Legal Aid, Sentencing and Punishment of Offenders Bill

Stephen Phillips Excerpts

Wednesday 29th June 2011 Commons Chamber

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

Thank you for calling me, Mr Deputy Speaker. During the early part of the speech preceding that by the hon. Member for Sunderland Central (Julie Elliott), I absented myself to go and have a sandwich, not having had any lunch, so I was not expecting you to call me quite as early in the debate.

This is obviously an important debate. I shall not necessarily speak for the full time that is available to me, but I want to focus on the sentencing aspects, specifically of the Green Paper. I do so from my perspective as one of the two sitting recorders in the House; I am not sure whether the other intends to speak. It seems to me important that I do so in circumstances where sentencing has got itself into a bit of a mess in this country. At least in England and Wales, it has become exceptionally complicated for the judiciary, and for that reason the proposals that the Government are putting forward in the Bill are important, not only from the perspective of “breaking the cycle,” which was the concern of the consultation document, but from the perspective of the judiciary and the operation of the criminal courts in effectively sentencing criminals and meting out due punishment for the offences of which they have been convicted by a jury.

The starting point with sentencing, of course, is the fact that in 2003 a Criminal Justice Bill was placed before the House and passed by the previous Government. It was amended on a number of occasions thereafter but was in fact a complete minefield. It was so complicated that in one case, the Court of Appeal commented that the relevant provisions were “labyrinthine”; in another they were described as a “legislative morass”. In a case called CPS v. South East Surrey Youth Court, the Court of Appeal said:

“So, yet again, the courts are faced with a sample of the deeply confusing provisions of the Criminal Justice Act 2003 and the satellite statutory instruments to which it is giving stuttering birth. The most inviting course for this Court to follow, would be for its members, having shaken their heads in despair, to hold up their hands and say: ‘the Holy Grail of rational interpretation is impossible to find’.”

I have to tell the House that the position in which the courts have found themselves in relation to sentencing during the last decade has been utterly intolerable. Judges have had to spend considerably more time than they ought to when they should be trying cases on preparing sentences, giving reasons above and beyond those which they were previously obliged to give, and in fact giving reasons that are probably immaterial for either the victims of crime or, indeed, those who are on the receiving end of the sentence to hear.

The simplification of that aspect of sentencing by the Bill, assuming that it becomes law, is therefore much to be welcomed. But I want it to go further, because the issue is important. I hope that the Lord Chancellor will listen to what I say in this regard and to what others, including the Sentencing Council—and, I think, the Bar Council and the Law Society—have said.

What we need, and what I hope we will see during this Parliament, is a consolidating statute that brings together sentencing for the entirety of the criminal law. Only then will the process become simpler and judges be able to give sentences that they are satisfied will not be taken to the Court of Appeal unless they have got things very wrong. Only then will people know precisely what sorts of sentences the courts are likely to hand down for the same sorts of offence. In due course, I imagine that that will ensure that considerable public support is given to the criminal justice system.

I want to say a few words about legal aid. My hon. Friend the Member for Maidstone and The Weald (Mrs Grant) spoke for many of us in expressing concerns about the removal of legal aid in relation to some of the areas proposed by the Ministry. I hope that those will be explored in great detail in Committee, particularly given the Lord Chancellor’s comments in his intervention on her. I want the Bill to come back with a report from the Committee that it is satisfied that the most vulnerable in our society will continue to have access to justice in precisely the same way as those who are able to buy justice. I say that from the perspective of one who, as a lawyer, considers access to justice extraordinarily important.

Like my hon. Friend, I am concerned about those particular provisions and how they might discriminate against some of the most vulnerable. That said, I have no doubt that the Bill will be amended in Committee and that the Government will listen; I hope that they will. I am not sure that the Bill has absolutely everything right, but it is a step in the right direction, particularly in respect of the burgeoning legal aid budget under which we in this country pay eight times as much as the French taxpayer to give access to justice to those entitled to legal aid. It is not suggested that there is some desert in France where nobody has access to justice, so it must be possible to reduce the costs of legal aid.

Indeed, the shadow Lord Chancellor said that last year, when he accepted that if Labour was in power, it too would have to make cuts to the legal aid budget. It is a matter of regret and shame that rather than coming to the House to say where he would be making those cuts, he made a series of—[Hon. Members: “No, he didn’t; he spelled it out.”] It is extraordinary to hear at least one Opposition Member saying that the shadow Lord Chancellor spelled it out. I listened to the entirety of his speech, and I did not hear anything spelled out at all. [Interruption.] The shadow Minister is on the Opposition Front Bench. Perhaps he will tell us now where Labour would make the cuts in the legal aid budget.

[Mr Andy Slaughter (Hammersmith) (Lab)]

There is a publication called Hansard, which the hon. and learned Gentleman might wish to read tomorrow. He will see what I will repeat now, although I feel that I am taking Back-Benchers’ time. The proposals in the March 2010 consultation, which were put forward by the then Labour Government and have not been taken forward by this Government, would more than compensate for the cuts being made in social welfare legal aid. If the hon. and learned Gentleman has a look at that consultation, he will see.

[Stephen Phillips]

I will go and have a look, and I am sure that Government Front Benchers will, too. We will be able to see during the winding-up speeches whether that is accepted as correct. For my part, I rather doubt that it will be.

[Mr Slaughter]

You don’t even know; not a clue.

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

Order.

[Stephen Phillips]

I am grateful, Mr Deputy Speaker. I did not really want to get into the legal aid aspects of the Bill. I have expressed my concerns and I am sure that Front Benchers are listening to them. I am concerned that the Opposition have at least not spelled out any detail as to where they would make the cuts that they accept have to be made to the legal aid budget.

--- Later in debate ---

[Mr Andy Slaughter (Hammersmith) (Lab)]

This has been a mature and authoritative debate, and a better debate than this Bill deserves. Some 29 right hon. and hon. Members have spoken from the Back Benches, and by my reckoning, only four gave the Government unqualified or nearly unqualified support: the hon. Members for Enfield, Southgate (Mr Burrowes) and for Gillingham and Rainham (Rehman Chishti), the hon. Member for Broxtowe (Anna Soubry)—no surprise there—and the hon. Member for Carshalton and Wallington (Tom Brake)—and increasingly no surprise there either.

Many Members spoke about cuts to legal aid and advice: my hon. Friend the Member for Houghton and Sunderland South (Bridget Phillipson); the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd); my hon. Friend the Member for Kingston upon Hull East (Karl Turner); my right hon. Friend the Member for Manchester, Gorton (Sir Gerald Kaufman); the hon. Member for Hastings and Rye (Amber Rudd); and my hon. Friends the Members for Birmingham, Erdington (Jack Dromey), for North West Durham (Pat Glass) and for Lewisham East (Heidi Alexander).

Many Members discussed their concerns about the Bill’s sentencing provisions, including the hon. Members for Shipley (Philip Davies), for Dewsbury (Simon Reevell) and for Mid Bedfordshire (Nadine Dorries) and my hon. Friend the Member for Darlington (Mrs Chapman). My right hon. Friend the Member for Blackburn (Mr Straw) made a forensic examination of the appalling provisions on remand. My right hon. Friend the Member for Cardiff South and Penarth (Alun Michael) discussed the cuts in youth offending that occurred under the Labour Government. We heard from the Chairman of the Select Committee on Justice that the inefficiency of Departments is partly responsible for legal aid costs. My hon. Friend the Member for Stretford and Urmston (Kate Green) told us about cuts to the probation service. My hon. Friend the Member for Wigan (Lisa Nandy) gave a fine speech about conditional fee agreements and their importance in multi-party actions, particularly against large corporations. The hon. Member for Truro and Falmouth (Sarah Newton) spoke movingly about victims, the hon. Member for Battersea (Jane Ellison) spoke about drug dependency and the hon. Member for East Hampshire (Damian Hinds) spoke about reoffending.

They were all excellent speeches, but I will mention three or four in particular. The hon. Member for Maidstone and The Weald (Mrs Grant) spoke about the need for litigation in some cases, despite what the Lord Chancellor says. My hon. Friend the Member for Makerfield (Yvonne Fovargue) spoke from experience about the effects that the cuts will have on citizens advice bureaux and advice services. The hon. and learned Member for Sleaford and North Hykeham (Stephen Phillips) spoke about the need for sentencing reform and—I hope that I am not putting words in his mouth—the reasons why this Bill will not deliver it. Notwithstanding his tone, the hon. Member for South Swindon (Mr Buckland) made a fine speech. Those and many other speeches came from knowledge and experience of the criminal and civil justice system over many years. Therefore, whatever side of the House they came from, I hope that the Government will heed them.

The Bill was supposed to launch a rehabilitation revolution. Then the spin doctors decided that it would be the Bill to punish offenders, but it is neither. It is a damaging and unfunded mess. It will not protect the public, reduce crime, support victims or reform offenders, but do the opposite. It will place victims at risk, cut access to justice for all but the wealthiest and take away even basic legal advice and representation from the most vulnerable in society.

Legal aid, no win, no fee litigation, remand pending trial, access to legal advice on arrest, and a system that diverts young people from offending are coherent parts of a coherent justice system that is envied around the world. The Government put that at risk through the Bill. A dizzying series of U-turns on sentencing and swingeing cuts to police, probation and youth offending teams have created a shambles that will not keep us safe in the short term or lower prison numbers in the long term. We have already had the first warning. Yesterday’s figures show that, under this Government, crime in London is increasing, not decreasing, for the first time in years.

Access to legal aid for the poorest and most vulnerable people will now be the exception, not the rule. Cutting legal aid for housing, education, welfare benefits, debt and family cases will be an economic as well as a social disaster. That is the view of 5,000 individuals and organisations, many with decades of experience, expressed in their responses to the Government’s consultation. Citizens Advice, the National Society for the Prevention of Cruelty to Children, Shelter, the Law Centres Federation, the Children’s Society and End Violence Against Women, to name but a few, explained why legal help and representation is good value for money. It is provided by lawyers who earn, on average, less than £25,000, citizens advice bureaux staff and volunteers, supplemented with pro bono advice. They explained why helping people at an early stage prevents homelessness, debt, family breakdown and crime, which end up costing society and the Treasury far more in the long run. They also explained—it should not be necessary to do so, but it is for this Government—the moral duty of a civilised society to support those most in need in the times of greatest stress.

The Government’s impact assessments confirm that women, children, disabled people and minority groups will suffer disproportionately from the cuts, to which the Under-Secretary of State for Justice, the hon. Member for Huntingdon (Mr Djanogly), who is responsible for legal aid, responds, “What do you expect? They’re the ones getting legal aid now.” The Under-Secretary sounds increasingly like Marie Antoinette. I will do what the hon. Member for Carshalton and Wallington asked and cite Lord Carlile. Last week, at a meeting of the all-party parliamentary group on legal aid, Lord Carlile put a compelling case to the Under-Secretary. He asked:

“What would the Minister tell the mother of a child with catastrophic injuries caused by clinical negligence who could no longer get legal aid?”

The response was:

“I don’t know. She’d better ask a lawyer.”

Despite the Lord Chancellor’s protestations, the Government have not listened to the women’s institute or Amnesty on domestic violence. They have not listened to people such as Jeannie Bloomfield, president of the women’s institute in Suffolk, who survived domestic violence years ago and has become an advocate for those who suffer it today. She wrote to me, fearful for the future. She said that, under the Government’s definition of domestic violence, she would not have received the legal aid that allowed her and her daughters to escape abuse. Under the plans, the Government will abandon many women like Jeannie.

Let us also consider the Government’s meddling with civil litigation.

[Stephen Phillips]

I am grateful to the hon. Gentleman for giving way and for his remarks about my speech. He will remember that I made the point that we had heard nothing from the Opposition about what they would do, given that the shadow Lord Chancellor again accepted in his speech that cuts had to be made to legal aid. The hon. Gentleman told me to read Hansard. I have done that and I am none the wiser. The information is not there. I wonder whether he would like to apologise to me and the House for inadvertently misleading it. What cuts would the Opposition make if they were in government?

[Mr Slaughter]

I am delighted to respond to that. I thought that the hon. and learned Gentleman had slightly more perception. He should look at the Green Paper that was published on 22 March 2010, entitled “Restructuring the Delivery of Criminal Defence Services”. That is the document to which my right hon. Friend the shadow Chancellor and I referred. How many more times do we have to explain it to the hon. and learned Gentleman? [Interruption.] The Lord Chancellor, who has only opened the Bill for the first time today, could perhaps go and look at the document himself.

Turning to the Government’s meddling with civil litigation, they justify the need to upend no win, no fee by reference to the compensation culture, but their own investigation, led by Lord Young of Graffham, found:

“The problem of the compensation culture prevalent in society today is one of perception rather than reality.”

The Government are legislating to fit false perceptions. A system that allows people on moderate incomes to access justice is being overturned to please the insurance industry and large corporations.

While the justification for reform may be imagined, the victims are all too real: children brain-damaged by medical negligence, workers injured by unsafe machinery or suffering industrial disease and, as my hon. Friend the Member for Wigan (Lisa Nandy) said, hundreds of thousands of overseas victims of multinational companies in cases like Trafigura.

Again, public money will be wasted. The Revenue has objected that insolvency cases in which it is a major creditor will not come to court in the future. The NHS and the Department for Work and Pensions will have to pick up the tab for individuals who cannot get compensation from those that harmed them. There is a need to control costs of civil cases; all parties agree on that. We were already doing that by controlling costs in road traffic claims, which are 75% of all personal injury claims. Costs could be further controlled by capping success fees and encouraging early settlement by both parties, but the Government prefer to put all the onus on claimants and force them to pay up to 25% of the damages that they have been justly awarded. A Supreme Court judge, Baroness Hale, warned this week that we risk returning to an England where justice is denied to all but the rich.

Finally, we come to sentencing. What a mess. What an extraordinary debacle—the product of a Government who just don’t get it on law and order. The coalition agreement promised a full review of sentencing. This is the opposite: a mixture of U-turns, delays, false promises and sleights of hand. Some things that were in the Bill are now out, like 50% discounts. Some, such as indeterminate sentences, have gone off for even more consultation. Some, such as the new knives offence, have been added with the ink hardly dry. Some may be added later, on burglary and squatting. Many of the tough measures announced by the Prime Minister are not in the Bill, but lots of the so-called “soft” measures are. Courts will be allowed to take no action for breach of a community order or impose a fine for breach of a suspended prison sentence. Magistrates’ power to impose sentences of up to 12 months will be repealed rather than implemented. Judges and magistrates will have their hands tied on remand. To limit the use of remand as the Government have done is fundamentally to misunderstand its purpose. Judges, magistrates and victims’ representatives all oppose that measure. It is an extraordinary step for any Government to take. It undermines law and order and the discretion of the judiciary, and it is solely here—as was the sentencing discount—to save money.

Under Labour Governments, crime fell 43% over 13 years. Youth offending fell 34% over the last Parliament alone. That was the product of investment in youth offending teams—which this year will see an average cut of 18% in their budgets—and of a long-term strategy to reduce criminal behaviour. The legacy that we left has been squandered by a Department that is in chaos—a Department of chaos. Cuts of 23% will be achieved by restricting access to justice for the vulnerable, taking money from injured parties, and meddling with sentencing to reduce prison places.

The faults are clear in the process of the Bill—rushed out on the same day as the responses to consultation, rushed to Second Reading in one week and now being rushed into Committee, but with new provisions promised for the autumn and a raft of key measures left for secondary legislation. It is a lazy Bill. It lacks integrity. The Secretary of State should feel embarrassed to present it to the House for Second Reading tonight. I urge all right hon. and hon. Members on all sides to vote against.