Human Rights Act

Lord Garnier Excerpts

Tuesday 30th June 2015 Westminster Hall

[Sir Edward Garnier (Harborough) (Con)]

I congratulate the right hon. Member for Orkney and Shetland (Mr Carmichael) on obtaining the debate. Were he, my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) and I sitting as a three-man court of appeal, I should simply say, “I agree with my brothers and have nothing further to add,” but since we are not and I have a few minutes to say something, I think I shall.

First, the political reality is that there is no majority in this House, and there certainly is not in the other place, for a repeal of the Human Rights Act—still less for our removal from the European convention. The second point to think about was touched on by my hon. Friend the Member for Cheltenham (Alex Chalk), although perhaps the speed with which he spoke slightly confused things: there is a world of difference between attempting to repeal or amend an Act of Parliament and resiling or removing ourselves from an international treaty. That comes back to the point made by the right hon. Member for Orkney and Shetland about the Good Friday agreement and other devolved questions. In so far as those are matters of treaty, there is not much that we can sensibly do in the House of Commons, apart from talking about it, to amend them or remove ourselves from them; but it strikes me that that feeds into the political reality. We are not going to unpick the devolution settlement at the behest of a tabloid newspaper that finds the word “Europe” disobliging.

There are several things that we need to think about, which I have discussed before, in relation to the problem. The question is a mixture of politics and law. I truly confess that there are plenty of lawyers who do not like politicians because they find them thoughtless, intemperate and political; and plenty of politicians who have not condescended yet to read the Human Rights Act, still less the convention. There is therefore a gap between people’s state of knowledge and their prejudices. Politicians need to arbitrate that difference.

Perhaps the most important question that we need to ask is what the point of the exercise is. Is it necessary, and what will it achieve? Well, it will achieve an awful lot of political angst, a split in the Conservative party and a disagreement across the Chamber to little effect. At some point we will have to work out whether it is all worth the candle. Yes, of course there are things that one can do to tinker with an Act of Parliament. One should pay more attention to section 2; one should understand the point made by my hon. Friend the Member for Banbury (Victoria Prentis) a moment ago about the human rights regime and our armed services. There are all sorts of sensible things that we could talk about, but we do not need to waste the next four and a half years of this Parliament banging our heads against an impenetrable brick wall to no effect.

Thank goodness we have my hon. Friend the Parliamentary Secretary here to handle the flaming cauldron, and carry it carefully, like—mixing my metaphors—a delicate Ming vase all the way to the next election, where he can quietly lock it in a cupboard and forget about it.

--- Later in debate ---

[Mr Christopher Chope (Christchurch) (Con)]

I look forward to having a British Bill of Rights on the statute book. That was in our manifesto, and it would only increase cynicism in politics if we abandoned such a clear manifesto commitment.

When the Bill is introduced, I hope it will include the word “responsibilities”. One thing that really annoys constituents is that the principle of equity, which runs right through English law like a golden thread, is not applied in very many human rights cases. People want a sense of fairness. They particularly want to ensure that those who come before the courts do so with clean hands, and that if they do not, they cannot expect to be treated in the same way as those who do.

The issue is not compliance with the strict words of the European convention on human rights—they are not an issue, because we all agree with them. The only reason why one country in Europe is currently not a member of the Council of Europe is that Belarus refuses to disapply the death penalty. That is a fundamental breach of the legislation.

More difficult is the judicial interpretation of the original words of the convention, which now extend into what is effectively judge-made law, over which Parliament and the people have no control. We are all familiar with the issue of voting rights for prisoners and how it was specifically excluded in the discussions leading up to the signing of the protocol. The sentence of life imprisonment was clearly introduced as a substitute for the death penalty, but even that is now being undermined by the European Court of Human Rights saying that there should be the opportunity for a review, rather than life meaning life.

[Sir Edward Garnier]

Will my hon. Friend give way?

[Mr Chope]

I am not going to take any interventions, because even if I get an extra minute it will mean others will lose out.

Article 31.1 of the Vienna convention on the law of treaties makes it clear that

“a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its objects and purpose”.

If the European Court of Human Rights was doing that, there would not be a problem.

The UK Government are in close contact with the thinking of the European Court of Justice. In its opinion earlier this year, the European Court of Justice said that the EU could not join the European convention on human rights because of concerns that the interpretation of human rights law in Europe would then rest with the European convention on human rights rather than the European Court of Justice. We are in exactly the same position in this country: we want our own Supreme Court to interpret the treaty, rather than to leave it to an external body.

The Government are on the right course and should not be deterred by the siren words we have heard from so many people this afternoon.

Oral Answers to Questions

Lord Garnier Excerpts

Tuesday 23rd June 2015 Commons Chamber

[Andrew Selous]

We cannot require older prisoners to work, but I would certainly want those opportunities to be available to older prisoners, just as they are to many older people in society who want to carry on working. All our educational opportunities are, of course, open to older prisoners. We recognise the challenge, which the hon. Lady rightly raises, of an increasingly elderly prison population.

[Sir Edward Garnier (Harborough) (Con)]

Between 2005 and 2009, I visited about 65 prisons in England and Wales, and it was my universal experience that the work done by prisoners was more or less useless to the outside world. In one prison, I saw people making hairnets. No doubt there is a market for hairnets—

[Michael Fabricant (Lichfield) (Con)]

There is!

[Sir Edward Garnier]

None of the prisoners in that prison—it was not too far from Lichfield!—was ever going to leave prison to work in a hairnet factory. Will my hon. Friend please ensure that proper wages are paid for the work we tell prisoners to do, so that they can support their families, rather than the welfare state, and can leave prison and get a job that they want to do?

[Mr Speaker]

I think the hairnet has been replaced, to judge by the length of the question, but we greatly enjoyed the right hon. and learned Gentleman’s question.

Social Action, Responsibility and Heroism Bill

Lord Garnier Excerpts

Monday 2nd February 2015 Commons Chamber

We are all enjoying “Wolf Hall”, but perhaps with a tinge of regret that the office of Lord Chancellor, in the 500 years since Thomas Cromwell held the title, has gone from the indomitable to the unflushable. Cromwell was the architect of the biggest social and religious changes in the country’s modern history. This Bill, this Lord Chancellor’s last Act, certainly in this Parliament, is literally meaningless, and it is therefore, as has been said, a fitting memorial.

[Sir Edward Garnier (Harborough) (Con)]

I do not need to be as offensive or as rude as the hon. Member for Hammersmith (Mr Slaughter) who spoke from the Opposition Front Bench. It is not in the least bit helpful to indulge in such rather childish and cheap personal remarks. The Lord Chancellor has a lot on his plate. I regret that the Bill was part of the menu, but none the less Parliament has discussed it and expressed its views on it and I, as a Member of Parliament, have done so as well.

I thank the Chancellor for the decision to agree with Lords amendment 2 and to remove from clause 4 the words

“and without regard to the person’s own safety or other interests.”

That makes clause 4 marginally better, although I have nothing to resile from in the views that I expressed about the Bill last summer. I thank the Government for that.

On clause 3, I do not particularly welcome the change of “generally” to “predominantly” because I do not think either adverb assists very much. Clause 3 would have been better had the Government moved a little towards what the former Law Lord, Lord Brown, said on Third Reading in the other place on 6 January at columns 253 to 255. I shall not rehearse all that he said, but I would move a little further than him and say that rather than talking about acts or omissions in line 10, the Bill would be better if, instead of

“in carrying out the activity in the course of which”

and so on, it said, “The court must have regard to whether the person responsible for the act or omission in the course of which the alleged negligence” and so on. That would have been a clearer set of words. If the Bill, when it is enacted, is to be of any use to any court, it would be a little more useful had those words been put into clause 3.

Finally, I agree with what Lord Pannick said when he paid tribute to my very good and noble Friend, Lord Faulks, the Minister of State in the Lords. Lord Pannick said:

“However, I pay genuine tribute—I emphasise ‘genuine tribute’—to the Minister, who has applied his formidable skills of reason and eloquence, and has done so with consummate courtesy”.—[Official Report, House of Lords, 6 January 2015; Vol. 758, c. 262.]

I shall not finish the sentence because it is not necessary to do so. I wish that those of us in this House who remain deeply critical of the Bill will none the less remember the hard work put into its deliberations in the other place single-handedly by my noble Friend, who has, like the Lord Chancellor, a lot on his plate, much of which, I am sure, he might have wished was not there.

There we have it. The Bill will go on to the statute book. I suspect that this particular book will not be opened again, but no doubt we will have other things to think about for the remainder of our busy schedule between now and the general election.

Lords amendments 1 and 2 agreed to.

Criminal Justice and Courts Bill

Lord Garnier Excerpts

Tuesday 13th January 2015 Commons Chamber

[Chris Grayling]

My hon. and learned Friend mentions the common law approach. When it was introduced in 1974, judicial review was a limited remedy for individuals who felt they had been badly wronged by a decision made by a public body, central Government or local government. Over the years since, it has become very different, and it is now overtly used by campaign groups and third parties to seek to disrupt the process of government. He is absolutely right to say that the common law approach exists, but our judgment as a Government—I hope and believe that, at the end of the debate tonight and of the one to follow in the House of Lords, it will also be the judgment of Parliament—is that Parliament needs to set in place some tramlines within which the courts can operate. We do not want to undermine, remove or destroy judicial review; we want it to be used in the right and proper way for which it was originally intended, and that is what the reforms are designed to achieve.

[Sir Edward Garnier (Harborough) (Con)]

I have some sympathy with what my right hon. Friend is trying to do, because I witnessed at first hand the judicial review of the reburial of Richard III in Leicester cathedral. If I may say so, however, it would be very well worth while paying attention to what our hon. and learned Friend the Member for Torridge and West Devon (Mr Cox) has said. I urge the Secretary of State and his fellow Ministers to try to work out a form of words that will avoid the trap he pointed out, but that deals with the practical problem of our courts being overburdened with footling judicial review cases. That can be done in a sensible way that does not attract the derision of the courts, and I urge my right hon. Friend to have another think.

[Chris Grayling]

We thought carefully about how best to address that issue, and the original clause was straightforwardly designed to set out the position when a case is brought on a technicality—a procedural defect. For example, in a number of cases people have argued that the format of the consultation was not handled appropriately, or perhaps a Minister or official indicated that the consultation would take place in a particular form, and that was used as the basis for a judicial review. If the official promise was to hold a four-week consultation but the Government chose to hold a three-week consultation, and a judicial review was brought on the basis that we did not fulfil our promise about the format of the consultation, the frustration is that that would have made no difference to the final decision, yet the case was brought none the less. Often, the case will be struck out, but not before taxpayers’ money and huge amounts of the time of Government officials and lawyers have been spent on bringing, defending and dealing with it.

[Sir Edward Garnier]

I agree with what my right hon. Friend is attempting to do, but I suspect he is trying to pot the wrong ball. Suppose he allowed himself to step back a bit from “exceptional public interest”—a moderately nonsensical expression, if I may say so—and consider the issue from a different angle. He will come at the right answer, which is the political answer that he and I want to achieve, and the Treasury answer that he has been invited to achieve, and we can then adjust the system of judicial review so that footling, silly cases that for some reason may have slipped through the net—

[Mr Speaker]

Order. I say to the hon. and learned Gentleman with great respect that the intellectualism and erudition of his intervention are equalled only by its length.

--- Later in debate ---

[Sir Edward Garnier]

What a most unusual admonition. I think the Lord Chancellor understands my point, and I hope I am not ruining the point that my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox) has already made. However, I encourage the Lord Chancellor to have one more think about this issue, because at the moment I am not prepared to vote for the Government on it. I will abstain rather than vote against the Government, but I urge him to think about some way of bringing me into the Lobby.

[Chris Grayling]

Let me give an example of one consultation response that we received when we put forward our thoughts about the changes that are needed. A group of local residents who were challenging a planning decision formed a limited company, with a small number of directors each paying £1 to the company funds. The respondent considered that by doing that the directors aimed to avoid any adverse cost consequences if the challenge was unsuccessful, and that could have meant significant costs to the taxpayer in terms of defendant legal costs that might otherwise have been recovered from a losing claimant. The respondent also said that other local residents were horrified that that small group could hold up democratically agreed development at such small financial risk to themselves.

There are two parts to that example. First, there is the financial element, and one thing I would expect us to do in the consultation is consider the use of shell companies—a shell company was used in the much discussed Richard III case. There is also the point about exceptional public circumstances. I listened carefully to and talked after the last debate to my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox), who suggested possible forms of words to use. We looked at that option and discussed others, and decided that the exceptional public interest threshold best achieved the goal. It may not have existed in legislation until now, but that is no reason for it not to exist henceforth. These are straightforward terms in the English language, and we are simply setting the bar one step higher than public interest. A routine matter can generally be deemed to be of public interest, and we are discussing introducing an exceptional level to that.

--- Later in debate ---

[Sir Edward Garnier]

One of my problems is that the Secretary of State is trying to prove the general from the particular. We both lived through the Richard III case, and we can all learn from that, but it is not the case to build his case upon. I happen to think that the Richard III case permission hearing—it was all on paper—was wrongly decided, but that is by the way, because the eventual divisional court decision was in favour of the Government. However, I urge him not to be persuaded by the facts of that case, which could persuade someone to reach a conclusion similar to his, but to look at the wider picture and to think about what our hon. and learned Friend the Member for Torridge and West Devon said about exceptional circumstances. He should try to get at the problem that way, rather than banging his head against the wall, as he currently seems to be doing.

[Chris Grayling]

I do not accept that I am banging my head against the wall. I think we have struck a sensible balance. We have seen important development projects delayed by judicial reviews brought on technicalities. It is important that judicial review not be used as a tool for delay, rather than a genuine way of holding public bodies to account.

I want to tackle head-on what the hon. Member for Hammersmith said about the secure college. The youth detention system is not delivering the results the country needs. In the small units in secure children’s homes, in the larger units in secure training centres—where teenage boys and girls sit side by side in the same classroom, let alone the same institution—and in youth offender institutions, the performance in terms of reoffending is unacceptable: about 70% in each of those three institutions. That is not the way forward.

We are seeking, simply and straightforwardly, to create an environment that strikes a balance: a critical mass of curriculum and skills development—we cannot, in a small unit, deliver a building skills workshop alongside a literacy, numeracy and computers skills centre—and an environment that recognises that the people who end up in detention are often troubled, challenged and from the most difficult circumstances. I am seeking, simply and straightforwardly, to take away the iron bars from the windows and create an environment that is more supportive, more educational and more likely to turn their lives around. I want to create a system that is run by educationists, not simply prison officers, and that has every chance of delivering a better outcome.

I have been deeply disappointed by the lack of imagination from the Opposition, who have opposed these proposals but said nothing about what they would do—not an unusual feature of their behaviour. We have heard no fresh ideas on how to deal with this very real challenge. All they do is oppose, oppose, oppose. Given the exorbitant cost of these small units, our proposals would save several million pounds a year, although they would require a big capital investment. The Opposition have not said how they would cover the savings we will generate by harmonising the estate to deliver that critical mass of education at an affordable price, and in a way that will be more nurturing and supportive of young people.

From the Labour party, we have heard no answers, only opposition, opposition, opposition. It is not fit to govern. It is a party without ideas and without direction. It wrecked the country before, and it would wreck it again. That is why our reforms are so important and why we need to progress the Bill and our other measures.

Social Action, Responsibility and Heroism Bill

Lord Garnier Excerpts

Monday 20th October 2014 Commons Chamber

[Mr Vara]

As the hon. Member for Hammersmith (Mr Slaughter) said, the issues were debated at length in Committee; indeed, notwithstanding our very thorough debate on the Bill, three sittings were left spare. Given the track record of the Labour Government, the Opposition’s claim that the Bill is unnecessary is extraordinary.

The hon. Members for Hammersmith and for Barnsley Central (Dan Jarvis) have tabled several amendments in relation to clauses 3 and 4. Let me respond first in relation to amendment 5, which would remove clause 3 from the Bill, and explain why it is important for the clause as a whole to be retained. I will then deal with the other amendments.

Clause 3 provides that a court, when considering a claim for negligence or breach of a relevant statutory duty, must have regard to whether the defendant, in carrying out the activity in which the alleged negligence or breach occurred, demonstrated a generally responsible approach towards protecting the safety or other interests of others.

The core aim of the clause is to provide reassurance to ordinary hard-working people who have adopted a generally responsible approach towards the safety or other interests of others during the course of an activity that the courts will always take that into account in the event of something going wrong and their being sued. We also hope that, by showing them that the law is on their side, the clause will give them greater confidence in standing up to opportunistic and speculative claims.

The need for that measure is amply illustrated by the evidence provided to the Committee by, for example, voluntary organisations and the emergency services. The damaging effects of the fear of litigation on people’s willingness to volunteer, and the propensity of some involved in accidents to bring opportunistic and spurious claims, were emphasised.

I am sure that the House will be surprised and indeed appalled by the example given by the Cheshire fire and rescue service, which has been sued by passers-by who have tripped over hoses being unwound by firemen to extinguish a fire. Those rescue workers were clearly acting in an emergency and their priority was to reach anybody who might be inside a burning building—[Interruption.] Opposition Members may smile and laugh, but that case is absolutely true.

The Government believe that it must be right in such cases to require the courts to take into account the general approach of the defendant towards safety during the course of the activity in question.

[Sir Edward Garnier (Harborough) (Con)]

I am both fascinated and amazed by the hosepipe case. Does my hon. Friend know what happened to that claim?

--- Later in debate ---

[Mr Vara]

My hon. Friend will appreciate that hypothetical examples are somewhat redundant, given that I mentioned earlier the independence of the judiciary, and that it is for the courts to decide on the facts of each case. I cannot stand at the Dispatch Box and predict specific circumstances. It is for the court to take account of the specific facts in a specific case.

We do not consider that the clause will be misinterpreted by the courts or the public as somehow excluding people who did in fact have regard to their own safety or other interests, perhaps in the split second before they dived in, but decided to intervene anyway. Nor do we think that it would be interpreted as sending a signal that members of the public should recklessly expose themselves to danger. We think that the wording and intention of the clauses are clear, and, on balance, we do not think that the amendment is necessary. I hope that on the basis of my explanation, the hon. Member for Hammersmith will be persuaded to withdraw the amendment. In the event that he wishes to press amendment 5, which would delete clause 3, I would urge the House to reject it.

[Sir Edward Garnier]

rose—

[Mr Speaker]

Ah, Sir Edward Garnier.

[Sir Edward Garnier]

I do not know whether it is “Ah, Bisto” or just “Ah”, but thank you, Mr Speaker.

[Mr Speaker]

Ah, in a state of eager anticipation.

[Sir Edward Garnier]

You should hold your horses, Mr Speaker.

All of us who have practised as lawyers, and my hon. Friend the Minister is one such, have had to pick up a duff brief from time to time, and I am not entirely sure that it is fair to pin upon my hon. Friend the difficulties in which he finds himself in trying to explain this Bill. I was rude enough about it on Second Reading, and my hon. Friend was gracious enough politely to refer to my concerns. Both he and I were fortunate that I was not on the Committee dealing with the Bill, but it is fortuitous that I happen to be here this afternoon to invite those listening to, or reading the debate in due course, to read into this brief set of remarks—for the second time when I speak, I notice my right hon. Friend the Secretary of State finds it convenient to leave the Chamber, but there we are—what I said on Second Reading, because I do not think anything has been done to the Bill since Second Reading to alter my mind about it. I do not take a trade union view. I do not take a cataclysmic view of the sort expressed by the Opposition spokesman that this is a Bill designed to undermine workers’ rights, or whatever it may be. I just think that it is a particularly silly piece of legislation. If I am to be rude, I might just briefly explain why.

I can understand that clauses 2 to 4 provide the basis upon which the court exercises its consideration in clause 1. So when considering a claim that a person was negligent or in breach of a statutory duty, it can take into account, or, as it says in the Bill, “have regard to” what is set out in clauses 2, 3 and 4. But I am not at all sure, and I wish I was in a position to be convinced by my hon. Friend, that were a court to have regard, as it is required to by the legislation, that it would be in a better position than that of a court dealing with the case now, given the state of the common law and the existing statutory provisions.

Clause 2—I speak generally to the amendments—invites the court to have regard to whether the person, presumably the defendant,

“was acting for the benefit of society or any of its members.”

I would be interested to know whether that is a matter of law or a matter of fact. Sometimes a judge is required to rule as a matter of law that something is or is not in the public interest. Sometimes that decision can be informed by evidence, but by and large it is a matter of law on which the judge is required to make a decision. I appreciate that we are dealing here with judge alone cases; we are not dealing with judges and juries. But the judge will have to separate his or her mind into the fact-finding part of his brain and the law-deciding part of his brain. It is not difficult, but it has to be done. If we are to be clear about what the Bill is meant to do, we need to know whether a benefit of society or any of its members is a matter of law or evidence. Again, how does that really affect the current state of the law?

Clause 3 states that the court must also have regard to

“whether the person, in carrying out the activity in the course of which the negligence or breach of statutory duty took place, demonstrated a generally responsible approach towards protecting the safety or other interests of others.”

We heard a degree of teasing from the Opposition about the “generally responsible approach”, but I am afraid that the issue is a bit too serious for teasing. I want to know—it is not clear—whether evidence of that responsible approach is to be garnered from one’s lifetime as a member of a fire service or ambulance service, or as an individual, a school teacher or whatever it might be, or by and large from the occasion on which the negligence is alleged to have taken place.

--- Later in debate ---

[Karl Turner]

Bin it!

[Sir Edward Garnier]

Not quite that.

Between now and the Bill’s arrival in the other place, I urge Ministers and the very bright lawyers and policy assistants at the Ministry of Justice to have another think about it. At the moment, it is a silly Bill, and I do not like being party to the passing of silly legislation, no matter how well motivated it is. Having said all that, I apologise to my hon. Friend the Minister because he is a decent, honest and great Justice Minister; it is just his bad luck that he was holding the parcel when the music stopped.

[Mr Slaughter]

I will take one of the hints from Government Members—I am not going to encourage more than one vote in relation to these matters. I do not think I can improve on what the hon. and learned Member for Harborough (Sir Edward Garnier) has said, very gently, but very persuasively and firmly, about this Bill. I can see from the Minister’s demeanour that he is as embarrassed by the Bill as, is almost everybody else in the House.

I do not know whether the Minister has had an opportunity to look at the Law Society’s briefing, and neither do I know whether that briefing is a retaliation for his slightly ill-tempered treatment of the Law Society witnesses in Committee, but it puts the icing on the cake of what we have heard from the hon. and learned Gentleman. It points out that the Bill will impact not only on the matters that we have been discussing but

“on the selling of financial products, on the rights of children in care, on property transactions, on insurance transactions; indeed, an endless list that will include every sector of industry, every area of public activity and every kind of personal interaction outside marriage and criminality.”

It raises the issue of

“how evidence of heroic state of mind will be demonstrated.”

It says that the Bill

“seeks to influence judicial decision-making which the Society believes is inherently wrong.”

Those are very trenchant and well-made criticisms of the Bill.

I am afraid that the more one examines the Bill, the more it seems, notwithstanding the amendments we have tabled, that it is almost irreparable—that it is, as the hon. and learned Member for Harborough said, a silly Bill that it would be better to strangle before it gets on to the statute book.

Social Action, Responsibility and Heroism Bill

Lord Garnier Excerpts

Monday 21st July 2014 Commons Chamber

[Chris Grayling]

That is very much my aim. I pay tribute to my hon. Friend’s constituents, and indeed to her. I know that she spent time helping her constituents at the weekend. I saw the television pictures of what happened in her constituency, and I am sure that we all send our good wishes to the residents of Canvey Island who have experienced such a sudden and unexpected turn of events. Considerable damage and great disruption were caused to the island, and I pay tribute to everyone who has been involved in trying to sort things out. Of course, such people should always feel confident that if they do the right thing by, for instance, trying to unblock a sewer, yet something goes wrong, it is not their fault but a result of their trying to do the right thing for the community. The balance of probability should be that the law is on their side, and that is what the Bill will achieve.

[Sir Edward Garnier (Harborough) (Con)]

Everything that we have heard so far is entirely worthy, and no one would wish to gainsay or criticise the constituents of my hon. Friend the Member for Castle Point (Rebecca Harris), but I am a little puzzled, because I cannot find, in my head or my heart, a practical difference that the Bill will make to the current law. I wonder whether my right hon. Friend could give me a few examples.

[Chris Grayling]

The key thing that the Bill does, in legal terms, is lay down a set of principles for the courts. As my hon. and learned Friend knows, there have been a number of examples over the years in which Parliament has set out principles and allowed the jurisprudence to evolve from them. However, this is not just about what happens in the courts; it is also about what happens outside the courts. It is about the decisions to sue that may or may not be made. It is about the small business that gives way to a spurious claim, believing that there is a risk in defending it. The Bill is designed to send a powerful message, inside but particularly outside the courts, that if someone is going to take legal action, there is clear visibility of the law, and the law will clearly not be on the side of a person who is trying it on. That is what we are trying to achieve.

Many of the claims that are represented by the 30% increase are doubtless valid, but at least part of that rise must be attributed to an increasingly litigious climate, spurred on, as I have said, by personal injury firms that are quick to cash in by advertising their services on television and radio, through unsolicited and often deeply irritating and upsetting telephone calls, through posters on buses, and through other marketing techniques. We have focused firmly on ensuring that in future it will be much more difficult for spurious, speculative and opportunistic claims to succeed.

--- Later in debate ---

[Chris Grayling]

The hon. Gentleman will have to let me finish my speech and decide in the round, but I can assure him that small businesses share the concerns I have been setting out. They believe the law needs to be more clearly on their side, but I will come back to the heroism piece and the social responsibility piece because these are important parts of the Bill as well.

We have focused on trying to ensure that we clamp down on the no win, no fee environment. In 2010 Lord Young published the “Common Sense, Common Safety” report, drawing attention to the fact that businesses were operating their health and safety policies in a climate of fear, and that the no win, no fee system introduced by the Labour party had given rise to the perception that there was no risk in starting litigation and it encouraged speculative claims. A whole industry had grown up around that.

Since that report was published, we have introduced a wide range of measures to tackle these damaging effects. We have transformed no win, no fee deals, so lawyers can no longer double their fees if they win at the expense of defendants or their insurers. We have banned referral fees paid between lawyers, insurance claims firms and others for profitable claims. We have reduced by more than half the fees lawyers can charge insurers for processing low-level personal injury claims. We have banned claims management companies from offering cash incentives or gifts to people who bring them claims. We have changed the law to enable companies that breach claims management regulation unit rules to be fined. We have also helped remove the fear of being sued for breaches of strict liability health and safety duties by introducing changes last year through the Enterprise and Regulatory Reform Act 2013 to prevent claims for damages from being brought under health and safety regulations. In addition to these measures, we are currently taking action through amendments to the Criminal Justice and Courts Bill to extend the ban on offering inducements to include things such as iPads. I do not think they should be offered as a reward by those who drum up business in order to pursue personal injury claims. Together with other provisions in the Criminal Justice and Courts Bill requiring the courts to dismiss fundamentally dishonest claims, this will root out the insidious and damaging bad practice and unacceptable behaviour on the part of some claimants and their lawyers that has tainted personal injury claims in recent years.

[Sir Edward Garnier]

I am probably being very obtuse, but everything my right hon. Friend has said over the last two or three minutes is undoubtedly true, yet what I do not understand is how clauses 1, 2, 3 and 4 change what is already in place.

[Chris Grayling]

They do two things. They consolidate the law, which exists in fragmented places around past legislation, so it is very clear what the law says, and they provide additional protection, particularly for volunteers, but, above all, they send a signal from Parliament to the courts, in the way that past legislation also has, and set out a series of principles off the back of which the courts will evolve a jurisprudence. They also send a powerful message to those who never get near the courts and who may give in to claims and currently do not feel the law is on their side—I can assure the House that they do not feel the law is on their side—that actually they can stand up and defend a claim in the knowledge that Parliament has very clearly said that the balance in the courts should be in their favour. So this is as much about sending a message outside the courts as inside the courts.

Although this Bill focuses on three issues, as I have said I do think that clause 3—the responsibility piece—has a particular importance in ensuring we provide proper protection for small businesses. I have talked to countless business groups and employers who tell me how the compensation culture is tying their business in knots. Employers might do the right thing and put in place sensible procedures, but then someone does something daft and the employer still finds themselves facing a damages claim. Of course sometimes that claim will have a genuine basis, and of course sometimes it needs to be recompensed in the courts, but if we are to achieve our goal of supporting business and enterprise and ensuring we continue our success in creating new jobs, we have to make sure the law is properly balanced.

I recognise that worries about liability can arise in other circumstances, too, particularly in the voluntary sector, and let me now turn to the other clauses that address those concerns. In a survey carried out by the NatCen Social Research and the Institute for Volunteering Research, worries about risk and liability was an issue cited by 47% of those questioned who were not currently volunteering. That study was carried out over the course of 2006-07, but the more recent insightful reports by Lord Young and Lord Hodgson concluded that this remains a real issue for would-be volunteers. Indeed, in the Queen’s Speech debate we heard from a number of hon. Members who reinforced that message from volunteering groups in their constituencies. It has been confirmed by Justin Davis Smith, the executive director of volunteering and development at the National Council for Voluntary Organisations, who said when we announced our plans that there is

“a great concern about risk…anything that can be done to break down barriers to people getting involved in their communities is very welcome.”

I say to my hon. and learned Friend the Member for Harborough (Sir Edward Garnier) that it is precisely for those people that we are sending one of the signposts in this Bill.

--- Later in debate ---

[Sir Edward Garnier (Harborough) (Con)]

I confess that I am no enthusiast for this Bill, but if I was ever to be persuaded to change my mind, the speech of the right hon. Member for Tooting (Sadiq Khan) would go a long way to doing so. It was a rather snide and unnecessarily cheap speech, if I may say so, but it pains me to say that I largely agree with its thrust.

[Sadiq Khan]

On a point of order, Mr Deputy Speaker. Particularly bearing in mind where I think the former Solicitor-General is going in his speech, is it not the practice for someone who has made a speech to stay for at least the next two speeches to hear other people’s contributions?

--- Later in debate ---

[Mr Deputy Speaker]

Order. Sir Greg, come on. Not only can you do better than that, but we are certainly not going to waste our time discussing it.

[Sir Edward Garnier]

That was very interesting. I have absolutely no doubt that my right hon. Friend the Secretary of State wanted to hear every word I am about to say, but he has other pressing public duties to attend to. No doubt, he will read the whole of this afternoon’s debate in the Official Report in due course.

One good reason for speaking in this debate is to give me an opportunity to thank my hon. Friend the Member for Ruislip, Northwood and Pinner (Mr Hurd) for his work as a Cabinet Office Minister, particularly on the voluntary sector. He worked extremely hard, with precious little thanks, and was content to do so, despite the fact that all he did achieved, sadly, very little public profile. At least on this occasion, we can thank him very much for all he did. I trust that it will not be long before he is back in government again.

As I said at the outset, I am not hugely enthusiastic about this particular piece of legislation. I am concerned that what the Secretary of State said does not reflect the long title, which states that it is a Bill:

“To make provision as to matters to which a court must have regard in determining a claim in negligence or breach of statutory duty.”

Most of what he said had to do with sending out messages. We all need to send out messages from time to time—sometimes to ask for help, and sometimes to ask people to pay attention to what we are trying to do. In so far as it went, his speech was no doubt well intended, but it did not, if I may say so, condescend to deal with the Bill as a potential piece of law. If we are to pass or make laws, they must be coherent. Although I entirely agree with all the sentiments that he uttered this afternoon about reducing the so-called health and safety culture, reducing the easy acceptance of the only answer to a problem being to sue and dissuading ambulance-chasing solicitors from doing this, that or the other, I regret to say that I do not agree that this particular Bill will achieve that.

I do not know how many people who are intent on bringing an action, if they are not lawyers themselves, think about pieces of legislation. Let us hope that I am wrong and my right hon. Friend is right, and that when the Bill is enacted, copies of it will be plastered all over doctors’ waiting rooms and other public places, so that no citizen will be tempted to bring a spurious claim.

I would be interested to hear how many High Court or county court actions would have been decided differently had the Bill been in force. It is perfectly true to say that the Compensation Act 2006 covers many of the areas of conjecture that are covered by the Bill. I am not persuaded that the Bill covers any new territory.

[Sadiq Khan]

The hon. and learned Gentleman is being very generous. I hope that my comments will be helpful. The impact assessment that accompanies the Bill states in paragraph 17:

“Both the possible reduction in case volumes and the size of any compensation payments are unknown, but are likely to be small.”

[Sir Edward Garnier]

That is, no doubt, what the impact assessment says. Whether that justifies the bringing into law of the Bill, I rather doubt.

I spoke about the Bill before having read it on the Thursday of the Queen’s Speech debate. I teased the Secretary of State for Communities and Local Government rather rudely by inviting him to provide a definition of “heroic negligence”. He heroically tried to provide me with such a definition, but he did not do so. That is not surprising, because I am not entirely sure that there is such a thing.

I was interested in what my noble Friend Lord Faulks, the Minister of State at the Ministry of Justice, said on 9 June in the debate on the Queen’s Speech in the other place. He said that the Bill will not change the existing overarching legal framework or leave victims without protection, but that it will provide reassurance and send a strong signal to the courts. To quote directly, he said:

“They will still need to look at whether a defendant met the appropriate standard of care in all the circumstances of the case.”—

I say, in parenthesis, that that is what they do already—

“Nor will it introduce blanket exemptions to civil liability. There is an important balance to be struck between encouraging participation in civil society and being mindful of the impact that careless or risky actions could have on the very people that the defendant was trying to help. The Bill is not about removing protection and leaving victims without proper recourse in those circumstances. However, it will give valuable and needed reassurance to a wide range of people and send a powerful signal that the courts will take full account of the context of a person’s actions when determining a negligence claim.”—[Official Report, House of Lords, 9 June 2014; Vol. 754, c. 132.]

I do not think that anybody in either House knows more about the law of negligence than my noble Friend Lord Faulks, who has 40 years’ experience at the Bar dealing predominantly with cases involving negligence and public authorities, such as fire authorities. Reading between the lines of what he said—he will contradict me if I have got this wrong—he does not have a huge amount of enthusiasm for the Bill. However, I may have misread what he said.

The Bill is more like an early-day motion than a proper statute. I say that because, as the Secretary of State admitted, it is predominantly there to send out a message—a strong signal. As I have had many opportunities to say in my 22, 23 or 24 years in this House, we should legislate not to send out signals or messages, but to make good black-letter law, so that the courts know what the law is and can apply it, and so that the legal professions know what it is and can advise the public on it.

My concern is that the contents of the Bill have been within the common law and the ambit of the court’s appreciation for years and years. In 1954, in the case of Watt v. Hertfordshire County Council, Lord Justice Denning, as he then was, spoke about the balancing act performed by the court when people intervene to help in an emergency, which relates to clause 4. He said:

“It is well settled that in measuring due care one must balance the risk against the measures necessary to eliminate the risk. To that proposition there ought to be added this. One must balance the risk against the end to be achieved. If this accident had occurred in a commercial enterprise without any emergency there could be no doubt that the servant would succeed. But the commercial end to make profit is very different from the human end to save life or limb. The saving of life or limb justifies taking considerable risk, and I am glad to say there have never been wanting in this country men of courage ready to take those risks, notably in the Fire Service.”

What Lord Justice Denning said is as true now as it was in 1954, as I know from the emergency services in my own county of Leicestershire, be it the police, the ambulance service or the fire service. There are plenty of brave people who will risk their own life and limb to save others.

I rather agree what my hon. Friend the Member for Bury North (Mr Nuttall) said about the last words of clause 4, which refer to an action taken

“without regard to the person’s own safety or other interests.”

I suggest, and I think he agrees, that it is much more heroic to do something having had regard to one’s own safety or other interests, and to go on and do the brave thing—rescuing someone from a frozen lake, pulling them out of a burning building or whatever it might be—despite having thought about those interests. For goodness’ sake, if the Bill is to become law, the least we can do is to remove those last few words of clause 4. Even if it were difficult to work out in law what heroic negligence actually was, we would at least have made that clause a little better.

Nobody will be thanked, least of all a Government Back Bencher, for making a rude speech about a Government Bill, but from time to time, even on a hot day when I would rather be somewhere else, I find it necessary for this House to introduce a degree of common sense into a Bill before the other place gives it a thorough grilling. Far too often, the laws that we pass are the laws of the unintended consequence, and I have a horrible suspicion that if the Bill becomes an Act as it is currently drafted, it will be the subject of derision and confusion, or that even if that does not happen, it will fall into disuse.

I urge my hon. Friend the Minister to take my remarks in the spirit in which they are intended. I really do share with him and my right hon. Friend the Secretary of State the aims that the latter set out quite a few times— to prevent the abuse of the health and safety culture, to reduce spurious litigation and claims and so on. If I may say so, though, passing a Bill that has a hideous resemblance to an early-day motion rather than a proper Act of Parliament is not the way to do it.

I hope that the Bill will not be the subject of a Division this evening, because I cannot support it. If the Opposition seek a Division I will not join them in the lobby, because I found the manner in which the right hon. Member for Tooting made his speech unattractive, but that is a matter for him. We need to take the Bill away and give it a thorough scrubbing over the summer holidays.

Criminal Justice and Courts Bill

Lord Garnier Excerpts

Tuesday 17th June 2014 Commons Chamber

[Yasmin Qureshi]

Although we talk about democracy, bad laws have been created, and we cannot wait five years until the next election for such laws to be changed. I say with respect to the hon. Gentleman that that would be completely wrong. If an election takes place tomorrow and a bad law gets passed, are you really saying our people should have to wait five years and change the Government?

[Sir Edward Garnier (Harborough) (Con)]

I think I am getting a little confused, and it may be entirely my fault. I was under the impression that judicial review was about challenging in court the method by which the decisions of public authorities and the Executive had been arrived at. The judicial review court does not say that a decision was right or wrong; it criticises the process. So there is no question of a court repealing legislation, as the hon. Lady seems to be implying.

[Yasmin Qureshi]

I entirely agree with that. Those of us who have been practitioners of law—a few such Members are present—will know that since coming into existence judicial review has been revolutionary for our country. We do not have a written constitution, and Lord Woolf has said:

“In our system, without its written constitution embedded in our law so it can’t be changed, judicial review is critical”

and the Ministry of Justice is showing a

“remarkable lack of concern for the precision of the facts”.

You might say, “Well, maybe Lord Woolf has an agenda here because he’s a lawyer and perhaps he wants money to be available,” but I am sure that highly respected individuals such as Lord Dyson and Lord Woolf, who understand the issue about the public purse as well legal matters, would not be saying these things if they did not believe that these parts of the Bill are fundamentally wrong.

In the 21st century, when we have now got a society that is fairer and kinder to its people, it is sad to have a go at people who are challenging the might of the state. Local authorities, institutions and Departments are still more powerful than the individual litigant or even pressure groups. You may not agree with a pressure group’s policy, but they are not as strong as the might of the state, and we should always have equality of arms. That is one of the fundamental principles of our law. You cannot have one side—local authorities and Departments—with all the money at its disposal and the best legal brains available against the ordinary person on the other side who has none of those benefits, or even pressure groups, who often do not have enough money to be able to spend hundreds and thousands of pounds on top barristers. They therefore cannot afford to lose.

We have to have parity of arms, instead of the state effectively using this opportunity to strangulate and stop the individual—the little person—or even the pressure group, many of which represent a group of our people who are interested in an issue. Pressure groups do not exist just for themselves: they are there because a whole lot of people in the country object to something or feel that there is a problem with an issue. They do not have the resources and they are being strangulated, yet the hand of the state is being strengthened.

I am surprised that a Conservative Government are trying to do this, as they have always taken pride in protecting liberties. What you are doing through all the various provisions and the changes being made to the judicial review, however, is effectively preventing the ordinary person from challenging the decision.

We say that judicial review will somehow make civil servants or public officials think, and wonder whether they might be challenged. Well, I think that is right. In a proper democratic system, local authority or state civil servants should be thinking about the effects of their actions. They should not be above the rule of law. They should be thinking about whether everything is right or not.

As a lawyer who has done some judicial review cases in my life and as somebody who worked in the Crown Prosecution Service as an in-house lawyer, I think it is right that a decision made by a prosecutor should be subject to challenge. When I am making my decision on whether a case should or should not proceed, it is right that that should be able to be challenged, because that would make sure I did my job properly as well as holding me to account. That is very important in our system. Civil servants and local authority officials absolutely should have to look over their shoulder to see whether they are making the right decision, because at the end of the day they are paid by the state and they are supposed to represent and govern our country in a proper way. If they are acting properly, professionally and honestly, they have nothing to worry about from judicial review. Only people who are not acting properly should be worried about judicial review.

--- Later in debate ---

[Sir Edward Garnier]

My hon. Friend has obviously done a lot of research. He mentioned at the outset that a large number of defendants convicted of this type of crime had not received a custodial sentence. Has he done any analysis into the facts on which those people were convicted?

[Nick de Bois]

It is difficult to establish from 16,000 cases exactly what went on, but I was intrigued by the remarks of the Mayor of London, who was most concerned at the high number of people in London committing multiple offences who were still receiving cautions or community service orders, as shown by the report from his office for policing and crime. To answer my hon. and learned Friend’s question, that was far enough for me to go to challenge the imposition of the guidelines, which do require sentencing.

--- Later in debate ---

[Sir Edward Garnier]

I broadly agree with what the hon. Member for Islington North (Jeremy Corbyn) said, but equally I have agreed with much of what other people have said. The short response to the problem that we have set ourselves is that we simply do not know the answer, and we are struggling to find it by passing legislation of one sort or another. Despite the enthusiasm of my hon. Friend the Member for Enfield North (Nick de Bois), I am not at all convinced that the new clause provides us with the answer in discouraging youngsters from carrying knives; he concentrated mostly—in fact, entirely—on knives.

I am not persuaded either that the default position, as possibly indicated by the hon. Member for Islington North, is that a community sentence is the right answer. There will be cases where it is imperative that the offender should be sent to prison, and for a very long time, but by and large that will be when the knife has been carried in order to commit a crime that is then carried out. The Stephen Lawrence case ended up with murder. Other cases have ended up with crimes such as those under section 18 of the Offences Against the Person Act 1861. Serious offences are committed by knife carriers, but they tend to be convicted and sentenced for the greater crime that they go on to commit with the knife.

As I said, my hon. Friend the Member for Enfield North argued his case with huge enthusiasm. I suppose it is possible to be enthusiastically right. I also suppose that it is equally possible to be enthusiastically mistaken, and it may be possible to be enthusiastically wrong. Perhaps we need to be a little more understanding of the absence of certainty in what we are advocating or proposing.

My hon. Friend said that one in four offenders had not received a custodial sentence for possessing a knife. Of course, we do not know—he did not know—what had led those people to be brought to justice and convicted. He was not able to tell me what the facts of the case were, what the profile of the defendant was, what the mitigations were, or the surrounding circumstances that led the court to give a long custodial sentence. Until we know those things, we really cannot make an intelligent assessment of whether it is appropriate to give somebody a minimum sentence of six months if he is over 18 or four months’ detention and training if he is between 16 and 18.

I am also concerned that new clauses 6 and 7 concentrate not only on knives or “bladed articles”, but on “offensive weapons”, so a whole new swathe or category of offenders would be caught and possibly subjected to minimum sentences, removing the discretion of the judge to deal with the case based on the facts. A judge in a given case may well think it appropriate to give someone carrying an offensive weapon for the second time a custodial sentence, possibly for much longer than six months. There is a let-out, however, in the mandatory sentencing arrangements passed over the past decade or so; under new clause 6, new section (2B) would allow the mandatory sentence not to be passed if there are circumstances that

“relate to the offence or to the offender, and…would make it unjust to do so in all the circumstances.”

We simply do not know how that is going to bite on this particular set of offences.

I understand that the Government Front Benchers will abstain on the new clause. If it is accepted, I urge the Government to be cautious and take into account my view that most of the difficulties involving the possession of knives are caused not by those over the age of 18, or even by those between the ages of 16 and 18—although some are—but by much younger teenagers, who are not caught by the new clause. Had my hon. Friends addressed that point, I might have had a little more sympathy with what they are no doubt genuinely trying to achieve. However, what we have here is neither fish nor fowl.

I urge the Government not to be swept up by the enthusiasm of some of my well motivated hon. Friends. If we are to pass legislation and amend the criminal justice provisions that deal with the possession of an offensive weapon or a bladed article, a lot more thought needs to go into it before it hits the statute book.

[Heidi Alexander]

It is a pleasure to follow the hon. and learned Member for Harborough (Sir Edward Garnier). I share some of his concerns, but not all of them, and I have arrived at a slightly different conclusion. He is right to say that there is a degree of uncertainty, but one of the things we need to consider when deciding how to vote on the new clause is the message it sends not just to those who may be caught up in knife crime, but to the victims of knife crime and their families.

Like the hon. Member for Enfield North (Nick de Bois), I represent a London constituency and I know how our communities are scarred by the use of knives. Many of my constituents live with loss as a result of knife crime. The House needs to demonstrate how seriously we take the issue with regard to not just sentencing, but, as the hon. Member for Cambridge (Dr Huppert) said, all Government action to address the problem. That means preventive work as well as work at the other end of the process.

I have been a Member of Parliament for the past four years, and I have been struck when the Prime Minister has stood at the Dispatch Box on a Wednesday to talk about the fallen soldiers who have given their lives in conflicts. During those four years, I have met the families of a number of young men who have lost their lives thanks to knife crime. I do not necessarily make a comparison between the circumstances involved, but I think it is important for me to read out the names of the young men in my constituency who have been killed as a result of knives. In March 2012, Kwame Ofosu-Asare was stabbed to death in Brixton. In August 2012, Nathaniel Brown was stabbed to death in Downham. In September 2012, Kevin Ssali was stabbed as he got off a bus in my constituency. Those are the names just of my constituents; sadly, many other young people in London have lost their lives as a result of knives.

--- Later in debate ---

[James Morris]

My hon. Friend makes a powerful point with which I totally agree.

We have a responsibility in this place to support the amendment. It is the right approach. It sends a tough signal that we do not tolerate the possession of knives. There should not be a distinction between knives and guns. We need to address this scourge, so we can redouble our efforts to ensure we do not have the type of tragedies that occurred on the number 9 bus as it was coming from Birmingham towards my constituency. I support the amendment.

[Sir Edward Garnier]

The minimum for guns is five years, not six months.

[James Morris]

It is the principle, really. We can go into fine distinctions, but the principle is that a mandatory sentence sends a powerful signal about our attitude towards knives.

Prison Overcrowding

Lord Garnier Excerpts

Monday 16th June 2014 Commons Chamber

[Chris Grayling]

The overcrowding levels at Swansea jail have barely changed in the past four years. Clearly, I would like to bring down the number of people in overcrowded jails, which is why we are increasing the capacity of the adult male estate and why I will bring new capacity on stream this autumn. Of course, two years down the track we will open the first new prison in Wales for a very long time. It will be the first since Parc prison and the first to be located in north Wales—it will be in Wrexham—which will ease pressures on the system in Wales and allow us to detain prisoners closer to home.

[Sir Edward Garnier (Harborough) (Con)]

When I was a shadow prisons Minister and Labour was in government, I visited about 70 of the 140 or so prisons, young offender institutions and secure training units throughout England and Wales. Despite the best efforts of the staff, those prisons were almost universally overcrowded and full of people who were unable to get educated or rehabilitated while in prison. My right hon. Friend has set in train a programme of rehabilitation which will ensure that those who are currently in prison will not go back. Will he push on with that programme with vigour?

[Chris Grayling]

Yes, I absolutely will. We will work on rehabilitation reforms post-prison and look to improve the level of work in prisons. We will also look to continue to expand education and training in prisons. We have, for example, set in train plans to double the amount of education in the youth estate. Those things simply did not happen under the previous Government. Labour Members accuse us of warehousing offenders, but I think they were the ones who were guilty of that.

Criminal Justice and Courts Bill

Lord Garnier Excerpts

Monday 24th February 2014 Commons Chamber

[Chris Grayling]

My hon. Friend is absolutely right that the existing radio-based tagging technology has been pretty unreliable. I have seen the new generation of emerging technology in action and it provides some good options. It provides the ability to monitor a curfew or to prevent somebody who has been convicted of child sex offences from going near a school. Some offenders can actually benefit from the use of this technology. On one visit, the police showed me that they had excluded somebody from suspicion in the case of a household burglary because it was possible to demonstrate that they had not been in the area at the time.

As I have said clearly, I want to start using this technology for release on temporary licence. We have seen some very difficult cases over the past few months. The vast majority of people who are released on temporary licence commit no crimes and simply want to be reintegrated into society. However, when dangerous offenders come to the end of their sentences and have to be released on temporary licence, this technology has the potential to ensure that we know where they have been and to provide a degree of restraint as we integrate them back into the community.

The cost of the programme will depend on its scale. The technology that we are introducing to take over from the existing systems will save money. It will cost tens of millions of pounds a year less than what we have spent until now. It will be possible to extend the use of the technology to other groups, such as offenders on temporary licence, at a relatively low cost.

I want us to be ready to harness the potential of the new technology. That is why I am seeking to take powers in the Bill to enable mandatory location monitoring of offenders who are released on licence. As the technology becomes available, we will then have the discretion to be able to use it to the best possible effect to protect the public when people are released on temporary licence and, potentially, when people have committed very serious offences.

I am creating a new offence for offenders who go on the run after being recalled to custody, so that those who try to avoid serving the remainder of their sentence do not go unpunished. There will be a new maximum penalty of two years’ imprisonment.

The final provisions in part 1 deliver on a commitment that is important to me and the Prime Minister. The Bill will make it a criminal offence to possess pornography that depicts real or simulated rape. I am sure that both Houses will share my view that such images are wholly unacceptable and that it is right to close this gap in the law.

That brings me to part 2 of the Bill and how we deal with young offenders.

[Sir Edward Garnier (Harborough) (Con)]

Before my right hon. Friend moves on to part 2, will he provide an estimate of the additional costs to the prison aspect of his departmental budget that will be caused by the welcome changes to the criminal law that he is introducing?

[Chris Grayling]

The cost will build up over the next five or 10 years because, as my hon. and learned Friend knows, one cannot apply sentencing rules retrospectively. The proposals on automatic release for the most serious offences are containable comfortably within the existing prison budget and within the expected resources of the Department. Only a relatively small number of people commit the most serious and brutal offences, and those are precisely the people whom we do not want to release automatically halfway through their sentences because of the risk that they pose to the public. I am therefore confident not only that this is containable comfortably within the departmental budget, but that it is the right thing to do.

On part 2, I believe that it is right that young people who commit crimes should face appropriate punishments. That is and always should be a matter for the courts. When young people commit serious or persistent offences and there is a need to protect the public, custody is a necessary option. However, we have taken positive steps over the past three years to ensure that we deal better with young offenders who do not pose an immediate risk to society.

On becoming Justice Secretary, I was appalled to discover that so many young offenders who are released from custody go on to reoffend within a year. Currently, the rate stands at 69%. That is an astounding percentage that far exceeds the reoffending rate for adults on leaving custody. It is simply too high. We spend as much as £200,000 a year per place in some institutions, but the reoffending rate is consistently around 70%. That cannot be right, it cannot be sensible and we have to do something about it.

We must do more to help young offenders back on to the straight and narrow and ready for adult life, and high-quality education is a key part of that. Most young people who end up in our youth offender institutions or secure training centres have dropped out of school, have few or no qualifications, and do not have the skill foundations they need to leave and get into work. We must address that and do more to help them back into having real prospects of an apprenticeship or work. Otherwise, the danger of reoffending will be ever great.

At present, young people in young offenders institutions spend on average just 12 hours a week in the classroom, and latest figures suggest that more than half of 15 to 17-year-olds in YOIs have literacy and numeracy levels expected of seven to 11-year-olds. The Bill contains provisions to create what we are dubbing “secure colleges” so that we can trial a new approach to youth custody, with a stronger focus on the education and rehabilitation of young offenders, equipping them with the skills they need to stop reoffending and become law-abiding members of our society.

--- Later in debate ---

[Chris Grayling]

I have made it very clear that we must not lose transparency as a result of our reforms. In today’s world, the local paper reporter obviously will not sit through cases of this kind, because there are not the necessary resources. However, it is vital for the local media, for example, to have access to information about what happens in the courts, and we cannot allow the new process to take place behind closed doors. I am a strong believer in transparency in the courts, and we will provide mechanisms to ensure that the public have access to court decisions. That is only right and proper: we cannot have secret judgments.

Part 3 also deals with the important issue of jury misconduct. Trial by jury is a fundamental feature of our justice system, and juror misconduct can have a devastating effect, causing delays, cost, and damage to public confidence. I am clear about the fact that people should be tried by the courts, not by the internet. When an individual is before the court, the jury must decide on the basis of the evidence presented and principles of justice, not the results of a Google search. The Bill introduces a number of criminal offences in order to tackle such behaviour, based on recommendations by the Law Commission. It also deals with the publication of potentially prejudicial materials during court proceedings, on which the current law is outdated and in need of reform. I think that these provisions represent a careful balance between the right to report and publish freely, and the right to be judged only on the facts before the court, and I thank the Law Commission for its work in this regard.

[Sir Edward Garnier]

I commend my right hon. Friend on the provisions relating to juries, and on clause 39 in particular, which will raise the upper age limit for jurors to 75. That was a lacuna that needed to be dealt with. May I ask him to go a little further on age limits? Would he consider putting the age limit for judicial retirement back up to 75, because we are losing a great resource at the moment? That would not mean that everyone had to stay on until they were 75, but there are plenty of judges who could do so—[Interruption.] I will speed up my intervention, Mr Deputy Speaker. At this rate, I will be 75 before I get to the end of it. There are plenty of good judges who would like to, and who could, stay on beyond the age of 70, and I hope that my right hon. Friend will consider that point.

Offender Rehabilitation Bill [Lords]

Lord Garnier Excerpts

Tuesday 14th January 2014 Commons Chamber

[Jenny Chapman]

Perhaps, then, if that is the Minister’s attitude, he will be minded to support our new clause 5. It is reasonably worded and if he reads it carefully he might find that he can support it.

Returning to HMP Oakwood, the Government have somehow managed to build a brand new, state-of-the-art prison that seems to be failing on every imaginable front. A surprise prison inspection last year found inmates reporting that it was easier to get drugs than soap on the wings, while the inspectorate report revealed that the inexperience of staff was visible everywhere, with staff unwilling to challenge bad behaviour and many being

“passive almost to the point of collusion”.

As the report continued, indicators of levels of violence were high, there were not enough activity places and the control and supply of medication was “chaotic”. The chief inspector of prisons called the state of the prison “unquestionably concerning”. The Secretary of State was disappointingly somewhat less firm in his criticism, largely dismissing these as “teething problems”. A couple of months later, inmates managed to stage not one, but two rooftop protests. As late as last week, six months after the inspectorate visited the prison, West Staffordshire police were notified of an incident lasting through the night, apparently involving an entire wing being barricaded by inmates.

[Sir Edward Garnier (Harborough) (Con)]

I am sure it is entirely my fault for being obtuse, but could the hon. Lady try to weave her remarks about the prison into her arguments in support of the new clause because I do not see a connection?

[Jenny Chapman]

I will attempt to assist the hon. and learned Gentleman. The point is that Oakwood prison is run by one of the would-be providers of probation services.

--- Later in debate ---

[Jenny Chapman]

Absolutely not. I welcome the involvement of probation mutuals. I think that it would have been a great deal easier, less time-consuming, less expensive and less traumatic if some of those organisations had been allowed simply to get on with it without having to form themselves into new organisations. Had the Government’s initial proposal been for all trusts to be able to re-form as mutuals, using the skills, experience, knowledge and relationships that they already have, we would not have needed to engage in this debate today.

We will press new clauses 1, 4 and 5 to a vote. If the Government are so confident about what they are doing, why should they not submit their plans to proper parliamentary scrutiny?

[Sir Edward Garnier]

I will be brief because we enjoyed the speech of the hon. Member for Darlington (Jenny Chapman) for some little while. Essentially the point of difference between her and me, certainly in relation to new clause 1 and the new clauses that mirror it, is that she would like to delay the progress of the implementation of the Government’s proposals and I would like them to be implemented as soon as possible.

There has been a considerable amount of to-ing and fro-ing both across the Dispatch Box and between Members of Parliament and their constituents who work within what I loosely term the probation services, by which I mean not specifically the Government agency, but those who carry out rehabilitation services. I have recently met members of staff of the Leicestershire probation service and when I was a shadow Justice Minister I made a point of visiting a huge number of probation offices, meeting both probation staff and those who work not in the Government agencies but in the charitable sector, such as the organisations my hon. Friend the Member for Enfield, Southgate (Mr Burrowes) mentioned in his intervention. It struck me that, by and large, there was a big hole in the way we look after short-term prisoners and repeat offenders. They were released from prison unsupervised, and the sooner we start supervising these under-12-month prisoners the better for them and for their victims and society as a whole.

I can appreciate the political arguments the hon. Member for Darlington advanced. I appreciate that from her pre-parliamentary background she has an affiliation with the GMB and therefore has an interest in—

[Jenny Chapman]

indicated dissent.

[Sir Edward Garnier]

Well, I hope I have read the hon. Lady’s entry correctly. Perhaps she had better come and see me later and we can get it corrected. In any case, her party has a closer affiliation to the trade union movement than I personally have and my party has. I can therefore understand why she is advancing these arguments requesting pilots and other forms of delay mechanisms, because she does not want these measures to come to pass. I think that argument has been had and the situation now needs to be resolved, however, and I therefore urge her not to press her amendment to a Division. I am far more interested in the results we can achieve for our constituents and those offenders who desperately need the supervision they are currently not getting than I am in the political arguments.

[Sarah Champion (Rotherham) (Lab)]

Might not another reason for our pressing these amendments be accountability and wanting to see evidence?

[Sir Edward Garnier]

No doubt that might be one of the collateral reasons, but that does not undermine the point I am making, which is that we need to help these under 12-monthers as soon as possible. If we are to have further statutory brakes on the introduction of supervision, either through the national probation service or through the non-Government organisations—

[Jenny Chapman]

rose—

[Sir Edward Garnier]

I seem to have provoked all sorts of charming people. I give way.

[Jenny Chapman]

I really did not want to intervene and was trying very hard not to do so, but I just want the hon. and learned Gentleman to understand that we are not opposed in any way whatever to the introduction of supervision for prisoners who serve short sentences, but we believe there are other ways in which that could have been implemented without going through this ridiculous process that the Government are hell-bent on pursuing.

[Sir Edward Garnier]

Is it St Francis I am reminded of: “Oh Lord make me pure, but not yet”?

[Jeremy Wright]

St Augustine.

[Sir Edward Garnier]

St Augustine. I am so glad for that correction. The Minister is multi-talented.

I do not think I need to pursue my argument. I have made the point I want to make, and I understand the points the hon. Member for Darlington has made and I disagree with them. I suggest we get on and permit the arrangements to be advanced as soon as possible. I say that not out of party political animus; I say it out of a desire to see something done, having spent five years in opposition between 2005 and just short of 2010 taking an intense interest in the way in which we ran our prison system, our criminal justice system and our rehabilitation system. I also say it as someone who has sat for 12 or so years as a Crown court recorder and who had to deal quite regularly with the results of failure, and I think the time has come to stop that.

[Sarah Champion]

May I begin by apologising as I will not be able to be present for the final winding-up speeches? I mean no disrespect, but I have an outstanding parliamentary engagement I just cannot get rid of. [Interruption.] Sorry; an engagement I cannot be excused from.

Every time I have been involved in proceedings on this Bill it is as though I have stepped into the twilight zone. I was on the Bill Committee and in the Opposition debate on this issue, and from what I am hearing today, the same thing keeps on happening and I do not understand why.

I support new clause 5 and the other new clauses to which I have added my name. We are asking for a full debate in Parliament about a major overhaul of the judicial system. The safeguard of new clause 1 was previously inserted in the Bill in the other place but was removed by the Government in Committee. I do not understand the logic for doing that.

The nub of this Bill—which is not actually included in its provisions—is that 70% of the probation service will be privatised. I do not understand the motivation for doing that. I hear the arguments and I hear a lot of myths about what Labour is saying and is not saying, but the two do not stack up and I am just not hearing the evidence for making the change.

--- Later in debate ---

[Mr Llwyd]

The hon. Lady, who has taken an interest in this subject for many years, as have I, is absolutely correct. I would go a bit further and say that if we dealt with mental health problems and drug addiction, we could empty about 40% of prisoners from prisons tomorrow without any danger—had we got the safety net out in the community.

The Government are taking a drastic step without having any proven record of any possible success. Unlike with some services that are privatised, there is an inherent danger to the public in all this. I agree fully with the Opposition when they say that we want the thing tried and tested. That is not a political scam to try to stop it. I would like it stopped, but let us also be honest and say that we are where we are and we should at least see whether these plans will work. That surely is a common-sense thing to do, but time and time again, in the Public Bill Committee and in all the other debates, we have been unable to persuade the Government to pause and to think carefully about why they initiated their two pilots previously. Why did they do that if they were that unconcerned and the pilots were bound to succeed?

The Secretary of State, who drifted in and out here today, in typical fashion, has said in some debates, “You do things sometimes because they are right.” I am sure that is right, but it is a bit risky to have a messianic view of life and say, “Because they are new and are being tried now, they have got to be right. What’s right is right.” That is absolute balderdash and I am afraid he will eat those words in the next two or three years. I hope not, but there will be a danger in this system.

As we are all aware, what will be left of the public sector probation service will work with victims, hostels and offenders who pose a high risk of harm. The remaining 70% of cases—the low-risk and medium-risk offenders—will be managed by the private sector under the model that we are talking about. The point has already been made that such risks vary—they can vary from day to day or from week to week. I do not know how the system will be managed, but co-location has been mentioned. I am not sure whether that will work, but, again, it is a matter of crossing one’s fingers and hoping for the best.

There are serious concerns about the payment-by-results model, most of which I will briefly outline with regard to another amendment that would compel the Government to pilot the plans before implementing them across the board. To some relief, we find that G4S and Serco will not be coming in on this, although they do know a lot about criminality.

Under the proposals, private companies will be responsible for the majority of cases involving domestic violence, sexual offences, burglary, robbery, violence against the person and gang-related crimes. That is highly sensitive work, which clearly requires trained professionals with experience of how to deal with victims and perpetrators of such complex crimes. It is highly unlikely that the private sector will prioritise holistic initiatives such as work with victims of crime. I am afraid that it will be driven by profit rather than levels of care. Many individuals who come into contact with the probation service have one or more mental health problems. They may have suffered abuse, have substance misuse issues, literacy problems and poor educational attainment. Such people need to be signposted to the proper avenues for care and support. They are highly damaged individuals and require special attention.

The proposals will compromise public protection and provide a perverse incentive for private companies not to put resources into decreasing offending behaviour. There are also numerous possibilities for conflicts of interest, the tackling of which is the aim of another amendment that I have co-signed.

The Social Market Foundation has argued that payment by results incentivises an increase in offending. To understand that, it is important to note that the Government have decided that a private company will neither be penalised nor rewarded for an increase or decrease in offending of 3% either way. Ostensibly, that is to take account of the fact that external factors can have an impact on offending rates. In practice, however, it would mean that private companies would have to achieve a 4% decrease in offending before being rewarded. They will simply not invest that amount of money when there is no guarantee of a return on their investment. Unfortunately, it is far more likely that the companies will make a profit by delivering court orders in the cheapest way possible by opening call centres. Understandably, the National Association of Probation Officers—the experts on this—is worried, and legitimately I would say.

The hon. and learned Member for Harborough (Sir Edward Garnier) referred to the GMB union. It is a question not of union versus anybody else but of what works and what does not work. NAPO has had experience over many years, and I have already referred to its successes.

[Sir Edward Garnier]

rose—

[Mr Llwyd]

Yes, of course I shall give way, but let me make this point. Time and again, I have heard NAPO say, “If it is inevitable that we have to go down this path, let us see whether it works.” Let us pilot this system. Let it come before Parliament before the changes are effected, because, although NAPO refers to its jobs, its main concern is the safety of the public it serves.

[Sir Edward Garnier]

The right hon. Gentleman and I have many mutual friends who are members of NAPO. Harry Fletcher is a former assistant general-secretary whom we both know and respect. My point was quietly to tease the hon. Member for Darlington (Jenny Chapman) who happened to say in a parliamentary reference book that she was a member of the GMB, but she tells me that that is not the case. I was not making a substantive point but—

[Jenny Chapman]

rose—

[Sir Edward Garnier]

I do not think that we need to divert into other areas. The short point I am making is that of course there are political differences between my party and Labour over the influence of trade unions. Essentially what I want to get across is that this needs to be done because the victims and the prisoners in question need to be assisted.

--- Later in debate ---

[Jeremy Wright]

rose—

[Sir Edward Garnier]

rose—

[Mr Hanson]

I give way to my former shadow, the hon. and learned Member for Harborough.

[Sir Edward Garnier]

I think my shadow is rather bigger than it used to be. I want to encourage the right hon. Gentleman with the tedious little point that at least he and I have remained consistent over the past seven years, so why not comfort himself with that and then we can put this to a vote?

[Mr Hanson]

The point I am trying to make is that I support new clause 1 because the Government are trying to use the 2007 Act to take an approach that the then Ministers, in both Houses, rejected. I accept that the Minister believes that he has a legal basis to do this. I simply ask him to publish it, so that we can test it in due course. I am happy for the Minister to intervene, but he will have a chance to respond later. Like my hon. Friend the Member for Darlington and other hon. Members who have spoken, I remain concerned about the proposal, because I believe it is a gamble.