Oral Answers to Questions

Debate between Simon Hughes and Jonathan Djanogly

Tuesday 4th February 2014 Commons Chamber

[Simon Hughes]

At the moment, legal advice and legal aid cover mediation. Someone does not necessarily need legal advice to go into the process, although the mediators may recommend that they need legal advice, which will be available in a legally aided way. It is often necessary to have lawyers involved to draw up the agreement that the mediators have reached, and that will also be publicly fundable by the legal aid service if someone is within the eligibility limits.

[Mr Jonathan Djanogly (Huntingdon) (Con)]

Will the Minister advise the House on the take-up of mediation in the small claims courts since the threshold for small claims was increased to £10,000?

[Simon Hughes]

I do not have that figure in front of me, but I will willingly give it to the hon. Gentleman and make it known more widely. I am clear that we have a duty to re-engage people with the idea that mediation is available. The figures have gone down in some areas in the past year, and we want them to go up. We hope to be able to report a significant increase in the number of people using mediation by the end of the year, but I will of course give him the figures.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Simon Hughes and Jonathan Djanogly

Tuesday 24th April 2012 Commons Chamber

[Mr Djanogly]

Given the timing of this development, we have not thought through the exact procedures of the review, but it will certainly be undertaken before we move to ending the provisions that remain.

We now come to the amendment in lieu passed by the other place in respect of clause 1, and what has been described as a purpose clause. It was suggested variously in the other place yesterday that this amendment would have no effect; that it would have some effect, although that effect was not entirely clear; and that it would have a future effect in guiding successive Lord Chancellors when consideration was being given to what services might be added to the scope of legal aid under clause 8(2).

The difficulty the other place has so far had in establishing the precise effect of the amendment is instructive as this House decides whether it should stand. A duty with an uncertain effect is desirable neither in legislative terms nor for the person attempting to discharge that duty. However, it is the Government’s view that the effects of this duty can be described and are highly undesirable. The amendment would remove the uncontroversial, unambiguous duty the Bill places on the Lord Chancellor to ensure that legal aid is made available according to part 1 of the Bill. This made a clear link between the duty and legal aid. In terms of a clear duty, it does not get much clearer than this. However, the amendment would not only remove that but would replace it with a duty that would bring ambiguity and uncertainty. It refers to “legal services” rather than “legal aid”.

The argument was also made in the other place that the amendment had no effect other than to underline the Government’s commitment to the principle of access to justice. We contend that the imposition of any duty on the Lord Chancellor in legislation must create in law a potential course of action through challenges to the discharge of that duty. If it is accepted that the imposition of such a duty must give rise to a potential course of action, the amendment’s effect must be to bring into question the range of services provided under the Bill. The matter would then turn on the question of which legal services meet people’s needs. That contrasts with the clear and unambiguous duty in clause 1(1) requiring the Lord Chancellor to

“secure that legal aid is made available in accordance with”

part 1.

The Government believe that the question of which legal services meet people’s needs is not relevant to the Bill. Schedule 1 lists the services that Parliament, following consideration of first principles and extensive consultation, believes it appropriate to make available under legal aid. To reopen that question via an ongoing duty would frustrate our intention to bring certainty and clarity to the scope of services funded by legal aid. The amendment would result in only one thing: numerous expensive judicial reviews—more than likely at taxpayers’ expense as the boundaries of the new duty are tested and because the question of which services should be provided would be reopened.

It was said yesterday in the other place that such JR applications would almost certainly fail, and that consequently there would be no cost implications to the amendment. However, even rejected applications have an inherent cost: lawyers are paid legal aid fees for their work up to that point and the Government pay their own lawyers to defend such cases.

I would also like to address the argument put forward in the other place about the amendment’s effect in guiding future Lord Chancellors. It seems novel to include in the Bill an overriding duty that activates when the Lord Chancellor considers adding a service or services to the scope of legal aid. I am not convinced this is possible, and I am certain it is unhelpful. Adding services to the Bill requires the affirmative approval of both Houses. Such a process will be more than adequate to ensure that the Lord Chancellor takes account of the relevant factors when considering what, if any, services should be added to the scope of legal aid.

I emphasise, however, as Lord McNally did in the House of Lords yesterday, that the Bill’s present form arises from extensive debate and consideration across both Houses and reflects decisions about the future nature of legal aid. In short, the amendment is incompatible with the Bill. It would muddy both the duty to which the Lord Chancellor is subject and the scope of services that might be funded.

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

I am not arguing that the House should agree to the Lords amendment, but the Minister will know, as the Lord Chancellor does, that I have asked that the Government consider bringing immigration matters—whether onward appeals by judicial review or when a judge gives permission for a case to go to a higher court—back within the scope of legal aid. Will he put on the record the response to that plea, which I have made to the Lord Chancellor and him several times?

[Mr Djanogly]

My right hon. Friend finds the right moment to ask about something not subject to the amendment. It is an important point, however. My right hon. and learned Friend has written to him about onward appeals in immigration cases. The Department will conduct a review of the impacts of withdrawing legal aid in such cases once we have sufficient data and after implementation of the reforms. I envisage allowing about a year for the reforms to take effect before starting such a review.

Lords amendment 2 was passed in the other place yesterday by the extremely narrow margin of three votes. Unusually for this topic, no one spoke other than the mover and my right hon. Friend Lord McNally. That indicates how far we have moved. I remind the House of the main points. First, and crucially, legal aid to obtain the full range of injunctions and orders to protect against domestic violence will remain exactly as at present. There is no evidential gateway for legal aid for these remedies, and those who need legal aid to protect themselves can get it, regardless of their means.

Secondly, although we have removed most of private family law from the scope of legal aid in favour of funding mediation and less adversarial proceedings, we have made an extremely important exception for victims of domestic violence. That is so that they can take or defend proceedings about child contact or maintenance, or about the division of property, without being intimidated by their abuser during the proceedings.

We have made significant changes to the detail of this exception in response to concerns expressed in both Houses. We have accepted in full the Association of Chief Police Officers’ definition of domestic violence. We have also significantly widened the list of evidence that we will accept as demonstrating domestic violence for the purposes of the exception. That list will now include undertakings, police cautions, evidence of admission to a refuge, evidence from social services and evidence from GPs and other medical professionals. That is in addition to the range of evidence that had already been confirmed, including the fact of an injunction or order to protect against domestic violence having been made, a criminal conviction or ongoing criminal proceedings for domestic violence, a referral to a multi-agency risk assessment conference and a finding of fact by the courts that there has been domestic violence. We have also doubled the previously announced time limit for evidence for this exception from 12 months to two years.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Simon Hughes and Jonathan Djanogly

Tuesday 17th April 2012 Commons Chamber

[Mr Djanogly]

We have, and if one were to call the telephone hotline, one would be able to speak in any of 170 different languages, which is more languages than one would find used in a high street solicitor’s office.

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

It is fine for hon. Members to use telephone hotlines, but what about those with mental illness, special educational needs, learning difficulties or no English? What will happen to ensure they get legal advice and do not give up before they can get anywhere?

[Mr Djanogly]

I confirm to my right hon. Friend that it will be possible for all such people to have face-to-face advice. If the people who take the call, who are expert in finding out whether a person needs face-to-face advice, feel that people need face-to-face advice, they will get it. I am not just speculating. We know that that is the case because a modern, phone-based service currently exists, namely the Ministry of Justice community legal advice helpline. Its record is one of excellent public service. In 2010-11, more than half a million calls were made to it. More than 90% of respondents to the last survey who subsequently received advice from the specialist service found it very helpful.

Concerns have been raised about accessibility. However, contrary to the claims of those opposed to the reforms, phone-based advice has been shown often to be more convenient and accessible than face-to-face advice, particularly benefiting those living in remote areas or those who have a physical disability.

Public Bodies Bill [Lords]

Debate between Simon Hughes and Jonathan Djanogly

Tuesday 29th November 2011 Commons Chamber

[Mr Djanogly]

I thank my right hon. Friend for that contribution and acknowledge that the recommendation appeared in his report. I will certainly take it back to the Under-Secretary of State for Justice, my hon. Friend the Member for Reigate (Mr Blunt), who will take up the matter in due course.

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

My hon. Friend will know that many of us welcomed the announcement he has made and the decision the Government took in the other place. We understand that it was a finely balanced issue, because there is a good argument for reducing or eliminating quangos that are not needed, but on balance many of us will be reassured by the decision. I and others hope that the Youth Justice Board will continue its increasingly effective work in delivering a reduction in crime and a reduction in offending by young people.

[Mr Djanogly]

I will touch on my right hon. Friend’s point later.

During the debates on the future of the Youth Justice Board, we set out to persuade Parliament that, now that an effective youth justice system is in place, the oversight provided by the Youth Justice Board was no longer required and direct ministerial accountability for youth justice should be restored. My fellow Under-Secretary of State made that point on Report. However, we acknowledge the opposition to our original proposal to abolish the Youth Justice Board. Its abolition was never about saving money, as the Ministry of Justice does not have major savings contingent on its abolition. In that context, we have decided not to pursue abolition using powers provided in the Public Bodies Bill. Instead, we will reflect further on the Youth Justice Board’s future role.

I want to make it clear that the Government still believe that there should be more direct ministerial accountability for youth justice, that there is a strong case for the reform of the Youth Justice Board, and that we will consider our options for achieving reform outside the Bill. For example, a range of powers are open to us under the Crime and Disorder Act 1998. We will consider whether and how we can use those powers to achieve more direct ministerial accountability.

We will also consider the position of the Youth Justice Board within the context of the Cabinet Office’s policy on public bodies and its stipulation that all non-departmental public bodies should be reviewed at least once every three years. Let me be clear that the Government’s position on the Youth Justice Board will not be business as usual. Having said that, I assure all right hon. and hon. Members that over this period the Ministry of Justice and the Youth Justice Board have maintained effective working relationships, which will carry on as we take forward proposals for reform. The Government therefore support the motion agreed to in the other place, and I ask that this House does not insist on the amendment agreed to on Report.

--- Later in debate ---

[Simon Hughes]

If I may, I will add a couple of brief comments.

First, I am grateful to the Government for listening and responding positively, constructively and graciously, as my noble friend Lord McNally did in the other place on 23 November. I also thank my right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith) for his work and that of the Justice Committee in looking at this issue and putting their wisdom on the table, ready for whatever decision the Government made. That wisdom is just as valid and can still be picked up by the Youth Justice Board and the Government in the circumstances that the Government have announced.

Lord McNally made clear one reason for this decision:

“The other point that has come through in contribution after contribution is that the real influence and power in all this has been the reputation of the YJB itself. It has been able to call on friends in its time of need because of that reputation.”—[Official Report, House of Lords, 23 November 2011; Vol. 732, c. 1074.]

I associate myself with those whom I call parliamentary friends from across the parties, Lord Warner, who was the midwife—if that is not an inappropriate gender assignation—at the birth of the Youth Justice Board, Lord Elton, Baroness Linklater, Baroness Scotland and others. They have made it clear that although at the beginning it was not evident that the board would be hugely successful, it became more and more successful. I join in the thanks and the tributes to Frances Done, the chair of the Youth Justice Board, and to John Drew, its chief executive.

My right hon. Friend the Member for Berwick-upon-Tweed was right to point to the evidence on the ground of the success of youth offending teams and of that model. The figures, given all the trends in crime, have been extraordinary and have gone in the other direction. Youth crime has come down significantly. Sometimes we are confronted by campaigns or arguments in our local papers which suggest that youth crime is out of control and that youngsters are running amok. That is absolutely not evidence-based. In England, the figures have gone in the other direction. That is a tribute to those who have worked on the ground in youth offending teams, in collaboration with the local police and local authorities; those who work in the youth service, who do a valuable job; and those who have been on the Youth Justice Board over the years.

I wish to pay one tribute that I may not be thanked for, although I hope that I will be. Steven Bradford, who used to work with me in the House of Commons, went on to work in the Youth Justice Board. He was a wise and useful researcher when he worked here. The Youth Justice Board has been well served by a group of people like him who have been loyal and committed to an important part of public policy.

The Youth Justice Board has the confidence of young people, the confidence of the agencies that work with young people—Lord Ramsbotham is another person who was clear in his support of the Youth Justice Board—and the confidence of all those who watch these matters and seek a better penal policy. I hope that today is not regarded as a defeat for the Government, but as the Government understanding that it is right for the Youth Justice Board to go on. It will, of course, always be subject to review and it is right that Ministers have to answer in this place for the success of justice policies, whether in relation to adults or young people. They have done in the past and they will do in the future.

[Mr Djanogly]

I will briefly address the points that have been made, because I know that we have to move on to the next debate. First, I point out the consensus that there is in support of our position. I thank right hon. and hon. Members for that.

The hon. Member for Hemsworth (Jon Trickett) made a point about nationalisation. I am not quite sure what he was getting at. He seemed to suggest that we should go back to business as usual. That is not our position. It is true that the YJB has done good work, as was pointed out by the hon. Member for Stoke-on-Trent South (Robert Flello) and my right hon. Friend the Member for Bermondsey and Old Southwark (Simon Hughes). However, it does need reform, as has been acknowledged by nearly all speakers.

We established a YJB transition programme at an early stage, to cover three strands of work: abolition, the moving of YJB corporate services to the Ministry of Justice, and the restructuring of YJB staff. The second and third of those strands will go ahead whether or not abolition takes place. It is difficult to disentangle the costs and attribute accurate costs to each, but that is the current position.

I am grateful to my right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith), who explained his concern and, I believe, that of his Committee, that the YJB’s approach is too top-down. I assure him that I will take that point back to the Under-Secretary of State, my hon. Friend the Member for Reigate (Mr Blunt), to help him in considering the options for reform before he brings forward his proposals in due course.

Question put and agreed to.

Schedule 5

Power to modify or transfer functions: bodies and offices

--- Later in debate ---

[Simon Hughes]

I strongly endorse the views just expressed by my right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith). I represent a coroner’s court in Southwark and we have had very good coroners—Monty Levine, who was very famous, and Andrew Harris, the current coroner, who is a friend of mine. However, like other colleagues, I have had experiences, involving constituents and others, of really bad coroner’s decisions. The Taylor family have been mentioned by the hon. Member for Stoke-on-Trent South (Robert Flello), and Michael, who died, was a constituent of mine. I am also talking about the inquests after the Marchioness sank in my constituency, the battle that the lovely late Eileen Dallaglio had to fight on behalf of her daughter and the battles that all the others like her had to fight. In the end, they had to go through a judicial review because they were terribly treated by the coroner who dealt with that case.

I welcome the fact that the Government have changed their mind and that the scheme introduced eventually by Labour—we had to push but it was eventually put on the statute book—can now be implemented in respect of creating a chief coroner. I urged, as others have, that that decision be taken. It is reasonable to proceed gradually along the road that has now been accepted by the Government. They are clear that they are going to report back on Army coroner’s inquests—the Armed Forces Bill does that. As Lord McNally said in the other place, this is not just about training; it is about monitoring, reporting and direction. That will give us a good base. There will also be an annual report to Parliament.

May I end by saying that I also have the privilege of being the Member of Parliament for the headquarters of the Royal British Legion, and I know that INQUEST has worked with the RBL very well. They are very honourable organisations, they have fought an honourable fight and they have won an honourable victory. The House owes its gratitude to them and to the Government for understanding the strength of feeling on this case.

[Mr Djanogly]

With the leave of the House, Mr Deputy Speaker, let me just repeat that the Government are committed to urgent and meaningful reform of the coroner system to ensure that inquests are timely, efficient and effective and that bereaved families are provided with the information and support they need throughout this emotionally difficult process. I was pleased to hear the hon. Member for Hemsworth (Jon Trickett) speaking in favour of reform. He needs to be aware that the position on the statutory basis for reform was the same between all the parties in the House, despite differences over the position on the chief coroner. I was very pleased to hear my right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith) recognising that and making the point strongly.

The hon. Member for Leicester South (Jonathan Ashworth) made the very good point that as important as coronial reform is for military inquests, this goes much further than military inquests. I acknowledge his concern that faith groups should be considered and I take that back with me.

Various hon. Members spoke about cost and the implications for judicial review. My hon. Friends the Members for Brigg and Goole (Andrew Percy) and for Dover (Charlie Elphicke) pointed out the need for closure for families and made their points very well. I understand the concerns about the cost of judicial review, but the chief coroner would not have had the final word on appeals. The option of judicially reviewing the chief coroner’s decision would still have been available, and bereaved families might have been encouraged to exhaust all mechanisms for challenging the coroner’s original findings. As a result, we would not have expected any reduction in the number of judicial reviews; indeed, there could have been an increase.

Various hon. Members, including the hon. Members for Hemsworth and for Stoke-on-Trent South (Robert Flello) asked why we are not—

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Simon Hughes and Jonathan Djanogly

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.

Public Bodies Bill [Lords]

Debate between Simon Hughes and Jonathan Djanogly

Tuesday 25th October 2011 Commons Chamber

[Mr Djanogly]

Yes, the board will be there to address policy issues such as those that my right hon. Friend mentioned. It is important to keep in mind that the position of chief coroner would have had power over none of those.

The ministerial board will meet quarterly, with the dates fixed and publicised well in advance so that meetings cannot be cancelled without good reason. The board will also have a strong independent feel to it, with coroners and other members sitting on it, together with representatives from the bereaved organisations committee.

The new committee will be independently chaired and I have given commitments that the chair cannot be appointed or removed without the approval of committee members. I would expect the chair to become a powerful advocate for the bereaved and be a champion of coroner reform. If the Government are not delivering on this package of reforms, I would expect the chair to hold us to account.

The bereaved organisations committee will have a particular remit to monitor the new charter for coroner services. The charter, which we intend to publish in early 2012 following the recent consultation exercise, will set out for the first time the standards of service that those coming into contact with the system can and should expect. This will play a vital role in driving up standards of service and helping people to understand their rights and responsibilities in relation to the coroner system.

[Simon Hughes]

I am listening carefully because I, like others, need some persuasion. Why would it not be possible, compatible with all the other arrangements that the Minister is setting out, for one coroner to be designated as the chief coroner, to have the same sort of responsibility for the coronial service as a presiding judge has in a circuit or over one of the divisions of the High Court, and to be the route of communication up and down at no or no significant additional cost?

[Mr Djanogly]

We would expect that to be the situation because we would expect the Lord Chief Justice, who would be responsible for the judicial aspects, to appoint someone, but that would be within current costings. I should also say, because this was raised by the hon. Gentleman’s right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith) in an earlier remark, that that cannot, under existing legislation, be an existing coroner. It can be only a High Court judge or a circuit judge. That would be at a cost of some £400,000 a year.

[Simon Hughes]

rose—

[Mr Djanogly]

If the right hon. Gentleman does not mind, I do not have much time and I must proceed.

I want to reassure hon. Members that the Government have listened to concerns expressed here and in the other place and by a large number of organisations. We have responded to these concerns and we have compromised, so we no longer intend to abolish the office of the chief coroner. Moving the office from schedule 1 to schedule 5 means that we will retain the chief coroner in statute. We have listened to the views of stakeholders on the constitution and remit of the new ministerial board and bereaved organisations committee and we have amended our proposals accordingly. We are considering a requirement for the new board to produce an annual report to Parliament, as my hon. Friend the Member for Brigg and Goole wished, strengthening further the accountability for and transparency of our reform proposals.

The Government’s decision not to proceed with full implementation was not taken lightly. My hon. Friend the Member for Brigg and Goole, I thought, made somewhat light of the costs of the chief coroner. The simple fact is that we cannot afford the establishment costs of £10.9 million and running costs of £6.6 million per year, especially when functions can be carried out from within existing resources.

Civil Recovery (England and Wales)

Debate between Simon Hughes and Jonathan Djanogly

Tuesday 22nd March 2011 Westminster Hall

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

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

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

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

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

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

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

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

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

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

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

[Simon Hughes]

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

[Mr Djanogly]

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

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

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

“loss and damage caused by your wrongful actions.”

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

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

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

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

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

[Simon Hughes]

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

[Mr Djanogly]

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

Oral Answers to Questions

Debate between Simon Hughes and Jonathan Djanogly

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?