Transparency and Consistency of Sentencing

Stephen Phillips Excerpts

Thursday 2nd February 2012 Commons Chamber

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

Will the Secretary of State give way?

[Mr Clarke]

If my hon. and learned Friend will forgive me, I ought to get on or else I will be running a seminar for a large part of the afternoon, which would not satisfy all my hon. Friends.

The Sentencing Council adds stronger checks and balances to the tradition. It does so, first, through its 13-strong membership. The majority of its members are judges and magistrates, but it also includes the Director of Public Prosecutions, the former acting Metropolitan Police Commissioner and the former chief executive of Victim Support. The council has not yet produced guidelines for any category of offences that have not received the support of the Association of Chief Police Officers. These are not simply judge-made guidelines for the courts; a range of backgrounds are represented on the council.

Secondly, the guidelines are determined independently and transparently, but with extensive public consultation. The consultations for recent guidelines have happened over 12 weeks and have elicited thousands of responses. Thirdly, the guidelines enjoy a proper level of parliamentary scrutiny. The right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) and his colleagues on the Select Committee on Justice consider every draft guideline in detail, taking extensive written and oral evidence from a wide range of experts, including the chairman of the council. The Select Committee’s work ensures that there is meaningful democratic engagement in sentencing guidelines, without compromising the crucial principle of judicial independence.

Over the past 18 months, the council has published guidelines on a number of areas, on occasion attracting lurid headlines about excessive leniency and so-called soft judges. Let me address that directly. Our judges are far from overly lenient. The average length of prison sentences has increased by 20% over the past 10 years. I do not have proper figures but, having practised myself 30 years ago, I think that the increase has been even greater. We now send many more people to prison and impose longer sentences than was ever the norm until the past four years. As my hon. Friend the Member for Gillingham and Rainham (Rehman Chishti) pointed out, judges can still respond to things such as the riots in an appropriate way.

The guidelines are concerned centrally with ensuring that sentences properly reflect the seriousness of an offence. They are statutorily required to have regard to the impact of sentencing on victims and public confidence in the criminal justice system. Naturally, people seize on isolated parts of the guidelines and quote them out of context. However, when set against the cases that courts see every day, they are well-thought-out, carefully considered, serious pieces of work. For example, the guideline on burglary concludes that domestic burglary should habitually attract a custodial sentence, that the sentimental value of any goods taken must be considered alongside their financial value, and that the presence of children when a burglary is taking place will significantly aggravate its seriousness.

--- Later in debate ---

[Mr Slaughter]

I am glad the hon. Gentleman is listening, and I will direct my words more to him. He put that question twice to the Lord Chancellor, who made a very reasonable point: the purpose of sentencing guidelines is to identify a framework in which judicial discretion can progress. The question is therefore somewhat nonsensical. There are starting points for sentences, and there are recommended sentences; there are aggravating and mitigating factors, and there is a range of sentences that can be brought in. The Lord Chancellor talks about us commenting on sentences, but the hon. Gentleman seems to want the House to make sentences in individual cases, which is simply not possible.

[Stephen Phillips]

The point my hon. Friend the Member for Gainsborough (Mr Leigh) is driving at is Labour party policy on this issue. The Sentencing Council says domestic burglars should ordinarily go to jail. If the Labour party disagrees, why does it do so? Will the hon. Gentleman tell us?

[Mr Slaughter]

No, the Labour party does not disagree. As I said a moment ago, the Labour party set up the Sentencing Council and believes that thus far—we do not always necessarily agree with everything it does—it has done a good job. I do not see the point of the hon. Gentleman’s comment.

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

It is a real honour and a great pleasure to follow my hon. Friend the Member for Stroud (Neil Carmichael), who gave a powerful speech.

I hesitated to rise to speak on a subject on which I know so little—a fact of which I am particularly conscious in the light of the extraordinarily powerful remarks made by my hon. Friend the Member for Broxtowe (Anna Soubry); she talked about my hon. and learned Friend the Solicitor-General, who will wind up for the Government, and his appointment as a criminal recorder even though he had no knowledge of criminal law. The right hon. Member for Blackburn (Mr Straw) thought that my hon. and learned Friend did so well that he subsequently gave me the same honour.

When my right hon. and learned Friend the Lord Chancellor opened the debate for the Government, he referred to the critical importance of the independence of the judiciary, and precisely what it has delivered, in proper sentencing, proper trials in the criminal courts, and public confidence in the criminal justice system.

I pay tribute to the hon. Member for Hammersmith (Mr Slaughter), who opened the debate for the Opposition. He, too, recognised the quality of this country’s judiciary and what it has meant for the United Kingdom and our citizens in the delivery of proper justice. However, such judicial independence inevitably means that from time to time we in this House, as we are entitled to do, have to consider the sentences handed down, because our constituents rightly raise concerns about them, just as they raise many other concerns about the criminal justice system and other matters.

When the House discusses sentencing, certain tensions manifest themselves as a result of the doctrine of the separation of powers that is rightly in place in this, as in all democratic countries. There are the public expectations—or perceptions, at least—of the sentences that courts hand down, fuelled from time to time, as a number of Members have said, by journalists picking up on sentences that appear not to reflect the severity of the crimes of which a jury has found a defendant guilty. Those public expectations need to be recognised and met, and it is the function of this House and the Government in part to do that in setting the guidelines and framework within which the sentencing operation must take place.

However, in tension with that is the role of the judges. My right hon. and learned Friend the Lord Chancellor rightly recognised that it is a judge in a criminal court who hears the entirety of the evidence against a defendant when presiding over a trial, and such a judge is therefore best placed to determine the appropriate sentence to pass on someone convicted of a crime by a jury of his peers. My right hon. and learned Friend did say, however, that in all such cases the judge will oversee the entire case, but that is not always so. In many instances, a conviction is obtained by the Crown and the case is adjourned for sentencing; indeed, that is the usual practice. As a result, the sentencing judge often has to be re-educated about the precise circumstances in which the offence took place, in order that an appropriate sentence can be imposed. I encourage my right hon. and learned Friend—as I would encourage any Minister—to consider whether it is appropriate in most cases, if not all, to reserve sentencing to the judge who actually heard all the evidence. That would engender better respect for, and greater public confidence in, sentencing.

[Anna Soubry]

It is very rare that the judge who conducted the trial in a given case does then not make sure that they pass sentence, for precisely the reasons that my hon. and learned Friend has identified. However, my hon. and learned Friend makes the powerful point that, if at all possible, it would be much better if they retained sentence, even where pleas have been taken by judges, which is usually because they have read the papers the night before. Actually, it just makes things a lot simpler and easier all round, which must be to the benefit of justice and is much more cost-efficient.

[Stephen Phillips]

My hon. Friend makes an important point about cost-effectiveness. If a different judge has to sentence, the papers have to be read and more work is done in court, thereby taking up court time, while the case is explained by the advocates for the Crown before the plea in mitigation is taken. Then, there is generally a further adjournment—certainly when I sentence, and no doubt when my hon. Friend the Member for South Swindon (Mr Buckland) sentences—when the judge retires to consider precisely what he is going to do. All of that could be avoided.

In my experience as a recorder—a role I continue to carry out for a few weeks a year—sentencing lists often include trials where there has been a conviction, and the case is not always reserved to the judge who heard the evidence. In my view, it certainly should be, and I hope that my right hon. and learned Friend the Lord Chancellor and his Front-Bench colleagues will look at that issue.

The first tension for the House when it considers such matters, therefore, is that between public expectation or perception on the one hand and the necessity for judges who hear cases to deal with sentences and impose them appropriately on the other. There is another tension, however, between the discretion of the judiciary to impose the appropriate sentence and the expectations of the public that sentences will reflect the gravity of the crime. That, of course, is a tension that manifests itself most clearly in the discretion afforded to judges in passing the sentences they impose for which they are criticised, from time to time, both in this House and in the press.

Let me echo some of the comments of other Members about the wisdom of this House second-guessing the judiciary in sentencing exercises. If we are to stand behind the independence of the judiciary, as I know my right hon. and learned Friend and other Ministers do, and to insist that the judiciary are responsible for sentencing and not the court of public opinion—as we have seen from time to time—we must be robust and stand up and say here that which is right. That which is right is that there must always remain a certain element of discretion in the sentencing exercise, notwithstanding the frameworks that this House establishes, within which the exercise itself must take place, and the guidance laid down by the Sentencing Council.

The debate therefore takes place in the context of those tensions. Any Member who thought that the tensions were unreal and that the public did not have such perceptions or, indeed, criticise judges from time to time, will find when they return to their offices and read their e-mails an e-mail from our frequent correspondent—by which I mean that of all Members of the House—who goes by the name of UK Patriot. Many Members might delete his e-mails, but I read them. He has sent us all an e-mail today about the “Big Ben bomb gang” who are, he says, apparently out in six years. He says:

“The fact that this has happened is outrageous!”

He tells us that they appear to have been treated by the courts as though

“they were naughty boys owning up to scrumping apples.”

He goes on in the same vein.

There is a common public perception that the judiciary are not imposing proper sentences. It is therefore important, in the terms of the motion today, that we consider both consistency and transparency and that the Government push that agenda as they carry forward their work on sentencing and consider reform of the criminal justice system.

I openly acknowledge that the advent of the Sentencing Council, formerly the Sentencing Guidelines Council, has ensured greater consistency in sentencing. Like the hon. Member for Hammersmith, I am pleased that the Government have not decided that, because of the current financial crisis—we will not touch today on who is responsible for that, although the hon. Gentleman knows my views—this body should be abolished.

[Mr Buckland]

I think that my hon. and learned Friend is grappling with the same issue as regards the Sentencing Council as many of us have in recent months. Does he think that there is a case for the Court of Appeal doing the job of the council with an additional resource function to carry out the research that I referred to in my speech?

[Stephen Phillips]

This is a rare area in which I might disagree with my hon. Friend. Before the Sentencing Guidelines Council was established, as my hon. Friend will know and as the House heard in the Front-Bench speeches, the Court of Appeal used to issue guidance in the form of judgments in particular cases on how judges should proceed in sentencing. That was worth while, and, as my right hon. and learned Friend the Secretary of State made clear in his speech, the Court of Appeal retains that role. We saw it, as an intervention revealed earlier in the debate, in the riots last year. The Court of Appeal, essentially, was able to establish that as a matter of English law the context in which otherwise minor offences had taken place required much stiffer sentences to be imposed than would otherwise have been required either by previous guidance from the Court of Appeal or by guidance from the Sentencing Guidelines Council.

I can agree with my hon. Friend the Member for South Swindon to the extent that it does seem important that the Court of Appeal should retain that overarching ability to exercise its right to indicate to lower court judges what would be an appropriate sentence in particular circumstances. What the Court of Appeal never had and still does not have the opportunity to do is consult more widely, whereas the Sentencing Guidelines Council did have that opportunity, as does the Sentencing Council, which consults much more widely than the Court of Appeal ever could in a criminal case. In any case in which the Court of Appeal was handing down guidelines, it would receive submissions only from the parties to the case—and perhaps from the Attorney-General; I know not—but it would not be able to consult extensively with the public as the Sentencing Council can and does. If we are to encourage public confidence in the sentencing regime, it is very important that the public are consulted.

The only respect in which I might criticise the Sentencing Council—perhaps I am going slightly off the topic here—is in relation to its consultations on mandatory or discretionary guidelines on sentencing, which are not well publicised or well known. The representations it receives usually come from the Criminal Bar Association, other specialist associations and those who are particularly interested in the criminal justice system.

[The Solicitor-General]

Is there not another point to bear in mind? The Court of Appeal’s criminal division can look only at past cases and must have cases brought to its attention either singly or in groups in order to introduce thematic judgments on particular areas of criminal activity. The Sentencing Council, however, can proactively look at burglary, sexual assault and other areas of crime and give forward, rather than retrospective, guidance.

[Stephen Phillips]

My hon. and learned Friend makes an excellent point, as usual, which I had not thought of. No doubt that is why he is the Solicitor-General and I am two Benches behind him. He is absolutely right and I entirely agree with him.

I differ from my hon. Friend the Member for South Swindon only inasmuch as although I think the Court of Appeal should indeed retain the overarching ability to indicate to lower court judges the framework within which sentencing must take place, I also consider the existence of the Sentencing Council to be important for the reasons I have indicated. The council’s guidelines ensure a large measure of consistency between sentences that are handed down for similar, if not identical, crimes across the entirety of England and Wales. For that reason, although I understand that there is a cost implication with the maintenance of that body and that it can be described, as it always is, as a quango—indeed, some would say it is a quango we should dispense with—it is a body that should continue to exist if we are to encourage confidence in the sentencing regime in England and Wales.

I hesitate, particularly given the time, to say very much about the hon. Member for Hammersmith’s spirited defence from the Front Bench of the sentencing regime and the way in which sentencing was treated by the previous Government, but it is right to point out that a large number of criminal justice Acts were passed under the previous Administration. If he were to go, as I recommend he should—perhaps he already has—and talk to those who had to use that legislation and were bound by it in their sentencing exercises, he would find a universal, or near-universal, level of criticism, particularly regarding the Criminal Justice Act 2003. Many of the measures that the previous Government introduced, such as custody plus, which was the example given by my hon. Friend the Member for South Swindon, were never brought into being or had to be changed in subsequent Acts. The difficulty with the previous Government’s approach was that it sought to micro-manage the judiciary and to remove large elements of discretion so that the sentences that were passed did not necessarily reflect the offences of which the accused had been convicted or for which a guilty plea had been entered. Sentencing became, to a large extent, a tick-box exercise, which as the hon. Gentleman acknowledged, at least by implication, and as other Members acknowledged, is a most unsatisfactory way of proceeding. I listened to the spirited defence from the Opposition Front Bench, although I sought not to intervene, but I have to tell the hon. Gentleman that the approach the Government are taking in their reforms is the right one and I commend it to the House, as indeed I commend the motion.

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[The Solicitor-General]

I am sure my hon. Friend is right about that—he will know that from his experience both as an advocate and as a sentencer. It is utterly frustrating to have to analyse sentencing remarks that are based if not on conjecture, then on a total lack of knowledge of the facts. Advocates—those who appear for the Crown and the defendant—have a duty to ensure that the court is given the facts.

Advocates also have a duty to ensure that the court is advised about the relevant sentencing law and powers. One of the problems, or unintended consequences, of the raft—I was going to say the flood—of legislation passed by the Labour Government was that those Acts had something to do with amending the criminal justice system. The previous Government were not so silly as to call every one of those 64 Acts of Parliament a criminal justice Act, but I can assure the hon. Member for Hammersmith that 64 pieces of legislation passed between 1997 and 2010 affected the way the criminal justice system worked. It is completely—I will not use an unparliamentary expression—confusing to have to sit there and try to work out which piece of legislation deals with which type of offence and whether that legislation is in force, not yet in force or out of force.

Let me take the example of the Criminal Justice Act 2003, which is almost as thick as this great tome—the wonderful “Vacher’s Parliamentary Companion”—in my hand. Before this Government came into office, I asked a parliamentary question of the previous Government, and it was quite clear that they had simply mismanaged the conduct of that piece of legislation. About a third of it was repealed before it even came into force. Another third was not in force by the time the previous Government left office. Individual bits of the remaining third were brought into effect, and we are now having to repeal them—I am talking, for example, about the IPP legislation. Other bits were also brought into force by the previous Government, but they then realised they needed to repeal them.

What we require from the House, therefore, is an understanding that legislation needs to be thought about. We need, of course, to consult—this is what the Sentencing Council does—the people who have to apply it and the people it will affect. We need to work out what we will get if we pass what I call early-day motion legislation—expensive appeals; judges telling my right hon. and learned Friend the Lord Chancellor that statutory construction is hell; and a huge lack of public confidence and satisfaction in the justice system.

[Stephen Phillips]

My hon. and learned Friend may remember—I wonder whether he agrees with this—that, in March 2006, Lord Justice Rose, speaking of the 2003 Act, which most of the judiciary consider to be the worst criminal justice Act of all time, said:

“Time and again during the last 14 months, this Court has striven to give sensible practical effect to provisions of the Criminal Justice Act 2003, a considerable number of which are, at best, obscure and, at worst, impenetrable.”

Does my hon. and learned Friend agree that it was not the high point of Labour’s justice policy?

[The Solicitor-General]

My hon. and learned Friend is too kind. I will also say this: Lord Justice Rose is a very great man.

Oral Answers to Questions

Stephen Phillips Excerpts

Tuesday 31st January 2012 Commons Chamber

[Mr Djanogly]

No, he is not right. The figures have been repeated by the Law Society. The point is that legal help is not the same as legal aid. We certainly appreciate the strong need for legal help so that problems can be dealt with early, and that is why we are very supportive of not-for-profit organisations.

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

3. What steps he is taking to promote reform of the European Court of Human Rights.

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

The United Kingdom has made reform of the Court the top priority for our current chairmanship of the Council of Europe. Our aim is to secure agreement on a package of reform measures. We have been talking to many member states and to key figures in the Court and the Council of Europe, and we are reasonably confident that we can gain agreement.

[Stephen Phillips]

I am extremely grateful to my right hon. and learned Friend for that answer. He will have seen that the Prime Minister rightly condemned the Court’s decision effectively blocking the deportation of Abu Qatada despite the assurances that the United Kingdom obtained from Jordan. How long does he expect this reform process to take, and what steps are being taken now to ensure that the Court does not torpedo decisions of the UK courts in a way that undermines rather than supports human rights?

[Mr Clarke]

My hon. and learned Friend is at least as good a lawyer as I am—and practised more recently too—and will know that cases are often more complicated than they appear. We actually won the Abu Qatada case on the question of the assurances that we got about his possible torture. Irritatingly, we then lost it on a separate issue about whether prosecution evidence against him had been obtained by torture. Obviously, the Government, led by the Home Secretary and advised by the Attorney-General, are considering what to do next to take the case further. The reform does not turn on one case. However, one of the key reforms that we are urging is that the Strasbourg Court should not just be regarded as a court of appeal after the full process has been gone through in this country’s courts and issues of human rights have been properly considered. The issue that my hon. Friend raises is at the heart of the case that we are arguing with our colleagues in the Council of Europe.

EU Criminal Policy

Stephen Phillips Excerpts

Wednesday 25th January 2012 Commons Chamber

[Charlie Elphicke]

The European Union is doing this anyway. The central issue is whether we opt in. This is really a shadow debate for the whole issue about opting in. The letter sent by the Home Secretary to some colleagues on 21 December 2011 talks about the whole issue of the opt-ins. There are 133 directives, regulations and so on where opting in could take place.

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

My hon. Friend refers to the central issue. Is not the central issue that raised by my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox)? If we are going to criminalise people in this country, or indeed in any other member state in the EU, by law, then those who have passed those laws need to be accountable to the citizens to whom they apply, and that is not the case in relation to the European Commission or the other EU institutions, which are not accountable, in any real sense at all, to the people of this country.

[Charlie Elphicke]

I completely agree with my hon. and learned Friend, and that is my central point too. It is not for the European Union to start defining crimes; it is for individual nation states to do so.

There are areas where we should consider opting in. For example, I intervened on the Minister and talked about the issue of drugs. Let us look at the measures in the list provided by the Home Secretary. On one side, it talks about co-operation between customs authorities and business organisations on combating drug trafficking. Good. That is what we should have—cross-border co-operation. As the representative of Dover, I know that that is really important and makes a difference. Another 1996 justice and home affairs measure that was proposed, concerns

“the exchange of information on the chemical profiling of drugs to facilitate improved cooperation between Member States in combating illicit drug trafficking.”

Good. Yes, we should do that.

However, the dividing line for me is the 1996 JHA measure No. 750, which concerns

“the approximation of the laws and practices of the Member States of the European Union to combat drug addiction and to prevent and combat illegal drug trafficking.”

When one considers the approximation of laws and the issue of codification and requiring member states to treat everything the same way, one is rapidly moving into the area of a common criminal law—Eurojust, the European arrest warrant, the Euro-investigator, Europol and Euro-crimes. If we are to take that route, my point is simply that we should engage the country as a whole and have a proper, open discussion about what is going on, not try to spin it.

There are some cases where a common criminal law may be appropriate, particularly in the cross-border context; in others, we might conclude that it is not the right way to proceed. But to draw up a cynical list of everything that everyone would agree are the most heinous crimes known to mankind, in order to get the principle and then to extend it later, is something that we have seen with the European Union time and again. It is the fundamentally wrong thing to do, and it would be the wrong thing for us to do in terms of the opt-in or opt-out debate. I believe that when we have that opt-in/opt-out debate over the next two years, we should ensure that we include the country as a whole and have a proper, national discussion.

Common European Sales Law

Stephen Phillips Excerpts

Wednesday 7th December 2011 Commons Chamber

[The Parliamentary Under-Secretary of State for Justice (Mr Crispin Blunt)]

I beg to move,

That this House considers that the Draft Regulation of the European Parliament and of the Council to introduce a Common European Sales Law (European Union Document No. 15429/11 and Addenda 1 and 2) does not comply with the principle of subsidiarity, for the reasons set out in Chapter 5 of the Forty-Seventh Report of the European Scrutiny Committee (HC 428-xlii); and, in accordance with Article 6 of Protocol (No. 2) of the Treaty on the Functioning of the European Union on the application of principles of subsidiarity and proportionality, instructs the Clerk of the House to forward this reasoned opinion to the Presidents of the European Institutions.

I will start by making some general contextual comments. I am pleased that this debate has been called because the proposed common European sales law is important both politically and legally. I know that it is of interest to Parliament and the public.

This debate makes use of article 6 of protocol 2 to the Lisbon treaty, the subsidiarity protocol, which enables national Parliaments to put forward a reasoned opinion challenging a proposal by the European Commission on the grounds that they do not consider that it complies with the principle of subsidiarity. I believe that this is the fourth time that this House has considered such a motion. The first three related to financial services and this is the first in the area of justice. I note with interest that a debate on the same proposal was held in the German Bundestag last week, where it was accepted unanimously that the proposal for the common European sales law was contrary to the principle of subsidiarity. I am sure that fellow member states and their Parliaments will listen with interest to what is discussed and concluded here today.

I should make it clear at the outset that the drafting of a reasoned opinion is a matter for Parliament, not for the Government. The European Union treaties have given the role of the supervision of subsidiarity to national Parliaments. It is therefore Parliament’s task to decide whether to present such an opinion to the European Union institutions. I should also say that the Government are considering a report by the Procedure Committee relating to the handling of reasoned opinions such as this. I hope that the House will understand if I do not speculate on what the outcome of those considerations will be.

Subsidiarity is a word that we hear much about when dealing with European legislative proposals. It may assist the House if I say a few words about it. The concept is defined in article 5 of the treaty on European Union:

“in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.”

It follows that subsidiarity is a specific legal and political concept. In simple terms, it means that decisions should be taken as closely as possible to the citizens whom they affect, and that the European Union should act only when outcomes can be better achieved at European Union level. Subsidiarity is different from the principle of proportionality, under which any action taken by the European Union should not exceed what is necessary to achieve the stated objectives.

Successive Governments have supported the principle of subsidiarity. I am told that the United Kingdom pushed for it to be strengthened in the Lisbon treaty. The treaty includes a requirement that all legislative proposals should include a statement making it possible to appraise their compliance with the principles of subsidiarity and proportionality. It also introduced the power for national Parliaments to transmit reasoned opinions relating to subsidiarity, such as that which we are debating today. The European institutions—the Commission, the Council and the European Parliament—are obliged to take account of all such opinions.

Moreover, if one third of the national parliamentary chambers throughout the European Union submit such opinions, the Commission must review its proposal. I do not think that any proposal has yet been objected to by a third of the national parliamentary chambers. If that did happen, it would represent a powerful political signal, which the Commission would do well to heed. It cannot be denied that one third is a high threshold. To achieve it will require a great deal of co-ordination between national Parliaments. As I have said, this is a matter for Parliament and not for the Government. I can only encourage the European Scrutiny Committee and other interested parties in Parliament, both in this House and the other place, to make the best use of their contacts with other national Parliaments in this regard.

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

Will the Minister give way?

[Mr Blunt]

I would like to give my hon. and learned Friend the chance to make his substantive comments in the course of the debate and I will then reply. However, if it is a question on the point that I was making, I will of course give way.

[Stephen Phillips]

I am extremely grateful to the Minister for giving way. Will he indicate for the House how many Parliaments, apart from the Westminster Parliament, have asked for a reasoned opinion to date?

[Mr Blunt]

My hon. and learned Friend was unhappily absent at the beginning of my remarks, when I reported to the House that the Bundestag gave a unanimous opinion last week that this proposal was contrary to the principle of subsidiarity. I am not aware of any other parliamentary chambers that have undertaken to do so. To illustrate the difficulty of achieving the level of one third of chambers taking a view and reporting a reasoned opinion, the Bundesrat has not taken a view. Therefore, of the two German Chambers, only one, the Bundestag, has taken a view. Only half of the German Chambers have taken a view, whereas the hurdle that has to be achieved is a third of national parliamentary chambers. My hon. and learned Friend will understand that it is quite a hurdle in those circumstances. Of course, it is a matter for the other place whether it takes a view on this matter.

You will be aware, Mr Speaker, from reading the Government’s explanatory memorandum on this proposal that, provided that it is demonstrated that the difference in national contract laws is a genuine obstacle to cross-border trade, the Government’s view is that the subsidiarity test is likely to be met. The Government do, however, share the European Scrutiny Committee’s concerns about the necessity for this proposal in the first place. We question whether an optional common European sales law or one with such a wide scope is the right way to address this issue. These matters will form part of the consultation that the Government plan to hold. I shall therefore listen to Members’ views with great interest.

I will now turn to the substance of the proposed regulation. This proposal has a long history. The European Commission and the European Council have been engaged in the general issue of contract law for a decade or so. I believe that the European Parliament’s involvement stretches back even further. The European Union contract law project lay dormant for some time, but gained momentum again in July 2010 with the publication of a Commission green paper on options for progress towards an EU contract law for business and consumers.

The green paper set out various options for reform, including to continue with the development of a legislators’ toolbox. That would provide a common frame of reference, drawing together the most common concepts and terms used in contract law, which would be the commonly agreed basis to be used by the authors of future European Union laws relating to contract law. The aim of that would be to reduce or remove the current differences and the difficulties that they cause. The green paper invited views on seven options, from a specific directive or a regulation providing an optional European Union-level regime, right through to a mandatory black letter European code of contract law. The conclusion of the Commission green paper’s analysis, and of views received on a feasibility study published by the expert group in May, have culminated in the proposed regulation for a common European sales law.

More recently, the Commission’s proposal was published on 11 October. It contains a set of uniform contract law rules that parties to a contract could choose to govern their contract. The use of such rules would be optional, but that optional law would form part of the national law of each member state and could be used as an alternative to what is currently offered under national law. That alternative regime would be available for cross-border business-to-consumer and business-to-business contracts when at least one party was a small or medium-sized enterprise.

Although the Government intend to consult widely on the detailed policy implications of the proposed regulation, our initial assessment indicates that it would be neither simple nor easy to use. Although it is designed to be free-standing, it remains unclear what relationship it would have with other Union laws such as the Rome I regulation. It also seems that a range of matters that could affect the legal relationship between the parties have not been addressed in the proposed regulation. That has the potential to undermine the aim of removing the need for businesses to incur transaction costs on legal advice on another country’s law.

The scope of the proposal could prove difficult, with its wide application to business-to-business and business-to-consumer contracts whether they are concluded at a distance, away from business premises or on the premises. The Government are not sure whether such an all- encompassing regulation is the correct way to address the different problems that traders and consumers may experience. In addition, current arrangements already provide that any state’s law can be chosen as the law of contract. In that sense, a trader could already choose which law to apply to his or her contract, and in most cases that is likely to be their own. The anticipated net value of the regulation remains to be tested and quantified against the costs of introducing a new law.

The Government are also concerned about the treaty base used in bringing the regulation forward. The proposed legal basis is article 114 of the treaty on the functioning of the European Union. That basis is normally used for harmonising laws in order to further the establishment of the internal market. The Government have doubts about the appropriateness of that, particularly as most other optional instruments that operate in parallel to domestic law are brought forward on other legal bases.

The Government have been working closely with interested parties through the process leading to the proposed regulation. Indications so far are that opinion is divided. Some interested parties see an optional contract law for cross-border sales as a potentially useful tool for aiding the internal market, but others see such a new law as risky, over-complex and unnecessary.

The Government intend shortly to consult United Kingdom interests on the proposed regulation. The views received will be used to develop and inform the Government’s position on the likely impacts of such a regulation, as well as on any benefits or disadvantages that are likely to occur for the various sectors that it could affect. We will not form a concluded view on our approach to the proposal until after the consultation has been concluded and there has been proper time to analyse the results. For today, I am of course grateful for the chance offered by the debate to hear the specific concerns that Members may have.

--- Later in debate ---

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

I rise to make a short contribution to the debate, and to make some of the points that were made to my hon. Friend the Member for Stone (Mr Cash) and others on the European Scrutiny Committee by the City remembrancer of the City of London, who has provided us with a briefing that contains a number of salient observations on the measure, which are important for the House to consider in deciding whether the motion should carry.

The first and most worrying of those observations—I attribute these views not at all to the City of London or the City remembrancer; these are my words—is that there is considerable concern that the measure is the thin end of a uniform contract wedge that is being deployed by the Commission in an attempt to undermine the universality of English contract law, which is used in transactions not only between businesses within the EU but across the world, where, alongside New York law, it is the predominant way in which international trade is regulated. I should like to hear more from the Minister on that.

Were there any doubt that the Commission has in mind that the proposed regulation is the thin end of a uniform contractual wedge, it would be removed by article 15, which makes clear that the Commission would be obliged to review the measure after five years,

“taking account of…the need to extend the scope in relation to business-to-business contracts, market and technological developments in respect of digital content and future developments of the Union acquis.”

Given that the Justice Commissioner has already indicated that he plans to announce consideration of a European common insurance law next year, there ought to be grave concern on both sides of the House that the measure is the first step in an attempt to impose upon this country a uniform European contract law. I suspect that many hon. Members would be extremely concerned about that.

The second concern to which it is worth drawing the House’s attention is the speed with which the draft regulation was drawn up. It was drawn up in a very short period of some 11 months by a so-called expert group which, I must tell the House, consisted predominantly of academics. It consisted for the most part not of those who actually practise law or indeed of those who would have the option to use this contract law were it to be introduced. In those circumstances, if the proposals were to go ahead, there would, in my respectful view, need to be a much greater consideration of what practitioners have to say on the subject of contract law and the draft regulation, and a much greater consideration of what business wants.

Those are two initial concerns about the regulation, but there are others. Essentially, the regulation would establish an optional contract law that would lie alongside national contract law, but that could cause conflict between almost identical contractual situations as they apply between those who are negotiating within the EU, and possibly even between those within member states. The position would essentially be that someone who selects the option of the EU contract law might gain greater rights than someone who does not do so—the latter, through the application of conflict of laws rules, would have the contract containing his rights and obligations subjected to some wholly different system of law. That must be a grave concern, because it could result—naturally—in different decisions being taken by national courts in relation to precisely the same facts, depending on which law applies. That might be acceptable when the laws that apply are of different nations, which would be selected pursuant to established conflict of laws rules, but it cannot, in my judgment, be acceptable when the laws in question are on the one hand common law, as in this country, and on the other hand an optional community contract law, both of which none the less hold sway in the same jurisdiction. That is therefore a very great reason why the measure is not in the interests of the City of London, or of this or any other European country.

Establishing a new contract law—even one that has been written by a group of academics—is, moreover, destined to lead to much greater litigation, uncertainty, increased costs, and increased transactional costs, because there will be no established body of law and no binding juridical opinion by reference to which those who are obliged to be consulted on difficult legal problems arising out of contracts can form settled views as to the correct answer in respect of their clients’ rights, entitlements and obligations.

Growing that body of law—it could grow only in this country, where we have a system of precedents—could take several decades. If small and medium-sized enterprises, and perhaps even larger businesses, adopted the optional contract law, their rights and obligations would necessarily be unclear during that time. That is not only most unsatisfactory from the perspective of those who seek to do business in international markets, but wholly unsatisfactory from the perspective of the development of the law.

[Mr Cash]

On the question of legal base, does my hon. and learned Friend recall that originally the Secretary of State for Justice took the view that he had doubts over whether article 114 was appropriate? There was then the question of whether article 352 might not be more appropriate. Unfortunately, because of the enactment of the European Union Act 2011, primary legislation had to be passed before the Government could give their consent to the adoption of the proposal on article 352. Therefore, there is a serious question over whether there has been complete compliance not only with the principle of subsidiarity but with the legal base.

[Mr Speaker]

The principle of subsidiarity is important, but there is also a very important principle of interventions, and that is brevity.

[Stephen Phillips]

I am extremely grateful to my hon. Friend for his intervention, brief or not. I will not fall into his elephant trap of discussing what precisely is necessary under the European Union Act 2011, but I will say that I agree with him. It is right that there is no justifiable legal base under article 114, not least because the European Court of Justice has itself made it clear that that article cannot be used for the harmonisation of laws within the European Union.

I was on the point of saying that there is a real problem with running in parallel two systems of contract law, particularly where that might lead to different results and where one has not been the subject of extensive judicial consideration. In such a case, it is inevitable that there would be differences of opinion among those who are called on to provide advice on the rights, obligations and entitlements of parties to contracts, and they are the ones who are subject to this new system of optional contract law were it to be in place. For those reasons, it must be entirely right that we should not seek to accommodate the Commission’s proposals to have in place two parallel systems of contract law in this country. That would be detrimental to the interests of the United Kingdom and consumers and businesses all over the European Union. For those reasons, I urge the Minister to make those points as strongly as he can to his colleagues in Europe, and I make those points, albeit through you, Mr Deputy Speaker, to the other national Parliaments who really need to require the Commission to justify its proposals.

Legal Aid, Sentencing and Punishment of Offenders Bill

Stephen Phillips Excerpts

Tuesday 1st November 2011 Commons Chamber

[Mr Straw]

That might be so—it is good to know that my constituency is representative of middle England.

Similarly unacceptable practices take place in motor repairs. In bottom-line referrals, accident management companies require repairers to give them a discount of up to 25%. The repairers then increase their prices to take account of that bottom-line referral fee. Royal and Sun Alliance outrageously practised a type of subrogation whereby it set up an internal subsidiary, which contracted repairers for, say, £1,000 for a repair, and then added 25%, which was charged to the main company—RSA Ltd—which then charged the at-fault insurer. Product mandating is another unacceptable practice. Deals are struck with, for example, paint manufacturers, and repair companies are required to use specific brands of paint. That has led to a 67% increase in the cost of paint since 2003.

We must act on all those matters, and I hope the Minister will say briefly what will happen on the RTA portal if he gets the chance. I know that he has indicated that he hopes to take action, but is he sympathetic to what I suggest in respect of whiplash and many other matters?

I come now to the issue between the Minister and me. I welcome new clause 18, and I am grateful to the Secretary of State and the Minister for introducing it. However, for my hon. Friend the Member for North Durham (Mr Jones), the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) and I, there are two issues. First, in my judgment, the breadth of the ban must go wider than personal injury claims. It could be excluded in one or two discrete areas, but in the generality of cases, as the right hon. Gentleman said—he has a great deal of experience—abuse also happens elsewhere.

Secondly, on the question of whether there should be a criminal offence, I noted what the hon. Member for Cardiff North (Jonathan Evans) and my hon. Friend the Member for North Durham said about what happened before 2004, and in a sense, they have made my point. My understanding is that the prohibition on solicitors charging referral fees was in the solicitors conduct rules and that it was not a criminal offence. Those rules changed; it was not that a criminal offence was abolished. I am glad that the Secretary of State proposes to make greater use of the regulatory authorities, and I would not for a moment suggest that that is unnecessary, because it is very necessary. However—this is where, with respect, I found his argument least convincing—there are many other areas of regulation, including, for example, of financial institutions, when conduct that is in clear breach of regulations leads to both a fine or penalty by civil regulatory authorities and a criminal offence. That is particularly true given the vicarious liability requirements imposed by section 7 and others of the Bribery Act 2011.

I applaud what the Secretary of State is doing as far as it goes, but for the life of me, I simply do not understand why, given that he recognises the inadequacy of the 2004 regulatory system and many other things, he does not back that with the criminal law.

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

I refer the House to my entry in the Register of Members’ Financial Interests.

Given the right hon. Gentleman’s wide experience, can he detect any pattern in relation to those matters where an action by a regulated body constitutes something that could lead both to regulatory action by the regulator and to criminal sanction under the statutes? If so, it would be interesting to know which side of the line the new clause and the matters to which it refers lie.

[Mr Straw]

The hon. and learned Gentlemen may have noticed that I need to research that point, but I have in the back of my mind a number of cases where breaches of regulations are dealt with both by the regulator and in criminal proceedings. He is experienced in the law and will know that plenty of criminal offences are also civil wrongs of some kind in common law or by regulations.

Legal Aid, Sentencing and Punishment of Offenders Bill

Stephen Phillips Excerpts

Monday 31st October 2011 Commons Chamber

The Government seem content to find fault with solicitors in this matter. Indeed, they seem almost to assume that lawyers tend to drag things out in proceedings. I can assure this House that it is quite the reverse. In my experience of litigating against health authorities, they are among the most unco-operative bodies one will ever encounter. Often, they withdraw or even hide evidence until the very last minute, and deliberately obfuscate. Individuals finding themselves litigating in person against these authorities are in a dead-loss situation.

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

The hon. Gentleman is making a very serious charge against public authorities, and indeed those who represent them, by suggesting that they obfuscate and withhold evidence in circumstances where their disclosure obligations are very clear under the civil procedure rules. Can he put some flesh on the bones and substantiate his allegation?

[Mr Llwyd]

I do not have any cases with me today, but I can assure the hon. Gentleman that I would not make the allegation without some evidence.

[Mr Llwyd]

That is the point. Unless and until there is full disclosure at the very earliest point, these cases will be drawn out until the evidence is available. Everybody knows that any case against a health authority has to rely on expert evidence, and it is impossible to have that without experts’ reports from the health authority. This is the conundrum facing people who are often two, three or four years down the road and still no nearer to a conclusion. That is exactly the position that many people report, and that is why lots of these cases are, as we hear, high-value cases.

[Stephen Phillips]

The hon. Gentleman will obviously have absolutely no doubt about the bona fides of the charges that he is effectively laying at the doors of the national health service and others, but does he ascribe the position to problems with management or to seeking to protect individual medical practitioners? The two seem to me to be very different.

[Mr Llwyd]

I would speculate and say that it is probably to do with management rather than protecting individual practitioners, but I cannot give any assurances on that. What I am saying here today is common knowledge out there; it is not a new allegation that I have dreamed up just to try to grab a headline at this late stage. [Interruption.] To answer the hon. Gentleman’s question honestly, I do not know, but I would guess that it is a management issue, because whenever there is a claim, it is reported to management immediately—on the very first day, I expect.

--- Later in debate ---

[Tom Brake]

My colleagues and I will get used to interventions of that nature, but the hon. Gentleman will not be surprised to hear that I am expecting some reassurance from the Minister that the Government do not have a closed mind. Even if we cannot make progress in the House, there could be opportunities in another place to do so. I am just putting down a marker for the Government that they should entertain that idea.

[Stephen Phillips]

As I understand it, amendment 132 relates to medical negligence within the scope of the European convention on human rights, which is excluded from legal aid in the Bill. If it is a probing amendment, will the right hon. Gentleman indicate the sort of cases he has in mind? I cannot envisage a case involving convention rights that would involve medical negligence.

[Tom Brake]

I thank the hon. and learned Gentleman for his intervention, even if he has identified a flaw in my proposal. The funding available for legal aid in cases of medical negligence deals with the serious cases with which Members will be very familiar, such as obstetric accidents. However, I am seeking clarification from the Minister, because although some of the funding for dealing with such cases will still be available through exceptional funding, some of it will no longer be available. I am seeking confirmation from the Government that all very serious cases will be addressed through the exceptional funding route. I hope it will be possible for the Government to identify additional funding to address the funding gap for any remaining cases, as I have done in amendment 144.

--- Later in debate ---

I am well aware that many right hon. and hon. Friends are desperate to speak to the group of amendments on social welfare, so I will finish my remarks there.

[Stephen Phillips]

May I say what an enormous pleasure it is to follow the hon. Member for Kingston upon Hull East (Karl Turner) and to commend at least some of his comments to my colleagues, particularly to those seeking the promotion of my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox)? I make no comment about any other Queen’s counsel on this side of the House.

There is undoubtedly a fundamental problem with civil legal aid. The simple fact is that to bring cases for which legal aid is available to trial in this country costs more not only than it does in civil law systems that do not recognise the extensive discovery that we have here in England and Wales and in other jurisdictions of the United Kingdom, but more than it costs in other common law jurisdictions such as New Zealand and Australia and in other jurisdictions that have essentially inherited our legal system. That fundamental problem is one with which, because of the deficit we were left by the last Government, this Government have had to grapple. [Interruption.] I can see the hon. Member for Hammersmith (Mr Slaughter) mouthing something from a sedentary position. If he wants to intervene, I am happy to allow him.

[Mr Slaughter]

I felt that the hon. Gentleman was about to get into a long peroration that would be more suitable for a Second Reading debate. I was simply reminding him that the amendments we are debating are about clinical negligence.

[Stephen Phillips]

I am grateful, but I see Mr Deputy Speaker in the Chair this evening. I am sure that if I am out of order at any stage, he will upbraid me. I do not need any lessons from the hon. Member for Hammersmith about how to speak in this Chamber or indeed about the remarks I intend to make tonight. [Interruption.] The simple fact of the matter is—[Interruption.]

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

Order. I think Mr Slaughter needs to calm down.

--- Later in debate ---

[Stephen Phillips]

I am extremely grateful, Mr Deputy Speaker. The simple fact is that these amendments, which seek to reverse the Government’s position that clinical negligence should be removed from the scope of the exceptions in the Bill, have to be considered against the background of the current position as it prevails in relation to civil legal aid. If that point has escaped the hon. Member for Hammersmith, it is not one that has escaped me or, indeed, my hon. Friends. I remind him that it was the manifesto commitment of his party that Labour would have reformed the civil legal aid system if they had formed the next Government.

In those circumstances, we come to the particular context of these amendments and of whether it is appropriate to remove clinical negligence from the scope of legal aid and leave the gap to be picked up in two ways. I am sure that the Minister will make it clear in his concluding remarks how that gap will be picked up. At this juncture, I should say incidentally to the hon. Member for Kingston upon Hull East that I have made no representations at all to the Minister about this Bill, although I was grateful for the hon. Gentleman’s earlier observations. The Government believe that that gap will be filled in two ways. First, the exceptional funding that the Bill makes available will pick up many clinical negligence cases that would otherwise have attracted legal aid funding from the Legal Aid Board. That may satisfy some, and it may deal with part of the problem.

--- Later in debate ---

[Mr Llwyd]

The hon. and learned Gentleman makes very good points. I tried to say that there should be a twin-track approach. In my perception, there is a problem with regard to the administration of health authorities and full early disclosure, so he is absolutely right. However, I still say that there should be more than just a basic safety net in awful cases such as when somebody is a paraplegic upon birth.

[Stephen Phillips]

I am grateful to the right hon. Gentleman for his observations, but he may be eliding two matters. The first is the unavailability of legal aid for what we might call cases in the middle—neither the severe cases that will be picked up by the exceptional funding arrangements or CFAs, nor the cases in which solicitors and counsel will be prepared to take the case on and earn their money well down the line. I agree that that middle group of cases is the difficult group, but as well as the CFA arrangements mentioned by the hon. Member for Kingston upon Hull East, one must consider whether those cases are likely to be picked up and run with by the legal profession. My judgment is that they are.

Never having done a clinical negligence case, and having no expertise in those cases at all, I base that judgment partly on my experience of the position as it prevails in many jurisdictions in the United States, where of course no state or federal funding at all is available for civil cases. A legal profession has grown up in which attorneys have had to educate themselves about which cases they should be prepared to take. They consider which cases are worth taking forward, but also those that they believe have merit from a perspective of social justice and ensuring that there is access to justice for all.

Having worked with many attorneys across many jurisdictions in the United States, I can tell the right hon. Member for Dwyfor Meirionnydd that there are attorneys who take cases that they suspect will lead either to a settlement, out of which they will get very little or nothing, or to an eventual loss if they have to take the matter to court. They consider that part of their professional obligation.

I hope that both limbs of the legal profession in this country will come to appreciate that we owe an obligation not merely to try to make money out of the practice of law, but to do what we all did when we first came to the law—have a burning sense of justice on behalf of our clients, so that they are properly represented whether or not we believe them, whether or not we think their case is meritorious and certainly whether or not we think we will make money out of it. I hope that that deals to a large extent with the right hon. Gentleman’s points. I am, of course, as concerned as he is that there may be a group of cases in the middle that will somehow fall through the net. If that is the position, we may have to revisit the issue later.

[Sir Alan Beith]

rose—

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

I call Sir Alan Beith.

[Stephen Phillips]

With the leave of the House, I was about to make my final few remarks.

[Sir Alan Beith]

I apologise to my hon. and learned Friend; I thought he had concluded his speech.

[Stephen Phillips]

The amendment proposed by my right hon. Friend the Member for Carshalton and Wallington (Tom Brake) addresses schedule 1 and the non-exclusion of clinical negligence cases in the context of convention rights. As I have informed the House more often than, perhaps, I ought, I have never conducted a clinical negligence case. [Interruption.] Mr Deputy Speaker tells me that the House has taken that point on board, and I am pleased it has taken at least one of my points on board.

Notwithstanding the Government’s insistence on the exclusion of clinical negligence in this context, I find it difficult to envisage any circumstances in which a case could be brought under the convention that engages this part of the law. I am not sure that my right hon. Friend addressed that point adequately—or, indeed, at all—when I intervened on him earlier, but he has said that this is a probing amendment that may have to be debated further in another place. At present however, I remain perplexed by the amendment.

[Tom Brake]

My hon. and learned Friend highlighted a flaw in the drafting of the amendment, but in his contribution this evening he has identified the group of cases that gives me some concern: the group of middle cases, as he described them. He has, I think, suggested both that he also has concerns in this regard and that the Government may need to address the matter in future.

[Stephen Phillips]

It may be an area the Government have to come back to. The amendment would change schedule 1 and, specifically, the cases for which civil aid is, and is not, available in the context of breaches of convention rights by a public authority. It addresses the convention rights contained in the Human Rights Act 1998, a piece of legislation of which the House will know I am not greatly enamoured. Clinical negligence is itself defined in paragraph 20(6) of the schedule, and the amendment suggests that civil legal aid should continue to be available in cases where a breach of convention rights is asserted in the context of clinical negligence. Although I think the Human Rights Act is bad law, I find it difficult to envisage circumstances in which the convention might be used and legal aid ought, in any event, to be available.

I therefore do not support the amendments, as they are unnecessary and misconceived, and the Government will have my support tonight.

[Sir Alan Beith]

I apologise to my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips) for having misinterpreted—and for perhaps leading you, Mr Deputy Speaker, to misinterpret —his meaningful pause, which sometimes occurs when senior counsel are delivering their well-chosen words, and which led me to think he had finished his speech.

I commend the members of my Committee who have brought this issue to the attention of the House: the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd) and the hon. Member for Kingston upon Hull East (Karl Turner). The current system reveals many shortcomings in dealing with matters of this kind. I can recall a case, which went on for many years, of a young man who was brain damaged for life because he was not provided with proper recovery following an operation after a road accident. It was only when I managed to drag some information out of a health authority that the third firm of solicitors involved sued the second firm of solicitors for its professional negligence in allowing the matter to run out of time when a claim against the health authority would have been successful had it been undertaken with that information in the first place. These very difficult matters frequently involve the kind of cases that most of us are concerned about tonight: lifetime injury cases with very high care costs for those involved. My understanding is that when it comes to recovering costs from people who have been awarded damages in these circumstances, they will be recovered not from their damages for care, but from the other aspect of damages; a provision that the court has made for someone’s lifelong welfare ought not to be affected.

--- Later in debate ---

[Guy Opperman (Hexham) (Con)]

I think I am unique in this House in that I have had a great deal of experience in clinical negligence and have practised for the best part of 12 years almost exclusively on behalf of claimants. I have conducted well over 100 clinical negligence cases, against a multitude of general practitioners, hospital trusts and the like. They were primarily insurance-backed or conditional fee arrangement cases, although some of them were occasionally legal aid cases. I believe that, in the great tradition of the Government, I have still been unpaid for some of that work, notwithstanding the fact that I have not completed any work as a lawyer since I was elected in May 2010. So I should declare an interest in that I believe I have some legal aid fees outstanding, not that I am pressuring the Minister in any way to beat a path to my clerks and my chambers to pay the bill.

I should also declare an interest as a former lecturer and a member of Action against Medical Accidents—AvMA. I have written extensively on this area and am a member of the Association of Personal Injury Lawyers. I have given instructions to a multitude of different hospitals up and down the country, assisting them on how they can avoid clinical negligence claims. I was retained as counsel for several hospital and trust institutions, advising on how to avoid these claims and how to move forward. I should also declare an interest in that I am part of the team pushing for a culture of openness and have met the hon. Member who so very helpfully saved my life in May, my hon. Friend the Member for Central Suffolk and North Ipswich (Dr Poulter). So I have also conducted an in-depth study of the NHS over the past six months in a way that I did not expect when I was first elected.

My final declaration is that I have great respect for the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd), who occupies part of a seat that I fought in 2005 of the Lleyn valley and peninsula in what was Caernarfon. I know that he is an outstanding MP and barrister and I have great respect for the points that he makes, as I do for the submissions and proposals of the right hon. Member for Carshalton and Wallington (Tom Brake) and the hon. Member for Kingston upon Hull East (Karl Turner).

Let me address the proposals of the right hon. Member for Dwyfor Meirionnydd regarding the duty to come clean. It must surely be the case that NHS authorities should come clean at an early stage and I endorse some of the comments that were made about this being something to be addressed not so much in the Bill as in the NHS’s culture and approach. I regret to say that I disagree with my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips) about this, and I have a copy of an article that I wrote for an Association of Personal Injury Lawyers publication on this exact point. In my experience there is ample evidence of isolated examples of an NHS trust deliberately defending a claim on an ongoing basis in the hope that the relevant individual goes away. That is a serious allegation to make, but it is not just me who says it—cases have been reported. I recommend very highly the amazingly well-written edition of APIL PI Focus, volume 20, issue 3, which I co-authored, which addresses that particular point.

[Stephen Phillips]

I make it clear for the fourth time that I have no experience in this area, and I have no doubt that such cases exist, but are they not exactly the sort of case that the civil procedure rules were introduced to deal with? Judges have powers to ensure equality of arms and if defendants behave badly they ought to be punished accordingly.

[Guy Opperman]

I totally endorse that point and such defendants are punished accordingly, particularly in the punitive elements of costs when they are assessed. There are punitive factors that my hon. and learned Friend as a judge would know one is able to impose in a civil court whereby—[Interruption.] I accept that he is not a civil judge—it shows. There is an ability to punish the offending NHS institution or doctor, but the fair point that has been raised and must be addressed is that the powers that would exist to a civil judge, were my hon. and learned Friend to be one, would arise quite far down the track in civil litigation and not at the outset. I come back to the legitimate and fair point that we should address this issue to NHS trusts and particularly to two types of individual, including, first, to chief executives. Regrettably, there are examples of a failure of leadership by chief executives because, clearly, they are mindful of their budgets and they do not like the idea of a culture of openness in which mistakes are admitted. In those circumstances, whether implicitly or directly, efforts are made to suppress litigation against NHS trusts.

The second group of individuals who should be involved is doctors and consultants. Because theirs is such a hierarchical profession, instead of having a culture of openness in which mistakes are readily admitted, there is, sadly, from time to time—I have professional experience of this—a failure to admit mistakes. As the hon. Member for Kingston upon Hull East will sadly and tragically have discovered—and I have been involved in several such meetings—there is a post-operative debrief within the health service.

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.

Oral Answers to Questions

Stephen Phillips Excerpts

Tuesday 28th June 2011 Commons Chamber

[Mr Blunt]

Because we need to restrict the availability of custodial sentences on remand when there is no real prospect of the defendant being sentenced to imprisonment if convicted—[Interruption.] Thousands of people who are remanded in custody and then convicted do not receive a custodial sentence—and in the case of those whom magistrates remand, the numbers are very significant indeed.

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

15. What recent representations he has received on the breach of court orders by those entitled to assert parliamentary privilege.

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

We have received correspondence from a number of hon. Members on behalf of their constituents, raising issues relating to privacy and the use of anonymity injunctions and super-injunctions. In some instances this has included reference to statements made in Parliament concerning the identity of individuals who have obtained injunctions.

[Stephen Phillips]

I am grateful to the Lord Chancellor for that answer. He will share my concerns, and those expressed by the Lord Chief Justice, at the recent breaches of court orders by Members of this House, and indeed Members of the other place. The rule of law and the separation of powers require that we observe the self-denying ordinances to which we are subject, so may I ask whether my right hon. and learned Friend intends to have any discussions with the Speakers of both Houses on the subject, and if so, what the nature of those discussions will be?

[Mr Clarke]

This is obviously a point of concern. I agree that essentially it should be a matter for both Houses of Parliament, and Members of both Houses, to address themselves. As a parliamentarian as well as a member of the Government, I defend absolutely the rules of parliamentary privilege, but we have to consider whether it is a proper use of parliamentary privilege to defy court orders. I hope that the matter will be urgently addressed, as we all have to come to some conclusions on it.

Sentencing

Stephen Phillips Excerpts

Monday 23rd May 2011 Commons Chamber

[Fiona Mactaggart (Slough) (Lab)]

I want to talk about this Government’s record on crime where women are victims or offenders, and to show that the latest attempt to propose a 50% discount for early guilty pleas—which was offered up by the Under-Secretary of State, the hon. Member for Reigate (Mr Blunt), as doing women rape victims a favour—is a desperate ploy that could only be the product of a men-only Department which, to be frank, just does not get it when it comes to women and crime.

It is not just Ministers’ fault, however: when I was a Home Office Minister working with the National Offender Management Service, I discovered that officials believed that women offenders in prisons were basically exactly the same as men and were to be treated the same. The consequence was an appalling deluge of women self-harming and killing themselves in jail. I realised that we needed a comprehensive rethink of the issue, and helped to commission Baroness Corston to look at it. She came up with an excellent report that showed many of the ways that prisons dealt ineffectually and unfairly with women, who are more likely to be jailed for non-violent offences than men, more likely to be remanded when they are later found innocent, and very likely to have been victims of violence themselves before committing any offence.

It seems that we are getting the same kind of cloth-eared view on how women as victims are treated. We need to approach them in the same way that Baroness Corston approached women offenders: by really looking at how to reduce future crime, by ensuring that the children of offending women are less likely to become offenders themselves, by listening to victims and those in the system, and by doing a careful study rather than what I believe we are facing, which is a back-of-the-envelope calculation—“This’ll get me off the hook with the Treasury.”

Let us look briefly at Labour’s record, which Government Members have mentioned extensively. The most striking thing in relation to rape is the increase of sentences served between 2005 and 2009, the period for which we have the most recent figures. Sentences served increased by 14 months over that period because of determined work by my right hon. and learned Friend the Member for Camberwell and Peckham (Ms Harman) and Baroness Scotland, who worked together to start taking unduly lenient sentences back to court and ensure that dangerous rapists were not released early. We then realised that we were not doing enough, so we commissioned Baroness Stern to look at how rape was treated in the criminal justice system. She was impressed by a number of the changes that we had made, including introducing specialist police units—which are now due to be cut by the Home Office—increasing by 15% the number of rapists convicted, improving the way cases were dealt with in court, and introducing specialist prosecutors in all 42 Crown Prosecution Service areas. Of course, the number of CPS areas has now been cut, so although every area might claim to have specialist prosecutors, I doubt whether there will be as many as there were.

The difference between that and what we see now is carefully thinking through what will make a difference. I am genuinely shocked by the Minister, who I do not think is a bad man. I share his desire to reduce reoffending, and I recognise his point that short sentences—those under four years—are ineffectual. That is one of the reasons why I want to ensure that no rapist is in jail for less than four years. He said that there was no loud opposition to the proposal. What that means is that he has not bothered to read the representations that women’s organisations made in response to his Green Paper. I am afraid that we are seeing a cloth-eared, don’t-get-the-women approach from this Department. I want Ministers to think again. We were told that victims’ organisations would really welcome the proposal because victims would not have to go through the horror of a trial. Yes, rape trials are horrible—they are very degrading for the victim—but if the trial does not go ahead, then although the judge hears the plea in mitigation, he never hears how the victim’s life has been destroyed.

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

I wonder whether the hon. Lady has actually read the Green Paper. One of the things that it addresses is the right of victims—a right that they never really had under the Government whom she supported—to give a proper impact statement on how the crime has affected them. If she cares to read the Green Paper, we will not have these silly points made.

[Fiona Mactaggart]

I was one of those Home Office Ministers who introduced the concept of victim impact statements, so I am well aware of that, but the problem is that with early guilty pleas, that has not usually been the case in practice. From my reading of the Green Paper it is not clear to me what will happen: will Ministers automatically ensure that the victim impact statement can fully outline what has happened to the victim?

I do not believe therefore that what is proposed is being done to make the victim’s experience better. There is no evidence of that, because there is no evidence of careful listening to victims’ organisations, which is what I would have expected had that been the case. I would have expected real engagement with women’s organisations that deal regularly with the victims of rape and other sexual violence. According to the British crime survey, one in 250 women were victims of sexual assault in the last year. This is a widespread offence, and we are not taking it sufficiently seriously when the Secretary of State for Justice can say, “Well, there’s rape and then there’s rape.” We need to change the way we deal with this issue. We need to be really serious about these issues. Although there is a case for discounts for early guilty pleas, they should not be universally applied to people who have been responsible for some of the most violent and degrading crimes, and his Green Paper does not stop that—

Oral Answers to Questions

Stephen Phillips Excerpts

Tuesday 17th May 2011 Commons Chamber

[Mr Clarke]

I certainly think that one of the things that needs to be tackled and can be tackled without too much difficulty is the thousands upon thousands of cases awaiting a hearing at the Court, many of which are completely outside the sphere of the convention and could be disposed of reasonably straightforwardly. The question of fees will have to be decided in due course by the Ministers of 47 member states of the Council of Europe, but there is not much evidence at the moment that people are feeling excluded from the jurisdiction by the threat of any imminent costs.

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

There would be very little problem with the jurisdiction of the Strasbourg Court if we repealed the Human Rights Act 1998, withdrew from the convention and replaced it with a British Bill of Rights. Does the Secretary of State agree that it is about time that that happened?

[Mr Clarke]

If we repealed the Human Rights Act, which is one of the matters being looked at, we would just go back to having the convention applied directly by Strasbourg. The issue attracts a wide range of views, which is why we have set up a commission to consider them—[Interruption.] We have indeed set up the commission. It is composed of serious people who have expressed a very wide range of views in the past on the subject. They will strive to reach a consensus and it will be useful to get a properly informed and expert assessment of what the various options might result in. I am sure that the package of measures recommended by my hon. and learned Friend is one of the matters they will be considering in the course of their discussions.