Prisons and Courts Bill

Jonathan Djanogly Excerpts

2nd reading: House of Commons
Monday 20th March 2017 Commons Chamber

[Richard Burgon]

That is a very important point. We support a strong ombudsman, and we want reassurances that the Secretary of State will have to not just respond to the ombudsman, but take action on the basis of the findings of the ombudsman.

Prisons officers to whom I speak want to help offenders turn their lives around. They want more responsibility and to be part of a valued profession. They do not want to be viewed just as turnkeys, but successive Conservative Secretaries of State have diminished their role.

As mentioned earlier, the Government have set out plans for league tables and greater autonomy for prison governors. One wonders why the Government are persisting with the league tables idea when it was first dismissed by the chief inspector of prisons, Peter Clarke, at the Justice Committee in January. The Prison Governors Association has said that league tables

“will not achieve anything other than to risk demoralising staff and of unfairly judging the senior management team”.

Perhaps that was what prompted the Under-Secretary of State for Justice, the hon. Member for East Surrey (Mr Gyimah), to tell the Justice Committee that it would be performance data. The PGA also fears increased governor autonomy coinciding with increased responsibility for the Justice Secretary may result—heaven forbid—in blame being pushed its way. It says:

“Governors are being asked to sign up to agreements, which will become effective in just five weeks, with insufficient detail on what they will be held to account for. The risk is that the prison reform bill will become the prison blame bill”.

Further inroads into overcrowding and chaos could be made by considering who is being remanded and why, whether some offenders with mental health problems need a different approach and by dealing with the backlog of imprisonment for public protection prisoners. None the less, we see insufficient action to address any of those things. We were told that this Bill would transform the lives of offenders, but just saying that that is the case will not make it so. Transforming lives means first transforming the system.

I shall return to the subject of courts and tribunals, which I touched on earlier. Since 2010 Government legal aid cuts have robbed thousands of the legal representation that should be their right. Many of them are those who are most in need of legal representation—for example, people who are in debt, claiming welfare benefits, facing marital breakdown or experiencing housing problems. In 2012-13, 724,243 civil law cases were funded by legal aid; after the provisions of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 were introduced, that figure plummeted to 258,460. I realise that some Government Members will toast those figures as evidence of a job well done, but in reality what are they but proof of access to justice denied?

The coalition Government introduced employment tribunal fees. That measure resulted in a 70% reduction in the number of cases brought. The long delayed review I mentioned earlier essentially concluded, “There’s nothing to see here.” It said:

“While there is clear evidence that ET fees have discouraged people from bringing claims, there is no conclusive evidence that they have been prevented from doing so.”

If only illegal treatment by employers flouting the law of the land had been reduced by 70%. Instead, it is the number of cases that has fallen by 70%.

[Mr Jonathan Djanogly (Huntingdon) (Con)]

If someone can get something for nothing, are they not likely to take it up? That was the core problem with employment tribunals when people had to pay nothing to get access. It is right that if one goes to court, one pays some sort of fee.

[Richard Burgon]

That is a very useful intervention because it makes clear the Conservative view of access to justice. Something for nothing? If somebody has not been paid the national minimum wage, why should they be charged to get the money back? If someone has not been paid their proper wage or has experienced disability, maternity or pregnancy-related discrimination, it is outrageous to say that they are seeking something for nothing.

That intervention takes me back to when I was an employment lawyer acting for the people the hon. Gentleman dismisses in such a cavalier fashion. I remember the first time I lodged a case after the coalition Government introduced employment tribunal fees. On the Employment Tribunal Service website, it said, “Customer, please enter your credit card details.” Is that not shameful? When we regard citizens who are attempting to assert their statutory rights—rights made in this place, such as the right to the minimum wage and the right not to be discriminated against at work—primarily as consumers, it shows that the priorities of our society and our justice system have been warped by the Government.

--- Later in debate ---

[Richard Burgon]

The coalition Government’s objective in introducing employment tribunal fees was to strengthen the hand of employers, including unscrupulous ones, and to weaken the hand of individual employees. That is what the policy was about and that is why it has worked from the Government’s perspective. The ACAS conciliation now offered as compulsory conciliation is not the same as the role of ACAS in the past when people issued an employment tribunal case. No professional advice is given on the value of the case. Just because a claim has not been issued or a matter has been discontinued does not mean that it has been resolved satisfactorily with both parties on an equal footing. To make it clear, Labour would abolish employment tribunal fees because Labour believes in access to justice.

[Mr Djanogly]

indicated dissent.

[Richard Burgon]

The hon. Gentleman shakes his head, but his earlier comments about people looking for something for nothing show how out of touch he is.

[Mr Djanogly]

It is quite the opposite. I am suggesting that the hon. Gentleman’s policy would be giving something for nothing.

[Richard Burgon]

More than implicit in the hon. Gentleman’s ill-considered comments is that allowing people to seek justice in the employment courts without paying money is a something-for-nothing practice. That is a disgraceful comment, which we look forward to publicising as widely as we can. The Government need to think again when it comes to employment tribunal fees.

--- Later in debate ---

[Mr Jonathan Djanogly (Huntingdon) (Con)]

I congratulate Justice Ministers on bringing forward this very competent Bill. I very much appreciated the helpful and informative briefings on, and technology demonstrations for, the proposed court reforms that were organised by my right hon. and learned Friend the Minister for Courts and Justice. In many aspects of prisons, court and litigation policy, the Bill moves the debate forward in a generally pragmatic and rational way. If I have any overall concerns, they relate not so much to the Bill’s general content, but to the need to give fuller context to some of its clauses. This I intend to do in relation to a few of its measures.

On whiplash, we need to keep in mind that the proposals in part 5 are a continuation of the policy held since 2010 to reduce a compensation culture that has had a detrimental impact on our society. In Justice questions on 7 March and again in this debate, the shadow Minister, the hon. Member for Leeds East (Richard Burgon), seemed to question the existence of a compensation culture. Frankly, I thought that we had positively proven that that was an issue at the time of our consideration of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, but it seems that the situation now needs to be re-explained. Before LASPO we noticed, as my hon. Friend the Member for North West Cambridgeshire (Mr Vara) pointed out, that although accidents had fallen by a quarter, claims had increased by a third. That unacceptable position led us to instigate a series of incremental measures with the aim of reversing that trend.

The key problem originated from the dynamic created by the no win, no fee provisions of Labour’s Access to Justice Act 1999, which had put in place an unreal marketplace. To cut a very long story short, due to the workings of Labour’s Act, the interest of the client in their advocate’s fees had become detached. That was because the client would never directly have to pay any of the fees, so it followed that they would not care what those fees were. The situation was stoked by claims farmers and aggressive cold callers. This was a further example of Labour supporting a something-for-nothing system, and that system put constant upward pressure on fees and thereby insurance premiums.

In LASPO, to counter that, we ended the recoverability of success fees and after-the-event insurance premiums from the losing defendant. We then moved on to ban referral fees, and to address spam texting and cold calling by claims handlers and their agents. We also toughened up the regulation of claims handlers. The overall impact of the changes was considered to have reduced insurance premiums by some 25%. However, it is vital to keep an overall picture of what is a complicated situation. For instance, the Association of British Insurers considers that some 1% of whiplash claims are fraudulent, meaning that criminal sanctions also play a part in dealing with this issue. The fraud figure used at the time of LASPO was over 5%, so I will be interested to hear from the Minister whether he believes that insurers and prosecutors have now got the message and upped their game by taking more fraudsters to court. However, I am not convinced that the problem of illegal cold calling has yet been resolved, and I would be interested to hear whether the Minister has any further proposals in this regard.

Another important aspect is the small claims limit for personal injury cases, which is frankly well out of date. To those who are complaining about the proposals, I would say that the fact that this measure is being taken up now, rather than when it was first considered in around 2012, shows how cautious the Government have been to take one step at a time. I fully support the Government’s proposal to increase the road traffic accident-related personal injury small claims limit to £5,000, which will encourage more thought before cases are taken. Will the Minister please confirm whether mediation will be a requirement for consideration, as it is for general small claims, or will the use of a tariff not require this?

I am surprised that the Government propose to increase the limit for all other personal injury claims from £1,000 to only £2,000, rather than £5,000. My understanding was that if only inflation were taken into account, the limit would increase to above £3,000. I appreciate that the change to the small claims limit is a matter for secondary legislation rather than the Bill, so I hope that the Government might reconsider this level. I recall putting up the general small claims limit from £5,000 to £10,000, and what was generally seen by lawyers at that time as something that would hurt their businesses has been very successful in practice.

The compensation culture tag is not one that I would attach to seriously injured accident survivors who need complicated legal help, but rather more to the mass of whiplash claims that involve an injury duration of less than two years and are currently waved through to settlement by insurers who do not want the cost or bother of dealing with each small claim. The average compensation for a six-month injury duration is £1,850. This is why I fully support the Bill’s proposal that the tariff should be based on injury duration, but if that proposal is not to be taken advantage of, a better system for organising medical reports is needed. At the moment, offers to settle can be made without medical reports, even though changes were made in 2014 to discourage that practice. From now on, there will be a ban on settling without medical evidence, which I certainly think is to be welcomed.

A related area that I understand is contributing to the increase in insurance premiums relates to the cost of so-called free hire cars for accident victims. Is the Department looking at that?

The overall insurance premium saving attributed by the Government to these proposals is £40 per year. However, I agree that that message has been somewhat diluted by insurers, who are saying that the proposed reduction of the discount rate applicable to personal injury lump sum compensation payments to minus 0.75% will result in a significant increase in premiums of up to £75. I appreciate that the law, not the Lord Chancellor, sets the discount rate, and I am pleased that the Government are consulting on an alternative framework, but one wonders why the consultation could not have been handled with the Bill. Having said that, it is certainly the case that, through this Bill, the Government are continuing the incremental fightback against the compensation culture, which I think is a very good thing.

[Mrs Moon]

I understand the hon. Gentleman’s points about the whiplash culture, but does he appreciate that the Bill does not cover the ability of rogue solicitors to pursue false claims against individuals who have not been involved in car accidents? Those solicitors claim that they have, and that people have been injured. An elderly couple in my constituency were harassed terribly, and although there was no evidence of injury, the solicitor pursued the claim. The court threw it out, but the Solicitors Regulation Authority would not look at the matter at all.

[Mr Djanogly]

I totally agree with the hon. Lady. Fraud is an important part of the overall situation, but the criminal side is not dealt with in the Bill. I asked the Minister earlier if he would address that issue. At the time of LASPO, it was considered that 5% to 7% of claims were fraudulent. The latest ABI information I have seen is 1% or perhaps less, which would suggest that there has been a dramatic improvement, but I will be interested to hear whether the Government accept that and what they are going to do about the 1%, if that figure is accurate.

The Bill also sets out a wide variety of proposals for case management and the operation of the courts, all of which will, taken together, make for a much more effective, modern and technology-friendly system. Of course, the fact that the Government propose to invest £1 billion in the courts will do much to ensure that they remain world class. There will be fewer courts, but a much better service—by 2022, I understand. I hope that some of the money will be used to simplify processes and facilitate non-lawyers’ ability to navigate the system. Will the Minister indicate where the Department has got to on using technology to assist litigants in person?

Technology was often disregarded in the past because people did not think that its use would deliver justice as effectively as turning up in person. I would suggest that that view is very out of date, particularly with respect to younger people. Indeed, we are moving to a situation in which most crime is likely to be carried out online, so I welcome proposals such as having automatic online convictions with statutory standard penalties for a few criminal offences. I hope that that will shortly be reviewed with the aim of extending the range of offences. Likewise, enabling claimants to recover money owed up to £25,000 entirely online will save time and will certainly help small businesses.

The extension of the use of virtual hearings is to be commended in terms of not only protecting the vulnerable from those accused of certain crimes, including rape, but making justice cheaper and more efficient. How much better will it be to have the police brought in online from their stations, rather than their hanging round the court waiting for cases with nothing else to do? Having said that, I appreciate that we will need good procedural rules so that trials are kept fair.

In some ways, the technology is still being developed. I spoke recently to a criminal district judge who said that he was all in favour of court cameras, except when they did not work, which was all too frequently for his liking. Apparently, private companies that deal with bridging link-ups act strictly to timetables that sometimes do not tie in with those of the courts. Will such practical issues now be ironed out? Of course, that will become even more relevant because the Bill proposes that criminal cases could be conducted virtually, whereby all court participants join the hearing through a live link. The proposal to balance tech developments with the ability for the public and media to view virtual courts online is a good safeguard and a modern re-assertion of the old principle that justice needs to be seen to be done.

I note the proposal to reorganise the magistracy and make it a unified judiciary. It is exactly right, and will provide an adaptability similar to that given when the county courts were unified. It will actually enhance the concept of the magistrate as a nationally qualified judge rather than as a person tied to a particular bench.

This is a worthy Bill. It will do much to move our justice system into modern ways of organisation and efficiency.

--- Later in debate ---

[Nick Thomas-Symonds]

I will come to the hon. Member for Shipley later. The right hon. and learned Gentleman continued:

“Inevitably, therefore, he had to return to seek more savings from the legal aid system. He revived the disastrous proposals for criminal legal aid, which dragged him into prolonged and unsuccessful controversy during much of his term of office”.

I entirely agree that the criminal legal aid changes were disastrous. Those cuts have produced a false economy, because of the proliferation of litigants in person in our courts. That, in turn, puts the success of measures such as live and virtual courts at risk, because one of the risks in that situation is that the person appearing in court is not able to follow or understand the hearing. That might be a challenge in a virtual court with a lawyer present; it is an even greater challenge where there are litigants in person. The Government have to be clear and careful that virtual courts are managed properly and do not end up costing more money than they save.

Similarly, I place on record a note of caution about the idea of online guilty pleas. Although I can see an argument in favour for very simple offences, such as motoring offences that are readily understood, the defendant must know and understand their right to legal advice and understand too their right to challenge the charge. An online plea removes the opportunity that sometimes comes later in prosecutions before the courts when different charges are ultimately pursued by the Crown Prosecution Service. Nor must online guilty pleas be the thin end of the wedge to extend them to far more complex offences. Finally on online courts, we must never lose sight of the fact that we must have a criminal justice system that is open and visible to the public.

Nowhere is the problem of what is not in the Bill summed up more clearly than in the iniquitous employment tribunal fees, which with issue fee and hearing fee can reach £1,200. If someone has been subjected to discrimination or unfair dismissal, such a fee will be extremely hard to find. Early in the debate, Members discussed the effect that the fees have had, but I will quote the report of the Select Committee on Justice. Incidentally, I commend the work of its Chair, the hon. Member for Bromley and Chislehurst (Robert Neill), who makes such an important contribution to our debates on justice matters. After the introduction of the fees in July 3013, there was

“an undisputed and precipitate drop in the number of cases brought, approaching 70%”.

The Minister made a point about conciliation when intervening on my hon. Friend the Member for Leeds East (Richard Burgon). Well, let me quote the Justice Committee:

“We heard a considerable amount of evidence that, far from encouraging early conciliation and resolution of disputes, employment tribunal fees were having precisely the opposite effect, because there was no incentive for an employer to settle in cases where the claimant might have difficulty raising the fee.”

Therein lies the crux of the problem.

I heard many erudite contributions from the Government Benches, but the one that will really reverberate on employment tribunal fees is the one made by the hon. Member for Huntingdon (Mr Djanogly), who, when my hon. Friend the Member for Leeds East talked about the need to abolish these fees, said that that would encourage something for nothing. Let me say quite openly that someone who has suffered discrimination at work or been subject to an unfair dismissal does not seek something for nothing. They seek access to justice and to assert their legal rights.

[Mr Djanogly]

The hon. Gentleman must tell me for which other type of application people do not pay a fee. Why is it only employment tribunals for which he does not want fees to be paid?

[Nick Thomas-Symonds]

Because these are the very people who do not have the money to bring their cases. The hon. Gentleman is so far from reality. With the greatest of respect, although he did make some useful contributions in his speech, he is in a hole when it comes to this issue, so I suggest that he stops digging. His contribution really gets no better with the number of remarks he makes.

The final parts of the Bill are on whiplash claims. I have already said that I agree with the hon. Member for Bury North that the way to deal with fraud is not to increase the small claims track limit in this way. On whiplash, as on everything else, we will judge the Bill and look to amend it in Committee based on what it does for access to justice. That is the central principle on which it must be judged.