Oral Answers to Questions

Oliver Heald Excerpts

Tuesday 18th December 2018 Commons Chamber

[Lucy Frazer]

I think the hon. Lady will have been pleased to see a paragraph in relation to extradition in the future framework.

[Sir Oliver Heald (North East Hertfordshire) (Con)]

Ministers will be aware of the very low attainment in reading among prisoners. Is anything being done to try to improve the situation? I understand that the average reading age in a prison is 11.

[Rory Stewart]

It is a very serious problem. As my right hon. and learned Friend has pointed out, almost half the prisoners have a reading age of under 11. Perhaps 25% of prisoners have a reading age of six. There is an enormous amount that we can do and that is where the education and employment strategy comes in, which is about making sure that the education is relevant and leads to a job.

Criminal Legal Aid

Oliver Heald Excerpts

Tuesday 8th May 2018 Commons Chamber

[Richard Burgon (Leeds East) (Lab)]

I beg to move,

That the Criminal Legal Aid (Remuneration) (Amendment) Regulations 2018 (S.I., 2018, No. 220), dated 20 February 2018, a copy of which was laid before this House on 23 February, be revoked.

The gravest consequences for anyone accused of a serious crime in our criminal justice system is that their liberty is taken away from them. When that is at stake, no one should be left unrepresented in a court. When that is at stake, we have a duty, as a society, to guarantee the future of effective legal representation. Failing to do so creates the real risk of injustices. This motion today is about the threats posed to our justice system and specifically to criminal defence by the Government’s changes to the payments for the criminal legal aid system. These changes are why around 100 chambers are now, in effect, striking, taking co-ordinated industrial action, and refusing more publicly funded work. The serious consequences of this action are clear for all to see. As the BBC reported on 4 April:

“A murder case at the Old Bailey has become one of the first to be affected by a strike by barristers.”

On 9 April WalesOnline explained:

“A woman accused of murdering Swansea pensioner John Williams has appeared in Crown Court without legal representation because of a barristers’ strike.”

There are many other examples.

[Sir Oliver Heald (North East Hertfordshire) (Con)]

The hon. Gentleman must recognise that the Bar was strongly in favour when this was consulted on, with statements such as

“the bar council and the young barristers committee welcome new proposals published today”,

and

“as circuit leaders over the period of the negotiations it is our shared view that we should support the implementation of the scheme”.

The Criminal Bar Association was in favour. So what exactly is the hon. Gentleman talking about?

[Richard Burgon]

Well, this is not the CBA’s scheme and it does have serious concerns about aspects of this provision. Tonight is an opportunity for the Government to think again and make some sensible concessions on the most controversial aspects. If everyone was happy with the measures, the criminal barristers would not have voted by 90% to take strike action.

We have a responsibility to contribute to resolving this situation by encouraging negotiation and facilitating a solution before there is further escalation. That means that the Government should withdraw these controversial changes, go back to the drawing board and come up with a scheme that attracts widespread support, rather than provoking a backlash.

--- Later in debate ---

[Sir Oliver Heald]

I think everyone would acknowledge that to go out and do the job of a criminal barrister is incredibly demanding, and that the profession faces challenges of various sorts. On the negotiations on the advocates’ graduated fee scheme, great efforts were made to involve the Bar at every stage. The Legal Aid Agency put a huge amount of work into the talks, as did the Ministry of Justice. The intention was to find a better way of paying barristers, not to do anyone down. Does the Minister agree that the response to the consultation document, which was so positive, seems to have evaporated for some reason?

[Lucy Frazer]

My right hon. and learned Friend, who was a Minister at an early stage in this process, makes a very important point. The scheme we are debating today came about because both the Bar and the Government accepted that the old scheme was outdated. Advocates told us that it did not reflect the amount of time and effort they put into their cases. For example, under the old scheme there were no separate fees for the second day of a trial and there were no fees for a sentence hearing. The new scheme is the result of a two-year exercise involving the leadership of the Bar—the Bar Council—the Criminal Bar Association and the circuit leaders. When the scheme was put forward in a consultation in 2017 it was widely welcomed by those organisations.

Oral Answers to Questions

Oliver Heald Excerpts

Tuesday 24th April 2018 Commons Chamber

[Lucy Frazer]

As the right hon. Gentleman knows, the Bill is in the hands of the Department for Environment, Food and Rural Affairs, and it will respond.

[Sir Oliver Heald (North East Hertfordshire) (Con)]

May I update my hon. and learned Friend? Some 34 out of the 41 police commissioners in this country support the Service Animals (Offences) Bill, and lawyers up and down the country, including Sarah Dixon, who runs the Finn’s law campaign, have identified a gap in the law. Is it not time that the Government backed my Bill?

[Lucy Frazer]

I am grateful for a third opportunity to address this issue and to speak again—this is the third time that I have heard my right hon. and learned Friend express his support for the Bill in the Chamber. As I have said, the Government are looking at this issue, and the matter is primarily for DEFRA.

Oral Answers to Questions

Oliver Heald Excerpts

Tuesday 6th March 2018 Commons Chamber

[Mr Speaker]

And doubtless with the right hon. and learned Member for North East Hertfordshire (Sir Oliver Heald).

[Sir Oliver Heald (North East Hertfordshire) (Con)]

I am very grateful to the Minister for that kind offer. I just make the point that there is a gap in the law. There are legal difficulties with prosecuting under the Animal Welfare Act 2006, because of the drafting of section 4. Prosecuting for criminal damage means that the value of the animal determines the sentence. However, a police dog like Finn, who was eight years old, is not worth much money—he is of course invaluable to PC Dave Wardell and the country’s police enforcement efforts, but he is not worth a lot of money. I am therefore grateful that the Minister will to talk to us about this issue.

[Mr Speaker]

Perhaps we could have an Adjournment debate about Finn, if the right hon. and learned Gentleman has not already procured such.

[Sir Oliver Heald]

I have already done that, Mr Speaker, and I have a ten-minute rule Bill as well.

[Mr Speaker]

Very well done. The right hon. and learned Gentleman is obviously ahead of events. I was enjoying the family history he was educating us on just now.

European Union (Withdrawal) Bill

Oliver Heald Excerpts

Committee: 7th sitting: House of Commons
Wednesday 13th December 2017 Commons Chamber

[Yvette Cooper]

The hon. Gentleman makes an important point about parliamentary sovereignty, which was indeed a key issue that was debated in the referendum. In fact, many people argued in the referendum that what they were doing was bringing sovereignty back here, from having shared sovereignty with the EU. I do not think we are arguing that sovereignty should be handed over in a concentrated way to a small group of Ministers instead. That is the responsibility on us. We know that of course there are times when Parliament needs to give Ministers power on our behalf to use through secondary legislation, but we should do so cautiously and sensibly and make sure that the right safeguards are in place. That is the problem with the Henry VIII powers in this Bill, and not just in clause 9 but in clause 7. The challenge, too, is that we are being asked to do that on an issue that will define our country for generations. Each and every one of us will be judged on what we did in this place to get that Brexit deal right.

[Sir Oliver Heald (North East Hertfordshire) (Con)]

Does the right hon. Lady agree that it is most welcome that, since my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) tabled his amendment 7, it has been agreed that there does need to be an Act of Parliament? Is not the weakness of clause 9 that there is still no trigger requiring the consent of Parliament to the withdrawal agreement before the regulations can be laid and used?

[Yvette Cooper]

The right hon. and learned Gentleman is exactly right, and that is why we have a cross-party interest in these issues. Not only is there no trigger on the face of the Bill—clause 9 will still allow Ministers this huge concentrated power to go ahead and implement the withdrawal agreement without Parliament’s agreement—but there is also a second difference, certainly for me in what Ministers have set out so far, about how a meaningful vote should take place. I want to come on to that as well.

New clause 3 says that Parliament will not yet give the Government permission to use secondary legislation to implement the withdrawal agreement, and that instead the Government must set out their plans for primary legislation to implement the withdrawal agreement. If secondary legislation is needed at that time, as part of the implementation process, those powers should be taken in the withdrawal agreement Bill—the second Bill—so that Parliament is not just handing over a blank cheque, but is deciding what powers are needed and making sure that the proper scrutiny and checks and balances are in place at that time.

I do not think this is really a controversial proposal. It is basically saying that Parliament should hand over no more power to the Executive than it needs to and should not hand over power to the Executive until it needs to and until it knows what is going on. New clause 3 also has the effect of requiring a meaningful vote in primary legislation on the withdrawal agreement before it can be implemented. That is not really a controversial proposal either. It simply says that we should have a proper vote on the most important thing to pass through Parliament in a generation—and a meaningful vote in primary legislation, as is fitting for something so important—and that we should do so before and not after we give Government the powers to start implementing it.

Amendment 7, which was tabled by the right hon. and learned Member for Beaconsfield (Mr Grieve), has broadly the same effect. Rather than removing the powers from clause 9, it simply says that they cannot be used until a statute or primary legislation has been passed supporting the withdrawal agreement. Again, that means that Parliament does not blindly hand over powers to the Executive in a trusting way without knowing what the consequences will be or what the agreement looks like.

--- Later in debate ---

[Yvette Cooper]

I do agree, and I think that goes to the heart of our concern.

It ought to be possible for the Government to agree to my new clause 3, or to amendment 7. Let us think about the points that they have already made. First, they have recognised that there is a problem if too much power is concentrated in the hands of the Executive. They said so yesterday during the debate on clause 7, and I think that they recognise the importance of safeguards on the use of Executive powers. Secondly, they have said that there will be a meaningful vote on the withdrawal agreement. I welcome that, but I think there is still a difference between us on what counts as a meaningful vote. Thirdly, they have said that there will now be primary legislation on the withdrawal agreement, and I welcome that as well. If we put all those three things together in the right way—the commitment to primary legislation, the commitment to a proper vote and say for Parliament, and concern about the concentration of powers—we get amendment 7 or new clause 3. It is the same thing.

[Sir Oliver Heald]

Following the point made by my right hon. Friend the Member for Broxtowe (Anna Soubry), may I ask whether the right hon. Lady agrees that the statutory instruments that we are discussing relate to matters of constitutional significance—matters of the sort that we normally only debate on the Floor of the House? It would be wrong for those matters to be dealt with in Committee when the House has not necessarily even agreed to the withdrawal agreement.

[Yvette Cooper]

The right hon. and learned Gentleman is absolutely right. This is not the Legislative and Regulatory Reform Act 2006, which was all about minor and detailed changes and consolidating legislation through secondary legislation—or that, at least, was its intention. As the right hon. and learned Gentleman says, this is about hugely constitutionally significant legislation and changes that will affect the course of events in this country for generations.

--- Later in debate ---

[Mr Clarke]

I agree entirely, and my next point is linked to that. The nature of the parliamentary approval cannot just be a motion; it must have statutory basis, which is the route that the Prime Minister has followed. There are various reasons for that, but the obvious one is the extremely uncertain status of resolutions of this House under current parliamentary practice. The Brexit Secretary is only the latest example of someone saying that anything that is not statutory is not legally enforceable, but just a “statement of intent”. The House of Commons keeps passing all kinds of motions with which I ferociously disagree, but they get carried by this House and make all kinds of criticisms of what the Government are doing. We have moved into a new era in which the Government are allowed to keep saying, “Parliament may pass motions, but they are worthless expressions of opinion. They are not part of our being accountable to the elected body of the House.”

[Sir Oliver Heald]

Of course the original plan was not to have a Bill, but to rely on statutory instruments under clause 9 to effect changes of constitutional significance. It was then made clear recently—I think on 17 November—that we will in fact have a Bill. Does my right hon. and learned Friend agree that to try to make such changes by secondary legislation just is not on? It is very unlikely that the courts would say that such constitutionally significant changes could be made under secondary legislation.

[Mr Clarke]

Again, I agree entirely, and that takes me back to something that has occurred all the way through this process. I am obviously standing here in disagreement with the Government, of whom I am critical in many respects, due to both the policy and how it has been conducted, but I have had some sympathy with them since the election, because they are trying to carry through this enormous, controversial and historic measure when they do not have a parliamentary majority, except when they can persuade the Democratic Unionist party to turn up and support them.

The process started with the extraordinary suggestion that the royal prerogative would be invoked, that treaty making was not going to involve Parliament at all, and that leaving did not require parliamentary consent. Rather astonishingly, that matter had to be taken to court, and it came to a fairly predictable conclusion. The next idea—I will not repeat what my right hon. and learned Friend the Member for North East Hertfordshire (Sir Oliver Heald) said—was that everything would be done by statutory instruments under broad powers. However, we are slowly getting to what I would have thought is the fundamental minimum that a real parliamentary democracy should be demanding: the country will not be able to enter into a binding treaty commitment until the details have received full parliamentary approval. How we get there is no doubt a matter of some difficulty, but it must be addressed.

--- Later in debate ---

[Sir Oliver Letwin]

I am surprised by that, because my right hon. and learned Friend has a long and distinguished record of voting for good law. I do not think that this is good law, for the reasons I have identified. I think it really would be better if we had a correct amendment at a later stage of proceedings.

[Sir Oliver Heald]

Does my right hon. Friend agree that the current plans create the risk of parallel legislation, with an Act of Parliament dealing with our withdrawal agreement going through at the same time as all sorts of orders, because there is no trigger mechanism for, or constraint on, the order-making power? Therefore, is not my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), the former Attorney General, doing the House a service by seeking to avoid the risk of parallel proceedings, which is something that this House never does?

--- Later in debate ---

[Dominic Raab]

It is just not practicable. I will come on to address the timeframe for how we are going to approach the agreement, the meaningful vote on a resolution, and then the withdrawal agreement Bill.

[Sir Oliver Heald]

Does not my hon. Friend think that there should be a trigger within clause 9 to require the consent of the House to the overall withdrawal agreement that is reached before the powers are exercised? Otherwise those powers are unrestrained, and that seems wrong. Does he have a view on that?

--- Later in debate ---

[Angus Brendan MacNeil]

Brexit has had many titles, but in my view it is fast becoming the Laurel and Hardy Brexit, because it is one never-ending fine mess—a multifaceted fine mess, indeed. My hon. Friend the Member for Inverclyde (Ronnie Cowan) keeps a running total on how time is passing. It is 530 days since the Brexit vote, when apparently all the voters knew what they were voting for, yet we are still working out what it meant—there are Committees in this place trying to work out what it meant. He also tells me that there are 470 days to go before the cliff edge. The fine mess and the vanity are coinciding with the Government’s avoidance of a meaningful vote. They are tied to the timescale of article 50 as laid out in the Lisbon treaty—a strange place for a Brexiteer Government to be.

To me, it is pretty obvious. If the vote is between a deal and a crash-out, a deal wins. If the vote is between a deal and the status quo, with access to the single market, the status quo wins. Surely nobody is going to put the country—our constituents, themselves and their families—into a worse situation than we have now or raise the possibility of higher trade tariffs with up to 94 countries, as well the base load of the 27 EU countries. Another question: is this going to be a transition deal or a maintenance deal? Last Monday, the Prime Minister said she did not want two cliff edges, so it looks as if there is going to be a maintenance deal.

Opponents of amendment 7 are treating it as if it somehow aims to block Brexit or remove powers from their hands. It does not block Brexit. This is a Brexiteer Parliament, unfortunately. It is rolling over to article 50. Both Front-Bench teams want out of the single market and out of the customs union. The amendment, tabled by the right hon. and learned Member for Beaconsfield (Mr Grieve), would put power in the hands of parliamentarians. To reject the amendment would be like setting sail on a cruise liner, striking an iceberg and finding out you had refused to bring any lifeboats. The hon. Member for Basildon and Billericay (Mr Baron) fears that the other side will not be incentivised to make a deal. If that situation arises, deal with it then—do not tie our hands now for the sake of actions we might want to take in the future. The hon. Member for North East Somerset (Mr Rees-Mogg) finds himself deferring, I think, to the European Parliament, which is a very interesting thing.

My final plea tonight is to wider society. As Chair of the International Trade Committee, I have companies coming to me moaning and telling me about Brexit. They have to step up to the plate and take part in this debate. We should have had impact assessments tonight, but we did not get any—they are more elusive than Donald Trump’s tax returns. Companies in the City have to start informing this debate. They should have been doing it before now, because it would have helped tonight. My plea is aimed at boardrooms across the UK: they must get their voices heard, because if they do not, they will go down with this lot here.

[Sir Oliver Heald]

Parliament should have a meaningful vote on the EU withdrawal agreement before it is implemented. Clause 9, which is the subject of amendment 7, allows Ministers to implement the EU withdrawal agreement by secondary legislation. That was always a mistake. The courts were never going to accept a situation whereby the EU withdrawal agreement was brought into our law by secondary legislation—major constitutional legislation brought in by statutory instrument.

The Government, to be fair, acknowledged that. After presenting the Bill to Parliament, there came a point where they said, “No, we will need a Bill to implement the EU withdrawal agreement.” That is right, but what a mess. In my view, Parliament is entitled to have a meaningful vote on the agreement before the powers in clause 9 are used, so there needs to be a trigger in clause 9; otherwise, once the Government have reached agreement with the EU, they would be able just to start laying legislation.

Of course, we have had some welcome commitments tonight and during the day, but on something as important as this, where there are very significant powers involved, I feel that as parliamentarians and lawmakers we should have a say and the Bill should reflect what the Government are saying. If they are saying, as I believe they are, that what I have described will not happen until Parliament has approved the agreement, it should say that in the Bill. Indeed, it was noticeable that those who do not agree with the amendment, such as my right hon. Friend the Member for West Dorset (Sir Oliver Letwin) and hon. Friend the Member for North East Somerset (Mr Rees-Mogg), all agree that the provisions are flawed. It has been some time now that my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) has been saying, “Come forward with your own amendment, O Government, so that this is in the right order and it has the protections that lawmakers would expect in the Bill.”

I am sad to vote, as I am going to, for article 7—[Interruption.] I said “article”, just like my hon. Friend the Member for North East Somerset. I am sad to vote for amendment 7, but I feel I should and that it is an important principle that, when we make the law, we get it right in the Bill.

[Hywel Williams (Arfon) (PC)]

I rise to speak to amendment 355, which stands in my name and that of my hon. Friends and sets out our position that an affirmative vote by devolved bodies prior to enactment is required.

If the process of Brexit could be summed up in one word, it would be “control”. For me, taking back control also means bringing the exercise of powers as close as possible to the people. The final deal will be subject to ratification by all EU member states, the EU Parliament and sub-state parliaments, variously numbered at 33, 37 or 38—take your pick. By the same token, I believe that the constituent parts of the UK should have the same final say as our counterparts in the EU. The final deal with the EU should be approved in statute passed by both the Westminster Parliament and the devolved Administrations, hence amendment 355.

We have repeated our arguments many times for remaining in the European single market and customs union. Wales’s goods-based, export-led economy relies on its close links with the EU single market, with 67% of all Welsh exports going to the EU and the single market sustaining 200,000 jobs. We already know that the stakes are high for Wales, so Wales must have a stake and a say in the final deal. I will not revisit the arguments I have made during previous debates on the Bill about the constitutional intricacies of the Sewel convention, but I wish to say to my Labour friends that not giving the devolved Governments a stake in the final deal risks subjecting our nation to policies, and indeed an ideology, that have so far caused our country grievous harm.

To conclude these brief remarks, the whole argument boils down to control. Following the referendum, the principle of returning control is not at issue. What is at issue is where that control lies. The minority Government party asserts that finally control rests here and here alone, but if the UK is a shared enterprise, based on mutual respect between Westminster and the devolved Governments, that party should also accept my amendment 355, which, to adapt a phrase from the Father of the House, is the fundamental minimum for a devolved parliamentary democracy.

Oral Answers to Questions

Oliver Heald Excerpts

Tuesday 25th April 2017 Commons Chamber

[Mr Alan Mak (Havant) (Con)]

10. What progress the Government have made on their review of legal aid domestic violence evidence requirements.

[The Minister for Courts and Justice (Sir Oliver Heald)]

Following our completion of the review we announced our intention to make changes by secondary legislation that would make it easier for victims of domestic violence to access legal aid. These changes include removing the time limit on all forms of evidence and accepting evidence from domestic violence support organisations.

[Andrew Stephenson]

I thank my right hon. and learned Friend for that answer. I appreciate that he might not be able to go into detail just yet, but can he offer a commitment to the victims of domestic violence of his continued support for them in the justice system in the next Parliament, if a Conservative Government are returned?

[Sir Oliver Heald]

I can certainly do that, and I can also point to the recent changes made in courts to help victims of domestic violence to give evidence, such as the video links that we have introduced, and the provision for recorded evidence and cross-examination which is about to be rolled out. It is also important to say that the House generally supported the end to cross-examination by perpetrators.

[Mr Mak]

I thank the Minister for his answer and welcome the announcement. Will he join me in commending the Southern Domestic Abuse Service, a Havant-based charity that helps victims of domestic violence report to the police, and ensure that he continues working with such charities to make sure that the evidential guidelines are consistent with the sensitivity of this issue?

[Sir Oliver Heald]

I am happy to pay tribute to organisations that help victims of domestic violence on their work, and I know from talking to my hon. Friend, who is a strong advocate for them, that that service in Havant is excellent—so, yes, I agree with him.

[Yasmin Qureshi (Bolton South East) (Lab)]

The Ministry of Justice committed to reviewing the domestic violence evidence requirements for legal aid. That was a clear admission that the scheme was not working and was not fair. Since the passing of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, the family courts have become more adversarial. Should the Minister not admit that the withdrawal of legal aid for so many family cases has caused real unfairness to families?

[Sir Oliver Heald]

As the hon. Lady will remember, we promised at the time that there would be a review of LASPO and the legal aid provisions, and we have announced the timetable for that review, which has been welcomed, but I agree that we should have a process of constant improvement in helping the victims of domestic violence.

[Ben Howlett (Bath) (Con)]

The Government have made huge progress in tackling domestic violence both at home and overseas. However, my surgeries are often filled with people who are suffering or have suffered from domestic violence and who are stuck in the family courts system. They are receiving legal aid, but the situation has caused distress. I know the Minister has personally looked into these issues, but will he meet me, hopefully after 8 June, to discuss them further?

[Sir Oliver Heald]

I would never take the electorate for granted, but if I am here, I will meet my hon. Friend.

[Ian C. Lucas (Wrexham) (Lab)]

2. If she will review the effectiveness of legislation relating to novel psychoactive substances.

--- Later in debate ---

[Carol Monaghan (Glasgow North West) (SNP)]

15. If the Government will take steps to ensure that any provisions proposing changes to human rights protection in UK law which result from the UK leaving the EU are laid before Parliament for scrutiny.

[The Minister for Courts and Justice (Sir Oliver Heald)]

The answer is yes.

[Carol Monaghan]

Amnesty International, Liberty and other human rights groups have raised the issue of diminished human rights protection as a result of the great repeal Bill and the Government’s plans to correct the statute book through secondary legislation. Will the Minister provide more detail on the extent of these correction powers and whether the changes will include human rights protections?

[Sir Oliver Heald]

As the hon. Lady will know, I cannot make any announcements today because of purdah, but what I can say is that, as I explained in giving evidence to two Select Committees, it is not our intention to have any gaps in our human rights protections.

[Sir Desmond Swayne (New Forest West) (Con)]

Why is it reasonable to expect our justices to be any less creative than European ones?

[Sir Oliver Heald]

We do want a British jurisprudence, and that is what we will have following Brexit. Human rights were not invented with the Human Rights Act; this country has been a leading pioneer in human rights since its first gasps of breath as a nation, so there is no reason for us to think that we will not continue to express our values.

[Greg Mulholland (Leeds North West) (LD)]

Why are the Government continuing to confuse and, indeed, deceive people by suggesting that the European convention on human rights is anything to do with the EU? It was signed up to by nations that had just come together after the most disastrous war in our history, and it was supported by Winston Churchill. Why can the Minister not support it?

[Sir Oliver Heald]

I have always tried to uphold the vision expressed by Sir Winston Churchill in his great speech at the Place Kléber, when he spoke up for the need for human rights across Europe, and, of course, he did not mean the EU.

[Patrick Grady (Glasgow North) (SNP)]

17. What the Government’s policy is on the UK remaining party to the European convention on human rights.

[The Minister for Courts and Justice (Sir Oliver Heald)]

We are in favour.

[Patrick Grady]

The European convention on human rights guarantees the right to free and fair elections to the legislature, but the vast majority of legislators in this country are unelected peers of the House of Lords. Have the Government ever taken legal advice on whether the existence of the House of Lords is compatible with protocol 1, article 3 of the ECHR?

[Sir Oliver Heald]

I spent about 18 months on the Joint Committee looking at reform of the House of Lords in the last Parliament, and we took legal advice on every possible issue. If the hon. Gentleman would like to read the proceedings, he will enjoy them.

[Joanna Cherry (Edinburgh South West) (SNP)]

rose—

[Joanna Cherry]

Earlier this month, when I met UN officials in New York to discuss human rights issues, they were appalled to hear that the British Prime Minister had said that at the next general election she would be campaigning to withdraw the United Kingdom from the European convention on human rights. Can I take what the Minister said previously as a guarantee that this abhorrent commitment to withdraw from the European convention on human rights will not be in the Tory party manifesto for 8 June?

[Sir Oliver Heald]

That was a good try, but I am afraid that I am not going to be launching the manifesto here at Justice questions. The hon. and learned Lady will have heard my earlier answer.

[Joanna Cherry]

Article 8 of the European convention on human rights guarantees the right to respect for family and private life. The Equality and Human Rights Commission has written to the Government saying that the controversial rape clause raises serious issues under article 8. Can we assume from the Government’s insistence on proceeding with the rape clause that article 8 covers one of the rights guaranteed by the ECHR that they find inconvenient?

[Sir Oliver Heald]

The Government are committed to supporting victims of rape and domestic abuse. This approach is crucial to protect women who face very difficult circumstances, and that is what the Government have been doing through the reforms to which the hon. and learned Lady refers. As part of these reforms, we have made sure that victims are able to use third sector professionals to endorse their claim while they receive support to help them to cope and recover. No Government have a better record on helping victims.

[Suella Fernandes (Fareham) (Con)]

19. What steps the Government are taking to ensure effective enforcement of child arrangement orders.

[The Minister for Courts and Justice (Sir Oliver Heald)]

The family court has powers to address a breach if someone has been wilfully obstructive. When a child’s welfare requires it, the court can transfer the child’s residence to the other party. This Government are keen that there should be effective action, and a Green Paper on family justice has already been announced.

[Suella Fernandes]

Unfortunately, enforcement is a serious problem in the courts because of the criminal threshold and a lack of an effective penalty. In some of the worst cases, the non-resident parent—usually but not always the father—can be cut out of the child’s life. Does my right hon. and learned Friend agree that this issue needs to be addressed if we are to see equity in the family justice system?

[Sir Oliver Heald]

It is right that there should be a clear system to establish the facts about a breach, and it should then be possible to deal with the breach effectively. Of course I am unable to make any announcement today but, as I have indicated to my hon. Friend, a Green Paper on family justice has been announced for later in the year, and she and I have already had the opportunity to discuss some of her ideas.

[Mark Menzies (Fylde) (Con)]

20. What assessment she has made of the effect of increased use of digital technology in the courts system on the effective delivery of justice.

[The Minister for Courts and Justice (Sir Oliver Heald)]

We are investing over £1 billion to create a straightforward courts and tribunals system so that people can have confidence in using the system themselves or with the help of their excellent lawyers.

[Mark Menzies]

The current reliance on printed documents in civil courts burdens people with significant unnecessary costs, and the UK is lagging behind many countries, including Australia and even Turkey, in the use of innovation and technology in civil claims. Does my right hon. and learned Friend agree that we must speed up the process of digitising courts in England and Wales if we are to retain our place as a world-leading provider of legal services?

[Sir Oliver Heald]

My hon. Friend is absolutely right, and I do agree. We are making progress. We have equipped our criminal courts to work digitally, reducing reliance on paper bundles, and we are doing the same in the civil courts. So far we have saved, in one year, an enormous pile of paper. Devotees of these questions will know that I measure this by the height of the Shard, and we have now saved 4.3 Shard-loads of paper.

[Mr Speaker]

Well done!

--- Later in debate ---

[Caroline Ansell (Eastbourne) (Con)]

Section 33 of the Criminal Justice and Courts Act 2015 is landmark legislation that makes revenge porn a specific offence. In Eastbourne, we have just had a high-profile case in which a serial offender walked free with a caution. One of his victims was a minor, and to add further insult to injury, images posted with incitements are still online. What more can the Government do to make sure that this groundbreaking legislation really delivers justice?

[The Minister for Courts and Justice (Sir Oliver Heald)]

My hon. Friend is known for the way in which she has highlighted in the House such incidents of criminality and really pressed the case for proper and effective punishment. In relation to this particular incident, the offence is relatively new, and the good news is that many people have come forward to report instances of disclosure during the short period since it came into force. There have been a number of prosecutions, with more than 60 convictions so far. It is early days, but I agree that the Crown Prosecution Service needs to treat these cases very seriously.

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

T5. The Government undertook by this month to renegotiate transforming rehabilitation payment structures as a result of community rehabilitation companies experiencing significant difficulties with the contracts. For how many of the 21 community rehabilitation companies have new payment arrangements now been agreed and put in place?

--- Later in debate ---

[Tom Elliott (Fermanagh and South Tyrone) (UUP)]

T7. This afternoon in Parliament, the families of four British soldiers murdered by the IRA in the Hyde Park bomb are launching their campaign to bring the chief suspect of the atrocity, John Downey, to justice and to ensure that no terrorist is ever allowed to act with impunity within the United Kingdom. Will the Secretary of State meet Members and peers who support the victims’ campaign to consider the Government making exceptional funding available to remedy a situation in which the victims have been denied justice for 35 years?

[Sir Oliver Heald]

May I say that our deepest sympathies remain with those affected by the dreadful Hyde Park bombings? Those terrible terrorist atrocities were really dreadful for the nation at the time. Decisions on legal aid in such cases are made through an independent process. A fresh determination was given by the Legal Aid Agency on 2 February, but my understanding is that there is a right of review and that the case is still ongoing with the agency. I therefore cannot comment further at this time, and a decision would have to be made before any meetings occurred.

[Dr Matthew Offord (Hendon) (Con)]

My constituents very much welcome the Department’s decision not to proceed with the change to probate fees because the increases would have fallen disproportionately on London and the south-east, given the cost of housing there. Will the Secretary of State confirm that the next Conservative Government will not again proceed on such a basis?

[Elizabeth Truss]

rose—

[Sir Oliver Heald]

As the Secretary of State said a moment ago—I think she was about to say this again—I am afraid that we are not in a position to say what will be in the manifesto. However, I thank my hon. Friend for his comments, and we will obviously take full account of them.

[Neil Coyle (Bermondsey and Old Southwark) (Lab)]

T9. I am helping families across Southwark who have been denied access to justice as a direct result of the coalition’s legal aid cuts. Three years ago, the Children’s Commissioner said that those cuts were undermining human rights. Was the former Liberal Democrat Justice Minister speaking for the Government when he promised a review and did he break that promise in not delivering it, or was his promise a cynical ploy to deflect attention from the damage his cuts were having on my community and the rest of the country?

[Sir Oliver Heald]

As the hon. Gentleman is aware, I know Simon Hughes well, having been his opponent in the 1987 general election. I think that I am still the president of Bermondsey Conservatives.

[Ms Angela Eagle]

The only member.

[Sir Oliver Heald]

No, I deny that I am the only member—we have quite a few.

The Government have announced the timetable for the review, which has been welcomed. It was odd that Simon Hughes called for a review when he was the Minister, but it was a Liberal Democrat press release, and we all know about those.

[Mr Speaker]

The Minister’s presidential duties are evidently not very onerous.

--- Later in debate ---

[Mr Stephen Hepburn (Jarrow) (Lab)]

T10. Under this Government, poor people have had their legal aid cut by 40% and thousands upon thousands of people have been denied an employment tribunal because they cannot afford it. Are the Government proud to be on the side of the rich, the powerful and the bad bosses?

[Sir Oliver Heald]

It is, of course, a union campaign to talk about employment tribunal fees. Let us be clear that the number of people taking up cases about the workplace has increased, not gone down—it is up to 92,000. Those people are being helped by a free service from ACAS, which the Labour party used to support. Fewer cases are going to tribunal because of the work of ACAS.

[Tom Pursglove (Corby) (Con)]

Exclusion zones are an important tool to protect victims, but for those living on a county boundary, an exclusion zone that just covers the county is not particularly helpful. Will the Minister undertake to look into that?

--- Later in debate ---

[Imran Hussain (Bradford East) (Lab)]

In correspondence with the Criminal Cases Review Commission over recent months, I have repeatedly asked it to release and review crucial evidence that is vital to the case of one of my constituents. However, the CCRC has been less than helpful. As the deadline for the evidence to be deleted approaches, my constituent’s chances of justice could be killed for good. Will the Minister step in to ensure that the crucial evidence is released and reviewed so that justice can be done?

[Sir Oliver Heald]

If the hon. Gentleman writes to me, I will certainly look at that.

[Thangam Debbonaire (Bristol West) (Lab)]

The dedicated governor and staff at HMP Bristol do a brilliant job, but right now they are struggling with inadequate staffing ratios, prisoner use of the dangerous drug Spice, and poorly delivered privatised maintenance contracts. When will the Government give the prison in my constituency the tools it needs to do the job?

--- Later in debate ---

[Alison Thewliss (Glasgow Central) (SNP)]

In order to make a claim under the rape clause, a woman has to sign a form stating:

“I believe the non-consensual exemption applies to my child”.

Will the Government explain how that can possibly be in the best interests of the child and in respect of our duties under the UN convention on the rights of the child?

[Sir Oliver Heald]

The hon. Lady does not seem to understand that this is about supporting victims of rape and domestic abuse. This approach is crucial to protect women who are faced with very difficult circumstances—[Interruption.] I am answering. As part of these reforms, we have made sure that the victims are able to use third sector professionals to endorse their claim while they receive support to help them to cope and recover. No Government have done more to help victims.

[Several hon. Members rose—]

Points of Order

Oliver Heald Excerpts

Tuesday 25th April 2017 Commons Chamber

[Sue Hayman (Workington) (Lab)]

On a point of order, Mr Speaker. I seek your advice and guidance regarding parliamentary protocol in the case of a Member writing to another Member’s constituents as part of an election campaign. The hon. Member for Copeland (Trudy Harrison) has written, as a Member of Parliament, to postal voters in my constituency on Conservative-branded paper ahead of the Cumbria County Council elections asking them to vote for the Conservative candidates. I know of postal voters in her own constituency who have not received any such letter from her.

This is the second time since her election to this place only two months ago that the hon. Lady has campaigned for the Conservative party in my constituency using her status as an MP without informing me. I did not make a fuss the first time as she was new to the House. However, she is now fully aware that in the British parliamentary system one Member represents a single constituency and conventions have developed so that one Member’s relations with her constituents are very much a preserve that other Members should not interfere with.

I have had complaints from constituents, some of whom are now confused about who their Member of Parliament is. My constituency office is receiving phone calls from constituents who think that this must mean that the boundary changes have gone through and that I might no longer be their representative. As far as I am concerned, this is unacceptable. Mr Speaker, I would be grateful for your comments and advice on this serious matter.

[The Minister for Courts and Justice (Sir Oliver Heald)]

rose—

[Mr Speaker]

I will allow the Minister to respond to that point of order now.

[Sir Oliver Heald]

Further to that point of order, Mr Speaker. Has it not always been the case that if a Member writes, on Conservative party notepaper, a political message to anyone, that is in order, and that it is only a problem if someone represents themselves as an MP for a particular constituency using our stationery?

[Sue Hayman]

rose—

Grandparents' Rights: Access to Grandchildren

Oliver Heald Excerpts

Tuesday 25th April 2017 Westminster Hall

[The Minister for Courts and Justice (Sir Oliver Heald)]

We have had a very constructive, warm-hearted debate. I think we all found it moving to hear the hon. Member for Strangford (Jim Shannon) and my hon. Friend the Member for Solihull (Julian Knight) talk about the love they feel for their grandchildren and the very special role that grandparents can play. The hon. Member for Bolton South East (Yasmin Qureshi) talked about her grandmother telling her mother off and what fun that was. I think we all recognise that. Extended family life is important to all of us.

The hon. Member for Strangford made a good point about mediation. I did some family law cases as a barrister, and I have often thought that mediation can lead to the settlement of a family dispute or the breakdown of a relationship with less confrontation and heartache for everybody involved, so I think that was a very wise point. Comments were made about the pain of family breakdown and the court hearing. All of that is very well taken.

I cannot make any announcements today because we are in purdah, but I have previously said that, assuming the electorate allow it, we will introduce a Green Paper later in the year on family justice, which will provide the opportunity to look at these issues and a number of others that hon. Members touched on. Having said all that, I congratulate my hon. Friend the Member for Northampton South (David Mackintosh) on securing this debate on an issue that is vital and, as he said, complex. It is a pleasure to serve under your chairmanship, Mr Streeter.

The sorts of experiences that we are discussing—heart-breaking stories, as my hon. Friend put it—were recognised at his meeting with GranPart in Northampton, an organisation in which I know he takes a particular interest, as well as talking to his constituents more generally about the issue. We heard from my hon. Friend the Member for Eastbourne (Caroline Ansell) what constituents have told her about the issue. I agree with my hon. Friend the Member for Hendon (Dr Offord), who said that he has a strong support group in his constituency, that children should not be used as weapons.

I am sure that most children see their grandparents as important figures in their life and benefit tremendously from a positive relationship with them. For many children, loving relationships with grandparents enrich family life. As was mentioned, grandparents often play a key role in the raising of their grandchildren, particularly with so many parents at work these days, and I recognise that grandparents can be a great source of stability for children when parents decide to separate. They can provide a sense of continuity in traumatic circumstances at a time when children are fragile. Sometimes, when parents are unable to meet their children’s needs, grandparents can take on full responsibility for their care.

After parental separation, in many cases, grandparents continue to enjoy relationships with their grandchildren, although the circumstances are obviously different as the parents live apart. However, there are some cases in which grandparents are prevented from seeing their children, with no good reason. The Government recognise the immense distress caused to grandparents and children when parents separate. In such difficult circumstances, which are similar to bereavement, children often feel a greater sense of loss: they have lost not only a parent, but grandparents too. I am sure that some hon. Members and hon. Friends who have spoken in this debate will recognise such scenarios from the constituency experiences that they have described.

High-conflict cases involving disputes over children can have an impact on those children. Parents can end up viewing grandparents as being on the other party’s side, which can become a barrier to their continued involvement in their grandchildren’s lives. Grandparents, too, can be tempted to see the other parent as the enemy because they feel that their son or daughter has been wronged. That is part of the difficulty, unpleasantness, hurt and distress of a break-up, and such feelings of hurt are fully understandable, but if the children are exposed to that sort of adult conflict, it is damaging for them. That is why the current law does not provide for any automatic decisions, but gives the court great flexibility.

On grandparents in private law disputes, when grandparents’ informal attempts to secure ongoing involvement in their grandchildren’s lives fail, they have the option of asking the court to intervene. They might not want to; as my hon. Friend the Member for Eastbourne said, they might feel that there has been enough hurt and distress in the family without going to court and facing it all again. The Children Act 1989 includes arrangements that help grandparents to re-establish relationships with their grandchildren when things go wrong, but a court process is involved. Family courts can make a child arrangements order to determine with whom a child is to live, spend time or otherwise have contact, and when and where such arrangements are to take place.

A child arrangements order will usually provide for direct face-to-face contact, such as long or short visits and overnight stays where appropriate. It may also provide for the child to have no contact with a person or specify that that contact is to be indirect, through emails, telephone calls, letters or cards. There is a lot of flexibility in the court’s powers to make a child arrangements order, but the welfare of the child is the paramount consideration when the court considers any matter that relates to their upbringing. That is in contrast to any perceived rights of any adult family members.

Whether the court will order that a grandparent should have involvement in a child’s life will depend on a number of factors. Where one or both parents oppose such involvement, the court will apply the factors in the welfare checklist in section 1 of the 1989 Act. It may ask the Children and Family Court Advisory and Support Service to produce a welfare report on the beneficial impact of grandparent involvement and on any risks of harm from ongoing parental opposition to such involvement and from the exposure of the child to the resulting conflict. That report may include the ascertainable wishes and feelings of the child; obviously, the older the child is, the more important those are considered to be.

It is open to anyone, including a grandparent or other family member, to apply for a child arrangements order. However, the situation is not the same as that for parents; as has been said, grandparents and other family members usually need to obtain the permission of the court before proceedings can begin. This may appear to be an extra hurdle, but experience suggests that grandparents do not usually experience any difficulty in obtaining permission if their application is really about the interests of the child. Permission to apply may be sought at the same time as making the application itself, just by ticking a box—there is no extra fee, process, or hearing.

The leave requirement is designed not as an obstacle, but as a filter. The idea is to sift out applications that are not in the child’s best interests, such as vexatious applications. I reassure hon. Members that the law sets out clear objective criteria for the court to determine these issues. There are exceptions; not every case requires leave. In certain circumstances, grandparents do not have to apply for permission. Under section 10(5) of the 1989 Act, a grandparent may automatically be entitled to apply for a child arrangements order if

“the child has lived for…at least three years”

with them; the three-year period

“need not be continuous but must not have begun more than five years before, or ended more than three months before, the making of the application.”

A grandparent may also apply under section 10(5) if they have the consent of both the parents or

“the consent of each of the persons named”

in an existing child arrangements order, in which case there is no need to obtain leave to apply.

[Jim Shannon]

I referred to the fact that many grandparents look after their grandchildren when they are out of school and the parents are working. Has the Minister had a chance to consider whether the childminding that grandparents do could be part of the solution that we are trying to find? If the grandparents are making a constructive contribution, such as by childminding, will the Government look at whether we can use that as a method of coming to an agreement?

[Sir Oliver Heald]

That is certainly an interesting thought. Of course, I cannot say what the next Government will do. As the hon. Gentleman knows, we are in the funny—well, the important and democratic—period of seeking re-election. [Interruption.] Very, very important, yes. We must not take the electorate for granted, and one Parliament cannot bind another, but if the Green Paper process goes ahead, which I hope it will, all these issues can be looked at in that context. A history of having minded the child in the way that the hon. Gentleman mentioned is an important factor.

I think we would all agree that disputes over children can be very complex—a point made by my hon. Friend the Member for Northampton South. Parental disputes over children can also affect wider family relationships, and the relationship between the children and their significant relatives can be vulnerable to an unpleasant breakdown involving a lot of distress. No one would want to rekindle distress or make it worse for the child.

Research has provided some insights. A study funded by the Nuffield Foundation, a charity that aims to improve social well-being, gives some insights into how easy it can be for wider family members to become embroiled in conflicts over children. The study was of 197 case files from county courts in England and Wales in 2011, and its primary aims were to understand the detail of different types of childcare arrangements set up during litigation at county court level and to shed some light on how the different types of county court orders then in existence were used and understood. Some 12% of the cases examined were not disputes between parents but involved non-parents, such as grandparents or other relatives who were caring for the children, and three of the cases concerned applications from grandparents to have contact.

Although the sample size was small, the findings shed light on how some grandparents can become directly involved in conflicts that can negatively influence their grandchildren. The findings also demonstrate the considerable lengths to which the court will go to facilitate a child’s involvement with their grandparents, and the court’s difficult task of weighing up the benefits and risks of such contact. I think we would all agree that the principle of grandparents being part of a child’s life is a very important one, and the research shows that the courts take it seriously too.

I will say something about public law cases because grandparents play an important role in them. It is a principle of the 1989 Act that local authorities should support the upbringing of a child by their family wherever possible, if it is the most appropriate way to safeguard the child’s welfare. Local authorities can apply to the court for a care order when they believe that a child has suffered or is likely to suffer risk of significant harm. The care order allows the authority to take over the welfare of the child. Local authorities must seek to give preference to placing looked-after children with wider family members first, if it is not possible to return them to the birth family and, if that is not possible, with a friend or another person connected with them. The court can appoint a special guardian as a permanent alternative to long-term foster care or adoption, and that is often a family member such as a grandparent, or a friend.

In conclusion, the courts recognise the importance of children maintaining relationships with their grandparents following parental separation. Family courts are cognisant of that when considering applications relating to child arrangements. However, such cases are not straightforward, given the tensions and ongoing conflict that can often arise when parents separate, and for that reason, as I am sure hon. Members will agree, the welfare of the children must continue to be the paramount concern.

We have had a good debate and some good points have been made. If the Green Paper process goes ahead, as I hope it will, there will be an opportunity for us to consider the matter more fully and for organisations that have particular viewpoints to make a contributions.

[Mr Gary Streeter (in the Chair)]

Mr Mackintosh, you have a couple of minutes to wind up if you wish.

Prisons and Courts Bill (Sixth sitting)

Oliver Heald Excerpts

Thursday 20th April 2017 Public Bill Committees

[The Minister for Courts and Justice (Sir Oliver Heald)]

On a point of order, Mr Stringer. I thank you and Mr Brady for the excellent way in which you have chaired our proceedings. Before my hon. Friend the Member for Hexham moves the motion, may I also thank the House officials, Hansard, the Doorkeepers and security staff for all they have done for the Committee?

On behalf of myself and my hon. Friend the Member for East Surrey, I thank all members of the Committee, including the Opposition Front Benchers—we have had a measure of warm agreement on many of the measures in the Bill—and our Whips, who have kept us in order.

Finally, I thank all the civil servants at the Ministry of Justice, particularly the Bill team manager, Kate Gregory-Smith, and our legal team, for all the work they have done on the Bill. I also thank my assistant private secretary, Keighley Jones.

Draft Non-Contentious Probate Fees Order 2017

Oliver Heald Excerpts

Wednesday 19th April 2017 General Committees

[The Minister for Courts and Justice (Sir Oliver Heald)]

I beg to move,

That the Committee has considered the draft Non-Contentious Probate Fees Order 2017.

The purpose of the draft order is to implement a new, fairer, banded structure of fees for a grant of representation, commonly known as a grant of probate. These new fees come under the category of enhanced fees. As the Committee may be aware, in section 180 of the Anti-social Behaviour, Crime and Policing Act 2014, Parliament gave the Lord Chancellor the power to set certain—not all—court and tribunal fees at levels above what the service costs to provide. The income generated by those enhanced fees is ring-fenced, to provide an efficient and effective system of courts and tribunals.

The Government are investing close to £1 billion to reform the courts and tribunals and the criminal justice system, but such a system requires funding for the long term. In 2015-16, the running costs of Her Majesty’s Courts and Tribunals Service were £1.9 billion. We recovered only £700 million of that in fees. That position is unsustainable, and it is right that we look to the users of the service to pay more where they can afford to do so. Parliament understood the importance and value of our world-leading justice system and the financial pressure that the Courts and Tribunals Service faces. That is why it passed the power in the 2014 Act. It is under that power that the Government have laid this draft order.

The draft order introduces a new banded structure for probate fees, where the fee payable is no longer a flat fee but instead related to the value of the estate. That is not a new concept. Between 1981 and 1999, probate fees were linked to the net value of the estate, but that scheme was replaced in 1999 by a flat fee for solicitors, with a supplement for personal applications. In their response to the Government consultation, the senior judiciary agreed that the 1999 move back to a flat fee was a regressive step.

Under the new structure, we are raising the threshold below which no fee is payable from £5,000 to £50,000. That change means that more than half of estates will pay nothing; we are lifting about an extra 25,000 estates every year out of fees altogether. For those estates that will have to pay a fee, estates under £300,000 will pay £300, which is a minor increase from the current £255 fee for personal applications. In total, more than 90% of estates will pay £1,000 or less.

I acknowledge that the most valuable estates will face higher fees, but those fees will only ever be a small proportion of the estate being inherited—a maximum of 1% of the total value. We believe it is fair to ask those who can afford to pay more to do so. These new fees will help to provide a stable financial footing for the Courts and Tribunals Service, allowing the Government to continue to provide an efficient and effective service and to subsidise other parts of the courts system that do not recover their costs in fees, including domestic violence proceedings in the family courts and mental health tribunals. I therefore commend the draft order to the Committee.

--- Later in debate ---

[Sir Oliver Heald]

We have had a good debate and some interesting points have come out that I hope I can address. I acknowledge the point made by my right hon. Friend the Member for Chipping Barnet that the most valuable estates will face higher fees, but those fees will only ever be a small proportion of the estate being inherited. We are capping it at 1% of the total value. We believe that it is fair to ask those who can afford to pay to pay more. The new fees will help to provide a stable financial footing for the Courts and Tribunals Service generally, allowing the Government to continue to provide an efficient and effective service, and there is a cross-subsidy between areas such as this and other parts of the system that do not recover their costs in fees and would probably never be able to. That includes domestic violence proceedings in the family courts and mental health tribunals, and there are other obvious areas where that is the case. The power, which was debated in Parliament, allows for a fee to be charged that is higher for some areas than the costs, in order to provide an overall structure for the Courts and Tribunals Service that delivers a more substantial payment from the users of the system generally.

I was asked whether this is a tax on estates. The Office for National Statistics has not classified it as such as we speak, but the accounting classification that is given would not change the Government’s view that this is a payment under a specific scheme for a service. Of course, within accounting circles there are other, similar service fees which the Government charge, some of which are classified as taxes and some of which are not. In practical terms, I do not believe that it makes any difference to what we are talking about, which is a fee for a service. It has been suggested that we are misusing the power in section 180 of the 2014 Act to impose a tax, but section 180, which was debated and passed by Parliament, gave the Lord Chancellor this very power; a clear power to charge above cost. There is nothing unexpected about this, it was consulted on, so I think it is wrong to suggest that this measure is in any way a misuse of the power; it is exactly what it was intended for.

The hon. Member for Bolton South East mentioned inheritance tax. Of course, the Government are delivering on our commitment to take the family home out of inheritance tax for all but the richest by raising the effective threshold for married couples and civil partners to £1 million. The amount of money that has already been released to families in that way is, of course, far more than we are talking about today. It is not unusual in a consultation for a fee change to be unpopular—another point made by the hon. Lady— but the purpose of a consultation is not simply to conduct an opinion poll on whether people in a particular category want to pay a particular fee. It is also to look at the structure of it, the way the policy is framed more generally, to look at whether it is right to have a progressive scheme, as this is, or to have a regressive scheme of the sort which the hon. Lady supports. It is always surprising to me when a Labour Party spokesman speaks up for a regressive tax. Surely, one would expect the Labour Party to support progressive taxation or, in this case, a progressive fee, so this is a rather odd approach for it to take.

My hon. Friend the Member for South West Bedfordshire spoke about affordability. The fee will always be recoverable from the estate, so executors will not end up out of pocket personally. Executors have a number of options to fund the fee, so that no fee should be unaffordable. In most cases, we expect the banks to release enough cash from the estate to pay the probate fee. We know from Her Majesty’s Revenue and Customs that the average estate is 25% in cash.

We have also been working with the British Bankers Association and the Building Societies Association, and their bereavement principles encourage members to allow necessary payments to be made where possible within the law. Where an executor is not successful initially in accessing funds from a bank or building society, the Probate Service will—as part of its service—write to the relevant institution to provide reassurance that the assets are needed for the fee.

Other avenues of funding are also available, including a loan scheme. If these options have been exhausted, the Probate Service itself can give limited access to specific assets in the estate for the purpose of paying the fee. If there were a case of hardship, which there should not be, given the nature of the fee, the Lord Chancellor has a general power to provide help. I hope that satisfies my hon. Friend on those points.

The hon. Member for Bolton South East raised some other issues. She may want to consider that if a couple jointly own a property as joint tenants in the normal way, and one of the parties dies, the property would pass to the remaining spouse or partner in the joint ownership. It would pass by operation of law and would not form part of the estate in terms of the value for the fee. It is worth bearing in mind that we are talking about situations other than that and not one where one party to ownership dies and the other party inherits by survivorship.

With those few points, I hope the Committee will support the order.

Question put.