Legal Aid, Sentencing and Punishment of Offenders Bill

Simon Hughes Excerpts

Monday 31st October 2011 Commons Chamber

[Mr Djanogly]

We do have figures, but I do not happen to have them with me. I will write to the hon. Gentleman with figures. Most judicial review cases are funded privately rather than through legal aid, however, and I say that because I have seen the figures, and one needs to know that to understand them.

Government amendment 59 would amend part 1 of schedule 1 to bring domestic violence immigration rule cases into the scope of legal aid, as I announced to the Public Bill Committee on 19 July.

Government amendment 63 would amend part 3 of schedule 1 to ensure that civil legal aid was available for the advocacy of such cases in the first-tier tribunal. Advocacy will also be available in the upper tribunal by virtue of paragraph 14 of part 3.

Under the domestic violence immigration rule, someone on a spousal visa, which is valid for a limited period of time, and whose relationship has permanently broken down as a result of domestic violence, can apply for indefinite leave to remain in the United Kingdom. As I said in Committee, we accept that these cases are very unusual and different from other immigration cases, given the real risk that without legal aid spouses will stay trapped in abusive relationships for fear of jeopardising their immigration status. The trauma that they may have suffered will often make it very difficult to cope with that type of application, and they are also under time pressure, because they have only limited access to public funds to avoid destitution, so for those reasons we seek to make these amendments to schedule 1.

Amendment 113 adopts the same wording as the Government amendment I have just discussed, but with two differences—one that I am happy to look at further, and one that I think is unnecessary. First, the amendment would include within the scope of funding, civil legal services provided to an individual in relation to a claim by the individual to a right to reside in the United Kingdom, as well as an application for indefinite leave, when their relationship had broken down permanently as a result of domestic violence. EEA nationals and their spouses or partners, if from a third country, have a long-term right to reside in the UK if they are economically active or able to support themselves without becoming an unreasonable burden on public funds.

The Immigration (European Economic Area) Regulations 2006 make provision for third country nationals in such relationships to remain in the UK—that is, their right to reside can continue—if their relationship breaks down as a result of domestic violence. The application is different for those people who apply under the domestic violence immigration rule for indefinite leave to remain. The rules that apply are different. However, I am sure that the hon. Member for Hammersmith (Mr Slaughter) will be pleased to hear that we are looking further at such cases.

Amendment 113 seeks to replace the definition of abuse adopted in the Government amendment and used elsewhere in part 1 of schedule 1 to the Bill with the definition of domestic violence used by the Association of Chief Police Officers. The existing definition of abuse used in the Bill is a broad and comprehensive one, explicitly not limited to physical violence, and it would cover mental as well as physical abuse, neglect, maltreatment and exploitation. Indeed, it would not exclude from scope any of the types of abuse covered by the definition used by ACPO. Furthermore, the proposed definition of abuse would cover intimate partners or family members, regardless of gender and sexuality. That part of the amendment is superfluous, as the proposed Government amendment relies on the definition of associated persons in the Family Law Act 1996, which is a wide one that would cover the relationships set out in the amendment, and more. The second change proposed in amendment 113 is therefore unnecessary, but we will look at the first. I hope that hon. Members will be reassured by that.

Amendment 145 seeks to bring family reunion cases back into the scope of legal aid, at a cost of about £5 million a year. Those cases involve a person who has been granted asylum or refugee status and who sponsors the applications of their immediate family to join them. They are immigration applications, rather than asylum ones, and they are generally straightforward. The UK Border Agency guidance on these cases sets out the presumption of the granting of an application if the relevant criteria are met. The evidence required, such as marriage and birth certificates, should not require legal assistance to collate. The entry clearance officer may, on occasion, ask for DNA testing to prove the family relationship, but that testing would be free of charge to the applicant. These cases should not require specialist legal advice, and it is not therefore necessary for them to remain within the scope of civil legal aid.

[Simon Hughes (Bermondsey and Old Southwark) (LD)]

My office handles a lot of asylum and immigration cases, and of course some of them are entirely straightforward, as the Minister has suggested. Does he accept, however, that some family reunion cases are definitely not straightforward? They might involve a child being in a different country from the mother, or someone not having a passport. There could also be real issues involved in proving the relationship. Will he look again at the opportunity for some cases—I am not arguing for the generality—to be eligible for legal assistance?

[Mr Djanogly]

I certainly agree with my right hon. Friend that some immigration cases are complex, and I think that the point that he has raised is one for me to look at after today. I will do so, and I will come back to him on that.

On the basis of everything that I have just set out, I therefore urge the House to support Government amendments 10, 11, 13 to 18 and 55 to 63. I also hope that right hon. and hon. Members will be reassured by what I have said about the other amendments.

--- Later in debate ---

[Helen Goodman]

It is indeed. We heard that from the hon. Member for Maidstone and The Weald (Mrs Grant), who made some excellent interventions. We see once again that the Ministry of Justice is at a severe disadvantage because it has no women in its ministerial team. My hon. Friend is absolutely right.

The Bar Council is also concerned, as are many hon. Members, about the impact on children, referring to:

“The decision to exclude most adults in private family law cases from the scope of legal aid, even in cases of significant difficulty involving legally represented children, which may result in children alleging abuse being cross-examined by the alleged abuser.”

The problem is that the Minister is so determined to use a definition that he believes is watertight that he is ignoring the reality. The reality is that most women experience 20 episodes of violence before they report it to the police. By insisting that only a report to the police followed by various court actions is required for legal aid, the Minister is condemning more women to suffer domestic violence in silence.

[Simon Hughes]

I will speak briefly on amendment 145, which the Minister has addressed and on which I asked him a quick question. If I may, I will amplify that point.

My point is not about the important matter of domestic violence, which my right hon. Friend the Member for Carshalton and Wallington (Tom Brake) has spoken about and on which there is continuing concern across the House, but about the families of those who are rightfully admitted to this country as refugees or beneficiaries of humanitarian protection. Many Members, including me and my neighbour the right hon. Member for Lewisham, Deptford (Joan Ruddock), encounter such cases routinely in their constituency surgeries. This is not an irregular occurrence in our work.

Somebody who is granted the ability to stay in this country as a refugee because of race, religion, nationality, membership of a social group or their political opinion, or somebody who is given humanitarian protection because they are at risk for some other reason, might have applied for their family members to come with them as dependants or their family members might have made separate, parallel applications. In such cases, their family members can be dealt with in the same way.

However, we all know that when people come here as refugees, they do not often do so in an orderly way as a family. It might be that one family member comes here from one country and other family members from another. For example, when Sierra Leone had its civil war, people fled from it with some ending up in Gambia and others elsewhere. It might be that one family member comes at one time while another is left in a refugee camp. It might be that other family members had disappeared when the application was made. It might be impossible for the mother, the wife or the daughter to make an application at the same time. It is those cases that I am concerned about.

I accept that often there are straightforward applications that do not have complications, but sometimes there are significant complications and we need to ensure that people are not disadvantaged because they cannot match the state in argument.

[Joan Ruddock]

The right hon. Gentleman is indeed my neighbour and we share such cases. Perhaps I can help him by giving an example. I am dealing with a woman at the moment who has advanced cancer. She has children and has the right to be here, and she is trying to get her husband to join her. She tried to make the application alone, but got it all wrong and the state said no. She does not need me giving her a bit of advice, but proper legal assistance to make her case speedily and accurately. She would not get that under the future arrangements.

[Simon Hughes]

The right hon. Lady gives a good example. It is often people with difficult personal circumstances who have such problems. They might be here and unwell or dying. They might be literally on their own in this country. All the evidence shows that if we want people who come here as refugees or for humanitarian protection to integrate, the best way to achieve that is for their family to be here to give them support; often that is intergenerational support.

[Mrs Madeleine Moon (Bridgend) (Lab)]

Will the right hon. Gentleman give way?

[Simon Hughes]

I am trying to be quick, but I will.

[Mrs Moon]

Does the right hon. Gentleman agree that an increasing difficulty for the people he is describing is that they have to make a telephone call to see whether they are eligible for legal aid? We are talking about people who might have poor command of the English language. The people they talk to are not trained lawyers. They will no doubt get their stories, their dates and everything mixed up. That will, yet again, make it impossible for people to get the legal help and advice that they need, even when their case is totally justified.

[Simon Hughes]

I understand the hon. Lady’s point. My right hon. Friend the Member for Carshalton and Wallington and I, along with others, have tabled an amendment on telephone access that we will come to later. This is one of the matters on which I have had a significant number of representations from law centres and people who deal with such work. I understand her point and agree with it.

It is often not possible for family members to claim asylum because they are not in the UK. They therefore do not get the benefit of legal aid.

The UK Border Agency often requires evidence of the relationship. That is not surprising and it is perfectly proper. People are asked to undergo DNA tests. Spouses are asked to produce evidence of their marriage. That might be straightforward, but it might not be, either in law or in practice.

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

I agree with the right hon. Gentleman. At the Conservative party conference, the Home Secretary gave a completely misleading example when she said that in one case somebody was found to have family rights because of a cat. Does he agree that such things do not help in these debates?

[Simon Hughes]

It might or might not surprise the hon. Lady to hear that I was not at the Conservative party conference. I can mischievously go one step further and say that I was on an official visit to India at the time, so if she will forgive me, I cannot comment on the conference because I did not even see it. I understand where she is coming from. Such sensitive issues are often capable of being misrepresented by our constituents and by public opinion at the tabloid end of the press. However, if my family had undergone such trauma, I would want the support of the country in which I had sought refuge.

I shall briefly add a last few facts, and I pay tribute to the Immigration Law Practitioners Association, which provides a good support system for all who deal with this sort of work. First, 61% to 66% of refusals are overturned on appeal. The evidence, therefore, is that people win such cases not occasionally, but regularly, even if they need to come through the system on appeal.

Secondly, the situations of the applicants often seriously compound their difficulties in making the application or pursuing an appeal. Family members could be in hiding, or they could be in a country where they have no lawful status. They too might have faced or fled persecution. The remnants of the family might be isolated, in hiding or shunned. As the hon. Member for Bridgend (Mrs Moon) said, they could be in dire financial straits. For such people, making phone calls, let alone international ones, would be impossible. The chances of a person in Shatila refugee camp, for example, having the cash or ability to make international phone calls to establish their rights to join their family in the UK are minimal. Camps are not geared to dealing with individual international applications for family reunion—they are just not an appropriate context for that.

Evidential demands could be substantial and protracted. People might need witness statements from other relatives, who could be in this country or another one, which might not be the one where the applicant is. Family members often have to be traced and communication is sometimes slow. The right hon. Member for Lewisham, Deptford made the point that submitting the application correctly so that it gets through the system is not easy.

However good the immigration judge is, a litigant in person in those circumstances, who might have poor English and who might be only a recent arrival, and who might be worried and traumatised by their history, might not be in a good position to make an effective case in front of the court. In any event, the judge cannot, by definition, see the other family member, because they will not be here. The judge cannot hear evidence from them or others from whom he may need to hear.

I hope the Minister understands. Those are real cases, and I hope I can appeal to the sympathy and understanding of colleagues in the Department. If somebody can come here as a refugee or on humanitarian grounds, the logic must be that their immediate family should be able to come with them. That is the expectation of the international agreements that we have signed, which the Government should understand.

[Joan Ruddock]

The right hon. Gentleman makes an utterly compelling case—I agree with it totally and I wish to vote for the amendment, so I trust that he will press it to a Division.

[Simon Hughes]

In one sense, the right hon. Lady makes an absolutely reasonable proposition. I am determined that we will win this argument, but I will wait to see what the Minister—[Interruption.]

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

Pathetic!

[Simon Hughes]

No, it is not pathetic at all. Let me say to the right hon. Member for Lewisham, Deptford that there are four groups of amendments and that we have until 10 o’clock. The Opposition Front Benchers want to press their amendments to a Division, as do other colleagues, including me and my right hon. and hon. Friends. I hope the Minister will be helpful—[Interruption.] No, he originally indicated following my intervention that he was willing to look at the case again. I am determined to win that case. Whether we can win it today is not entirely in my hands. I hope that that is helpful, and I look forward to the right hon. Lady’s continued assistance in ensuring that we win the argument.

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

With respect to the right hon. Member for Bermondsey and Old Southwark (Simon Hughes), that speech was absolutely breathtaking. I have a high regard for him, but in this instance, his colleagues in Committee did not issue a single word about this and many other important humanitarian issues. I do not know which audience he is addressing, but no work whatever was done by his colleagues in Committee—I was there.

[Simon Hughes]

I know the right hon. Gentleman was there. As I understand it, this issue was not debated in Committee and no amendment on it was tabled by either Government or Opposition. That is why I am raising it now.

[Mr Llwyd]

Later on, I shall speak to my amendment that partially deals with this matter, and the right hon. Gentleman might wish to join us in the Lobby if I press it to a Division.

I want to be as quick as I can, because other hon. Members wish to speak and we have a lot of work to get through. If the hon. Member for Hammersmith (Mr Slaughter) is tempted to press amendment 74 to a Division, I will encourage my colleagues to follow me into the Lobby.

I should like to speak briefly to amendments 91 to 102, 83 and 103, which are in my name. I listened carefully to the Minister when he referred to amendment 91. He said that the words “or other intimate” are not necessary, which I accept. They probably are otiose, and therefore that point has been dealt with. I dare say that much of what the Justice Secretary will say tomorrow on self-defence will also be otiose, but that is another debate for another day.

Amendment 92 would broaden the definition by removing the words “physical or mental abuse” and replacing them with

“any incident of threatening behaviour, violence or abuse (whether physical, mental, financial or emotional)”.

The Minister knows that many people wrote to right hon. and hon. Members and we heard lots of evidence on a subject that has exercised many in the Chamber this evening just as it exercised those in Committee. I have begun to question whether pre-legislative scrutiny is worth anything, because if we get hundreds of pieces of evidence from informed bodies, people at the sharp end and practitioners, and then decide to do little or nothing about them, the process is brought into disrepute.

Amendment 93 would insert the words

“or where an allegation is made that B has been abused by A or is at risk of being abused by A”

to line 4 of page 103. Paragraphs 10 and 11 to schedule 1 provide for legal aid for the alleged victim in family cases involving domestic violence or child abuse. However, they do not provide for aid for the adult against whom the allegation is made. The amendment would bring the alleged perpetrator back within scope. That might sound strange, but I shall explain the thinking behind it in a moment.

Amendment 96 would insert the words:

“Civil legal services provided to an adult in relation to proceedings for financial relief in respect of a child who is the subject of an order or procedure mentioned in sub-paragraph (1)”,

and amendment 97 would add the words:

“Civil legal services provided in relation to proceedings in which the court is considering giving a direction under section 37 of the Children Act 1989 (direction to authority, where care or supervision order may be appropriate, to investigate child’s circumstances)”.

In responding to points made earlier, the Minister said that the section 37 investigation could well amount to nothing. However, such investigations are not taken lightly. They are always instigated on basic evidence, and caring for that child is not a routine matter, but an extremely important one.

Amendment 98 would add

“Civil legal services provided in relation to proceedings arising out of a family relationship involving a child in respect of whom a court has given a direction under section 37 of the Children Act 1989 (direction to authority, where care or supervision order may be appropriate, to investigate child’s circumstances); and “family relationship” has the same meaning for the purposes of this sub-paragraph as it has for the purposes of paragraph 10”

to line 39. That would bring within scope both proceedings leading to an order under section 37 of the Children Act 1989 and all subsequent steps in family proceedings after a section 37 order has been made. It would also ensure that the person against whom allegations of abuse are made is brought within scope.

Amendments 100 to 102 are consequential amendments. Their purpose would be to amend paragraph 13, which provides legal aid to child parties in cases that come under the relevant parts of schedule 1, but not to adult parties. That provision will result in unrepresented adults being forced to cross-examine expert witnesses and, in many cases, even the child concerned. The amendments would therefore bring adult parties in such cases within the scope of legal aid provision.

Amendment 103 relates to the director of the Legal Services Commission. We debated in Committee the role of the commission, the independence, or not, of the director in arriving at decisions and the question of whether those decisions will simply be cost-driven. The amendment is designed to deal with those issues. It states that

“the Director must determine that an individual qualifies for civil legal services where the services relate to a matter falling within paragraph 10 of Schedule 1 and—

(a) the individual has been admitted to a refuge for persons suffering from domestic abuse;

(b) the individual has obtained medical or other professional services relating to the consequences of domestic abuse, or

(c) an assessment for the purposes of possible mediation of a family dispute has concluded that the parties need not engage in mediation as a result of domestic abuse,

and in this subsection ‘domestic abuse’ means abuse of the kind to which paragraph 10(1) of Schedule 1 relates”.

The intention is self-evident.

I declare an interest at this late stage in my remarks. I practised family and criminal law for 15 or 16 years as a solicitor and for an equal number of years at the Bar, so I have some understanding of how the family courts work and would therefore gently admonish the Minister: the word “custody” went out of favour about 12 years ago—but that is by the bye. My background in this area of law leads me to believe that these changes might well have a devastating effect on families and, even more importantly, children. Both, of course, are closely interrelated: if it is disastrous for the family, it is obviously additionally disastrous for the young child as well. What is more, I believe that the Government’s decision to press ahead with a weakened definition of “domestic abuse” will result in many women—for it will be overwhelmingly women—entering into court proceedings alone and without legal aid funding.

Oral Answers to Questions

Simon Hughes Excerpts

Tuesday 29th March 2011 Commons Chamber

[Nick Herbert]

As I said, more than 5,000 prisoners have been removed. Of course, the situation will change in December when the EU prisoner transfer agreement comes into force. As a consequence of that, we will be able to remove many more prisoners to serve their sentence in other countries.

[Simon Hughes (Bermondsey and Old Southwark) (LD)]

I thank the Minister for his robust answer. Of the nearly 200 countries in the UN whose citizens could potentially be here in prison, do the Government have any targets for the number of additional agreements we expect to implement outside the EU, or in particular to implement with those countries whose citizens constitute the largest number of prisoners in this country when they should be somewhere else?

[Nick Herbert]

We have to negotiate this with individual countries. We cannot simply remove prisoners to countries to serve a sentence there unless those countries accept it, but we can compulsorily remove prisoners if the countries agree. We already have agreements with Uganda, Rwanda and other countries, and an agreement is being negotiated with Nigeria. We would like to negotiate as many more arrangements as we can, but some countries simply disagree.

Civil Recovery (England and Wales)

Simon Hughes Excerpts

Tuesday 22nd March 2011 Westminster Hall

[Simon Hughes (Bermondsey and Old Southwark) (LD)]

I am grateful for the opportunity given by Mr Speaker to have this debate and to the Minister for doing a back-to-back session by responding to two successive debates.

Colleagues who have looked at the Order Paper and seen that this debate is about civil recovery in England and Wales may not have realised immediately what the subject of the debate is. “Civil recovery” is not a phrase that people regularly use. I want to introduce the debate by giving two examples of incidents that came to my attention as an MP in Southwark and that precipitated my interest in the subject.

A constituent of mine came to me after her 15-year-old daughter was accused of stealing £6 worth of goods from a London store. The daughter was then sent a demand on behalf of the store from which she was alleged to have stolen those items asking for £137.50. The explanation given was that she was being asked to compensate the store for the £6 worth of items and to pay the rest of the costs of the administration, the store security and so on. Another constituent then approached me on behalf of one of her daughters, who had been with two friends at Primark. One of the three girls—not my constituent’s daughter—was accused of stealing, but demands for £87.50 were sent to all three girls on behalf of Primark. These two incidents alerted me to what I have since discovered is a very widespread practice.

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

My right hon. Friend is right that this is a widespread practice. I want to draw to his attention to a very similar case involving a constituent of mine. She was stopped and accused of shoplifting. Nothing was found, and she was released by the police, but subsequently she received a letter from a civil recovery company saying that she needed to pay £70.

[Simon Hughes]

Like my hon. Friend, all Members of this House who are MPs for any length of time will discover, if they go through their casework files, that this practice is being brought to their attention. At the beginning of this debate, I unambiguously want to pay credit to the citizens advice bureaux and in particular to Richard Dunstan, who had done some work on this issue long before I became aware of it. On behalf of the CAB, he has brought together all the examples of this practice in the best possible place. As a result of his work, two briefings have been published by the CAB, which I recommend to colleagues and others who have an interest in this subject. The first, “Unreasonable demands?”, was published in December 2009, and the second, “Uncivil recovery”, was published in December 2010. The subtitle of the second briefing tells us succinctly what we are talking about. It is:

“Major retailers’ use of threatened civil recovery against those accused of shoplifting or employee theft.”

Colleagues in both the last Parliament and this one have shared my interest in this subject. In the previous Parliament, I know that Ian McCartney was particularly concerned about the issue, and in this Parliament I know that Baroness Hayter has already registered her interest in the subject. I am grateful to her for her continuing interest, which I think that she will want to pursue in the other place.

None of us who are here for this debate are defending shoplifting or employees who shoplift or take property from their employer. However, there are proper procedures, proper criminal processes and proper civil processes. What should not happen is that people who often are young—that is, under the age of majority—vulnerable, mentally ill, distressed or disturbed are intimidated, charged extortionate fees or threatened with what are, bluntly, bogus actions, either by the shops themselves or more frequently nowadays by those who are employed by shops to act for them.

I have discovered that this problem is significant. In each of the past three years, some 100,000 people have received one or more letters demanding a substantial sum of money as “compensation” for their alleged shoplifting or employee theft, and threatening civil court action and associated extra costs if the sum demanded is not paid promptly. Since 2000, more than 600,000 people have received such civil recovery demands, issued by one of a handful of agents acting for well known high street retailers such as Asda, Boots, Debenhams, Tesco and TK Maxx. In the great majority of those cases, the value of the goods or cash allegedly stolen was relatively low. If the accusation is of shoplifting, the value was just a few pounds. In four out of five cases, the goods were recovered intact for resale. In many cases, somebody was apprehended when they were accused of leaving a store with an item—for example, an eyeliner worth £2 or a grocery item worth £1.60—without having paid for it. They then paid for it and were released, but they still received the civil recovery demand later. Among those cases reported to the CAB, one in four of the recipients of such demands are teenagers, most of them aged between 14 and 16, and other recipients are particularly vulnerable.

In many cases, the alleged theft is strongly denied, so it is not always the case—indeed, it is normally not the case—that these allegations are accepted by the person who is charged. In some cases, there was clearly an innocent mistake; in other cases, there was an error; and in other cases there was confusion. However, it matters not, because these stores have behind them a small but growing army of lawyers and other companies that are making a hefty profit from this business.

There is a common feature in these cases. If the sum demanded is not paid, the threat of county court action is often repeated. There is a second threat and then a third threat, giving ever closer dates of notice. However, at the end of all these threats county court action does not materialise, because it was invalid and unjustified in the first place.

The most prolific civil recovery agent, a firm called Retail Loss Prevention, is the biggest player among a small army of players in this sector. It has confirmed that it has never successfully litigated a fully contested county court claim in respect of an unpaid demand. The CAB has also received advice, which I have seen, suggesting that there is no obvious legal authority for most of these demands. Taken together, those two facts suggest that the practice of threatened civil recovery relies on fear and/or shame, as well as ignorance of the law, for its effectiveness.

When I began thinking about how I would raise this issue, I wondered which Government Department I would, as it were, “summon to answer” to me in the first place, because it is very clear that this matter is not only the responsibility of the Ministry of Justice. However, I thought that I would start there, because it is a justice issue, and I am very grateful for the Minister’s presence today and for his Department’s interest in this subject. Shortly, I want to put to him some specific issues that I hope his Department can pick up, because I believe that it has a responsibility to do so and that it can do things.

There is no way that that we should continue to permit this system of civil recovery, and I hope that today’s debate will precipitate a working-together across Departments. Obviously, there is a Home Office interest in this issue and there is also an interest for the Department for Business, Innovation and Skills, as well as an interest for the Ministry of Justice, in trying to ensure that we shut down this business and make those who are involved, which are otherwise reputable major retail outlets, behave in a much more reasonable way.

Nobody condones retail theft. It is a big issue, and we need to ensure that stores are not pilfered and that there is the best possible policing of them. However, even if one accepts that retail theft is a big problem, the percentage of the money stolen from shops that is recovered by these means is a very small proportion of the total. So it is not as if the retailers involved are able to cover all their costs by doing this type of thing. I will turn to some examples.

[Tom Brake]

Has my right hon. Friend considered that we should take up this issue in a protection of freedoms Bill No. 2? It is probably too late for the Protection of Freedoms Bill that is about to start its Committee stage, but it could be considered in a future Bill.

[Simon Hughes]

I am grateful for my hon. Friend’s suggestion, and I hope that the Minister will address the areas that the Ministry of Justice can pick up. If over the next few weeks, with concentrated efforts in both Houses, we can get a coalition—as it were—of determination to do something, I, with my hon. Friend and others, will look for the earliest available opportunity to deal with the legislative changes that I think are part of the response that is needed.

On the protagonists, I have listed some of the major retail players, and I will now deal with the agents. In eight out of 10 of the cases reported to citizens advice bureaux the demand was issued by a Nottingham-based company called Retail Loss Prevention Ltd. Since 1999, that company has issued more than 550,000 demands on behalf of dozens of retailers, including Argos, E.H. Booth, Debenhams, Harrods, Iceland, Lidl, Matalan, Morrisons, Mothercare, Netto, Primark and Waitrose. The company retains some 40% of any money it recovers and the remainder goes to the retailer client. The owner and managing director of the company, who is being pursued by Citizens Advice and by others in the media, has said that the company is

“passionate in our belief that we are helping the community by going after the ‘soft’ criminals who are often seen as lower priority by the police”.

In seven out of 10 of the cases that have come to the notice of citizens advice bureaux, the demand was issued on behalf of one of just six retailers—Boots, TK Maxx, Tesco, Wilkinson, B&Q and Superdrug. The predetermined fixed sum demanded by RLP in most if not all shoplifting cases varies according to, and is determined by, the total value claimed of the goods or cash involved. If the value is between nothing and £10, the sum demanded is £87.50 and the 21-day settlement offer is £70; if the goods are worth between £10 and £100, invariably £137.50 is asked for, with a discounted 21-day-period amount; if the value is more than £100, £187.50 is asked for, with a quick-pay discounted amount of £150; and if it is more than £300, £250 is asked for, with a quick-pay amount of £200. It is clear that the company has never justified the legitimacy of its action. It has been asked persistently about the evidence for its actions, and it has repeatedly declined to produce any evidence that claims have regularly and successfully been pursued by means of county court proceedings.

The company has also clearly misrepresented the position. Until last November, RLP’s website stated that

“we have established operating procedures for Civil Recovery and agreed guidelines with the Association of Chief Police Officers (ACPO) and Association of Chief Police Officers Scotland (ACPOS)”.

However, in October last year, the assistant chief constable who leads on retail crime for ACPO wrote to Jackie Lambert at RLP stating:

“Whilst there may have been agreements in the past about exchanging data and operating civil recovery with ACPO…there are no such agreements in place now and indeed on several occasions over the last few years I and my colleagues have asked that such references be deleted. Please remove from your website any and all references which state or imply that RLP operates its civil recovery in agreement or cooperation with the Police Service. Clearly if you have an agreement with an individual force you could make reference to that, but I know of none.”

In November last year, ACPOS said:

“At no time have ACPOS entered into any formal agreement with RLP or assisted them in any civil recovery”.

The other players are Drydens, a law firm based in Bradford, Nottingham-based Civil Recovery Solutions and, more worryingly in a way, a Florida-based law firm, Palmer, Reifler and Associates, which is a major player on the United States civil recovery scene but is not regulated to practise in the UK and uses Wigan-based law firm Goddard Smith as its agent. Lastly, there is the London-based firm Civil Recovery Limited, which acted for only Tesco and was closely related to a security company called TSS, which supplies security guards to Tesco, Boots and other retailers. Civil Recovery Limited ceased trading last summer.

Penultimately, there is of course a civil wrong if someone steals something from someone else. There is a tort as well as a crime, and there is a breach of contract if an employee steals from their employer. I am not arguing that there might not be proper civil proceedings, but this is a contrivance. It is an intimidation, with the protagonists selling their services to the retail fraternity and then recovering a large amount of money under clearly false pretences. What please can we do about it?

I would like the following from the Ministry of Justice. I would like it to ask the Law Commission, which has a report in the pipeline, to ensure that it urgently reviews the entire law on civil recovery, with a view to eventually ensuring, by law if necessary, that civil recovery is limited to cases involving serious, determined and/or persistent criminal activity for which there has been a criminal trial and conviction. I would like the Ministry, as a matter of urgency, to prepare and disseminate public information and advice on threatened civil recovery, and in particular on the options available to people who might receive a civil recovery demand from Retail Loss Prevention, Drydens or other civil recovery agents. That could be done through the Government’s public information service—Directgov—citizens advice bureaux and other advice outlets.

I also want the Ministry of Justice to talk to the Solicitors Regulation Authority to see whether it needs to take further action to ensure that the civil recovery practice of solicitors, including employed solicitors, is consistent with the solicitors’ code of conduct. I would then like the Home Office, the Department for Business, Innovation and Skills, the retail industry and the police to identify and develop a range of alternative ways of dealing with those involved who, if they are young, mentally ill or vulnerable, are often better dealt with by cautions and the early stages of the pre-criminal procedure in my experience.

As the total amount recovered by the civil recovery agents for their retailer clients each year seems unlikely to be more than £16 million, the practice is clearly completely unacceptable, given that they say that they lose £4 billion every year as an industry. I hope that some major retailers will hear this debate and agree to review their practice. Most of all, it is clear to me that the practice has become an opportunity for great profit-making by a few at the risk of improperly influencing and intimidating people who ideally should not be in the criminal process, unless they are regular offenders, and certainly should not be the victims of communications that distort the facts, misrepresent the law and often put the fear of God into people who certainly do not have the money to pay large sums.

I hope that the Minister can be helpful, that he understands the importance of this issue to all our constituents, and that today will be the beginning of the end of this practice. I am very grateful to all those people who have brought the issue to the public’s attention, and I hope that there will be continued significant public reporting, until the practice is ended.

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

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

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

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

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

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

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

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

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

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

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

[Simon Hughes]

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

[Mr Djanogly]

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

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

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

“loss and damage caused by your wrongful actions.”

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

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

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

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

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

[Simon Hughes]

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

[Mr Djanogly]

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

Oral Answers to Questions

Simon Hughes Excerpts

Tuesday 11th January 2011 Commons Chamber

[Mr Djanogly]

I will be happy to meet the hon. Gentlemen.

[Simon Hughes (Bermondsey and Old Southwark) (LD)]

T5. Will Ministers take the opportunity to look at the latest report by Citizens Advice on civil recovery and consider how we can stop the use and abuse of civil recovery against shoplifters by many retailers up and down the land?

[Mr Blunt]

I am grateful to my right hon. Friend for that suggestion, and we will examine the issue.

Legal Aid and Civil Cost Reform

Simon Hughes Excerpts

Monday 15th November 2010 Commons Chamber

[Mr Clarke]

Not normally, unless in an exceptional case we are under a legal obligation to provide legal aid. Education cases include all kinds of things, such as litigation regarding exclusion of particular pupils, and whether someone has been granted a place at the school of their children’s preference and so on. All such disputes can be litigated. The special educational needs cases are the most difficult. I repeat what I said before: these are educational problems, and there should be a process of resolving them that does not involve going all the way through the courts. I heard that the Supreme Court was hearing a special educational needs case. Although I am sure it came to the right decision, I am not sure whether it was the best way to resolve the problems of how to educate a particular child with particular problems.

[Simon Hughes (Bermondsey and Old Southwark) (LD)]

I acknowledge the rational and very thoughtful way in which the Secretary of State has approached this issue. As he seeks to deliver the aid, advice and mediation services as a network across the country, will he make sure that some sort of protection for the poor and vulnerable is in place so that they are not driven into the hands of exploitative private sector operators who will want to take their money for immigration advice and the like—advice that is often dud and costs far more than they can afford?

[Mr Clarke]

I agree with the thoughts that underlie the hon. Gentleman’s intervention. Let me make it clear that legal support for mediation remains important in the family field, and we believe that it is a much better way of proceeding. I will certainly bear in mind what the hon. Gentleman said about immigration advice. We have all known for many years that some of that advice, usually given by non-lawyers, to those having difficulties with the immigrations authorities is not very good and that the prices charged are rather unscrupulous. People are being taken advantage of by those who are affecting to help.

Defendant Anonymity

Simon Hughes Excerpts

Thursday 8th July 2010 Commons Chamber

[Mr Blunt]

I will direct the attention of the director to the hon. Lady’s remarks, to see whether it is possible to achieve that objective. If we were able to come to intelligent conclusions that would assist the debate, I am sure that that would be useful. We shall have to see whether this will be possible; we will examine the matter and try.

[Simon Hughes (Bermondsey and Old Southwark) (LD)]

I am glad that the Government are listening and proceeding slowly, but there are other wide-ranging issues that I hope are also under consideration. Can the Minister tell us whether anonymity is being considered in the context of all sexual offences, as one category— [Interruption.] I am asking the Minister. Is it also being considered in the context of all offences of violence, which is the other big category? Having single solutions for single types of offence, however important the offence is, would be the wrong way to go. Looking at this in the broader context is the right way to proceed.

[Mr Blunt]

The Government have come to a view on where we want to strengthen the position, and it is around the offence of rape. There are arguments about whether this should apply more widely, and we have given careful consideration to them. Setting aside the issue of teachers—that is seen as discrete and should be carried forward separately—it is the Government’s view that we should limit this to the particular offence of rape.

Our current thinking is that the available evidence does not absolutely dispose of some of the questions that have arisen in relation to anonymity, even at the pre-charge stage. There is an important outstanding question of the extent to which anonymity might frustrate further police inquiries into an offence. We are looking at what further research might be required to fill in any gaps. This will enable us to take a view on any exceptions that it might be necessary to build into a general anonymity rule.

Finally, I would like to explain how we intend to take matters forward over the summer. I want to stress that we have been treating this issue as a priority, and we will continue to do so. We recognise that the subject is of considerable interest to many people inside and outside the House, and in another place. In the circumstances, it would be undesirable to allow it to slip.

--- Later in debate ---

[Maria Eagle]

I agree with my hon. Friend that there are many myths about rape. It is one of the few crimes for which victims are frequently blamed, if not by the statutory authorities, at least by society or certain elements of society or by those investigating the crime. One crucial thing we as a society must do if we want to convict more rapists is tackle all the causes of failure. We have to encourage those who have been raped to report in greater numbers, and we have to ensure that the support is there to enable them to go through the ordeal of trial and investigations, which can carry on for too long, often for many months. We must also provide aftercare and support for the victims. Anything that detracts from that will not help us as a society to deal with this heinous crime, and a consequence will be that more victims and more families will be affected. We should remember that it is often not just the victim herself who is affected by the crime and its aftermath but the children. We also need to bear in mind the fact that many children are themselves victims.

[Simon Hughes]

I agree that the idea is not to put people off, but to encourage them to come forward when a criminal justice process is being gone through. Does the hon. Lady agree that, as the police say, it is often not the name or physical identity or picture of the suspect that brings people forward but the knowledge of the method of operation? I speak as the MP of John Worboys, who operated as a cab driver. The knowledge that the offender was a cab driver was enough to encourage others to come forward. It could be knowledge that the person committing the offence usually climbs through a window at 1 o’clock in the morning. The point is that is often the operation, not the identity, that is important.

[Maria Eagle]

I agree with the hon. Gentleman that revealing the modus operandi can bring women forward. Often, women do not want to report, and only when it is reported in the media or elsewhere that the person is committing the offence against other women do they have the courage to come forward. Anything that inhibits that process can damage efforts to catch serial rapists and to ensure that justice is done and seen to be done.

--- Later in debate ---

[Simon Hughes (Bermondsey and Old Southwark) (LD)]

I am grateful for the opportunity to speak in the debate. I compliment the right hon. Member for Leicester East (Keith Vaz) on his speech. I shall come back to the content, but I largely agree with what he said and would like to add to his arguments.

My hon. Friend the Member for Gillingham and Rainham (Rehman Chishti) ticked all the maiden speech boxes, and I congratulate him on that—except for his bigging up of Gillingham. Gillingham regularly play Millwall, and Millwall often win, so he cannot expect my support for the Gills, although as I go to many games I shall look out for him and entertain him willingly if he comes to any games at The Den.

The hon. Member for Garston and Halewood (Maria Eagle) made a comprehensive speech, on which I compliment her. Like the right hon. Member for Leicester East, she covered the ground well. She combined passion with warnings that we must proceed carefully, as I shall seek to do in my few remarks.

The Government are to be congratulated on having brought the matter to debate early in the Parliament, and I thank my the Under-Secretary of State for Justice, my hon. Friend the Member for Reigate (Mr Blunt),on doing so. He and his colleagues said they would do it and they have. It is right that the Government are trying to ensure that the voices of Parliament and those who communicate with us are heard, without having to hold a formal, national 12-month or two-year consultation. We can have proper processes of deliberation, and my understanding is that we have plenty of time, because the proposal is not in this year’s legislative programme. It was not in the Queen’s Speech, so we have at least a year to see where we want to go.

I have one more deliberative point. There may be a case for relevant Select Committees to meet jointly to look at this matter, because clearly there is a home affairs issue and a justice issue. I hope that when the Committees are set up, the two Committees might think of doing the work together, instead of doing two separate bits of work. That would be the logical thing to do.

I say very clearly that before I entered the House—now a long time ago—I was a practising barrister and both defended and prosecuted in serious sexual offences cases, including rape cases. That work, my work as a youth worker and my work as an MP—which has included dealing with some of the most horrendous cases of rape of people who have come to see me themselves, or of their daughters—have made me absolutely clear about the need to get the law right, and to ensure above all we achieve the first objective: the perpetrators of these most horrendous of crimes are brought to justice. There have been too many failings in the criminal justice system as a result of which that objective has not been achieved.

I have had to nurse several families through the fact that the criminal justice system has failed and let them down—sometimes with traumatic consequences for the individual, who as an adult has not been able to carry on trusting the system or other people. The hon. Member for Garston and Halewood was right to say that very nearly all the people concerned are women—more than 90%—but occasionally there are men too, and we should not forget that such things could happen to anyone.

[Meg Munn]

The hon. Gentleman is making a very thoughtful speech. Does he agree that when there are repeat offences it is important that people are brought to justice early, because that in itself becomes a protective measure for potential future victims?

[Simon Hughes]

I absolutely agree with that. I was very critical, publicly and in the House, of the fact that it took so long for Ian Huntley to be brought to justice for the Soham murders, given that although he had not been convicted before, he was on the radar of the police in Lincolnshire, I think, and on Humberside, before he moved to Cambridgeshire. I was also very critical of the fact that John Worboys, who lived in my constituency, was not brought to court until he had committed at least 70 offences. I think that the police have gradually learned the lesson and are improving their system, as the right hon. Member for Don Valley (Caroline Flint), who has relevant ministerial experience, knows, but it took a lot of work to get the police to change their attitude and to take these issues much more seriously all the time. There have been many cases relating to offences in my constituency and elsewhere—in the latest one, a man who was a serial offender was arrested in relation to offences in south-west London—where the pattern of serial offending was such that clearly there could and should have been earlier intervention; the hon. Member for Sheffield, Heeley (Meg Munn) is quite right.

Without repeating what others have said, let me quickly remind hon. Members of how we got to this point. In 1976, we legislated to give anonymity to complainants in rape cases. That was extended to other sex offences in 1992. In 1976 we legislated to give anonymity to defendants in rape cases for the period until 1988, when the law was then changed. After a period of just under 12 years, the law went back to where it was before, and where it remains. Since then, despite the Sexual Offences Act 2003, which was a major piece of legislation, we have not changed the law in this area. The same year, the Home Affairs Committee came up with its recommendation that we should change the law, but we have not done so, and it was against that background that my party—it is not a secret—had a long debate specifically on rape at the 2006 Liberal Democrat conference, because of the concern about the low number of convictions. That was what precipitated the debate, and I want to share its conclusion because, yes, the source of this policy is indeed my party’s deliberation.

We noted that the rate of conviction is only about 5%—a figure that we have often heard and that is much lower than that in many other places in Europe. Reported rape is rising every year, but successful prosecutions are not rising; indeed, they are falling. The number of rapists who are given a caution and freed almost doubled in the previous decade. The health-related costs of rape are phenomenal, let alone the other social costs. The Sentencing Guidelines Council allowed the perpetrators of rape to avoid jail if they showed remorse—not something that I would ever countenance. Amnesty International produced a worldwide report that challenged the perception—this point was made by the hon. Member for Hampstead and Kilburn (Glenda Jackson)—about self-induced offences and said that it was far from the truth in most cases. Clearly, such offences are as far from any other from being self-induced.

We also flagged up the tainting of those who were accused and then acquitted. I want to step back for a second. I am sure that colleagues on both sides of the House know that the people who are most vilified in prison and those in the community who are viewed with most suspicion are those accused and either convicted or not convicted of the most serious sexual offences—more so than other offences of violence, apart from the most horrible ones, such as child murder or domestic violence and the rest.

[Kate Green]

I accept that the vilification of sex offenders inside and outside our prisons is a factor of which we must be mindful, but it is important that we have more information on different experiences of sexual offence. The vilification of sexual offenders who have committed offences against, for example, children is quite different in my experience from how the media and the public respond to sexual offences against women—particularly, for example, young women who have been drinking or who are known to their attackers.

[Simon Hughes]

I accept entirely what the hon. Lady says. She is right, which is why we need to proceed with caution. These areas are both sensitive and ones in which there is still prejudice and misinformation, and it is very important to distinguish between different categories of offence and activity.

We did not debate the whole issue of anonymity in the criminal justice system, nor other ranges of offence, but we concluded that a whole raft of changes should be made, only one of which was the proposal for anonymity. We suggested making more progress with special prosecutors for rape cases and an expansion in the number of sexual assault referral centres. Rape victims should be examined only by properly qualified forensic specialists who are trained in examining rape victims. A national rape helpline should be established. Special awareness training and education should be given to police officers and health and social care professionals to support male victims of rape. We opposed the Sentencing Guidelines Council’s proposals to allow the avoidance of jail for the perpetrators of rape if they show remorse.

[Anna Soubry (Broxtowe) (Con)]

Will the hon. Gentleman give way?

[Simon Hughes]

I hope that the hon. Lady will allow me to continue just for a second.

We requested that the Home Office commission a new study of why there is such a low conviction rate in England and Wales. We suggested a public information campaign to close the gap between the perception and the reality of rape. Only lastly did we suggest a change in the law—agreed after debate, discussion and a vote by a majority—to prohibit the media from identifying anyone directly or indirectly about whom a complaint of rape has been made, and until such time as they have been convicted.

It was therefore not surprising that the Government have looked at the issue, even though I accept that it was in neither the Liberal Democrat nor the Conservative manifesto. The public did not, therefore, become engaged on the matter in the election campaign. I am not defending the fact that the proposals are in the coalition agreement, but saying clearly that I am sure that if the outcome of this deliberation and the response to the Government’s policy proposal, which came from the Liberal Democrats, is a consensus in the House and around the country not to proceed, both parties are open to persuasion along that line.

I want us to go deliberatively, because there is a strong case for changing the law, but it is not a cut-and-dried, open-and-shut case. I hope that the rest of the debate is much less partisan than the beginning of it, because this is not a party political issue—[Interruption.] It is absolutely not a party political issue. People outside would not understand if we took partisan positions, and I absolutely encourage the Government to think like the Lord Chancellor, who was right that a non-whipped vote would be entirely appropriate. I am in favour of many more such votes on such matters, which are not proprietarily the view of one ideological group or the next.

[Glenda Jackson]

rose—

[Simon Hughes]

Let me make my other comments. If I have time to give way to the hon. Lady at the end, I will do so very willingly.

I want to address succinctly two wider issues that have been touched on. We must deal with the objective of maximising the number of people brought to justice for both rape and other serious sexual offences, but we must also achieve the second objective of avoiding the harmful stigma of such allegations, which can often lead to suicide, attempted suicide and the like, for which there is evidence. There are therefore two big criminal justice issues for our country—this is an England and Wales issue. We need first to decide whether open justice—the principle that the hon. Member for Garston and Halewood said should be our starting point, as it should—should be circumscribed at all. At the moment, we have done that for complainants in certain offences, but should we circumscribe open justice at all in relation to defendants? We could either do that for the category that I would call sexual offences against other people, by which I mean violent sexual assaults, which are not all rapes, or we could propose anonymity for other types of assault. I do not believe that there would be a case for inclusion for any other violent offences, and I am also not persuaded that child pornography or other such offences should be included. However, there may be a case for anonymity in cases involving sexual offences—of any type—against another.

The second question is on the limitation of the period of anonymity. Should we have a very limited period of anonymity, for example, up until charge, a longer period, which could last to the beginning of the trial, or the longest period, which would be up to the end of the trial and conviction?

I should like us to look very carefully and deliberatively at those two sets of options. Are we talking only about rape or about a wider set of sexual, serious, violent offences? Should anonymity last only for the period between arrest and charge or for longer? My hon. Friend the Minister and the Government want to listen to the voices and hear about the research. I hope that the House can do its duty properly and ensure that we come to the right conclusion. That will need a bit of time, but let us please not be overly partisan about it.

--- Later in debate ---

[Meg Munn (Sheffield, Heeley) (Lab/Co-op)]

It is a pleasure to follow the hon. Member for Cannock Chase (Mr Burley). I must say that during his speech I found myself wishing that we could go back in time and see Cannock Chase in the days that he described. I regularly travel from Birmingham northwards, as my husband comes from Birmingham, and I have never thought of Cannock Chase in those terms, but I will do so in future. The hon. Gentleman paid a full and correct tribute to Tony Wright, whom we all miss, and who, as he rightly said, has left us with an important legacy. I wish the hon. Gentleman well in his pursuit of home affairs, but, unusually, following a maiden speech, I will be disagreeing with him on several issues, although I will do so in the customary fashion in this House.

I want to make a few points in this enormously important debate. I am worried that the Government’s policy is ill thought out. My hon. Friend the Member for Hampstead and Kilburn (Glenda Jackson) dealt well with the issue. The Government should think again, and carefully, about the matter. No one in this Chamber underestimates the impact on a person of a false accusation of rape or any other crime. In my many years in social work, I worked not only with many victims of sex offenders but with sex offenders themselves, and on a few rare occasions witnessed first hand the impact of what subsequently turned out to be an unproven accusation.

Over the years, I have watched the situation for those complaining of rape improve, fortunately. Some Members of a similar age will recall—some Members, happily, are younger and will not—that back in the 1980s some television programmes were made in the Thames valley about police interviewing rape complainants. Many people were rightly horrified to see the general attitude of disbelief, which was one reason for the low reporting of cases. Fortunately, much has changed since that time, although not as much as we might like. However, the successful prosecution rate for rape continues to be of significant concern. In such situations, to protect people from false allegations, we must expect good investigation and evidence gathering. In a number of cases of false allegations of which I have heard, that has not been the case. Adopting a general position of belief, which is essential, does not mean ignoring the importance of good investigation and evidence gathering.

Let us be clear: this crime is not only heinous, but enormously difficult, for many reasons, to investigate. It is difficult for victims to talk about. None of us would welcome having to talk about sexual matters—even those on a consensual basis—but talking about an attack or crime of such a nature to people one does not know, and to have to go into intimate details, is very difficult. Rightly, we have talked about children being involved, and I dealt with that on a professional basis for many years. How do children explain what has happened to them when they might not even have the necessary words? How do they talk about it when they might feel that people are looking at them as if they have done something wrong themselves? We must take that into account.

Even when adults are involved, we are talking about a situation in which perhaps only two people were present and there were no other witnesses. We are talking about one person’s word against another’s. Even when, according to any objective judgment, a woman has done nothing wrong, she will still be asking herself, “Did I do something wrong? Did I invite this in some way?” We as a society must say, “No means no. Rape is not acceptable. Sexual relationships without consent constitute rape, and should be subject to prosecution.” However, the difficulties involved cannot be underestimated, and the situation must therefore be approached very carefully.

It is important that we adopt a position of belief, because, as some of my hon. Friends have pointed out, too many people have not been believed in the past. If it is felt that the first thing victims must do is prove that something has happened to them, even fewer women will come forward, and children will not summon up what is an almost impossible level of courage to speak up and say, “Something happened to me.” I have watched people who have been abused trying to give evidence in court. I shall never forget seeing a young woman who had been abused while in a children’s home, standing there petrified and trembling, almost unable to give evidence. In such circumstances, the position of victims is very difficult.

The issue of offending behaviour involves a great many myths. We talk about rape as if it suddenly appears out of nowhere, but someone who commits rape may well have previously committed other, lesser, sexual offences. I use the word “lesser” in relation to the criminal process, not in relation to the impact on the victim. The offender may have tested a situation, or fantasised about it, before committing the offence. In many cases, a pattern of behaviour has been formed.

That is one reason why those of us who oppose anonymity after charge—anonymity before charge is a different matter—consider it important to do so. Someone who comes forward and says “This happened to me too” provides corroboration of that pattern of behaviour, and leads people to feel that they can believe what is being said. As I said earlier, if just two people are involved it is one person’s word against another’s. If a pattern of behaviour has been established and people provide detailed corroboration, it becomes possible to proceed with a prosecution.

[Simon Hughes]

The hon. Lady is always listened to seriously and with respect. May I ask whether she has reflected on my earlier suggestion to her hon. Friend the. Member for Wallasey (Ms Eagle) that what leads to more women coming forward is not necessarily the information that an individual lives at a certain address, is a certain height or has hair of a certain kind, but may be a pattern of behaviour? That is information that can be shared immediately, and the police often do share it just to get people to come forward, as indeed they should.

[Meg Munn]

I agree. In my experience, it is possible during the investigative process—in which, as I have said, I have been involved on the social work side—to question people who may have been in contact with the person concerned, without necessarily naming that person. For example, it is possible to contact previous residents of a children’s home and ask, “Did anything ever happen to you that gave you cause for concern?” Conducting the investigative process properly protects against false charges, or charges that turn out to be false.

We must look at this situation in the round, and we have to say, “This is too important not to have a formal consultation.” I have been encouraged by the fact that the Government have been prepared to discuss this more, and to accept that the nine words that were in the coalition document are not sufficient, but I plead with them to have a formal consultation. This is a matter that deserves to be addressed with that level of seriousness.

I gently say to the hon. Member for Cannock Chase that this is not a gender issue. Many victims are men and boys. Indeed, one concern is that boys who were abused as children find it particularly difficult to come forward and say they have been abused, because there is still the stigma that means they might be called gay. Sometimes—but not always by any means, as this is not a direct correlation—victims who have had something terrible done to them as children go on to become perpetrators because they do not know the rightful place of sexual relationships in adult situations. We talk about the lifelong effects of sexual abuse—that is one of them, and we should take it very seriously.

That points to another reason why it is enormously important that people have the confidence to come forward early and say they have been abused. The hon. Member for Bermondsey and Old Southwark (Simon Hughes) mentioned the impact on families. If people come forward early, it stops there being future victims. We must constantly bear down on this issue to stop there being future victims and to stop the cycle of sexual abuse continuing.

I ask Ministers to answer the following questions again and in greater detail. Why rape? Why not all sexual offences? Also, why has this proposal been put forward at all if not because of the issue of false allegations? The Minister said very clearly that it was not based on the issue of false allegations, but he did not tell us what it was based on.

This debate deserves greater clarity, not more confusion, which is what we got from the Minister today. The matter under discussion is complex and important, and we need to take time over it. We need the Select Committees to take a look at it, and we need a proper public consultation so that everybody who has a story to tell and every agency that has worked with people affected by this can respond and put forward their views.

I understand how the proposal may have emerged. It might, perhaps, have happened without enough thought and late at night when people had not had any sleep during the period when the coalition agreement was put together fast. That does not have to bind us to carrying the proposal through, however, and to making a decision that would be detrimental to the people we should be caring about, whether victims or offenders. I ask Ministers to think again.

--- Later in debate ---

[Caroline Flint]

I certainly was not seeking to provide evidence to support the Government’s position. I was providing evidence to explain why the Government’s position was wrong. What I have failed to receive is evidence from the Government as to why they are pursuing this singular policy of anonymity for rape defendants.

In one of Baroness Stern’s 23 recommendations—I hope that the Government will give the other 22 equal time and priority—she asks that there should be research, and

“that the Ministry of Justice commissions and publishes an independent research report to study the frequency of false allegations of rape compared with other offences, and the nature of such allegations.”

She was saying that the matter should be looked at in the round.

As I said earlier, I am sad today that the opportunity was not taken by the Government to knock this coalition proposal on the head and move us into an area where we could find some consensus and agreement across all parts of the House.

[Simon Hughes]

In that context, if the evidence that Baroness Stern and others have asked for is forthcoming, in the form of further research, would the right hon. Lady be prepared to look at an idea that goes more broadly than rape? Is she willing to accept, at least in principle, that there may be a case for anonymity in other categories, not single-offence categories?

Legal Aid Payments

Simon Hughes Excerpts

Thursday 17th June 2010 Commons Chamber

[Simon Hughes (Bermondsey and Old Southwark) (LD) (Urgent Question)]

To ask the Secretary of State for Justice if he will make a statement on the consequences of the timing of legal aid payments to the charity Refugee and Migrant Justice.

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

Refugee and Migrant Justice entered into administration earlier this week. It wrote to me a month ago warning me of the risk, and has since made requests for substantial assistance from public funds. The organisation was one of many that provide legal advice and representation to individuals on asylum and immigration matters funded by legal aid. The Legal Services Commission is confident that there is widespread provision of legal advice in this area and that overall capacity will not be affected by the closure of Refugee and Migrant Justice. More than 250 offices nationally are currently providing this type of service.

It may help if I explain the background to this unfortunate situation. The Legal Services Commission has worked closely with Refugee and Migrant Justice for the last few years to help the organisation to make the change to a system of payment based on units of work, the graduated fees scheme. As a result, Refugee and Migrant Justice has received substantial support—over and above the support given to not-for-profit and other organisations—to help it transfer to the current payment system.

However, it is crucial that the Government achieve value for public money. The fixed fee system introduced three years ago by the last Government is already being successfully used by the vast majority of not-for-profit organisations in this area of law. As other organisations have successfully made the transition, it is only reasonable to expect Refugee and Migrant Justice to do the same.

It has been suggested, and is implied in the hon. Gentleman’s question, that under this system payments to Refugee and Migrant Justice have been delayed. It is not a question of any late payments. Refugee and Migrant Justice was paid what was due. However, it did not make the efficiency savings that other providers made.

There is significant long-term interest in the work from other providers, both not-for-profit organisations and private solicitor firms. The Legal Services Commission is currently running a tender round for new contracts for immigration and asylum services from October 2010. There has been an increase in the number of offices applying to do the work. Providers have also bid to handle more than double the amount of cases currently available. It would be wrong to divert legal aid funds to one of the bidders in the middle of the bidding process.

In my opinion, given this unfortunate situation, the highest priority must be the vulnerable clients of Refugee and Migrant Justice. Now that the organisation has left the market, the Legal Services Commission will work with it and other providers to seek to minimise disruption and ensure that clients continue to receive a service. I have checked this morning and I can assure the House that the LSC is working closely with the administrators to ensure that any disruption to clients is minimised. Even today, LSC staff have prioritised the approximately 20 clients of Refugee and Migrant Justice who have court appearances.

The Under-Secretary of State for Justice, my hon. Friend the Member for Huntingdon (Mr Djanogly), will ensure that LSC staff continue to prioritise that area. He and I agree that the main task now is to ensure that the interests of that vulnerable group are properly protected and that no one is left without the legal assistance they require.

[Simon Hughes]

I am grateful to the Secretary of State for his full and careful response. On behalf of colleagues who have huge numbers of asylum and immigration cases involving people who use those services, may I say that I hope he appreciates the importance of the subject to them and to our constituents?

Does the right hon. and learned Gentleman accept that currently—so I am advised—13,000 clients are being looked after by Refugee and Migrant Justice, including nearly 1,000 children, who are of course very vulnerable? Does he accept, too, that the reason for the financial problem is the change in the payment system? Although there has been a reduction in income because the payment system has changed, Refugee and Migrant Justice has also reduced its costs by the same amount—I am advised that it is by 40%—and is now being paid in arrears rather than up front, a system that the Law Society and immigration law practitioners have said is unsustainable. I should be grateful if, in time, the Secretary of State would discuss with those organisations how we might improve the system.

Can the right hon. and learned Gentleman give an assurance that he or his hon. Friend, the Under-Secretary of State will make sure that all clients who have been the responsibility of the organisation are given the assurance that their cases will be fully looked after in the immediate days ahead? Are there any other charities in the field with the same sort of problem? If so, there needs to be some continuing and widened support. Will he or our hon. Friend be willing to meet those of us with a direct interest, and the organisations where appropriate, to make sure that there is a stable and secure footing in the years and months ahead for this most important legally aided work?

[Mr Clarke]

I am grateful to the hon. Member. Certainly the problem arose as a result of the change to the graduated fees scheme in 2007, but I do not accept that the failure was necessarily caused by that. Every other organisation, including the other not-for-profit organisations, has coped with this. I do not criticise the 2007 decision, but it was designed to improve the efficiency of the use of public funds in providing large amounts of money to give legal aid to those making asylum claims or facing threats of deportation, or whatever. As far as I am aware, this is the only organisation that proved in the end unable to manage its affairs and its finances to avoid the demise that has occurred.

I know that the system is not popular; I know that the Law Society does not like it, but in these difficult times I am not going to go back on it, because it does provide value for money. We have just invited tenders under the system, and the number of people who want to provide services in this area has actually gone up.

Oral Answers to Questions

Simon Hughes Excerpts

Tuesday 15th June 2010 Commons Chamber

[Mr Clarke]

I certainly will. I have already referred to our commitment to try to provide new rape crisis centres, preferably using the proceeds of crime when they are recovered from criminal offenders. I strongly agree with my hon. Friend that we are long past the stage at which a woman complaining of rape is treated as if she were complaining about a handbag robbery. There is no doubt that all these cases have to be treated with considerable sensitivity because it is very difficult for a woman to bring herself to complain and not enough do so, even in the present climate of opinion.

[Simon Hughes (Bermondsey and Old Southwark) (LD)]

8. What steps the Government plan to take to reduce reoffending by prisoners after release; and if he will make a statement.

[The Minister of State, Ministry of Justice (Nick Herbert)]

May I congratulate my hon. Friend on his election as deputy leader of the Liberal Democrats?

The Government believe that more can be done to cut reoffending by overhauling the system of rehabilitation. We are exploring how sentencing and treatment for drug use can help offenders to come off drugs once and for all. We are also exploring how we can do more with independent providers, including the voluntary sector, to reduce reoffending.

[Simon Hughes]

I welcome the Minister and all his colleagues to the Front Bench to consider such an important subject. May I encourage them, as they work out the plans to deal with reoffending—as has been said, it is a serious issue, which the previous Government did not address adequately—to take the advice of people such as the previous governor of Brixton prison, who were clear that, if secure housing and continuing support to deal with addictions are provided when people are released, the chance of immediate reoffending, which often starts in days, is hugely reduced?

[Nick Herbert]

I could not agree more with my hon. Friend. We must improve the multi-agency approach to tackling reoffending. That means bringing together the police, probation, prisons and local authorities, and ensuring that they work together more effectively. The key is to get offenders off drugs and into work, and, in particular, as he says, into housing. If we can do that, we have a chance of reducing the unacceptably high reoffending rates that we currently experience.