Legal Services Board Chairman

Jonathan Djanogly Excerpts

Wednesday 30th March 2011 Written Statements

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

Prior to the enactment of the Legal Services Act 2007 and many of the key provisions contained within it, this House was informed that David Edmonds had been appointed inaugural chairman of the Legal Services Board, established under the Act. The LSB is the over-arching regulator of legal service providers.

I am pleased to announce that following consultation with the Lord Chief Justice, David Edmonds has been reappointed in his role as chairman of the LSB for a second and final term of appointment to commence upon expiry of his current term on the 30 April 2011. His appointment will be for a fixed period of three years.

Office of the Public Guardian

Jonathan Djanogly Excerpts

Wednesday 30th March 2011 Written Statements

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

The Office of the Public Guardian (OPG) supports the Public Guardian in discharging his statutory duties under the Mental Capacity Act 2005. The OPG business plan 2011-12 will be published today, The business plan will be available on the Ministry of Justice website and copies will be placed in the Libraries of both Houses.

The following are the significant impact indicators that have been set by the OPG for the year 2011-12.

The percentage of lasting and enduring powers of attorney being registered within 11 weeks.

Upon receipt of an application to register an EPA or LPA, the OPG will process the application and register the instrument within 11 weeks. This includes the statutory waiting period of six weeks during which people entitled to notice can lodge objections to the registration.

The number of case reviews of deputyships.

We will review a proportion of total case load in 2011-12. Case reviews help us to ensure that our supervision of deputies is operating effectively and in the best interests of the client.

The number of visits undertaken.

As the main means of face-to-face contact with customers, visits are a useful tool in assessing how a deputyship is operating in practice, and what support deputies and clients want to receive from the OPG. Visits also support compliance investigations.

The number of investigations concluded within three and six months.

When an investigation into the actions of an attorney or a deputy is commenced, timely conclusion is an important safeguard for the client and provides assurance to whistleblowers and families that we are acting on their concerns.

Cost-recovery percentage.

OPG operates on a full cost-recovery basis through the fees it charges for services. The full set of indicators is published within the business plan.

Oral Answers to Questions

Jonathan Djanogly Excerpts

Tuesday 29th March 2011 Commons Chamber

[Kate Green (Stretford and Urmston) (Lab)]

15. What progress he has made on his proposed reform of legal aid.

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

The consultation for the reform of legal aid closed on 14 February and we have received some 5,000 responses from members of the public, lawyers and their representative bodies, advice providers, charities and many others. We are continuing to review all the representations received and we hope to publish our finalised proposals, which will include plans for implementation, after the Easter recess.

[Nic Dakin]

I thank the Minister for his reply. Citizens Advice has calculated that every pound cut in welfare legal aid will cost the state a further £9 in additional costs. In light of that information, will he amend his plans?

[Mr Djanogly]

We do not accept the figures provided by Citizens Advice, but we do recognise that early advice can certainly be helpful in a range of contexts. Often, people need general advice on welfare benefits or debt rather than legal advice.

[Kate Green]

The Government are announcing a huge programme of welfare reform, which means that, at least for a time, there will inevitably be confusion and uncertainty about entitlement. Will the Minister explain how it can be right to consider removing funding for legal aid for welfare benefits and social law matters right now? What guarantees will he give about continued funding for such advice?

[Mr Djanogly]

There is never a right time to do these things, but we feel that legal aid needs to play its part in reducing the deficit and that is what we propose to do. In terms of benefits, there could be an issue with more benefit claims coming through from the Department for Work and Pensions and we are working closely with that Department to ensure that we maintain a smooth service.

[Mrs Helen Grant (Maidstone and The Weald) (Con)]

Does my hon. Friend agree that the proposed reforms will have a disproportionate impact on women—I declare an interest as a legal aid family lawyer—especially in the categories of employment, family and housing?

[Mr Djanogly]

Not necessarily. It is true that individuals featuring protected characteristics are over-represented in the civil legal aid client base and as such any reform to civil legal aid is likely to have a greater impact on those groups when compared with the population as a whole, but that is a function of demographics. When affected clients are compared with unaffected clients, proportions are very similar.

[Mr Robert Buckland (South Swindon) (Con)]

Will my hon. Friend take on board all the careful representations he has received about the potential problem of using domestic violence as the criterion for granting legal aid in family law cases?

[Mr Djanogly]

The Government’s position is that domestic violence should be the gateway to receiving legal aid in relation to family law. However, my hon. Friend has asked specifically about the definition and I am pleased to tell him that many representations have come in on this issue and that we are going to consider them very carefully when we make our final report.

[Mr Andy Slaughter (Hammersmith) (Lab)]

What the Minister told the Justice Committee is at odds with what he has said to the hon. Member for Maidstone and The Weald (Mrs Grant) today. He said that he wanted legal aid to be directed towards the most vulnerable, but every authoritative voice the Committee heard, and even his Department’s impact assessment, said that the opposite will be the case and that the most vulnerable will be disproportionately hit by his cuts. We will see tomorrow, when the Committee publishes its report, whom it found more credible, but may I offer him the opportunity today finally to accept the overwhelming evidence that his cuts to social welfare legal aid will hit the most vulnerable the hardest?

[Mr Djanogly]

It is interesting that the hon. Gentleman mentions social welfare and misses criminal legal aid, because when it comes to eligibility and defining who is vulnerable, it was the previous Government who decided that criminal legal aid would be means-tested. We are not addressing that, but in relation to civil legal aid, yes, we do believe that the eligibility tests need to be looked at, and that is what we are doing.

[Jessica Lee (Erewash) (Con)]

9. Which organisations he has met to discuss the draft Defamation Bill.

--- Later in debate ---

[Anna Soubry (Broxtowe) (Con)]

19. What progress has been made on proposed changes to the payment of fees to criminal law barristers through the Legal Services Commission.

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

The processing, validation and payment of claims under the advocates graduated fees scheme is being transferred from Her Majesty’s Courts Service to the Legal Services Commission. The transfer is taking place on a phased basis between 7 February and 18 April of this year.

[Anna Soubry]

I know that it is not proper to talk about lawyers and fees in the same sentence, but this is an overly bureaucratic system that does not pay out, as may be familiar to many Members of this House. There are criminal barristers who have not received fees for many, many months after they have completed their work. Does the Minister agree that that is plain unfair?

[Mr Djanogly]

If my hon. Friend would like to contact me with specifics, I would happily take them up. However, the responsibility for processing claims began to be passed to the LSC only on 7 February, so delays of six months are impossible. Properly completed claims are currently being processed within two weeks.

[Mrs Sharon Hodgson (Washington and Sunderland West) (Lab)]

T1. If he will make a statement on his departmental responsibilities.

--- Later in debate ---

[Heidi Alexander (Lewisham East) (Lab)]

The Government are proposing to remove legal aid for all asylum support law cases, while retaining it for other asylum matters. Why is the Minister drawing that distinction, when the vulnerabilities involved are surely the same?

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

The fundamental principle that we are following is that when security or liberty is at risk, legal aid should be provided. That is why we propose to maintain legal aid for asylum cases, but not for asylum support.

[Paul Maynard (Blackpool North and Cleveleys) (Con)]

A report last year from the Prison Reform Trust found that children with developmental disorders were being processed through the criminal justice system without their having much understanding of what was happening to them. As a consequence, they were more likely to have a custodial sentence imposed upon them than those who were more articulate and more able to defend themselves. Does the Secretary of State believe that that situation exists, and if so, how does he propose to remedy it?

--- Later in debate ---

[Bob Blackman (Harrow East) (Con)]

The Government have decided to close a number of magistrates courts in this country, as a result of which, many valiant volunteer magistrates will travel far longer distances and incur additional costs. What action will my hon. Friend take to ensure that people are properly compensated for their time and travel costs?

[Mr Djanogly]

Our proposals will adequately compensate magistrates by aligning magistrates’ subsistence and travelling allowances with those of the salaried judiciary and, indeed, Members of Parliament. The proposed travel allowances will align with rates commonly used across voluntary, private and public sectors. It is estimated that these changes will save Her Majesty’s Courts and Tribunals Service £3.2 million a year.

Cross-border Child Custody

Jonathan Djanogly Excerpts

Tuesday 22nd March 2011 Westminster Hall

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

I congratulate the hon. Member for Aberdeen North (Mr Doran) on securing this debate. It has enabled him to raise the concerns of his constituent on the difficulties that can arise when a child is taken from the part of the United Kingdom where he or she is habitually resident. May I say how sensitively he put his constituent’s case? He did so in the personal context a concerned parent. That should not be forgotten.

At the outset, I should make it clear that in all cases involving a child’s upbringing—including where the child should reside and who should have contact with the child, as the hon. Gentleman rightly said—the court’s paramount consideration must always be the welfare of the child. The welfare of the child should be paramount in all cases involving decisions about his or her life. The welfare of the child is paramount in the law in all parts of the United Kingdom. English courts are required to consider the child’s situation and hear any application made by a parent; the courts can also make orders on their own initiative, as required under the Children Act 1989.

The Government appreciate that disputes about arrangements for children—for instance, where the child is to reside, contact and the continuing involvement of both parents in the child’s life—will be extremely upsetting for all concerned, and will frequently be damaging for the child. The Government firmly believe that it is in the best interests of the child for both parents to continue to be involved with his or her upbringing, and for both parents to have regular contact with the child, provided it is safe.

The Government are conducting a review of the family justice system in England and Wales, and one consideration is increasing contact between children and the non-resident parent following divorce or relationship breakdown. The serious problems that can arise for parents in maintaining a relationship with their children when a relationship has broken down will be increased if the child is moved from one part of the UK to another. There is then a cross-border element in the family situation. The hon. Gentleman made clear the distress caused to his constituent by the circumstances surrounding the removal of his child and subsequent events. When a child is taken without consent, it inevitably causes great distress for the parent who is left behind. The parent can also be left facing considerable difficulties in obtaining the return of their child. As the child has been moved from one part of the UK to another, the parent has to deal with the question of which court will have jurisdiction. The Family Law Act 1986 provides rules of jurisdiction in the different territorial parts of the UK. The primary rule is that the courts of the part of the UK where the child is habitually resident will have jurisdiction in any proceedings regarding the child. That much is clear.

Identifying habitual residence is a question of fact for the courts. However, the 1986 Act contains rules to prevent a person who removes a child from his or her habitual residence without consent from benefiting from that wrong. That benefit could occur if the person could take advantage of any change in the child’s habitual residence resulting from the unlawful move to claim that another part of the UK now had jurisdiction. Allowing jurisdiction to change immediately in those circumstances would encourage child abduction, which is clearly contrary to a child’s welfare. Lengthy disputes about which courts should hear a case delay resolution for the child and are also clearly not in the child’s best interests. It is important that clear rules exist to prevent abuse of jurisdiction through child abduction.

As the hon. Gentleman describes, section 41 of the Family Law Act 1986 deals explicitly with the situation in which a child under the age of 16 who is habitually resident in one part of the UK becomes resident in another part without the agreement of all the people who have the right to determine where the child should reside. In those circumstances, the 1986 Act provides that the child shall be treated as still habitually resident in the part of the United Kingdom from which he or she was removed for a period of one year from the date of removal. In practice, that usually means that the courts of the part of the UK in which the parent from whom the child was taken lives will have jurisdiction over any proceedings regarding the child during that year even if the child becomes habitually resident elsewhere. To ensure that children are always protected, a court in the jurisdiction in which a child is present can take urgent, provisional action to protect the child.

In that way, the 1986 Act promotes child protection; it discourages wrongful removal of children by removing any jurisdictional advantage that the person removing the child hopes to gain. The Act also provides an important protection for the parent who did not consent to the child being taken, as the person has a significant period of time in which to challenge the removal of the child and to make an application to the courts of the child’s original habitual residence for the child to be returned. Once jurisdiction is accepted by the correct court, it will consider the merits of the case in the light of the child’s welfare. That may or may not involve a return of the child to the original habitual residence. The court will consider with whom the child will live, and how contact with the non-resident parent should be supported.

[Mr Doran]

I am grateful to the Minister for the way in which he is explaining this situation, but he is talking about when the law is operating as it should. What I am dealing with is a situation in which the law has not operated as it should.

[Mr Djanogly]

The hon. Gentleman makes a fair point, and I was coming on to that. However, I will say now that it is accepted that the original English without-notice decision was made without jurisdiction. However, there were numerous ways in which the order could have been challenged, either on the point of the lack of jurisdiction or on the terms of the order made. It must also be accepted that courts can make orders, and sometimes have to make orders, for the welfare of the child without all parties being informed of the application, if that is felt to be appropriate in the circumstances of an individual case. Such orders would usually be drawn up so as to provide for a review at an early stage—perhaps after seven days—so that all parties can make representations.

If the courts of the part of the UK to which the child has been taken make an order in respect of the child, then the parent who did not consent to the child’s removal can challenge that order in the court which made it on the basis that the court did not have jurisdiction to make it. It is very regrettable if an impression has arisen that to challenge the jurisdiction of the court to make an order is, by implication, to accept the jurisdiction of that court. That is absolutely not the case in English law, and indeed nothing in the 1986 Act seems to suggest it. The law is clear that to challenge the order in the court in England and Wales, which made it in this way, is not to surrender to or accept the jurisdiction of that court. This is a rule which is clear both at national and international level. However, even orders made without jurisdiction must be obeyed until such time as they are successfully overturned, and proper action must be taken to overturn them.

However, balancing the requirements of a child’s welfare requires that the rule in section 41 does not last indefinitely. Habitual residence is a question of fact for the courts to determine, and it is generally accepted, including in international law, that the interests of a child are usually best determined by the courts of the territory in which the child is habitually resident, as that court is best able to judge the child’s needs and situation there—the court is “proximate” to the child.

A year is a long time in the life of a child, especially a young one, and circumstances can change very quickly. If nothing is done in the original jurisdiction to address the removal promptly, and within the year at most, that child’s life will have moved on and courts need to be able to address the child’s situation as it is at the time any application is made. There seems to be little point in making the child’s habitual residence the primary rule of jurisdiction in the Act to ensure a close connection between the court hearing the case and the child’s actual situation, only then to refuse to acknowledge the reality of the child’s situation in determining jurisdiction because a non-consensual removal occurred quite some time in the past—even more so when that removal could have been dealt with promptly by the courts of the child’s original habitual residence had they been seized of the case by the left-behind parent within a year.

The hon. Gentleman has asked for the Government to examine this matter and consider a review of the provisions of the Family Law Act 1986. The Government do not consider that a formal inquiry would be appropriate here as the provisions of the law are quite clear and generally provide reasonable protection for children who are wrongfully removed. The Government do not believe that it is necessary to amend the provisions of the Family Law Act 1986. However, it is important that the provisions of the Act should be operated properly in practice and that the courts should follow its provisions as they determine the question of jurisdiction for proceedings.

The Government have undertaken to consider whether the question of jurisdiction regularly causes difficulties. Following the hon. Gentleman’s previous debate on cross-border contact issues in December 2007, officials wrote to the Law Society in England asking for its assistance in identifying the extent to which jurisdictional issues arose in cross-border cases and the extent to which they prevented people making substantive applications and having their cases resolved and whether any procedural or other changes might be required. Similar inquiries were made by the Northern Ireland Court Service with the Law Society of Northern Ireland, and by the Scottish Government with the Law Society of Scotland. Following receipt of the replies, officials have discussed the question of what further should be done to address the jurisdictional issues. Concern was expressed about the courts’ ability to deal with jurisdictional issues, particularly by Scottish colleagues.

I am not convinced that jurisdictional issues are preventing people from having their cases resolved. However, I fully accept that the sort of unfortunate circumstances underlying this debate today must be avoided if at all possible. We will consider whether anything more needs to be done.

The underlying question in all proceedings relating to children must be the welfare of the child or children concerned. The provisions relating to jurisdiction in the Family Law Act 1986 are intended to support the child’s welfare by deterring wrongful removal of children, but also by ensuring that the court with the closest connection to a child makes the decision about that child. Underlying the Act is the premise that it is normally better for decisions about a child’s upbringing to be made by the courts of the part of the UK where the child is habitually resident. That continues to be the case, even if the child was moved without consent.

The hon. Gentleman mentioned that the Scottish courts have criticised the English High Court. It is not for the Government to comment on the observations of a judge in deciding individual cases.

[Mr Doran]

The hon. Gentleman referred to a survey of the various law societies. May I have the summary or the details of the responses?

[Mr Djanogly]

I will certainly correspond with the hon. Gentleman on those issues. With that comment, I bring my points to a conclusion.

Civil Recovery (England and Wales)

Jonathan Djanogly Excerpts

Tuesday 22nd March 2011 Westminster Hall

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

I am grateful to my right hon. Friend the Member for Bermondsey and Old Southwark (Simon Hughes)for providing me with this opportunity to outline the Government’s position and the action being taken in respect of civil recovery.

The Government are firmly committed to working alongside business and trade associations to find effective solutions and responses to business crime, including retail theft. My right hon. Friend identified that civil recovery is dealt with by a number of Departments in addition to the Ministry of Justice—for example, the Home Office, in preventing and tackling retail crime; the Department for Business, Innovation and Skills, in retail business, sponsorship of Citizens Advice and employment relations; and both DBIS and the Office of Fair Trading, in consumer protection legislation. As my right hon. Friend requested, and as I will come to later, the Law Commission is reviewing this area, and officials in the Departments that I have mentioned will respond in due course.

Civil recovery is the legal means by which anyone who has suffered a financial loss due to the wrongful actions of someone else can seek appropriate compensation under civil law. Civil recovery schemes are used by many high-street retailers to deter shoplifting and recover from shoplifters the management, administration, security and surveillance costs incurred in dealing with the case, including the costs of the civil recovery action itself. That ambition is both understandable and justifiable. Shoplifting is not a victimless crime. Businesses employ civil recovery agents to recover through the civil courts often relatively low-value losses arising from, for example, shoplifting or employee theft. The alternative would be criminal proceedings rather than a suit, with the likelihood of a criminal record for the person being prosecuted.

Retailers have a clear legal right to recover the costs of goods that they lose as a result of crime. The Government recognise the appropriate and proportionate use of civil recovery as one option available to retailers for dealing with low-level criminal activity that also amounts to a civil wrong. We believe that civil recovery, when used proportionately, provides an effective response to low-value and often opportunistic crime that often involves teenagers and other vulnerable people.

The national retail crime steering group set up by the Home Office with the British Retail Consortium provides a forum for the Government, law enforcement agencies and retailers to discuss and devise strategies for tackling crimes of concern to retailers. At that national level, the Government are working with industry and business to broker solutions that cannot be solved by local action alone and to promote the sharing of effective practice. The group focuses on the significant crime issues affecting businesses, including tackling shop theft, violence against staff and the growing threat of e-crime, to adopt a task-focused, action-orientated approach.

We are encouraging businesses to do more to protect themselves from crime. Effective crime prevention advice is available for businesses to use, and we are making it a priority to share effective practice examples of businesses working together and in partnership with the police and other law enforcement agencies to tackle retail crime across their local areas.

As the right hon. Gentleman said, most retailers who adopt the civil recovery procedure normally employ specialist civil recovery companies to seek damages on their behalf, to meet the losses caused by individuals who steal from them. I understand that in addition to the actual cost of any goods stolen or damaged, retailers seek to recover the overall costs that they have incurred in dealing with the matter. The additional costs are usually claimed to cover the costs of general store security measures such as CCTV, security tagging and security staff, as well as any administrative costs incurred by the retailer.

In the great majority of cases, the value of the goods or cash allegedly stolen is relatively low, sometimes just a few pounds. However, the sum sought in damages can be substantially higher once additional costs are included. Such costs are often charged as a fixed sum of between £100 and £150, depending on the value of the goods or cash involved. I note that the right hon. Gentleman mentioned the amount of £137. The practice adopted by most companies involved in the sector is to write to individuals demanding payment. Failure to pay is followed by a threat of a court action for unpaid damages and the subsequent use of debt collection agencies. Such individuals are advised that their details will be entered on a national database, which can be accessed by retailers, prospective employers and credit providers.

Let me be clear that the Government are entirely satisfied that retailers have a legal right to recover the value of any goods lost or destroyed as a result of an individual’s actions. Defendants can go to their local CAB and receive advice about what to do with the claim. The Government accept that a retailer arguably has a legal right to recover any additional costs or losses directly caused as a result of dealing with a case. However, we appreciate that there is no statutory or other clear basis for setting the amounts of such costs or losses that can be recovered in an individual case. Therefore, the amount of money, if any, that a retailer can recover from an individual accused of low-level theft in respect of its wider costs is entirely a matter for the courts based on the circumstances and facts of the case.

I say “if any” because my officials have not yet been able to identify any cases in which the issue has been tested before the courts and a definitive judgment given. A specialist recovery company confirmed to Citizens Advice in 2010 that it had never issued a claim seeking recovery where an alleged shoplifter had failed to pay the sum requested. Therefore, that area of the law remains untested. CitA—the new name for Citizens Advice—has undertaken a lot of valuable work, for which we are grateful, to highlight what it believes are the relevant problems. I will refer to that valuable contribution later. However, given that some civil recovery is clearly entirely legitimate, we consider that the question deserving further examination involves the means used and the proportionality of losses recovered.

[Simon Hughes]

Has any work done by the Minister or his officials confirmed that the amounts sought in such cases have no relation to the costs incurred? People should be entitled to recover the £5 cost of a stolen item, but the £135 or £235 top-up fee does not appear to have any basis in reality.

[Mr Djanogly]

That would be a matter for the courts to decide, and as I have just tried to explain, there has not yet been a test case. A test case might be a good idea.

There is no clear basis for setting claims for additional costs at a specific level. Indeed, retailers can seek to recover such additional costs only to the extent that they can show that they have been incurred directly as a result of dealing with a case, so it is not at all clear how such costs could be set at standard levels. However, as I said, the point has yet to be tested fully in the courts.

As I said, Citizens Advice has raised a number of concerns about how civil recovery companies operate and has conducted valuable work on the matter, culminating in two reports. “Uncivil Recovery”, which was published in December 2010, set out detailed case studies drawn from 300 CitA-reported cases in which individuals had been accused of shoplifting or employee theft and were then pursued for substantial sums of money as compensation for what was described as

“loss and damage caused by your wrongful actions.”

I understand that in the vast majority of cases the police were not involved, nor were criminal charges brought. CitA suggested that it is unfair to use the civil courts in such circumstances, argued that the practice of civil recovery effectively relies on fear and ignorance of the law for its effectiveness and made a series of recommendations.

We believe that the recommendation that the law should be clarified to prevent any civil recovery unless there has been a criminal trial and conviction would result in undesirable additional pressure on the criminal justice system. As I have mentioned, the Government accept fully that some civil recovery is entirely legitimate. Accordingly, we consider that the question of the means used and the proportionality of losses recovered might deserve further examination. However, we accept that one important issue is what approach companies acting on behalf of retailers adopt when pursuing such cases.

In that context, I am pleased to be able to tell my right hon. Friend that the topic, and whether any guidance needs to be issued or other action taken, is being considered across a number of Departments, and good progress is being made. For instance, the Law Commission intends to seek views on the question in a paper soon to be issued on consumer redress for misleading or aggressive practices. The Law Commission project reviews the directive on unfair commercial practices implemented in the Consumer Protection from Unfair Trade Practices Regulations 2008 and asks whether consumers should have a right of redress of breaches of the regulations, and that includes the question whether civil recovery is a commercial practice within the meaning of the directive.

The issue is not beyond doubt, but on a broad interpretation of the meaning of a commercial practice, the directive could apply to civil recovery where it is used against shoplifters. That would not make civil recovery illegal, but specialist recovery companies would not be permitted to send misleading or aggressive letters. More generally, the Law Commission is also considering whether there should be a statutory right of redress for people to reclaim, along with moderate and appropriate damages for distress and inconvenience, any moneys that they might have paid as a result of a misleading or aggressive letter.

The Citizens Advice report implies that civil redress is sometimes uncalled for, but the Government do not support that position. The report is certainly useful in raising important issues, not least those that concern aspects of consumer protection, but I accept that some technical issues need to be resolved.

[Simon Hughes]

I see that the Minister is on his last page, so I will ask him one last question. A Law Commission report is imminent. Do the Government have a plan to bring together views across Departments and produce a coherent collective response later in this parliamentary Session? I am sure that it would be welcome in both Houses.

[Mr Djanogly]

I cannot guarantee the timing today, because it will need to be agreed among several Departments, but the issue will be considered on a cross-departmental basis, and we will come back with proposals.

Care Proceedings

Jonathan Djanogly Excerpts

Monday 21st March 2011 Ministerial Corrections

[Annette Brooke]

To ask the Secretary of State for Justice how many care proceedings cases in each local authority area are currently open in the family courts; how many were open in each of the last five years; and how many have reached a conclusion (a) in 2010 to date and (b) each of the last five years.

[Official Report, 3 June 2010, Vol. 510, c. 55-59W.]

Letter of correction from Mr Jonathan Djanogly:

An error has been identified in the written answer given to the hon. Member for Mid Dorset and North Poole (Annette Brooke) on 3 June 2010. The December 2008 figures in Table 1 of the response in relation to care supervision orders outstanding in the Family Proceedings Courts (FPCs) are incorrect.

The full answer given was as follows:

[Mr Djanogly]

Table 1 shows the number of care and supervision cases outstanding as at the end of December in each year from 2005 to 2009 in the Family Proceedings Courts and County Courts of England and Wales. Data are presented by HM Courts Service areas as a local authority area breakdown is not collected centrally and could be obtained only through the inspection of individual case files at disproportionate cost.

[Mr Djanogly]

Table 1 shows the number of care and supervision cases outstanding as at the end of December in each year from 2005 to 2009 in the Family Proceedings Courts and County Courts of England and Wales. Data are presented by HM Courts Service areas as a local authority area breakdown is not collected centrally and could be obtained only through the inspection of individual case files at disproportionate cost.

Her Majesty's Land Registry

Jonathan Djanogly Excerpts

Thursday 17th March 2011 Written Statements

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

My right hon. Friend the Minister of State, Ministry of Justice, Lord McNally, has made the following written ministerial statement:

Land Registry has a new vision: “Putting the customer, quality and innovation at the heart of land registration services”.

To meet this vision, the following strategic objectives have been adopted with key performance indicators:

Customer

To identify, anticipate and satisfy customer needs by constantly refining and developing products, services and channels.

Customer satisfaction: Target 95%.

Develop and implement the capability to:

Electronically deliver the top-six dealing transactions.

View the index map online.

Increase the number of services available on business gateway.

Improve intuitive online navigation.

External e-channel availability: Target better than 99%.

Increase add value revenue by at least 25% with a minimum net contribution of 14%.

Quality

To continually improve operational delivery in order to drive efficiencies, quality and value.

Percentage of registrations processed within 12 working days: Target 80%.

Percentage of completed registrations that meet specified internal quality standards relating to key areas: Target 97%.

Percentage of completed registrations requiring correction: Target less than 1.5%.

Percentage of successful changes applied to electronic services: Target 95%.

Innovation

To build a flexible and efficient organisation to enable us to respond to market fluctuations and changing customer needs and to identify and implement opportunities for Land Registry.

Introduce performance and innovation continuous improvement methodology into two operational offices and extend use in human resources directorate by 31 March 2012.

Complete phase 1 of accelerated transformation programme by 31 December 2011.

Embed new values and behaviours into individual performance management and recruitment processes by 31 March 2012.

Percentage of staff positively engaged with Land Registry: Target 50%.

Finance

To meet all financial and efficiency targets while funding our future work investment programmes.

Percentage return on average capital employed: Target 3.5%.

Cost per unit in cash terms (real terms): Target £29.46 (£18.34).

Estates of Deceased Persons (Forfeiture Rule and Law of Succession) Bill

Jonathan Djanogly Excerpts

Friday 4th March 2011 Commons Chamber

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

I, too, congratulate my right hon. Friend the Member for East Yorkshire (Mr Knight) on his success in steering his Bill to Third Reading without amendment, and clearly with considerable support from all parts of the House. I hope this success continues.

The Bill, as has been said, is a narrow but worthwhile piece of technical law reform that will make the law fairer. It overcomes the problem that, where an inheritance has been disclaimed or forfeited, people claiming through the person who disclaimed or whose inheritance was forfeited cannot inherit. The Bill allows them to do so by introducing a deemed predecease rule. It achieves a similar outcome where a person loses a benefit on intestacy by dying a single parent under the age of 18. In this case the Bill allows his or her children living, or at least conceived, at the death of the intestate to inherit the benefit that he or she, their minor parent, would have received, had he or she lived long enough.

These changes will bring the law of succession more into line with the general policy that, in the absence of a clear intention in a will, descendants should be preferred over remoter relatives. The Bill implements, with modifications, recommendations of the Law Commission. I am grateful to the commission for its work in developing the reforms and for its continuing support for the Bill.

Let me consider the Bill in a little more detail. Clause 1 applies where a person dies intestate or partially intestate. In these circumstances, after the deceased person’s debts have been paid, his or her estate or, in cases of partial intestacy, such part of it as is not distributed by the will, is passed by the personal representatives to the persons entitled to inherit under the intestacy rules. These rules, which have been amended from time to time, were introduced by the Administration of Estates Act 1925. They are intended to give effect to what it is thought the deceased person would have specified in his or her will had he or she made one. This is clearly a very general aspiration, as no one can know what the deceased person would have specified had he or she made a will, but we can be reasonably confident that closer relations are generally more likely to be left something than more distant ones and that direct descendants are likely to be preferred over collateral descendants.

Therefore, the general policy on intestacy is that, once the interest of any spouse or civil partner has been satisfied, the property of the deceased should pass to closer blood relatives before more distant ones. The children of the deceased, for example, should be preferred to siblings of the deceased. This general policy is overridden if a person is convicted of the unlawful killing of another, or of aiding, abetting or counselling another to do so. In such cases, he or she is automatically disqualified from inheriting from the victim under the forfeiture rules. This is a rule of public policy that states that a person cannot inherit property from someone whom he or she has unlawfully killed. It applies in murder and manslaughter cases. However, persons convicted of lesser offences than murder may be permitted relief to inherit the victim’s property by the court under the Forfeiture Act 1982.

Clause 1 is necessary because in 2000 the Court of Appeal decided in re DWS deceased that where a person forfeits an inheritance on intestacy because he or she has killed the person from whom he or she would have inherited, his or her children will also be disinherited. This is because the relevant intestacy rules provide that a grandchild can inherit from a grandparent only if his or her parent—the grandparent’s child—has already died. In that case, the parent had not died but had forfeited his inheritance by murdering his parents. The decision in re DWS deceased is inconsistent with the general policy underlying the law of intestacy. It is unfair that the grandchild should be disinherited in these circumstances. The same situation arises in relation to disclaimer, which is the legal term used to describe the situation where a beneficiary under a will or intestacy rejects an inheritance. The children of a person who disclaims an inheritance on intestacy cannot inherit through him or her because he or she is still alive.

Subsections (1) and (2) of clause 1 solve these problems by introducing a deemed predeceased rule into the intestacy rules. The rule is set out in new section 46A. The effect of the new section is that where a person forfeits an inheritance because he or she is convicted of murder, for example, he or she is deemed, for the purposes of the intestacy rules only, to have died before the victim. Similarly, new section 46A deems the person who disclaims an inheritance to have died before the intestate. The legal device of deeming a person to be dead, which is set out in new section 46A, enables the children of the person who has forfeited or disclaimed the inheritance to inherit their intestate grandparent’s property in accordance with the intestacy rules.

Before moving on to the remainder of clause 1, I will comment on subsections (3) and (4) of new section 46A. These make it clear that the deemed predeceased rule is not intended to prevent the offender from inheriting where the court, in the exercise of the discretion it is given by the Forfeiture Act 1982, decides that an inheritance is not to be forfeit. Section 2 of the 1982 Act, to which subsection (3) of new section 46A refers, gives the court the power to modify the effect of the forfeiture rule where the offender has not been convicted of murder, for example by allowing the killer to inherit all or part of the estate.

[Mr Knight]

Does the Minister agree that the reason for that discretion is to cover cases, other than murder cases, where it is felt overall that justice does not require the person to be disinherited, such as mercy killing?

[Mr Djanogly]

My right hon. Friend makes a fair remark that gets us back to the core of what we are debating: introducing fairness into the process.

The rule introduced by new section 46A gives way to any order made by the court under section 2 of the 1982 Act. Subsection (4) of new section 46A defines what is meant by the forfeiture rule for the purposes of the Bill. It does so by adopting the definition of the forfeiture rule in section (1) of the 1982 Act, which provides that the forfeiture rule means the rule of public policy, which in certain circumstances precludes the person who has unlawfully killed another from acquiring a benefit in consequence of the killing. For these purposes, references to a person who has unlawfully killed another include a person who has unlawfully aided, abetted, counselled or procured the death of the other person.

Subsections (3) and (4) of clause 1 make two consequential amendments to the intestacy rules. Subsection (3) amends section 47(1) of the 1925 Act, which is quite a complicated provision defining the statutory trusts for descendants on intestacy, because section 47(1) currently provides that no grandchild or more remote descendant may inherit under the statutory trusts if his or her parent is still alive when the intestate grandparent dies. This is perfectly sensible in the generality of cases, but it would frustrate the intended operation of new section 46A, which, where it applies, treats the offender as having died before the deceased so that the offender’s children—the victim’s grandchildren—can inherit. Clause 1(3) removes this potential inconsistency by making section 47(2) of the 1925 Act subject to new section 46A.

Clause 1(4) also amends section 47 of the 1925 Act by inserting new subsection (4A), which states that subsections (2) and (4) of section 47 of the 1925 Act are subject to new section 46A. The change is necessary because subsections (2) and (4) of section 47 cover some of the same ground as new section 46A. Section 47(2) provides that where no descendant of the intestate attains a vested interest by reaching the age of 18, or marrying or entering a civil partnership under that age, the estate is to be distributed as if the intestate had died without issue. Section 47(4) applies a similar rule to the statutory trust for siblings of the intestate or issue of such siblings, so that only those members of that class who achieve the age of 18, or marry or enter into a civil partnership under that age, will be included.

The new subsection (4A) of section 47 of the 1925 Act, inserted by clause 1(4) of the Bill, ensures that any duplication with section 47(2) and 47(4) is avoided. Clause 1 implements the recommendations of the Law Commission in its 2005 report on the forfeiture rules and the law of succession. The clause does not, however, contain exactly the same provisions as the equivalent clause in the draft Bill that was published with the Law Commission’s report in 2005, and indeed replicated in large part in the draft civil law reform Bill published for pre-legislative scrutiny by the previous Government in December 2009.

The difference is that those earlier draft Bills contained specific provisions intended to ensure that in forfeiture cases the killer was prevented from gaining any benefit from the inheritance that would, under the terms of the draft Bill, pass to his or her children. Those special trust provisions attracted a good deal of criticism from witnesses to the Justice Committee and from people who replied to the Ministry of Justice’s consultation on the draft civil law reform Bill, including the Bar Council and the Law Society, which represent the majority of legal practitioners likely to have to advise on that area of the law. The overall view of those two respondents was that legislation already exists to protect an infant beneficiary’s inheritance in forfeiture cases if such protection were needed.

Both organisations referred to section 116 of the Senior Courts Act 1981, which provides the court with a discretion to pass over any prior claims to a grant and to appoint someone else if, by reason of any special circumstances, it appears necessary or expedient to do so. The Bar Council also mentioned section 114(2) of the 1981 Act, which provides that, wherever a minority interest arises under a will or on intestacy, a grant should be made to a trust corporation or to two individuals, unless it appears to the court to be expedient that there should be a sole personal representative. The Bar Council concluded:

“On balance we consider the [provisions safeguarding an infant after forfeiture] to be unhelpful, and likely to lead to an increased expense in the administration of estates in circumstances which are bound to be tragic but are otherwise unpredictable.”

We considered those criticisms carefully and discussed them with the Law Commission and chief chancery master Winegarten, who would, with his fellow judges in the chancery division, have to administer the provisions. We concluded that the special trust provisions would be unnecessary, problematic and expensive to operate. The existing law, which already imposes a trust for the benefit of minor children and gives the court power to supervise the administration of estates, gives effective and adequate protection.

Both the Law Commission and chief master Winegarten were content with the omission of the special trust provisions from the Bill, and we welcome my right hon. Friend’s decision to remove them from it. Clause 1 will, as he said in his earlier intervention, make the law fairer, and we wish that part of the Bill very well.

I thought it might be helpful for hon. Members to have some idea of how clause 1 will work in practice. We are dealing with forfeiture on intestacy. In this particular situation, John has murdered his father Bob and is disqualified under the forfeiture rule from inheriting his estate. Bob did not leave a will, so his estate will be distributed under the intestacy rules. John is one of three children whom Bob had with his late wife, Janet. In this situation, John would have been entitled to a third share of Bob’s estate, but the operation of the forfeiture rule in succession prevents him from inheriting.

John has two children, Rosie and Ben. Under the current law, Rosie and Ben cannot inherit John’s share of their grandfather’s estate, because although John is disqualified from inheriting under the forfeiture rule, he is alive, and the intestacy rule provides that, for a grandchild to inherit from his or her deceased grandparent, his or her parent must have pre-deceased the intestate. Clearly, in the forfeiture situation the offender is still alive when the killing takes place.

As a consequence of the interaction of the forfeiture rule and law of intestacy, John’s interest will go back into the estate and pass to Bob’s other blood relatives or, if there is none, to the Crown, the Duchy of Lancaster or the Duke of Cornwall as bona vacantia, under the law relating to ownerless goods. Under the proposed new rule, however, John will be deemed to have died immediately before his father, enabling his children, Rosie and Ben, to inherit his share of his father’s estate. A similar outcome will be achieved when an interest on intestacy has been disclaimed or rejected.

So, if I can, Mr Speaker, I shall move on to clause 2, which amends the Wills Act 1837. The amendments make analogous provision to clause 1, which deals with intestacy in the cases where the deceased leaves a will and an inheritance is disclaimed or forfeited by the intended recipient. Clause 2 is necessary because section 33 of the 1837 Act provides that, where a child of a testator dies before the testator, leaving grandchildren who are alive at the death of the testator, the gift to the child takes effect as a gift to the grandchildren. To give effect to the testator’s wishes, which is the paramount principle of the law of wills, clause 2 inserts new section 33A into the 1837 Act. In all those cases, however, if the will indicates that the testator had different intentions, it will prevail.

Having explained in some lesser or more detail clauses 1 and 2, Mr Speaker, I think it appropriate now—

[Mr Speaker]

Order. The House is attending very closely to the development of the Minister’s thesis and is, I think, indebted to him. If, however, he were under the impression that there was an obligation upon him to treat in detail each component clause, I would want to dispel any such misapprehension. He is not obliged to do so, and if he felt inclined to move towards a conclusion to his thesis I do not think that there would be vociferous objection in the House.

[Mr Djanogly]

I am very pleased, Mr Speaker, to hear that the House would have no objections to my moving on. In some ways, you have pre-empted my thoughts on the matter, and to that extent I am delighted to wind up my speech. Just to say, finally, that from the Government’s point of view we wish the Bill very well on its further progress.

Question put and agreed to.

Bill accordingly read the Third time and passed.

Borders, Citizenship and Immigration Act 2009

Jonathan Djanogly Excerpts

Thursday 3rd March 2011 Written Statements

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

I am pleased to announce the Government’s intention to commence section 53 of the Borders, Citizenship and Immigration Act 2009 with effect from 1 October 2011. Section 53 enables judicial review applications in “fresh claim” asylum and immigration human rights cases to be heard in the Upper Tribunal.

Currently, judicial review applications cannot be transferred from the High Court or Court of Session to the Upper Tribunal if they call into question decisions made under the Immigration Acts. The commencement of section 53 will allow the transfer of judicial review applications relating to a refusal of the Secretary of State for the Home Department to treat representations as a “fresh claim” in asylum and immigration human rights cases.

One of the conditions to enable the High Court in England and Wales to transfer a case to the Upper Tribunal is that the application falls within a class specified by the Lord Chief Justice under section 18 (6) of the Tribunals, Courts and Enforcement Act 2007. I understand that, following the commencement of section 53, the Lord Chief Justice is minded to make such a direction in respect of this class of judicial review application.

I also understand that while there are no immediate plans to transfer these cases to the Upper Tribunal in respect of Scotland or Northern Ireland, commencement of section 53 would allow that to happen at some point in the future should the Lord President and the Lord Chief Justice of Northern Ireland deem this to be appropriate. I understand that the Lord President has indicated that further consultation will be required in Scotland in relation to this matter.

The transfer of these judicial reviews will enable fresh claim asylum and immigration human rights applications to be dealt with by judicial members of the Upper Tribunal who have specialist skills and experience in asylum and immigration cases and will also relieve workload pressure on the High Court, freeing up judicial time to address the high volumes of other types of cases heard in the High Court.

I understand that the Tribunals Procedure Committee is currently considering whether any amendments will be required to the Upper Tribunal Procedure Rules to reflect this change and that it may decide to undertake public consultation on this matter in due course.

Information Commissioner

Jonathan Djanogly Excerpts

Wednesday 16th February 2011 Written Statements

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

My right hon. Friend the Minister of State, Ministry of Justice, Lord McNally, has made the following written ministerial statement:

“On 7 January 2011, the Government announced their intention to enhance the independence of the Information Commissioner as part of a wider package of measures to extend the Freedom of Information Act. Additionally, I wish to announce to the House today that the Government will strengthen the role of Parliament in the appointment of the next Commissioner in 2014. For this appointment, the Government will offer the Justice Select Committee a pre-appointment hearing with the preferred candidate and will accept the Committee’s conclusion on whether or not the candidate should be appointed. This will make the appointment process more open and transparent and enhance the independence of the office.

The Information Commissioner plays a vital role in promoting transparency and protecting the rights of individuals in relation to their personal data. The Government are fully committed to an independent Commissioner and the critical role he plays as a champion and protector of information rights.

The Commissioner is already entirely independent in the decisions he takes to enforce the legislation he regulates. However, the provisions to be included in the (Protection of Freedoms) Bill will further enhance his day-to-day corporate and administrative independence. The Commissioner will no longer need to seek the consent of the Justice Secretary on issues relating to staff appointments, charging for certain services, or before issuing certain statutory codes of practice under the Data Protection Act. Changes will also be made to the terms of the Commissioner’s appointment and tenure to increase transparency and protect against any potential undue influence.

Taken together, these steps—to be underpinned by a revised framework document outlining the day-to-day relationship between Government and the Information Commissioner—will result in a real and tangible enhancement to his independence”.