Reforming Civil Justice

Lord Clarke of Nottingham Excerpts

Tuesday 29th March 2011 Commons Chamber

[The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)]

With permission, Mr Speaker, I wish to make a statement. I have today laid before Parliament two documents—the Government’s response to our recent consultation on Lord Justice Jackson’s recommendations for reforming no win, no fee arrangements, and a fresh consultation document on proposals further to overhaul the civil justice system. Copies of both documents will be available in the Vote Office and on the Ministry of Justice website. I hope to bring forward legislation on the Jackson reforms as soon as parliamentary time allows.

To many people in this country, the prospect of legal action is an expensive, daunting nightmare. One of the worst features of our compensation culture is that our justice system has increasingly become closed to vast rafts of the ordinary public by legal costs out of all proportion to the dispute or the claim. The proposals that I am announcing today will, I hope, begin to restore proportion and confidence in our system of justice, for both claimants and defendants.

First, following careful consideration of the consultation responses, I have decided to reform no win, no fee arrangements to stop the perverse situation in which fear of excess costs sometimes forces defendants to settle, even when they know they are in the right.

I can therefore announce that the Government will seek legislation to return the no win, no fee system to the first principles on which it was set up. We plan to end the recoverability of success fees and insurance premiums that drive legal costs; to award claimants a 10% uplift in general damages where they have suffered loss; and to ensure that they take an interest in controlling the bills being run up on their behalf by expecting them to pay their own lawyers’ success fee. We will also bring forward our plans to encourage parties to make and accept reasonable offers, to protect the majority of personal injury claimants from paying a winning defendant’s costs, and to allow claimants to recover the cost of expert reports in clinical negligence cases.

I am also publishing a consultation paper that I believe paves the way for the more efficient and effective delivery of civil justice after 15 years of stagnation. The current system is slow, stressful and expensive, and change is long overdue. My aim is to help people to avoid court wherever possible, while reducing costs where that is unavoidable. We are proposing that small-value cases should automatically be referred to mediation so that many people are able to avoid the experience of court entirely; and that the maximum value for small claims be raised from £5,000 to £15,000 to enable more cases to be heard through the simple small claims process rather than a more costly, complicated trial.

We are also proposing: to increase the value below which claims cannot be brought in the High Court to £100,000 so that the county court jurisdiction is extended and the High Court is reserved for only genuinely complex or high-value cases; new measures that will improve the ability of courts to tackle those who evade payment of their debts even though they have the means to do so, while ensuring that those who cannot pay continue to be protected, for example by setting a minimum level of consumer debt at which property could be put at risk for non-payment; and the extension of a successful online system to cut waiting times and legal expenses in personal injury cases, as recommended by my noble Friend Lord Young of Graffham.

We have a duty to deliver a civil justice system that is more equitable, accessible and just. Resorting to the law need not be the long, drawn-out and expensive nightmare that so many people experience today, but could become a sensible and affordable way of resolving disputes in a proportionate manner. I believe these reforms, on which we are now consulting, will help to restore those fundamental values of proportion and fairness in our civil justice system, and I commend this statement to the House.

[Sadiq Khan (Tooting) (Lab)]

I thank the Secretary of State for his usual courtesies and advance sight of his statement, which, on face value, is difficult to disagree with. We accept that the issue of costs in civil proceedings is worth investigating, and did so in government. I note that my right hon. Friend the Member for Blackburn (Mr Straw) is in his place. Those suffering injury through the negligence of public and private bodies who cannot afford to fund actions privately must have recourse to the civil justice system. There is a fear, however, that these plans go so far in trying to keep down costs that some claimants with meritorious cases will find it difficult, if not impossible, to find a lawyer to take on their case.

I am afraid that the devil will be in the detail of today’s announcement. I have a number of questions for the Justice Secretary that I hope will tease out some of the detail. He referred to the Lord Justice Jackson report to justify his announcement. However, has he taken into account Lord Justice Jackson’s view that his proposals are a package and should not be subject to cherry-picking, and will he take into account Lord Justice Jackson’s desire to retain civil legal aid for criminal negligence and housing cases currently under threat from the Government?

The Justice Secretary proposes that claimants’ solicitors will be able to recover up to 25% of their costs from the damages that a claimant recovers. He will be aware that the increase in compensation from defendants to claimants will be only 10%, not 25%, and will apply only to general damages, not to total damages. Why should someone who has suffered the trauma of an injury at work be told that the money they have justly received as compensation will go to their lawyer?

Has the Justice Secretary had a chance to assess the road traffic accident portal scheme, which was introduced by the last Government to reduce costs? The scheme uses fixed fees and efficient processing to limit costs, and came into force in March last year. Does he accept that it has reduced costs by half in 75% of personal injury cases? Does he agree that expanding the scheme to personal injury claims would save costs?

The Government have said that one aim of the reform is to reduce the costs that defendants have to pay. Many defendants are insurance companies. In light of that, can the Justice Secretary say what reductions he expects in insurance premiums? Can he confirm whether an impact assessment has been conducted on how the changes affect access to justice, cost to defendants and reductions to insurance premiums? Is he concerned that, although there will be limitations on a claimant’s ability to bring a case and the costs incurred by their solicitors, there will be no such controls on a defendant in defending a case, raising concerns about the inequality between the two sides?

Finally, a fundamental principle of our justice system is proper access to justice. I agree with the previous Government, who agreed with senior judges such as the Lord Chief Justice, Lord Judge, as well as Lord Justice Jackson and others, that the costs of civil litigation were sometimes excessive. We would all like the costs of litigation to be reduced and alternatives to it found wherever possible, but the effect of the proposals could be to restrict access to justice, particularly for those who do not have their own means of funding. It will be on this key issue that we will hold the Government’s actions to account.

[Mr Clarke]

I welcome the right hon. Gentleman’s agreement with me on the importance of tackling cost. He has focused principally on the conclusions that I have announced today of the Government’s consideration of the consultation on Rupert Jackson’s proposals, which I accept were initiated by my predecessor, the right hon. Member for Blackburn (Mr Straw), under the previous Government. We are trying to get the cost of litigation down.

The right hon. Gentleman talks about access to claims. We are going back to no win, no fee arrangements of the kind that existed when they were first set up by my noble Friend Lord Mackay in the mid-1990s. It was the changes made at the turn of the century that led to the cost escalating to such an extraordinary extent. Among other things, in many cases the legal fees paid by a losing defendant now far exceed the damages paid to the claimant. Indeed, it can be an extremely profitable area of practice if people have some successes. We will keep no win, no fee on the basis of the kind of arrangements we used to have—the kind that are familiar in most jurisdictions. The arrangements that we are proposing to sweep away are unparalleled in any other country and are making litigation too expensive for those faced with it.

The right hon. Gentleman then asked about the cost that can be borne by the plaintiff out of his damages. As he quite rightly said, the 10% enhancement to the level of damages that can be awarded is designed to help plaintiffs and claimants, but it will be confined to general damages, otherwise the figure could be astronomical in some cases. However, the costs that can be recovered—the success fee or bonus paid to a solicitor who has won a case—will be limited to 25%, so they will be kept in proportion.

The right hon. Gentleman mentioned the road traffic accident portal scheme, which has certainly speeded up and helped many personal injury cases. We are indeed proposing to extend the scheme to other personal injury cases, as he suggested.

The right hon. Gentleman asked me what would happen to insurance premiums. The answer, of course, is in the hands of the insurance industry and the competitive market in which it works. We all think, “Oh well, it doesn’t matter: it’s only the insurance company that is paying colossal legal fees”—on top of damages—“in no win, no fee cases,” but that could be one explanation for why car insurance costs have leapt to such an extraordinary extent in this country. I hope to see insurance premiums come down.

Impact assessments were produced at an earlier stage, after Sir Rupert had received wide representations from all sides. We have taken quite a long time getting to this point, and we are pretty clear on what the impact will be. On balance, I think it will be highly desirable. [Interruption.] I cannot read my notes on the last question that the right hon. Gentleman asked.

[Sadiq Khan]

It was about cherry-picking, and clinical negligence and housing cases.

[Mr Clarke]

Yes, the right hon. Gentleman raised an important point about clinical negligence cases, which can be very expensive to start. We are therefore making an exception in regard to the non-recoverability of insurance premiums. We will allow the recoverability of such premiums when they are used to cover the cost of expert evidence in clinical negligence cases. We are, however, working with the NHS Litigation Authority with a view to getting the NHS and other defendants to co-operate with claimants to produce joint medical reports. That should narrow the dispute and cut the costs for all parties, making justice more easily attained.

[Several hon. Members]

rose—

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

Given the Lord Chancellor’s characteristic willingness to take what in “Yes, Minister” would have been called “courageous decisions” about success fees, insurance fees, after-the-event insurance and the scope of the small claims courts, will he tell us what he thinks about referral fees and claims farming, which are probably major contributors to the compensation and litigation culture?

[Mr Clarke]

The Legal Services Board is looking into that whole area. My right hon. Friend Lord Young of Graffham has referred to this as well, and it is an important area that we should look at. We are all in favour of no win, no fee; it has been introduced and no one is ever going to get rid of it, but a rather extraordinary form of practice has now developed at the margins. Claims advisers advertise for people who have had an accident to bring a claim; we see their advertisements on the backs of buses. They pay people to give them their claim if it looks good, and they then sell the claim to a solicitor. Solicitors may then trade the claims between themselves, before bringing a no win, no fee action. If they are successful, they get very high costs and a kind of bonus, called a success fee, on top. That is what makes these actions so expensive. I understand why, in response to consultation, some people defended that system vigorously, but I believe that the whole thing needs examining from beginning to end. As Sir Rupert Jackson’s report made clear, this explains why the whole process has become so frighteningly expensive for so many litigants.

[Mr Jack Straw (Blackburn) (Lab)]

May I add to the broad welcome from my Front Bench for the decisions that the Secretary of State has announced today? I also add my thanks, as I am sure he does, for the extraordinary work of Sir Rupert Jackson, which underpins them. I should like to pick up on the point raised by the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith). Is the Secretary of State aware that, in my constituency and in many others across the north-west, car insurance premiums for decent, honest drivers with impeccable records have rocketed, despite the fact that the number of accidents and thefts from vehicles has gone down? That is because of the work of those parasitic claims management companies and because the insurance companies, who are complaining about the costs, are themselves guilty of selling on personal data, including the facts relating to a claim, to those companies, often without the agreement of the insured person. Does the Secretary of State agree that we need to close down those claims companies altogether? They are parasites milking the system. I apologise for coming late to this decision; I should have taken it when I was in his seat. Does he also agree that we should use data protection legislation to ban insurance companies from selling on personal data?

[Mr Clarke]

When I took over the right hon. Gentleman’s desk and chair about 11 months ago, one of the first things I picked up was the Jackson report, which he had commissioned. As he says, it was on his desk, but he had not had time to implement it. I was immediately attracted by its approach to cutting costs, so I am glad that he and I continue to agree on that. I am astonished to hear his description of insurance companies selling claims, although I have come across it. They do not all do it, but this just adds gloss to the strange way in which this has all developed. I am also struck by the huge cost of these practices for institutions such as the national health service, which, in a bad year, can spend about £400 million—little short of half a billion—on legal fees. In many areas of practice, the legal fees are the biggest bill for the defendant. They often exceed the amount of compensation paid to the claimant. The right hon. Gentleman was obviously anxious to reform the system, and I am anxious to do so as well. I am glad to have taken up the baton.

[Mr John Whittingdale (Maldon) (Con)]

Is my right hon. and learned Friend aware that the Culture, Media and Sport Select Committee received considerable evidence that the massive increase in the cost of libel actions that can result from the use of conditional fee arrangements is having a seriously chilling effect on investigative journalism? Does he accept that the measures he has announced this afternoon are in some ways even more important for sustaining investigative journalism and scientific debate than the measures contained in his draft Defamation Bill?

[Mr Clarke]

I think that is right. This will have a big impact on defamation cases where people threaten the publisher of something they do not like with enormous costs if they want to defend the action. This is having, to use the jargon phrase, “a chilling effect” not only on scientific and academic work, but on proper investigative journalism. When we put the draft Defamation Bill together with what we are proposing to do in the light of Rupert Jackson’s proposals, the way in which we are setting up no win, no fee generally and the announcements I have made about the jurisdiction of the courts, I think we will make a significant impact on lowering the costs of all this litigation to the advantage of plaintiffs who have a legitimate grievance and of defendants. We are going to stop the whole thing being a high roller’s gamble, which is what it is at the moment, as to whether the other side dare face the risks of the huge costs being piled up the moment a claim is brought.

[Tony Lloyd (Manchester Central) (Lab)]

Whilst welcoming anything that will reduce the unnecessary costs to lawyers and others, will the Justice Secretary give a reasonable guarantee to constituents like my own, who are generally among the poorest people in Britain, that they will still be able to find legal assistance? The obvious problem with the 25% rule is that it might drive people below the threshold at which lawyers would be prepared to take the cases on. Will anything in the proposals deter people from obtaining proper expert evidence when that is necessary for them to fight their claim?

[Mr Clarke]

I think that people will think twice, as it were. At the moment, they are lured into making a claim by an advertisement on the back of a bus or in some local office. There are many people with perfectly legitimate personal injuries claims and the method I would wish them to pursue is to go to a solicitor who will consider the reasonable prospects of success and take it on on a no win, no fee basis—on the sort of terms that were always envisaged when we introduced the system into this country in the 1990s. People will have to think more carefully; there will be fewer purely speculative actions; and there will be fewer actions brought in the hope that the size of the legal costs is so great that the other side might be bullied into making an offer of settlement, regardless of their chance of success. I hope, however, that legitimate claims will prosper under a no win, no fee system, which is much closer to the lower-cost systems that other jurisdictions operate.

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

Thanks to the blame culture that developed under the last Government, one school in my constituency deemed it necessary to concrete over a very shallow paddling pool, in case a child had an accident and the school were sued. Another school considered cutting down all its trees in case children were to fall out of them, injuring themselves so that the school might be sued. I hope today’s statement will be the start of a fresh approach to this compensation culture.

[Mr Clarke]

I feel strongly, as does my hon. Friend, that we have an unacceptable compensation culture in this country. Like him, I notice it in my daily life. I think that doctors, teachers, policemen and most professional people are constantly concerned about the possible risk of litigation when they do perfectly ordinary things in the course of their daily lives. I dare say that the kind of submissions coming to Ministers are, in comparison with when I first received them, now so full of concerns about judicial review, the Human Rights Act and other legal constraints on what can be done that we are getting further and further away from common sense whereby people can exercise their judgment and, of course, be accountable to the law when they are at risk of breaking it—but only when they are at risk of breaking sensible law and might face litigation at reasonable cost.

[Keith Vaz (Leicester East) (Lab)]

I think that what the Lord Chancellor has said today has cross-party support. May I take him back to his comments about mediation? Is he suggesting that there should be mandatory mediation for very small claims? If he is, we have a problem with the number of qualified mediators. Will he look at this issue because it is all very well referring these cases, but we need the mediators to be able to deal with them?

[Mr Clarke]

We will make mediation an automatic part of the process if the result of the consultation supports such a move. Of course there will be cases that mediation will not resolve, and in those cases people will undoubtedly have the right to go to court. In the small claims courts we are already seeing a rapid extension of very successful mediation, often by means of telephone conference, which is resolving the smaller disputes.

As for the county court, following our extension of its jurisdiction, we will expect people to go along and be introduced to the prospect of mediation. We are consulting on the kind of people who will be required to conduct mediation sensibly, because, as the right hon. Gentleman says, a certain amount of skill and experience will be required for the process to produce the right results.

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

Has the Secretary of State had time to consider the possible implications for the overall number of county courts of the proposal to rationalise the county court by, for instance, allowing back-office functions to be combined?

[Mr Clarke]

We have just completed a consultation on our estate, and we have announced the closure of a number of courts. We aim to reduce back-office costs and the unnecessary expense that flows from different jurisdictions. Obviously we keep the proper usage of our estate under continuous review, but I do not expect the proposal to have any significant effect on the future of the courts that survived the consultation that we carried out a few months ago.

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

I accept the need for rationalisation of the jurisdictions of the county courts and High Courts. I also accept that, ultimately, mediation will be a good thing. However, evidence from the Access To Justice Action Group provides numerous instances in which poor people will be excluded altogether following the change in the no win, no fee arrangements, and I am desperately worried about that. The evidence contains no special pleading. It is excellent evidence, and I ask the Ministry to re-examine it in due course. If something is not done, this will prove to be a benefit match for the insurance companies only.

[Mr Clarke]

We considered very carefully the large number of responses to the consultation document, many of which opposed changes based on Sir Rupert’s proposals. Most of them came from plaintiff solicitors, but I do not dismiss them on that ground, because I share with those solicitors an interest in proper access to justice. We considered whether modified no win, no fee arrangements could be justified in that context.

There are two questions to be asked: have we affected people’s access to justice, and have we affected the profitability of practices that engage in no win, no fee with a reasonable level of success? Most of the responses that we received dealt with much more complicated questions, but I believe that we have retained proper access to justice while lowering the costs—and therefore, unfortunately in some cases, the profit margins—to more reasonable levels.

[Tony Baldry (Banbury) (Con)]

Some of us spend a large part of our professional lives trying to persuade litigants to accept reasonable offers. It is often difficult to explain to them what is a realistic quantum of damages in personal injury cases. Surely, with all the technology of the 21st century, it must be possible to devise a public website that could be updated with whatever decisions the Court of Appeal, the Supreme Court, the High Court and other courts have made in personal injury cases. That would provide a much more accessible and transparent explanation of the quantum in such cases at any given time, enabling litigants to assess the probability of a successful claim and the level of damages that they were likely to receive.

[Mr Clarke]

If my hon. Friend looks at our proposals, he will see that we intend to provide greater incentives for the settlement of cases. We also intend to impose cost penalties—beyond those that already exist—on those who either refuse good offers or do not meet the reasonable first demands of their opponents, but settlement is always preferable when it is possible.

I think I shall have to discuss with the judiciary the question of whether wider circulation could be given to recent awards of damages. However, I agree that in this day and age it ought to be possible to move on a little from the old days when gossip among members of the Bar about what they considered to be the current tariff for a particular injury was the best way of spreading knowledge about the direction in which the figures were moving. I will discuss my hon. Friend’s proposal with the Lord Chief Justice and others.

[Geraint Davies (Swansea West) (Lab/Co-op)]

The Secretary of State will know the situation facing families with household savings of less than £15,000, and that families with savings of over £16,000 are ineligible for benefits. Does he not think that raising the bar for access to justice through the small courts from £5,000 to £15,000 may be seen as rough justice for the many poorer families who might want a proper hearing for their case? It will have a massive impact on their household budget, and a much greater one than a larger amount for a richer family.

[Mr Clarke]

This has sometimes been looked at, hence it has been possible to raise these levels by quite large amounts as they have not kept in line with inflation for the last 15 years. What we are doing in respect of the small claims courts should be of assistance to people of low means, because the small claims courts have been quite successful as a reasonably informal, very low-cost way of resolving simple disputes or collecting straightforward debts which people cannot recover from those who owe them. It is right to extend that jurisdiction so that people are not faced with the daunting prospect of appearing before a judge in a formal court setting, and possibly having a lawyer on the other side and so forth, which comes at the next stage up, at county court.

[Jake Berry (Rossendale and Darwen) (Con)]

On the small claims courts, it is interesting that we are increasing the limit from £5,000 to £15,000. Will personal injury cases now be included, and will the recovery of legal fees be precluded in all cases up to £15,000?

[Mr Clarke]

We are only consulting, so we are open to arguments about whether or not £15,000 is the right figure; we might put it up further, or we might be persuaded to take it down. I personally think that extending the small claims court jurisdiction is a very desirable thing to do, but it will not be extended to personal injury cases, because the small claims court is intended for quick and easy disposal of fairly straightforward cases. Too many personal injury cases would clog up the system which is meant to be quick and relatively informal and for straightforward disputes.

[Dr William McCrea (South Antrim) (DUP)]

Can the Justice Secretary assure the House that all the proposed changes will safeguard the innocent, protect the vulnerable and ensure that access to justice remains the cornerstone of our society?

[Mr Clarke]

Well, I hope I can answer yes to all those questions. We are talking about civil jurisdiction here; there is no criminal jurisdiction. I think civil justice should be quick, efficient and accessible to most members of society. As the hon. Gentleman will know, most ordinary people regard any question of being muddled up with litigation, or having to go to court, with mortal dread. Middle England—or middle Ireland—feels itself completely excluded from a civil justice system that exists for the very poor, the very rich or the big corporations. We are, I hope, moving in the direction of enabling the ordinary citizen to make some use of the civil justice system again, and without quite as much fear as most people have of it at the moment.

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

Although I think there will be a general welcome for the 10% uplift in general damages, which should help to cover the payment out of success fees by claimants, does my right hon. and learned Friend agree that in a small number of cases where special damages form the lion’s share of an award, there is still a live issue as to the potential erosion of the value of the damages awarded by the payment out of success fees to lawyers?

[Mr Clarke]

The cap of the success fee—which is a kind of bonus to a winning lawyer who has taken a no win, no fee case—will not be applied to special damages. As my hon. Friend rightly says, special damages can be enormous, such as in cases where the plaintiff has been disabled for life, and if the so-called success fee—the bonus—is taken as a percentage of that, it could be colossal, even though the size of the award might not reflect the complexity and difficulty of the case, but just the fact that the plaintiff was very severely injured. We are increasing damages by 10% of general damages, and we are capping the success fee that the plaintiff will have to meet at 25% of the general damages. Special damages will not be affected.

[Rehman Chishti (Gillingham and Rainham) (Con)]

Can the Secretary of State confirm that the online road traffic accident scheme will be expanded to cover employers’ liability, public liability and personal injury claims up to the value of £50,000?

[Mr Clarke]

Yes, I would like to see that, we are consulting on that and I would be interested to hear my hon. Friend’s views. It has worked very well in the road traffic accident cases and we are therefore seeking to extend it, in line with his question.

[Andrew Bingham (High Peak) (Con)]

The tentacles of the compensation culture have wrapped themselves around British life for far too long, and I congratulate the Secretary of State on his proposals. Local authorities and public bodies face paying out more and more, so does he see his proposals as the first step towards a semblance of normality in this area?

[Mr Clarke]

I hope so. Let me make it clear that I am in favour of people who have suffered injury because of the fault or negligence of somebody else receiving proper compensation. In all those cases, people should have access to the courts and the right to have their case argued in the normal way, but what has happened is that this has become a widely publicised, rather commercial activity, which is having a considerable effect on the way in which many people lead their ordinary day-to-day lives. Let us go back to a sensible system of civil justice which does proper justice to both the claimants and the defendants, and get away from this rather extraordinary way we live at the moment, whereby huge sums can be made, mainly in legal costs rather than in damages, by bringing speculative claims against defendants who cannot afford to defend them.

[Stephen Phillips (Sleaford and North Hykeham) (Con)]

As those of us still practising can tell my right hon. and learned Friend, the costs associated with civil litigation are of just as much concern in higher value claims as they are in lower value claims, particularly to British businesses which need their rights adjudicated upon. In many jurisdictions, including some in the United States, mediation is compulsory in all civil cases. Will he consider ensuring that that is the position in England and Wales as well?

[Mr Clarke]

I will certainly consider that, and I am interested to hear about my hon. and learned Friend’s knowledge of the American experience. We are certainly seeking to extend mediation considerably, and we are consulting to see how far we can go in getting people to contemplate mediation before deciding which cases cannot be resolved that way and so have to go to ordinary litigation. I am glad that he welcomes that; we certainly wish to see a considerable extension of mediation and we will go as far as is sensible.

[Jessica Lee (Erewash) (Con)]

I declare my interest as a family lawyer.

Constituents involved in these proceedings are often frustrated about the length of the court process. They can be involved for a long time only for the case to be settled at the door of the court. Will my right hon. and learned Friend set out the steps being taken to case-manage matters at the earliest opportunity?

[Mr Clarke]

The new portal process should significantly speed up a very high proportion of cases. We will certainly continue to address the real point that my hon. Friend makes as we go on to consult. Quite apart from the dread of the cost, the main experience members of the public have of the courts, be they criminal or civil, is the astonishing amount of time they are likely to waste in abortive visits during a slow-moving process. They will often have to attend the court building needlessly on occasions when the court is adjourned before they can get to be a party, a witness, a juror and so on. I therefore appreciate the spirit of my hon. Friend’s question and we are certainly seeking to address it in this consultation process.

Prisoner Escort and Custody Services

Lord Clarke of Nottingham Excerpts

Wednesday 16th March 2011 Written Statements

[The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)]

I am today announcing that the Government have awarded four new contracts for the prisoner escort and custody services to Geo Amey PECS Ltd ( a joint venture between the Geo Group Ltd and Amey UK plc) and Serco Ltd.

This follows a competitive tender conducted in accordance with Public Sector Procurement Directive (2004/8/EC). Geo Amey PECS Ltd and Serco Ltd have offered the best overall bids in terms of quality of service and cost relative to the other bids received and will take over the service from 29 August 2011 for an initial period of seven years.

The award of contracts to Geo Amey PECS Ltd and Serco Ltd enable the MOJ to release significant cost savings, reducing current costs by 20% on current spend.

The scope of services being delivered by Geo Amey PECS Ltd and Serco Ltd include all inter-prison transfers, the movement of prisoners with mental health problems, extradition and cross-border moves. It excludes all category A movements. The final specification incorporates a number of business changes, including improvements to facilitate the operations of the courts.

Draft Defamation Bill

Lord Clarke of Nottingham Excerpts

Tuesday 15th March 2011 Written Statements

[The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)]

The Government have today laid before Parliament a draft Bill on defamation for public consultation and pre-legislative scrutiny. This reflects the coalition commitment to review the law of libel to protect free speech.

There are real concerns that the threat of libel proceedings is being used to frustrate robust scientific and academic debate, and to impede responsible investigative journalism and the valuable work undertaken by non-governmental organisations. These concerns relate not only to cases which actually come before the courts, but also in relation to the chilling effect on freedom of expression that is created more widely by the threat of costly and protracted legal proceedings against defendants who may often have limited resources.

The proposals in the draft Bill and consultation paper aim to ensure that the right balance in the law is achieved, so that people who have been defamed are able to take action to protect their reputation where appropriate, but so that free speech is not unjustifiably impeded. We also want to look at ways of speeding court cases up, so as to cut the costs involved in defamation proceedings.

The draft Bill contains provisions on the following issues:

A new requirement that a statement must have caused or be likely to cause substantial harm in order for it to be defamatory;

A new statutory defence of responsible publication on matters of public interest;

A statutory defence of truth (replacing the current common law defence of justification);

A statutory defence of honest opinion (replacing the current common law defence of fair/honest comment);

Provisions updating and extending the circumstances in which the defences of absolute and qualified privilege are available;

Introduction of a single publication rule to prevent an action being brought in relation to publication of the same material by the same publisher after a one-year limitation period has passed;

Action to address libel tourism by ensuring a court will not accept jurisdiction unless satisfied that England and Wales is clearly the most appropriate place to bring an action against someone who is not domiciled in the UK or an EU member state;

Removal of the presumption in favour of jury trial, so that the judge would have a discretion to order jury trial where it is in the interests of justice.

Issues which have not been included in the draft Bill at this stage, but on which the consultation paper seeks views are:

Responsibility for publication on the internet. The paper seeks views on whether the law should be changed to give greater protection to secondary publishers such as internet service providers, discussion forums and (in an offline context) booksellers, or alternatively how the existing law should be updated and clarified;

A new court procedure to resolve key preliminary issues at as early a stage as possible, so that the length and cost of defamation proceedings can be substantially reduced;

Whether the summary disposal procedure should be retained, and if so whether improvements can usefully be made to it;

Whether the power of the court under the summary procedure to order publication of a summary of its judgment should be made more widely available in defamation proceedings;

Whether further action is needed beyond the proposals in the draft Bill and the introduction of a new court procedure to address issues relating to an inequality of arms in defamation proceedings, including whether any specific restrictions should be placed on the ability of corporations to bring a defamation action;

Whether the current provisions in case law restricting the ability of public authorities and bodies exercising public functions to bring defamation actions should be placed in statute and whether these restrictions should be extended to other bodies exercising public functions.

We believe that publication of a draft Bill for full public consultation and pre-legislative scrutiny will help us to achieve fully considered legislative proposals which focus on core issues of concern where legislation can make a real difference. After the consultation process is completed, we intend to introduce substantive legislation as soon as parliamentary time allows.

Oral Answers to Questions

Lord Clarke of Nottingham Excerpts

Tuesday 15th February 2011 Commons Chamber

[Paul Goggins (Wythenshawe and Sale East) (Lab)]

6. When he plans to implement the Bribery Act 2010; and if he will make a statement.

[The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)]

I am at present working on the guidance to commercial organisations to make it practical and useful for legitimate business and trade. It will be published once I am confident that it addresses the legitimate concerns of all those who took part in the consultation process and who have made representations to me. The publication of the guidance will be followed by a three-month notice period before full implementation of the Act.

[Mr Binley]

Does my right hon. and learned Friend agree that the offences in the Act should not prevent businesses from using legitimate and proportionate promotional expenditure or corporate hospitality? I welcome the fact that he is going to prepare guidance, but will he do so on the basis that there is some fear and lack of knowledge out there, which needs to be dealt with?

[Mr Clarke]

I agree entirely with my hon. Friend, and I have had meetings with organisations such as the British Chambers of Commerce and the Federation of Small Businesses, whose members are particularly frightened about the prospects. Ordinary hospitality to meet and network with customers and to improve relationships is an ordinary part of business and should never be a criminal offence. I hope to put out very clear guidance for businesses of all sizes to make that clear and to save them from the fears that are sometimes aroused by the compliance industry—the consultants and lawyers who will, of course, try to persuade companies that millions of pounds must be spent on new systems that, in my opinion, no honest firm will require to comply with the Act.

[Joseph Johnson]

Many of our competitors overseas will not be so keen to rule out bribery as a means of competing. What steps will the Secretary of State take to ensure that British businesses are not put at a competitive disadvantage?

[Mr Clarke]

Along with the United States and others, we are one of the leading countries in pressing for a drive against corruption in the world, because corruption is bad for all business, including British business when it tries to export to other countries. Because of the debate that is taking place about the Act, I have had to reassure my American colleagues that we are not falling behind and that we will implement the Act. It is very important that we put ourselves where we should be—in the forefront of stamping out corruption not only in the developing world but in international trade generally.

[Paul Goggins]

May I encourage the Secretary of State to get on and implement the Act as soon as possible? Will he provide an assurance this afternoon that when the guidance is published, there will be no loophole for joint ventures or subsidiaries that would enable British companies to turn a blind eye to corruption?

[Mr Clarke]

I give that assurance, and I can assure the right hon. Gentleman that I am trying to get on with it. I believe it is possible to satisfy those who think we should give a lead in helping to stamp out corruption in international trade and other aspects of international relationships, and at the same time satisfy honest businesses that do not want unnecessary costs and burdens put upon them. They want the situation explained clearly to them so that, as my hon. Friend the Member for Northampton South (Mr Binley) said, ordinary hospitality cannot possibly be affected by the Act.

[Robert Flello (Stoke-on-Trent South) (Lab)]

Although I welcome the Secretary of State’s announcement that the Act will eventually be implemented, his comments today sound like rather a watering-down of the proposals. Yet the Foreign Secretary said at the Dispatch Box just two weeks ago:

“Both parties in the coalition supported the Bribery Act when in opposition, we support it now, and it will be brought in rigorously, effectively and fairly.”—[Official Report, 1 February 2011; Vol. 522, c. 733.]

Can the Secretary of State reassure the House that that is how the Act will be applied?

[Mr Clarke]

First, there is no watering-down of the Act. All parties supported it when it went through the House, and we are going to implement it properly. It requires me to provide statutory guidance to businesses on what steps they should take to ensure that they are trying to prevent bribery, and that is what I am working on. I believe that it is possible to produce guidance and enforce the Act in a way that produces the rigour and fairness that the hon. Gentleman demands. There is no backing down from the principles of the Act at all.

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[Pamela Nash (Airdrie and Shotts) (Lab)]

11. What work his Department is undertaking on the future of the Human Rights Act 1998.

[The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)]

The Government are committed to establishing a commission in 2011 to investigate the creation of a British Bill of Rights. We will make a statement to Parliament on the precise terms of reference and the appointment of the commission in due course.

[Pamela Nash]

I thank the Secretary of State for that answer. The Prime Minister has made it clear that he wishes to replace the Human Rights Act with a Bill of Rights, while the Deputy Prime Minister seems determined to defend the Act. Will the Secretary of State make it clear today, once and for all, on which side of the fence his Department sits?

[Mr Clarke]

What my two right hon. colleagues agreed on in the coalition agreement was to establish a commission to investigate the case for a Bill of Rights. I am now discussing that with the Deputy Prime Minister and, as I have said, we will announce in due course the terms of reference for the commission that is to resolve the issue.

[Mr Peter Bone (Wellingborough) (Con)]

Yet again, the coalition Government are doing the right thing by looking at a Bill of Rights. The Secretary of State never wastes any time, so will he tell me when the commission is going to report and when we are going to get some action?

[Mr Clarke]

We have firmly and urgently committed ourselves to establishing the commission in the year 2011.

[Bob Russell (Colchester) (LD)]

12. What advice his Department provides to members of tribunals hearing appeals against decisions on the award of disability living allowance.

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[John Howell (Henley) (Con)]

20. Which organisations he consulted in preparing guidance on the implementation of the Bribery Act 2010.

[The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)]

I refer my hon. Friend to the answer that I gave in reply to Question 1.

[John Howell]

I thank my right hon. and learned Friend for his comments on statutory guidance. During the Committee stage of the Bribery Bill, there seemed to be little appreciation among Labour Members that there were such things as legitimate promotional activities for companies. Will he ensure that the guidance is both clear and practical?

[Mr Clarke]

I agree with my hon. Friend. My hon. Friend the Member for Huntingdon (Mr Djanogly), who is now Under-Secretary of State for Justice, led for the Opposition at that time, and I believe that it was Conservative Members—including my hon. Friend the Member for Henley (John Howell)—who raised the problems that could be posed for legitimate businesses. It is because of those problems that we need the guidance, and the guidance must make it absolutely clear that ordinary, legitimate promotion—hospitality and similar activities in which people engage in order to project the quality of their company and its products or services, and to establish personal relationships with clients and customers—is all part of international trade. The Bill can be used to tackle corruption without damaging British business at a time of, we hope, revival in our international trade.

[Eric Ollerenshaw (Lancaster and Fleetwood) (Con)]

21. What plans he has for the future of the prison estate. Our current plans are to build the prisons to which we are contractually committed, and we recently announced the closure of three prisons. The Ministry of Justice recently published a Green Paper outlining proposals for reforms to sentencing and rehabilitation. We are considering our long-term strategy for prisons in the light of these policy developments.

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[Andrew Stephenson (Pendle) (Con)]

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

[The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)]

May I begin by making a topical statement, Mr Speaker?

Hon. Members will know that I am determined to deliver much overdue reform to the way in which the criminal justice system operates. Every year, 1.8 million criminal hearings and trials take place. The police, judiciary and others far too often find that the bureaucratic, inefficient system works against their best efforts, rather than for them. It is immensely frustrating that, for example, the key people in the system—the police, prosecutors and probation staff—are often unable to e-mail each other the crucial information they need to bring a prosecution; it all has to be done in hard copy. The average straightforward case heard in the magistrates courts takes 19 weeks from the offence being committed to the case concluding, and only four out of every 10 trials in the magistrates courts go ahead on the planned day. We cannot afford to maintain this sort of system that wastes the time of the police, victims and witnesses.

I am therefore working on radical plans to modernise and reform the criminal justice system and reduce these bureaucratic failings with my right hon. Friend the Home Secretary, my right hon. and learned Friend the Attorney-General, the judiciary, the criminal justice agencies and my right hon. Friend the Minister for Policing and Criminal Justice, who will take the lead role in co-ordinating our efforts. I look forward to receiving any representations on the subject and will report back to the House in the summer.

[Mr Speaker]

Order. I would be grateful if the Secretary of State did not also lay out the plans in the course of his answer.

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[Sadiq Khan (Tooting) (Lab)]

In this Saturday’s excellent Mary Riddell interview in The Daily Telegraph, the Lord Chancellor said:

“I slightly expect that some crimes will go up”.

I remind the House that in times of both growth and recession between 1997 and 2010 the level of crime consistently went down. I know that he is neither sloppy nor complacent, so can he tell the House what crimes he thinks will go up, why he thinks they will go up and what he is going to do about it?

[Mr Clarke]

During the period of the Labour Government, to which the right hon. Gentleman refers, acquisitive crimes against property fell particularly sharply. That was because of the growth of the economy and the boom, among other matters; these things are not too simple. The biggest fall in crime achieved when Labour was in office was on vehicle crimes, because the vehicle manufacturers greatly improved the security of the vehicles and made this more difficult. In this contentious and not simple area of what causes crime and what does not, I have always been inclined to believe that in times of recession the level of crime against property is likely to rise and in times of growth it tends to fall. That is why I have to be prepared to accommodate however many people are sent to us by the courts. What we are doing about it is making what I hope is a more effective system of preventing crime and of diverting people out of crime but punishing severely those who commit it.

[Mr Laurence Robertson (Tewkesbury) (Con)]

T2. According to Ministry of Justice figures, only 44% of people convicted of burglary offences actually get immediate custodial sentences. Does the Secretary of State think that that figure is about right or does he intend to take legislative steps to increase it?

[Mr Clarke]

As the Under-Secretary of State, my hon. Friend the Member for Reigate (Mr Blunt), said in reply to a question a moment ago, sentencing is a matter for the Sentencing Guidelines Council and for the judges, who hear all the facts of the case; they can hear a victim’s statement and they can hear mitigation for the accused. We keep an eye on percentages, of course, but the sentence in each case has to be the appropriate sentence for the facts of and the offender in the case. Although burglary is a serious offence that normally attracts imprisonment, it covers a wide range of circumstances, from someone breaking in with a hood over his head in the middle of the night to someone walking through an open door grabbing a knick-knack and running out through the door again. So we have to leave it to the judges.

[Jeremy Corbyn (Islington North) (Lab)]

T6. Has the Secretary of State considered carefully the representations that he will have received concerning clause 151 of the Police Reform and Social Responsibility Bill on universal jurisdiction? He will be aware that restricting access to the British courts in respect of crimes against humanity committed anywhere in the world will send a very bad message to the rest of the world and will make this country a more pleasant place for war criminals and those who have committed crimes against humanity to try to come to.

[Mr Clarke]

I must make it absolutely clear that the Government are not reducing, in any way, the importance we attach to the proper enforcement of the law against those guilty of war crimes or crimes against humanity. We are making a slight change to the circumstances in which a citizen can obtain an arrest. The prior approval of the Director of Public Prosecutions will be needed, in order to make sure that there is a reasonable prospect of prosecution in the case; that is not where we are at the moment. I assure the hon. Gentleman that nobody on either side of the House wishes to see this country downgrade the importance we attach to enforcing crimes against humanity and war crimes.

[Andrew Bridgen (North West Leicestershire) (Con)]

T3. It is reported that about 70% of prison inmates are believed to have two or more mental health conditions and that about one in 10 prison inmates have a serious mental health problem. What steps are the Government taking better to identify and help prisoners with mental illness?

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

Does the Secretary of State agree that increasing the number of people in our prisons should not be an end of Government policy in itself, but rather that the prison population should reflect the number of indictable crimes committed?

[Mr Clarke]

I entirely agree with my hon. Friend, although determining how many prisoners we should have can become a completely false argument, as that is determined in any event by the courts reacting to the level of crime and proposing appropriate sentences. We are determined to use prisons so that not only do they punish the offender, but, where possible, we can increase the number of offenders who are persuaded to give up crime when released and cease to offend thereafter, which will reduce the number of victims. I think that the approach taken by the Under-Secretary of State, my hon. Friend the Member for Reigate (Mr Blunt), is the common-sense approach and in the public interest.

[Mr Tom Watson (West Bromwich East) (Lab)]

The Lord Chancellor should not allow himself to be pushed around by The Sun newspaper. Does he agree that the cause of public justice would be best served if News International spent less time traducing the characters of Ministers and more time revealing to the Metropolitan police the contents of the e-mails held in the data warehouse in central London?

[Mr Clarke]

I shall try to avoid following my right hon. Friend the Secretary of State for Business, Innovation and Skills in answering that question. Kelvin MacKenzie could confirm to the hon. Gentleman that I have not been pushed about by The Sun for as long as either he or I can remember.

I was amused to read the article by the leader of the Labour party in The Sun this morning, remembering his resounding promise not to try to out-right the Conservative party on the subject. I was reminded of an article by Tony Blair published just before the 1997 election and entitled “Why I Love the Pound”. When I read the Leader of the Opposition’s article this morning, I was relieved to see that he listed many things on which he agrees with me and did not indicate a specific area where he committed himself to doing anything different from what the present Government are doing.

[Henry Smith (Crawley) (Con)]

Crawley court house in my constituency deals with a large number of cases, including those emanating from Gatwick airport. Will the Minister agree to meet local magistrates, my local authority and me to see whether the court house could be part of a major town centre redevelopment that is shortly to get under way?

Departmental Expenditure Limit (2010-11)

Lord Clarke of Nottingham Excerpts

Monday 14th February 2011 Written Statements

[The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)]

Subject to parliamentary approval of any necessary supplementary estimate, the Ministry of Justice (MOJ) and The National Archives (TNA) and the UK Supreme Court (UKSC) total departmental expenditure Limit (DEL) will be increased as follows:

Total DEL for MOJ (request for resource 1, 2 and 3) is increased by £95,593,000 from £9,099,706,000 to £9,195,299,000 and the administration budget has increased by £61,577,000 from £416,230,000 to £477,807,000.

Total DEL for the TNA will be decreased by £155,000 from £39,272,000 to £39,117,000.

Total DEL for the UKSC will be increased by a token £1,000.

Within the total DEL change for MOJ (request for resource 1, 2 and 3), the impact on resource and capital are as set out in the following table:

Victim and Witness Voluntary Sector Funding

Lord Clarke of Nottingham Excerpts

Monday 31st January 2011 Written Statements

[The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)]

The Government are committed to ensuring that assistance is available for those victims and witnesses of crime most in need of support. I have now announced grant funding of up to £9.8 million per year, for three years, for voluntary sector groups providing specialist support to many of the most serious, most vulnerable and persistently targeted victims and witnesses of crime.

This grants scheme includes a dedicated funding stream of up to £3.5 million annually to meet the Government’s commitment to provide rape crisis centres with stable, long-term funding.

The remainder of the fund will be open to a wider range of voluntary sector organisations that provide support better targeted on the most vulnerable victims and witnesses of crime, including groups that offer specialist support to those bereaved by murder and manslaughter.

Final funding decisions will be announced in April 2011.

Criminal Proceedings (Information Rights)

Lord Clarke of Nottingham Excerpts

Wednesday 26th January 2011 Ministerial Corrections

The following is an extract from a speech in debate in the European Committee B debate on the EU Directive on the Right to Information in Criminal Proceedings by the Lord Chancellor and Secretary of State for Justice, the right hon. and learned Member for Rushcliffe (Mr Clarke) on 2 December 2010.

[Mr Clarke]

On Scotland, it costs the Scots about £500,000. They do not have a letter of rights at the moment—they will devise their own. It will be in accordance with Scottish law, not English and Welsh law, but they are happy to comply, because their standards are the same as ours. They will wish to give the same justice to people who appear in Scottish courts.

[Official Report, 2 December 2010, European Committee B, c. 13.]

Letter of correction from Mr Kenneth Clarke:

An error has been identified in the answer given to the hon. Member for Bishop Auckland (Helen Goodman) about the costs of implementing the directive in Scotland.

The figure given should have been approximately £50,000—which includes written translation of a new letter of rights but does not include associated costs for training and putting in place the necessary legislation.

Freedom of Information

Lord Clarke of Nottingham Excerpts

Tuesday 18th January 2011 Written Statements

[The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)]

On Friday 7 January 2011, the Ministry of Justice announced the Government’s plans to extend the scope of the Freedom of Information (FOI) Act and to further increase transparency in public affairs. The Government will bring forward a number of measures to bring those plans into effect:

We will introduce a section 5 order under the Freedom of Information Act in the spring to bring the Association of Chief Police Officers, the Financial Ombudsman Service and the University and Colleges Admissions Service within the Act’s scope.

We will also consult a range of further bodies with a view to their inclusion in the Act by a further section 5 order later this year. This includes bodies as diverse as Examination Boards, Harbour Authorities, the Local Government Association and the NHS Confederation.

We will amend section 6 of the FOI Act in the Freedom Bill to end the anomaly where companies wholly owned by a single public authority are subject to the Act but those wholly owned by more than one public authority are not. We will also introduce measures to enhance the independence of the Information Commissioner’s Office in the same Bill.

We will ensure that, starting from 2013, Government and other public records are made available at the National Archives or other places of deposit 10 years sooner than at present by commencing amendments to the Public Records Act to reduce the 30-year rule to a 20-year rule. In tandem, we will also commence amendments to the FOI Act to reduce the time some types of information—including information contained in court records, and relating to ministerial correspondence and policy formulation—may be withheld.

Finally, we will also conduct a process of post-legislative scrutiny of the FOI Act to see how well the Act is working in practice and whether further changes should be made. It is important that this review of legislation, designed to promote openness and transparency, is itself undertaken in a transparent way and with the involvement of Parliament.

The measures outlined above will increase transparency. However, we must also ensure that information which it is not in the public interest to release is properly protected, and that we have proper regard to this country’s long-standing constitutional conventions. It is for this reason that on 16 January 2011, I made a commencement order to bring into effect changes made in the Constitutional Reform and Governance Act 2010 to enhance the protection for information relating to communications with the royal family and royal household. The changes provide an absolute instead of a qualified exemption for information relating to communications with the sovereign, heir to the throne or second in line to the throne or those acting on their behalf. The exemption for other members of the royal family and members of the royal household remains qualified. The lifespan of the exemption changes from 30 to 20 years or the lifetime of the relevant member of the royal family plus five years, whichever is longer.

This amendment to the FOI Act is necessary to protect the long-standing conventions surrounding the monarchy and its records, for example the sovereign’s right and duty to counsel, encourage and warn her Government, as well as the heir to the throne’s right to be instructed in the business of Government in preparation for their future role as monarch. The changes will come into force tomorrow.

Copies of the Constitutional Reform and Governance Act 2010 (Commencement No. 4 and Saving Provision) Order 2011 (SI 2011 No. 46 (C. 3)) have been placed in the Vote Office and Printed Paper Office.

Prison Capacity Management

Lord Clarke of Nottingham Excerpts

Thursday 13th January 2011 Written Statements

[The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)]

We are continuing to expand the prison estate and construction of new prisons is under way at Belmarsh West and Featherstone 2. The prison population has been growing but has not grown as fast as previously projected. As a result there is scope to reduce overall capacity. We are committed to accommodate all those sentenced to custody by the courts and the decisions of the courts will determine the future level of the prison population and capacity.

I am therefore announcing plans to close two prisons and change the use of a third to an immigration removal centre holding immigration detainees on behalf of the UK Border Agency (UKBA).

The conditions at HMP Lancaster Castle and HMP Ashwell are well known. HMP Lancaster Castle is housed in a medieval castle and while staff at the establishment have done an admirable job and must be commended, the building places severe limitations and restrictions on their ability to deliver the requirements of a modern prison service. Two thirds of the accommodation at HMP Ashwell is out of use, and the estimated refurbishment costs mean that it would not be financially viable to rebuild the site to the standards required.

HMP Lancaster Castle and HMP Ashwell will therefore close. A range of options for staff at these sites is being developed, including redeployment to neighbouring establishments and a voluntary exit scheme. Prisoners will be moved to other establishments appropriate to their security category

A third prison, HMP Morton Hall, will close and then reopen as an immigration removal centre, holding immigration detainees on behalf of UKBA. The prison will continue to be managed by the National Offender Management Service but under the terms of a service level agreement with UKBA. The women who are currently held in HMP Morton Hall will be moved to other sites within the estate. These moves will be managed carefully by NOMS to ensure that they are completed safely.

Work to effect these changes will start immediately.

The changes outlined in this statement will reduce our current capacity by 849 places. This can be safely managed within existing operational capacity, while maintaining our ability to cope with any increase in population. On Friday 7 January the prison population stood at 82,991 with useable operational capacity at 87,936.

We remain committed to hold those offenders sentenced to custody by the courts but we cannot afford to maintain inefficient and costly places that are not actually required given the capacity now available within the prison estate as a whole. These changes are an important step in our strategy to provide a secure and modern, fit for purpose prison estate, while improving efficiency and value for money.

Oral Answers to Questions

Lord Clarke of Nottingham Excerpts

Tuesday 11th January 2011 Commons Chamber

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

2. What definition of a long-term custodial sentence his Department uses.

[The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)]

The Criminal Justice Act 1991 defines a long-term prisoner as

“a person serving a sentence of imprisonment for a term of four years or more”.

There are still some prisoners serving sentences under the 1991 Act, but the term has not been in use since 2003.

[Dr Coffey]

I thank my right hon. and learned Friend for that answer. I am sure he is aware that another Department is relying on the definition he provides. A lot of my constituents will be concerned that some serious offences are not attracting the term of four years that he refers to. For example, a rape recently carried a sentence of three and a half years and an armed robbery in which the offender brandished a knife carried a sentence of under four years. If we want to be serious about crime, we have to be serious about sentencing.

[Mr Clarke]

Nobody draws an arbitrary line. However, I quite agree that serious offences do not always attract four years’ imprisonment. I suspect that my hon. Friend’s reference to another Department concerns the Deputy Prime Minister and a prisoner’s right to vote, which I believe is the subject of the next question. The four-year divide is used for some purposes in the Prison Service: people with more than four years are regarded as unsuitable for home detention curfew before release. The approach to prisoners’ voting rights is an attempt to find a rational threshold above which it makes sense to draw the line. No doubt we will return to that issue—perhaps in a few moments.

[Kevin Brennan (Cardiff West) (Lab)]

If the term is no longer in use and is arbitrary, why are the Government using it to allow robbers, sex offenders and others the vote?

[Mr Clarke]

We have taken legal advice on what is necessary. [Interruption.] No doubt the previous Government did so when they consulted and suggested a four-year margin themselves. [Interruption.] They did. They consulted twice on prisoners’ voting rights but were unable to come to any conclusion. No doubt they were desperately panting for the election date in the hope of getting over the line and leaving it to us. They contemplated the four-year figure and we have to draw a line rationally to comply with the legal obligations that the previous Government neither doubted nor cast doubt on.

[Mr James Gray (North Wiltshire) (Con)]

3. What discussions he has had with the Prison Service on arrangements to enable certain prisoners to vote.

[The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)]

Prisoners given the right to vote under the Government’s proposals will vote by post or proxy in the constituency of their normal residence. That is the basis on which prisoners on remand and prisoners convicted but unsentenced already vote under existing long-established procedures.

[Mr Gray]

If, as the Government propose, prisoners serving less than four years are given the vote, the vote will be given to 6,000 violent offenders, 2,000 sex offenders, 6,500 robbers and burglars, and 4,500 drug offenders, which any sensible person, including the Prime Minister, I think, would find wholly offensive and unacceptable. Does the Secretary of State agree that it should not be the European convention on human rights that decides matters but Parliament, and will he listen not to the lawyers but to other European countries such as Belgium, where the vote is given to prisoners serving up to four months? Let us make it four months—even better, four days; even better than that, four minutes.

[Mr Clarke]

I do not think that anyone in government, including my right hon. Friend the Deputy Prime Minister, is under any illusion about the popularity of the proposal to be introduced. We are under legal obligations which no one is suggesting we should repudiate. As I often had to explain when I practised law to dissatisfied litigants who had just lost a case that they would have preferred to win, one can get into more trouble if one seeks to define it. If my hon. Friend wishes really to enrage his constituents and mine, he runs the risk of taking a decision that will result in thousands of prisoners being given compensation for their lost rights and in tens of millions of pounds of expenditure incurred by the taxpayer. We are in government, I am afraid, as I often find myself saying to our Liberal Democrat colleagues, and we have to act responsibly, whatever our inner feelings about the wisdom of the judgment that has been reached in the Court whose jurisdiction we still accept.

[Mr David Crausby (Bolton North East) (Lab)]

Is the Secretary of State for Justice considering any additional precautions regarding the postal vote for prisoners because, after all, we are dealing with criminals?

[Mr Clarke]

At the moment, without anybody making any fuss at all, people on remand have been casting postal votes from prison, and have probably been doing so, as far as I am aware, throughout my political career. That is also the case for people who have been convicted but have not been sentenced, including individuals convicted of serious offences. Not many of them bother to do so, and I am not aware that they have ever made a significant difference to the result in a single constituency, but the fact is that we have to address the consequences of this judgment. We propose that, even for those people with a sentence of less than four years, there should be judicial discretion to remove the right to vote as part of the punishment in appropriate circumstances.

All of this can be debated when it comes up, but I urge Members on both sides of the House not to go too far beyond expressing understandable annoyance, and not to begin to commit themselves to a course that would cost the taxpayer tens of millions of pounds, to no particular effect.

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

I accept the difficulty that the Secretary of State faces, bearing in mind the will of the public and the will of Parliament expressed on both sides of the Chamber. However, what analysis has he made of the situation in Belgium, where a prisoner serving more than four months forgoes the right to vote?

[Mr Clarke]

One by one, various countries have been challenged on that front, and one by one the more restrictive measures are falling. Some have no restrictions at all, and just allow prisoners to vote. It was necessary for the Government and my right hon. Friend the Deputy Prime Minister to take the best legal advice on what could protect us against the risk of future claims and judgments, draw a line under that and comply with legal objections. That is the basis on which we arrived at four years, and as I have just explained, there is some logic in putting a four-year threshold in, as we can refer back to the old definition of long-term imprisonment to explain rationally why we have chosen that threshold.

[Sadiq Khan (Tooting) (Lab)]

It is worth reminding the House that details of plans to allow people serving sentences of up to four years to have the vote was given via press release on the last Friday before we broke up for Christmas. May I ask the Secretary of State what role Ministers in his Department played in the Deputy Prime Minister’s plans, and can we take it that he, his Ministers and all the Law Officers agree with the Deputy Prime Minister that four years is the appropriate threshold?

[Mr Clarke]

I was obviously involved in the collective discussions, as were colleagues, and we took the best legal advice. I remind the right hon. Gentleman that the previous Government accepted the legal obligation. The Government in which he recently served undertook two consultations, and they canvassed four years as a possibility. [Interruption.] With great respect, they did canvass four years, and they also accepted that prisoners should vote in all elections, including local government elections and referendums. We have drawn back from that. We are proposing that they should vote only in parliamentary and European elections.

[Heidi Alexander (Lewisham East) (Lab)]

4. What recent discussions he has had with ministerial colleagues on the likely effect on the expenditure of other Departments of his proposed changes to expenditure on legal aid.

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[Stephen Phillips (Sleaford and North Hykeham) (Con)]

7. What steps he is taking to increase the standard of appointments to the Bench in England and Wales.

[The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)]

Judicial appointments are made solely on the basis of merit. On 9 November, I announced the conclusions of an internal review of the judicial appointments process undertaken in close consultation with the Lord Chief Justice. The review did not identify concerns with the quality of appointments to the Bench.

[Stephen Phillips]

I am grateful to my right hon. and learned Friend for that answer. The judiciary in this country has for a century been the envy of lawyers across the world, but there is a perception, at least, that that has recently begun to change, partly as a result of the creation by the previous Government of the Judicial Appointments Commission—an unnecessary quango that cost an enormous amount of money. Judicial appointments were formerly made by the Lord Chancellor, having consulted the Bench and on the advice of his officials. Does my right hon. and learned Friend agree that that was a much better system and one to which we ought to return?

[Mr Clarke]

As I said, we have been reviewing the system. I do not think that the Judicial Appointments Commission can be criticised on the basis of the quality of appointments; I have not heard any credible evidence that people think that quality is deteriorating. However, it is costing too much, it is not very efficient, and it takes too long. Its budget is about £10 million—£9.8 million, to be precise—and it can take 18 months from start to finish to appoint a judge. In the light of the review, we will be looking at that and making sure that it operates with efficiency. Obviously, appointment on merit and getting the highest quality of appointments remains the main focus of any judicial appointments system.

[Stephen Timms (East Ham) (Lab)]

9. What plans he has for the future funding of welfare advice services currently funded from legal aid.

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[Andrew George (St Ives) (LD)]

10. What plans he has to ensure adequate support for victims and their families during the criminal justice process.

[The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)]

Victims and their families are supported through a number of schemes, including joint police and Crown Prosecution Service witness care units, the witness service and, in the case of bereaved families, the homicide service. Their rights are enshrined in law under the code of practice for victims of crime. We do, however, continue to seek ways to improve the care offered to victims through the criminal justice process.

[Andrew George]

I am grateful to the Secretary of State for that answer. There are cases in which victims, including deceased victims, have their reputation defamed during a case, in particular when mitigation is being advanced. A Victim Support report in December found that as many as 44% of victims or their families were not made aware of their right to make a victim personal statement. What are the Government doing to ensure that victims are given full support and are aware of their rights?

[Mr Clarke]

I share the hon. Gentleman’s feeling on the importance of victim personal statements. In the cases that he describes of victims being defamed in mitigation, it is important that victim personal statements are properly made and responsibly reported. We are doing our best to encourage that and are considering how we can ensure that such statements become a more usual practice.

[Steve McCabe (Birmingham, Selly Oak) (Lab)]

Does the Secretary of State share my concern that the police and the CPS too readily recommend bail for those who are accused of domestic violence and related intimidation, thus disadvantaging the victims and their families right at the start of the process?

[Mr Clarke]

These are all difficult matters of judgment. Obviously, many important considerations must be borne in mind when deciding whether to recommend or grant bail, including any further risk to the alleged victims of the offences. It is difficult for Ministers or Parliament to lay down hard-and-fast rules when the people involved are fully aware of the need to protect victims from harm while proceedings are pending.

[Karl Turner (Kingston upon Hull East) (Lab)]

11. What plans he has to implement the recommendations of the Bradley and Corston reviews of the criminal justice system.

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[Mrs Jenny Chapman (Darlington) (Lab)]

12. What assessment he has made of the effects on public protection of releasing those with indeterminate prison sentences who have completed their minimum tariff.

[The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)]

Prisoners serving indeterminate sentences who have completed their minimum tariff are released from custody only if the independent Parole Board is satisfied that the risk of harm that they pose to the public is such that it may reasonably be managed in the community.

[Mrs Chapman]

The Secretary of State will be aware that inmates serving indeterminate public protection sentences will have committed some of the most severe offences. Often, the reason they are not released after their minimum tariff is that they still pose a great risk or have not been able to complete the rehabilitative courses that are available. Will he either spend more money on rehabilitation inside prisons or change the method by which risk is assessed?

[Mr Clarke]

We addressed this problem in the Green Paper, on which we are consulting. It is quite obvious that the IPP system has never worked as either the previous Government or Parliament intended. Indeed, the previous Government made one attempt to revise it to stop the unexpectedly large numbers of people who were going into the system. IPP prisoners are almost all high-risk, and they should be released only once they have been assessed by the Parole Board, but of course it is extremely difficult to form judgments about the risks that they pose when they are in prison and sometimes unable to access rehabilitation courses. We published our proposals in the Green Paper and are now consulting on them, but we have no intention whatever of putting the public at more risk by releasing people without some assessment by the Parole Board. However, it has to be a sensible assessment that can sensibly be made.

[Sadiq Khan (Tooting) (Lab)]

I welcome the last part of the Secretary of State’s answer in particular. He will be aware that indeterminate sentences are given to serious criminals such as the ring leaders in the grooming of vulnerable girls for sex convicted last week at Nottingham Crown court. He will appreciate concern that, in his desire to reduce the prison population, he may release dangerous convicted prisoners prematurely. He talked about those currently serving IPPs who have served their minimum tariff. How soon does he think his proposals will have an impact on those prisoners, and how will he address the British public’s legitimate concerns?

[Mr Clarke]

At the moment, more than 3,000 people on an IPP sentence have completed their minimum tariff, which is the punishment for the crime for which they are sent to prison, and a very small proportion of those are being released. The numbers are piling up all the time, and recommendations are frequently made to the Department that the matter has to be re-addressed, because we have more than 3,000 people whose release from prison is totally uncertain. We are now consulting and there will be legislation in the spring, which will have to be enacted and improved by the House before a new system comes into effect. That system will retain the need for the Parole Board to make a sensible assessment of whether the risk posed by those in question can properly be managed in the community.

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

13. What recent research his Department has (a) commissioned and (b) evaluated on rehabilitation and reintegration of prisoners into society.

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[Helen Jones (Warrington North) (Lab)]

14. What recent discussions he has had with the Secretary of State for Health on the provision of mental health care for offenders.

[The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)]

We have worked closely with the Department of Health and the Home Office on providing mental health care for offenders. The sentencing and rehabilitation Green Paper highlighted our commitment to identifying individuals with mental health problems at an early stage of the criminal justice process to ensure that they have access to effective treatment. An across-Government mental health strategy is due to be published early in 2011, which will focus on achieving improved outcomes for all people with mental ill health, including offenders.

[Helen Jones]

I am grateful to the Secretary of State for that answer, but if more offenders with mental health problems are to be dealt with in the community, exactly what funding will be available to support them? Will the NHS, which is already being subjected to cuts, be left struggling to cope, and offenders left more likely to reoffend?

[Mr Clarke]

Obviously, my right hon. Friend the Secretary of State for Health is in the lead on the strategy. He is looking at ways in which to redirect his budget to get more effective community and other treatment for mental health problems. Offenders will be taken into account in the course of that, but it is important that we ensure that it is done within the available resources, and that those resources are used to the best positive effect for the community as a whole, not just offenders.

[Andrew Percy (Brigg and Goole) (Con)]

Far too many young offenders have undiagnosed mental health problems. May we have an assurance that the cross-departmental strategy that is being worked on will involve the Department for Education and concentrate specifically on young people who commit crime, often due to mental health problems?

[Mr Clarke]

With respect, my hon. Friend makes a valid point and we are examining ways in which we can divert more young offenders in particular out of the criminal justice system into mental health treatment when that is most appropriate. It is not unusual to encounter somebody about whom any ordinary member of the public would think, “This person needs treatment, rather than just being viewed as a criminal offender.”

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[John Mann (Bassetlaw) (Lab)]

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

[The Lord Chancellor and Secretary of State for Justice (Mr Kenneth Clarke)]

To begin with a topical statement, I must tell the House that approximately 40 prisoners were involved in a serious disturbance at Ford prison between 31 December 2010 and 1 January 2011, which resulted in parts of the establishment being set on fire. Staff withdrew from the prison’s B wing for their own safety and specially trained prison staff were deployed to regain control of the prison and assist the fire service in its efforts to extinguish the fires.

Last night, there was disorder at Littlehey prison which, I am glad to say, was brought under control quite quickly. To the credit of those staff involved, no staff or prisoners sustained serious injury.

The Prison Service manages some of the most dangerous people in society and we normally have 30 such incidents every year. I pay tribute to the prison staff and the fire service for the skill with which they handle these matters on behalf of us all.

[John Mann]

In a statement to the House, the Under-Secretary of State for Justice, the hon. Member for Huntingdon (Mr Djanogly) said that Worksop county court would be transferring to Worksop magistrates court, and he confirmed that in answer to my question. In fact, the opposite has happened. Is he the kind of Minister who is in control of his Department and is his word his authority when he speaks to this House, or is he the monkey to his civil servants’ organ grinder?

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[Helen Goodman (Bishop Auckland) (Lab)]

In view of the serious riot at Ford open prison, does the Minister wish to revise the statement issued by the Ministry of Justice when announcing its public spending cuts—including a reduction of 10,000 in the number of front-line staff—which said that by taking such “tough decisions” it will be able to

“punish and rehabilitate offenders more effectively”?

[Mr Clarke]

The National Offender Management Service is undertaking a full investigation into what happened at Ford. Obviously, the behaviour there was deplorable and we must learn every lesson we can about what happened and how we can minimise the risk in future. So far as I am aware, the prison was staffed at its normal level and we had made no changes since we took office to the arrangements under the previous Government. We should not start leaping to conclusions about whether anything was at the heart of these events other than the appallingly bad behaviour of people who had been acquiring alcohol in the run-up to new year’s eve. We are looking carefully at all the circumstances and will draw the proper lessons from that.

[Helen Goodman]

Of course it is important to wait until the inquiry, but does the Secretary of State honestly think that Ford would be adequately managed if the number of staff on duty were reduced to four or five to supervise 500 people each night?

[Mr Clarke]

That is a totally hypothetical question, given that the prison had the level of staffing instituted by the previous Government to which we have made no change. It is owing to the deplorable record of the previous Government that we are having to ensure better value for money from a reduced departmental budget. It has all exploded in the past few years and now has to be looked at more carefully. However, it is complete nonsense to work out from that that we are going to reduce a particular level of staffing on the night shift at a particular prison. We are approaching the whole thing slightly more sensibly and scientifically.

[Laura Sandys (South Thanet) (Con)]

T3. Will the Minister confirm whether the Department is still contracting with Clearsprings to provide accommodation for ex-offenders? The policy undertaken by the previous Government attracted a lot of ex-offenders to my constituency because of our low rental costs, and actually caused an increase in our deprivation issues and social problems.

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[Andrew Bridgen (North West Leicestershire) (Con)]

T6. With the Government’s announcement of the Green Paper, and their intention to cut prison numbers and strengthen community sentences, will the Minister outline to the House his plans for the role of the probation service and probation trusts, given that those two organisations are likely to have a vastly increased work load as a result of the policy?

[Mr Clarke]

First, let me emphasise that the Green Paper does not set out an intention to cut prison numbers and to substitute with community sentences and so on. We have given our best estimate of what we think the consequences of the Green Paper will be. However, the number of people who will go to prison will depend on the courts and their decisions. We expect that the number may be reduced by about 3,000 over the next few years. We are looking in particular at community payback, and at how we can introduce more competition in that—which the previous Government were contemplating—and diversify the way in which it is provided. We need to make community sentences more effective, but the key thing about them, as with everything else, is that they must be appropriate punishments for the crimes that the people concerned have committed.