Updating the Coroner System

Jonathan Djanogly Excerpts

Thursday 14th October 2010 Written Statements

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

I wish to make a statement to announce plans for changes to the coroner system in England and Wales.

We believe the proposals I am putting forward today will bring improvements to the system, and address current inconsistencies and inefficiencies in the delivery of services to bereaved families.

We need to create minimum national standards and issue improved guidance on important procedures such as the commissioning of post-mortem examinations, while supporting the local management and delivery of the service.

To that end, we plan to bring forward some of the measures from part 1 of the Coroners and Justice Act 2009.

Our aims are to:

Improve the coroner system so that inquests are timely and bereaved people are provided with sufficient information and support throughout the process.

Improve the effectiveness of inquests, so cases are conducted in the most appropriate district, information is better shared between coroners and other agencies and investigations are better informed by medical advice.

Support local service management and delivery to ensure coroners and their officers have the skills to carry out their jobs and best practice is shared between coroner districts and between the local authorities which fund them.

We will achieve this by:

Commencing provisions enabling operational problems facing coroners to be addressed.

Reviewing and updating the coroners rules.

Issuing and monitoring best practice guidance, including a national charter for bereaved families.

Maintaining and improving training for coroners and their officers.

Encouraging the further establishment of support services provided by the voluntary sector to those attending inquests.

We will make it simpler for coroners to transfer cases between each other, for the convenience of bereaved families and to reduce delays. We will also make it possible for post-mortem and related examinations to take place at the most appropriate specialist centre, by removing the geographical restrictions of the Coroners Act 1988.

We aim to commence these measures in line with the original deadline of April 2012. Some may be brought in earlier than that.

We will continue to work across Government to identify whether and how we can implement other measures in the 2009 Act. We will continue to work closely with Health Ministers to implement proposed new death certification measures so causes of death are recorded more accurately, public health measures are improved, and any improper practices by doctors are detected. In doing so, we will take account of the responses to the consultation paper “Reform of the Coroner System Next Stage: Preparing for Implementation”. I have today published the Government’s response to that paper, and have placed a copy in the Libraries of both Houses.

However, after careful consideration, we have decided that in the current economic climate we cannot go ahead with plans to implement national leadership from a Chief Coroner, an appeals system, or a medical adviser. We have proposed that the abolition of the office of the Chief Coroner should be included in the Public Bodies Bill, which was announced earlier today and we are further considering the transfer of some of the Chief Coroner’s functions to suitable alternative bodies.

His Honour Judge Peter Thornton QC, a Senior Circuit Judge at the Central Criminal Court (Old Bailey), was appointed by the Lord Chief Justice, Lord Judge, to the post of Chief Coroner under section 35 and schedule 8 of the Coroners and Justice Act 2009 after those provisions came into force on 1 February 2010 but had not yet taken up his duties. In the light of our intention to abolish the post he will now not do so but I wish to express my gratitude to Judge Thornton for his considerable patience, and advice to the Department, during the period of this policy review.

We will continue to work collaboratively with coroners, local government and police authorities to deliver service improvements. We will also explore with voluntary sector organisations how we can work together better, so as to provide further support for people when they suffer a sudden or unexpected bereavement.

We believe that our proposals will deliver an improved and more flexible service to bereaved families and also to coroners, their staff and others who work within or have an interest in the coronial system. I would like to take this opportunity to pay tribute to their dedication and hard work and to recognise the enormous value of the service they provide.

Family Courts: Part 2 of the Children, Schools and Families Act 2010

Jonathan Djanogly Excerpts

Monday 11th October 2010 Written Statements

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

The Under-Secretary of State for Education, the Minister with responsibility for children and families, my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton) and I wish to make the following statement to the House about part 2 of the Children, Schools and Families Act 2010.

The Act received Royal Assent in April, but the provisions in part 2, which relate to the reporting of family court proceedings by the media, have not yet been commenced. This is a sensitive issue, on which a broad range of views have been strongly expressed. It is important that the family justice system is properly understood and commands public confidence. At the same time, there is a clear need to protect the privacy of vulnerable children and adults involved in cases in the family courts. My hon. Friend and I have decided to wait until the family justice review has published its final report before determining whether to commence these provisions, which will allow us to consider the changes part 2 of the Act would introduce in light of the review’s recommendations for reform of the family justice system.

Criminal Bar (Public Funding)

Jonathan Djanogly Excerpts

Wednesday 15th September 2010 Westminster Hall

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

I welcome you to the Chair, Mr Bone. I believe that this is your first debate as Chairman, and I hope that it is the first of many. I am a non-practising solicitor, but I have never engaged in legal aid work. I congratulate my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox) on securing this debate, which is timely. Many issues have been raised, and I will do my best in the time available to address them.

My hon. and learned Friend is an experienced criminal barrister and, as I would expect of a leading silk, argued his case strongly, as did my hon. Friends the Members for Carshalton and Wallington (Tom Brake), for Gillingham and Rainham (Rehman Chishti) and for Enfield, Southgate (Mr Burrowes), and the hon. Member for Kingston upon Hull East (Karl Turner).

I should say at the outset that the Government agree that we need good-quality advocates to prosecute and defend in criminal cases, and to ensure that the criminal justice system works effectively and fairly. My hon. and learned Friend the Member for Torridge and West Devon and others have argued passionately for the continued future need for an independent Bar, and I support that. However, it is important to recognise that the legal landscape in this country is changing and we must all acknowledge that; we must adapt to it, and to the financial realities of the current economic climate.

I will deal later with the various points made, but before that it may help if I speak about legal aid more widely in the current context. As hon. Members know, the Government have pledged to reduce the budget deficit to deal with the acute financial crisis and to encourage economic recovery. That is something that the whole Government must do. However, we are not driven only by economic considerations; the financial situation is a rare and urgent opportunity to develop imaginative and creative policies. I accept that our policy should not be determined only by the need to deal with the deficit.

In June, we announced that we were considering our policy on legal aid. That reflects the aim of creating a more efficient legal aid system as set out in the coalition Government’s document of 20 May. My hon. Friends the Members for Enfield, Southgate, and for Carshalton and Wallington voiced their concerns about the operation of the Legal Services Commission. I confirm that I have established a good working relationship with the LSC and that we are working through some of the issues. I should also say that the Government have decided to replace the LSC with an executive agency of the Ministry of Justice, in the belief that that will strengthen accountability and control of the legal aid fund.

As the right hon. Member for Delyn (Mr Hanson) said, there have been several reviews of legal aid in recent years under the previous Government. For example, Lord Carter of Coles’s report of July 2006 proposed a market-based approach to reform. The previous Administration implemented some of Lord Carter’s recommendations, but they did not succeed in implementing price competition for criminal legal aid work.

I can confirm to the right hon. Member for Delyn that we are seeking to develop an approach to legal aid spending that takes into account the necessary financial constraints, the interests of justice and the wider public interest. We are seeking to develop an approach that is compatible with necessary access to justice for those who need it most, the protection of the most vulnerable in our society, the efficient performance of the justice system and our legal obligations.

The cost of the legal aid system as a whole has risen over time. The scheme now costs over £2 billion per annum and, as has been recognised by my hon. Friend the Member for Enfield, Southgate, it is one of the most generous schemes in the world. We spend significantly more on legal aid than most other comparable countries. For example, the per capita spend on legal aid is about £9 per head in Australia and Canada, and £11 in New Zealand, but we spend £38 for every man, woman and child in England and Wales. In the current financial situation, that is unsustainable.

[Tom Brake]

My point is not directly related to the debate, but I would like to raise a point with the Minister about legal aid, particularly the availability of legal aid to British citizens in foreign countries and the extent to which the Government are able to publicise its availability.

[Mr Peter Bone (in the Chair)]

Order. It does not help when the hon. Gentleman starts by saying that his point is not relevant to the debate.

[Mr Djanogly]

As I have said, the cost of the legal aid system has risen over time. The problems were well recognised by the previous Administration, but their piecemeal attempts at reform often served only to add to the upward pressures on cost, and they did little to address the underlying causes of cost or to look at the situation in the round; they found it too complicated to deal with. We want to take a different approach and look at the whole legal aid system and the wider justice system. With respect to my hon. and learned Friend the Member for Torridge and West Devon, legal aid is not only about the fees paid to lawyers; that is the wrong starting point. The starting point should be more fundamental questions, such as: what is legal aid for? What is the role of the state in legal aid? Who needs access to legal aid? How should we fund legal aid? What are the alternatives, in civil cases, for resolving disputes in a way that avoids expensive court processes and the need for lawyers? How should we set the price we pay when legal aid is required? Importantly, what can be done to encourage the resolution of legal problems, both criminal and civil, in a timely and proportionate way?

My hon. and learned Friend asked about timing. We have been assessing such questions over the summer as part of our consideration of legal aid, and I can confirm to him, and to the right hon. Member for Delyn, that by autumn we will be in a position to seek views on our emerging proposals in a full consultation. I also confirm that the resulting Green Paper will outline our proposals for the way forward for criminal legal aid.

I will now look specifically at issues of criminal advocacy. The world is changing in a number of ways. I have already mentioned the need to reduce public spending, and my hon. and learned Friend the Member for Torridge and West Devon has rightly highlighted the fact that in the dying days of the last Parliament, the previous Administration decided to reduce advocate fees by 13.5% over three years, with the first stage of that cut coming into effect last April, and he provided details of those statements. Although we have no plans to reverse that decision, I confirm to my hon. and learned Friend that we want to look at the efficiency of the whole legal aid system, which I agree will go beyond the criminal Bar. At this stage, however, I am not prepared to rule out any specific types of reform.

Another change in the landscape is the increasing number of higher court advocates competing for work with the criminal Bar. I understand that there are now at least 2,500 solicitor-advocates in practice in the higher courts. That means that the Bar no longer has exclusive access to Crown court work. I know that the Bar welcomes healthy competition and believes that it is well placed to offer specialist expertise in advocacy, particularly in more complex cases. Equally, the Bar has grown over time. Thirty years ago, there were just over 4,500 barristers in self-employed practice. Twenty years ago there were more than 6,500, and today the number of barristers in private practice is greater than 12,000. Taken together, the changes mean that it is unlikely that there will be enough publicly funded criminal case work to support the number of people who wish to earn a living from publicly funded practice at the criminal Bar. That is a simple economic fact of life.

My hon. Friend the Member for Gillingham and Rainham spoke about the need to recognise and protect the diversity of the Bar. I agree with his sentiments and it is an important issue. However, the numbers of black, minority ethnic and women barristers are affected by issues other than simply fees. As I have already argued, legal aid exists to provide help for those who need it. In criminal cases, that means the defendant who cannot afford to pay for representation in cases that pass the “interests of justice” test, which in practice tends to exclude the more minor criminal cases. Let me be clear: it is not the purpose of legal aid to provide a living for any particular number of lawyers. Instead, taxpayers’ money should be targeted at those who cannot afford to pay for their own defence, when that is required in the interests of justice.

My hon. and learned Friend the Member for Torridge and West Devon raised the issue of a single fee for Crown court litigation and advocacy. Given the likelihood that a single fee for Crown court cases covering litigation and advocacy would encourage greater efficiency between litigator and advocate, one should expect that point to be considered carefully, among other options for reform. That point was also raised by my hon. Friend the Member for Carshalton and Wallington.

As a point of principle, the so-called VHCCs—very high-cost cases—consume a disproportionate amount of the legal aid budget. Half the Crown court legal aid budget is now swallowed up by fewer than 1% of cases. I am keen to do all that we can to reduce the number and costs of long, complex cases that are bad for the justice system. We will look at that issue in the Green Paper but to clarify, contributions are returned to acquitted defendants, although means-tested contributions now mean that those who can afford to do so pay towards the cost of their representation.

Earnings at the criminal Bar vary enormously. We know that some barristers at the most junior end are far from fully occupied, and as a result their earnings are low. However, at the more senior end of the Bar, earnings can be high. My hon. Friend the Member for Carshalton and Wallington asked about fee levels. The previous Administration published information on that, which showed that for 2008-09, the highest-paid barristers took £928,000 from the criminal legal aid budget. One hundred and twenty barristers were paid more than £250,000 in criminal legal aid, and a total of 416 were paid more than £150,000. I accept that those figures are subject to a number of caveats. In particular, those fees include VAT and do not take into account chamber expenses.

[Mr Cox]

As the Minister knows, such fees may have been accumulated for work carried out over a period of years. It is wholly wrong to give the impression that such figures are the fee for some months’ work, or a year’s work; I know the Minister will accept that.

[Mr Djanogly]

I do accept that, but I wanted to give some idea of the amount of public money that is being paid out.

Looking at the wider regulatory picture, we are currently commencing the Legal Services Act 2007, which will encourage greater competition and innovation in the provision of legal services and a better focus on the consumer. That programme of work has already made important changes to the way that legal services are regulated in England and Wales, and it will also allow for alternative business structures. It will allow lawyers and non-lawyers to work together as one enterprise to provide legal and non-legal services.

To help pave the way for those new business structures, legal disciplinary practices have already been introduced. That has made it possible for different types of lawyers to work collaboratively to provide legal services. For decades, members of the criminal Bar have complained that solicitors have the whip hand. It is time for the Bar to embrace the new opportunities and equality of position that the Legal Services Act will provide. I hope that that opportunity will be grabbed.

As recognised by my hon. and learned Friend the Member for Torridge and West Devon, I was encouraged to hear Nicholas Green, QC, the chairman of the Bar, recently indicate that the Bar is preparing to change and adapt by setting up procurement companies that will enable groups of barristers to bid for criminal defence work. I have met Mr Green and other senior members of the Bar, and I will continue to work closely with them on the issue. Mr Green has been travelling the length and breadth of England and Wales to explain to members of the Bar, face to face, why it is time for the Bar to prepare for change. That is a sensible course to advocate, and I urge all members of the Bar to look carefully at the material that the Bar Council is producing on the subject. I do not think that the majority of members of the Bar, as part of a referral profession, can afford to be aloof as we move forward in what is likely to be an increasingly competitive environment.

I do not want to pre-empt the consultation paper that we plan to publish this autumn, but we must consider whether there is a case for the greater use of competition in providing legal aid. I think that my hon. and learned Friend will accept that, as long as it is done correctly and fairly.

In conclusion, I say to my hon. and learned Friend that however our thinking develops, I want a level playing field so that barristers, other advocates and litigators can compete on an equal basis. The Bar Council is right to advocate change, so that the Bar can not only survive but prosper in the longer term in a changed legal services market.

Trustee Exemption Clauses

Jonathan Djanogly Excerpts

Tuesday 14th September 2010 Written Statements

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

I am pleased to announce the Government’s acceptance of the recommendations made by the Law Commission in its 2006 report “Trustee Exemption Clauses” (Law Com 301).

Briefly, the Law Commission recommended that the Government should promote the adoption by professional and regulatory bodies in the trust industry in England and Wales of a model rule of practice relating to the inclusion in trust documents of clauses limiting the liability of trustees for the consequences of their actions. The recommended model rule provides that a paid trustee or trust draftsman proposing to include such a clause should take reasonable steps to ensure that the person creating the trust is aware of the meaning and effect of the clause before the trust is created.

Model rules to this effect have already been widely adopted by leading regulatory and professional bodies but the Government will be promoting further uptake by writing directly to the relevant regulatory and professional bodies to urge them to adopt the approach recommended by the Law Commission.

Legal Services Ombudsman

Jonathan Djanogly Excerpts

Monday 6th September 2010 Written Statements

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

On 12 August 2010, the Secretary of State for Justice and Lord Chancellor made directions (which will take effect on 6 October 2010) instructing the legal services ombudsman to limit her investigations to those arising from service complaints against persons described in section 22(1)(a) and (b) of the Courts and Legal Services Act 1990. The directions were made by virtue of his powers under section 21 of, and paragraph 1(1) of schedule 3 to, the Courts and Legal Services Act 1990 (c.41).



The directions support the transitional arrangements. They ensure a timely cessation of the current system under which the legal services ombudsman operates and establish (as of 6 October 2010) the new Office for Legal Complaints which will administer a fair, transparent and independent legal complaints handling scheme, namely the Legal Ombudsman (LeO). Under the new scheme the LeO will not have jurisdiction to deal with conduct complaints and these will be dealt with by the respective approved regulator.

Burton upon Trent County Court

Jonathan Djanogly Excerpts

Tuesday 27th July 2010 Westminster Hall

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

I welcome this debate to discuss our proposal to close the Burton upon Trent county court, subject to consultation. This might have been my hon. Friend’s first appearance in Westminster Hall, but it was certainly a good one, and he ably represented his constituents’ best interests.

Allow me, Mr Williams, to set out the Government’s position on our proposals to reform and rationalise the court estate. I will provide details of the reasoning behind including Burton upon Trent on the list of possible closures. I am sure that my hon. Friend will want to respond to the consultation that closes, as he will be aware, on 15 September. County courts across England and Wales have seen a real change in recent years because Her Majesty’s Courts Service has dramatically increased access to online and telephone services. Currently, 70% of money claims, and the vast majority of possession actions, are issued centrally via electronic channels. People can pay fines online for driving infringements, or for not paying their TV licence on time. They can pay off debts or court fees online, using a wide variety of methods. We are working to improve the availability of information on the web and over the telephone, using dedicated information centres with comprehensive details of all civil and family cases, so that fewer people will need to travel to court to ask a question.

We cannot continue to deliver the same level of service in the same way and ignore the changing needs of society. New technologies, which we are all confident about and use in our everyday lives, have not been sufficiently adapted for use in the courts, although they are essential to streamline our processes and improve services for the public. That is why, in addition to consulting on the courts estate, I am inviting members of the public, MPs, and others with an interest, to give me their ideas for improving and modernising the courts service.

HMCS is also looking at how to speed up the experience for court users in the county court by changing how the back offices work. We are establishing a series of large, multi-purpose, multi-skilled administrative centres, which will centralise claims and process work from all county courts, thereby freeing up front-line services and staff to focus on supporting more complex cases that need judicial intervention. That is not a new innovation; there has been an incremental move towards more centralised administrative centres for 30 years. The concept has been successfully tested in local business centres, and we plan to centralise civil work into two key locations in Salford and Haywards Heath, where civil claims will be administered until judicial intervention is necessary. We will also continue to support high-volume users in our bulk centre in Northampton.

Wherever court users can make use of a non-judicial intervention for family and civil cases, we must provide them with all the support and information that they need to explore a variety of dispute resolution routes. A large number of cases go to court, but in practice many people find the full court experience to be inconvenient, intimidating and expensive, as well as slow and unpleasant. That is neither necessary nor in the best interests of either party in the case. Providing options for alternative dispute resolutions, such as mediation conducted over the telephone, is often a better, and less stressful, option for people involved in court cases.

Where judicial involvement is required, we are exploring whether in future physical attendance at court is always a necessity. Can the use of telephone hearings be extended? Does video conferencing technology open new possibilities? In that context, let me point out to my hon. Friend the Member for Staffordshire Moorlands (Karen Bradley) that fines are not dealt with by the county court. Fines are one area where we know that having a physical court does not result in higher payment rates. However, my hon. Friend’s point was well made, and I confirm that we have invested in making it easier to pay fines using methods such as telephone, internet and so on, in order to improve the rate of payment.

Since Lord Woolf’s civil justice reforms in 1996, the number of civil cases has declined by 20%. In order to meet future needs of customers in a faster, more efficient and affordable way, we are working closely with partners across the civil justice system, including Citizens Advice and the Legal Services Commission, to increase the provision of mediation and further improve court procedures. Furthermore, we will work closely with the judiciary to support work on procedural improvements.

Although cost is by no means my only concern, given the dire national economic situation, which my hon. Friend the Member for Burton acknowledged, we cannot forget the savings that would be delivered by this programme of closures. If all courts under consultation were to close, we would achieve savings in running costs of £15.3 million per year, as well as avoiding a backlog of £21.5 million in maintenance costs. A further assessment will be necessary on the level of savings that could be achieved and the potential value that could be released from the disposal of properties.

The closure of Burton county court would save around £106,000 in operating costs that would no longer have to be paid. Furthermore, we would not be liable for the additional investment of around £450,000 in maintenance backlog costs. I confirm to my hon. Friend that we are looking at the area as a whole, and we know that there is a high density of county courts in Staffordshire and West Mercia. As less work is dealt with in the courts, we will need fewer court buildings. We want to ensure that we have all the evidence available before making decisions about which courts provide us with the best service and should remain open. Therefore, I encourage all affected MPs to write in to the consultation with their views.

[Andrew Griffiths]

I thank the Minister for explaining much of the rationale behind his decision, but there will always be people who need to access the court system. Will the Minister explain what he believes would be a reasonable amount of travel time for accessing a county court? Has he done any work on the impact that increased travel time has on non-attendance at county court hearings?

[Mr Djanogly]

We have considered that point, and we felt that a travel time of 60 minutes would be appropriate. I will come on to that point if I have time. In his earlier remarks, my hon. Friend said that attendance at court is a stressful experience, and he spoke about situations of bankruptcy, family breakdown and divorce. As traumatic as those things are, most people will not frequently get divorced or be declared bankrupt, so the comparison that he made with the closure of a local post office—something used by many people on a daily basis—was not accurate.

Having talked to some MPs during the programme of consultation, I am aware of the prevailing view that the principles on which we are consulting are right. Understandably, however, few MPs wish their own local court to close. The passion about this issue that I have seen from all MPs—not least my hon. Friend—is admirable and important to our constituents. Nevertheless, if we accept that we have to reduce the courts estate considerably for the good of the public, we must also accept that sometimes the court in our own constituency may be the most strategic one to close.

Some of the local county courts in Staffordshire and West Mercia have larger and better facilities that are multi-functional and can take a large proportion of the work in the area. As far as possible, we want to try and focus work in those courts. It is our responsibility to think about what is best for the whole of the area, and we believe that the five larger courts at Hereford, Stafford, Stoke-on-Trent, Telford and Worcester would offer the area a strong, efficient and effective civil court system.

There are 10 members of staff at Burton county court, and a total of 43 staff in all the county courts proposed for closure in the Staffordshire and West Mercia area. Once the Lord Chancellor has made his final decisions about whether and which courts to close, we will work closely with the trade unions to look at the impacts on staff.

No member of the judiciary is based at Burton county court, although two district judges sit a total of 127 days per year, with a further 51 days of deputy district judge sittings per year. That is marginally less than the standard we have set, but we must consider the area as a whole. Across Staffordshire and West Mercia, county courts are considerably underused, with an average utilisation rate of 61%. We know which courts offer the best long-term opportunities to continue to deliver a good-quality service in larger multi-functional facilities.

Burton courthouse is under the freehold ownership of HMCS and does not offer facilities to the standards that one would expect of a county court. For a start, it would not be compliant with the Disability Discrimination Act 2005 unless significant maintenance work took place. Hearings and counter services at Burton county court will transfer to either Derby or Stafford county courts, depending on which is closer for the parties involved. Both Stafford and Derby county courts are purpose-built buildings with a high standard of accommodation and facilities for court users, judiciary and staff.

[Andrew Griffiths]

I would like to confirm what the Minister meant when he said that the decision about whether a court user has to go to Derby or Stafford county court would depend on the distance to be travelled. Is it correct to say that if Derby is closer, a person would not be forced to go to Stafford?

[Mr Djanogly]

The distance would be different for various constituents. One court may be more appropriate than another because of what it does. Not all courts do the same things so we cannot generalise in that way. I appreciate the issues about distance and travel raised by my hon. Friend. He made his points well, and he should submit them to the consultation.

Civil Litigation Funding Arrangements

Jonathan Djanogly Excerpts

Monday 26th July 2010 Written Statements

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

I am today announcing the Government’s intention to consult in the autumn on implementing Lord Justice Jackson’s recommendations on the reform of funding arrangements in his report, “Review of Civil Litigation Costs: Final Report”, published on 14 January 2010. We will be consulting in particular on the reform of conditional fee agreements (CFAs) which should lead to significant costs savings, while still enabling those who need access to justice to obtain it. The Government are therefore taking these proposals forward as a matter of priority.

Lord Justice Jackson was appointed by the then Master of the Rolls in January 2009 to review the rules and principles governing the costs of civil litigation and to make recommendations to promote access to justice at proportionate costs. Sir Rupert’s independent and comprehensive report makes a broad range of significant recommendations for reducing costs in the civil justice system in England and Wales. The Government are very grateful to Sir Rupert for his report.

CFAs have played a role in giving access to justice to a range of people. However, high costs under the existing arrangements have now become a serious concern, particularly in clinical negligence cases against the NHS Litigation Authority and in defamation proceedings.

CFAs are a type of “no win no fee” agreements under which lawyers are not paid if they lose a case, but can charge an uplift on top of their base costs—otherwise known as a “success fee”—if they win. Success fees allow lawyers to cover the costs of cases they take on which do not succeed. The success fee can be up to 100% of base costs. After-the-event (ATE) insurance can be taken out by parties to a CFA funded case to protect them against the risk of having to pay their opponent’s costs if they lose. Under the current arrangements, success fees and ATE premiums can be recovered from the losing opponent in addition to the base costs.

Sir Rupert recommends significant changes to the current arrangements for CFAs. He proposes abolishing the recoverability of both success fees and ATE insurance premiums; this would require primary legislation. In addition, to assist claimants to meet the cost of the success fees for which they would now be liable, he also recommends an increase of 10% in the level of general damages for personal injury, defamation and other tort claims; and a regime of qualified one-way costs shifting in specified proceedings, including personal injury and defamation.

Our consultation in the autumn would also seek views on other related recommendations on funding arrangements such as whether lawyers should be permitted to enter into damages-based agreements (DBAs) or “contingency fees” in litigation. DBAs are also a type of “no win no fee” agreements which allow a lawyer to take a percentage of the claimant’s damages for taking on the claim. DBAs are commonly used in employment tribunals but are not permitted in litigation before the courts. This consultation will take account of any relevant legal aid reform proposals on which we will also be seeking views in the autumn, as previously announced.

Work is also progressing on a number of other areas covered by Sir Rupert’s review, but will not form part of the Government’s consultation in the autumn. The Government are considering the recommendations on fixed recoverable costs in the fast track, and on referral fees. The Legal Services Board is looking at the issue of referral fees, and their conclusions will inform the Government’s position. We will also consider Lord Young of Graffham’s conclusions from his “Review of Health and Safety Law and the Compensation Culture”. Separately, the Civil Justice Council will consult over the summer on a voluntary code of conduct for third party funders, as recommended by Sir Rupert. Third party funding is an arrangement whereby a party not directly relevant to the proceedings agrees to fund the case in return for a share of the damages awarded.

A range of judiciary-led costs and case management work has been continuing since Sir Rupert’s report was published. For example:

more robust costs management is being piloted in defamation cases and in mercantile, technology and construction cases;

a streamlined process and scale costs in the Patents County Court will come into effect in October 2010;

there will be a pilot of assessing disputed costs under £25,000 on the papers rather than at a hearing, in Leeds, Scarborough and York county courts from October 2010; and

a pilot to speed up and reduce the costs of expert evidence (through “concurrent evidence”) started in June 2010 in mercantile, technology and construction cases at the Manchester Civil Justice Centre.

A judicial steering group is considering the priorities for further implementation of these recommendations.

Service Personnel (Inquests)

Jonathan Djanogly Excerpts

Thursday 22nd July 2010 Written Statements

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

My hon. Friend the Minister for the Armed Forces and I think it right that we continue the previous Government’s practice of issuing quarterly statements to the House detailing inquests of service personnel who have died overseas. There was, however, no written ministerial statement in late April because of the general election. This is the first of these statements that we have made.

Like our predecessors, we too cannot express enough how highly we regard all of our service personnel who are or have been involved in the military operations in Iraq and Afghanistan. We send our deepest condolences to the families of those personnel who have been killed serving their country. It is also with particular sadness that we note that, since the previous Government gave their last statement on 2 February, 71 further servicemen and women have died.

Today we are announcing the current status of inquests conducted by the Wiltshire and Swindon and other coroners. This statement gives the position at 16 July.

The tables which accompany this statement include information about those cases which involve a board of inquiry or a service inquiry. It is encouraging to see that steps are being taken to reduce the average period of time from the date of death to the inquest. We very much hope that this trend will continue, as it greatly benefits the bereaved families primarily, but also other parties to the inquests. In some cases a coroner may choose not to hold their inquest until the completion of a service inquiry, or it may be delayed for other logistical reasons. It is important that the coroner has all possible information about the death, and that all witnesses are able to attend the hearing.

Current status of inquests

Since the last statement a further 71 inquests have been held into the deaths of service personnel in operations in Iraq or Afghanistan. This makes a total of 325 inquests held into deaths of service personnel in operations in Iraq and Afghanistan since June 2006, when additional resources were first provided to the Oxfordshire coroner.

Since operations commenced in 2001 there have been a total of 376 inquests into the deaths of service personnel who have lost their lives in Iraq and Afghanistan, including six service personnel who died in the UK of their injuries. In two further cases, no formal inquest was held, but the deaths were taken into consideration during inquest proceedings for those who died in the same incident.

We would like to express our gratitude for the efforts of all of the coroners who are involved in conducting these inquests. We also wish to state that we are committed to continuing the Government’s support for these coroners.

Open inquests

i. Pre-31 March 2007 Fatalities

There are currently no outstanding pre-March 31 2007 inquests in the Oxfordshire coroner’s district.

ii. Post-1 April 2007 Fatalities

Since 1 April 2007 fatalities have been repatriated via RAF Lyneham in Wiltshire and since October 2007 additional resources were provided by the previous Government to ensure that a backlog of inquests did not build up in the Wiltshire and Swindon coroner’s district. The coroner, David Ridley, transfers inquests for service personnel to a coroner closer to the bereaved family, where possible.

There are, at present, 101 open inquests to be concluded into the deaths of service personnel who died in Iraq and Afghanistan whose bodies were repatriated after 1 April 2007 (56 involving deaths in the last six months). Of these, Mr Ridley has retained 34 inquests, while 67 inquests are being conducted by coroners closer to the next-of-kin. At 16 July two recent fatalities had been repatriated but the inquests were yet to be opened. Six recent fatalities awaited repatriation and inquest opening. Hearing dates have been set in 13 cases.

iii. Inquests into the deaths of service personnel who returned home injured

There remain 12 inquests to be held of service personnel who returned home injured and subsequently died of their injuries. Hearing dates have been set in two cases.

We shall keep the House informed about progress with the remaining inquests. I have placed tables in the Library of the House which outline the status of all cases and the date of death in each case. Copies are also available in the Vote Office and the Printed Paper Office.

Oral Answers to Questions

Jonathan Djanogly Excerpts

Tuesday 20th July 2010 Commons Chamber

[Mr Dominic Raab (Esher and Walton) (Con)]

2. What plans the Government have to review the use of administrative penalties.

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

The Government are undertaking a full assessment of sentencing policy to ensure that it is effective in deterring crime, protecting the public, punishing offenders and reducing reoffending. We are considering our approach to out-of-court penalties as part of this work.

[Mr Raab]

I thank the Minister for that answer. By 2007, fewer than half the offenders brought to justice—on the previous Government’s measure—had ever seen or been passed through the dock of a court. A man who glassed a pub landlady recently was cautioned, and a serial thief was issued with a dozen on-the-spot fines. What plans does he have to reverse Labour’s pay-as-you-go crime policy, and does he agree that magistrates courts have a vital role to play?

[Mr Djanogly]

The number of out-of-court disposals administered each year has risen by 135% since 2003. Such disposals now account for 40% of all offences brought to justice. However, during the same period, the number of convictions at court has remained broadly stable, suggesting that out-of-court penalties are expanding the number of offenders who are dealt with rather than being used as an alternative to prosecution.

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

5. How many representations he has received (a) in favour of and (b) against his recent proposals to close a number of magistrates courts; and if he will make a statement.

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

We are four weeks into a 12-week public consultation process. As such, the responses to each of the 16 consultation papers have not yet been collated and analysed. This will happen once the consultation closes on 15 September. However, I can confirm that, as of 15 June, there had been 20 letters to Ministers in this Department from hon. Members and Welsh Assembly Members regarding the proposals. Two Adjournment debates on the consultations have also been held.

[Mr Llwyd]

I am grateful for that detailed response. I have the great pleasure and honour to represent the good people of Dwyfor Meirionnydd, which is 100 miles from north to south and 90 miles from east to west. It currently has two magistrates courts. Under the Government’s plans, however, that will be down to one, making a complete and utter mockery of any idea of local justice. May I ask the Minister to think again and consider carefully—and I mean carefully—all the consultations and replies he gets? In the meantime, will he ask his right hon. and learned colleague, the Secretary of State for Justice, to extend the consultation period, because in my 20 years in this place I have never known a serious consultation to take place during August?

[Mr Djanogly]

The hon. Gentleman says we should think again, but we are thinking—we are in a consultation process, to which he is entitled and welcome to make comments. There is one court in his constituency on whose closure we are consulting. It is envisaged that work from this court will be transferred to Caernarfon magistrates court, which is approximately 20 miles away. The court in question has a very low utilisation rate, at just 28.9%. It sits two days per week in one courtroom and its facilities are generally considered to be inadequate.

[Alun Cairns (Vale of Glamorgan) (Con)]

Will the Minister take into account, when making a decision on the closure of the magistrates courts, the facilities and the wider social implications of individual court closures? Barry magistrates court has separate entrances for witnesses and defendants, which is an important consideration in a range of cases, particularly those of domestic violence. Will that sort of issue be a factor?

[Mr Djanogly]

We remain committed to supporting local justice being administered in magistrates courts, but my hon. Friend would be wrong to confuse community justice, access to justice, efficient justice, speedy summary justice or timely administration with bricks and mortar.

[Tom Greatrex (Rutherglen and Hamilton West) (Lab/Co-op)]

6. What recent representations he has received on his Department’s responsibilities in relation to the Crown dependencies.

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

16. What account he took of the availability of public transport in rural areas around Wisbech in his decision to propose the closure of Wisbech magistrates court.

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

In selecting courts on which to consult, one of the key principles applied was to try and ensure that people should not have to make excessively long or difficult journeys to attend court. Although it is important, proximity to a court should not be the only consideration—we need also to consider the speed with which cases are dealt with and the quality of the facilities at our courts. We also want to explore ways we can harness technology more effectively so people do not necessarily physically have to attend court when accessing court services.

[Stephen Barclay]

I thank the Minister for that reply and for the constructive way in which he is consulting. As he says, proximity is not the only factor but what is relevant is how many people are affected by a journey of more than 60 minutes. Will he clarify which year he is using to assess the population given that Fenland has seen a significant increase in its numbers in recent years? Will he allow for the housing trend where planning permission has already been given?

[Mr Djanogly]

We are consulting on one court in my hon. Friend’s constituency, Wisbech. As my hon. Friend noted, it is envisaged that work from that court will be transferred to Peterborough magistrates court, which is approximately 23 miles away. Travel times and distances will be constant from various locations within the constituency, so population is only one aspect to consider. We must also consider the frequency of court attendance, which is very low in Wisbech, with a utilisation of only 37%.

[Mr Graham Allen (Nottingham North) (Lab)]

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

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

My hon. Friend has just made serious accusations of mismanagement, and I shall certainly consider the issues that he has raised and get back to him shortly.

[John Robertson (Glasgow North West) (Lab)]

T4. The Secretary of State should be aware that the Justice Minister north of the border has said that any questions regarding al-Megrahi resided with the United Kingdom Government. If that is true, will the Secretary of State make a statement? If it is not true, can he put the record straight?

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[Stella Creasy (Walthamstow) (Lab/Co-op)]

Given the proposed review of legal aid, does the Justice Secretary agree that the problems faced by the Refugee and Migrant Justice organisation because of the late payment of fees and the lack of clarity about the number of current cases affected—the Home Office has told me that it is 5,000 and the Legal Services Commission has admitted that it simply does not know—mean that it is vital for the Government to intervene until these problems are resolved to prevent that organisation from going into administration and to avoid the possibility of further chaos, with expense, within our asylum system?

[Mr Djanogly]

I am pleased that the hon. Lady has brought up this important issue. The RMJ was maintaining that it had 10,000 clients, but the administrators who went into that organisation to put it into administration assessed the number of clients at more like between 4,000 and 5,000. What is important is the clients. We need to move on from the administration of that organisation to concentrating on its clients, and I assure her that the Department and I are doing exactly that.

[Dr Thérèse Coffey (Suffolk Coastal) (Con)]

T5. Having read the published figures that one in seven of our prisoners are non-UK nationals—according to recent statistics, 585 of them are from Vietnam—does the Minister agree that we could save some of the money spent on UK prisons by transferring those prisoners, perhaps also paying or giving aid to their Governments, perhaps up to 25%, to house them in their jails? That would save money for the UK taxpayer and would put foreign prisoners where they belong.

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[Mr Djanogly]

The average daily costs in Crown courts are more than double those of magistrates courts at about £1,700, compared with £800 a day, and Crown court cases take much longer of course. That is why it is imperative that we rebalance cases between magistrates courts, operating at some 64% of capacity, and Crown courts, operating at full capacity, to ensure that we get value for money.

[Derek Twigg (Halton) (Lab)]

Will the Secretary of State’s Department honour in full, and on the same basis as the previous Government, the release of files relating to the Hillsborough disaster?

[Tom Brake (Carshalton and Wallington) (LD)]

On the subject of magistrates courts, will Ministers consider seriously any proposal from magistrates that would have them hearing cases in venues other than courts so that they can continue to deliver local justice locally?

[Mr Djanogly]

The answer to that is yes, especially in the context of an increased use of technology.

[Thomas Docherty (Dunfermline and West Fife) (Lab)]

On Sunday evening, Radio 4’s “File on 4” programme made serious allegations about Isle of Man shipping companies’ involvement in sanction-busting shipments of arms to Sudan. Given that the Secretary of State has responsibility for the relationship between the Isle of Man and the UK Government, will he hold urgent discussions with the Isle of Man Chief Minister to ascertain what, if any, truth there is to those allegations?

Defamation Law

Jonathan Djanogly Excerpts

Thursday 15th July 2010 Westminster Hall

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

I am delighted to open today’s debate on an issue that the Government regard as being of great importance to our country. As the coalition agreement made clear, we are firmly committed to reviewing the law on defamation to protect free speech. That commitment was reflected in the announcement made last week by my noble Friend Lord McNally, on behalf of the Government, that we will be publishing a draft defamation Bill for consultation and pre-legislative scrutiny in the first Session of this Parliament, with a view to introducing a substantive Bill as soon after that as parliamentary time allows.

That decision stems from our recognition of the concerns raised over recent months about the detrimental effects that the current law may be having on freedom of expression, particularly in relation to academic and scientific debate, the work of non-governmental organisations, investigative journalism and the extent to which this jurisdiction has become a magnet for libel claimants. In reviewing the law, we wish to focus on ensuring that freedom of speech and academic debate are protected and that a fair balance is struck between freedom of expression and the protection of reputation. We want to ensure that the right balance is achieved, so that people who have been defamed are able to take action to protect their reputation where appropriate. However, that should be done in such a way that free speech is not unjustifiably impeded.

That will help to ensure that responsible journalism and academic and scientific debate are able to flourish, and that investigative journalism and the valuable work of non-governmental organisations are not unjustifiably hampered by actual or threatened libel proceedings. Ensuring that the right balance is struck is a difficult and sensitive exercise. It raises very complex issues, on which a wide range of differing views are likely to be held. In recognition of that, any proposals for reform will need to be the subject of extensive and thorough consultation. With that in mind, publication of a draft Bill for pre-legislative scrutiny represents the most effective approach to achieving fully considered legislative proposals that focus on core issues of concern where legislation can make a real difference.

Alongside our considerations on the substantive law, we are also determined to ensure that costs in all civil proceedings, including defamation, are proportionate. The Government are very grateful to Lord Justice Jackson for his comprehensive report, “Review of Civil Litigation Costs,” which makes a broad range of significant and positive recommendations for reducing high costs in the civil justice system. We are urgently assessing Sir Rupert’s main proposals on the reform of conditional fee agreements and how they could be taken forward.

Sir Rupert’s recommendations apply to all categories of case where CFAs are used, and that includes defamation cases. I am aware of the significant concerns in some quarters about the costs in defamation cases, but it is important that any changes in defamation are considered alongside those in other areas of civil litigation where high costs are a concern. We are committed to addressing those issues in the round and to dealing with the problems created by high costs while also ensuring that there is appropriate access to justice for claimants.

The previous Government attempted a rushed and rather limited reform to limit costs in defamation cases only. As hon. Members may know, that measure was not recommended to the House by the Committee that considered it on 30 March. We must tread carefully. We will consider all the options for addressing high costs, including those proposed by the previous Administration and, as I am sure my hon. Friend the Member for Maldon (Mr Whittingdale) will be pleased to know, by the Select Committee on Culture, Media and Sport in its recent report, “Press Standards, Privacy and Libel.” We will consider those proposals alongside Lord Justice Jackson’s recommendations in determining the next steps. We hope to announce the way forward as soon as possible.

It is not possible for me to indicate today exactly what provisions may be included in the Government’s draft Bill on defamation. However, a number of areas have already been the subject of much discussion and debate, and I can confirm that we will be giving further consideration to them with a view to including provisions in the draft Bill. In particular, we recognise the strength of the calls that have been made for a statutory defence relating to the public interest and responsible journalism. As hon. Members will be aware, a common law defence has been developed by the courts in recent years—initially in the case of Reynolds v. Times Newspapers Ltd and Others, which offers a defence that may be relied on even where the defendant cannot prove the truth of what has been published, provided he or she acted responsibly in all the circumstances.

However, concerns have been expressed by non-governmental organisations, the scientific community and others that there is a lack of certainty over how the Reynolds defence applies outside the context of mainstream journalism, and that that has a somewhat chilling effect on freedom of expression and investigative reporting. This is a complex area of the law, and we want to give further consideration to whether and how a statutory defence can be framed in a way that is beneficial and appropriate for a range of different contexts.

We also recognise the criticism that English defamation law has received as a result of the perception that libel tourists are issuing proceedings in London, rather than in other jurisdictions with which their claim may have a significantly greater link. Differing views have been expressed about the extent of problems in that area, and whether the threat of libel proceedings by wealthy foreigners and public figures is used to stifle investigative journalism, regardless of whether actual cases are ultimately brought. A number of proposals have been made on how that issue can be tackled, and we will be examining those carefully. We want to make sure that the concerns raised in that area are addressed in an effective and proportionate way.

We are also aware of the concerns that have been expressed in the media and elsewhere about the difficulties of the so-called multiple publication rule, whereby each publication of defamatory material gives rise to a separate cause of action subject to its own limitation period, which causes problems in relation to online material. The effect of the multiple publication rule is that publishers are potentially liable for any defamatory material published by them and accessed online. The rule applies however long after the initial publication the material is accessed, and whether or not proceedings have already been brought in relation to the initial publication. We will be considering how best we can frame a single publication rule to remove the threat of open-ended liability that currently exists.

In addition to the areas I have just mentioned, the private Member’s Bill introduced in another place by Lord Lester of Herne Hill contains provisions on a substantial number of other issues. In particular, Lord Lester’s Defamation Bill takes in provisions on renaming and codifying the existing defences of justification and fair comment; the basis on which an action for defamation can be brought; the ability of corporations to bring defamation actions; trial by jury; defamation in the context of internet publication; and issues relating to absolute and qualified privilege, including parliamentary proceedings.

Those important issues merit further consideration in the context of the Government’s review of the law. However, it is important to ensure that the views of a range of interested parties are taken into account before deciding whether it is appropriate to include such provisions in the Government’s draft Bill. We therefore intend initially to conduct informal discussions over the summer with interested parties to ensure that we can reach a fully informed assessment of the merits of reform in those areas, and on any other issues that may be of concern. In the light of those discussions, we hope that it will then be possible to move towards publication of a draft Bill in the new year.

As part of that process, the views of those within Parliament are obviously of considerable importance. Lord Lester’s Bill has provided an important, timely and well reasoned contribution to the process, although the Government’s draft Bill may, of course, not necessarily reflect all the issues he has raised, or indeed be restricted to them. The views of those within Parliament are obviously of considerable importance to us in reviewing the law.

The Second Reading of Lord Lester’s Bill last week provided an opportunity for those in another place to make their views known, and an extremely helpful and wide-ranging debate took place. I hope that the Government’s decision to secure today’s debate will provide an opportunity for hon. Members to express their views on those important matters, so that we can consider them when deciding how best to move forward.

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[Mr Djanogly]

With the leave of the House, I thank the hon. Member for Newcastle-under-Lyme (Paul Farrelly) and my hon. Friend the Member for Maldon (Mr Whittingdale) for the interesting and helpful views that they have expressed during the debate. I recognise that the co-operative approach taken by the hon. Member for Warrington North (Helen Jones) is the best way to help the Bill to become law.

The wide range of issues that have been raised and the strongly held opinions that exist serve to illustrate the complexity of this debate. They also show the importance of finding solutions that are workable in practice and will achieve a fair balance that preserves and upholds the right to freedom of speech, while not preventing people from taking action to protect their reputation from defamatory material where appropriate. The views that hon. Members have put forward will be of considerable help to the Government in developing proposals for a draft Bill that will endeavour to strike the right balance on those important and sensitive matters.

As I said at the beginning of the debate, I am not in a position today to indicate exactly which provisions may be included in the draft Bill, or to set out conclusively the Government’s position on all the individual points raised. However, I assure hon. Members that I will take all the views that have been expressed fully into account, together with those views that have emerged from the recent debate in another place and the outcomes of the informal consultation with interested parties that will take place over the summer. A large number of points have been raised, and I would like to expand on some of them. I do not wish to restrict the consultation process in any way but, I repeat, today is about the Government encouraging debate, not about providing conclusions.

In that vein, let me congratulate my hon. Friend the Member for Maldon on his re-election as Chair of the Culture, Media and Sport Committee, not least because he can now see through his Committee’s valuable work on defamation. In a report published earlier this year, the Committee made recommendations on a range of issues relating to the law of libel. Those included proposals on a responsible journalism defence, libel tourism, the defences of justification and fair comment, the ability of corporations to bring libel actions, the early resolution of meaning and issues relating to the internet, and the multiple publication rule.

On CFAs, the Committee agreed that costs were too high and that reform was needed. As my hon. Friend said, the Committee also recommended that in defamation cases, CFA success fees should remain at 100% of base costs, but that only 10% should be recoverable from the defendant. The Committee’s approach therefore differed from both the previous Government’s proposal to impose a maximum success fee of 10%, and from Lord Justice Jackson’s recommendation to abolish the recoverability of the success fee and the after-the-event premium.

I am grateful to my hon. Friend and the members of his Committee for the valuable contribution to the debate made by that report. As the hon. Member for Stoke-on-Trent North (Joan Walley) noted, many of the issues raised were also included in a report entitled “Free speech is not for sale”, which was published by English PEN and Index on Censorship last autumn, in a report by the Ministry of Justice’s libel working group in March this year, and in Lord Lester’s private Member’s Bill. I would like to extend the Government’s thanks to all those involved in considering those important matters. I confirm that their views will be taken into account both in our review of the substantive law and in how we progress the issue of CFA reform.

[Paul Farrelly]

Will the Minister give way?

[Mr Djanogly]

I am moving on to CFA reform, if that is what the hon. Gentleman wishes to speak about.

[Paul Farrelly]

It is.

[Mr Djanogly]

Then the hon. Gentleman should listen—I knew that I would not get away by saying just that. He addressed the issue of cost and mentioned the statutory instrument produced by the previous Government at the end of the previous Parliament. I would like to explain our thinking on that issue. I confirm to him and to my hon. Friend the Member for Maldon that we are firmly committed to taking timely action to reduce the high costs under CFAs, while ensuring appropriate access to justice. As my hon. Friend spelled out in great detail, the high cost of CFAs is a concern not only in defamation proceedings, but more widely across other areas of civil litigation. I was pleased that he thought it important to look at the issue in the round, and I confirm that we will not delay the process as a consequence of that.

I am conscious that, as the hon. Member for Warrington North said, the attempt by the previous Government to limit CFA success fees in defamation cases through the Conditional Fee Agreements (Amendment) Order 2010 was not recommended to the House of Commons by the Committee. The Labour Government seemed to believe that by reducing the success fee mark up on CFAs and defamation cases, the problems that we are debating today would simply go away. It is true that those who were not rich would have been denied access to justice, but that would not have been the case for a wealthy individual or a corporation that wanted to suppress academic or scientific research, because they would not have wished to use CFAs in the first place. That blundering piecemeal approach is exactly what the Government intend not to pursue, and we will be looking at the issue in the round. I was pleased to hear the hon. Lady agree to that.

[Paul Farrelly]

The issue is complex. One person who was relieved that the statutory instrument did not succeed was Peter Wilmshurst, who is a consultant cardiologist at Shrewsbury and the University hospital of North Staffordshire. He is being sued by an American company, NMT Medical, and is being defended under a CFA. His problems are that there is one-way traffic. There are costs and delays and ultimately, he has no guarantee of getting his costs back if he is successful in countersuing for libel, or if NMT Medical loses the case. That is an example of the complexity of the issue, and the way that the libel laws urgently need to be reformed because of the costs and complexities involved, and the ability of companies to silence scientific debate.

[Mr Djanogly]

I disagree that the proposed order would have had the immediate impact that the hon. Gentleman suggests. However, we are moving on and the process is under way. That order sought only to reduce success fees in defamation-related proceedings. Although those proceedings are important, we know that CFAs have been a cause of major concern in other areas such as clinical negligence cases against the NHS, or in the context of the compensation culture debate.

The change that the order sought to achieve was inconsistent with more considered proposals in the field, which were known to the Government at that time. Lord Justice Jackson spent a year considering those proposals and wider issues, and made recommendations in January this year for the reform of CFAs across all areas of civil litigation. In addition, the report by the Culture, Media and Sport Committee entitled, “Press Standards, Privacy and Libel” was published under the chairmanship of my hon. Friend the Member for Maldon. The Government recognise the urgency and the complexity of these issues, but we strongly believe that it is important to consider the case for potential reform across all areas of civil litigation, rather than confine it to individual areas. Lord Young of Graffham is conducting a review into health and safety law and the compensation culture, and we await his report with interest. We are examining the options for reform and will announce the way forward as soon as possible.

My hon. Friend the Member for Maldon discussed funding litigation in a wider context, and I should add that Lord Justice Jackson is persuaded that solicitors and barristers should be permitted to use so-called contingency fees in litigation, subject to appropriate regulation and arrangements for costs recovery. Contingency fees are a type of no win, no fee agreement, under which the lawyer’s fee is payable only if the client wins, and is calculated as a percentage of the sum recovered. Importantly, the lawyer’s fee is a percentage of the damages, rather than being fee-based. That type of funding is widely available in other jurisdictions, but is not permitted in civil litigation in England and Wales. Lord Justice Jackson considers that contingency fees could increase access to justice. We shall also need to consider his recommendations on that issue.

My hon. Friend also expressed concern on libel tourism. There is a widespread perception that the English courts have become the forum of choice for those who want to sue for libel and that that is having a chilling effect on freedom of expression in other countries. For example, in the USA, a number of states have introduced legislation to prevent foreign libel judgments from being enforced there. I understand that legislation on the issue completed one of its stages in the US Senate this week. My hon. Friend mentioned that.

Although we need to review the implication of that possible law and other laws, such as those coming from the EU, as far as they relate to English jurisdiction, I am concerned that we should not be stampeded into basing our laws on an American world view of free speech. My hon. Friend the Member for New Forest East (Dr Lewis) expressed that point very well in his strong and valuable intervention.

There are mixed views about how far libel tourism is a real problem. A wide range of interesting views were expressed in the Second Reading debate on Lord Lester’s Bill in another place on 9 July, including by Lord Hoffmann, who in his speech and in a very interesting lecture earlier this year was extremely sceptical about the extent of any problem in that area. The problem with the Ehrenfeld case, for instance, is that she did not defend the action, so it is difficult to draw conclusions from it. Lord Hoffmann suggested that Dr Ehrenfeld could have relied on the Reynolds defence. I make no comment on that, but those issues will need to be reviewed.

Research that we conducted in the context of the Ministry of Justice libel working group’s consideration did not show any significant number of actual cases involving foreign litigants in the High Court in 2009. However, non-governmental organisations have said that a major problem arises from the threat of libel proceedings by wealthy foreigners and public figures, which is used to stifle investigative journalism, regardless of whether cases are in the end brought, so the number of cases alone may not accurately reflect the extent of the problem.

A number of possible approaches have been proposed to deal with any problems that exist. For example, the libel working group proposed procedural steps to tighten the rules and practice to head off inappropriate claims at the earliest possible stage in cases in which court permission is required to serve a defamation claim outside England and Wales. Lord Lester’s Bill has adopted a different approach, which focuses on whether the publication in England and Wales can reasonably be regarded as having caused substantial harm to reputation, having regard to the extent of publication elsewhere. We shall consider those proposals and other possible options carefully in reaching a decision on the way forward. In doing so, we will of course have to keep it in mind that there is relevant European legislation—in particular, the Brussels I regulation on jurisdictional matters—with which we shall need to ensure compliance.

The hon. Member for Newcastle-under-Lyme discussed the timing of our considerations of the Jackson review. I can advise him that we intend to revise the relevant cost-related recommendations in conjunction with our review of legal aid. That will be consulting in the autumn of this year, which he will appreciate is before the draft defamation Bill is to be tabled for consultation.

[Paul Farrelly]

May I come back on that, as the Minister might have expected? I think that I noticed the quizzical brow of my friend the Chairman of the Select Committee, the hon. Member for Maldon (Mr Whittingdale). The Minister’s statement on going ahead and more consultation in line with the reforms to legal aid has left me none the wiser as to when that process will come to an end.

[Mr Djanogly]

As I said, I cannot at this stage give a firm date for when a draft Bill will be published or for when the legal aid consultation will finally be settled. However, I can tell the hon. Gentleman that those matters are moving forward at speed. The legal aid consultation will be published in the autumn. I hope that he will take some comfort from the fact that we are not pushing the issue into the long grass.

[Paul Farrelly]

With respect, I think that comfort will be taken in certain quarters—I can hear the Bollinger corks popping as we speak.

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[Mr Djanogly]

Given the time for which the Government have been in office, the hon. Gentleman should appreciate that we are moving fairly quickly, despite his suggestion of Bollinger corks popping.

The hon. Gentleman mentioned super-injunctions. In the light of recent concerns highlighted in the Trafigura case and the John Terry case, the Master of the Rolls has established a committee to examine the use of super-injunctions, the principle of open justice and other issues relating to injunctions that bind the press. As the concerns are largely procedural, relating to notification, service of documents and the application of the civil procedure rules and practice directions, it is appropriate for the judiciary to take a lead in that matter. There was a meeting of the committee at the end of June, so I can confirm that the matter is proceeding.

My hon. Friend the Member for Maldon discussed the important issue, contained in Lord Lester’s Bill, of parliamentary proceedings being protected by privilege. I agree that that will need to be reviewed carefully, and possibly in the context of a wider parliamentary privilege Bill.

The hon. Member for Newcastle-under-Lyme asked whether restrictions should be placed on the ability of corporations to bring claims for libel. I think that he was referring to clause 11 of Lord Lester’s Bill, which would require a claimant corporation to show that the publication complained of had caused or was likely to cause it substantial financial loss. English PEN and the Select Committee suggested that restrictions should be placed on the ability of corporations to sue and that key elements should be a requirement for a corporation to prove actual damage to its business, and the burden of proof being altered.

The introduction of reforms to restrict the circumstances in which corporations could bring a claim would certainly be controversial and would raise a number of legal and practical issues—for example, whether claims between competing companies should be treated differently from those where a company is suing an individual or a newspaper, and how any provisions would affect corporate bodies that were not businesses, such as academic institutions. Also unclear is the extent of any problem in that area and how any difficulties could best be addressed. We would need to consult on and consider the issue most carefully.

As I said, we aim to publish our draft Bill for formal consultation and pre-legislative scrutiny in the new year. I am sure that all the issues raised today will be the subject of extensive further discussion both within and outside Parliament in the context of that consultation and more generally. It is of great importance that we ensure that the law achieves a fair balance between freedom of expression and the protection of reputation. I thank hon. Members again for the valuable contribution to the ongoing debate on these issues that they have made today.

Question put and agreed to.