Legal Aid, Sentencing and Punishment of Offenders Bill

Monday 31st October 2011 Commons Chamber

16:19

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

I have been fascinated by the proceedings while I have been waiting to move the motion. I beg to move,

That, notwithstanding that such provisions could not have been proposed in Committee without an Instruction from the House, amendments may be proposed on Consideration of the Legal Aid, Sentencing and Punishment of Offenders Bill to—

(a) provide for measures against the payment or receipt of referral fees in connection with the provision of legal services,

(b) create a new offence relating to squatting, and

(c) amend section 76 of the Criminal Justice and Immigration Act 2008 (reasonable force for purposes of self-defence etc).

The motion seeks to widen the scope of the Bill in order to provide for measures to be introduced on the payment of referral fees, on the creation of a new criminal offence relating to squatting and to amend the law that governs the use of reasonable force for the purposes of self defence.

I hope that this debate will be focused on the resolution and therefore be a short procedural debate. Obviously, there are points of substance to debate in the three areas that we are bringing into scope, but the obvious time to debate those issues is when we reach them in the course of your selection of amendments, Mr Speaker. We are all anxious to debate other measures in the Bill, for which we will have three full days on Report, so I think we should deal quickly with procedural matters and get on to the substance.

On sentencing, quite a lot will come tomorrow which I look forward to debating. I am being attacked from the right and from the left—that is the story of my life—but I regard all those attacks as entirely misconceived and I hope to answer them tomorrow. More importantly, today we have a lot of amendments on the Order Paper regarding legal aid and it is important that we get on to consider their merits on the Floor of the House in the light of debates in Committee. I hope, therefore, that the House will be satisfied if I merely explain why we are introducing measures on these three topics and bringing them to Floor of the House rather late in the day, on Report.

Referral fees are a familiar subject and have been discussed on the Floor several times in recent months. Since they were introduced—or since the ban on solicitors’ paying referral fees was lifted—in 2004, they have increased very rapidly and have contributed to an unwelcome increase in personal injury cases in our courts. They have tended to encourage the introduction of speculative claims and have certainly raised the cost of contesting litigation. The reason we have waited until Report to introduce amendments on the subject is that the proposals have been out to consultation for a few months and the consultation closed only recently. Even during the consultation we were under pressure from the right hon. Member for Blackburn (Mr Straw) to do something about this issue; I entirely agreed with the points he made and the Government are now responding.

On squatting, the Prime Minister announced on 21 June that we were again about to consult briefly on the possibility of introducing a criminal offence of squatting in the Bill. The consultation closed on 5 October. Anyone who has suffered from the presence of squatters in their property knows the distress and misery they cause. We have restricted the new criminal offence to residential properties precisely to avoid opening up the wider debate that might have ensued on squatting and I am not aware of any strong reaction to what we are doing. Existing laws provide some safeguards for property owners, but our making squatting in residential buildings a criminal offence will provide rather greater protection in circumstances where the harm caused is most severe. Again, I am not aware of much objection in principle to those measures. Personally, I have always found it difficult to see the difference between taking somebody’s car and taking somebody’s home. There is a need for a criminal offence.

Finally, the Prime Minister also announced on 21 June that we would put beyond doubt that home owners and small shopkeepers who use reasonable force to defend themselves or their properties will not be prosecuted. We think that further action on self-defence is necessary to reassure members of the public that they are allowed to use reasonable force to defend themselves or their properties against intruders or others.

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

How will this law differ from the common law right to defend property and the existing law on self-defence under which one can use proportionate and reasonable violence to defend oneself?

[Mr Clarke]

I will address that when we reach the amendments in two days’ time—[Interruption.] Well, that is exactly where the Labour Government were two years ago. We are attempting to clarify the law and reassure people that the use of reasonable force is indeed legitimate in English law. The main thing it deals with is the fact that there is no duty to retreat when facing a dangerous or threatening attack, but we will discuss that when we come to that part of the Bill. If that was a fundamental change in the law, I would probably face objections to its introduction on Report. It is an attempt once more to build up public confidence in the perfectly reasonable right people have to use legitimate force when defending themselves and their property.

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

I happen to be sympathetic to all three things the Secretary of State is trying to do, but surely he must take account of the fact that the procedures of the House, which he is trying to bypass, provide that there should be a general discussion on the principle of doing something, followed by a detailed discussion in Committee of how it can be done and then an opportunity to make further amendments on Report if necessary. Does he not have to mount quite a strong case that that is unnecessary in these circumstances?

[Mr Clarke]

The case I am making is that there are essentially no surprises here, because Members have been perfectly well aware of the proposals for all three subjects. They have been debated widely and consulted on, and we are introducing them in a form that I do not think adds a great deal of controversy to the Bill. As we all know, the Bill is very large and included some very important elements. These three subjects are relevant to what we are trying to do to the justice system. The right to self-defence was in the coalition agreement when the Government were formed, so everyone knew that we would return to it, and the Prime Minister announced it again in June. Banning referral fees was in Lord Justice Jackson’s report on reform of civil litigation costs, which we are already acting on, as far as no win, no fee arrangements are concerned. We delayed making proposals on referral fees because we were waiting for the Legal Services Board to give its opinion following consultation. We have been consulting on squatting, as I have said. The inclusion of these subjects is hardly surprising. All three have been referred to and debated on the Floor of the House, so I hope that it will agree to extend the scope of the Bill.

[Mr John Redwood (Wokingham) (Con)]

I think that my right hon. and learned Friend is absolutely right and I do not agree with the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith). There is plenty of time to debate this, it was well heralded and is not a great departure. I wish my right hon. and learned Friend well with it.

[Mr Clarke]

I am grateful to my right hon. Friend. I think that we should move on to the important debates on legal aid today. I hope that the House is genuinely satisfied that these are three sensible subjects that are closely related to reform of the justice system and will allow us to widen the scope of the Bill, as I propose.

16:27

[Sadiq Khan (Tooting) (Lab)]

May I begin my reassuring the Justice Secretary that we will not divide the House on the motion? We accept that the next three days should be spent discussing the substance of this very important Bill. Over the course of the next three days, the Opposition will submit contributions to demonstrate how out of touch the Government are in this area.

I am afraid that this procedural motion shows that they are also incompetent when it comes to seeking to pass legislation that they feel is important. As the Chair of the Justice Committee, the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith), mentioned, none of the matters outlined in the motion—self-defence, squatting and referral fees—was unknown to the coalition Government when they began consultation in May 2010. There have been three separate Green Papers and lots of discussion, debate and consultation. As the Justice Secretary is well aware, No. 10 decided back in June to take over responsibility for the Bill, and at the 11th hour the focus groups told them that these are the measures that might win them some support. He is being attacked not only by the left and the right, but by No. 10.

We do not object to the procedural motion to bring the three things he has referred to into the debate, and I am sure that the Justice Secretary will see over the next three days that we will support some of the measures he has talked about, but it leads one to question why the Government, who for 13 years lectured us on process and procedures—colleagues have just intervened to take about the importance of process on the context of Europe—think that it is not important to discuss these things and consult community groups and stakeholders about the importance of these measures. I am sure that the other House will be watching this debate and the way the Government are seeking to make legislation on the hoof at the 11th hour.

16:30

[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.

16:30

[Chris Bryant (Rhondda) (Lab)]

I am sorry to say to the Secretary of State that I wholly deplore the use of this procedural device, because we have a very good, established system in this House of three Readings, Committee and Report, with gaps in between so that people can consider the amendments that have been passed and consider whether other amendments should be tabled so that Opposition Members or Back Benchers can look at what the Government have proposed and suggest amendments of their own in good time. None of that is possible in this situation.

If the measures were for some emergency, I might understand why the Secretary of State had made such a suggestion, but he has suggested absolutely no emergency in relation to any of the three issues today. In fact, his argument, in so far as I can understand it, is that basically, “Nobody really cares about this stuff; it’s all agreed on by everybody”—[Interruption.] If he is seeking to intervene, I am happy to give way.

[Mr Kenneth Clarke]

I share the hon. Gentleman’s sensitivities about the scope of a Bill being widened in the ordinary course of events, but I have already explained how all three things have been canvassed. There has been consultation—indeed, it stopped us introducing them at an earlier stage—and, as he well knows, the pressure on parliamentary time is such that quite a lot of rather worthwhile criminal justice reforms are not enacted for years because no one can find a slot in the legislative timetable for them—[Interruption.] There are details, and the right hon. Member for Carshalton and Wallington (Tom Brake), who spoke a moment ago, raised a particular detailed point, which will be heard here, and then in the upper House, about exactly what limits there might be on residential property, but this is a sensible process and we should not be sticklers at the expense of worthwhile reform.

[Chris Bryant]

I am grateful to the Secretary of State for allowing me to intervene on his intervention, but his basic argument is, “This is just for the convenience of Government”—and for no other reason.

In relation to reasonable force, the right hon. and learned Gentleman’s argument, in so far as I could see it, was that basically, “It isn’t going to make the blindest bit of difference, so why not just let it go through?” When Ministers say, “We have to change the ordinary processes for the Government’s convenience, and we know we can do it because we have a majority—by definition, because we are the Government,” we almost always end up with bad legislation, as it is not sufficiently scrutinised. It certainly happened when we sat on the Government Benches, and I am absolutely certain that it will continue to happen now.

[Mr Llwyd]

I support much of what the hon. Gentleman says. If the measure is not going to make a great deal of change to the substantive law, but is just going to elaborate on or slightly clarify it, why do we need to legislate?

[Chris Bryant]

Precisely, and it is a bad idea to add to a Bill that is already pretty much a Christmas tree Bill a few more baubles at the last stage before it reaches Third Reading. It is a fundamental mistake and a bad way of proceeding, and I can tell from the body language of the Secretary of State and Lord High Chancellor that he is a little embarrassed about coming forward in this manner—

[Mr Kenneth Clarke]

indicated dissent.

[Chris Bryant]

If Secretary of State is not embarrassed, as he now suggests, he has gone down in my estimation.

The right hon. Member for Wokingham (Mr Redwood) said that all these matters have been extensively debated, but it is one thing to debate a matter in its general application and principles but quite a different matter to look at the wording on the page when it actually comes to legislation.

As I understand the rules of this House, given that we have not yet carried the motion before us, no amendments to which the Government have referred can possibly yet have been tabled. So, they will be tabled tonight and appear on the Order Paper tomorrow, and consequently we will not be able to table amendments to those amendments until after that. I can see the Clerk saying “No, no, no”, so perhaps I have got that completely wrong—[Interruption.] He is nodding now, so I hope that hon. Members will feel free to ignore the last part of my speech and remember everything I said at the beginning of it, and that they will oppose this ludicrous process.

[Mr Speaker]

I am sure that that is what many colleagues will have done.

16:35

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

I want to add briefly to the intervention that I made earlier. The hon. Member for Rhondda (Chris Bryant) has been quite honest about the fact that all Governments get into this kind of situation, including the one of which he was a member, when he exercised responsibility for the conduct of the business of the House. He has made some sound points about the lack of an adequate amending procedure for material introduced at this stage. I can see that there has been extensive public discussion on all three of the issues, but the Government ought to find a way of ensuring that the House has a proper legislative process.

There are a number of ways in which that could have been achieved in this case. The Government could have put down their initial plans in the content of the Bill or by amendment in Committee, making it clear that, if the consultation led them to believe that the proposals should not be proceeded with in that way, they would accept that at a later stage. Alternatively, parts of the Bill could have been recommitted by a recommittal motion, to allow a couple of Committee sittings to deal with those matters. We ought to be very cautious about a motion that contains the word “notwithstanding”, because that means that the procedures that the House has set in place to ensure proper consideration are not being observed in this case. That is why I pressed the Lord Chancellor to provide a strong defence of what he was doing.

Question put and agreed to.