Legal Aid, Sentencing and Punishment of Offenders Bill

Tom Brake Excerpts

Tuesday 1st November 2011 Commons Chamber

[Mr Slaughter]

I am grateful for my hon. Friend’s intervention. I am sure that some companies have been driven out of business, but the everyday experience of hon. Members, and certainly of our constituents, is that the industry is not properly regulated, which is why corrective action must be taken. However, the proposals in the Government’s new clauses are, I fear, insufficient. They are riddled with inconsistencies and loopholes, which is another symptom of the haste with which they were prepared.

I will deal with the point that the Minister dealt with. New clause 19(8) states that a payment is

“to be treated as a referral fee unless”

it can be shown

“that the payment was made…as consideration for the provision of services, or…for another reason”.

The Minister’s impact assessment explains what that means. Claims management companies may adapt their business models so that they are not reliant on referral fees paid by lawyers, or they may move into alternative types of business such as marketing or advertising. That is staggering to those of us who recognise that it is precisely that marketing and advertising, whether on daytime TV adverts or via spam messages, that lead to perceptions of a compensation culture.

What is the point of the new clauses? The truth is that they are an afterthought to a package of changes in the Bill, some of which we will debate tomorrow, that have far more bite but a different purpose. The changes to conditional fee agreements mean that losing defendants—wrongdoers—and their insurers will benefit at the expense of winning claimants—victims—and that is the real objective of the Government’s legislation. Tomorrow, we will seek to overturn those provisions.

As Bob and Sally Dowler have told us; as the lawyers that brought Trafigura to justice have told us; as victims of asbestosis, who have been fighting insurers that simply do not want to pay out to hard-working and long-suffering people; as those who have been unfairly dismissed or subject to harassment in the workplace have told us; and as Christopher Jeffries, who was persecuted by the media last Christmas, as he wrote in The Guardian this very day, has told us, the changes are unacceptable. The Government’s proposed changes, which they had thought about and on which they had taken instructions from the insurance industry, are in the Bill, but very little thought has gone into the new clauses before us today, and none would have gone into them had it not been for my right hon. Friend the Member for Blackburn.

In summary, we believe that there is merit in a ban on referral fees as part of a package to stop the abuses that I have talked about. That is why I tabled amendments not just to clamp down on those fees, but to make the payment and solicitation of referral fees in road traffic accident personal injury cases a criminal offence. My right hon. Friend has tabled amendments to new clause 18, and I hope that he will press them to a vote. If he does so, I hope that hon. Members on both sides of the House will join him in the Lobby if the Government still refuse to accept the criminalisation of referral fees.

We sought to make unsolicited text messages and phone calls regarding personal injuries a criminal offence. We would have strengthened the rules against the sale of personal data. We would have restricted whiplash claims by placing a lower limit on the speed at which a vehicle must be travelling before damages may be paid. We would have outlawed third-party capture, another dirty secret of the insurance industry. I freely acknowledge that we plagiarised some of that from my right hon. Friend’s private Member’s Bill.

If the Government had had the courage of the conviction in the Minister’s speeches earlier in the year, we would have got to the heart of the perception of a compensation culture. In doing so, we would have done what the Government are now failing to do. The new clause alone will have little effect. We believe that it deserves further scrutiny, and we hope that amendments in another place will toughen it up, if that does not happen tonight. We also hope that amendments to make these practices criminal offences will be accepted. We therefore have no intention of voting against the new clauses; we simply regard them as not going far enough.

The Minister’s incompetence in getting to grips with claims farmers who engage in unscrupulous practices and his Department’s failure even to recognise the scale of their failure to regulate effectively have got us here. These are symptoms not of a litigation culture, as he would have us believe, and of the rhetoric that goes along with the cuts in legal aid to the poorest, as well the neutering of no win, no fee agreements which will affect almost everyone except the super-rich and will prevent access to justice, but of regulatory incompetence by the Minister’s Department. Indeed, he has now surrendered responsibility for that regulation.

I commend my right hon. Friend’s amendments to the House. We accept the new clauses as far as they go, but it is about time the Government stopped using their rhetoric as a mask for preventing victims from obtaining justice and used it to ensure that the abuses that we all put up with day to day from fraudulent and criminal practices are stamped out.

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

I shall be brief. I welcome the Government’s action to address referral fees. There is no doubt that consumers have paid a significant price. I hope that we can clamp down heavily on other things, such as unsolicited text messages and spam, which we have all experienced, through other measures such as those on data protection.

I would like the Minister to deal with just one point. The industry has been pressing for these changes, and consumers in particular want to understand what guarantees, if any, they will have that when the changes have taken effect they will see a difference in the prices they pay for services.

[Mr Straw]

As a preliminary, I wish to draw the House’s attention to the fact that against my name on the amendments relating to referral fees there is an R, which indicates that I have a declarable interest. It arises from three engagements that I undertook for fees on matters relating to referral fees and the motor insurance industry generally. They were on 28 September, 12 October, and earlier today. In respect of the first two, I have made a declaration to the Registrar of Members’ Financial Interests, who told me that because I have not yet received payment, the time for these is not yet running. The declaration for my engagement this morning will be made tomorrow.

I tabled amendments to new clauses 18 and 19 and, as my hon. Friend the Member for Hammersmith (Mr Slaughter) indicated, in the absence of a sudden Pauline conversion from the Government Front Bench between now and when the question is put, I shall press amendment (e) to new clause 18 to a vote.

According to the AA, over the year to March 2011, there has been a 40% increase in motor insurance premiums. In many areas of the country, mine included, although it is by no means the worst, the increase has been even higher. As a number of colleagues of all parties have pointed out, that has very severe social consequences.

May I say that I am extremely grateful for the wide support that my Motor Insurance Regulation Bill has had throughout the Chamber? Motor insurance is the only insurance affecting an individual that is compulsory, and in certain areas and for certain categories, particularly younger drivers, premiums are now so high as to place motor insurance out of reach altogether. A driving licence is often a necessary qualification for taking a job. In any case, people in areas that are not blessed with a high level of public transport, which means most places outside inner urban areas, need a motor vehicle to go about their business. The increase in premiums, and the fact that they are much higher in some areas than others, is leading to some people not being able to work or move around.

The increase is also unquestionably leading to an increase in criminality, both through people going around uninsured and, increasingly, through people deciding to borrow a friend’s address with a lower-premium postcode. People also fail to disclose relevant information about themselves, to enable them to become insured. It cannot serve any public purpose that we have ended up with such a dysfunctional system.

I readily concede that that has happened because of a nexus of factors going back a number of years. The operation of the conditional fee system was introduced in the Access to Justice Act 1999 for good a reason: it was thought that it would improve access to justice. To some extent that has certainly been true, but as we all know, it has had the unintended consequence of generally —I am not talking the Trafigura case or one or two others—creating an imbalance in the equality of arms between parties on either side of a legal action. It has gratuitously encouraged the so-called compensation culture.

That, in turn, has been compounded by the costs of the road traffic accident electronic portal being too high. In a recent statement, the Minister said that the figure that was introduced when I was Secretary of State had been agreed in the Civil Justice Council. It was agreed to by both sides, which was why I did not interfere with it. I believe there is now widespread agreement that the current fee, of at least £1,200 for claims under £10,000, is at least twice as high as it should be. It is leading to lawyers advertising as two firms at the end of my street in Blackburn do: they have great banners across their windows saying, “Bring your claim in here, we’ll pay you up to £650 in cash for it.” They can do that and still make a profit out of the £1,200, because the actual costs of running the portal are about £100.

Claims for whiplash, which I have described as an invention of the human imagination, undiagnosable except by dodgy doctors employed by claims management companies, have got completely out of control. The level of whiplash claims is not related to the level of accidents or physical injuries. Accidents are reducing, as is the possibility of being injured in an accident, because cars and road engineering are much safer. It is related principally to the density of claims management companies operating in a particular area. The evidence of that is incontrovertible.

I concede to my hon. Friend the Member for North Durham (Mr Jones) that the regulators have acted properly on claims management companies in some ways, but the regulatory system established under the Compensation Act 2006, during our Administration, has not had sufficient resources to control the trebling in the number of claims management companies that has taken place in recent years.

Another change that took place was in the 2004 solicitors conduct rules, which allowed solicitors to pay referral fees that were previously banned. I will come back to that point when we deal with the enforcement of a ban on referral fees.

--- Later in debate ---

In order to deal with this issue, we must invest in homes. We must invest in council properties, control rents and stop the obscene profits that the private rented sector is making as a result of the housing shortage. Then, we will begin to see a solution. Criminalising people is not a solution.

[Tom Brake]

Squatting clearly has a devastating impact on private owners, and it can also have a devastating impact on councils. When I was a councillor in Hackney back in the late ’80s, it was eventually discovered that many council properties were squatted, and that in many cases council employees had sold the keys to the squatters. We clearly need to tackle squatting, therefore. I would have welcomed a fuller debate on the matter, however, and I now want to raise a few points that would, perhaps, have been more pertinently raised in Committee, if that stage had taken place.

The first aspect of new clause 26 on which I seek clarification is proposed new subsection (3)(b), which states that

“a building is ‘residential’ if it is designed or adapted, before the time of entry, for use as a place to live.”

Could a commercial building be so “designed” or “adapted”, and what would be required for that to be achieved? Would simply placing a bed in a commercial premises be enough for it to be “designed” or “adapted” as “a place to live”?

The second point on which I seek clarification relates to proposed new subsection (4) on the “permission of a trespasser”. If a person has not been informed by someone who is a trespasser that they are in a building that they are squatting, and that person then squats in that property, would they be guilty of the offence of trespass? I hope the Minister can provide some clarity on that point.

At the risk of the Opposition accusing me of trying to have my cake and eat it, I will say that the hon. Member for Hayes and Harlington (John McDonnell) has raised some interesting points in amendment (a). Setting a bar of six months would not be appropriate, however, because there are many circumstances in which people might legitimately choose to leave a property empty—for example, if they are abroad for a year. However, I am sure that every Member of Parliament here tonight probably has one, two, three or possibly more properties in their constituency that have been empty year after year—possibly for decades. I know for a fact that residents living on either side of such properties may prefer to have someone in them so that the property is not allowed to fall down, be taken over by foxes, have trees growing in the front room and so on. I accept that the difficulty lies in trying to distinguish between those cases and cases where a squatter takes advantage of a property. The amendment raises an interesting point and I hope that the Minister will be able to respond to it.

[Nadine Dorries (Mid Bedfordshire) (Con)]

Is the right hon. Gentleman truly saying that neighbours on either side of a property would prefer to have squatters in it than to have foxes in it or trees growing in it? Is that actually what he is saying?

[Tom Brake]

I think that the hon. Lady may, if she examines her constituency cases, find some examples where people are frustrated at the length of time—it could be years—that a property next to theirs has been empty and has been allowed to fall into disrepair, with all the environmental and other dangers associated with that.

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

I just want to try to disabuse the hon. Lady of a simplistic view about this. The council had determined to knock down a block over the other side of the river—the Pullens estate in my constituency, which is a fantastic old estate—but it was squatted, as were some estates in Surrey Docks. Had that not happened, these places would have been demolished. They were squatted, they were kept, they have been refurbished, and they are now properly let and in use. So this is not nearly as simplistic as it has been made out to be, and often people would rather a property was occupied than sitting empty.

[Tom Brake]

I thank my right hon. Friend for his intervention, which provides its own explanation.

The final point that I wish to make is about the retrospective nature of the provision as, again, it is an area that the Government need to examine carefully. As we have not had an in-depth debate here tonight, I suspect that it may well be a point that is examined much more closely when the matter is raised in the other place.

[Kate Hoey]

I, too, wish to congratulate my hon. Friend the Member for Hayes and Harlington (John McDonnell) on the way in which he spoke, because this issue too often becomes one of exaggeration, where inaccurate things are said on both sides. He gave a very reasoned outline of why this coalition Government are rather silly in proposing this measure at this time and in this way. I, too, have been in this place a long time and I have seen legislation go through as a knee-jerk response to something that has happened. Very often people later regret very much that such legislation went through.

It is quite wrong that something that has been introduced so recently, and where a substantial number of people in a consultation—90% of them—were opposed to it, is being put through in this way. As everyone else has said, this is, in reality, a Second Reading debate. No scrutiny will be provided in the House of Commons on the detail, so all these questions are being raised by different people about different aspects of it and we will not get a full answer. We are abrogating our duty and our responsibilities as Members of Parliament if we allow this measure to go through and hope that it will be dealt with in the other place. I am disappointed that Labour’s Front-Bench team is not taking a more robust view on this measure. There is always a danger for politicians in that regard, because they may worry about what the headline will say, but sometimes the headline is totally inaccurate and sometimes it has been devised because of the inaccuracies, the half-truths and the mistruths that have been put around over a period of time. Even at this stage, I hope that the Labour Front-Bench team will consider amendment (a) seriously.

I believe that the retrospective nature of the measure is quite wrong. I also believe that there is squatting and squatting. The public see the difference in the kind of squatting that we have all condemned, whereby people take over someone’s house because they are away on holiday. However, there is already a law to prevent that from happening and those Members of Parliament who say that that has not been observed in their area should talk to the police because it means that the police are not enforcing the law.

The kind of squatting that I support is the kind that the right hon. Member for Bermondsey and Old Southwark (Simon Hughes) mentioned, when large blocks of flats and houses that have deliberately been emptied early by a local authority or a private developer sit empty for months or years waiting either for some work to be done or to be knocked down. I see absolutely no reason why people who have come to London as the capital city of their country to try to get work and to live but who have nowhere to live and no chance of getting a local authority flat or of affording a private sector property should not live in those empty properties. Most of those squatters would be perfectly willing to sign something saying that they will move out as soon as work is to start. Instead, we see such places being left empty for years.

I am very sad indeed that we are seeing this knee-jerk response and that the Government are trying to introduce this measure so quickly. They will live to regret it and I hope that even tonight, at this late stage, Members who have come along thinking that there was no debate to be had and that this was a matter of, “Let’s just get this through”, will think very carefully and will at the very least support the amendment of my hon. Friend the Member for Hayes and Harlington.

Legal Aid, Sentencing and Punishment of Offenders Bill

Tom Brake Excerpts

Monday 31st October 2011 Commons Chamber

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

I rise to make a few brief comments. First, I welcome the fact that the Government are making proposals to tackle referral fees, which are a scandal and an irritant. Secondly, I welcome what I believe will be clarification of when reasonable force for purposes of self-defence can be used. Finally, the Secretary of State said that he was not aware of any representations having been made on squatting, but Crisis clearly has concerns about the measure’s potential to criminalise those who squat in residential properties that might have been empty over a long period. I hope that when we debate the matter in more detail, it will be made clear that there is not going to be a dragnet that draws in everybody irrespective of how long a property has been empty.

Legal Aid, Sentencing and Punishment of Offenders Bill

Tom Brake Excerpts

Monday 31st October 2011 Commons Chamber

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

In Committee, our debates on domestic violence were among the most heated, because of the seriousness of that offence. In my own borough, 40% of violent offences relate to domestic violence. I know that the Minister is aware of the difficulties that arise for women who are experiencing domestic violence—admitting that it is taking place in the first place, giving evidence, and so on—and I am sure that he appreciates the challenges that they face. I know that he will have looked carefully at amendment 74, tabled by the Opposition, which seeks to widen the definition of domestic violence.

I should like briefly to speak to amendment 23, to which I have added my name. My hon. Friend the Member for Maidstone and The Weald (Mrs Grant), highlighted her concerns about the discrepancies, or perhaps lack of consistency, in the definitions of “domestic violence” that are being used. Despite the Minister’s response, further clarification is needed on why different definitions are appropriate in different places. He will have heard Members on both sides of the House express concerns about undertakings, in particular. That point has come across very strongly today, as it did in Committee.

I do not want to detain the House further, because other Members want to speak and there are a large number of amendments relating to domestic violence. I hope that some progress will still be made on this issue, if not through an immediate response from the Minister, then perhaps when the Bill reaches the Lords.

[Helen Goodman]

As the Minister said, we debated this issue in general at some length in Committee. I shall speak in support of amendments 23, 74 and 96 to 98.

A central concern is the narrow and restrictive definition of “domestic violence” that the Minister is putting into the Bill. Once again, we have heard remarks from him that demonstrate his lack of understanding and his lack of sympathy for people in this situation. He said in Committee, and he said again today, that his criteria

“all avoid self-reporting and involve a significant level of state intervention.”

That is indeed the case. The problem is that in taking that approach, he is treating women as if they are not adults capable of self-reporting. That is why many Labour Members feel that he is taking us back 30 years. He said:

“We are concerned that to include admission to a refuge in the criteria would be to rely on self-reporting”.

He said that he is

“not persuaded that the medical professionals would be best placed to assess whether domestic violence has occurred”

even though

“they may witness injuries”.

He said that he does not believe that, in themselves, allegations of domestic violence are objective. He said, as he said again today, that the tests he wishes to use

“are designed…to minimise the risk of false allegations.”––[Official Report, Legal Aid, Sentencing and Punishment of Offenders Public Bill Committee, 6 September 2011; c. 359-64.]

That is a problem. If his objective is to minimise the risk of false allegations, then his objective is not to maximise the support that women need.

Following the extremely concerning debate that we had in Committee, on 8 September I wrote to the Under-Secretary of State for the Home Department, the hon. Member for Hornsey and Wood Green (Lynne Featherstone), who is responsible for issues relating to women and equalities. On 25 October, I finally received a reply, in which she says:

“You make the point that the definition of domestic violence used in the Bill is much narrower than the ACPO definition. My understanding is that the definition of “abuse” in the Bill is a broad one…We have been assured by the Ministry of Justice that the definition used would not exclude, for the purposes of legal aid and private family law cases, any of the types of abuse covered by the definition used by ACPO.”

This letter is quite extraordinary. She goes on to say:

“The Government is clear that objective evidence will be needed to ensure that legal aid in private family cases is focused on those who may be intimidated and unable to assert their rights as a result of domestic violence or the risk of harm by the other party to the proceedings”.

Her reliance on the assurances from the Ministry of Justice that its definition is the same as that used by ACPO leads me to ask two questions. First, what is the point of a Minister for Equalities who does not check with the rest of the world what is going on? Secondly, did the Minister tell her that his definition was the same as the ACPO one, when everybody knows that that is not the case?

The Minister for Equalities could easily have listened to the Bar Council—not, one would think, a wild group of left-wingers who are determined to promote a feminist picture of the world. One would think that she might have listened to it. It wrote to many Members this week.

--- Later in debate ---

[Mr Llwyd]

The number of cases each year because of accidents or negligence has not really increased. It has been around the 10,000 mark for many years. There has not been a sudden rise in specious claims in this area. This is not a growing market. I hear what the hon. Gentleman says and I agree that we should ensure that there is far better practice.

Such cases are capable of being resolved far earlier and without recourse to litigation. Medium-sized cases are often resolved by the hospital or health authority without resorting to litigation, and that is fine. However, in large cases, such as where a child is brain-damaged at birth, there is no appetite from either side to settle it in the hospital. Such cases are often extremely expensive because the child’s life has been ruined for their entire existence. That is why I raise these matters.

I hope that the hon. Member for Kingston upon Hull East (Karl Turner) will make a contribution because I know that he, too, has been campaigning on this issue. I will confine my remarks to those few points.

[Tom Brake]

I rise to make a few brief comments, particularly in relation to amendment 132, which appears in my name.

I have been ably supported by Action against Medical Accidents, which campaigns on the issue of clinical negligence and for a statutory duty of candour in relation to accidents in the NHS. If there was a statutory duty to confirm, at the outset, that an accident had taken place, it might ensure that many cases involving the NHS, which can drag on for many years, were brought to a much earlier conclusion. If, as was suggested earlier, it is management who get in the way of resolving such cases, they would not be able interfere to the same extent to delay proceedings—if, indeed, that is what they do—if confirmation that an accident had taken place was given at the outset.

I will focus on legal aid representation in relation to medical negligence. I welcome the confirmation we have been given that £6 million or £7 million of the £16 million that is currently spent on legal aid for medical negligence will be retained under the “Exceptional Funding” heading. The sum that is being discussed is therefore in the order of £10 million. Although we have received assurances that exceptional funding will be able to deal with many of the intense cases with which Members are familiar, such as cases of babies who have been seriously injured at birth, the question remains: which cases will not be funded once that £10 million is withdrawn from legal aid for medical negligence cases?

Given that the Government have a significant budget deficit to address and that this measure is part of that programme, I do not want to come empty-handed when it comes to saying where additional funding could come from if the Government were to restore that money. Later on, we will debate amendment 144, which is in my name. It would introduce a presumption against sending people to prison for a prison sentence of six months or less. The organisation that has done the calculations suggests that that could save the Government up to £400 million a year. That might be a slight or even a gross exaggeration of how much money could be saved, but it would be not unrealistic to expect that savings of the order of £10 million would be achievable if the Government were to look kindly on that amendment.

Medical negligence is high-profile. It might affect a relatively small number of families, but when it does, it does so dramatically.

[Karl Turner]

Does the right hon. Gentleman want his amendment to be pressed to a Division?

[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.

[Karl Turner]

I rise to speak to amendment 142, which is in my name and those of my hon. Friend the Member for Hammersmith (Mr Slaughter) and the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd)—I think that that is the correct pronunciation of his constituency, but I apologise to him if it is not.

The amendment would put clinical negligence back into the scope of legal aid. The Bill will exclude many important areas of law from the scope of legal aid entirely, all of which deeply concern me.

--- Later in debate ---

[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.

Domestic Violence, Crime and Victims (Amendment) Bill

Tom Brake Excerpts

Friday 21st October 2011 Commons Chamber

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

I too congratulate the hon. Member for Mole Valley (Sir Paul Beresford) on pursuing this cause. I am happy to support the Bill. The definition of domestic violence is relevant not only to this Bill but to the Legal Aid, Sentencing and Punishment of Offenders Bill—I hope this change will go through, just as I hope we may at some point see some changes in the definition of domestic violence that is used in that Bill. I am pleased to support the Bill this morning.

Justice and Security Green Paper

Tom Brake Excerpts

Wednesday 19th October 2011 Commons Chamber

[Mr Clarke]

I have had some preliminary discussions with the judiciary, and I am quite sure that they will now respond quite fully to our Green Paper, but I agree that, as we are making very important changes to civil procedure, it is essential that we take on board their views. In the end, this House will decide, but it would be most unsatisfactory and be asking for a great deal of future trouble if we started trying to put in civil procedures that the judiciary thought unsatisfactory and, in case law, sought to modify. I have taken great trouble to consult the judiciary, and I will continue to do so. I think that that will be possible, because they are just as concerned as everybody else about national security and, certainly, about open justice, and they will help us to reach a conclusion.

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

There will be nervousness at the use of special advocates in cases such as those of the Guantanamo detainees or in inquests. Does the Secretary of State agree that the most effective way of stopping such cases coming forward is to ensure that international law is observed, that torture is never condoned implicitly or explicitly and that our security services are more effectively monitored so that we can always be certain about the probity of their activities?

[Mr Clarke]

I certainly agree with all my right hon. Friend’s principles, and they are confirmed by the current Government: we are flatly against the use of torture; we do comply with international law; my right hon. Friend the Prime Minister has published new guidelines for the security and intelligence services; and, as I have said, we certainly want them to be properly accountable.

No one has ever established malpractice in previous cases, and one thing we are seeking to do is to draw a line under all the past allegations. I have been settling cases and all the rest of it, but no one has ever made an adverse finding against the security services on any of those grounds. Having public confidence, we now want a process whereby we can sustain it.

Gangs

Tom Brake Excerpts

Tuesday 11th October 2011 Westminster Hall

[Mr Lammy]

I am grateful to the hon. Gentleman for that intervention. The point I am making is that, two years ago, the assistant borough commander, the head of the youth service and her representatives, and representatives of social services, health services and schools were sat around the table—routinely, every month—discussing the group of young people who were getting caught up in this situation, and that funds were coming through to support that activity. I am afraid that they told me last week that that has ended. They are engaged—meeting voluntarily, every six weeks—because they are so concerned, but there is no statutory framework for that activity, and neither is there the support and diversion activity that needs to happen.

The hon. Gentleman will appreciate from his long experience that what those young people need is diversionary activity and intervention. That requires resources. If he speaks to colleagues in Waltham Forest—my hon. Friend the Member for Walthamstow might say something about this—he will hear that they are concerned about resources. I think that this is one area in which we can make the plea for resources, because the consequences of under-resourcing will cost us so much more. The co-ordination and resources that must rightly follow, so that those professionals can do their job, are essential.

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

The right hon. Gentleman is clearly drawing on his extensive experience. To return to the issue of youth offending, is he calling for ring-fenced funding from central Government to go to local authorities, or does he believe that local authorities themselves have a duty to prioritise youth offending funding within their budgets?

[Mr Lammy]

I am not calling for prescription; it is not for me to prescribe how this should be done. That must be a matter for the Government. What I am saying is that this is a priority and a real issue in London. Youth services are being cut and reduced across London. It is easy to make the point that the London borough of Haringey, for example, should prioritise youth services at a time when it has to cut £40 million in year from its budget. I am worried, however, that I will be here with colleagues next year and that the figures will have gone in the wrong direction, because we will have been unable to prioritise the service.

As I said at the beginning of my speech, although I do not recognise a picture that suggests that gangs were behind this summer’s rioting and social unrest, it is clear that gang members were part of it. I have spoken to the manager of JD Sports in Tottenham retail centre and to the manager of Comet. I have also looked at some of the video and pictures of complete lawlessness, which ran for more than five or six hours—there were more young people in that shop that night, looting and robbing, than during the day—and I do not want my constituents to get accustomed to such things, because that would be dangerous for any society—those events have to be a one-off. Those charged with intervening in, dispersing and engaging with often chaotic families, as well as those who co-ordinate pupil referral units and ensure that young people in care are properly provided for, who work with families, who think about a living wage and about our economy, and who ask hard questions about where the jobs are in a constituency such as Tottenham, recognise that this is important.

Although I am pleased that the Government have said that they want to prioritise the issue, as a Back Bencher I want to scrutinise how that is done. We should, of course, speak to those from across the pond who have experience in this area, but I have now been the MP for Tottenham for 12 years and, when I began, knife crime and gangs were certainly not a major phenomenon of the capital city. In those days, the caricature was of yardie gangs—I am sure my hon. Friend the Member for Hackney North and Stoke Newington will recall reading about them in the papers.

The situation has changed completely and we have a decision to make: are we going to see gangs and that terrible youth violence as a permanent phenomenon of our economy and country, as in parts of downtown America? We are on a cusp. We can either get over the problem with proper, co-ordinated quality effort, or I am afraid that it will be a permanent phenomenon of our modern economy.

--- Later in debate ---

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

I congratulate the right hon. Member for Tottenham (Mr Lammy) on opening the debate in a well informed manner, drawing on his constituency experience. He rightly concentrated on what we need to do to stop young people from going into gangs. I would like to focus a little on what measures senior police officers believe should be in place to tackle gangs in which young people are involved. The four measures that have been highlighted by the officers are: sound mechanisms for identifying gangs and gang-related problems; the ability to track gangs; tough enforcement; and the ability to signpost gang members out of gangs.

Regarding sound mechanisms for identifying gangs, there is clearly a role for safe neighbourhood teams on the ground and for grass-root organisations. At a higher level, we will have the national crime agency, which has to play an important role in identifying gangs, particularly when they go from being a gang into organised crime.

On tracking gangs, a number of hon. Members referred to the ongoing multi-agency work, such as safeguarding hubs in London and information-sharing hubs, where different bodies that have responsibility or have contact with gang members can pool their information to ensure that they are monitoring the young people as effectively as possible and bringing positive measures to bear on them. Clearly, there is a need for that information to be cross-borough, as the hon. Member for Hackney North and Stoke Newington (Ms Abbott) highlighted. Gangs cross borough boundaries, so having an information-sharing hub that is borough-based is not good enough; it needs to cross borough boundaries to work with neighbouring boroughs.

Regarding tough enforcement, there are now gang injunctions, although I have some reservations about the evidence threshold that will be used for them and about the cost, which senior officers have mentioned. That may be because we are at an early stage of using gang injunctions and there is a learning curve that has to be followed. However, I support the fact that gang injunctions have the power to compel young people to undertake certain positive activities, because that is a major plus point and will help with tough enforcement.

On signposting gang members out of gangs, a large range of organisations in the voluntary sector and in government provides activities. I understand that there is a database where such information is held, which may need updating. It includes details of organisations such as Kickz, Cricket for Change and a host of other effective organisations such as Voyage or Horizons, run by the Met Black Police Association. We need to ensure that the information is up to date so that, when a member is identified, the relevant activities can be signposted to them to help them out of their gang environment.

I know that, in such debates, it is easy to fire a long list of questions at a Minister, which he or she, unfortunately, will not have time to respond to at the end of the debate, so I will leave the Minister with just one point, which is about the Cardiff model. The principle behind the Cardiff model is that a hospital would communicate with the local police about where people with gunshot or knife wounds were coming from, to ensure that the police could bear down on a particular pub or estate where the problems were being generated. There is some confusion in London at the moment as to whether hospitals are doing that. I would like the Minister, now, if possible, or in writing, perhaps to the benefit of all hon. Members, to confirm that all hospitals, in London at least, have signed up to the Cardiff model. That model has generated a substantial drop in the number of serious injuries; I think the quoted figure is 40%. We want to see that effective model deployed across London and beyond, so that other parts of the country can experience the same drop in serious injuries.

Oral Answers to Questions

Tom Brake Excerpts

Tuesday 13th September 2011 Commons Chamber

[Mr Clarke]

First, I agree strongly with the praise that the hon. Gentleman gives to the prison officers. The system did respond—the criminal justice system responded very well to the totally unexpected pressure of the riots. Partly it proved that our criminal justice system does work well in such circumstances. Secondly, it was entirely because of the public-spiritedness and good will of prison officers, probation officers, policemen and court staff, all of whom responded to the events with horror, as did every decent member of society, and decided to put the public interest first.

We always carry a cushion in the prison estate, because we do not know what number of prisoners will come. I know the consequences, which some of my predecessors have encountered, of running out of places in the prisons, and for that reason, I am glad to say, we were able to cope—there is still sufficient capacity—and it is very important that we continue to do so.

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

Has the Secretary of State had time to consider the Make Justice Work report, “Community or Custody?” which sets out clearly how much more effective properly managed community sentences are than short-term prison sentences, and the potential for greater use of community sentences to push down the prison population?

[Mr Clarke]

We have to have all forms of punishment available, because no two cases are the same. What is likely to be most effective with one offender may not be with another. We do have to punish, and then we have to see what we can do to rehabilitate and prevent people from reoffending. But I quite agree: for some prisoners, the best effect from the public point of view—returning them to an honest life—can be achieved by non-custodial sentences, and the Government hope to make them more credible to magistrates and to strengthen them, so they can be used effectively in suitable cases.

--- Later in debate ---

[Mr Kenneth Clarke]

I realise that our fellow citizens in Ulster have unfortunately had just as much experience of rioting as some of our British cities have. Among the many things that we must look at when we get the full facts about the very good response of our courts and criminal justice system to the recent English riots is how it compares with the experience in Northern Ireland. I agree with the hon. Gentleman that there should be some general consistency of approach, with swift and firm justice, particularly when rioting is taking place, because it stops people imitating it and lessens the likelihood that the disorder will spread.

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

On the subject of payment by results, what guarantee can Ministers give that small providers will win some contracts and that small and large providers will have to make information about their performance publicly available?

[Mr Blunt]

Of course, anyone who is going to deliver payment by results would be crazy not to engage the voluntary and charitable sector as part of their delivery mechanism. Some of those charities will not have the resources to be able to underwrite payment-by-results schemes, but the prime provider would be mad not to engage those services.

Access to a Lawyer

Tom Brake Excerpts

Wednesday 7th September 2011 Commons Chamber

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

It is a pleasure and a relief to be called in the debate, partly because I gave relatively little notice of my intention to speak, and partly because I knew I would be coming immediately after the hon. Member for Hammersmith (Mr Slaughter). As other Members who serve on the Legal Aid, Sentencing and Punishment of Offenders Public Bill Committee know, sometimes he gets carried away with his eloquence and might well have risked eating into the entire time allocated for this debate.

Obviously, I welcome the debate. As the Minister said, the new Commission proposal seeks to guarantee fair trial rights, providing access to a lawyer from the first stage of police questioning and throughout criminal proceedings by allowing adequate confidential meetings between the lawyer and the suspect; by allowing the lawyer to play an active role during interrogations and to check detention conditions by making sure that the suspect is able to communicate with at least one family member or employer; by allowing suspects abroad to contact their country’s embassy or consulate and receive visits; and by offering people subject to a European arrest warrant the possibility of legal advice in both the country where the arrest is carried out and the one where it is issued. The draft directive acknowledges that the right to a lawyer is not absolute and allows some derogation.

As the Minister said, the UK affords most of the protections offered in the new proposal in existing domestic law. However, as the hon. Member for Hammersmith pointed out, in many other EU countries there is clearly not such provision; he quoted from Fair Trials International, which listed the countries in which, unfortunately, many of the rights that we have here do not apply. That is clearly why it is arguing for the UK to opt in to the directive.

The Minister rightly set out the Government’s concerns about the provisions, some of which are not consistent with our national law or practice. Some of the proposals have financial implications for the UK, when, as we know from our debates on legal aid, there are real pressures on budgets. However, it is important to point out that other member states share many of our concerns about the practical implications of the proposal and the ability of their criminal justice authorities to investigate and prosecute crimes.

In his letter, the Minister for Policing and Criminal Justice briefly set out the other issues about which the UK Government have concerns in respect of the impact on our legal system. I hope that the Government will pursue those matters because there can be no doubt that, as the Minister who is here today has acknowledged, the directive would benefit UK citizens abroad, many of whom have to put up with legal systems that are not comparable with ours. Equally, if the UK opted in, some aspects of the changes required might well be beneficial to other EU citizens who had to go through our own court system. I hope that there is an active engagement on these issues.

My final point is about whether the UK Government’s approach is one of going in to win the battles around the differences and perhaps secure the possibility of opting in later, or whether we are going in to battle for a draw—to try to make some changes, but without the expectation that they would be sufficient to allow the UK to opt in. I hope that the Minister will be able to answer that point.

Rights and Protection of Victims

Tom Brake Excerpts

Monday 11th July 2011 Commons Chamber

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

It gives me great pleasure to be able to make a brief contribution about the road map draft directive and draft regulation. The road map includes a package of proposed legislative measures designed to ensure that all 27 member states, especially some of the poorer performing new and southern states, meet minimum standards in providing for the rights of victims of crime. Many states are seeking to put into law existing Council of Europe conventions in this area, which are by and large designed to ensure that any EU citizen who is a victim of crime anywhere in the EU is guaranteed to have their rights met.

I shall follow the example of the hon. Member for Liverpool, West Derby (Stephen Twigg) by referring briefly to a constituency case, as it serves to illustrate why these changes are needed. The case, which I have raised in the House on a number of occasions, relates to Robbie Hughes, who was seriously attacked when on holiday in Malia in Crete, allegedly by British tourists—it is still going through the courts, so I cannot say much more than that. He suffered severe head injuries as a result of the attack. Since then, his mother has been campaigning to ensure that the support available for victims of crime abroad is enhanced. She has done a lot of work, such as by helping the Foreign and Commonwealth Office improve its website and put extra information on it. She has also done a lot of work with travel agents to put pressure on the travel reps to stop encouraging British tourists to go out and get blind drunk by telling them where the cheapest venues are for getting the most potent alcohol, with the inevitable consequences in places such as Malia in Crete where, I am afraid, British tourists have a very poor reputation.

Robbie and his mother faced a whole host of issues and problems, with which I am sure the Dunnes, to whom the hon. Gentleman referred, will be very familiar. There is a problem in accessing health care, and people also need to be encouraged to take out insurance. They may think, “I’m safe because I’m going to an EU country,” but the descriptions of health care in Greece suggest that it leaves something to be desired. There are also language issues, and although legal aid is available in Greece, that is not immediately apparent to a British citizen who is sent a form written in Greek. There are translation issues therefore, and there are clearly significant communication issues. Some of them are simple, such as whether the person abroad is able to use their mobile phone and whether, if they clock up a large bill, they will be cut off before having been able to help their loved one abroad.

We also need to address issues relating to the police and the application of different standards. For example, in some countries the police are not willing to register crimes and fail simply to get out of the starting blocks in getting a crime addressed. There are also problems relating to money and to extradition, where a case subsequently does come to court. That is a good example of an area where the European Union has put in place measures to address the situation.

Many of the issues that these two families experienced would benefit greatly from this standardisation of a minimum level of support for victims of crime. During a debate on victim support on 8 June, I expressed reservations about what we are debating tonight, but I did so on the basis of not having a clear appreciation of the extent to which the UK Government had been involved in drawing up the proposal. I also had concerns that the UK’s strong position on supporting victims would be diluted by this approach, but we are clearly setting a minimum standard that other countries can and should go beyond. I also had concerns about whether this approach would place an undue burden on the UK, but it is clear, again, that the UK’s high standards on victim support mean that although the UK Government might have to take some additional steps, they are relatively small in the scheme of things. On that basis, I think that this is a very positive contribution and I hope that the Ministry of Justice will be minded to push it forward swiftly.

Police Detention

Tom Brake Excerpts

Thursday 30th June 2011 Commons Chamber

[Nick Herbert]

My understanding is that there is widespread agreement and concern about the impact of the decision, and that we should proceed on the basis of sensible discussion. We are grateful for the Opposition’s support in that regard.

The right hon. Lady asked about the Home Office’s role since the judgment. Mr Justice McCombe delivered his judgment in the divisional court in Manchester on 19 May, but it was an oral judgment. The Greater Manchester police forwarded a copy of it, but only when we received the written judgment, on 17 June, were we able to begin to ascertain the extent of its effect, and, in particular, only then did it begin to become clear that its implications went beyond the issue of warrants of further detention. Since then the Home Office, the Crown Prosecution Office and officials of the Association of Chief Police Officers have been engaged in a constant dialogue in an attempt to understand the detailed implications, which are complex. On 24 June—-last Friday—the leaders of ACPO met senior Home Office officials, and at that point Ministers were informed. ACPO then commissioned advice from a leading QC. The right hon. Lady asked about the guidance issued to police officers; ACPO issued interim guidance to all chief constables at that point.

Last Wednesday ACPO commissioned additional advice from Steven Kovats QC, which it received this morning. I hope to explain some of the circumstances to which the right hon. Lady referred. It was this morning that ACPO presented its case for urgent legislation to Ministers, and it was therefore this morning that it was appropriate for us to come to the House to say what would be the right thing for us to do. We will seek to put the legislation before the House as soon as possible, following discussion through the usual channels. The matter is of concern to the police, but it is appropriate for us to continue to work carefully with them in relation to the guidance that will need to be given to forces following the further advice received from the QC.

There seems to be general agreement that this was an unusual judgment, which overturned 25 years of legal understanding. We cannot wait for a Supreme Court decision, and emergency legislation is therefore sensible and appropriate. I am glad that that is also the view of the official Opposition, and we are grateful for their support in expediting it.

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

There is a clear and urgent need for emergency legislation. Does the Minister expect permanent legislation to be included in the Legal Aid, Sentencing and Punishment of Offenders Bill? Pending the implementation of emergency legislation, what emergency measures are being considered, such as the creation of additional temporary cell capacity?

[Nick Herbert]

We expect the emergency legislation to be the last word on the subject. We do not believe that it will be complicated to return to the status quo ante, which, after all, was the basis of legal understanding for 25 years. We do not think that it would be possible to leave the matter to an amendment to one of the Bills that are already before the House, because we would not secure that legislation soon enough. It is therefore appropriate for us to consider introducing legislation much more swiftly.

As I said in my statement, we are urgently seeking further advice on how to mitigate the impact on the police. We will do everything that is lawfully possible to ensure that they can conduct their business and deal with the interviewing of suspects, and that is the subject of ongoing discussion with the Association of Chief Police Officers.