties, uncles and so on—than the current system, which is very much driven by the system. Contact with grandparents is an issue. There are circumstances where people fall out with each other. The courts cannot solve everything and we cannot make everything perfect in this world, but we can try to do some things to be more supportive of the family.

Children in care is an issue that Ivor Frank, a barrister who was brought up in care, drives quite strongly. A remedy for children in care is crucial. Clause 3 comes down to the issue, as we saw in Rotherham and in the case of A and S v. Lancashire county council, that children can be maltreated in care and have nowhere to go, because at the end of the day it all comes back to the head of children’s services in the local authority. We have checks and balances and we try to maintain a separation of powers, but there is no separation of powers in a local authority. If somebody thinks a child in care is suffering as a result of an authority’s treatment, there is nothing much that can be done, as the system is effectively unaccountable. Clause 3 would deal with this issue.

We are making some progress on the matters raised by clause 4, which seeks to get an explanation of why parental consent needs to be dispensed with. This is where the international dispute rests in particular, although the idea that all the cases where consent is not dispensed with in the statistics are ones where people have not been pressurised is not one that I think is actually true.

The rights of children to have access to their records is important, too. There are a number of other issues in the Bill. For instance, the Official Solicitor deals with protected parties, but he is not accountable to Parliament. If I write to him and say, “What is going on in, say, the Paccheri case?” he can say, “Nothing to do with you, guv. I am not accountable to Parliament; I am accountable to the court.” Well, that is great—it is a secret court. So he pops along to the secret court and, unless there is a published judgment, there is no accountability at all. There needs to be some mechanism of scrutinising how litigation friends are performing. These are not McKenzie friends, and a lot of issues to do with McKenzie friends are not covered in this particular process.

Clause 12 relates to reasonableness in capacity and is based on Canadian principles that if a protected person is deemed not to generally have capacity, one generally does what they want anyway unless it will do them some harm. One of the saddest parts of mental capacity issues is that when somebody is deemed to have lost their capacity, they have lost it and they are not allowed to make decisions for themselves. The decisions are all taken for them and, very often, are done for the convenience of the state. Clause 12 is therefore very important and would make a big difference.

To be fair there are people, such as Allan Norman in Birmingham, who is both a solicitor and a social worker, so he has the double training, which is quite helpful. When he deals with people who have lost capacity, he does try to work with them. That is much better than a situation where people say, “Well, basically, you’ve lost your capacity, so you might as well be in a coma, because we’re not going to treat you with respect.” That is how it comes across a lot of the time.

Obviously, the system does not always go wrong and we need a system. But the system in the jurisdiction of England and Wales does go wrong a lot of the time. Scotland has its problems, but they are nothing like as bad as those in England. The number of complaints in Scotland is much less, I think partly because of the system of children’s hearings. The difficulty, particularly with regard to section 38 of the Children Act 1989, which basically requires “reasonable grounds” to get an interim care order, is that one does not really have to prove a case to get a child into care. Although the Human Rights Act 1998 would require, in a sense, a continual review of whether it is in the child’s interests to be in care and of the evidence base for that, that does not really happen. There is a great tendency for a child to be taken into care and held there for ages while the local authority tries to find something to stick.

I am moving towards the end of my speech, so we have enough time for the Opposition to respond and for the Minister to talk the Bill out, as is the case with private Members’ Bills. It would be nice for the legislature to have more ability to challenge the Executive than we do at the moment, so I will continue to work towards that end on the Procedure Committee.

The Government should recognise that considerable concern has been expressed in a number of countries. I shall cite an example relating to Latvia. An excellent piece of work was done by the Latvian embassy and the Latvian central authority to challenge the proposed adoption of a Latvian citizen in London. The case was very well argued, but whether it will get anywhere is another question. That brings us back to this week’s judgment. I hope that my Bill will receive its Second Reading, although I am not under the misapprehension that it will actually do so.

--- Later in debate ---

[The Minister of State, Ministry of Justice (Simon Hughes)]

I thank my hon. Friend the Member for Birmingham, Yardley (John Hemming) for putting his name into the ballot, and I congratulate him on doing well in it and on bringing forward a Bill to address many issues that are of considerable importance to our country. I am very grateful for that and for the constructive comments from the hon. Member for Liverpool, West Derby (Stephen Twigg), speaking from the Opposition Front Bench. I am grateful, too, for the contributions of the right hon. Member for Haltemprice and Howden (Mr Davis), to which I shall return, and the hon. Member for Christchurch (Mr Chope).

I have only a short time to respond, so I will not be able to do justice to all the issues in the Bill. As I said to my hon. and good Friend the Member for Birmingham, Yardley, I would be happy to sit down with him to ensure that the issues he raises do not die and are pursued generally in the Department, and I extend the same invitation to the hon. Member for Liverpool, West Derby, too, if he or his colleagues would like to pursue the matters for which he indicated support.

For the benefit of those who follow our proceedings, and given that everyone agrees that this is something of a portmanteau Bill in five parts, covering family justice, the administration of justice, consumer complaints in markets for public services and freedom of information as well as a general part at the end, it might help our later consideration to point out that my hon. Friend the Member for Birmingham, Yardley did not take us through the Bill in the order of the parts. Rather, he started with clause 15, which relates to consumer complaints. He referred to Which?, an organisation that we all greatly respect, to which I shall return. He then dealt with freedom of information in clauses 16 and 17, raising issues that are very much on the Government’s agenda. He then went back to the Criminal Cases Review Commission proposal in clause 14, followed by his views and proposals on clause 13. He then went back to part of clause 2, then clauses 8, 11 and 12. Then he covered the rest of clause 2 along with clauses 3, 4, 6, 9 and 12 in that order. I am not setting this out to be mischievous, but if people are to follow important issues, it is helpful to align what he said with the Bill’s proposals so that we all know where we are.

[John Hemming]

Anyone reading this debate may wish to refer to the speech I gave when I first put forward most of these proposals. I had more time to speak to them, so I spoke at greater length. I hope that that will inform people better,

--- Later in debate ---

[John Hemming]

As I have said on a number of occasions, the media cannot afford to have someone in every family court. Does the Minister accept that media access to hearings is not, in itself, that big a thing?

[Simon Hughes]

It is, in fact, quite a big thing. What has always been of concern is how to protect the confidentiality of the proceedings, which will involve all sorts of sensitive issues, and now that judgments are being made public, a delicate balance must be struck. In some cases in which publicity has been given only to the judgment, the identities of the parties have none the less been revealed, because in a small community it may be quite easy to put the pieces of the jigsaw together. The position is not as uncomplicated as my hon. Friend suggests. As he knows, there are tensions and difficulties, not because we do not want to be more transparent, but because the protection, safeguarding and interests of children and families must be weighed in the balance.

We have also taken steps relating to the workings of the wider justice system. It is no longer an offence to scandalise the court, so clause 8(1) is not necessary. There are already many provisions in legislation, rules and guidance that provide for access to the courts and their information and enable concerns to be raised about process, appeals to be lodged against decisions, and information to be shared. In respect of protected cost orders for judicial review proceedings, the Government have announced their intention to pursue a different approach from that proposed in this Bill in the Criminal Justice and Courts Bill, which is currently before the House of Lords.

In respect of freedom of information, we have extended the Freedom of Information Act 2000 to more than 100 additional bodies during this Parliament. Information about contracts between public authorities and private companies is already available from public authorities, and—this is important, and is relevant to the points made by the hon. Member for Liverpool, West Derby and my hon. Friend the Member for Christchurch—we will be publishing a revised code of practice later in the year. The code will ensure that all those in the private sector who are contracted to do work for the public sector, involving central or local government, must, by contract, observe the same standards of openness that they would observe if they were in the public sector. That does not mean that the same law applies to them, because they are private sector organisations. If that does not work, we shall need to come back to it, but I hope everyone accepts that it is a move in the right direction.

Social Action, Responsibility and Heroism Bill

John Hemming Excerpts

Monday 21st July 2014 Commons Chamber

[Chris Grayling]

They do two things. They consolidate the law, which exists in fragmented places around past legislation, so it is very clear what the law says, and they provide additional protection, particularly for volunteers, but, above all, they send a signal from Parliament to the courts, in the way that past legislation also has, and set out a series of principles off the back of which the courts will evolve a jurisprudence. They also send a powerful message to those who never get near the courts and who may give in to claims and currently do not feel the law is on their side—I can assure the House that they do not feel the law is on their side—that actually they can stand up and defend a claim in the knowledge that Parliament has very clearly said that the balance in the courts should be in their favour. So this is as much about sending a message outside the courts as inside the courts.

Although this Bill focuses on three issues, as I have said I do think that clause 3—the responsibility piece—has a particular importance in ensuring we provide proper protection for small businesses. I have talked to countless business groups and employers who tell me how the compensation culture is tying their business in knots. Employers might do the right thing and put in place sensible procedures, but then someone does something daft and the employer still finds themselves facing a damages claim. Of course sometimes that claim will have a genuine basis, and of course sometimes it needs to be recompensed in the courts, but if we are to achieve our goal of supporting business and enterprise and ensuring we continue our success in creating new jobs, we have to make sure the law is properly balanced.

I recognise that worries about liability can arise in other circumstances, too, particularly in the voluntary sector, and let me now turn to the other clauses that address those concerns. In a survey carried out by the NatCen Social Research and the Institute for Volunteering Research, worries about risk and liability was an issue cited by 47% of those questioned who were not currently volunteering. That study was carried out over the course of 2006-07, but the more recent insightful reports by Lord Young and Lord Hodgson concluded that this remains a real issue for would-be volunteers. Indeed, in the Queen’s Speech debate we heard from a number of hon. Members who reinforced that message from volunteering groups in their constituencies. It has been confirmed by Justin Davis Smith, the executive director of volunteering and development at the National Council for Voluntary Organisations, who said when we announced our plans that there is

“a great concern about risk…anything that can be done to break down barriers to people getting involved in their communities is very welcome.”

I say to my hon. and learned Friend the Member for Harborough (Sir Edward Garnier) that it is precisely for those people that we are sending one of the signposts in this Bill.

[John Hemming (Birmingham, Yardley) (LD)]

Obviously, I support the Government’s objectives and making things easier for volunteers. Have the Government made any study of what effect the Bill would have on the costs on insurance to protect people against strange litigation?

[Chris Grayling]

It is difficult to give an exact answer on that. We have not been able to quantify it exactly, but I believe the Bill will contribute to the downward pressure on insurance premiums coming from a range of measures we are putting in place. In itself, it will not necessarily make a massive difference, but together with the other pieces of the jigsaw puzzle we are putting in place on different aspects of insurance costs, ranging from the independent medical panels we are putting in place for motor insurance claims to some of our changes to the regulation of no win, no fee lawyers, it will have—we are already seeing this in some areas—a downward effect on insurance claims.

Child Protection

John Hemming Excerpts

Thursday 12th September 2013 Commons Chamber

[John Hemming (Birmingham, Yardley) (LD)]

I refer the House to my chairmanship of the Justice for Families campaign and of Care Leavers Voice, which is a group of care leavers who are concerned that the voice of care leavers is excluded from the system.

On 14 August Jana Tokolyova, who is the press officer of the Slovak Republic’s equivalent of the Crown Prosecution Service, the General Prokuratura, reported that their equivalent of the Director of Public Prosecutions had agreed with the deputy director of their national police to appoint a special agent to investigate a criminal complaint by Silivie Maher that relates to care proceedings in the UK.

This is an interesting process, because it is an extra-jurisdictional process. I believe it relates to the Rome statute and, as such, could lead to the end result of members of the Government facing questions about why they have tolerated the amount of malpractice that goes on in care proceedings in England and Wales.

On 5 December 2012 Leicester city council fired a very experienced social worker because she wanted to send a baby home to their mum and dad. Her assessment was that the parents were competent, but Sir Martin Narey and Education Ministers want a rapid movement to adoption—hence, the baby remained in care. This pressure by local authority managers on a social worker to lie to the court is, of course, a criminal offence. However, I think the Slovak Republic is more willing than the police in England to investigate criminality in our courts. Happily, however, on 5 September 2013 the case was set down for a full hearing by an employment tribunal next year.

I have for some time been worried about what I was told by a social worker some years ago, which is that at times the legal aid-funded solicitors for parents conspire with local authority staff in order to ensure that the parents lose. One example where that appears to have happened is that of Jaqcue and John Courtnage, whose two sons were taken into care because one had a lump on his head. The doctors were not sure whether it was because of a fracture or a fissure. The child was neurologically sound, which implies a fissure, but the parents did not see the evidence that it could have been a fissure until after the court had decided in 2010 that it was a fracture, and the question was never considered in any court judgment.

A court order on 30 October 2008 had said that all evidence should be provided to the parents. That did not happen. The hospital provided Derbyshire county council with the information in December 2008, but this did not get to the parents until after the finding of fact hearing of 2010, when they made a subject access request.

The question is whether the council colluded with the parents’ solicitors. Chris Sedgewick of Miles and Cash has been asked about the issue by his client and me. Although he denies the allegation, he has refused to give a detailed response, which confirms to me that Miles and Cash colluded with Derbyshire county council to keep this evidence from the parents.

Additionally, there was a single metaphyseal fracture, but Thomas, Rosenfield, Leventhal and Markowitz found as long ago as 1990 that

“femur fractures often are accidental and that the femur can be fractured when the running child trips and falls.”

Their article can be found on pages 471 to 476 of volume 88, No. 3 of the journal Paediatrics, published on 1 September 1991. Again, here we have an essentially criminal allegation that escapes investigation and prosecution in England, but which could be prosecuted by the Slovak Republic.

Article 3 of the European convention on human rights was almost certainly engaged with regard to the removal by the police of the newborn baby that appeared in the video that Staffordshire county council failed to injunct last Friday. Interestingly, Mrs Courtnage assisted the father in resisting imprisonment at an earlier stage. Was the action of removing the newborn baby inevitable, and therefore permissible under article 3, or even necessary, under article 8? The risk is future emotional abuse. The authority accepts that the parents are no immediate risk to their child. Why, then, take this action? The Government are moving towards removing such babies and immediately placing them with adoptive families. This does not appear to me to fit with traditional English family law or the European convention on human rights.

I have mentioned Toni McLeod before. She featured in the Sunday Express because Durham wanted to take her unborn baby into care because she went on an English Defence League demonstration. She went to Ireland. Sadly, the Health Service Executive in Ireland is now trying to force back to England all the family court refugees. More recently she returned to England and was refused permission to appeal. The case reference is [2013] EWCA Civ 1007. In paragraph 10, the court said

“Happily, on one basis, this case is not about a mother who is incompetent or unable to provide ordinary, good enough or even good physical and practical care for her children. Unhappily, and frustratingly for all involved, I dare say, particularly the mother and the children, the concern about the mother's ability to parent is more subtle and harder to pinpoint, but it arises from her personality and the potential for the children to be upset by unpredictable actions or words that she may from time to time exhibit.”

There are still parents leaving the UK to escape the system. I know of two pregnant mothers who have done so: one has gone to France and the other to live with a Belgian social worker, who is appalled at what is being done in England and is therefore willing to look after a mother and child at home.

I welcome the work of Sir James Munby. He is a good appointment to the challenging task of president and his initial practice directions have been good. However, the Government remain complacent and Parliament should really look at the individual cases. The care system continues not to be accountable. The independent reviewing officer will never be independent while they are on the payroll of the local authority.

The case of Jimmy Savile have been raised by various people. What is not widely known, although it is in the public domain, is that a journalist, Leah McGrath Goodman, aimed to go to Jersey to investigate what had happened in 2011 before it became public. However, she was banned by the UK Border Agency. With some effort from me, the ban was removed and she received a visa earlier this year. She has now been to Jersey, but the issues are already in the public domain. The CCTV that might explain the basis on which somebody was prevented from investigating a serious case of child abuse that came out at a later stage has still not been provided. The Government need to provide some answers on that issue.

I wrote to all the embassies this year asking whether somebody would like to come to a meeting in the House of Commons to discuss problems with child protection. Fifty-nine people came, representing 30 countries. Although not all those countries have complained formally, we should recognise that there are serious concerns about how the system operates.

Child protection is a complex process that covers a wide range of circumstances. There are some very good practitioners and lawyers who work in the area. As I said, Sir James Munby is a very good judge. However, there is also bad practice. If we tolerate the bad practice, we undermine the more competent people. It is therefore important to look at the wider issues.

In a sense, there is a constitutional problem. When hon. Members receive complaints from their constituents and write to the Minister, the Minister says, “We don’t comment on individual cases.” Unless we are able to look at the details of individual cases and see whether there are collective problems, we cannot be certain what is going on. I know that the system does a very good job at times, but it also does a very bad job at times. We are not looking at the process systematically.

Ministers say, “We want more children to be adopted.” That message goes to council leaders who talk to their cabinet member for children’s services. The cabinet member talks to the senior managers and they talk to the more junior managers. The social worker who wants to send a child home then gets fired. I have also heard of a council that, because the expert witness recommended that a child be reunited with their parents, would not pay for the expert witness’s report. That pressure on people to go in a particular direction is driven unintentionally by the Government. I am not saying that the Government intend to achieve that, but that is what is happening on the ground.

[Mr Graham Stuart]

I am working hard to follow my hon. Friend’s argument. There will undoubtedly be injustice in the system, as there is in any system. However, the case that he talked about in which a social worker in Leicester was fired for wanting to send a child home seems incredible. Will he say more about it?

[John Hemming]

I have the defence that Leicester city council made to the employment tribunal. I can give the hon. Gentleman a copy of it. The defence was, “We told her not to send the child home, but she wanted to do that, so we fired her.” That went to appeal and the councillors in the authority endorsed the process.

This is a question of the balance in the civil procedure rules for expert witnesses. Social workers are expert witnesses and they provide assessments. If their assessments are driven by management priorities, they are not following their duty to the court. In fact, they are driven by management priorities a lot of the time. Another error that the Government are making is to reduce the use of independent social workers. Although the repeat player prejudice can be a problem, an independent social worker is not necessarily managerially driven to come to certain conclusions, whereas employees of the council often are. Civil servants make the error of assuming that an assessment is the same, whatever the managerial pressure on the person who made it. The Lashin v. Russia case considered the question of expert evidence and concluded clearly that such evidence has to be produced by somebody who has no interest in the outcome or the conclusion of the case, otherwise they are untrustworthy.

I am coming up to my 10 minutes, so I will draw my remarks to a close. The fundamental issue is the quality of expert evidence. Much of the expert evidence is driven by the management priorities of the local authority. That is why there are many very bad cases. The Education Committee could look at individual cases, as could the Justice Committee. I have made my point, so I shall sit down.

Legal Aid Reform

John Hemming Excerpts

Thursday 27th June 2013 Commons Chamber

[Mr David Lammy (Tottenham) (Lab)]

I am very grateful, Madam Deputy Speaker. I seek your forgiveness for being on the move, but I was consulting colleagues about whether, given the importance of this debate, a vote of this House might be required, and whether I could invite colleagues to join me in the No Lobby after this debate. That would, of course, require Tellers.

Why is this so important? It is important because the Secretary of State has caricatured this debate as being solely about producers and suppliers of legal services. He has sought to suggest that it is about fat-cat lawyers and their fees. He also sought to suggest that this follows in a long line of reform to legal aid over the last 10 years and that ultimately it is about saving £220 million of taxpayers’ money. I think it is hugely important that Members are able to assert that that is not the case.

These are profound changes that would completely unsettle our constitutional arrangement, which begins with Magna Carta, where it was said we should not sell justice, deny justice or delay justice to anyone. When this House last met to discuss issues of such importance, the subject was the suspension of habeas corpus. On that occasion, the House met for three days, there was huge debate, we sat through the night, and then the House was able to vote. It is a travesty that the Secretary of State is not present, and that the Government seek to make such a profound change in our country by secondary legislation. That is why I urge Members to follow me into the No Lobby after the conclusion of this general debate.

[John Hemming (Birmingham, Yardley) (LD)]

Does the right hon. Gentleman agree that the removal of people’s choice of advocate is a very profound change?

[Mr Lammy]

It is absolutely the case that in our system the choice of lawyer is fundamental and essential. In fact every democratic country we can think of enables that choice. That this Government should seek now to say that someone facing criminal charges cannot choose, and therefore have confidence in, the person to be charged with preserving their liberty is a huge exception to the democratic system we have sought to preserve for so long. Of course it will lead to huge miscarriages of justice.

European Union (Approvals) Bill [Lords]

John Hemming Excerpts

Monday 4th February 2013 Commons Chamber

[The Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs (Mark Simmonds)]

This has been perhaps a more thorough and detailed debate than one might have initially anticipated. I am grateful to all hon. Members who have spoken and contributed to the debate. As the Minister for Policing and Criminal Justice said when he opened the debate with a typically eloquent and articulate introduction, the Prime Minister has recently set out the need to examine the UK’s relationship with the European Union. The debates held last week, both here and in the other place, provide an opportunity to start to discuss the broader issues of our relationship with Europe. There will be many opportunities further to examine that relationship. I would therefore like to limit my remarks to the specifics of the Bill.

I would first like to put on the record that it is because of the increased parliamentary control over EU decisions, which the Government delivered through the European Union Act 2011, that no UK Minister can vote in favour without first getting parliamentary approval—a very important point that a number of Members have made this afternoon.

[John Hemming (Birmingham, Yardley) (LD)]

I found the Bill interesting when I looked it up this morning on the internet. I read the explanatory notes, which refer to two draft decisions of the Council of the European Union and one draft decision of the European Council. Obviously, I know the Council of Europe is nothing to do with the EU, but what is the difference between the Council of the European Union and the European Council?

[Mark Simmonds]

Had the hon. Gentleman been here for the whole debate, he would have heard about that. I am happy to give way to hon. Members who have participated in this debate rather than to those who have just wandered into the Chamber.

It is because of increased parliamentary control that we are debating the elements in the Bill. It gives the House an opportunity to consider several technical measures designed to make the EU more efficient and accessible. The Bill will give parliamentary approval for the Government to agree with three EU decisions. The European Union Act 2011 requires us to seek that approval before the Government can vote in favour of them at EU level.

As the House has heard, the first decision will give legal effect to the electronic version of the Official Journal of the European Union, which will make access to EU law faster and more economical. The second decision will agree the work of the EU Fundamental Rights Agency for the next five years, which will ensure that the Council directs the work of the agency into areas considered to be a priority by member states. The third decision will maintain the current arrangement of having one EU commissioner per member state, which will fulfil a commitment to the Irish and will guarantee that the UK retains its commissioner and is in a stronger position to influence the make-up of the next Commission.

I am grateful to the hon. Member for Caerphilly (Wayne David) for his support for the Bill. He rightly welcomed parliamentary scrutiny, but it was slightly perplexing that he also welcomed referendums, given his party’s position on not allowing the British people the right to decide on what relationship they wish to have with the EU. He also made an important point about the fundamental rights issue, to which I shall return in a minute.

We then heard from my hon. Friend the Member for Daventry (Chris Heaton-Harris), who gave a typically knowledgeable and detailed contribution on the workings of the EU. He was right to highlight the importance of parliamentary scrutiny, the significant change that the Government made and how it was in the UK’s interest. I also welcome his support for these small, technical, but important, measures. He was correct to highlight the Lisbon treaty proposals and how they have since changed, particularly in how they relate to the Commission.

My hon. Friend will also be aware of the necessity, owing to the Irish position, of ensuring that each country has a commissioner, thus ensuring that the UK has a commissioner. He should be aware, however, that the draft decision states that that position should be reviewed when a new Commission is appointed in 2019 or when the number of EU member states exceeds 30, whichever is earliest. I reiterate to him that the Government are committed to having a leaner, less bureaucratic EU, to improving the efficiency of EU institutions, including the Commission, and to continuing to push for substantial reductions in the EU’s administration costs.

We then heard from the hon. Member for Luton North (Kelvin Hopkins), who forcefully argued for an EU commissioner for each country. Part of the Bill will ensure that the UK has the commissioner for the next Commission period. I reiterate to him what I said to my hon. Friend the Member for Daventry.

Then we heard from my hon. Friend the Member for Cheltenham (Martin Horwood). I am grateful to him for his support for the Bill. When he started speaking, I wondered where he was going on the lack of necessity for scrutiny of these important aspects emanating from the EU, but I think he came full circle and, in the end, supported scrutiny. He will no doubt intervene if I have misinterpreted his remarks. I was also slightly perplexed by his comments about the capacity of smaller EU countries to manage a commissioner. Many small EU countries’ commissioners have made a significant contribution to the EU, and I am sure they will do so in the next period.

We then heard a traditionally articulate and passionate speech from my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg), who was absolutely right, yet again, to highlight the importance of scrutiny, to recognise the vital role of the European Scrutiny Committee—a theme to which I shall return in a moment —and to highlight the significance of article 352, under which any powers brought forward must be agreed unanimously by the Council and EU Parliament. For the UK to agree that at the Council, however, and therefore for the required unanimity to be secured, the UK Parliament must first give its approval. That is what the Government have put in place under the 2011 Act. My hon. Friend was right to suggest that section 8 of the Act stated that a

“Minister of the Crown may not vote in favour of or otherwise support an Article 352 decision unless”

it is approved by an Act of Parliament. That is why this level of detailed, forensic scrutiny is essential and in the UK’s interest. Without the agreement of Parliament, therefore, a proposal brought forward under this legal base cannot be adopted throughout the EU.

We then heard from my hon. Friend the Member for Stone (Mr Cash), who gave a traditionally detailed, analytical speech. I was pleased that he welcomed the Prime Minister’s announcement of the referendum, although I accept that perhaps he does not agree with the timing. I would also like to put on the record my congratulations to him on his chairmanship of the European Scrutiny Committee. He does a sterling job not only for the House, as was mentioned, but for the country.

Leveson Inquiry

John Hemming Excerpts

Monday 3rd December 2012 Commons Chamber

[Angie Bray]

I agree that that must be the fear, although I certainly hope that such a proposal would not come from our party.

Then there is the question of who regulates the new regulatory body and who does the appointing. This is where I really depart from the opinion of Lord Justice Leveson. In my view, it would be ridiculous to make a virtue of keeping politicians away from the controls only to put Ofcom in charge. As the Prime Minister said in his initial response to the report last Thursday, the most senior positions at Ofcom are filled by Government appointment, and it is perhaps worth reminding ourselves that the current chief executive is a well-known former Labour party apparatchik. Lord Justice Leveson is rather vague about who appoints to the appointments board. He suggests the possibility of cross-political-party appointments. Surely, again, this would be putting political influence far too close to the centre. My overriding impression is that all roads seem to lead to some kind of political involvement; that is the only logical conclusion that we have been presented with.

[John Hemming (Birmingham, Yardley) (LD)]

Does my hon. Friend share my concern that Lord Justice Leveson does not understand that primary legislation can be changed through statutory instrument and believes that it can be changed only through more primary legislation? On the basis of those concerns, I welcome the Prime Minister’s determination not to take this route.

[Angie Bray]

It would seem that that Lord Leveson has not fully understood that or has not, with the wealth of stuff that he has been dealing with, given it enough thought.

Family Justice (Transparency, Accountability and Cost of Living) Bill

John Hemming Excerpts

Friday 26th October 2012 Commons Chamber

[John Hemming]

I beg to move, That the Bill be now read a Second time.

It is indeed a privilege to propose legislation in a private Member’s Bill. When I found out, through the usual process of an immediate torrent of lobbying phone calls and e-mails, that I had the opportunity to promote the sixth private Member’s Bill this Session, I was certain about what I would like to propose. I spent some time considering it, however, and was pleased to receive an offer of assistance from Ron Bailey, who has considerable experience of private Members ’ Bills and assisted me greatly in a number of ways, particularly in meetings with groups outside Parliament. I also declare an interest as chair of the Justice for Families campaign, which campaigns for improvements in this policy area.

My conclusion was to propose legislation that would improve life for children and families. I was aware that there is a serious problem with the quality of expert evidence in family court proceedings, so that had to be part of the Bill. I was also aware that there are problems with the treatment of children in care, so that issue had to be included in the Bill. Additionally, I have for years been concerned about the impact of increasing energy prices on families, and that is also part of the Bill. I am concerned about how certain procedural aspects and judicial proceedings assist public authorities in covering up malfeasance by public officials, so in one sense this Bill could be called the “No more cover-ups Bill”.

When I tabled the name and short title of the Bill, I was unaware of events and issues that have arisen over the summer and make the urgency of this Bill much greater, and I will come to those points later.

[Lorely Burt (Solihull) (LD)]

Does my hon. Friend agree that in putting together three elements in the Bill, he seeks to use this opportunity to get three bites of the cherry?

[John Hemming]

This is about justice for families in the wider sense. Our society should be based on making life better for families in this country, and making people’s lives easier through better judicial proceedings, fewer cover-ups and cheaper energy bills is all about justice for families.

Over the summer, I worked mainly outside Parliament to consult bodies interested in these matters. As a result of those consultations, I aimed to compromise and ensure that, in a very contentious area, my Bill had support from a broad swathe of opinion. I managed to do that; the only collective group set in opposition is the Association of Directors of Children’s Services.

[Nadine Dorries (Mid Bedfordshire) (Con)]

May I back the hon. Gentleman on that point? Mothers across my constituency have asked me specifically to support this Bill because they feel that it contains the measures they need to help them through the court system.

[John Hemming]

I thank the hon. Lady for that support. Many people wish to see the Bill proceed, and the Association of Directors of Children’s Services is the only collective body I know of that is opposed to it.

The group 4Children said that it supports many of the aims of the Bill, in particular the emphasis on the role of the extended family in supporting vulnerable children and children in care. It stated:

“Our family commission in 2010 called for all families facing family court proceedings to be offered a family group conference, so we warmly welcome in particular the provisions in part 1 of the Bill.”

The British Association of Social Workers said that, although it will not support the Bill formally, most elements relate to good practice, and we have made changes following consultation with it. I have also spoken with the Government who, even if the House gives its assent to Second Reading today, remain in control of the Bill’s progression. For a Bill Committee to meet will require a motion tabled by the Government.

[Mr Tobias Ellwood (Bournemouth East) (Con)]

The hon. Gentleman has mentioned a number of organisations that support his Bill. He named one group that does not, but did not say why. For reasons of clarity and inclusivity, will he elaborate on why that group has concerns about the Bill?

[John Hemming]

I circulated a copy of a letter from the Association of Directors of Children’s Services that stated merely that it opposed the Bill although did not explain why. I have provided all its reasons for opposing the Bill—perhaps it will give me other reasons. One aspect that would cause concern is the independent scrutiny of children in care that is built into the provisions, but the association has not explained why it opposes the Bill. I circulated a copy of its letter to all Members, and I would be happy to read that out if the hon. Gentleman would like me to do so.

[Mr Ellwood]

indicated dissent.

[John Hemming]

No—the hon. Gentleman is quite happy. This is a contentious area, and it is challenging to find a measure that will take the issue forward without any stakeholder raising a major concern. The Bill is substantially supported by the people to whom things are done—the children and the families—but the people in overall control, the directors, are not so enthusiastic about it, but they will not explain why.

I have always said to the Government that I am willing to compromise on the details of the Bill. I am sure that the Government agree with me on the objectives, and some of the clauses have been deliberately phrased to facilitate improvement in Committee, because that is where we need to work on the details of how to deal with the issues in the Bill. As is often the case, there are siren voices in Whitehall calling for delay and suggesting that everything could be dealt with in a later Bill. That implies that there is no urgency and gives the impression of a bureaucratic machine attempting to repel all boarders on the basis of “not invented here” syndrome. Is that an adequate reason to prevent the progress of the Bill?

The previous Government, admittedly of a different hue, made attempts to deal with the issue of transparency in 2005 and in 2009. Although those changes—made through statutory instruments—made improvements, they were not adequate and problems remain. The creation of the independent reviewing officer has not protected children in care well enough. The problem is essentially that an employee of a local authority is not independent of the local authority. Whitehall still does not recognise the managerial conflicts of interest to which employees of public agencies are subject.

The question for the House and the Government is, why now? Why not listen to the siren voices calling for delay and the Sir Humphreys calling for the Bill to be exterminated on Second Reading? Earlier this year, Professor Jane Ireland’s study of expert evidence raised concerns about the quality of psychological reports in two thirds of family court proceedings. However, things have moved on.

During the summer, the Slovak Republic became officially concerned about the way in which Slovak citizens had been treated by the English and Welsh family courts. On 23 August, a statement was published on the Slovak Justice Ministry website which, translated by Google Translate, is headed, “Declaration on adoptions case of Slovak children without the relevant reasons in the UK”. The key to this declaration, according to JUDr Marica Pirošíková, who is the Slovak Republic’s representative at the European Court of Human Rights, and to JUDr Andrea Císorová, who heads up the central authority in the Slovak Republic—their equivalent of our Official Solicitor—is that the decisions forcibly to adopt Slovak children, who are Slovak citizens, living in the UK away from their families, are illegal. In case hon. Members do not know, JUDr is the abbreviation for doctor of law for Slovak citizens. The Slovak ambassador has also expressed his concerns to me, and I have been told that the Slovak Republic has identified 40 cases in the English courts, involving 89 children, in which it is unhappy with the lawfulness of the process.

It is worth spending a little time to explain how all of this works. Under the international conventions on child protection—the Hague convention and Brussels II bis—the courts in the area in which a family is habitually resident are the courts that have jurisdiction in respect of the laws for child protection. England is out on a limb in comparison with the rest of Europe in having a child protection system in which the most likely outcome for a child under five leaving care is to be adopted. In the year to 31 March 2011, 5,200 children under five left care in England, 1,900 were adopted, 1,110 were subject to residency orders or a special guardianship order and only 1,100 returned to their parents. That is a substantial shift from 1995, when it was the norm for children to return to their parents. There is no sense arguing about the merits of that at this point. The key to the transparency aspect of the Bill is to ensure that there is greater academic scrutiny of the merits of such decision making, which, essentially, is absent at the moment.

Over the summer, we have had a change in that the Slovak Government have publicly expressed concern about 40 cases, involving 89 children, but they are not the only Government to be concerned. Justice for Families has recently had contact with Hungary, the Czech Republic and Latvia about cases. Two weeks ago, a case was reported from Haringey in the London-based newspaper Polish Express, obviously in Polish. This case has all the symptoms of similar Slovak cases and I would not be surprised if the Polish Government became involved in the near future.

Yesterday I received a letter from Isil Gachet, who is the director of the office of the commissioner for human rights in the Council of Europe. It refers to concerns raised with the commission about the process for the placement of children for adoption in the UK. The key part of it is that the commissioner for human rights, Mr Nils Muižnieks, had received information from various sources on this case. It states:

“The Office of the Commissioner is therefore closely following on the situation regarding the placement of children and adoptions in the UK. However, I would like to stress that the Commissioner’s mandate excludes the possibility for him to investigate into specific cases.”

It also draws attention to an inquiry on human rights and family courts by the Council of Europe.

If the Government seriously wish to argue that there is no urgency in introducing greater academic scrutiny in family court proceedings, they need to explain how they can ignore—

[Mr Ellwood]

I am following the hon. Gentleman’s argument carefully. He started by mentioning the “not invented here” syndrome, which I have also come across and which is very frustrating, but is he aware of what the Government are doing? The Minister may wish to intervene later to confirm this, but I understand that in January the Government are planning to look at provision for families and children in the law courts. Has the hon. Gentleman taken that into account?

[John Hemming]

I accept that the Government are progressing issues. To be fair, I have been working on these proposals with bodies outside Parliament, so I have not gone into the minute details of the Government’s proposals. My concern comes back to the issue of academic scrutiny, although other aspects come into it as well. I wish to see progress in this area, but I am not too bothered about how we achieve that. I would prefer it if the Bill were considered in Committee. If a lot of the clauses are dropped in Committee because that seems appropriate, so be it. What is important is that we achieve the outcome of a reliable judicial system with decisions taken on the basis of the best academic knowledge available at the time. That is not what we have at the moment. It is the outcome I am focused on—getting a better system—and I am not particularly bothered about how we do that.

If the Government are to oppose the Bill, they need to explain how they can ignore the serious concerns of other countries. In June, we were aware of the maltreatment of girls in care and the prosecutions that had resulted. However, the true enormity of the magnitude of abuse of children in care over many decades, not all by Savile, had not been revealed at that point. I was personally aware of the cover-up at Haut de la Garenne, and I highlighted that in September when I referred to the banning of the US journalist, Leah McGrath Goodman, who had been excluded from the UK in an attempt to stop her reporting on the saga at Haut de la Garenne. I did not, however, know exactly what had been covered up. The Government may try to argue that the existence of the independent reviewing officer means that there is no urgency about making any changes. However, the cases in Rochdale and Rotherham, as well as the case of the children in A and S v. Lancashire county council, demonstrates clearly that the existence of an employee of a local authority who is called “an independent reviewing officer” is not sufficient to protect children from abuse while under state control. Can we really accept that there is no urgent need to ensure that children in care are listened to? The recent report from the children’s rights commissioner revealed that children in care had been running away—and one was living in a cave—because they had not been listened to.

A further issue, which has arisen since June, is the revelation of the cover-up at Hillsborough. I would not claim that the Bill would definitely have prevented that: however, the provisions on judicial review will make it easier for more ordinary people to ensure that public authorities do what Parliament has said they should do and facilitate the revelation of cover-ups at an earlier stage. Making it an offence to threaten and prevent people from talking to regulators or elected representatives would help to prevent cover-ups, many of which succeed because people are intimidated into not reporting things to the appropriate authorities.

[Lorely Burt]

We understand that more public figures are to be questioned in the wake of the Jimmy Savile scandal. Does my hon. Friend agree that his Bill might have been a great help in this instance? Had it been around, the children might have been listened to, not punished for reporting the abuse?

[John Hemming]

Indeed, some of the children were punished for complaining; that is the scandal. If one aspect of the Bill would prevent cover-ups, it is the part that would make it an offence to punish or threaten somebody to prevent them from talking to their MP or going to the police. In America, that is an offence, but in England it is not, and that allows bullies to use all sorts of techniques to prevent people from complaining.

We should protect people’s right to complain. Interestingly, a key clause in the first amendment to the US constitution is the right to petition all aspects of the state. It means that the courts cannot prevent people from talking to elected representatives. That sort of provision is perhaps in article 5 of the Bill of Rights, but we do not really enforce it in law. We have many situations in which people are intimidated in an attempt to prevent them from complaining. Yes, some complaints are wrong, but it should be for the police to decide if a report is wrong, not for somebody else to decide to punish children for complaining about their maltreatment.

[Nadine Dorries]

Does the hon. Gentleman agree that large organisations, as we have seen recently with the BBC and various parts of the NHS, breed a culture almost of intimidation? We have seen the problems that whistleblowers have, and we have seen it in other areas too. Big organisations, particularly those belonging to the state and Government, seem to breed this culture of intimidation to prevent people from protesting.

[John Hemming]

That is very true. If Parliament wishes its laws to be enforced, it needs to protect people who want them to be implemented, but at the moment we do not so. We have seen it with the Savile saga, but that is not unique. Let us remember all the bullying and threatening that went on to cover up Hillsborough. That is another example of a cover-up that succeeded in part through intimidating people.

[Mr Jim Cunningham (Coventry South) (Lab)]

I support the hon. Gentleman. We had a case some years ago—I will not go into it now, because this is an intervention—involving the NHS in Coventry and a doctor who was a whistleblower. The whole thing ended up in court, and he is still suspended.

[John Hemming]

That is the problem. Unless we allow people to complain and we protect people’s right to complain, the rule of law cannot apply, because we do not know that somebody has infringed the law. This applies in all areas.

If the Government decide to knock out all but one of the clauses, leaving only protecting the right to complain, that will be progress. There are many clauses, but they do not all have to go through. I would like a lot of them to progress, but, at the end of the day, the Government are in control. There is no doubt about that. If we keep only one, however, let it be the one about the right to complain, protecting whistleblowers, preventing cover-ups and protecting children who complain. These children were not only ignored but punished—their punishment was only the withdrawal of privileges, but still that cannot be right. Parliament cannot tolerate such a thing.

[Nadine Dorries]

It is true that children who complain must be protected, but we are not only talking about the removal of privileges from children. Adults can lose their jobs, livelihoods, careers and homes, if they decide to do the right thing, take the higher moral ground and complain. Their punishment prevents others from coming forward, and that is how the culture grows and the cover-ups happen.

[John Hemming]

The hon. Lady is exactly right, and we almost endorse that by our laxness in protecting people with valid grievances.

[Philip Davies (Shipley) (Con)]

The hon. Gentleman, who raises some important issues, said that his Bill contained many clauses but that he was not particularly bothered which ones went forward. Why is energy efficiency part of the Bill? I do not know whether he was after the world record for a Bill with the widest scope, but what on earth does energy efficiency have to do with all these important issues?

--- Later in debate ---

[John Hemming]

It is about improving the quality of life for families, and it fits within the short and long title of the Bill. We are here to improve the quality of life for families. I think of the Longitude Act 1714, when Parliament took action to encourage innovation that produced all the work of the Royal Observatory. That is a good example of how Parliament can improve things. I do not think that anyone will disagree that reducing families’ energy bills will improve life for families, and that is what the Bill is about. I will come to that in more detail later, however.

[Philip Davies]

To help the hon. Gentleman, I was wondering whether it would be in his best interests to focus on what he felt was most important in the Bill, which presumably is the stuff he is talking about now, rather than spraying far more widely and possibly running into trouble in Committee and on Report.

[John Hemming]

I accept the hon. Gentleman’s point that on Report it might be quite challenging, because people might wish to stop the whole Bill in order to stop certain aspects of it, but that is a decision for later. As it stands, the Bill contains many useful clauses, all of which would achieve positive things for families and people in this country. I would like them all to progress on to the statute book, but I am realistic and will have to work with the Government. I will also need the House’s support on Report, because without that the Bill will not get on to the statute book. I have to be realistic about that. The clauses are in the Bill, however, because they are good clauses for families in this country.

I was talking about Hillsborough. The siren voices of Whitehall should not be listened to. Action is needed now. The Bill cannot progress after Second Reading without the Government’s support, so they should not fear its progressing beyond today. I am happy to work with them and to compromise in order to improve the lives of children and families, but we must start now.

The Bill has three parts, which at first sight might appear different but which all have an underlying philosophy centred on the word “justice”. The general theme and overall purpose of the Bill is to help ensure justice in three areas: in the family justice system, which includes the Court of Protection; in related areas where there are injustices that need to be dealt with; and for families who suffer the injustice of cold homes and fuel poverty.

Part 1 concerns the family justice system and the work of children’s services authorities and related matters. The interim report of the family justice panel found in 2011 that the system was not working and that it had identified much the same problems as the previous seven reviews of family justice carried out since 1989. The House of Commons Justice Committee reported on 14 July last year and spoke of its doubt about the current system’s ability to cope with future challenges. Both the Munro review of child protection published last May and the final report of the family justice review published last November highlighted the need for urgent reform. The latter said:

“We found general agreement with our diagnosis: a system that is not a system”.

A clause-by-clause explanation of the Bill will illustrate some of the improvements to the system that it seeks to make.

Clause 1 deals with the point at which most families will commence contact with the family justice system or their local children’s services authority. This will currently be at a case conference or, more accurately, a child protection conference—a meeting of professionals who decide what steps the local authority should take in respect of a child who might be deemed at risk. However, children, if old enough, and their families might be excluded from the meeting or might not see the reports being discussed, so decisions may be taken without their input. This means that the meeting will not have as much information as possible when making difficult decisions, such as to take children into care.

Another practice, called family group conferencing, is now developing. This approach involves the children, where old enough, the families and, where appropriate, the wider families, and it has widespread support in the social work and child care fields.

In evidence to the family justice review, the British Association of Social Workers said:

“Some aspects of the Public Law Outline have also helped to promote more positive engagement with families (i.e. there has been increased use of Family Group Conferences which can be very effective in empowering of families if used appropriately and practitioners have received the necessary training to equip them to undertake this work). These reach out to engage in a way that says to families, ‘you have the knowledge and expertise, we want to work with you to make things better for you and your family’. There should be increased roll-out of this approach. It requires very little adjustment in terms of skills, but it does require a different attitude/values set.”

Barnardo’s told the House of Commons Justice Committee inquiry into the operation of family courts that a

“better option”

is

“a requirement to have family group conferencing…our experience of one”

such service

“was that for 27 families for whom care proceedings were considered none of those children went into care.”

Page 93 of the Justice Committee’s report concluded:

“We were very impressed by the account of Family Group Conferences in Liverpool. It is a matter of regret that a service with an apparent 100% success rate is being cut back.”

Subsections (1) to (3) of clause 1, while not abolishing child protection conferences, as they may be deemed necessary at times, establishes as the norm the wholly different approach of a family group conference by requiring that families are offered such a facility. A family group conference is defined as

“a family-led decision-making meeting, convened by an independent co-ordinator…in which a plan for the child is made by the family, involving the child (if old enough), the parents, and potentially extended family members and friends which addresses any concerns about the child’s future safety and welfare”.

Subsection (2) then gives the family six weeks to come up with a family plan for the child, and this is submitted to the children’s services authority, which has to approve or disapprove it. In the latter situation, under subsection (3), the children’s services authority is required to “try to reach agreement” with the family on a revised plan. If this is not possible, the view of the children’s services authority will prevail, but pursuant to subsection (4) the child or the family can appeal that decision to the scrutiny committee of the local authority. This is in line with the view of the former children’s Minister, the hon. Member for East Worthing and Shoreham (Tim Loughton), who told the Education Select Committee on 12 June this year:

“This is particularly important when it comes to adoption proceedings and other forms of permanence, where…the consequences are far reaching. I am…conscious…as to what further safeguards we might…institute…a sort of appeals mechanism.”

Subsection (6) provides for emergencies by stating that the children’s services authority is not under an obligation to offer a family group conference

“in the event of emergency action being required to protect a child”.

Subsection (5) deals with the provision of information to children and families. Since 1999, Government practice guidelines for children’s authorities, entitled “Working Together”, state that

“the local authority has a responsibility to make sure children and adults have all the information they require to help them understand the processes that are followed when there are concerns about a child’s welfare.”

In practice, this may not be happening. According to page 5 of the Norgrove family justice review of November 2011:

“Children and adults are often confused about what is happening to them. The need to address this will rise.”

Page 4 of the Adoption UK response to the family justice review states:

“From the perspective of adopted families Adoption UK often hears of limited information and explanation being provided to families about what will be happening and why.”

Paragraph 2.26 of the Munro review of child protection states that families

“are confused…and they don’t understand the processes”.

Gingerbread’s evidence to the Justice Committee, reported under question 78, on 25 January 2011 was:

“We surveyed about 453 single parents…over half found the system dreadful and poor; about 73% find it difficult to navigate.”

The House of Commons Justice Committee investigated in some detail the need for guidance to be given, especially because of the increasing number of litigants in person. It reported the unanimous view of judges that this slowed things down, thus causing severe wastage of court time, and so concluded:

“This will require guidance to be developed to accommodate the challenges posed by a larger number of litigants in person.”

Subsection (5) of clause 1 deals with this matter by requiring:

“Any child or parents or other relatives of the child attending a Family Group Conference must be given in advance a publication explaining the childcare system and how it may affect them in the future and referred to an independent advice and advocacy organisation.”

We recognise that in these difficult times the cost implications are important, and in this regard, I draw attention to the words of the BASW quoted earlier:

“It requires very little adjustment in terms of skills, but it does require a different attitude/values set.’

As regards the staffing impact, the results of the family group conference approach, quoted by Barnardo’s, are also relevant: no children were taken into care, so less spending of money resulted.

The Munro inquiry highlighted a report from Oxfordshire county council children’s services authority:

“These types of evidence-based programmes are expensive to set up but there is increasing evidence that, by avoiding the need for looked after children to move to more intensive and expensive placements, they not only provide better outcomes for children and young people, but are cost effective…Collectively in Oxfordshire, these intensive programmes have contributed to lower than average numbers of Looked After Children and resulted in identifiable savings within the existing Children and Young People’s budget. They have helped to address general recruitment issues for foster carers, resulting in an 11 per cent rise in fostering. All types of carers (including foster carers and adopters), have reported improved levels of support, resulting in improved long term stability (67-75% in 2009/10), reduced adoption breakdowns and quantifiable savings in excess of £400,000.”

[Nadine Dorries]

I would like refer to his comments about the importance of making information available to those going through the system. I can quote a constituency case, although not a name, of parents and adoptive parents being told during the process of contact with the previous family not to miss a contact session because they will not get their placement and the child might be taken from them. It is important that parents, adoptive parents and foster parents have something in writing—in an easy to understand way—about what exactly to expect from the system, so that when this culture of slight intimidation or bullying kicks in, they actually know what their rights are in the process.

[John Hemming]

The hon. Lady is entirely right. One of the difficulties that sometimes arises is that people are told to do one thing at one stage, but when they have done that, they are told that it was the wrong thing to do. If things could be put in writing so that people knew what they were supposed to do, they should not then find that they are punished for sticking to it. That happens far too often. There are too many cases where people are not given adequate information.

[Steve Baker (Wycombe) (Con)]

From the way the hon. Gentleman sets this out, it sounds as though there is a substantial element of arbitrary power. Will he reassure me that his Bill would eliminate all such areas of arbitrary power so that people could have certainty?

[John Hemming]

The hon. Gentleman is right that there is too often an element of arbitrary power. The difficulty flows from insufficient academic scrutiny of the whole process—in other words, things are left to the discretion of individual practitioners, all of whom have their individual attitudes. When someone moves from one practitioner to another, the arbitrary power will often be exercised in a different way. I spoke about this to Professor Sue White, a professor of social work at Birmingham university. She is concerned about the change in practice that does not seem to be evidence-driven, but she is not allowed access to family court proceedings unless she is actually involved in the individual case. The ability to do proper peer-reviewed research on the decisions taken and what is happening on the ground is simply not there. The system just goes on.

I try to look at the reports from a scientific point of view, and find that some of them do not hold water. As I said, Professor Jane Ireland’s work pointed out that two thirds of the reports she looked at were either poor or very poor, which is not adequate for the purpose of making life-changing decisions. That lack of intellectual rigour leads to arbitrary power, as the hon. Member for Wycombe (Steve Baker) says. The introduction of intellectual rigour would make that go away and get us back to the rule of law rather than some people having massive discretion. At the moment, we do not have the rule of law setting out what should happen in these situations. That is what gives rise to many different problems in many different areas.

[Nadine Dorries]

It is worth mentioning that the change of case worker, social worker or court worker happens frequently, so arbitrary power is exercised in a number of different ways, often resulting in huge delay, which is not in the best interest of any of the children involved in the cases.

[John Hemming]

The hon. Lady is right. Delay does cause a problem, although speeding things up and not getting things right is another problem. The most important thing is to get things right. When that has happened, that is the time to do things reasonably quickly.

I now return to the Bill and look beyond the issue of family group conferences. Clause 2 looks at the wider issue of scrutiny—academic scrutiny and the like—to which I have just referred. One issue is that of people having other people with them. McKenzie friends are generally allowed to attend court, but it can be a very intimidating process for families. If a young mother is not allowed to take her own mother to court with her for support, the court will not be a very good environment.

A case in, I believe, Finchley involved a Czech family, but the court would not allow a representative of the Czech embassy to attend the court hearing. That strikes me as very strange. Given that it is possible for a person to talk confidentially to almost anyone and ask for advice, why is it not possible for one or two people to sit with that person in court? It would make the whole process more effective, because it would provide psychological support.

Family courts sit in secret. It is generally accepted that anonymity is required, and that demands a certain amount of secrecy. It is not possible for the newspapers to publish all the details of a case. It is true that one of the Slovak cases is being discussed publicly on prime-time television in the Slovak Republic, but if it were on YouTube, YouTube would be subject to a court order to prevent the television programme from being seen in England. I think that the principle of anonymity is reasonable, but beyond that, dangers arise. The lack of academic scrutiny, which I mentioned earlier, is critical.

[Steve Baker]

It seems to me that it is not necessary to have secrecy in order to have anonymity. Does the hon. Gentleman propose any measures that would make it possible for the necessary information to be available to academics, so that trials would not be secret but anonymity would be protected?

[John Hemming]

That is the purpose of clause 2(2), which allows academic research to be involved in family court proceedings. The former children’s Minister said that we needed more transparency in the courts, and the National Society for the Prevention of Cruelty to Children has said that it supports efforts to make the family courts more transparent if they do not make it more likely that children will be identified. The Bill achieves that sort of balance.

Proceedings in the family court can be daunting and intimidating for people taking part in them. The report of the recent family justice review by Professor Norgrove found that

“the common complaint”

was

“that the courts are daunting and intimidating places for families”.

Detailed research by the London Safeguarding Children Board established that when families arrive in court to see a large number of lawyers and professionals lined up,

“professionals need to understand how intimidating it is”

for parents

“to be so ‘outnumbered’.”

Clause 2(1) permits parties to have two friends with them to support, advise or advocate on their behalf. In fact, only one of them, the McKenzie friend, will advocate, and obviously if a lawyer is present a lay person will not be required. Much of the evidence that I cited in relation to clause 1(5), including the conclusions of the Justice Committee, demonstrates the need for that.

Clause 2(1) also ensures that the confidentiality of the proceedings is maintained by making the two friends subject to the same confidentiality rule as the party to the proceedings. The protection already exists; the Bill merely provides for someone to be present to offer support—not necessarily to advocate or offer advice, but simply to be there. That is important. Why should a young mother, aged 19 and threatened with the removal of her child, go to court alone? Why can we not allow her mother to go with her? What is wrong with allowing her mother to sit next to her? What is wrong with allowing a representative from the Czech to accompany a Czech citizen to court? Why do we allow so few people to go there?

Clause 2 (2) deals with accountability by permitting the involvement of bona fide academic research in proceedings in the family courts. The Justice Committee concluded that, while family courts sit in private to protect the anonymity of children,

“there is a danger that justice in secret could allow injustice to children”.

That point was made by Professor Jane Ireland, who carried out research on the quality of expert evidence used in the courts. Her study showed that there was a risk of injustice because one fifth of expert psychologists were not deemed qualified, and two thirds of the reports reviewed were “poor” or “very poor”.

In a recent case in the Court of Appeal, it was ordered that a child should be removed from his family on the basis of incorrect evidence concerning his injuries. The Principal Registry of the Family Division ordered that the toddler be returned to his parents after it was established that he was vitamin D and calcium deficient and had undiagnosed rickets. The issue of vitamin D is very relevant. An excellent firm of solicitors in Birmingham, Brendan Fleming, has helped to identify about eight vitamin D-related cases in which miscarriages of justice are likely to have occurred. It is probable that children have been removed from their parents because mum had a vitamin D deficiency and was breastfeeding at the time. It is currently contempt of court to allow an expert medical person to look at all the documents and write peer-reviewed reports. Why is that? How does preventing the more intelligent people from reviewing the paperwork improve justice?

Subsection (2) also recognises the need to keep proceedings confidential, stating that

“any publication of the research removes all identifying details and… it shall be a contempt of court for any person receiving or publishing information pursuant to this section to reveal the identity of any person whose details he has received.”

The Bill protects anonymity while ensuring that there is an intellectual challenge, and that is surely a massive improvement.

Clause 2(3) relates to grandparents and other wider family members of the child. Subsection (3)(a) enables such people to attend the part of a hearing that involves consideration of whether the child should be placed with them. Currently, a court will decide not to place a child with a grandparent when that grandparent is not present. There has been a great deal of debate about whether grandparents should be allowed to be party to court hearings. The problem is the huge amount of paperwork, which creates a massive burden. However, merely allowing grandparents to be present and to participate in discussion of whether or not they would be adequate carers for their grandchildren would not pose a major problem, and would allow any erroneous concern about their ability to look after the children to be corrected at that point rather than being dealt with on the basis of a report written by a representative of the local authority.

[Nadine Dorries]

In the event of a crisis, children are often placed with their grandparents in the immediate instance, and the grandparents then find that they are not allowed to participate in the court process that leads to a decision on the child’s future.

[John Hemming]

Exactly. I understand the reasoning behind not allowing everyone to be a party, and then lawyers being a party, and so forth. However, not allowing a child’s grandparents to be in the courtroom and answer questions about the problems of looking after that child cannot be right. It cannot achieve anything for the child. Ultimately, we should be focusing on the children and what is best for them. In most cases, it is far better for children to be cared for by their grandparents than to be placed with foster carers. In practice, children are often cared by their grandparents as part of normal life. That is not deemed to be in any way exceptional.

[Nadine Dorries]

The hon. Gentleman is being incredibly generous in giving way.

One of the problems, and the reason so many grandparents have to go to court, is the fact that they are not recognised in the benefits system. Foster parents receive far more financial help, as indeed do parents. The grandparents have to go to court in order to attempt to qualify for such help, and, as the hon. Gentleman says, they are prevented from giving any information about the child during the process.

[John Hemming]

Kinship caring happens anyway without state funding, but it is much cheaper than foster care at £800 a week, as well as being generally better for the child’s identity in the long run because the child remains within the wider family. Clause 2(3)(b) relates to grandparents who have a long-term involvement with their grandchildren and have information that can assist the court, which is a slightly different pattern.

Subsection (3) recognises that children may be inhibited from giving evidence in front of certain people. It therefore provides that a judge may exclude the grandparents from the part of the proceedings in which the child is giving evidence if, in the judge’s opinion, their presence would inhibit the child. Obviously, there are difficult circumstances in which such discretion is needed.

Subsection (4) allows grandparents to have

“direct and indirect contact with their grandchildren if the child so wishes without this contact being supervised”

unless that is not in the best interests of the child. That is intended to rectify a problem that has been highlighted by many grandparents.

In their response to the Norgrove review of family justice, the coalition Government said that

“a child’s ongoing relationships with their grandparents and wider family members should be considered when making arrangements for a child’s future.

The Government supports the Review’s recommendation that the importance of relationships children have with other family members should be emphasised”.

The Conservative older people election manifesto 2010 promised to:

“Reform family law to provide greater access rights to grandparents when families break up…

“Grandparents should be one of the first ports of call when a child needs to be taken into care, but at the moment they are not…We will change that”.

That has not been done yet. Labour’s 2010 manifesto stated:

“we will ensure that grandparents and other family members are always given first consideration for adoption or fostering.”

All I am proposing is that they are part of that decision, so if it is suggested that the child should not be placed with them they will be allowed to argue with that proposal and explain where any misunderstanding may exist.

Subsection (5) proposes to amend the Children Act 1989 to require that children taken into care by their local authority are placed near their home, unless that

“is not in the interest of the welfare of the child”.

It does so because of the plethora of evidence showing that placing children far from their home puts them in greater danger. A London Evening Standard report on 12 September said:

“The Standard today exposes the scandal of London children being ‘exported’ to care homes across the country where they are at increased risk of abuse.

Almost two thirds of youngsters taken into care are sent outside their borough and…maltreated and introduced to drugs.”

It goes on to say that police warn that this places the children “in greater danger”.

BBC Radio 4’s “The Report” programme said on 31 May:

“The leader of Rochdale Council says children should no longer be sent to care homes in the borough because their safety ‘is not being guaranteed’.

There are 41 children’s homes in Rochdale, which house vulnerable children from all over England.”

It also said that last year

“an inquiry into Lancashire’s 101 children's homes…found the council and the police had little knowledge of some of the…homes…It also estimated 21,000 children…were being cared for in areas outside their home local authority.”

It reported Councillor Steen’s view that

“placing vulnerable girls, who are susceptible to grooming, so far away from home, can lead to them”

becoming

“‘invisible...so they cannot be monitored or helped.’”

In May this year, a joint inquiry by the all-party group on runaway and missing children and adults and the all-party group on looked after children and care leavers called for urgent action to be taken to reduce that practice of sending children far away from their original areas. Subsection (5) provides that urgent action.

[Nadine Dorries]

The hon. Gentleman is talking about vulnerable children in care who become invisible and are susceptible to grooming. They not only become invisible, but they lose the networks that they could turn to for support and disclose things to. These children are away from their family, friends, teachers, school, neighbours and community, so even if there may have been somebody to whom they could disclose that grooming was taking place, they have been completely taken away from that comfort zone.

[John Hemming]

I agree entirely with what the hon. Lady says about the networks issue. There are so many reasons why this is wrong, but it happens. Urgent action has been called for to fix it, and the Bill provides that.

That leads me successfully to clause 3, which deals with the issue of children in care. We all now know, and it is becoming increasingly obvious on a daily basis, that children in care are not safe. There are always going to be children in care homes, but they are not safe. At the moment, the independent reviewing officer is actually an employee of the local authority. We have talked about how public bodies have a bullying management style, and people are often pressurised. We have talked about how whistleblowers are not protected—the independent reviewing officer’s job is to be a whistleblower in a culture that reacts against whistleblowers.

Clause 3 states that

“if a child in the care of an authority has made a complaint of serious harm—

(a) that complaint shall be investigated and determined by an independent body”.

There is considerable evidence that local authorities have not investigated or have ignored complaints by children in their care.

On 24 September, The Times reported that

“confidential papers showed a decade of abuse in South Yorkshire.”

It said that

“police and child protection agencies have held extensive knowledge of this…for ten years.”

It continued:

“Girls were collected from…residential homes…in Rotherham… Internal care reports and individual case files show that countless girls were betrayed by…police and social services…Confidential documents…reveal how one young girl known by social services to have been abused…was offered classes…to engage her in education.”

It also said:

“As long ago as 1996, a social services investigation uncovered concerns that girls were being coerced into ‘child prostitution’ by…men who regularly collected them from residential care homes.”

It also stated:

“A July 2010 independent review for the Rotherham Safeguarding Children Board…described the offences as ‘child sexual exploitation at the top end of seriousness’.”

Last month, Mail Online reported that Rochdale council and police had had

“127 warnings about sex abuse”.

Its headline contained the words “gang raped dozens of children, finds damning report”.

The article continued:

“NHS warned Rochdale Borough Council…on dozens of occasions over six years about sex abuse risks”.

There are numerous other examples of this.

In the Lancashire case—A and S v. Lancashire county council—Mr Justice Jackson concluded that children in care had “suffered real, lifelong damage” but that the council’s actions

“did not come under independent scrutiny.”

Jon Fayle, chair of the National Association of Independent Reviewing Officers, told Parliament that

“the local authority cannot always be trusted to act in the child’s best interest.”

He also said that having an “independent scrutineer” is “essential”. It is also the wish of children to have an independent complaints system. As Maxine Wrigley, the chief executive of A National Voice, told Parliament:

“an independent person to help you, particularly to make a complaint…seems very important to young people.”

Subsection (4) would make it an offence to discriminate against children in care or care leavers. There is considerable evidence that such discrimination is widespread. A care leaver told us:

“I have twice lost my job when my employers have come across my upbringing, despite having more professional experience and qualifications than my managers. We are viewed as mad, bad or sad.”

Another told us:

“I lost my job and at the Employment Tribunal the barrister told them that as a result of being ex-care I would have a residual tendency to fabricate.”

In July, the current children’s Minister, the hon. Member for Crewe and Nantwich (Mr Timpson), launched a report by the all-party group on looked after children and care leavers. It said:

“There was also concern raised that the attitude of teachers towards children in care remains mixed, with some children being labelled as troublemakers simply because of their looked after status.”

A documentary entitled “Barriers to Employment”, made in 2010 by the young people themselves, reported:

“Young care leavers face discrimination from employers because they are stereotyped as being prone to crime”.

The Who Cares? Trust website states:

“The discrimination faced by children in care is brought to life time and time again through our interactions with young people.”

A lot of these things were raised with me by a group of professional care leavers, who had managed to succeed having left care over a number of years. One of them was Ivor Frank, who was brought up in care but is now a family court barrister. His concern was that no remedy was available for care leavers; there was no way they could adequately challenge the system.

It is worth examining what happened in the A and S case. They were two children in the care of Lancashire county council. They were known as “statutory orphans”: they had been freed for adoption before 2005 but had never been adopted. As at 31 March 2011, about 1,300 children had been freed for adoption or placed for adoption more than two years before that date without having then been adopted. If we are going to worry about the adoption of children placed for adoption, we should be examining the situation of those 1,300 statutory orphans. They have been told, “Your parents are no longer your parents” but they have not been found any other parents.

In the case of A and S, when the older boy got to be an adequate age, he found a solicitor who then acted on his behalf. We should not have to wait until these children get to 16—if the NSPCC, as advocate, feels that something is going wrong, it should be able to get an independent review and, if need be, to take the case to court. That is why subsection (2) proposes a scheme whereby a “litigation friend” can be appointed for a child to take the issue to court. The A and S case was not looked at by the court from the time they were placed in care until about 10 years later, because nobody took it back to court to challenge the authority. An independent reviewing officer was in place, but the local authority obviously does not want to be challenged. In practice, it was concluded that human rights had been abused to the extent of not only maltreatment but the breaking of article 3—the no-torture article. There was inhumane treatment of the children when they were in care—we are not talking about before they went into care.

This issue about a remedy being available for children in care does not mean that everything has to go to court, because it is the facility for something to be taken to court that makes people respond. If the local authority feels it can just fob everyone off and ignore them, it will do so and nothing will happen. However, if the local authority knows that someone can take the matter to court if they want and the authority will be forced to deal with it, it is more likely to respond. That is why subsection (2) is important. If the Government do not like subsection (2), it can go away under statutory instrument at the point at which the Government have found a better way to deal with the issue.

There is no alternative but to have an independent mechanism by which a child can complain—potentially, the general practitioner. If the GP feels that a child in care is not being looked after adequately and there is a serious problem, the GP should be empowered to take that through a proper process that could end up in court. The difficulty with the system at the moment is the eternal question of quis custodiet ipsos custodes? The organisation responsible for the quality of care is the local council. In other words, the council is responsible both for providing the care and for monitoring its quality. We should all know that that sort of system does not work and cannot be allowed to continue.

On criminal records, children in care complain that the police are often called for things that they would not be called for if the children were not in care. A relatively recent prosecution involved a child who threw a bowl of cereal at the carer at breakfast. The real problem is that that prosecution follows the child through life. Events that would have been ignored normally end up in a criminal record for assault. When the child becomes an adult, tries to find a job, gets a Criminal Records Bureau check and is told, “You assaulted someone when you were 13,” it comes across really badly. In fact, the child might just have thrown a bowl of cereal. To be fair, that might not happen that often, but it is the sort of thing that can happen when a child is upset. People do get upset from time to time. A parent would generally not take that through the legal system.

I do not suggest in the Bill that we should force people not to take such things to court. All I am saying is that such things should not follow children through the rest of their life just because they got a bit upset when they were 13. That creates an environment where children get used to a higher level of interaction with the authorities, and that is not a good thing. So clause 3 deals with children in care.

On adoption without parental consent, clause 4 basically says that when parental consent is dispensed with for an adoption, the courts should explain why and give the reasons, because normally they do not. In section 1(4) of the Adoption and Children Act 2002, Parliament laid down legal safeguards to which the courts must have regard that include the child’s wishes, where old enough, and needs; the lifelong effect of the child’s losing contact with the birth family; the harm that the child has suffered or might suffer; the child’s relationship with their relatives and the value to the child of its continuing; the ability of the relatives to provide a secure home for the child; and the wishes of the relatives. Parliament has decreed that that must be considered by the judge, but that does not happen a lot of the time. Clause 4 would ensure that that is considered.

Dr Roger Morgan, the Children’s Rights Director for England, told Parliament that children have a strong message: always look to see whether there are family or friends. That is what children say. If a decision is to be taken to move a child from one family to another, the court should explain the basis of that decision, not just say, “We think that it’s a good idea,” which is normally what the judgments say.

On the other duties of local authorities, clause 5 basically talks about improving the relationship with grandparents and deals with the duties of local authorities and other bodies when children are in care. Although clause 5 would maintain the position established by the Children Act 1989 that the welfare of children is of paramount importance, it would also require the local authority to ensure that the child has access to and contact with both parents and grandparents, unless such contact was not in the interests of the welfare of the child.

As pointed out previously, clause 5 is in accordance with the coalition Government’s policy and in the manifestos of the Conservative and Labour parties. I would personally prefer to go further. A quite serious problem is developing with the assessment of grandparents. At times, the same assessment is used for grandparents as for foster carers. As part of the consultation, we excluded from the Bill a clause that would have said, “If the grandparents of looked-after children have looked after them adequately, do not assess them,” but I should like to see that in law. If we go round assessing everyone all the time about everything, we achieve nothing.

What often happens, as in the example given by the hon. Member for Mid Bedfordshire (Nadine Dorries), is that children are removed from grandparents because they have not been assessed, when in fact there is no evidence of a problem. Obviously, there are circumstances where, perhaps historically, those grandparents have a bad record of looking after children and have been subject to child protection proceedings. However, just to say simply that all grandparents need assessments is not right. Again, as part of the consultation in an attempt to make the Bill less contentious, that proposal was dropped.

On the provisions that relate to the administration of justice, these are again similar issues, some of which are dealt with by the family courts and the Court of Protection, but they are also dealt with more widely. I have previously talked about the right to report wrongdoing, but this goes beyond the whistleblowers charter; it is the business of ensuring that, for instance, the police who threaten the hon. Lady’s constituents in an attempt to stop them reporting problems to her would be committing an offence. If we wish the rule of law to apply, we cannot tolerate people being prevented from complaining. If they are prevented from doing so, the authorities do not know that the rule of law is being breached and therefore no action can be taken.

Clause 7 is one of two “no more cover-ups” clauses. Subsection (1) would ensure that people have the right to complain to regulators, whether the police or anyone else. I have encountered a number of court orders that have been purported to prevent people from complaining to regulators. In fact, notwithstanding the Family Proceedings (Amendment) (No. 2) Rules 2009 No. 857, it is still a contempt of court to report experts who are clearly talking nonsense to regulators at times. However, similar constraints have existed on reported crimes. If such orders are appealed to the Supreme Court, they are likely to be struck down, but it is quite difficult to take cases through the appellate system, hence protection is needed at a lower level.

[Stephen Barclay (North East Cambridgeshire) (Con)]

Can the hon. Gentleman clarify the relationship with the Public Interest Disclosure Act 2010 and say why those who want to report issues to regulators are unable to do so under that Act?

[John Hemming]

I understand the Public Interest Disclosure Act as it relates to employment proceedings and particularly to court orders whereby people are banned from reporting things to the Financial Services Authority. One of the difficulties with a court order that prevents someone from talking to someone else is that it stops not just publication but possibly the reporting of a crime.

There was a murder in Australia, and the police there concluded that, notwithstanding injunctions, they could investigate that crime, but the police here concluded that they could not do so because the case was subject to a super-injunction. The Bill deals with that situation. I am not 100% on the Public Interest Disclosure Act, but I believe that it is mainly to do with employment proceedings.

We have a number of examples. A doctor was prevented from providing evidence to the General Medical Council to demonstrate that another doctor was treating patients wrongly, because of the law of confidentiality. That cannot be right. The GMC needs to decide on the evidence that it has.

[Stephen Barclay]

On reporting doctors to the GMC, it is very odd that, for example, the GMC does not see the complaints data held by the Department of Health or Care Quality Commission, but I think that issue is being looked at. Such things can be reported, but the legal risk would sit with the doctor. In other words, doctors are protected by PIDA in reporting to the GMC, but they are often bound by special severance clauses or other confidentiality clauses, which are covered by other litigation. Doctors are covered by patient confidentiality in other respects, not confined by PIDA, but the legal risk sits with doctors, who are often reluctant to take that legal risk.

[John Hemming]

I accept the hon. Gentleman’s point, but I could cite a specific case. I have not got the reference on me, but I could give it to him by e-mail later if he is interested. The case involves a published judgment where the court had a court order saying that the doctor is not allowed to provide evidence to the GMC. There is a High Court order to say that that evidence must not be provided. That cannot be right. If that order got to the Supreme Court it would be struck down, but there is a problem with the appellate process and a real challenge with all these things.

Clause 7(2), perhaps the most important part of the Bill, is to prevent cover-ups. Most substantial cover-ups involve people being threatened or pressed to prevent them from complaining to regulators. That clearly happened with Hillsborough and the Savile paedophile network, where children were punished for complaining. Although details of what sort of offence should be involved needs to be left for consideration in Committee, this absolutely key change is needed. The USA already has in its criminal code elements that protect complainants from the prosecution apparatus.

On “Matters relating to court proceedings”, clause 8(1) deals with the problem that the right hon. Member for Neath (Mr Hain) faced. The judiciary do at times make use of defamation law, which is entirely right, but people should not face criminal proceedings for making truthful statements about the operation of the legal system.

Clause 8(2) deals with the imprisonment of people in secret for contempt—quite a few people are in prison for contempt. The Official Solicitor is supposed to protect their interests, but nothing much seems to happen. I wrote to him and asked him, “What do you do about people who are in prison for contempt?” and he did not tell me anything—he just said, “I suppose we’re supposed to do something.”

Deborah Paul, a London mother, was imprisoned earlier this year. Those who are aware of her case believe that it was an oppressive act. There is no formal report. Although in theory the step of imprisonment is supposed to happen in open court, in practice, a court flashes into public session in the blink of an eye and goes back in camera—it might as well not bother. Clause 8(2) would protect contemnors from oppressive imprisonment and the abuse of power by the court.

Clause 8(3) would assist in dealing with cover-ups. For people to challenge public authorities, they need particularly deep pockets. The problem is the uncertainty about what costs they face paying if they lose the application. The court has developed through the common law protection in limited circumstances. A more general application of a pre-emptive costs order would allow people to challenge bodies such as the GMC or local authorities about wrongly given planning permission without having to bet the farm. I would wish for an element of one-way cost-shifting for judicial review, but in the interests of compromise and so that progress is made, I have suggested a smaller shift towards the power of the individual against the state.

Clause 9 is on the activities of the Official Solicitor. As it stands, the Official Solicitor is accountable merely to secret court proceedings. I know of a number of cases in which people have wrongly had their mental capacity removed—they are then submitted to the decisions of the Official Solicitor. RP v. UK—I made an application to the European Court of Human Rights to assist RP and her brother—demonstrates how cataclysmic a wrongful removal of mental capacity can be. RP’s GP and a second expert have indicated that she had mental capacity and was not too stupid to instruct a solicitor, but the system—all the way through—wrongly treated her as somebody who did not have mental capacity.

In order to appeal, a party needs a transcript of the judgment. However, that is often far too difficult to obtain—I am having problems with a constituency case in that respect. The official recording is frequently lost. The simple solution to the problem would be to allow people to take their own recordings, so that they can produce their own transcript.

On clause 11—“Right to assert litigation capacity”—when somebody has been deemed too stupid to instruct a solicitor and has normally had the Official Solicitor appointed as a litigation friend, it is almost impossible to get a solicitor to act to challenge such an appointment. The clause would make it clear that someone can challenge the appointment of a litigation friend. The proposal in RP v. UK that the Official Solicitor should be asked to review the appointment did not work in the case of Lee Gilliland, a gentleman in Bristol who had his mental capacity removed because he did not trust public authorities. He found himself evicted without notice, because the Official Solicitor did not tell him he was about to be evicted.

I would happily accept in Committee that clause 12 —“Ambit of reasonableness and capacity”—is too advanced and progressive for the English system, but it is worth considering. It would make the lives of those who have limited capacity much better. It is based on a clause from a province of Canada that tries to limit the controls exercised on people who are deemed not to have capacity. I am particularly concerned about the imprisonment of people using mental capacity. The deprivation of liberty safeguards are clearly inadequate in that they are overwhelmingly subject to conflicts of interest. I remain concerned about a constituent who was, in my view, wrongly imprisoned using that mechanism in order to prevent the investigation of a crime. However, the issue needs detailed consideration in Committee.

[Nadine Dorries]

Given that there are court transcribers, one would assume that anybody attending the court would have a right to the transcript of a judgment. Not only is it not possible always to get a transcription, but when it is possible, it takes a considerable time. In that considerable time, the appeal is in abeyance and kept waiting—it cannot be lodged.

[John Hemming]

The hon. Lady is entirely accurate, but in addition, the tape recording gets lost.

[Nadine Dorries]

Conveniently.

[John Hemming]

Whether it is convenient or not, the fact that the tape recording is lost does not help the process.

In part 3, clauses 13 and 14 aim to reduce fuel bills by being more efficient. When I visited the Royal Observatory in Greenwich, I was impressed by the efforts of Parliament in the 18th century to encourage the development of advanced timekeeping technology in the Longitude Act 1714. That was an early demonstration that Parliament can, through statute, achieve positive outcomes in the development of technology. As someone whose academic qualifications are in science—my first degree is an MA from Magdalen college, Oxford, but I specialised in atomic, nuclear and theoretical physics—I sometimes feel that the physical laws are treated as insufficiently important in the public sphere. I take the view that the laws of physics will always trump the laws of economics, and do not understand a reality in which that is not true.

Two key laws are relevant to energy policy—one is the law of conservation of energy, which is also known as the first law of thermodynamics, and the other is the second law of thermodynamics. The first law says that we cannot get any more energy out of a system than we put in. If we take the chemical energy in a hydrocarbon such as methane, ethane or propane, and oxidise or burn it, no more energy can come out than goes in. We can get a mixture of energy out. We could get a physical force such as torsion to provide motive force, or electricity plus heat, or just heat—and, of course, any residual chemical energy.

Of the second law, Lord Kelvin says:

“It is impossible, by means of inanimate material agency, to derive mechanical effect from any portion of matter by cooling it below the temperature of the coldest of the surrounding objects.”

That means that there is a limit to how much work, such as torsion, can be obtained by burning a fossil fuel or other hydrocarbon. The rest of the energy goes as heat. Interestingly, the maximum efficiency of an ideal heat engine—the Carnot cycle—is calculated as the ratio of temperatures in degrees Kelvin.

The combined-cycle gas turbines that we use for a lot of electricity generation manage an efficiency of 55% in generating electricity and 45% in producing heat by having two heat engines running in series. Attempts are made to make use of the waste energy from power generation by combined heat and power schemes by circulating hot water. Clause 13 develops a strategy for smaller-scale combined heat and power schemes, so that more like 90% to 95% of the chemical energy in the gas can be effectively used, rather than the current maximum, which is more like 50%, particularly when transmission losses are taken into account.

The Bill also involves passive flue gas, which is another step in converting more of the chemical energy into heat for warming water rather than its going out into the air. Clearly, therefore, if we get almost twice as much useful energy from the energy source, over time, we would reduce energy bills by around half, which is a good outcome for families and fuel justice. The economic models that have been issued show that there is no cost to the public purse. If implemented properly, the measure would simply achieve a result. The aggregate cut of energy bills from the use of passive flue gas would work out at about £1 billion a year for the whole country, which is a substantial saving for families and an improvement in fuel justice. All those measures are cost-effective for the consumer and the taxpayer.

However, it is important that a critical mass is created so that the market can make appropriate investments in technology. If we manage to halve energy bills and reduce the winter heating bill, we would reduce fuel poverty. The mechanism improves fuel justice for families.

[Stephen Barclay]

The hon. Gentleman makes an important point on using energy more efficiently rather than simply producing more of it, but the Liberal Democrats are pushing hard for some of the most costly forms of renewable energy production. Does he support a greater subsidy for better energy usage as opposed to such a large subsidy for production?

[Mr Speaker]

Order. May I just say to the hon. Member for Birmingham, Yardley (John Hemming) that his dilation on these matters so far has been dazzling? We are all seeking to come to terms with the intellectual ferocity that he has deployed. In responding to that intervention, I hope he will not stray too far away from the core of his most interesting Bill.

[John Hemming]

I shall follow your guidance, Mr Speaker. We have strayed quite substantially from the Bill, because it does not propose any subsidies. It merely says that we should, through statute, guidance and regulation, improve efficiency. That does not require Government funding or subsidy; it can be entirely funded through the private sector. There is no debate about subsidy because none is proposed.

[Mr Ellwood]

In response to your guidance, Mr Speaker, I shall try to be more specific. Britain has lagged behind other European countries in the level of insulation in our dwellings and seeking to improve it is an honourable pursuit. However, I am confused by the fact that the hon. Gentleman is pursuing code level 6 insulation when the Government’s target is code level 3. Code level 6 is clearly higher, but would add an additional cost of about £30,000 to any dwelling that will have to come from somewhere—for example, from the local authority or the Government. Why is he saying code level 6 when the Government are saying code level 3?

[John Hemming]

The idea is to move in that direction over time. In Committee, I might accept that we could stick with the Government’s limited objectives—[Interruption.] Yes, without subsidy. The key objective is to do this without a subsidy. The Bill does not require additional public funding; its aim is to improve the lives of families and family justice in the widest sense.

[Lorely Burt]

The Bill requires the aim to be achieved by 2020. Does my hon. Friend agree that it would be a sad thing, with all the innovations that are being worked on at the moment, if we were unable to move as far as code level 6 by then?

[John Hemming]

I thank my hon. Friend for that helpful intervention. This issue will clearly need detailed discussion in Committee.

[Stephen Barclay]

I share the desire of the hon. Member for Solihull (Lorely Burt) to reach code level 6 and think that it is good to have such an aspiration, but the cost would either fall on those who require affordable housing—the hon. Gentleman’s party speaks frequently on the need for more affordable housing, a view which I share—or be met through diverting subsidy. I accept that the Bill does not require any subsidy, but surely an aspiration to meet code level 6 would lead us to take the view that we might need to reapply the subsidy from one area to another. Perhaps that should happen.

[John Hemming]

That might be a debate for Committee. These are all issues of important detail, but the nub of the Bill is not to look for further public subsidy but to focus on how we can reduce people’s energy bills without it.

[Mr Ellwood]

I appreciate what the hon. Gentleman is saying and his knowledge about all these matters of family law and so on is hugely impressive, but we must tie into current legislation and thinking. The Government have made a commitment that by 2016 all new homes will be zero-carbon and I must make it clear that the target for code level 6 already stands as a voluntary target.

[John Hemming]

I thank the hon. Gentleman for that intervention. The Bill sets a target for 2020 and perhaps in Committee we will feel that we should extend it. Those debates must be held in detail, however, and the principle must be improving efficiency in an cost-effective manner. We are discussing issues of detail, but we need to make progress down this route.

Earlier, I emphasised how the news over the summer highlighted the urgency of taking the actions in the Bill. I conclude that the Bill should urgently make progress to Committee. I am entirely happy to work positively with the Government to make steps towards a better future for children and families and I therefore ask Members to support the Bill.

--- Later in debate ---

[Jim Dobbin]

I can only guess. I feel that the ADCS is absolutely acting as a protective body, and it is protecting its membership; I think that is the only reason it has made that statement. We will not know otherwise until it clarifies why it has taken that stance.

I have been appointed the United Kingdom’s delegate to the “One in Five” campaign, which is a sub-group of the Council of Europe’s Committee on Social Affairs, Health and Sustainable Development. It is to hold a major conference on trafficking and child abuse.

[John Hemming]

To go back to the hon. Gentleman’s point about preventing children from being maltreated, trafficked and so on, does he agree that they need an advocate who is not employed by the local authority?

[Jim Dobbin]

Indeed. That is an extremely important point, and I assume that will be part of the Bill.

[John Hemming]

I thank the hon. Gentleman for allowing me a second bite at the cherry. Yes, it is part of the Bill to ensure that somebody who has no vested interest in concealing malpractice is an advocate for the child.

[Jim Dobbin]

The “One in Five” campaign is convening at a conference in Moscow in November, which I will take part in, and if the hon. Gentleman agrees, I will refer to his Bill on that platform.

[Stephen Barclay (North East Cambridgeshire) (Con)]

I want to make three points. First, I shall draw attention to a particularly troubling constituency case relating to a grandparent’s access to his grandson—an issue that the Bill speaks to in part, but I would like further clarification on the subject. Secondly, I want to address the point that arose in exchanges with the hon. Member for Birmingham, Yardley (John Hemming) about accountability and the multi-agency approach, and points raised in the last exchange about the introduction of new champions; I want to ask whether, for all the benefits involved, that would not add a further layer of complexity and confusion. I shall seek clarification from him on that in his closing remarks.

Thirdly, in the wake of recent hearings held by the Public Accounts Committee, I want to look at points relating to the cost of living and lower fuel bills, a particularly pertinent issue in the fens and North East Cambridgeshire, the constituency that I have the privilege of representing, where there is a long tradition of independence. As a result of that independence, many local parents do not take up, for their children, the free school meals to which those children are entitled; that has an impact on our schools’ funding. There is the same issue of independence in the elderly community with regard to fuel. Fuel poverty is an acute issue in many rural villages in the fens. The Bill covers that issue, and I shall touch on it.

On the first point relating to grandparents’ access, I think we would all accept that the role of grandparents in society has changed greatly. I want to highlight the case of a constituent. His daughter split from the father of her child. The father is known to have a number of difficulties. The daughter moved away to live near the grandfather. As she was a single mother, with a grandfather very nearby, the grandfather became a quasi-parent—the quasi-father. He had a huge amount of access to his grandson. Very tragically, his daughter died so the relationship of the grandfather to his grandson became even more acute but, because of the limited rights that he had as grandfather, the child has now moved to a different part of the country. The grandfather does not have rights of access, yet the unsuitability of the father is such that the child is currently subject to a child protection plan. For many months a lack of improvement in the care has been noted by protection officers but despite this, very little seems to happen. At a recent court hearing the failure of two expert witnesses to turn up meant that the case was delayed further.

With each month that passes, not only is the grandson playing truant from school, not only are other problems arising because of the unsuitability of the father to care for the child, but the relationship between grandfather and grandson, which was once so strong, is becoming frayed because the grandfather cannot get permission for the grandson to spend time with him. Getting a passport so that he could take his grandson on holiday proved a real ordeal because the father, who was not engaging, had to sign the passport.

The hon. Member for Birmingham, Yardley is right to draw attention to the need to reflect in his Bill the fact that the role of grandparents has changed from previous generations, but there is a lack of clarity—perhaps the hon. Gentleman intends to address that in Committee —about how the Bill would work in the real-life case that I draw to his attention, where the mother who was the primary carer has died. The case is not one in which, with parents still in place, the question arises whether the grandparent should have more or less access, but is one where he is the more suitable prime carer of the child than the father, who is known to the family courts and who has experienced difficulties, and where the inappropriateness of that care is reflected in the child’s truancy from school and other measurable metrics.

[John Hemming]

One aspect that I may not have emphasised sufficiently was that one difficulty of relying too much on court proceedings rather than a family group conference is that they create an adversarial environment, which a family group conference is less likely to do. Although it does not provide a complete solution to the case that the hon. Gentleman presents as an example, if the issues could be discussed in a family group conference rather than in adversarial proceedings, it might be possible not to create a greater rift among the parties involved, which makes it harder to achieve some form of compromise.

The family group conference approach starts out by looking at what are essentially therapeutic decisions—what is best of for the child, which is not so much a traditional legal adversarial decision as an attempt to answer the question, “How do we best achieve a positive outcome for the child in the circumstances?” If that fails, the case has to go to court. Recognising article 8 rights for grandparents in that context is helpful. The Bill tries to get issues resolved outside court first so that fewer cases end up going to court.

[Stephen Barclay]

I thank the hon. Gentleman for that clarification and I agree with that intention. One of the impediments to speedy resolution of such cases is the length of time it takes to prepare court papers, with frequent delays in the court process such as the one I mentioned. I endorse the hon. Gentleman’s desire for resolution outside court. On almost all legal issues, I suspect that few hon. Members across the House would demur from that as an aspiration.

[John Hemming]

One of the difficulties with contact proceedings is that if things are not working, an application to court is initiated. I accept that the Government are looking towards mediation, but a family group conference, trying to get people together, is an environment in which mediation can occur. One has to look at the system and the entire process—what initiates something and what are the likely outcomes. We have tended to pick little bits in isolation, rather than look at a flowchart of the whole system. The family group conference should be where it starts, not where it goes after an application has been made to court. At that point, in a sense, it is too late.

[Stephen Barclay]

I thank the hon. Gentleman for that further clarification and I fully support his intention. My question is whether that fits with human behaviour. Throughout all arms of Government we often see policy put forward with the very best of intentions, but it clashes with logic or behaviour at an individual level. If, at that conciliatory meeting, all the players were coming to the table with the best interests of the child at heart, of course one would expect that approach to work and I am sympathetic to it, but how does it work where the father has previously been estranged and is known to have difficulties, yet the bar to removing the child from that father and placing him with the grandparent is so high, because social services see that as such a retrograde step? There can be all the nice conversations in the world; the question is whether we shift the bar at which the child is moved.

[John Hemming]

That comes to the question of what is in the best interests of the child. The children’s services authority has decided in the circumstances that in its opinion it is in the best interests of the child for him to remain with his father, not with his grandfather. I tend to share the hon. Gentleman’s view that that seems a perverse decision. However, that decision of the children’s services authority is not subject to any intellectual scrutiny beyond the court hearing. To a very great extent, judges are trapped and have to accept the expert opinion provided to them. The hon. Gentleman may be aware of the Daubert procedure in America, where expert evidence is taken to an expert evidence appeal. I am not suggesting that here. What I am suggesting is that there should be a scrutiny process to look at such situations. What he describes is not unique. I am aware of other similar situations—

[Mr Edward Leigh (Gainsborough) (Con)]

rose—

[Mr Speaker]

Order. The hon. Member for Gainsborough (Mr Leigh) could be forgiven for thinking that he was intervening on the person making the speech. I remind the hon. Member for Birmingham, Yardley (John Hemming) that he is intervening on the hon. Member for North East Cambridgeshire (Stephen Barclay). It should be an intervention, not a mini-speech. Has he just about concluded?

[John Hemming]

indicated assent.

[Mr Speaker]

We are grateful.

[Stephen Barclay]

I am most obliged, Mr Speaker, for your very courteous intervention on my behalf, and I am more than willing to take an intervention from such a senior colleague as my hon. Friend the Member for Gainsborough (Mr Leigh).

There are two issues that arise from the worthy intention of the hon. Member for Birmingham, Yardley. First, as I understand it, it is the current position of the courts that the welfare of the child comes first, so proposing a new structure to achieve that aim raises the question whether that is not the existing position. Secondly, the hon. Gentleman seems to be suggesting, paradoxically, that we take an expert witness’s advice to the court, but we cannot trust that advice to be in the best interests of the child’s welfare so we need to put it to some other expert witness. Is that really what he is proposing?

[John Hemming]

I am not proposing in the Bill that there is, in effect, an experts appeal. I am proposing that we use the body of expert evidence and the process of peer review to improve the quality of expert evidence. The expert might find, having read the peer review of their evidence, that perhaps they should have given different evidence. The difficulty is that what is in the best interests of the child is not always that clear. We need a better review of what is in the best interests of the child, and such a review does not currently exist.

[Stephen Barclay]

I put it to the hon. Gentleman that the primary aim should be to improve the quality of the expert witness advice given in the first place, rather than putting it to a second expert witness, which potentially adds a layer of confusion.

[John Hemming]

The second expert’s evidence goes to the same court hearing.

[Stephen Barclay]

Indeed. But the hon. Gentleman’s suggestion means that we would spend more and more money on experts, even though he and I would agree that what we should be doing is spending our scarce resources on the primary focus, which is the interests of the child.

[John Hemming]

We already have academics in place doing research, but they are not given access to that particular material.

[Stephen Barclay]

I defer to the hon. Gentleman’s experience as an academic—he speaks with more authority on these matters than I do—but in my limited experience of discussions with academics I have found that, invariably, what one says is different from what another says. Again, I am not sure why the academic cannot be the expert witness in the first place. The point still stands that we need to ensure that the quality of advice from any expert witness is sound.

[John Hemming]

How do we improve the quality of expert witness advice without peer review?

[Stephen Barclay]

The hon. Gentleman goes to the nub of my argument. Many of these issues go back to that iconic and hugely emotive film, “Cathy Come Home”. Taking a child from its mother is something that no one wants to see. I think that the bar has been set so high because it is felt that it is not in the interests of a child to remove it from its natural parent, in this case an unsuitable father. The blood tie is considered so precious that breaking it requires such a high bar and very rarely happens. In my example we have a grandfather who, in essence, had day-to-day contact with his grandson, alongside his daughter, who was the primary carer. He was very closely involved in his grandson’s life. Following his daughter’s death, he would have been the more suitable custodian, in my uninformed view, but the so-called experts take the view that the estranged father, purely because he is the father, is the person the child must live with, even though he allows the child to play truant, even though the child is subject to care protection and even though the grandfather is an upstanding member of the community.

[John Hemming]

As things currently stand, the evidence provided by expert witnesses is not subject to any process of peer review, so over time, their expert evidence will never change.

[Stephen Barclay]

I hear what the hon. Gentleman says and will seek to make progress.

--- Later in debate ---

[Stephen Barclay]

I thank my hon. Friend for that intervention. He appears to side with my analysis of the suitability of the grandparents. He makes a serious point, as a former practitioner, about the amount of time experts often have to come to these conclusions. To be fair, the engagement of some of these experts is often so limited that it is difficult.

That brings me to my second point—I want to make progress. It strikes me that in this hugely complex area—the complexity is signalled by the range and scope of the Bill—one of the difficulties is the lack of accountability. What concerns me about the measures the hon. Gentleman puts forward is that he seems to be adding a further layer of complexity by having champions who are in some way more independent. That is another layer.

[John Hemming]

The guardian ad litem is already a litigation friend. It is not a question of having a new body; it is a question of having one that is clearly independent of the previous proceeding.

[Stephen Barclay]

Again, the lawyers present should have a duty to the court. When I qualified as a solicitor it was my primary duty to—

[John Hemming]

The litigation friend is not necessarily a lawyer.

[Stephen Barclay]

I feel that we are splitting hairs. What I am saying is that a multitude of professionals are engaged in the welfare of the child. Do they not have professional duties? Is the hon. Gentleman saying that they are compromised, or that he cannot trust that their vested interests will not get in the way of the interests of the child?

[John Hemming]

The evidence from the case of A and S v. Lancashire county council indicates that the independent reviewing officer was not sufficiently independent.

[Stephen Barclay]

I thank the hon. Gentleman for that clarification, because he makes my point. The point is that we do not address a failure by adding more complexity; we address it by fixing it. The issues that go wrong in life are almost invariably the result of over-complexity. There is a distinction between simple and simplistic. One of the difficulties we have in child protection is the whole range of people involved and the complexity of the different organisations involved. At any one time, one person might be on holiday, another might be off ill, someone sent an e-mail, someone else spoke to someone or did not visit the child, another person has too many cases to deal with and so did not engage properly, or the expert witness did not produce a report of sufficient quality. The point is that when it goes wrong no one is accountable.

A case that rightly drew great concern across the House was that involving the official, Sharon Shoesmith. I draw attention to the fact that the courts—I do not criticise them for this decision—gave Ms Shoesmith a significant payout. When I discussed the case with my constituents at the time, they expressed great frustration, because clearly there had been a huge failure and a child had been very badly let down, but they could not work out who had been accountable.

The hon. Gentleman’s proposal is extremely well intentioned and I share his objective—I hope that all Members do—but my concern is that it would add yet more complexity to an already complex structure.

[John Hemming]

My contention is that it would not add more complexity; it would merely ensure that we do not have to wait until a child is considered competent before their complaints can be heard by the court.

[Stephen Barclay]

Let me give a parallel example to illustrate my point better. The Public Accounts Committee had a hearing for the Care Quality Commission, the body set up by the previous Government to protect many of our most vulnerable—not those in child protection, but those in care homes. Yet for the first two years of its existence it did not carry out a single major investigation. Just one of its predecessor bodies carried out 15 such investigations in the preceding years. The commission even abolished its dedicated whistleblower line, so it passed its responsibilities to general staff, which is why the Winterbourne View case, which was flagged up by whistleblowers on more than one occasion, was missed. It took the BBC’s “Panorama” programme to bring that to light.

What I am driving at is that the answer to the difficulties we face is not the current fashion of having yet more multi-agency work and more partners getting involved and, when it goes wrong, everyone saying that it was not them or, as was suggested earlier, that someone has retired or moved on. That is not a new situation. Twice a week in the Public Accounts Committee we hear of vast sums of money wasted under various Governments, and almost invariably the official concerned has moved on. We have had three permanent secretaries of the Department for Transport since the last election. A former Chair of the PAC is present in the Chamber: my hon. Friend the Member for Gainsborough (Mr Leigh). I am sure he is very familiar with officials moving on—perhaps retiring—and therefore not being accountable. I support the worthy aims of the hon. Member for Birmingham, Yardley, but his proposals add more complexity to the system, and I question whether that will aid accountability.

Lower fuel bills is a particularly pertinent issue in the fens, and especially the fen villages. I take on board fully Mr Speaker’s direction that it is not the purpose of our debate today to discuss the issue of subsidies, but the best way for us to address fuel poverty is to ensure we better utilise the energy that is being produced. That is why the green deal is particularly welcome.

I should put on record a concern, however. When I spoke last week to one of the green deal assessors in east Cambridgeshire—one of the districts covering my constituency—I was concerned to learn that he is still not in a position to carry out green deal assessments of local homes, and he does not think he will be in a position to do so until the new year because the software is still not in place.

It is laudable to seek to go to level 6 of the code for sustainable homes, but my hon. Friend the Member for Bournemouth East (Mr Ellwood) drew the House’s attention to the current provision—level 3. The difficulty is that that cuts across human behaviour. We will not get to level 6 through wishful thinking; we will not get to level 6 because it is the right thing to do and it is a lovely, inspirational aim. We will get there by shifting behaviours. That will come either from expecting people to pay more for their homes—which they are not able to do—or through subsidy. Subsidy will require a shift, particularly in respect of turbines, which are decimating the fens. Bizarrely, the area has now become known as the “forest of the fens”. When the forest protests erupted over a previous Government policy, many electors wrote to me about saving the forest—which is somewhat ironic given that the fens has very few forests and is predominantly flat land.

--- Later in debate ---

[Dr Lee]

I thank my hon. Friend for that intervention and I agree with him. In addition to being an enemy of over-regulation and over-legislation, I am also an enemy of complexity. Complexity always makes me suspicious. Most things in life are quite straightforward and simple; it is only when people want to hide things that they make them complex.

To follow on from what I was saying about systems, it is important that we point out when we are concerned about the actions of others whatever role we play, be it Member of Parliament, doctor or social worker. Indeed, one thing I have found rather frustrating in the recently evolving scandal is the number of people at the BBC who said that they had suspicions, but that Savile was too big and too powerful. I am sorry; I do not think that is a defence. Ultimately, we all have to be brave enough to point out concerns and follow them through to the end, and if that means putting our jobs and progression in our careers at risk, then so be it. We all make a choice to get into jobs where we have the responsibility to protect vulnerable people. If someone does not want to take that responsibility fully, they should get out of the job.

[John Hemming]

Will the hon. Gentleman accept it from me that my objective in the Bill is actually to keep things relatively simple? Will he, as a doctor, say whether he thinks it would be useful to have a system to ensure that when a doctor feels that a child in care whom they are treating is encountering problems, they should have a mechanism for getting answers?

[Dr Lee]

Yes, that warrants consideration and has merit. I shall relate two instances that I recall. One was when I saw a 10-year-old child who presented having been self-harming—let us think about the idea of a 10-year-old child constantly using a razor blade on his wrist—and the other was when I examined an eight-year-old child, as I recall, and had to keep noting down evidence of cigarette burns. Both children had been in the care of their biological parents, I recall. It is all very well looking at evidence in the literature, but when one actually meets the child—when one looks at the child’s face and into their eyes—and encounters such evidence first hand, it is a genuinely heart-rending and extremely difficult thing to deal with. Indeed, I had some difficulty containing my anger at some points.

Moving on, as I said, I want to talk about parts 1 and 3 of the Bill. I particularly want to discuss grandparents’ access to their grandchildren. I am sure that the House will be surprised to learn that I had a spare hour at the weekend, and that I chose to spend it watching an episode of “The Waltons”, the famous 1970s television series. Those who have had the pleasure of watching it will recall that the Walton family all lived under the same roof. The grandparents, the parents and the seven children all lived in the same home. Part of the programme’s charm comes from the sense that the family is taking care of the vulnerable—the very young and the very old.

I was listening to the “Today” programme this morning. It has been running a series of short reports on social care in different countries, and today’s contribution was from the United States of America. I was struck by a suggestion that there could be a return to a Waltons model, with grandparents living under the same roof as their children and grandchildren. I suspect that that will also happen in this country. Putting aside the debate over the need to be able to afford a big enough house to accommodate such an arrangement, I believe that that is the likely direction of travel, given the ageing of our society. That demographic and sociological change could lead to an increase in contact between grandchildren and their grandparents.

--- Later in debate ---

[Mr Tobias Ellwood (Bournemouth East) (Con)]

It is a pleasure to follow my hon. Friend the Member for Bracknell (Dr Lee), who spoke with such passion and expertise about the various aspects of this wide-ranging Bill. He is perfectly placed to discuss these matters as he sits on the Energy and Climate Change Committee and is also a doctor.

I am grateful for the opportunity to participate in this debate, and I congratulate the hon. Member for Birmingham, Yardley (John Hemming) on his success in the ballot. He has introduced a wide-ranging set of ideas—perhaps too many for one Bill, but I will come back to that point. Clearly, he has shown enormous dedication, expertise and effort in preparing this Bill and introducing it today. It reflects an understanding of, and a passion for, a subject that is important to him, and should be important to all hon. Members. Indeed, I am sorry that the Opposition have only managed to conjure up a single offering to the debate, other than a brief intervention from an Opposition Whip. Perhaps now that we are coming to the end of the debate, Opposition Members will rush in to try to make a final contribution. On the other hand, perhaps the lack will be made up for by the shadow Minister’s comments. We certainly look forward to them.

The issues of families in courts and the protection of children in that arena are ones that we all face. We see this through the work of our local authorities, which have to deal with it every day, and in dealing with the families, individuals and children in constituency cases when they are unfortunately forced to deal with the family justice system. I have two particular cases that are still not concluded. One is a divorced father who is seeking access to his child but has been denied the opportunity to develop that relationship. His relationship with his wife has fallen apart, but that should not mean that the child grows up without being aware of who his father is. It has taken far too long for the law courts to recognise his legal right to see his child. I am not in a position to say whether the decision is right or wrong, or how much time he should have with his child, but the process of making the decision must be expedited. We must be able to come to a judgment far faster, so that the stress caused is minimised.

The second issue that has come to my attention—I am sure other hon. Members have bumped into it too—is the time it takes for children to be adopted, once it is clear that they can be adopted. The length of time and bureaucracy involved causes increased stress for the birth parents, for the parents who wish to adopt and, especially, for the child. Ultimately, it is the child we need to think of in this. In one particular case some years ago, I was involved in providing witness statements on the credibility of one of a couple wishing to adopt. It took more than two years to complete the process, and that is too long to spend making an assessment of whether people are of good standing and conduct and able to take on a child. I know that the Prime Minister has spoken with passion about this issue, and I hope that the Government will address it in the Bills that will deal with these issues in January.

My hon. Friend the Member for Bracknell, who is unfortunately no longer in his place—I understand that he is poorly—mentioned “The Waltons”. Much as it is amusing to remember that black and white series, it had some powerful messages that we can recognise today. It had three generations living under one roof and showed how they dealt with day-to-day problems. While my hon. Friend’s comment may have been a flippant attempt to illustrate some of the challenges that we face today, it reminded me of a discussion I had on Radio Solent this week about war veterans and national service veterans in which grandparents said they did not feel they had the respect of the younger generation. The discussion related specifically to their contribution during the war and after and to the place of grandparents in society, communities and families today. That role, it would be fair to say, has changed over the past three or four generations since the time of the Waltons.

The hon. Member for Birmingham, Yardley mentioned the influence of grandparents, access to them and their role in providing stability during unstable periods of life, whether during divorce, resettlement, adoption and so forth. The role of grandparents is fundamental to a more palatable answer to looking after children’s needs. Speaking on Radio Solent, these veterans raised concerns that today’s generation did not look up to them in the same way that perhaps my generation or my parent’s generation did. That shows that the role of the elderly—the seniors, if you like—has changed. Perhaps the distractions of growing up today—television, internet, mobile phones and so forth—and the fact that we live such diverse lifestyles and much further from families and grandparents has challenged the contribution that grandparents make. They simply do not have the same amount of access as they did in yesteryear.

That needs to be revisited. We, as a Parliament, a country and a society, need to underline those values and remind ourselves that we want citizens not only to pay taxes and obey the law but to be part of a community, whether a village society, a residents area or whatever. We need to underline the family bonds and connections that help in the good times and, most importantly, provide security and support in the bad times. That is why I endorse what the hon. Gentleman said about provision of access to grandparents. Children should not be denied access simply because one of the disputing parties decides to alienate one of the family names.

The justice system makes life-changing decisions affecting many thousands of children every year. Churchill spoke passionately about the welfare state and talked about a safety net for society catching those who fall from their place in life and require the support of the state. The trouble with that analogy, however, is that if somebody falls through the net, they will be on the wrong side and will find it difficult to get back. I prefer another analogy: those huddles of penguins in the cold, those communities of penguins sharing body heat, while others are on the outside and exposed, through no fault of their own. They are reliant on the whole community to see them through and to get them back into the centre. If we do not help them, those on the outside of our communities and society will be unable to weather the storm and move forward. That needs to be encouraged. I put my hand up: the Conservatives, in particular, need to emphasise that message more than those on any other side. I am glad to say that the Government are trying to do that.

As I said, the decisions are taking too long, because of unnecessary bureaucracy, which is leading to a lack of trust in the system, increased stress and—let us say it—a waste of taxpayers’ money, which needs to be spent wisely, particularly in these difficult times.

I certainly welcome the spirit of the Bill and what the hon. Member for Birmingham, Yardley is trying to achieve. I would, however, question the strategy and tactics that he has adopted. He acknowledged that the Bill was busy, and he covered an enormous amount of background, which was given licence but has now been cut down by Madam Deputy Speaker as we wandered away talking about anything from wind farms to child protection orders and all sorts of other aspects that are perhaps related to this enormous Bill. The hon. Gentleman seemed to say, “Fine, there is a lot there, but if need be, we can drops things in Committee.” He also recognised, however, that the Government are doing a number of things in various areas.

[John Hemming]

rose—

[Mr Ellwood]

The hon. Gentleman shakes his head. I will happily accept his interventions after I have finished my point. In my interventions on him, I alluded to a number of areas where the Government are taking initiatives forward. Most specifically—I hope the Minister will clarify the point when he concludes the debate—legislation is expected in January, which will cover many of the areas that the hon. Gentleman has raised.

[John Hemming]

I did not check the draft legislation for the family justice review because I assumed it covered only the family justice review, with which I disagree. In fact, it does cover that and I have now reviewed it. First, I do not think it fixes the problems; and, secondly, I think it creates even worse problems in certain respects. It is obviously always possible to introduce a Bill and I realise that some elements could be introduced later. My argument is simply that on certain urgent issues, the Bill will allow us to start solving some problems rather than just kicking them down the track.

[Mr Ellwood]

I am grateful for that intervention, and I think everyone would agree with his last comment, in that the Bill provides an important opportunity to debate these issues. Not all the private Members’ Bills that we debate on Fridays make it on to the legislative book, but they allow individual Back Benchers to share new ideas, test where the Government are in respect of them at the time and ensure that the public are made aware that we are debating the issues. Subsequently, the public can enter into the debate and comment. In that, the hon. Gentleman has certainly succeeded. We await the Minister’s comments—we are all salivating for them—before we find out exactly where we are from a Government perspective.

Dare I say it, there must be some sort of agreement between us and Opposition Members? My hon. Friend the Member for Bracknell made the point well—that there should be cross-party agreement on the messages we are sending out and, indeed, to some extent, on the legislation itself. I congratulate the hon. Member for Birmingham, Yardley, and I do not want to detract from the mammoth amount of work he has done, which needs to be acknowledged. Today’s debate is a healthy step forward, but I would like to know more about where the Government sit on a number of the issues. It is important to clarify Government thinking.

In an earlier intervention, I specifically mentioned the family justice review. This is the big piece of work being done by the Government. The foreword is written by my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), and the Secretary of State for Education. The Government responded to 130 recommendations from the family justice review, which was published in November 2011. It sets out a number of reforms to public and private family law, as well as reforms to the structures and governance of the family justice system. The Government response, which I have in my hand, was produced in February 2012.

I shall not go through all 130 responses, but I would like to share my view of three of them, if I may. The first is on page 28. It states:

“Judges and magistrates should be enabled and encouraged to specialise in family matters.”

The Government’s response is:

“The Government agrees with the Review’s analysis that enabling and encouraging specialisation in family matters will improve judicial continuity and create a more experienced family judiciary. The President of the Family Division has said that he favours a more specialist bench and that consideration should be given to the merits of setting a minimum sitting requirement for family ticketed judiciary.”

That sets out a direction of travel in relation to the time taken by these processes.

The next recommendation states:

“A single family court, with a single point of entry, should replace the current three tiers of court. All levels of family judiciary (including magistrates) should sit in the family court and work should be allocated according to case complexity.”

The Government’s response is:

“The Government agrees with the Review on the benefits of clarifying and simplifying the family courts, and making their operation more transparent, by establishing a single Family Court for England and Wales.”

If I may test your patience, Madam Deputy Speaker, I shall give one more example. The recommendation states:

“There should be flexibility for legal advisers to conduct work to support judges across the family court.”

The Government’s response is:

“The Government agrees that there is scope for legal advisers, who currently work only in the magistrates’ courts, to take on some of the judiciary’s quasi-administrative functions across the whole of the Family Court once it is established.”

I have quoted just three of the 190 recommendations in the family justice review, but those who read the whole document will see that the Government accepted the majority of them. That is a very positive result, but it has yet to be turned into legislation, which is, of course, the next step.

Part 3 deals not with court procedures but with a related but separate subject, namely energy and fuel poverty. As I made clear in an intervention earlier, there is a connection between the amount of energy that we create, where we get that energy from, how we use it, and how much we charge the nation for that process. I agree with what my hon. Friends have said today. Until we make those big decisions about new nuclear build, it will be very difficult for us to ensure that there is security of supply, and without security of supply we shall not be able to control the costs of the power that we generate. We shall have to import more energy, in which event we shall be governed by prices that are fixed outside this country. The consequences of that will affect fuel poverty; indeed, they will affect us all. That is why the Prime Minister announced the week before last that the tariffs would be looked at. I am pleased to see a smile of approval on the face of the hon. Member for Hammersmith (Mr Slaughter).

The tariffs need to be set in a certain way. First, they must be made far simpler, so that all users can recognise the tariff that they are on if they want to switch. Secondly, people must be encouraged to be on the lowest tariff. The present system is very confusing. I believe that there are 124 tariffs across all the energy boards, and that is far too complicated.

[Mr Ellwood]

I can use the first words quoted by the hon. Gentleman: the words “will be”. The Government and the Prime Minister are absolutely firm about their intent. I can write the hon. Gentleman a letter and include those words so that the position is unequivocal.

It is clear that people are being obliged to pay far too much for their energy, and that the process is far too complicated and needs to be simplified. The hon. Gentleman quibbles about the words used by the Prime Minister, but, dare I say it, his Government had 13 years in which to gain control of energy policy and develop an energy strategy. They did very little about it, and we are now having to deal with the consequences. Unbelievably, a third of our coal requirements are met by Russia, which is a bizarre state of affairs in a nation that ought to be able to generate its own power. The important aspect is that we keep the cost of energy and its generation down, which will have a knock-on consequence for all users, including the most vulnerable.

The Bill deals with the building regulations for social housing. It desires a reduction in fuel use, which would mean that fuel bills would be lower. That would be a positive step forward, and the proposal makes sense. However, it ignores the fact that building regulations have changed and are changing. An awful lot of powers are bestowed on local authorities to make these very decisions, rather than to have them made nationally. There is a commitment to introduce a zero-carbon requirement for all new homes built after 2016. [Interruption.] I am glad that the hon. Member for Birmingham, Yardley has come back into the Chamber, because he may wish to comment on this. The Bill would require that new dwellings comply with the level 6 standard—a very high standard. He may be aware that the Government’s standard is level 3. What is the difference between the two? Level three is deemed as providing the necessary insulation that will save on fuel costs, whereas levels 4, 5 and 6 take us into the bells and whistles. Those levels dramatically increase the cost of the build by about £30,000.

[John Hemming]

It is an issue for Committee.

[Mr Ellwood]

That is a wonderful line, but if this reaches Committee, perhaps its members would recognise that level 6 includes things such as rainwater harvesting. That is why I disagree with the provision. Rainwater harvesting may be something that an individual would like, and we would all aspire to use rainwater sensibly as it comes off the roof, but the scale of the social housing problem that we face in each of our constituencies—the shortage has been mentioned time and again in this House—means that promoting level 6 would make things unworkable. So the hon. Gentleman may be wise to amend his Bill in Committee. As I say, social housing is already obliged to comply with level 3, and local councils can demand, for example, where a new housing estate is being built, an increase to level 4, 5 or 6. Councils can impose that as part of the planning application process, but that is done in the town hall, not from here.

In conclusion, the family justice system continues to require reform to reduce delays, and to improve support for families and, specifically, for children. Every two months of delay represents 1% of a young child’s childhood, yet the average case now takes 55 weeks to complete. There is certainly still work to be done, but a lot of homework has been done on looking at these issues: the Munro review’s recommendations on child protection; Martin Narey’s work on adoption, legal aid and civil justice reforms; the family justice review, which I have referred to on a number of occasions; the Government’s response to that review; and now the ideas contained in this Bill. The coalition Government have done an awful lot of homework, but it is now time to legislate, and I look forward to hearing what the Minister has to say.

[Mr Andy Slaughter (Hammersmith) (Lab)]

We have had a wide-ranging debate on a wide-ranging Bill, and I hope that my comments live up to the expectations raised by the hon. Member for Bournemouth East (Mr Ellwood) on all these issues, on which I can show off my expertise.

I pay genuine tribute to the hon. Member for Birmingham, Yardley (John Hemming), who has been contentious sometimes and used colourful language on this issue—not today, because he has been on his best behaviour, in trying to get Government support. However, no one can doubt his passion or, indeed, his knowledge, which he has ably demonstrated on all the issues in this detailed and wide-ranging Bill.

As the hon. Member for Shipley (Philip Davies) pointed out some hours ago, it is a heterogeneous Bill—it has many elements—and it shows off that detail, but the danger, as the hon. Member for Birmingham, Yardley has realised, is that although some parts of it might please some people, it is unlikely that all of it pleases everyone. I therefore note his plea to the Government in particular that they could fillet it if only they would let it go to Committee. I suspect that my response on behalf of the Opposition will be similar—we like some parts of the Bill very much; we are ambivalent about other parts; and we have doubts about some parts—but if it does get to Committee, we will certainly consider it constructively and seek to amend the parts that we do not like.

I will say a little, perhaps not so much as the hon. Gentleman did, about the Bill’s detail. It brings to the fore some of the overarching—one might say, eternal—themes in the justice system, the first of which is openness. The word “transparency” appears in the short title. Openness will be a contentious issue on the Floor of the House this autumn, when the Justice and Security Bill arrives and we will see what the Liberal Democrats do in relation to that matter.

Openness in the family courts is a difficult issue which requires a balance between what should always be the presupposition in English courts—that matters should be transparent, that the public should have admittance and that matters should be publicly available—and, obviously, the protection of children in particular and of sensitive and personal matters. I am not persuaded that some of the Bill’s provisions contain sufficient safeguards to prevent matters from becoming public which, perhaps, should not become public. I shall say a little more about that and talk about some of the individual clauses.

The second theme is equality of arms. There is an implication in everything that the hon. Gentleman has said about the Bill that there is an imbalance of power between the family on the one hand and the local authority on the other hand. To some extent, that is common sense. There is a difference in resources always. The local authority sometimes plays a dual role. Although it might be a party in proceedings, it has been judge, as well as a party, in its previous dealings with the family.

What concerns me particularly with the legal aid brief for the Opposition are the changes in the family law that are taking place as a consequence of the Legal Aid, Sentencing and Punishment of Offenders Act 2012—the LASPO Act—and the fact that although legal aid is protected for public law, there are such swingeing cuts in legal aid for family law that the availability of family lawyers, representation and firms that have such expertise is threatened. That is a part of the de-professionalisation of the courts that the Government are overseeing in many different aspects. They say that that can be replaced with mediation in some instances. They say or at least imply that many cases can be conducted by litigants in person.

I do not know whether the hon. Gentleman had regard to those matters in proposing the Bill. His solution appears to be that untrained people—McKenzie friends—or some form of non-professional advocacy and support can in some ways replace the help and assistance that the legal profession can provide.

[John Hemming]

The idea is to have someone there to provide people with psychological support. Everyone else is not associated with them. They may have solicitors there as well. For instance, the mother of a 17 or 18-year-old young mother could be there, or an embassy representative could be there for foreign citizens.

[Mr Slaughter]

I see the hon. Gentleman’s point, and no one would disagree that it might be important to have someone to give emotional support to litigants in a time of great stress—most litigation is a time of great stress, but particularly family litigation. I understand the examples he gives, but he does not deal with the problem that occurs in many cases, namely the inequality and imbalance of arms in private family law, let alone in public family law. That problem is not addressed in the Bill.

The third theme is costs. I noticed with interest clause 8(3), on the risk of costs in judicial review proceedings. The hon. Gentleman will be aware that, as a consequence of part 2 of the 2012 Act, no win, no fee agreements will not be available in all cases—they will not be available in judicial review, and nor will qualified one-way cost-shifting. It is therefore very likely that judicial review will be restricted for persons who do not qualify for legal aid. I suggest he looks at draft regulations on the future provision of legal aid, which suggest that all other remedies will need to be exhausted before legal aid is available in public law proceedings in judicial review cases. The Minister is looking up and showing some interest—

[Mr Slaughter]

Perhaps it was just an involuntary reaction. The Minister might want to consider that point, because those regulations are likely to be debated in Committee within the next few weeks. If we are to have a wholesale restriction not only on those who do not qualify for legal aid, but on those who do, the availability of public law remedies will be severely curtailed. In that respect, the hon. Member for Birmingham, Yardley could have gone some way further on how litigants in family proceedings—we are talking about family proceedings, but it will apply to proceedings more widely—could ensure that they can get access to justice and some protection in costs, particularly when they are up against public authorities.

On the detail of the Bill, the points in part 1 are well made, but I somewhat doubt that the hon. Gentleman’s remedies, which in most cases are statutory requirements on the courts and the fettering of the discretion of the courts, are the right way to proceed. We probably disagree on the family justice review. David Norgrove’s review, which was commissioned under the previous Government but published by and responded to by this Government, is an impressive piece of work. On family group conferences, which are dealt with in clause 1, the review said that

“the benefits of family group conferences should be more widely recognised and their use should be considered before proceedings”.

Separately, the family justice review found that both children and adults are “confused” about the family justice system—a point the hon. Gentleman made well. He and I would agree that family group conferences have an important role, and perhaps a bigger role, to play, but whether there should be a requirement is another matter.

On clause 2, more was said about grandparents than about any other single issue. I suspect there will be very little dissent from any party from the point that the role of grandparents in both contact and proceedings can be important. However, the family justice review and the Government’s response say that the leave requirement should remain, because it acts as an important safeguard for children and their families, and that that is consistent with the principle that the court’s paramount consideration must be the welfare of the child.

The Government said that they were

“committed to ensuring that children have meaningful relationships with family members who are important to them”,

including grandparents. That really moves us on to the issue of sheer parenting, and the balance between the rights of family members and the rights of the child. The hon. Gentleman will be well aware of what the final report of the family justice review said on that:

“the core principle of the paramountcy of the welfare of the child is sufficient and…to insert any additional statements brings with it unnecessary risk for little gain.”

That is a point on which the Government disagreed, but with which we find ourselves broadly in sympathy.

Clause 2 raises the issue of academic research. All that I would say on that—this point was raised by other hon. Members—is that there is a will in the courts to move away from a proliferation of expert reports. The hon. Gentleman says that those will not necessarily be reports given in evidence; I am therefore not entirely sure what the role of additional experts will be, or, if the reports are not given in evidence, how the provenance and authority of experts’ opinions will be judged. I agree with the point made by, I think, the hon. Member for North East Cambridgeshire (Stephen Barclay), who said that we would be better employed in ensuring that a single expert gave good advice than in looking to second-guess or challenge that advice in a variety of perhaps only semi-formal ways.

[John Hemming]

Will the hon. Gentleman say how we can ensure that an expert is giving good advice without having peer review at some stage?

[Mr Slaughter]

That is a problem that the courts have to tackle in not just family proceedings but in all types of proceedings. One has to look at the qualifications, experience, expertise and record of experts who come before the courts. In my time in practice, there was a strong trend away from everybody coming along with their own expert—as soon as there are two experts, there are three opinions, if not four or five—and towards trying to focus on a single expert, either agreed by both sides or independent, depending on the nature of proceedings, on whom the court would rely. Moving away from that trend would produce a lot of additional costs and confusion.

The principle behind clause 3 is that for children in care, particularly when it comes to hearing their voices and their serious complaints—this, of course, is a matter of contemporary public concern—there must be an independent voice. The issue really is whether the independent reviewing officers are sufficient. That was considered back in 1989 when the Children Act was introduced. The hon. Member for Birmingham, Yardley doubts that they are sufficient. I note that the opinion of the family justice review is that, provided that independent reviewing officers are sufficiently independent, it is appropriate that they should be employed by the local authority. There is a danger of setting up entirely new parallel processes, public bodies and authorities, and quangos to oversee them. Given his criticism of many of the existing quangos and satellite bodies surrounding the courts, I urge caution in setting up additional ones.

On clause 4, the hon. Gentleman is absolutely right to say that good practice should be that where adoption without consent occurs, clear reasons are given. It is important that when traumatic decisions of that kind are taken, they are fully explained. The Court of Appeal has stressed that that should be done. Putting requirements on the courts to do the same thing in all cases, and fettering and removing judicial discretion, is a habit that the House gets into too often.

To sum up my view on part 1 of the Bill, it is spot-on in identifying issues, but it may, perhaps intentionally, be looking to apply slightly over-prescriptive remedies to achieve the hon. Gentleman’s aims. The hon. Gentleman will find me more sympathetic on part 2, where many of his proposals are sensible and identify matters long overdue for consideration. In clause 7 there is no definition of “wrongdoing”, which may be an omission. I am sure he will say that that is a point for Committee, but it is a rather broad term. In the light of every current event from Hillsborough to Savile, the principle of increasing the ability to and facility for whistleblowing and the ability of responsible authority, including Members of the House, to take those matters up is right.

On the subject of scandalising the court, the hon. Gentleman will not be surprised that in the light of what happened to my right hon. Friend the Member for Neath (Mr Hain), I think he is right about that, but I think I am right in saying that the Government have given undertakings that they will re-examine that during the passage of the Crime and Courts Bill through the House of Lords.

As I said, the hon. Gentleman does not go quite far enough in what he says about costs and judicial review. I am sympathetic to what he says in relation to clauses 9 and 11. Lawyers have a habit of relating anecdotes about their own practice, which is often not broad enough to be able to draw general conclusions from, but I dealt with many cases involving the Official Solicitor and the issue of capacity, and often came to the same conclusion as the hon. Gentleman—that there is insufficient scrutiny of those bodies. It is taken for granted that when a decision is made that the Official Solicitor should be involved or the matter of capacity needs to be dealt with, one moves on and deals with the situation as it is, without sometimes questioning whether those decisions have been properly made or whether those bodies are conducting themselves as well as they could.

I have sympathy also with what the hon. Gentleman says about obtaining transcripts, but his solution is not the correct one. The idea of people going into proceedings with their own recording devices, producing their own transcripts, no doubt in good faith, and those having to be subject to the same rules of confidentiality and presumably to the rules of reporting, is not practical. However, he presents a problem that needs to be looked at—the cost, the ease and the speed of obtaining transcripts of proceedings.

On part 3, I shall be brief. Unlike the prisons Minister, I am not an expert on passive flue gas technology, so I shall just make one or two general comments. The only time today that we got into a bit of party ruckus was on fuel poverty. For the record, it was an issue that the Labour Government took extremely seriously from the time that they introduced winter fuel payments onwards, and on which a great deal was done. I agree with the hon. Member for Birmingham, Yardley and I disagree with what the hon. Member for Bracknell (Dr Lee) said. Fuel poverty is still a serious problem and it should not be a serious problem in the 21st century. Energy pricing and the role of energy companies are matters on which the Leader of the Opposition has taken the lead.

The Prime Minister may have been panicked into a response when he said that everybody was going to be on the lowest tariff, but I hope that when he refines his ideas, we will see some positive movement towards ending profiteering by the cartel of energy companies, and ensuring that, in particular, those on low incomes and those who are vulnerable by reason of age or disability have the funds to heat their properties and that those properties are as weather-tight as possible. In that broad sense, I welcome the fact that he managed somehow to slide those issues into the Bill.

Before concluding my remarks, I want to mention one or two of the other contributions we heard, because they were all interesting. My hon. Friend the Member for Heywood and Middleton (Jim Dobbin) used his local knowledge and his expertise to talk about the terrible events in Rochdale, which perhaps were the most serious child welfare cases that have occurred recently.

Many hon. Members spoke from experience about cases in their constituencies. The hon. Member for North East Cambridgeshire and several others mentioned the important role of grandparents, which I think we all agree on, although I certainly agree with the comments about the paramountcy of the welfare of the child and the need to avoid the proliferation of experts.

The hon. Member for Birmingham, Yardley had more than ample support from his friend and neighbour the hon. Member for Solihull (Lorely Burt) on most parts of the Bill, but did not perhaps enjoy the same level of support from the hon. Member for Bracknell, who treated us to an interesting televisual spectacle. I do not think that he was entirely frank with the House when he said the he had watched only one episode of “The Waltons” during a spare hour, because he went on to mention several other episodes and showed a rather prurient and extensive knowledge of the series, which I was a little worried about. However, it seems the only other programme he watches is “Jeremy Kyle”, so perhaps he should stick with “The Waltons”. Madam Deputy Speaker pulled him up at that point—when he started to wax lyrical about how we should ban benefits and unban handguns, it was felt that he was straying somewhat from the themes of the debate.

I am afraid that I do not recognise the pattern the hon. Member for Bracknell described of people on benefits living in luxury and poverty no longer existing in the way it had years ago, and I do not think other hon. Members, including those on the Conservative Benches, do either. If we have made significant improvements in relation to fuel poverty, it is thanks to previous Governments, including the previous Labour Government, and the consensus that existed in this country about the safety net and the welfare state.

However, it is incontrovertibly true that more needs to be done, and I am sure that the hon. Member for Birmingham, Yardley would agree, drawing on the experience from his own constituency, that it is shameful to see families relying on food banks and, as I encountered in the past couple of days, having to pawn their possessions and sell their furniture simply to make ends meet. In particular, it is shameful that, because of the extraordinary rises in energy prices, elderly people still have to decide which of the basic things in life, including warmth, they are able to provide themselves with over the winter. For that reason, I am pleased that he mentioned fuel poverty along with the many justice and family law issues he raised today.

The hon. Member for Bournemouth East (Mr Ellwood) treated us to an account of his appearances on Radio Solent and the collectivist ideal of penguins. We were getting close to the time the Government had set for the debate to end, if I may put it that way—we always know when we are getting to the thin end of a debate. We of course then had still to hear from myself and the Minister. I will therefore take the hint and hand over to the Minister. I look forward to his comments with enthusiasm and to hearing which parts of the Bill the Government will take through because, whether or not they wish the Bill to proceed to Committee, I am sure that there are ideas and principles in it that should find their way on to the statute book. Whatever the Bill’s short-term future, the hon. Member for Birmingham, Yardley has raised a number of serious and important points.

--- Later in debate ---

[John Hemming]

I have not been given confidence by what the Minister has said. I do not wish to withdraw the Bill, although I do not intend to put up tellers so that the later debate has more time. As far as I am concerned, the Government are being dangerously complacent about issues such as cover-ups, and my personal support for the Government will rest on a change of attitude by them to take such matters more seriously. I accept that there are other legislative vehicles to achieve these changes, but we need action now. I do not withdraw the Bill.

Question put, That the Bill be now read a Second time.

A Division was called, but no Members being appointed Tellers for the Ayes, the Deputy Speaker declared that the Noes had it.

Question accordingly negatived.

Family Courts

John Hemming Excerpts

Thursday 24th May 2012 Westminster Hall

[John Hemming (Birmingham, Yardley) (LD)]

I was pleased to hear my right hon. Friend’s speech, and to read his Committee’s report, but there are areas where we are still getting things badly wrong, and perhaps the direction of Government policy is making things worse rather than better. I declare an interest. I am involved in Justice for Families, which looks at public family law in the English and Welsh jurisdiction, although people from outside that jurisdiction also contact us. Parents are involved, not surprisingly, but we are also contacted by teenagers who are trapped in the care system and want to escape, but cannot find a way of doing so.

Recently, I worked with a number of care leavers to form an organisation called Care Leavers Voice. People tend to think of care leavers as those in their teens or 20s, but I am talking about professional people in their 40s and 50s. Having perhaps the best perspective of what it is like to be a child in care, and having gone on to have a professional career and the confidence to speak out, they feel that their voice is not being heard. The family justice review was dreadful because it consisted only of people who operated the system; no one on the panel represented the people who went through the system.

I hope that my right hon. Friend does not mind me being mildly critical. Although his Committee’s report is more balanced than the family justice review, it is not as balanced as the report of the Select Committee on Education, which took evidence from a much wider range of people on the operation of the child protection system. Whichever way we look at the matter, it is necessary to listen to both sides—not just those who earn money from operating the system, but those who go through the system and have personal experience. A great difficulty with a secret system is that there may be a bit of data about what is going on, but unless people are like me and have seen lots of individual cases, they do not know precisely what is going on.

I am also associated with the Grandparents’ Association, which is very good, and has said that grandparents find the system traumatic. I deal with grandparents who operate the system. If a grandparent wants to express their voice directly to the judge in a case, that is a challenge. They can apply to be a party, but if they want to use a lawyer to do so, they do not receive non-means-tested legal aid, and probably do not receive legal aid at all. It costs £5,000 to £10,000 just to try to be a party. My organisation and my contacts help people to be litigants in person so that the grandparent can go to court and talk to the judge. Grandparents will give evidence about what is going on to whoever is interested in listening to them, but if they are unable to speak directly to the forum where a decision is being made, they are excluded. Great-grandparents such as Phil Thompson are irate about how they and their families have been treated, but the system does not listen to them, because they are excluded from evidence sessions, and panels such as the family justice review take no account of them.

A group of adoptive parents who have encountered difficulties with the unresponsiveness of the system are working with Justice for Families. They have a slightly different problem, which has been reported recently in the Sunday Express by Ted Jerry, who is a very good journalist and specialises in this area. We must listen to the people who go through the system, as well as to those who earn money to operate it. As I said, the Select Committee report is more balanced than the family justice review, which might as well not have been started.

The integrity and scrutiny—and secrecy—of the system are a key part of the matter. One assessment is that about 1,000 children are adopted each year who should not be adopted. For example, a woman had 10 children taken away from her in one area, but had a child in another area, and when she was sent home a social worker’s assessment was that there was no risk whatever. She is doing quite well with that child, but why was the state spending £250,000 per child on having them adopted in one local authority area, when she went home with a child in another local authority area. Other than the local authority being responsible for the decision making, is the system sufficiently robust when something substantially different occurs? Is there any quality control on decision making? Clearly, there is not.

Although the Family Proceedings (Amendment)(No. 2) Rules 2009 were generally good, the part relating to journalists with a National Union of Journalists card in the court was futile because they were not allowed to report anything. Further, the reversal in 2010 of Clayton v. Clayton was completely garbled and a mistake. However, that does not mean there is no merit in greater public scrutiny, which is important in two areas. First, academic scrutiny is key. We have had only one report so far, by Professor Jane Ireland, who found that about two thirds of the psychologists’ reports that she encountered were rubbish: if the judge had relied on them, the decision would have been unreliable and should have been challenged through the appellant system. We have only one report because they must be authorised, but there is no reason why academic researchers should not have de facto, anonymous access to expert evidence in the family courts.

I was lucky to be drawn sixth in the private Member’s Bills ballot, and one proposal in my Bill will be to allow academic access to secret proceedings, so that in both the family courts and the Court of Protection, which is really a family court, expert evidence can be challenged. The Daubert procedure in the US is used to appeal expert opinion to experts, and that is a good process. Professor Ireland, with other professors, has recommended that for the UK. It would be one way of starting to get some quality into the decision making based on expert opinion, but we are some distance away from that.

A good example, published recently in the Daily Mail, is Lucy Allan. The same psychologist produced two reports on her. One, without seeing her, was for the local authority; in another, having seen her, she said completely contradictory things about the same person. In one she said, without seeing her, that the mother was a great danger to her child; in the other, she said that the mother was perfectly okay—that was because she was being paid to say that. Information from that psychologist was used to make a life-changing decision, and that is an absolute scandal.

Academic access to expert reports should not be subject to a complex and expensive approval process. It should happen almost de facto. Our care system does not do well, and other countries’ care systems do far better. Our system does not do well because of lack of accountability—not just public accountability, but academic accountability.

There is also merit in allowing retrospective review of the proceedings of family court cases. In one case, a mother was deemed to be a bad mother because she fed her baby on demand, instead of in a routine, so the baby was adopted. We should be able to talk about that. It is absurd that psychologists can reach conclusions about people and their merits as parents without even seeing them. I see a hell of a lot of such cases, and they are not acceptable. Such things need to be considered publicly, which fits with the evidence provided in the family court report. This is not about identifying people; it is about knowing what is going on and what is being done in our name. If we believe in parliamentary sovereignty we must know what is going on, even if we do not know precisely to whom it happened. That is important.

There is a rule in Parliament that a Member cannot criticise a named judge without having tabled a motion in their name. There is, however, no rule to say that one cannot praise a named judge, so I wish to praise Nicholas Mostyn and recommend that people read the published judgment of A County Council v. M and F [2011] EWHC 1804 (Fam). We do not know who M and F are or which is the county council, but under the circumstances, we do not need to know. By looking at that case, however, we see the challenges faced by the judges when dealing with expert evidence, particularly when that evidence is contradictory. The case I have mentioned shows an excellent judgment that all judges should read and consider because it goes into some really difficult issues.

I know of eight cases involving the issue of expert evidence and vitamin D, and I am working with the excellent solicitors Brendan Fleming in Birmingham to look at those. Again, the issue is scrutiny of expert evidence. In the Wray case in London, Jayden Wray sadly died from a mixture of shaken baby syndrome—SBS—and metaphyseal fractures as a consequence of vitamin D deficiency. In that case, it was proven that the triad of symptoms occurred not under the care of the parents but at a later stage, and that is critical. There have been many SBS cases, including that of Keran Henderson, which was a criminal case and is reasonably well known as it attracted quite a bit of publicity. It is an interesting area, but because these things have gone on in secret, we do not know about them. Recently, I have put pressure on the Government to review those cases that involve vitamin D deficiency. They have avoided the question, but we will see where it goes in the future.

I encounter quite a bit of private law because public law and private law can interrupt each other. My hon. Friend the Member for Mid Dorset and North Poole (Annette Brooke) spoke for the Liberal Democrats on this issue some time ago, and we are pleased to see her back in Parliament. She proposed that before anyone goes to court, the default position should be that if parents split up they do not have to go to court to establish a court order for residency. Delay is one of the difficulties—that is where the report is entirely right—and causes a problem. If we start with a default position that places a duty on both parents to keep in contact with the child—except in really exceptional circumstances, which do occur from time to time—we would be in a much better situation than we are at the moment where people first have to apply for a court order.

One difficulty of mediation is that if people can get a better deal by waiting for the adversarial approach, why would they bother with the mediation and take it seriously? There must be something for parents to agree on during mediation, and the recent work on encouraging mediation by the Child Maintenance and Enforcement Commission was important. It is a mistake always to separate issues of finance and of the child in question. From the parents’ point of view, those things are not separate and indeed are associated. Often, the mother gets residency of the children and the father goes into a mood and says, “Well, I’m not going to pay if I don’t get contact”, and people get into a massive row. If we managed to bring those things together, that would be far better.

We are trying to do something therapeutic and, particularly in public family law—although it is the same in private family law—we have the therapeutic objective of trying to do what is best for the child or children under the circumstances. That is not best handled through an adversarial family court system where everything gets piled up and there are hundreds of sheets of paper. Anyone who has seen one of those cases will know the absurd amount of paperwork involved, which often merely repeats things from other documents. That does not help.

The report referred to the family group conferencing approach, which is far better. We need to strengthen case conferences so that the procedure is not abused by the practitioners. The Webster/Hardingham case from Norfolk is well known as a miscarriage of justice, but it started out as an abuse of process and procedure in the case conference at Norfolk county council. If that abuse had been picked up at that point, three children would probably not have been wrongfully adopted. It was a case where one of the family went off to Ireland—I think it was in about 2006. The case went to the Court of Appeal, which effectively accepted the likelihood that there had been a miscarriage of justice.

We must analyse where decisions are taken. Although rubber-stamped by the courts, often decisions are taken initially in the local authority during the case conference or adoption panel, or whatever. If we can improve the decision-making process at that stage, and provide a more therapeutic environment in which one can bring the grandparents without them having to pay £5,000 or £10,000 to get along in the first instance, we can start trying to work things out. That would be far better than the current system, which is dreadfully remote.

One care leaver who is in his 40s told me that when he was a child in care, he used to try and find out who was taking the dreadful decisions that affected him. He never could find that information, however, which is one of the difficulties in the system. The people to whom things are being done have no idea how the random decisions that affect them are being made. Early intervention is great, but we need to know what and how that is done, and ensure that it achieves positive things. A lot of this is an issue of detail, which is crucial.

Let me turn to the Children and Family Court Advisory and Support Service because I have some difficulty in public law proceedings with working out the added value of the guardian ad litem. A Gillick-competent child should have a solicitor and the guardian should fall away, although in practice that does not always happen. I was pleased to see that Julia Brophy gave evidence to the Committee. If we look at her work, there is an argument for what happens in Ireland where an independent social worker report is commissioned, rather than having the entire panoply of the guardian operation. That raises a question about private family law proceedings, in which I think it would not be a bad idea to do much the same.

We have got to the stage where CAFCASS is so over-worked that we are not getting a lot of continuity. Government policy is going the wrong way in trying to reduce the use of independent social workers; perhaps we should be getting rid of CAFCASS and using independent social reports instead. Given the cost of CAFCASS, that would make the Treasury happy. One difficulty with trying to speed up a machine for miscarriages of justice—which is what the system is doing at the moment—is that although it makes it run faster, it does not get any better, and there is great difficulty with that. We should be able to get better decisions taken at case conference level, and not have to worry so much about everything being done on paper.

Judicial continuity is an interesting question. Someone told me recently about one person involved in a vitamin D miscarriage of justice who was warned by her barrister that if she appealed to the Court of First Instance, that would upset the judge in her case and he might not look favourably on her in the future. There are questions about whether judicial continuity undermines the appellant process. If someone’s barrister says that they should not appeal a case because the judge will be upset, and they then have to go back in front of the same person, that raises an issue. In fact an application was put to the European Court of Human Rights, about whether that prejudges a situation. Again, a difficulty is that we are trying to do therapeutic work, where continuity is crucial, in a legalistic environment in which an attempt is being made to work out whether what is being done is within what has historically been called the margin of appreciation—or, these days, the procedural protections of the European Court of Human Rights. The idea of the margin of appreciation seems to be coming back to a certain extent. As to what the courts should be trying to work out, my ideal solution would be akin to the Swedish one, which is driven by a case-conference-type mechanism—very much a therapeutic environment—which is subject to judicial review, rather than bunging a case in front of the magistrates, who generally just rubber-stamp what the local authority says.

The point about rubber-stamping is important. There are statistics on the outcomes of cases, and they almost always go the local authority’s way. We can take it two ways: we can say, “Well, actually, social workers and care professionals are so much better than the Crown Prosecution Service in their judgments that it is not surprising that things almost always go the way of the local authority.” When the CPS thinks that there is evidence in criminal proceedings to support a verdict beyond reasonable doubt, perhaps half the verdicts in contested cases will be guilty, and half not guilty. In care proceedings there are different outcomes; a care order is sometimes given, or no order may be given, but the local authority’s thesis is rejected in only about 0.27% of cases, on, I think, the 2007 figures. That is a bit of an exaggeration, because other things can happen. The local authority can withdraw the application, as happens in many cases. If the local authority thinks things are going badly, it might withdraw.

We need, also, to consider section 38 of the Children Act 1989. It does not require evidence so much as reasonable grounds to believe that a child may be at risk; given that once an interim care order is given, a final care order is very likely, is that threshold acceptable? Should it not be changed to require an evidence test at some earlier stage? As to delay and its effect on children, the point is what happens if we have a system which, for all that it matters, is much cheaper and much the same in outcomes as rubber-stamping what the local authority wants, which is what happens most of the time. That has an effect on the child. If, say, a newborn baby is taken from the mother and put into foster care, that has a real impact. The work of Professor Michael Rutter is crucial in that area. He looked on the period between six and 18 months as the golden period for a baby. A large proportion of babies taken into care are taken into care well before then. If they get reactive attachment disorder, as many of them do, it is not caused by bad parenting initially but by what the state does—simply on the basis of the timing.

There is a long way to go. I congratulate the Committee on obtaining some representations from people affected by the system, but for this debate I would emphasise that in future, the Government and Select Committees—and I congratulate the Select Committee on Education—should, please, listen to the people to whom things are done, and not just those who earn money doing things to people.

--- Later in debate ---

[The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly)]

There have been relatively few speakers this afternoon, but the speeches have been of a very high quality. I congratulate the Justice Committee and my right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith) on securing the debate. I am grateful to all right hon. and hon. Members for their valuable contributions. The Government recognise that it is simply unacceptable that some children wait more than a year for a decision to be made about their future and that some parents can use the court process to inflame further conflict with their former partners. The hon. Member for Hammersmith (Mr Slaughter) referred, rightly, to the terrifying consequences that can arise. That is why our programme of reform, underpinned by the findings of the Justice Committee’s report and the family justice review, is so important.

I shall deal first with the points made by my hon. Friend the Member for Birmingham, Yardley (John Hemming). He made a significant contribution on a topic in which he has consistently shown significant interest. To take up his concern about the FJR’s legitimacy, I can tell him that it did have cross-party support, having been initiated by the previous Government and continued by the current Government. David Norgrove consulted very widely here and in other jurisdictions. The Grandparents’ Association, which was the example that my hon. Friend gave, submitted evidence and that was certainly considered. I simply cannot accept that the FJR was constrained in the evidence that it sought or considered.

[John Hemming]

My argument is that the panel itself did not have someone from Families Need Fathers, the Grandparents’ Association, Justice for Families or any other of the organisations that represent those people to whom things are done.

[Mr Djanogly]

My hon. Friend makes his point. He will appreciate that, on that basis, many hundreds of organisations could have been included in the body.

Two key pieces of legislation will support our proposals for system change. The children and families Bill, announced in the Queen’s speech, will help to deliver the Government’s commitment to supporting children and families by making it easier for parents to share caring responsibilities and by supporting some of the most vulnerable children, including those in care or whose parents have separated.

[John Hemming]

I thank the Minister for giving way again. Will the Government consider the proposal from my hon. Friend the Member for Mid Dorset and North Poole (Annette Brooke) of having a default position in the children and families Bill so that there is no need to go to court to establish a default position?

[Mr Djanogly]

I will come on to that.

The Crime and Courts Bill, introduced on 10 May, contains provisions that will establish a single family court. That is a direct response to a recommendation made by the family justice review. The creation of a single family court will simplify the court process and make it more accessible for families using the system. It will be more transparent and will facilitate the allocation of family law cases in the most effective and efficient way.

In the area of public law, we have already made a commitment to implement many of the review’s recommendations. Where the state intervenes to take children into care, our overriding priority must be to reduce significantly the unacceptable level of delay. That is why we intend to introduce a six-month time limit for all bar exceptional cases. I can confirm to my right hon. Friend the Member for Berwick-upon-Tweed that that is a limit, not a goal. Where cases can be completed more quickly, they should be. The time limit will be a key part of the family justice provisions in the children and families Bill.

To answer my right hon. Friend, who mentioned time limit delays, the judge will have to give reasons for the delay in open court. In that way, a picture of performance and weaknesses in particular parts of the country will become apparent and will build up over time, which will mean that action can be taken to address a particular problem in a particular area. There are a number of steps to support that.

The Justice Committee and the family justice review, and my hon. Friend the Member for Birmingham, Yardley, highlighted the need to cut the number of expert reports used in court proceedings.

[John Hemming]

rose—

[Mr Djanogly]

Will my hon. Friend let me make some headway, and then he can come back on what I say?

Such reports take up precious time. I agree that they should be used only where necessary to determine a case and the courts should ensure that such evidence is properly focused on the key questions that the court needs to be answered. We already plan to change the family procedure rules to bring that into effect. Expert evidence will of course continue to be important in some cases to ensure a fair and complete process. Where expert evidence is required, we are working to ensure that it is of high quality and delivered promptly.

To go into more detail, because of the concern shown by my hon. Friend the Member for Birmingham, Yardley, we are introducing early changes to the court rules through secondary legislation. The main elements are raising the threshold for the court to permit an expert to be instructed; requiring expert witness evidence to be necessary, rather than reasonably required; and in family proceedings concerning children, there will be a list of factors that the court must explicitly consider in deciding whether to permit an expert to be instructed. Those factors include the impact on the child of a delay and undergoing an assessment, the cost, and whether the information could or should be provided by one of the parties, such as the local authority. We will also require the court to exercise better control over the questions put to the expert and require solicitors to undertake preparatory work earlier in the process to reduce delays in the experts beginning work.

We recognise that minimum standards are necessary for expert witnesses in the family court. We are working with the Department of Health, health regulators and the Family Justice Council to establish minimum standards that judges should expect from all expert witnesses. We are exploring how and whether we can implement the family justice review recommendation that meeting minimum standards should be a requirement for public funding. We will also consult key stakeholders on proposed minimum standards, which we hope to have in place later this year.

[John Hemming]

I very much welcome the minimum standards for experts, which would be a good thing. I am not one of those who has gone around saying that there are too many experts. I have not expressed any view on how many experts there should be. I have said that independent social workers add value to cases. If we want to save money, get rid of CAFCASS.

[Mr Djanogly]

I will come on to CAFCASS in due course.

My hon. Friend said that a default residence contact position would avoid the need for court orders. The problem with that is that it is a one-size-fits-all approach; it would not focus on what the child needs. A very young child may have quite different needs from an older child, for example. If parents are in dispute about child arrangements, and the matter requires a court decision, it is right to focus on the child’s needs at that point. That is the current position and we intend to retain it.

[John Hemming]

The point is not that we should have an unchangeable default position, but that we should start from a position whereby it is the duty of both parents when they separate to maintain contact with the child. The difficulty is that the current position often creates a de facto situation; basically, residence moves with the child and the legal process takes some time to catch up, but in the meantime, in very traumatic circumstances, the relationship between the child and one of the parents has decayed. It is not that the solution is inflexible, but that we start from a minimum position that could be varied.

[Mr Djanogly]

I hear what my hon. Friend says, and I am not entirely sure that it is incompatible with what I said. I will take a further look at that.

We must improve the quality of the submissions made to courts by local authorities. In many areas, poor-quality or late submissions delay cases and lead to too great a reliance on time-consuming expert reports. We will strip out bureaucracy and duplication. On care planning, we will introduce legislation through the children and families Bill to make it explicit that the court should focus only on issues essential to its deliberations. We will also remove the bureaucratic processes connected with the renewal of interim care orders and interim supervision orders. Where a case is already before the courts, we will remove the need for an adoption panel to consider whether a child should be placed for adoption.

That work is supported by Her Majesty’s Courts and Tribunals Service, which has allocated a further 4,000 sitting days to the county court exclusively for family work, as my right hon. Friend the Member for Berwick-upon-Tweed pointed out. That is an increase of 8,000 extra county court sitting days compared with 2009-10 and a major increase in family court capacity. That somewhat disproves what the hon. Member for Hammersmith said about Government cuts. We have not been cutting the service, but have been significantly increasing the resources added to it. Her Majesty’s Courts and Tribunals Service has ring-fenced the family allocation in the magistrates courts, ensuring that days intended for families are not lost on criminal hearings.

All right hon. and hon. Members will agree that simply allocating more court days will not solve the long-term issues identified by the family justice review. All the work will be underpinned by more robust data, an issue highlighted by the Justice Committee last year, as my right hon. Friend pointed out. I agree that it is key. Without figures, we can only reform by way of anecdote based on single issues. That is not an adequate position.

With judicial support, Her Majesty’s Courts and Tribunals Service is rolling out a new management information tool. For the first time, it will track the care case process from start to finish at court level. Although it applies only to those cases entering the system from 1 April, it will provide important data about where delays are currently occurring in the system and why they have arisen. Importantly, the tool will drive changes in behaviour by allowing local areas access to their own data, so that information can be used to identify performance barriers.

[John Hemming]

That would be an excellent tool. Will the tracking system track the release of the printed judgment to the parents, who often do not receive a judgment on which they can appeal?

[Mr Djanogly]

I will come back to my hon. Friend on that point.

We wish to see a stronger, clearer role for judges in setting a timetable for family cases and ensuring that those cases are managed and completed in a timely and efficient manner. The judiciary are therefore key partners in all of this work. I have had a number of conversations with Mr Justice Ryder, the judge in charge of modernisation, about our reform plans. I am pleased to report that we are working closely with the judiciary, with full regard to their judicial independence. For example, we have already established the Family Business Authority. It brings together the family judiciary and the administration in a decision-making forum. The group takes a strategic look at the family jurisdiction and is well placed to support the modernisation of family justice.

On private law disputes, there were very few points of difference between the Government and the family justice review panel, but there was one on the issue of shared parenting. The Justice Committee has taken a close interest in that, and the Under-Secretary of State for Education, the hon. Member for East Worthing and Shoreham (Tim Loughton), and I will give evidence next month to the Committee on the Government’s position. A ministerial working group has been looking at it and has met three times. We intend to consult shortly on options for legislation.

We need to send a clear message to parents that in the absence of any welfare concerns both should be involved in their child’s upbringing. Without pre-empting the consultation, I should like to make it clear that nothing we propose will undermine the existing principle that the welfare of the child is the court’s paramount consideration. Safety will remain an important factor. In answer to points raised by my right hon. Friend the Member for Berwick-upon-Tweed and the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd), our proposed amendment to the Children Act 1989 will send a clear signal to separated parents that courts will take into account the principle that both should continue to be actively involved in their children’s lives. In doing so, it will help to dispel the perception that there is an inbuilt legal bias towards one parent. There is a real feeling among many people that that is the case, which results in a mistrust of the family justice system.

The proposed amendment will encourage more separated parents to resolve their disputes out of court and agree care arrangements that fully involve both parents. An obstructive parent seeking to frustrate contact between the child and his or her other parent should not be able to use the court system to legitimise such activity without good reason.

Litigation Friends

John Hemming Excerpts

Wednesday 21st March 2012 Westminster Hall

[John Hemming (Birmingham, Yardley) (LD)]

I thank Mr Speaker for allowing this debate.

If somebody is in an accident and ends up in a coma, they need a litigation friend to instruct a solicitor to sue for damages. A litigation friend, or next friend, is very different from a Mackenzie friend. A litigation friend makes decisions for the person who does not have capacity. If somebody is not in a coma, there is a question of what threshold is required before appointing such a litigation friend or guardian. Thomas Hammarberg, the Council of Europe’s commissioner for human rights, recently stated:

“Persons with intellectual and psycho-social disabilities are today routinely placed under a guardianship regime in several European countries—they are deprived of their ‘legal capacity’. In the eyes of the law they are seen as non-persons and their decisions have no legal relevance. This policy violates agreed human rights standards.”

He refers to the UN convention on the rights of persons with disabilities of 2006.

In England and Wales, the situation is materially worse, primarily because secrecy of the judicial system has allowed widespread malpractice to develop, as revealed last week by Professor Jane Ireland’s report on psychological expert reports. A good example of that is Rachel Pullen’s case, which is currently grinding through the Strasbourg court. Her daughter was removed and adopted, although there were no hearings at which any of the evidence was challenged, because the psychologist appointed to assess her deemed her too stupid to instruct a solicitor. That was clearly not true, as was determined by a later psychological report. However, it was too late. The psychologist said she was incapable of instructing a solicitor. The Official Solicitor came in as her litigation friend and conceded the case against her on paper and there was no hearing. At her appeal, I made two important points for which the court criticised me.

My first point was that the system allows the local authority to veto the appointment of an expert, thus making the expert financially beholden to the local authority. Professor Ireland’s report revealed that the overwhelming majority of experts in the family courts made most, if not all, their income from writing expert reports. Parents only instruct an expert once, but the local authority does so continually. That creates a complacent environment in which experts frequently write the report the local authority would wish to see—well, those experts who drive Ferraris, Porsches and Formula 1 motor cars do anyway.

My second point referred to a letter from the Official Solicitor to Rosleys solicitors. I expressed the view that the letter was created at a later stage and inserted in the file. It was obvious from the letter that whoever did that did not have access to Rosleys office, as there was no received stamp on it, no headed paper was used for its purported sending out, its address format was unusual and the date of receipt and purported posting out was impossible. The court decided that my mentioning those facts was not providing evidence and was critical of my claim. I stand by my claim, and I believe that what I have just said is indeed evidence of forgery. Real problems remain with the appointment of litigation friends. The Rosleys letter was supposed to explain to someone that the Official Solicitor had been appointed as their litigation friend, which is why the letter was so important.

Given the secrecy of the system, people are not generally aware of how the process works. Lee Gilliland, for example, was evicted without notice because he had the Official Solicitor appointed to defend his probate case. The Official Solicitor did not warn him that he was due to be evicted. The Official Solicitor was appointed on the say-so of his general practitioner, Dr Hoyte, who said:

“He has grievances and fixed ideation about many official bodies.”

I find it odd that that is relevant to his having legal capacity. In my view, the fact that someone has a grievance about an official body does not warrant their being turned into a non-person and prevented from making decisions.

The big problem for anyone for whom the Official Solicitor has been appointed is finding any way to challenge such a decision. Most firms of solicitors simply refuse to act for someone without litigation capacity. The civil procedure rules do not really allow people to challenge the appointment of a litigation friend. CPR rule 21.9 states:

“(2) Where a protected party regains or acquires capacity to conduct the proceedings, the litigation friend’s appointment continues until it is ended by court order.”

The assumption is that litigation friends cannot be wrongly appointed. In Professor Ireland’s review of 126 court bundles, she found that two thirds of the reports were “poor” or “very poor”—84 cases where, if the judge relied upon the report, really the decision should be quashed. That raises questions.

England and Wales do not have the facility for a proper review of expert evidence. We do not have the Daubert process that is used in the USA. Any solicitor appointed to act on behalf of a protected party is in danger of being subject to a conflict of interest. Let me mention the case of Anthony Neil Barker, whose website is www.neebert.net. He has written me long, detailed e-mails about how he has regained his capacity, but cannot escape from the Court of Protection. I have some difficulty understanding how that can happen, but when it involves large sums of money, it is not surprising. It is in the solicitor’s interest to keep him as a non-person, as the solicitor can then charge him for things.

[Mrs Anne Main (in the Chair)]

Order. Is the hon. Gentleman talking about a case that is no longer active in the UK courts?

[John Hemming]

In this case, there may be activity, but I am referring to things that have happened in the past. I discussed the matter previously with the Clerk, and I am being careful not to refer to any decisions that are coming before the court.

[Mrs Anne Main (in the Chair)]

I thank the hon. Gentleman.

[John Hemming]

Noreen Akhtar is a constituent of mine, whom I have been refused permission to meet. She is a secret prisoner. Experts have determined that she does not have the mental capacity to decide where she lives. I have seen the expert reports, and they look as unreliable as many of the other reports referred to.

Husan Pari has now left the country to get away from the system that made her a non-person. The psychologist who interviewed her through an interpreter said that she was a non-person. A psychologist who later interviewed her in her own language was clear that she did have mental capacity.

The Official Solicitor’s office is an unaccountable place. He has told me that he is not accountable to Parliament on the basis of individual cases. Furthermore, he is not subject to the Freedom of Information Act, or at least not within this area, but he is subject to it in other areas of his activity. Instead, the Official Solicitor is accountable to individual secret court hearings. That really is not good enough. There must be some accountability beyond a few people in suits who have a common interest in concealing malpractice. Hon. Members need to read Professor Ireland’s report to find out about that.

An interesting additional function of the Official Solicitor is to deal with people imprisoned for contempt of court. Deborah Paul is currently serving a one-year sentence in Holloway prison for contempt of court, as part of a private family law case that has turned public. The civil procedure rules strictly forbid people being imprisoned in secret. However, it was revealed in Hammerton v. Hammerton that people are imprisoned with reporting restrictions. I wonder who is protecting Deborah Paul’s rights. When I wrote to the Official Solicitor about his duty to protect the interests of contemnors, he gave me no confidence that he was doing anything. The recent striking off of Dr Ruth Coppard and the attempt by Dr George Hibbert to remove himself from the General Medical Council practising register should really ring alarm bells.

Our family legal system is founded on expert opinion. However, these foundations appear to be more like quicksand. The secrecy in family court hearings has allowed a culture of complacency to develop. Although procedures such as a modified Daubert procedure would enable improvements, secrecy creates a culture that tolerates malpractice. Secrecy in family court hearings has led to broader unaccountability in the appointment of litigation friends and their management of decision making.

I was quite surprised when Professor Ireland’s excellent report on the quality of psychological expert opinion was produced, not because I did not know that this was happening, but because the report was part-funded by the Family Justice Council. However, I was not surprised that, although the report was ready for release in September 2011, it was released six months later. There are people who would like to sweep the contents of the report under the carpet.

I will not quote a lot from the report. Anyone who is really interested in justice in our secret courts should simply read it.

Professor Ireland and Professor John Beaumont, who is from the same university, have produced proposals for a modified Daubert procedure, but that is only a partial solution. Secret courts are unreliable courts. What is needed is less secrecy. Anonymous reports by parties to proceedings should not be subject to any constraints. There must be a facility, potentially via the Information Commissioner, to produce fully public reports.

Justice is important, and it is clear that the system is very unreliable. It is also clear that Parliament needs to resuscitate its powers of investigating individual cases. It is too easy for authorities to refuse to provide information. In the Goder case, where a litigation friend was appointed and the daughter, Yvonne Goder, was imprisoned, probably in secret, there is an allegation that the money from three houses was stolen. Even taking the issue through to the legal ombudsman has not identified what happened to the money. Tracking payments is quite easy and accounts can be provided. However, if a case gets to the legal ombudsman without accounts, I am worried about whether the regulatory system is working properly.

The question always is, quis custodiet ipsos custodes? In this case, who is regulating the regulators? The answer has to be Parliament. Parliament needs to establish a small inquiries committee to find answers where none are forthcoming. Where litigation friends are appointed in secret hearings based upon expert evidence that is known to be systemically unreliable in three courts and about which there is no other systemic research, it is very difficult to find out what is happening in a very murky system. We know that large sums of money are being paid, but we are unsure what for and whether that is in the interests of those people for whom the money is held.

There is always a question about who is appointed as a litigation friend. The Official Solicitor is supposed to be a last resort, but seems to me to be the first choice in many instances. I tried to use judicial review through a limited company to find out what was happening with one secret prisoner—Matthew Hawkesworth—but got nowhere, and the court decided to punish me for the effrontery of challenging the system by awarding costs against me personally, as well as against the limited company. That is one reason why judicial review is an insufficient remedy for a quite significant, wide-ranging problem.

Some solutions to the problem therefore rest with Parliament, rather than with the Government, but they do need to review the situation. I have always spoken about how our judicial system is not compliant with the European Union standards as applied to Croatia, and I will not repeat that in my speech. The Government must take such things seriously.

I have rattled through my speech reasonably quickly. The Minister is well aware of my concerns, because I have been concerned about this matter for a long time. One great difficulty in respect of how our constitution operates is that we have developed an approach whereby Parliament is regarded primarily as a body holding the Executive to account, but the courts—the judicial estate of the constitution—are held to account also through public consideration of their decision making, which then influences Parliament. Parliament then makes decisions and guides what happens if any rules need to be changed, and they clearly need to be changed in a number of situations.

One of the reasons why I have ended up helping to get rid of the Official Solicitor, as people might put it, or to remove their litigation friend is that it is almost impossible to find a way of doing so. People who are often quite bright go around phoning up firms of solicitors and saying, “Oh, the Official Solicitor is acting for me,” and the firms reply, “Well, we can’t deal with you.” Even then, there is still the matter of legal aid.

I tend to get involved because people must be aware of my concerns about how the litigation friend system operates and come to me. I have talked to other hon. Members who have encountered difficult situations as well, but people often get excited about the being made into a non-person thing. I do not blame them for that, but they get quite angry, and when they present themselves to other hon. Members, they do so in quite an angry state, yet that is in part because the system is simply not responding to them. As described by Thomas Hammarberg, they are treated as non-persons and their decisions have no legal force.

I have spent some time studying the historical records of Parliament, which are interesting and available in the Library. What Parliament used to do more readily, because people came with casework or whatever, was to establish small committees of inquiry into issues that might have developed because they got stuck and could go no further. Parliament needs to have a willingness to establish a committee of inquiry just to find out the facts. The House of Commons may be a court, but, constitutionally, it would be wrong to revert to taking decisions that have legal force on individual cases. What about investigation, however, and that question of who is regulating the regulators? How do we manage the process when a regulatory system goes wrong? In a limited number of cases—we would not want to overwhelm ourselves with work—Parliament has the power to find out what is going on.

To take the case of the three houses, there is clear evidence of some sort of fraud, and finding out what fraud has occurred is critical. One difficulty, as in the recent Asian royal family case, is that sometimes the regulators or the police will steer clear of an issue. Interestingly, in that case, which relates to the funding of al-Qaeda, the Australian police are willing to investigate, whereas I am told that the UK police are not. I do not have that in writing, but I shall pursue it with the Government if I do so.

I leave the Minister a reasonable amount of time to respond. Some serious issues are going on and have been for some time. With Professor Ireland’s report and the recent regulatory action in respect of Dr Ruth Coppard and Dr George Hibbert, it is becoming more obvious that the problem is serious. I am interested in what the Government have to say.

[The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly)]

I congratulate my hon. Friend the Member for Birmingham, Yardley (John Hemming) on securing this Adjournment debate today on a subject in which I know he has significant experience and interest. He mentioned a number of live cases, which he must appreciate I am restricted in discussing, but he also discussed a wide variety of interrelated and serious topics, which I shall do my best to address.

I acknowledge that the family courts and the Court of Protection deal with some of the most difficult questions affecting the lives of individuals and families, their rights and capacity to make decisions about their own future, as well as decisions about who is best able to take care of children and to provide them with a loving and caring home environment. The courts take such matters seriously, and rightly so. They are sensitive and personal matters and there is a difficult balance to be struck between respect for an individual’s privacy, in particular that of children and other vulnerable people, and promoting openness to support public confidence in the court system.

On litigation friends or guardianship, my hon. Friend has written to me on several occasions regarding the effectiveness of the Mental Capacity Act 2005—he has doubts about the effectiveness of the Act and how it is used. The Act is, however, widely supported by stakeholders for the empowerment it gives to individuals. He referred to an article by the Council of Europe Commissioner for Human Rights—I thank him for sending it to me before the debate—on persons with intellectual and psycho-social disabilities under guardianship being deprived of their legal capacity in several European countries. In the article, the commissioner calls on European Governments to review their legislation on legal capacity and urges recognition that supported decision-making alternatives should be developed for those who want assistance in making choices or communicating them to others.

As my hon. Friend is aware, the Mental Capacity Act provides a statutory framework to empower and protect people aged 16 and over who lack or might lack capacity to make certain decisions for themselves because of illness, a learning disability or mental health problems. Implemented in October 2007, the Act encompasses five main principles. First, there is a presumption of capacity—that all adults have the right to make their own decisions and must be assumed to have capacity to do so unless it is proved otherwise, and that capacity is presumed to be ongoing until there is evidence to the contrary. Secondly, it sets out the right of individuals to be supported to make their own decisions—that all reasonable help and support should be provided to help individuals to make their own decisions and, if necessary, to communicate those decisions, before it can be assumed that they have lost capacity. Thirdly, the Act provides that it should not be assumed that people lack capacity simply because their decisions might seem unwise or eccentric. Fourthly, if people lack capacity, anything done on their behalf must be done in their best interests, and the Act provides a checklist of factors that all decision makers must work though when deciding what is in the best interests of the incapacitated person. Finally, if people lack capacity, before a decision is made on their behalf, all alternatives must be considered and the option chosen should be the least restrictive of their basic rights and freedoms.

The Act is intended to assist and support people who might lack capacity and to discourage anyone who is involved in caring for someone who lacks capacity from being overly restrictive or controlling. It also aims to balance individuals’ right to make decisions for themselves with their right to be protected from harm if they lack capacity to make decisions to protect themselves. The Act covers a wide range of decisions made or actions taken on behalf of people who might lack capacity to make specific decisions for themselves. Those decisions can be about day-to-day matters such as what to wear or what to buy when doing the weekly shopping, or about major life-changing events such as whether the person should move into a care home or undergo a major surgical operation. Certain decisions, specified in the Act, can never be made on behalf of a person who lacks capacity to make those specific decisions, either because they are so personal to the individual concerned, or because they are governed by other legislation. Such decisions concern family relationships, such as consenting to marriage or a civil partnership, consenting to have sexual relations, treatment under the Mental Heath Act or decisions on voting in an election or referendum.

The capacity to litigate is based on a common law test of capacity set down by the courts. My hon. Friend is aware of the Masterman-Lister case which makes it clear that the presumption is that all adults are competent to manage their property and affairs; it is for the person alleging incapacity to displace that presumption and to prove incapacity, not for an adult to prove his own capacity; and it is a fundamental right of a person to conduct proceedings. That presumption is not removed lightly. The assessment of litigation capacity is a matter for the court in the individual case to decide and—this is important—not for an expert giving evidence on capacity. I confirm to my hon. Friend that the legislation in force in England and Wales supports individuals to make their own decisions, as called for in the commissioner’s article.

My hon. Friend also questioned how litigation friends are appointed. The appointment of a litigation friend is governed by procedural court rules. The duty of a litigation friend is set out in rules and associated practice directions. The courts would not wish people to be deprived of their autonomy or prevented from conducting their own proceedings in the absence of cogent evidence that they lack the mental capacity to do so.

[John Hemming]

My intervention might be reasonably long, to deal with some of the Minister’s points. I accept that the Government do not comment on individual cases at all, not only on individual live cases. I accept the Minister’s argument that to some extent the Mental Capacity Act is compliant with the UN convention of 2006 and that movement has been in the right direction, if not as far as one might hope. My argument is that the system itself has no real accountability or any proper checks and balances. The court makes the decision, but it is based on opinion from a social worker or expert, and there is no real opportunity to check that process.

[Mr Djanogly]

I have addressed the position of the courts, which are independent of the Government. I will come to the question of experts later.

My hon. Friend also queried the role of the Official Solicitor as a litigation friend. The Official Solicitor is an independent office holder of the senior courts whose duties include acting as a last-resort litigation friend to those who lack the capacity to conduct their own litigation. He is not accountable to Ministers or to the Ministry of Justice for his decisions in individual cases, nor are Ministers or the Ministry responsible for those decisions. The Official Solicitor will conduct the litigation on behalf of the person for whom he is acting as litigation friend fairly, competently and in their best interests.

[John Hemming]

I asked the Minister a question about the Official Solicitor, who I accept is supposed to be the litigation friend of last resort. My point is that he is often the litigation friend of first resort. The most important question is: how do we know that the Official Solicitor is doing his job properly?

[Mr Djanogly]

That question could be asked of any lawyer who has a relationship with his client.

[John Hemming]

The Official Solicitor may be legally qualified, but his role is not that of a lawyer: his role is to make decisions and to instruct lawyers. Normally, the Official Solicitor instructs another firm to act. The question is: how do we know that the Official Solicitor is doing his job properly?

[Mr Djanogly]

The Official Solicitor is an independent appointment, and my hon. Friend could ask the same question about a judge, for example. How do we know that a judge is doing his job properly?

[John Hemming]

It obviously comes back to the question of secrecy and monitoring of the legal system. If there is transparency, one can have some comfort that people are doing their job properly. I see many examples of people apparently not doing their job properly.

[Mr Djanogly]

I will come back to my hon. Friend in more detail, but I have to get through quite lot of his other points in the remaining three minutes—

[John Hemming]

The Minister has more than three minutes; he has nine minutes.

[Mr Djanogly]

Five minutes perhaps.

I turn now to the family justice review and expert witnesses in the family courts. In their recent response to that review, the Government set out plans to implement a comprehensive programme of reform of the family justice system. We are grateful for the impressive work undertaken by David Norgrove and his fellow panel members in diagnosing the problems of the current system and setting out clear recommendations to remedy them.

The review was clear about the need to create a more coherent system, characterised by trust and co-ordination between the different courts and agencies involved. As the first step towards that, we are establishing a Family Justice Board to provide greater leadership and co-ordination across delivery agencies nationally and locally, and to prepare the system for the changes to come. In private law, we are determined to put in place a framework that will support separating couples to resolve their disputes more reasonably and more quickly. Whenever possible, there should not be a need to resort to litigation in court.

In public law, when the state intervenes to take children into care, our overriding priority is significantly to reduce the current unacceptable levels of delay. The average care case now takes 55 weeks, and many take much longer. That means months of uncertainty for a child trapped in a difficult situation. That must not continue. We intend to legislate as soon as parliamentary time allows for a six-month time limit on care and supervision proceedings. That will send a powerful message that the current level of delay is unacceptable.

We appreciate that the six-month limit will not be achieved without fundamental changes to the way the system works. One aspect of the reform is to the way in which expert witness evidence is used in the family courts. The evidence suggests that in public law family proceedings, expert witness evidence is used in about 90% of cases, and on average, nearly four reports per case are requested. That high number of reports may well reflect an understandable desire for certainty and for as thorough a process as possible to be gone through before life-changing decisions are made. As the family justice review acknowledged, expert witness evidence can often be necessary to ensure a fair and complete court process—for example, to establish whether a child has been harmed by accident or not. Nevertheless, we agree that too many reports are commissioned that add little value to the court’s understanding of the issues and add further delays to the process. We have already announced our intention to legislate to ensure that reports are commissioned only when they are necessary to resolve the case.

In family proceedings involving children, the court must decide whether to permit an expert witness to be instructed, or to allow expert witness evidence to be used in court. Expert witnesses have an overriding duty to the court that takes precedence over any obligation to the party or parties who have instructed them. They are under a duty to assist the court with objective and independent advice and to provide advice that conforms to the best practice of their profession. My hon. Friend mentioned recent research and cases reported in the press showing that there is a problem with expert witnesses in the family courts.

My hon. Friend referred to practice in the United States, and I would be interested to see data on the systems used there, but we do not agree that a review is necessary. The family justice review has already conducted a thorough analysis of the problems in the family justice system, and the Government have made a commitment to significant reform. We will consider carefully the findings of the recent research on psychological expert witness reports. We accept the need for reform of the use of experts in family proceedings and for more research following the study.

[John Hemming]

I do not think that the family justice review managed to identify the real problems in the system. It was flawed from the start inasmuch as the panel members were generally people who worked within the system, instead of people who have had experience of it and are critical of it. I do not agree with the Government’s conclusions or those of the family justice review.

[Mr Djanogly]

I hear what my hon. Friend says, but the family justice review has been well received widely and across all sections and stakeholders, and that is the basis on which the Government are proceeding.

My hon. Friend mentioned Professor Jane Ireland’s recently published research on psychological expert witness reports used in family public law proceedings, and I agree that it is a useful contribution to our understanding. As Professor Ireland points out in her report, it is the first study of its kind and is based on only a small sample of family cases. While it is indicative of weaknesses in the practices of some psychologist expert witnesses, it is not possible to determine from this preliminary study whether the findings are representative. Nevertheless, the Government accept that there is a need for further research in this area, including on the quality of expert witness reports, to further our understanding of the issues identified by Professor Ireland and the family justice review.

We also agree that there is a need to improve the quality of expert reports. We intend to work with the relevant bodies, including the Legal Services Commission, expert witnesses, health sector bodies and local authorities, to develop quality standards. Others in the system also have a role to play: they include legal sector professional bodies providing support and guidance to lawyers who are responsible for commissioning expert witnesses; those responsible for maintaining ethical and quality standards within the medical profession: and expert witness representative bodies. Each has an important contribution to make to ensure that expert witnesses undertaking this vital work for the courts have the right training, skills and knowledge.

My hon. Friend discussed openness in family courts, and there are often calls for greater openness. It is of course vital that the family justice system commands public confidence and that justice is not only done, but is seen to be done. At the same time, there is a clear need to balance the desire to be more open with ensuring that the privacy of vulnerable children and families involved in these cases is protected.

[John Hemming]

Does the Minister accept that there are people like me who perceive that justice is often not done?

[Mr Djanogly]

I cannot argue against my hon. Friend’s position. He goes to courts and sees cases, and he takes a view. It is not an easy balance to strike. The debate on this issue has been long running and is controversial. It has been subject to two public consultations, but little consensus of opinion has resulted. The Government have accepted the concerns expressed by the Select Committee on Justice in its inquiry into the operation of the family courts and agreed that we should not commence the provisions in part 2 of the Children, Schools and Families Act 2010. We are still looking at ways in which the family courts can release more information. In doing this, we will take into account the findings from the final report into the family courts information pilot, which was published in September 2011.

I emphasise that the Government firmly support the right of every adult to make their own decisions about their future whenever possible, and to be assisted to make those decisions if necessary. We also support the need for greater transparency in the operation of the courts. We accept that the current position in the family courts is unsatisfactory and we are considering ways in which more information can be released. We are committed to radical reform of the family justice system to help to improve the lives of thousands of children and families.

JUSTICE

John Hemming Excerpts

Tuesday 24th May 2011 Commons Chamber

John Hemming (Birmingham, Yardley) (LD)

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Thank you, Mr Deputy Speaker.

Hon. Members will be aware that I have a long-time concern about secrecy in court processes, which was highlighted in the story in The Guardian today. We have no true freedom of speech when people can be jailed for complaining about their problems. This country seems to have a penchant for covering up problems that would be discussed openly in others.

Florence Bellone, a Belgian journalist, recorded an interview with Carol Hughes and Lucille O’Regan in Ireland, which was broadcast on RTBF in Belgium. A copy was placed on YouTube, but access in the UK is now blocked as a result of what YouTube calls a “government request”. What can be so frightening about that interview that people in the UK are not allowed to see it, but it can be broadcast in Belgium?

The policy of international websites varies. The Twitter account containing the names of lots of people subject to super-injunctions is still there, and will remain there for some time, yet newspapers in the UK are not allowed to refer to it by name. It is clear that in the UK people are now recognising the oppressive nature of court secrecy in this country. For instance, I wrote and released a song about this in 2008, the lyrics of which would have been in contempt of court had they not already been spoken in the House. Since then, however, things have got even worse, with the force of money being used to prevent women from complaining about their ex-boyfriends. One woman who received a super-injunction said to me:

“The process is terrifying…For the first 2 months I shook! And I shake now when talking about it to someone”.

Questions have been raised about whether I should have discussed the row between Ryan Giggs and Twitter yesterday. I am not a party to the privacy case. I have not been served with the injunction. I have not actually seen the injunction and cannot guarantee that it actually exists. I have read his name in the Sunday Herald, and on Wikipedia and Twitter. I could obviously stand on a soapbox in Scotland and say what I said in the House of Commons. I believe I could probably say it on Hyde park corner, because it is in the public domain. For me to have abused parliamentary privilege, I would have had to use it in the first instance, but I do not think that the case has been made that it would have been contempt of court outside the House.

I remain concerned, however, that the process of issuing contempt of court proceedings has been kicked off against users of Twitter. Someone should not be able to hide behind anonymity to take action against others. I am completely unsure what the legal position is in respect of naming Giles Coren. I do not think it would be contempt of court to name him outside the House, yet The Times was worried enough yesterday not to identify him—and he is one of its journalists. I will not identify the footballer whom, it is rumoured, would like to see him prosecuted for tweeting.

Adam Afriyie (Windsor) (Con)

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I fully approve of the hon. Gentleman’s campaign to ensure that injunctions and super-injunctions do not interfere with our constituents’ ability to contact us and speak to us about issues. However, will he explain to the House why he thinks he is judge and jury on whether certain people under court order should be named in this place? Why does he feel he has the right above anybody else? It seems very strange to use privilege in such a way.

John Hemming

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I explained that those details were already in the public domain and accessible in Forbes Magazine, the Sunday Herald and many other places, so I do not think it would have been contempt of court outside the House. However, I accept the Speaker’s ruling on this issue.

I refer hon. Members to a story in The Guardian today relating to another injunction. I shall read out the first paragraph:

“A wealthy British financier is seeking to have his sister-in-law secretly jailed in a libel case, in the latest escalation of the controversy over superinjunctions and the internet, the Guardian can disclose.”

What we have here is true secret justice: somebody is being prosecuted in secret; they cannot be identified; and the person prosecuting them cannot be identified. As a rule, the Attorney-General does not prosecute civil cases, which the privacy cases are; one of the parties usually prosecutes.

John Cryer (Leyton and Wanstead) (Lab)

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That has nothing to do with what the hon. Gentleman did yesterday.

John Hemming

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Actually, it has everything to do with what I did yesterday, because Giles Coren was subject to similar contempt proceedings. There is a great danger that a secret form of jurisprudence will develop that aims to jail people in secret and keep their identities out of the public domain for relatively trivial issues.

The law of confidentiality and privacy, as being developed by the courts, seems to be in opposition to the views of Parliament about whistleblowing. That is an important point. A number of the court orders in place act to prevent people from reporting issues, whether to the police, the General Medical Council, coastguards or whomever. The rule of law is undermined by the court orders preventing that information from being given. That is another important issue.

Mr Richard Bacon (South Norfolk) (Con)

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Will my hon. Friend confirm that judges have also issued court orders naming Members of Parliament as people who cannot be spoken to?

John Hemming

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Indeed. The issues of freedom of speech are not just about what goes in the newspapers; they are also about who communicates with whom and how tightly controlled things are. Some of the court orders issued prevent people from complaining to friends about what has been done to them; some prevent them from complaining to Members of Parliament; and others prevent them from going to the police with information. A dangerous system is developing. It is wrong to think that there is a difference between the ZAM case reported in The Guardian today and that of Giles Coren, because he could have faced exactly the same process.

John Cryer

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What about Giggs?

John Hemming

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The point I was making about Giggs was that his name was in the public domain already, so it would not have been contempt of court to name him outside the House. That is quite straightforward, and it does not, therefore, involve the use of privilege.

However, there is an argument about privilege where the legal position is uncertain, as it can be at times. We do not want to be unable to debate things because working out whether we can talk about them is so complex. Privilege is important and it needs to be used responsibly—there is no question about that—but my argument is straightforward. To have abused privilege, I would have to have used the name in the first instance, yet no one has evidenced to me the basis on which it would have been contempt of court for me to say outside the House what I said yesterday in it, and if it was not contempt of court outside, it cannot be an abuse of privilege within—

Nick Boles (Grantham and Stamford) (Con)

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Why did you not say it outside then?

John Hemming

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Because it would not have been reported.

Anyway, the accountability of judicial processes depends not only on there being a public judgment, but on people having the ability externally to challenge the evidence that the courts are using. The problem with secrecy is that this all breaks down. Indeed, the report in The Guardian today about the secret committal of the sister-in-law is an example of exactly that situation, where there is no possibility of checking externally the evidence for whether the assumptions are correct. There are great questions about the reliability of much of the expert evidence provided in the family courts. If we cannot rely on the expert evidence, we will have difficulty relying on the conclusions.

There are many, many problems, and I will obviously be submitting a detailed report to the Joint Committee on the difficulties with the various injunctions. We also have a difficult day today, so I will not use up all my time. The issue of secret jailing is one that we cannot drop. Obviously we cannot do much more about it over the recess, but we cannot allow a process to continue whereby attempts are made to commit more and more people in secret proceedings. This all arises from the objective of protecting relatively trivial secrets, but it is not even close to open justice. The balancing act has completely failed when we are trying to balance somebody’s liberty on one side against something relatively trivial on the other.

Anna Soubry (Broxtowe) (Con)

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I am exceptionally grateful to you for calling me, Madam Deputy Speaker, because I have perhaps rather better news—it is at least different news—than we heard in the previous speech. I would like to talk briefly about the outstanding work of magistrates and the invaluable role that they play in the criminal justice system.

Magistrates were created some 650 years ago—we are talking about a very long-standing office—and they are to be congratulated, as I am sure we would all agree. There are now 29,000 magistrates in England and Wales. Their minimum requirement is to sit for 26 half-days a year. Some 98% of all legal proceedings are conducted in magistrates courts, which perhaps puts into perspective the outstanding contribution that they regularly make to the justice system. Magistrates bring to bear their considerable experience, knowledge and wisdom to both criminal and family matters. It is perhaps a testament to their ability to dispense justice fairly and properly that they are so rarely challenged in any higher place. In the last 650 years, magistrates have faced many changes and challenges. Their outstanding chairman, Mr John Thornhill, whom I spoke to today, has told me that, notwithstanding all the changes, magistrates always bounce back.

--- Later in debate ---

The Parliamentary Under-Secretary of State for Justice (Mr Crispin Blunt)

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I shall address each of the issues raised in turn. My hon. Friend the Member for Birmingham, Yardley (John Hemming) again raised an important issue that has featured prominently in the press in recent days and weeks. Freedom of speech is a cornerstone of our democracy, and it is of the greatest importance that people should be able to discuss and debate issues as freely and openly as possible—and as frequently as possible, I might add as I am returning to the Chamber to discuss this matter again following yesterday’s performance.

As my right hon. and learned Friend the Attorney-General said in response to yesterday’s urgent question, there is a balance to be struck when the issues concerned relate to a person’s private life. That has always been the case, and now, in the current context, the European convention on human rights specifically establishes the article 8 right to respect for private and family life, alongside the right under article 10 to freedom of expression.

John Hemming

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On the specific question, does the Minister agree that it is unreasonable for an anonymous person to apply to commit another anonymous person in a secret hearing?

Mr Blunt

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I want to make sure that I approach this matter carefully.

In each individual case, the courts have to consider the balance between the two competing rights I have just mentioned. In addition, when considering whether to grant a civil remedy or order, such as an injunction, which affects the convention right to freedom of expression, the courts have to take into account section 12 of the Human Rights Act 1998, which requires particular regard to be given to the importance of that right.

I should also explain that injunctions preventing reporting or disclosure of information may be granted for a number of reasons, and not just for the protection of privacy. They might, for instance, be granted for the following reasons: to protect documents subject to legal professional privilege or commercial secrets; to prevent the release of other information obtained by a party in confidence; to protect children or vulnerable people; or to prevent the release of information about an order freezing the assets of a person suspected of fraud where that might alert other participants in the fraud and lead to them disposing of assets or leaving the country.

The report of the Master of the Rolls’ committee on the procedural aspects of super-injunctions and anonymity injunctions published last Friday makes an important contribution to the debate on these issues, particularly in the context of the debate on privacy. The report reaffirms that open justice is a fundamental constitutional principle, and that exceptions to it are permissible only to the extent that they are strictly necessary in the interests of justice. Such decisions will necessarily be made in each particular case, dependent on the facts of that case. The report suggests that when that is necessary, the facts of the case and the reason for secrecy should be explained, as far as possible, in an openly available judgment. It also emphasises that super-injunctions—which is where the fact that there is an injunction has to be kept secret as well as the substantive issues—are now being granted only for very short periods where secrecy is necessary to ensure that the entire point of the order is not destroyed. That should help to allay concerns both that super-injunctions were being granted far too readily and about their potential open-endedness.

The Government welcome the report by the Master of the Rolls, which contains important recommendations that will ensure that injunctions are granted only where strictly necessary. We recognise the importance of striking the correct balance between individual rights to privacy on the one hand and rights to freedom of expression and transparency of official information on the other.

As the Attorney-General also said yesterday, the Prime Minister has written to the Chairmen of the Justice Committee and the Culture, Media and Sport Committee recommending that a Joint Committee of both Houses be established to consider how current arrangements might be improved. The Justice Secretary and the Culture Secretary will liaise with those Chairmen regarding the terms of reference of the Joint Committee. Such a Committee will be able to use representation from both Houses and the considerable expertise that Select Committees have, to examine the way in which the current arrangements are working and to consider whether we might make any changes to make things work better. That is where matters stand now.

I shall now discuss the welcome speech made by my hon. Friend the Member for Broxtowe (Anna Soubry) on the importance of the magistracy. I wholly agreed with the general drive of it. This year sees the 650th anniversary of the enshrining in statute of the role of justice of the peace by King Edward III in Westminster Hall. The role has changed a great deal over time. Indeed, it was not until the first half of the 19th century that non-conformists and Roman Catholics could become magistrates, and not until the early 20th century that the property qualification for magistrates was removed. From its long and rich historical roots, the magistracy has developed into a fundamental civic institution at the heart of our criminal justice system, and there are 27,000 magistrates in England and Wales today.

Our magistrates are ordinary people from all walks of life who do extraordinary work on behalf of us all. As my hon. Friend said, they deal with the vast majority—95%—of criminal cases in England and substantial amounts of civil work. They are people who care passionately about their communities and the value of the rule of law. What makes magistrates all the more remarkable is that such a vital part of our justice system is composed of unpaid part-time volunteers. They are a very important part of the big society in action.

I wish briefly to discuss how the Government want to consider developing the role of magistrates further, not least in respect of restorative justice. As my right hon. Friend the Minister for Policing and Criminal Justice has said,

“restorative justice is a reflection of what we are talking about when describing the Big Society....This is about taking justice out of the narrow confines of the courts and putting it into the community”.

There can be no better expression of justice grounded in the community than magistrates, who are the epitome of justice for the community by the community. As our recent Green Paper “Breaking the Cycle” set out, we are committed to increasing the range and availability of restorative justice approaches to support reparation in the adult and youth justice systems.

Neighbourhood justice panels bring together community volunteers, offenders and victims, harnessing restorative techniques to broker justice outcomes. I would very much welcome the greater involvement of the magistracy in institutions such as neighbourhood justice panels, but we can also successfully extend a role for the magistracy in the entire panoply of elements that deliver justice in the community.

My hon. Friend the Member for Broxtowe mentioned the retirement age. The Government recognise that at 70 the majority of judicial office holders will be mentally and physically equal to the demands of the work. However, following careful consideration, including discussion with the senior judiciary, it was decided that the current mandatory retirement age should remain. So I am afraid that I cannot offer any comfort for Mr Plumb, despite the date and the ward on which he was born.

The Government are reviewing the travel and subsistence allowances paid to magistrates, with the aim of ensuring that they are not disadvantaged financially because of their important public service while also getting the best and appropriate value for money for the taxpayer. The Courts and Tribunals Service will meet representatives of the Magistrates Association and the National Bench Chairmen’s Forum, and the senior presiding judge, on 15 June to discuss how to develop a new approach to magistrates allowances, and no decisions have yet been taken.

I congratulate my hon. Friend the Member for Brigg and Goole (Andrew Percy) on making his contribution about the victims of overseas terrorism. This is a difficult and emotive issue. I know that there is continuing interest in this area, to put it mildly, and several hon. Members have raised the matter recently. As my hon. Friend the Member for Grantham and Stamford (Nick Boles) said, I recently met his constituent Trevor Lakin and Nigel and Will Pike with him. Mr Lakin lost his son Jeremy in the Sharm el Sheikh bombing in 2005 and Will Pike was paralysed as a result of injuries sustained following the attack on the Taj Mahal hotel in Mumbai in 2008. Through my hon. Friend, I heard first hand about the devastating impact that terrorism has had on them and continues to have on their lives and on the lives of their families. They shared with me their experiences of terrorism abroad and their frustration and disappointment at the lack of support available to victims after they return home.

Terrorist crime is usually indiscriminate and devastating and usually comes without warning. Its impact can be horrific, not just for the victim but for the victim’s family and loved ones. My deepest sympathies, and those of the whole Administration, go out to all those who have suffered in that way or who have lost loved ones through such tragedies.

Since the spending review settlement, the Ministry of Justice has been reviewing the services available to victims, witnesses and their families. We are also considering afresh proposals for the introduction of schemes to compensate eligible victims of terrorism overseas. We expect to be able to make an announcement before the summer recess.

My hon. Friend the Member for Brigg and Goole mentioned support for victims overseas, as did the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Gregg McClymont), who made an intervention on that point. Her Majesty’s Government stand behind our people overseas; for those who have not had dealings with the system, coming across it in the wake of an appalling experience is difficult and distressing. To alleviate some of this distress, we have revisited the support available to British victims caught up in terrorist attacks abroad. The exceptional assistance measures scheme run by the Foreign and Commonwealth Office provides immediate assistance with air fares, accommodation and repatriation for victims and their families. From 16 December last year that help has been available to all British victims regardless of their travel insurance arrangements.

Let me point out that according to the Association of British Insurers, 66% of existing policies cover such attacks, but are mostly limited to overseas medical expenses, repatriation costs and a lump sum for personal accident cover. Furthermore, the Red Cross relief fund for victims of terrorism abroad continues to provide emergency funds of up to £15,000 for those who suffer injury or are bereaved through terrorism and normally live in the UK. The fund was begun with £1 million of funding provided under the previous Administration.

Families bereaved as a result of overseas terrorism may also be assigned a specialist family liaison officer by the police. The officer is specially trained and acts as a single point of contact for bereaved families. The officer will answer questions, seek to obtain updates on case progress overseas and provide dedicated one-to-one support for the family.

I appreciate that dealing with the consequences of any crime is anything but easy. There are services on offer to help guide people through the justice process and to provide emotional support, but there is still more to do. There are challenges in the current system in ensuring that the support given is the right support, and that it is offered quickly and to the right people. That is why I and my colleagues in other Departments are working to improve the services that we can provide. We are working to ensure that central Government, local authorities, voluntary organisations and local communities link together to provide joined-up support to victims and families. I look forward to being able to give the House more details about the Government’s proposals soon, and I anticipate that that will be before the summer recess.