Like the Joint Committee on Human Rights, I have looked at the analysis put forward by the Home Office, and I am afraid that I am sceptical about the evidence, which collides with my experience and, I believe, that of

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my right hon. and hon. Friends and Government Members who have large immigration case loads. It is rare, in my experience, for constituents and their relatives abroad not to have produced the evidence first time round. Much more frequently, they produce the evidence and it is then overlooked. Time and again, my office and I face the situation where the evidence has been submitted and it has been overlooked by the entry clearance officer or has got lost. It may appear to the tribunal to be new evidence, because for sure it is new evidence to the entry clearance officer, but it is not correct to draw the conclusion that that evidence has never gone before immigration officers. Even if that is the case, the fact that a third of appeals are upheld shows that there is important merit in having such a right of appeal. To argue—I hope that the Minister does not do this—that it would be just as satisfactory to re-submit an application is, frankly, disingenuous in the extreme. I have seen constituents re-submit applications in respect of non-family cases, where there is no right of appeal, and all that happens is that the application is turned down again and they have wasted their money.

My final point relates to judicial appointments. I strongly support the proposed changes in respect of diversity. The apparently prosaic change to allow for the number of judges to be counted by full-time equivalents and not by full-time numbers will make a very important contribution to the employment of the part-time judges, typically female, at every level. Also very important are the tipping-point provisions to allow for the Judicial Appointments Commission to take into account somebody’s gender or colour if two candidates are of equal merit.

Sir Edward Garnier: Will the right hon. Gentleman give way?

Mr Straw: I am afraid that I am running out of time.

I depart from the Government on their proposals for very senior appointments—to the Supreme Court, for the Lord Chief Justice and for the heads of division. Initially the Bill included a proposal by the former Lord Chancellor by which the Lord Chancellor would sit on the appointments panel for those very senior appointments. That has been withdrawn from the Bill in place of consultation. The current arrangements, which include consultation, do not work. It is entirely legitimate for the Lord Chancellor to have a role—not the decisive role, but a role—in these very senior appointments, because what the Supreme Court is doing has very clear political consequences and what the Lord Chief Justice and heads of division are doing has very clear Executive and administrative consequences. The current Lord Chancellor may not wish to sit on the appointments panel—that is his choice—but it is important for the benefit of future holders of that office that the power should be available, and I ask the Minister to look at that again.

7.4 pm

Sir Alan Beith (Berwick-upon-Tweed) (LD): It is a pleasure to follow the right hon. Member for Blackburn (Mr Straw), a former Home Secretary who always brings a refreshing frankness to the proceedings. I do not agree with him on his last point. I think that the Government were right to move away from the idea of

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the Lord Chancellor sitting on the panel that makes the crucial appointments to the top of the judiciary. I do not think we would ever have been able to persuade anybody that that did not represent an excessive direct involvement of a politician in the process of choosing judges, notwithstanding the fact that the Lord Chancellor is involved at the end of the process.

The right hon. Member for Wythenshawe and Sale East (Paul Goggins) described the Bill as a typical Home Office—or, in this case, Home Office and Ministry of Justice—Christmas tree, but it does not contain quite as many unwanted gifts as previous such Christmas trees. Indeed, it contains many welcome things, and I want to concentrate on those that relate to the work of the Justice Committee.

I should say in passing that I very much welcome the Government’s acceptance of clause 38, which relates to the Public Order Act 1986. I noted Labour Front Benchers’ dithering on this matter, if it is indeed dithering; perhaps they will retain their past position of wanting to keep the law as it is—I do not know. From a free speech and civil liberties point of view, bearing in mind the clear statement by the Director of Public Prosecutions about what can be done without having the word “insulting” in the law, the Government have sensibly accepted an overwhelming decision in the other place.

Mr Leigh: Of course, it was in the Lib Dem manifesto, and when we can agree on things, we should agree—that is what marriage is about.

Sir Alan Beith: It is what coalition is about.

I welcome the drug-driving provisions, which I am very glad to see in the Bill, but I will turn first to family justice issues and the single family court, which I strongly welcome. There is still a problem about openness in the family courts, and the lack of it helps to feed very strong views among fathers about how private law cases are decided and among families about how public law cases are decided. That creates, or strengthens, a sense that wrongful decisions may be taken, and people do not understand the reasons for decisions. We have had some advances through anonymised judgments being brought forward, but it remains a problem.

In 2005 and 2006, my predecessor Committee argued for openness provisions of the kind that were eventually legislated for, but when they were on the statute book and we took further evidence for our 2011 report, we did not find a single witness who was happy with them. In the face of that, we were right to say that the Government cannot proceed on this basis, and they are right not to do so. However, we cannot simply abandon the issue. We have to look at more ways of spreading understanding and recognition of what goes on in the family courts and having them exposed to the pressure that public justice—open justice—applies everywhere else. There are compelling reasons why that cannot be done in the same way in the family courts, but we have to take account of the fact that the absence of transparency presents a problem.

On the delegation of functions to legal advisers, the Committee felt strongly that there must be clear supervision by a district judge of any judicial function that is being carried out by a legal adviser.

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Fine collection is one area where the Committee said that improvement was still needed. We recognise that some improvement has taken place, but there certainly needs to be more. We welcome the chasing of old debts and recognise that there is potential benefit from the private sector being drawn into this activity. However, there is not merely a loss of public revenue when fine collection is not achieved; there is a serious undermining of the justice system when people see that fines have not been paid and that those involved have got away with it.

The self-defence provisions are probably not legally necessary, but they may have some beneficial impact as regards how the police view cases of this kind. Someone who has been attacked in a terrifying way—whose house has been frighteningly invaded—deserves to be treated as a victim of a crime and have the respect accorded to such a victim even while there is some consideration as to whether there was any grossly disproportionate response on their part. The underlying purpose of the change in the law must be to get that recognition. I do not think that it will actually change the way in which any cases are decided; if I thought that it would, I would worry that it had gone too far.

My hon. and learned Friend the Member for Harborough (Sir Edward Garnier) referred to deferred prosecution agreements, on which he has done a great deal of work. My Committee took evidence from the Director of Public Prosecutions on such agreements. He saw them as an additional tool for prosecutors, but not in any way a replacement for bringing cases to court in many circumstances. However, there are clearly cases in which it would be to everyone’s benefit to take action that did not involve a long drawn-out court case, but that none the less provided restitution for the victims of fraud and perhaps enabled the continuance of a business under new management. The alternative, as my right hon. and learned Friend vividly described in referring to the Arthur Andersen case, can involve a massive loss of jobs and many other adverse consequences that are in no one’s interest.

I want to talk about the provision for non-custodial sentences, and the requirement for a clear element of punishment in such sentences. I do not disagree with that principle, but we should remember that many offenders regard community sentences as more arduous than prison sentences. On more than one occasion, ex-offenders appearing before the Justice Committee have told us that they have committed further offences because they were sick of the requirements of their community sentence and thought that a short spell in prison would be much easier. That might seem counter-intuitive—it might not be what most of us would imagine—but for plenty of criminals, a long and arduous community sentence that places requirements on them, whether it appears punitive or not, is more exacting. They would rather be sitting in prison getting three meals a day and not having a great deal to do.

This provision must not result in our administering a measure that is not the most effective way of changing someone’s life and preventing them from reoffending. We are trying to ensure that there are no more victims of a particular person’s crimes, and to turn around the way in which they behave. We should measure what we are doing in accordance with that aim. More often than not, the challenging requirements that the provision will place on the person to face up to the consequences of

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what they have done—through restorative justice, for example—to face up to a victim when that is possible, and to make effective reparation to society will be more punitive in practice than a prison sentence. We need to have an understanding of that process.

That leads me to the subject of restorative justice, which has great potential; I am glad that there is provision for it in the Bill. We all recognise that it cannot be forced upon victims, but the level of satisfaction among victims that we have seen in evidence to the Committee has been very encouraging indeed. There is also a growing public view that it makes sense for criminals to be faced with the consequences of their crimes and with the harm that they have done to others, and required to change their lives as a result.

The right hon. Member for Wythenshawe and Sale East referred to a provision that was added to the Bill in the Lords, relating to non-custodial sentences for female offenders. The Justice Committee is embarking on an inquiry into women offenders, and we have already expressed the view on more than one occasion that more needs to be done to ensure that courts have at their disposal appropriate and effective means of dealing with women offenders. Indeed, our report on the probation service, which we produced in July 2011, stated:

“The probation service’s approach—where resources tend to be directed towards dealing with offenders who present the highest degree of risk—can fail adequately to support women offenders. The approach recommended by Baroness Corston for the provision of holistic services that address all women’s needs is still a long way from being realised.”

The Government now need to include in the Bill a reminder that more needs to be done in that respect.

This Home Office and Justice Bill provides an us with an opportunity to welcome an unusually large number of provisions. There are others that will be pored over in detail in Committee. The effective implementation of the provisions on fines and on non-custodial facilities for women offenders, for example, will add to our ability to do what we are supposed to be doing, which is using the criminal justice system to stop people becoming the victims of crime in the first place.

7.14 pm

Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC): As with most Bills, there are aspects of this one that are to be commended, and others that we can argue about. The Bill contains several measures for which the justification is utterly unclear. In introducing the changes to community orders and to the law of self-defence, the Government seem to be ignoring the importance of judicial discretion, and the changes to immigration law seem very harsh. In my contribution today, I will set out the reasons for my opposition to some provisions in the Bill. I would also like to say, however, that the proposals on single family courts, on drug-driving and on judicial appointments are all excellent. The devil will be in the detail, of course, but so far so good in those areas.

Clause 28 provides for the relaxation of the ban on televising court proceedings by granting the Secretary of State the power to revoke the current rules by order, with the agreement of the Lord Chief Justice. Under the current law, section 41 of the Criminal Justice Act 1925 bans the taking of photographs, portraits and recordings of judges, jurors and witnesses in all civil and criminal proceedings. By removing that ban, I hope

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that clause 28 will broaden public engagement with the administration of justice, as well as increasing understanding of the judicial process.

Caution must be exercised, however, to ensure that proper parliamentary scrutiny is given to the detail of these plans. It is unclear to me why clause 39 should provide for any secondary legislation setting out the specific circumstances in which the Government intended to allow filming to be subject to the negative resolution procedure, hence greatly limiting the scope for debate on the topic in this place. Many groups, including Liberty, have expressed concern about the possible repercussions that could emanate from allowing for the filming of civil and criminal proceedings in their entirety. That could well lead to additional anxiety for witnesses—and in certain circumstances to some witnesses being less inclined to appear in court—as well as to the alteration of testimony.

The impetus behind the provision is, of course, welcome, but for the reasons that I have set out, the details of the Government’s plans in this area should be set out in primary legislation. If, however, the televising were limited to the judgment, as is the case in Scottish courts, that would add useful transparency and provide assistance to law commentators, to students and to practitioners.

By contrast, the proposed changes to the law on self-defence in clause 30 seem to have no justification. I do not like falling out with the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith)—the esteemed Chair of the Justice Committee, of which I am a member—but I take a different view from him on this. He will know that, under the common law, defendants are able to use reasonable force against an intruder. That defence was put on to the statute book by section 76 of the Criminal Justice and Immigration Act 2008.

The law states that a defendant may use against an intruder an amount of force that he or she believes to be reasonable and proportionate at the time, even if a court subsequently considers that that belief was misplaced. The law as it stands evidently provides sufficient defence for homeowners. Indeed, data from the Crown Prosecution Service show that, between 1990 and 2005, the service prosecuted only 11 cases in which a defendant had been charged under the current law. However, if clause 30 is allowed to go through unamended, it will allow for a defendant to use an amount of force that he or she acknowledges to be disproportionate at the time, provided that the force used is not “grossly disproportionate”.

I have prosecuted and defended many cases involving self-defence, as have other Members, and the existing law has been regarded as perfectly adequate hitherto. If ever I saw a change to the law that would open the door to vigilantism, this is it. In my surgery on Friday last, a farmer came to see me. He was a responsible, middle-aged man, and he told me that three individuals had tried to break into one of his barns to steal a quad bike. There is too much of that kind of thing going on in rural Wales at the moment—but I digress.

The farmer said, “I have a shotgun. What would have happened if I’d aimed and shot above their heads?” I had to put him right on that and he said, “But isn’t there a change in the law?” That is where we are: people think that we are upping the ante. If the purport of the clause is to raise the bar for the police and the CPS in the first place—Justice Ministers have told me that that is the case—I suppose that there is some logic to it, but

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it could well be dangerous, as my example shows. Ministers do not think that it will change anything in the court and hope that it will lead to the bar being raised in the first place, but as I have said, there is a grave danger that people will take the law into their own hands and believe that it is open season on individuals who roam on their property. The Law Society says that it will end up with greater litigation and that the present law is workable and acceptable.

Clause 31 would put into effect the provisions of schedule 15, which provide for a number of changes to courts’ means of dealing non-custodially with offenders. Part 2 of the schedule would allow courts to defer sentencing so that the offender and victim can partake in restorative justice. This is most welcome. All we need to do, as the right hon. Member for Wythenshawe and Sale East (Paul Goggins) has said, is look at the Northern Ireland model and make sure that the resources are there. It is an excellent step forward and I am pleased with it.

Recent polling conducted by Make Justice Work suggests that 70% of victims believe that they should have the opportunity to communicate with the offender so as to show them the impact of their actions. I think that that is probably right. However, the findings of a poll conducted by the British Crime Survey showed that 69% of victims who were offered a meeting with their perpetrator said no to the opportunity. The onus is now on us as individual politicians and the Ministry of Justice to increase public confidence in any proposed scheme.

The changes introduced in part 7 of schedule 15 are likewise welcomed. If passed, part 7 would ensure that all contracts made between the Secretary of State and probation trusts would require the trusts to make specific provision for female offenders, thus taking into account the particular needs of this demographic group. I pay due regard and tribute to Baroness Corston for the work she has done. The provisions in part 7 were included as a result of a successful non-Government amendment on Third Reading in the other place. I hope that the Government will accept these vital measures in this place.

Other changes proposed by schedule 15 are less welcome. Part 1 would amend section 177 of the Criminal Justice Act 2003 to guarantee that courts imposing community orders must include a mandatory punitive element. This could mean electronic tagging, exclusion orders and so on. I am at a loss to see why the Government are going further down the road of electronic tagging. Actually, I find it baffling, because the Government’s own impact assessment, published in March 2012, acknowledged that the measures could lead to an increase in reoffending as a result of rehabilitative requirements being sacrificed to make way for punitive requirements.

Part 4 of schedule 15 relates to electronic monitoring, on which the Government’s own impact assessment, dated 4 January 2012, suggests that

“the UK evidence points towards a more neutral impact on re-offending”.

It does not work. The current spending on electronic monitoring is £120 million and, as a result of this Bill, it will rise to £360 million for something that does not work—and this from a Government who seek “more for less”. Conversely, the impact assessment observes:

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“Research on supervision suggests that the supervisory relationship between the offender and the case manager plays an important role in securing compliance and promoting desistance.”

Why, therefore, are the Government now seeking to privatise that so that trained professionals will not deal face to face with offenders, which is the proper way of doing it? The Government have also proposed major changes to the probation service and I am concerned about the effects they will have.

Clause 20 would revoke a restriction listed in the Senior Courts Act 1981, thus providing for the transfer of immigration judicial review applications from the High Court to the upper tribunal.

Pete Wishart (Perth and North Perthshire) (SNP): The right hon. Gentleman will know that the Scottish Parliament passed a legislative consent motion allowing this House to legislate on its behalf, but clauses 20 and 21 were introduced at a later stage without any consultation with Scottish Ministers. This has caused great upset in the legal fraternity in Scotland, particularly those who are acting and operating in our judicial system and with particular regard to referrals to the Court of Session. Does he agree that the Government should have consulted Scottish Ministers before including clauses 20 and 21 in the Bill?

Mr Llwyd: Absolutely. We always thought that the devolved Administrations were part of the respect agenda and that the Government would consult them. I find it astonishing that that has not happened with regard to such an important matter.

On clause 20, the Immigration Law Practitioners’ Association and Liberty argue that no case has been made for the change, which will impact on almost all immigration and asylum applications. Crucially, the upper tribunal stands charged with not having demonstrated its ability to deal with the UK Border Agency’s conduct in the same way as the High Court has done. ILPA cites examples of UKBA failing to respond quickly to the upper tribunal’s orders and its failure to adequately plead its case as problems that plague many cases.

As a result, the Joint Committee on Human Rights has recommended that the Government insert further provisions into the Bill to make sure that immigration and nationality cases in which human rights such as life, liberty and freedom from torture are at stake continue to be decided by the High Court. I hope that the Government will reconsider that point.

Clause 34 would remove the right of appeal against the refusal of a visa to visit a family member, except on grounds of human rights or race discrimination. I will not retread the ground very well and adequately covered by the right hon. Member for Blackburn (Mr Straw) and others. I fully agree with them and hope that the Government will reconsider the provision, because it could be harsh in the extreme. I also agree with the Law Society and the JCHR, which argue that the measure cannot be passed in the light of the poor quality of so many decisions made by UKBA, as evidenced by the high number of successful appeals against refusals.

There it is—as always, there are some very good things, but there are some pretty poor things as well, and one hopes that many of them will be improved and some deleted in Committee.

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7.27 pm

Mr Shailesh Vara (North West Cambridgeshire) (Con): It is a pleasure, as always, to follow the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd), although, as will become apparent, I disagree with some of the points he raised. I also declare an interest as a non-practising solicitor.

I wish to direct most of my comments to clause 30, which deals with self-defence by householders in their own homes and by business people whose businesses are part of the accommodation in which they also live—principally, shopkeepers.

As far as I am concerned, this is unfinished business. As the Home Secretary said in her speech, I and a couple of other Government colleagues have in the past tried to change the law to make sure that what is proposed by clause 30 is enacted. I promoted a private Member’s Bill in December 2006, as others had done before me. It had cross-party support, including from the present Attorney-General and my hon. and learned Friend the Member for Harborough (Sir Edward Garnier), the former Solicitor-General, as well as from distinguished Members on the Labour Benches, particularly the right hon. Member for Birkenhead (Mr Field) and—dare I say it?—a very distinguished person in yourself, Mr Deputy Speaker. I therefore congratulate the Home Secretary on introducing this measure.

At present, the test for a householder is to use reasonable force in self-defence, which, I contend, is difficult to define and not easy to enforce. A higher test is required that allows the use of force as long as it is not grossly disproportionate. That will benefit not only the general public but the police and the Crown Prosecution Service, because it will provide them with much clearer guidelines within which to operate.

The example given by the right hon. Member for Dwyfor Meirionnydd would not exempt a person from being prosecuted. We are talking about individuals acting in the heat of the moment. The test is reasonableness—not with the benefit of hindsight, but as it appears at the time.

Mr Llwyd: The example I gave was of three people trying to break into a barn adjacent to a farmer’s house to steal from him. That is the heat of the moment, surely.

Mr Vara: To lie in wait with a shotgun is not to act in the heat of the moment; it is premeditated. That is not what clause 30 allows.

The only people whom clause 30 will not benefit are the criminals who break the law in the first place.

In considering the clause, it is important to reflect on some statistics. The crime survey for England and Wales for 2010-11 estimates that there were 745,000 burglaries during that period. In approximately 205,000 of those instances, the victims were at home, were aware that the offence was being committed and saw the offender. In approximately 75,000 cases, force or violence was used against the victim.

Those who support the present test often say that it is for a court—a judge and jury—to decide on the facts. However, it can take up to a year, or possibly longer, for a case to reach the courts. During that time, the individual has to put up with the stress and anxiety, especially

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those who are subsequently found innocent. It cannot be right that people who are going to be found innocent, along with their families, have to endure that anguish. It is therefore important that the law is clarified for people who act honestly and instinctively in self-defence.

The public should know that the law is on their side. Sometimes, it is right and proper that we speak up for the victims of crime and the general public who are on the receiving end of the violence, the figures for which I have just given. Let there be no doubt that we are talking about victims of crime—law-abiding householders, shopkeepers and military personnel living in barracks, because the clause covers the military as well.

It is not surprising that leading and prominent members of the police force support raising the test. The former Metropolitan Police Commissioner, Lord Blair, said on his first day in office, when asked about this issue:

“I thought reasonableness was quite a difficult concept at 4 o’clock in the morning in your kitchen, whereas something as stark as gross disproportionality did seem to me to be clearer.”

He was right. At 4 o’clock in the morning, a householder who is confronted by an intruder is frightened—indeed, he is likely to be petrified. His response will be instant and he will have no regard to reasonableness or otherwise.

Lord Blair’s predecessor, Lord Stevens of Kirkwhelpington, did not mince his words either, saying that

“householders should be presumed to have acted legally, even if a burglar dies, unless there is contrary evidence”.

The present commissioner, Sir Bernard Hogan-Howe, told the BBC that he agreed that homeowners need better protection than is available at present:

“I think, probably, there’s an argument at the moment for making sure that that bar gets higher, and that the homeowner has better protection, and the burglar is put more on notice that they’re at risk if they choose to burgle someone’s home while they’re in it”.

It is important to note that the higher bar is reflected in the guidance for police when arresting people. The test for individuals who claim to have been acting in self-defence was updated only two months ago:

“The changes are driven by the coalition commitment to protect householders and others from unnecessary arrest when they use force in the belief that they are acting in self-defence. The amended Code…sets out that, in order to establish grounds to suspect a person of committing an offence, officers should consider facts and information which tend to indicate the person’s innocence as well as their guilt.”

The Crown Prosecution Service guidance also uses a higher level:

“You are not expected to make fine judgements over the level of force you use in the heat of the moment. So long as you only do what you honestly and instinctively believe is necessary in the heat of the moment, that would be the strongest evidence of you acting lawfully and in self defence.”

It goes on to say:

“If you have acted in reasonable self-defence, as described above, and the intruder dies you will still have acted lawfully.”

Given that the guidance for the people who implement the law—the police and the Crown Prosecution Service—refers to a higher test than that laid down in the present law, it makes sense for us to clarify the law and make it easier to implement, rather than for the implementers to rely on guidance.

There is considerable public demand for this measure. When I introduced my private Member’s Bill in 2006, one of my local newspapers, the Cambridge Evening News,

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conducted a survey that found that more than 90% of the people who responded were in favour of raising the bar of the test. An ICM poll conducted by

The Sunday Telegraph

in December 2009 found that 79% of those who took part favoured changing the test from reasonable force to grossly disproportionate force.

A change in the law is not only necessary; it will send out a powerful message. It will tell law-abiding citizens that the law is on their side and not on the side of criminals. It will also show that an Englishman’s home is still his castle.

7.38 pm

Keith Vaz (Leicester East) (Lab): It is a pleasure to follow the hon. Member for North West Cambridgeshire (Mr Vara). He has obviously campaigned hard on that issue and I commend him for his efforts. I am glad that the measure will be contained in this legislation.

Earlier today, the Home Affairs Committee held a conference to launch our new inquiry into leadership and standards in the police. I am pleased to see three members of the Committee here this evening: my hon. Friend the Member for Kingston upon Hull East (Karl Turner) and the hon. Members for Cambridge (Dr Huppert) and for Rochester and Strood (Mark Reckless). We listened carefully to some of the leaders of our police service, including Hugh Orde, Bernard Hogan-Howe and the new chief executive of the college of policing, as well as leaders from abroad, such as the commissioner who heads the Royal Canadian mounted police and the former president of Interpol. It is clear that in order to get effective leadership, there must be effective structures. I am therefore glad that, with the creation of the National Crime Agency, we at last have a body for the head of the NCA, who was appointed 15 months ago.

At that conference, it was interesting to hear the acceptance from all sides of the police service of the need for the Government, the Opposition and those in the police service to sit together and talk about the future of policing. With the Bill, we have an opportunity to streamline a number of the structures that have operated in policing for a number of years. The Labour Government can be praised for the resources that they gave the police, but we would be the first to admit that we did not really spend the necessary time examining the structures and ensuring they were fit for purpose.

What the Government have proposed is a revolution in policing—the abolition of SOCA and the National Policing Improvement Agency, the creation of the College of Policing and police and crime commissioners, and the abolition of police authorities. When on taking office the Home Secretary announced the changes, she talked about uncluttering the landscape. We will probably have more organisations rather than fewer at the end of the process, but I would be the first to accept them if they were fit for purpose, acted upon Parliament wanted and did the job effectively.

My first concern about the new landscape is that it is not complete. We thought that by now we would have a Constable—perhaps “Dedham Vale”—but instead we have the tail-end of a “Guernica”. The good intentions are there, but it is not complete. I thought that after two years, we would have the end of the landscape and

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the jigsaw would have been completed, but it has not. I urge Ministers to come rapidly to a conclusion about how the landscape will look in the end. The Home Affairs Committee, including its members who are in their places, has scrutinised and monitored what the Government have been doing, but we cannot decide on the structures. That has to be up to the Government. All that the House and the Committee can do is scrutinise and monitor what the Government are doing and give our recommendations on whether the system will work.

We need a conclusion on whether responsibility for counter-terrorism will remain with the Met or form part of the National Crime Agency. Why? Because we were promised a review of that at the end of the Olympics. The Home Secretary specifically said that she would not make a decision until the Olympics were over. I urge the Government to make progress, because it is not in the Met’s interests, and certainly not in the interests of Keith Bristow and his new colleagues at the NCA, that they should delay.

Like the former Home Secretary, my right hon. Friend the Member for Blackburn (Mr Straw), I would probably be minded to move responsibility for counter-terrorism into the NCA. It would fit well there, as the NCA will be a national organisation dealing with national and international issues. However, I know that there is resistance to that from the Met. I have discussed it with a number of officers, who feel strongly that responsibility should stay with the Met, because it has within it the expertise needed to deal with the matter.

It is also important that we know the name of the new chair of the College of Policing. Perhaps the Minister for Policing and Criminal Justice will tell us that. It has a chief executive, and we heard from him today. He has ambitious plans for what he hopes will eventually be a royal college of policing. Professionalism is vital to the future of our police service, but it is also important that the Government get on and appoint the chair. I know that someone was recently nominated, but that person has not been appointed, for a variety of reasons. If there is a shortlist of additional candidates, I urge the Minister to interview them, as I think he will be doing this week, and then let the Home Affairs Committee have the name of whoever is going to be in charge of the organisation, which is vital for the future of this country’s police service.

It is also important that we deal with the issue of appeals. I do not know whether the Minister will remember this, but when he was Minister for Immigration, he promised in a debate in the House a meeting with myself and colleagues who had an interest in immigration. Actually, I think I put it to the Home Secretary that she should meet us, but she passed it on to him. He, of course, has now left the post, and I hope he will pass the message on to the current Minister for Immigration.

Those of us who deal with a lot of immigration cases want the issue of appeals dealt with. That is not just Opposition Members—I see the hon. Member for Croydon Central (Gavin Barwell) in his place, and I reckon that he has many immigration cases at his surgery on a Friday evening. The last thing he wants is for us to be in limbo, having to ask people to apply again because there is no right of appeal for family visitors.

I put to Ministers a simple solution. I know that things have to change. I do not accept that there is abuse in the system, but it is a lengthy system and I know that

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they want to save money. I and others have suggested in the past that we have an administrative review of the decisions made by entry clearance officers. New evidence necessary to ensure that a case can be dealt with satisfactorily could go to somebody in a hub in London—it is quite possible for cases to be reviewed in London. I say to Ministers that the change will affect the settled British community, the diasporas that the Prime Minister and other Ministers feel strongly about bringing on-side. Unless we do something about the problem, British citizens trying to get relatives over for weddings and other family events will suffer.

Dr Huppert: It is always a pleasure to speak to the right hon. Gentleman about these issues. There is a problem when more information is required in a case, and I understand the Government’s advice that people should reapply. Would not an alternative approach be for entry clearance officers to be able to specify what extra information they would like and make a decision once they have received it? I have seen a number of cases in which they asked to see specific documents part-way through the process.

Keith Vaz: I agree, and my biggest regret from when I was the Minister responsible for entry clearance 10 years ago is that I did not introduce that approach. I left it to the system, and I was wrong to do so. If we had a system that allowed new information to be accepted, we would be able to save the taxpayer a huge amount of money and save those who are seeking to bring people into this country a lot of anguish.

Mark Reckless (Rochester and Strood) (Con): Does the right hon. Gentleman agree that if the motivation for the change is financial, another option may be to increase the fee payable for appeals? I understand that would put some people off and might significantly reduce the number of appeals, but the possibility of entry clearance officers’ decisions being reviewed by a judge might help to ensure that decisions are made better than if the right of appeal is removed.

Keith Vaz: That is an option. I would not be enthusiastic about putting up fees, but people do not mind paying fees if they get results and cases are dealt with quickly. If that can be guaranteed, it is certainly an option. The hon. Gentleman’s intervention and that of the hon. Member for Cambridge (Dr Huppert) have shown us that it is quite possible to put forward alternative measures to abolishing the right of appeal. I hope that the Government will consider them.

I wish to say a couple of things about the parts of the Bill that I welcome. One is the establishment of the forum bar, which the Home Affairs Committee recommended when we examined extradition. Following the whole Gary McKinnon saga and the marvellous work of the hon. Member for Enfield, Southgate (Mr Burrowes), who campaigned so passionately for his constituent, we put forward the idea of the forum bar, and now it will legislated for. We are delighted about that.

I am less delighted by the Home Secretary’s wish to give all the rest of her extradition powers to High Court judges. If we have Ministers, we should allow them to make decisions. I am not sure why people wait so long for ministerial office, then get there and want to hand

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all their powers over to judges. I actually think it is a good idea that Members of Parliament and others should be able to make representations to Ministers if there are exceptional cases. That will not be the norm—Gary McKinnon and Richard O’Dwyer’s cases were not the norm. They were exceptional cases that got to the Home Secretary’s attention only because of the work of people such as Janis Sharp, Gary McKinnon’s mother; the hon. Member for Enfield, Southgate; and Richard O’Dwyer and his mother Julia. They were able to bring those cases to Parliament’s attention, and we should ensure that Ministers keep those powers rather than give them away.

I have been watching how the hon. Member for Croydon Central has pursued the campaign concerning drug offences when people are driving. Given the circumstances of his constituent, it must be a great relief to him and his faith in parliamentary democracy that a case he has raised so frequently in meetings with Ministers over the past year or so has ended in the fruition of a clause in a Bill that will change the law. What satisfaction it must give him as a constituency MP to know that he, along with other Members, has been a part of changing the law. I welcome what the Government are doing, and they are quite right to ensure that that change takes place.

I was never a great fan of the Judicial Appointments Commission introduced by the previous Government. Perhaps because both Lord Chancellors under whom I served—the noble Lord Irvine and the noble Lord Falconer—were, in my view, exceptional people, I thought that they could make better decisions about the diversity of the judiciary than a quango. I was right: they would have made better decisions and the judiciary would today have been quite different. I welcome what the Government are doing; it is a message to those who make such decisions that the judiciary needs to look not as Parliament did when I was first elected but as how it is today—Parliament looks like the country and so must the judiciary. Obviously, people must pass the merit test. Nobody wants jobs given away because someone happens to like the person sitting in front of them, or because they are a particular gender or race. Jobs are given to people who are qualified and able to do them effectively.

I will end with a comment made earlier today by Lord Wasserman, the Government adviser on some of the policing reforms. As the House knows, the Home Affairs Committee has been trying to get Lord Wasserman to appear before it, and he came before the Committee today as part of our international conference. He spoke most eloquently and I was quite taken by his comments. He suggested that the Government look at how police and crime commissioners have operated, and that the Committee hold an inquiry into that at the end of the year—obviously, the Committee will decide whether it wants to do that. The Minister has escaped; he has got political asylum from immigration and gone to policing. He survived the little problem of a few years ago, when I understand from The Sunday Times he ended up in the Cherwell. I did not see the Attorney-General in the Chamber making up with him; he was here earlier, but he is not present at the moment.

The Minister has one of the most exciting jobs in government: the chance to finish off the new landscape of policing. I know my right hon. Friend the Member

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for Delyn (Mr Hanson) enjoyed being policing Minister, but the way to really enjoy the job is to ensure the jigsaw is completed and that we get a police service that fits the structure. We have the best police service in the world. Let us ensure that the organisations that are there to serve it really work.

7.52 pm

Gavin Barwell (Croydon Central) (Con): It is always a pleasure to follow the Chair of the Home Affairs Committee, and doubly so since he was so kind about me in his speech. He speaks with great authority on all these issues, and although he tempts me towards the issue of appeals in relation to family immigration, I hope he will understand if on this occasion I rise to speak specifically to clause 37, which deals with drug-driving.

On 26 June 2010 my constituent, Lillian Groves, was killed outside her house. She was just 14 years old. The driver of the vehicle that knocked her down was driving a car that was not licensed in his name. He had no insurance to drive that vehicle, was driving at 43 miles an hour in a 30-mile-an-hour zone, and a half-smoked joint of cannabis was found on the car’s dashboard. When the police found him he was not at the scene of the accident as he had gone some distance down the road.

I hope the House will not mind if I pause for a second to reflect on what Lillian might have done in the rest of her life, the people whose lives she would have touched, the children she might have had, and the contribution she might have made to our local town. It is not just the loss of her life, but the impact her death has had on her friends and, most particularly, her family. Lillian was taken to hospital and pronounced dead some hours later. Sadly, the blood of the vehicle’s driver was not tested immediately, and only after Lillian died did the police conduct a test. Cannabis was found in his blood. The family have never been told the level that was found although the Crown Prosecution Service told them that it was not sufficient to warrant a charge of causing death by careless driving while under the influence of drugs.

The driver was sentenced to just eight months in jail. He served just four months and was released. He lives locally to the family, so for the rest of their lives they will be faced with the knowledge that every time they go to the local shops there is a danger that they will bump into this individual who has never spoken to them, apologised or shown any remorse at all for what he has done.

To my mind, those of my constituents, and I hope all Members of the House, that family did not receive justice in any sense of the word, and I want to pay tribute to Gary and Natasha—Lillian’s parents—and Michaela, her aunt. A number of Members, including the Chair of the Home Affairs Committee and the Home Secretary, have been kind to give me credit for the campaign I have run, but I do not feel that I deserve that at all as I am just doing my job. Those who deserve credit in this instance are Lillian’s family. They took a terrible situation that no parent would ever want to endure, and rather than be consumed by anger—as I fear many of us would be—they wanted to turn it into

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something positive and see a change in the way that we as a society deal with this issue so that other families do not have to experience their anguish.

Lillian’s family found a powerful and useful friend in our local paper, The Croydon Advertiser, and in particular an excellent young reporter called Gareth Davies who worked with them to put together a campaign for what they have called “Lillian’s law”. They came to see me at my surgery to ask for my support, and the package they were looking for contained four items. First, they wanted a change in the law itself. As the Home Secretary mentioned in her speech, although it is currently an offence under section 4 of the Road Traffic Act 1988 to drive while impaired by drugs, it is extremely difficult to secure convictions under that legislation because it is difficult for the prosecution to prove impairment. There is no equivalent to the law on drink-driving whereby if someone has more than a certain level of a drug in their blood, that is held to be evidence of impairment. The law is not weighted in the same way. The first thing, therefore, was to change the law, which is what clause 37 does.

I hope the House will not mind if I mention a couple of other things that the family are also looking to see happen. The second point is to have a device, equivalent to a breathalyser, initially for use in police stations but in the longer term for use at the roadside. At the moment, the police conduct a field impairment test, the suspect can be taken to the police station and a doctor must be called to conduct a blood test. That is expensive and time consuming and there is therefore a disincentive to conduct such tests. It is important to get devices in place that allow tests to be carried out that are equivalent to those for drink-driving. I am pleased that the Government have recently given type approval for devices for use at police stations, and I understand—perhaps the Minister will confirm this—that the intention is to approve a device for use at the roadside by 2014.

The third issue was to look at sentencing and to ensure appropriate punishment for those convicted of such offences. The Bill would provide a level of sentence equivalent to that for drink-driving. The fourth thing, which can only happen once the three other pieces of the jigsaw are in place, is to look at an enforcement campaign similar to that of the 1980s on drink-driving. There was a time when lots of people drove under the influence of drink—to a degree, it was the cultural norm. It took that enforcement campaign in the 1980s to change attitudes, and I think we now need a similar campaign about driving under the influence of some drugs that, sadly, are all too prevalent in society today.

When the family came to see me at my surgery, I was faced with the challenge of what to do and how to help them. As usual, the House of Commons Library was a great place to start, and I began researching the law and previous efforts to change it—and to be fair to the last Government, they looked at this issue. It was a difficult and complicated matter, however, as several different Departments were involved: the Home Office, in relation to the police’s responsibilities; the Ministry of Justice, in relation to the criminal offence; and the Department for Transport.

I decided to raise the profile of the issue and ask about it in Prime Minister’s questions. I want to put on the record my thanks to the Prime Minister, because he agreed to meet the family and invited them to 10 Downing

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street to see him. I guess they found in him one of the few Members of the House who sadly could understand exactly what they had been through in losing a child. The staff at No. 10 have worked closely with all three Departments to get the change in the law before us today through as rapidly as possible.

I want to ask a couple of questions about the detail. The hon. Member for Cambridge (Dr Huppert) alluded to this matter in a question that he asked the Home Secretary earlier about what the limits for specified drugs might be. Proposed new section 5A(9) in clause 37(1) provides that specified limits could be zero. Paragraph 562 of the explanatory notes, which are always a great source of guidance, contains the wonderful sentence:

“New section 5A(9) provides that specified limits could be zero, though this does not mean that limits would in fact be set at zero.”

One can make of that what one will.

Lillian’s family feel strongly that the level for illegal drugs should be set at zero. As a matter of principle, they feel that people should not be taking these substances and therefore should not be driving under their influence. There is the strong counter-argument, however, that we should be led by science, as the hon. Member for Cambridge tried to point out, that we should try to discover what level of an active substance in the blood stream leads to the same level of impairment as the blood alcohol limit and that we should set the limits that way. Clearly, as the Bill tries to do, we also have to consider prescribed medications that have the same active substances as some illegal drugs.

Mr Burrowes: I commend my hon. Friend for his leadership in driving through this important change. I want to ask about the sentencing impact. Assuming its safe passage, this proposal will have as its outcome a sentencing maximum of 12 months. If someone is impaired by being over the limit, whether in relation to drugs or alcohol, plainly that is inherently careless, but only if they were charged with causing death by careless driving while under the influence would their case get to the High Court for a much heavier sentence, which is what many of these people deserve.

Gavin Barwell: As usual, my hon. Friend makes a good point, and I will explore those issues once I have dealt with the limits.

A decision needs to be made about whether the levels should be based as far as possible on the scientific evidence of similar levels of impairment to that caused by alcohol or whether there is a case, as the family believe, for zero limits for some of the most serious substances. As I understand it, the Government have set up the Wolff panel to consider the detail. They themselves are finding this a highly complex and difficult area and are taking a bit more time than originally envisaged to do this work, but I would be grateful for any guidance that the Minister could give in his winding-up speech about the timing of the panel’s report.

Dr Huppert: It is a fascinating balance. I have seen comments from the Wolff panel suggesting that alcohol is far and away the most dangerous substance that people can take, so although I support the aim in the Bill of reducing impairment, perhaps more work still needs to be done on drink-driving as well.

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Gavin Barwell: The hon. Gentleman makes a powerful point.

I am conscious of the time and of the fact that other Members wish to speak, so I will end by addressing the point about sentencing raised by my hon. Friend the Member for Enfield, Southgate (Mr Burrowes). The explanatory notes make an interesting point. They state that the sentencing has been set at the same level as for driving under the influence of alcohol. Paragraph 560 of the notes states that these are

“the penalties set out in Schedule 2 to the Road Traffic Offenders Act 1988 as increased, for England and Wales, by certain provisions of the Criminal Justice Act 2003 which are not yet in force”.

Will Ministers give some guidance on what the provisions of this Act passed nine years ago are and why neither the previous Government nor the current one have yet brought them into force?

Paragraph 567 also makes an important point that I think answers the point made by my hon. Friend the Member for Enfield, Southgate. It reads:

“Paragraph 2 amends section 3A of the 1988 Act so that if the person had a controlled drug in the blood or urine in excess of the specified limit for that drug, the person could be charged with the more heavily penalised offence in that section of causing death by careless driving”.

I believe that that means—I would be grateful if Ministers could confirm this—that the limits will apply to both offences and that in a case such as Lillian’s, if the driver’s cannabis level is above the limit subsequently set, the more significant charge could be brought against the individual.

In conclusion, I pay tribute to Lillian’s family for their work in advancing this cause. The House will know that Lillian is far from the only individual whose life has sadly been cut short by a drug-driver. No doubt, sadly, other Members will have examples from their own constituencies, but for me it has been a great privilege to speak up on behalf of this wonderful family, who want to ensure that other people do not go through the agony that they have experienced. I thank my right hon. Friend the Prime Minister and all the Ministers responsible for bringing the Bill before the House.

8.6 pm

Kate Green (Stretford and Urmston) (Lab): It is a great pleasure to follow the hon. Member for Croydon Central (Gavin Barwell) and I congratulate him on his work in bringing his provision to this point. Before I entered the House, I served as a lay magistrate for 16 years and in cases of people driving under the influence of drugs, was always struck by the complete uncertainty about how we applied the law, compared with the dead certainty in relation to people driving under the influence of alcohol. I therefore welcome the clarity that this provision starts to bring.

I would like to talk about several aspects of the Bill. They are by no means the only elements that have come up this evening, but I want to focus on the issues relating to diversity and sentencing. I endorse the comments of my right hon. Friend the Member for Wythenshawe and Sale East (Paul Goggins) in welcoming the amendment inserted in their lordship’s House specifically to introduce a focus on the position of women within the criminal justice system. That provision did not have Government Front-Bench support in the House of Lords, but, given

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that last week in his oral statement about transforming rehabilitation the Justice Secretary specifically said, in response to a question from me, that he accepted that the specific circumstances and needs of women had to be addressed, I hope, now that this provision has been passed in their lordship’s House, that Ministers will see no reason not to adopt it.

I was pleased to see provisions on judicial diversity and to hear the Home Secretary highlight them in her opening speech. As she said, there has been progress on the diversification of the judiciary, but much more needs to be made. The provisions in schedule 13, on the tie-break and the possibility of full-time equivalent appointments to the senior judiciary, are welcome. In particular, however, I want to comment on the duty now on the Lord Chancellor to encourage diversity in the judiciary contained in paragraph 10. That is certainly a welcome exhortation, but it is important that it not be left at mere words and that substantive progress be made. Willing the end is not the same as willing the means.

It is clear where some of the barriers and blockages lie. As right hon. and hon. Members have commented, women and ethnic minorities are particularly poorly represented in the judiciary. That is not so much the case in the tribunals and lay judiciary, so it speaks in part to difficulties that the Bar and solicitor professions have in developing a pipeline to find more diverse members of the judiciary. I would be interested to hear what work Ministers envisage doing with the Judicial Appointments Commission and the professions to start to strengthen professional routes for women, minorities and other groups with protected characteristics.

As my right hon. Friend the Member for Leicester East (Keith Vaz) said, it is important to have a judiciary that reflects the make-up of society. It is, without question, an issue of public confidence. It also broadens the perspectives that are brought to bear on judicial decisions, as Lady Hale herself highlighted in her submission to the review of the Judicial Appointments Commission. That is an important and valuable reason why we have a number of judges judging more challenging cases, and is a lesson we ought to reflect in the appointments process more generally.

I am concerned that when these provisions and other allied amendments were debated in the House of Lords, Lord McNally made great play of the role of the public sector equality duty in underpinning this clause and the other provisions on judicial diversity. When Lord McNally spoke, the public sector equality duty was a settled and fairly clear duty. Since that debate in June 2012, the Government have of course announced a full review of the duty, which leads me to ask how we can be sure that the very best provisions of that duty will be embedded in the judicial appointments process.

It is worth noting that the Judicial Appointments Commission has welcomed the public sector equality duty as a framework for working on diversifying the judiciary. It has been absolutely explicit in saying that it does not regard it as a tick-box exercise. It is important that we do not lose what has been good in offering a framework for diversification of the judiciary as the review of the duty continues. That is more of a concern now that the requirement to carry out equality impact assessments in relation to policy is being removed.

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I am pleased to see specific provision for restorative justice in the Bill. That represents a good start—a good first step in legislative recognition of the value of restorative justice. There have been a number of comments today on the importance and challenge of persuading victims who may feel torn about whether to participate in such a process. I invite Ministers to look carefully at how the concept of restorative justice can be extended, so that it does not necessarily mean the offender meeting his or her victim. Prison Fellowship, whose work I have had the privilege of seeing in Styal prison, has been able to extend the concept so that victims, not necessarily of the women serving the sentences in the programmes they are running, are nonetheless able to act as proxy victims to enable the concept of restorative justice to be extended more widely. It is a powerful programme that deals with serious offenders. I hope Ministers will see the provisions in the Bill as a first step to learning what works effectively in restorative justice, and to looking for opportunities to extend the concept over time.

I want to say a few words about the provisions on non-custodial sentences and the focus on punishment in those sentences, which in most circumstances is now the norm. I recognise that there is a real issue of public confidence regarding community sentences, which is regrettable when they are so much more effective in terms of reoffending rates than short-term custodial sentences. That confidence will not be helped if we start to get the balance of sentencing provisions wrong so that the focus on rehabilitation and reducing the offending is lost and crime rates start to rise. I therefore ask Ministers to tell us how they expect to monitor the impact of this provision and ensure that a proper, rounded approach to sentencing is sustained as it begins to take effect. In my 16 years’ experience as a sentencer in the lay magistracy, it was rare that punishment was not an element of the sentences we imposed. Surely the most important test, however, is the outcome of a sentence. The outcome we want above all is that the offending behaviour stops. I therefore hope that the impact of this policy will be carefully monitored with that in mind.

On the provisions relating to location monitoring, as others have said, technological and other developments have enabled the use of electronic monitoring to be widened and extended since it was first introduced a decade or so ago. There are also some real civil liberties and information-sharing concerns about the use of these techniques. It is clear that on its own it is not a particularly effective method of reducing reoffending. It is also important that, in seeking to monitor and manage the whereabouts of an offender, we do not put members of the public, particularly those close to that offender, at greater risk. I highlight concerns about this provision when, for example, domestic violence has been an issue. I hope that Ministers will perhaps comment on that, and certainly bear it in mind.

The Bill contains a number of important provisions that open up an avenue to new thinking. I hope that this is not seen as a definitive and ultimate position in relation to steps that can be taken to reduce reoffending and improve protection of the public. There are interesting developments, but it is important that their efficacy and effect are carefully monitored. I hope Ministers will give us the assurance tonight that it is in that spirit that they are brought forward in the Bill.

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8.16 pm

Mr Edward Leigh (Gainsborough) (Con): I want to speak in support of clause 38. It was inserted into the Bill by those in the other place, who voted 150 to 54 against the wishes of both the Government and the Opposition. That is quite an achievement and I pay tribute to the other place for what it has done. In passing, I say that I do not think that such a rebellion would have happened if the other place had been dominated by elected machine politicians, so once again the House of Lords has justified itself on a cross-party basis and forced the Government to see the light.

What does clause 38 do? It removes “insulting” from section 5 of the Public Order Act 1986. This is a free speech reform. It has been called for, for years by civil liberties groups, gay groups, Christian groups, secular groups, right wingers and left wingers. It is opposed almost by no one, apart from the Government, until today. Sinners are always welcomed when they repent very late in life, so we should welcome the Government to the lighter side. However, the Home Secretary did not seem entirely convinced, so I hope the House will forgive me for a few moments as I try to explain the rationale for this important campaign, which has been running for years and has united Peter Tatchell and myself—quite an achievement.

Mr Burrowes: I, too, thoroughly welcome this change. On the issue of repenters, there is another category that my hon. Friend has not mentioned—the Opposition. The shadow Home Secretary was distinctly ambivalent in welcoming the fact that the Lords have allowed us to see sense. Would my hon. Friend care to comment on that? While we may have the numbers, it is important to recognise the cross-party, cross-issue, cross-everything opposition to having “insulting” in section 5.

Mr Leigh: I do not want to be party political, because many Labour MPs have joined us in the campaign that we have been waging. This is not a Conservative-Labour issue. I cannot really understand why the Opposition are still equivocating when we have had such a long consultation and when the issues are not very difficult. I still hope that the Opposition, at the last minute, in winding up this debate, will get off the fence. The House, along with people who have been campaigning on the issue for years, are entitled to know where they are.

The campaign has been waged for a long time. I spoke about the issue in 2011, during the passage of the Protection of Freedoms Act 2012—that, too, was on Second Reading. I then tabled an amendment that was exactly the same as clause 38 in this Bill—unsurprisingly, as the same people who have been campaigning drafted both clauses. It was co-sponsored by 64 Members of the House, from every party and every shade of opinion. The Joint Committee on Human Rights—a Committee of Parliament—described it as a “human rights-enhancing measure”. We had been speaking on the issue for years, so we did everything to secure a debate. I do not want to talk too much about Government bad behaviour in the past; one should not perhaps do so when they have done something right. We got the measure tabled as new clause 1—we got there first at the end of the Committee stage. However, unfortunately, after we had got 10% of the House to co-sign it, the Government

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then took the unusual step—I will not say any more—of using a programme motion to prevent it from being debated. Why? Perhaps they feared that we might defeat the Government—something that happens very rarely in this place.

However, we did force the Government to have a consultation, which was great. The consultation started, lasted a whole year and closed on 13 January 2012—a year ago. We were still waiting and now we have a few words from the Home Secretary. That appears to be the end of the consultation, but it would still be useful to see it, because this is an important issue. We want to know why the Government have changed their mind on this, so it would be quite nice for the consultation, a year after it was closed, to be published.

Why is clause 38 so important? It is important because it removes section 5 of the 1986 Act, which was undermining civil liberties. The breadth of cases suggests that virtually anyone could find themselves at the wrong end of section 5. They have been cited several times, but I want to go through some good cases—there are many others—to show how section 5 was being used against civil liberties and freedom of speech. Section 5 was cited in a court summons given to a 16-year-old protester for holding a placard saying,

“Scientology is not a religion, it is a dangerous cult”.

A Tynesider named Kyle Little was convicted and fined under section 5 for saying, “Woof!” to two Labradors. Thankfully, that conviction was quashed. An Oxford student, Sam Brown, was arrested under section 5 for saying to a policeman,

“Excuse me, do you realise your horse is gay?”

Thames Valley police said:

“He made homophobic comments that were deemed offensive to people passing by.”

My friend Peter Tatchell was charged under section 5 for condemning the murder of gay people by Islamic extremists. His placards were deemed by police to be insulting and likely to cause distress. Blackpool café owner Jamie Murray was told by officers that playing DVDs showing text from the New Testament was a possible section 5 offence.

The police have often used section 5 to freeze debate and stop difficult people speaking out, but in this place we should cherish difficult people. That is what this place is about: cherishing people who do not always go with what the establishment wants. In another case, animal rights protesters were threatened with arrest and seizure of property under section 5 for protesting against seal culling by displaying toy seals coloured with red food dye. One of my favourite cases—I think I can end on this one, because it goes against what I normally talk about and believe in—involved an atheist pensioner in Boston, in my part of the world. He wanted to place a small sign in his window saying:

“Religions are fairy stories for adults”—

I never thought I would repeat that in this House, but that was his crime, apparently. He was told by Lincolnshire police—our very own police—that if anyone complained, he could be arrested and dealt with under section 5.

These cases are worrying. We might be tempted to blame poor on-the-spot decision making, but when there are so many, with such wide variation, and when some of them progress to the courts, it is no longer a joke. We have to conclude—and we have concluded; and now, thank God, the Government have concluded—that there is something wrong with the law.

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Dr Huppert: It is a pleasure to be on the same side as the hon. Gentleman on this issue. What he has described is Liberal Democrat policy as well, and I am delighted that the Government have conceded on it, but has he given any thought to section 4A of the Public Order Act 1986, which also deals with insulting behaviour?

Mr Leigh: Perhaps my hon. Friend will deal with that in detail when he speaks, because he makes a good point. It is important in the coalition that we try to find things for which, philosophically and honestly, we can work. One thing that is deep in our joint tradition as Liberals and Conservatives is our desire for more freedom, so it is good news that the Government are going with the grain of what the coalition is about.

I hope the House will forgive me if I go into one or two details, because in the law the devil is always in the detail. Section 5 of the 1986 Act outlaws

“threatening, abusive or insulting words or behaviour”

if they are “likely”—that is the important word—to cause “harassment, alarm or distress”. Clause 38 simply deletes the lowest threshold of the offence—only the lowest; that is the important point—which is the word “insulting”. That would still leave the two higher thresholds of “threatening” and “abusive”. It is important to make the point that we are not removing protection from policemen for those who may feel themselves to be threatened in some way. We all know what being threatened is like: it is quite different from being insulted. The 1986 Act does not define the terms, but the courts say that we all know them when we see them, and I think that is right. A threat is when someone is “in your face” and there is fear of violence. Abuse is when there is, for instance, obscene language. That is why Lord Hurd brought in the law—he was concerned about football hooligans and concerned to protect decent, law-abiding people from feeling threatened or abused.

Insult, however, is clearly less serious and, above all, much more subjective. That is the point about the cases I read out: they are subjective. That is the problem. Most people are surprised to learn that insults are against the law in this country. They think that that kind of law would exist only in some kind of oppressive communist society, not in England and Wales, where traditionally we have given the world this concept of freedom of expression, and the freedom to insult people is an important part of traditional freedom. I believe—and we all know—that insults are minor compared with threats or abuse. An insult is a slight on one’s reputation; it can hurt feelings. Yet just because my feelings are hurt—because I feel that somebody over there has insulted me—should I attempt, or should the police attempt, to make them a criminal? I do not believe that is right.

That is why we have garnered support over the years so quickly. I think virtually everybody who has looked at this issue now supports us. I mentioned the Joint Committee on Human Rights, but those supporting us also include the Equality and Human Rights Commission, the Independent Police Complaints Commission, the Association of Chief Police Officers—that is important, because we were always told that the police were worried about this—the current Director of Public Prosecutions, as has been mentioned, the former Director of Public Prosecutions, Justice, Liberty, The Daily Telegraph, the Christian Institute, the National Secular Society,

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the Peter Tatchell Foundation, Big Brother Watch, the Freedom Association. The list goes on and on. Virtually everybody is off the fence and supporting us. We now just want the Labour party to come on board.

There is nothing party political about this issue. There is nothing in what we are arguing about that runs contrary to traditional Labour belief. After all, despite the Whips in the other place, the Lib Dems in the Lords voted for the amendment, now clause 38 in the Bill, by 29 to seven; Conservatives voted for it by 49 to 30; Labour peers rejected their own Whip and voted 23 to 16; and not a single Cross Bencher voted against it.

Frankly, I believe that this change is not due just to the fact that the Director of Public Prosecutions has come on side, as the Secretary of State said earlier. I believe that the Government comprehensively lost the arguments in the Lords. The Lords can be very good on these issues. The Minister was assailed from all sides. Even the Labour spokeswoman, Baroness Smith of Basildon had a difficult time. She suggested outlawing insults might be

“a useful tool which…enables the police to address homophobic and religiously offensive issues.”—[Official Report, House of Lords, 12 December 2012; Vol. 741, c. 1126.]

She cited a case in which section 5 was used to convict someone who peppered people on a train with foul-mouthed verbal abuse. From all sides in the House of Lords, it was pointed out that such behaviour is well beyond the scope of mere insults. It falls clearly into the realm of threatening and abusive behaviour; it would be untouched by clause 38. Under pressure from all sides, the Baroness was good enough to concede that she was open to looking at the evidence and was not opposed to change. We want to see a similarly open-minded attitude from the Labour party in this House.

The Minister in the other place, Lord Taylor of Holbeach talked about balancing free speech with the right not to be caused alarm or distress. We all agree with that, but what does it mean in detail? Do we all have to be vulnerable to prosecution for insults so that the police can have maximum flexibility to decide whom they will or will not prosecute? I do not think that the Minister’s arguments held up. He said that the “insulting” limb of the offence gives the police

“the flexibility they need to respond to hate crime and to defuse tension quickly in public order situations.—[Official Report, House of Lords, 12 December 2012; Vol. 741, c. 1130.]

Agreed—but the present law was just too flexible.

What we are doing today is right. It is interesting that one of the many Conservatives to rebel was Lord Hurd, the Home Secretary who brought in section 5. At the time he did so, he made it clear that it was not intended to undermine civil liberties. No doubt he has seen what the rest of us have seen: section 5 has undermined civil liberties. He wishes to put it right, the Government want to put it right, and I welcome what the Government have done today.

Several hon. Members rose

Madam Deputy Speaker (Dawn Primarolo): Order. I am changing the time limit to seven minutes for Back-Bench contributions with immediate effect.

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8.31 pm

Andy McDonald (Middlesbrough) (Lab): I share with other speakers the view that there is much to be welcomed in the Bill, including the provisions on the diversity of judicial appointments, extending the jurisdiction of youth courts and drug-driving.

I note that the hon. Member for Croydon Central (Gavin Barwell) is not in his place, but I too would like to pay tribute to the work he has done. He is quite right in what he says about other instances of the same sort of events that affected his constituent. Some 10 or so years ago, when I was practising as a solicitor, I had the privilege to represent the Nellist family of Acklam in Middlesbrough. As they returned home from an evening out—they had not been out socialising for a long time—they got off the bus opposite their home and their young son Anthony was waiting for them to come back. He was peeping out of the curtains looking to see them come home. He saw his mum and dad walk across the road, only for Susan to be struck by a speeding vehicle coming down Trimdon avenue, knocking her some clear 70 yards down the road, killing her outright.

The self-same issues about impairment and the links between impairment and the charges levelled against the youth concerned raised their head in this case. I was involved not in the criminal side but in the civil case. When we served our proceedings on the defendant, he showed absolutely no remorse whatever. He was sentenced to a term of imprisonment. Bizarrely in those days, he served his driving ban while serving his term of imprisonment. I pay tribute to my right hon. Friend the Member for Blackburn (Mr Straw), who put right that wrong in subsequent years, making sure that any driving ban was served at the end of the custodial sentence. That made the sentence more relevant.

Is it ever right for someone in such circumstances ever to get behind the wheel of a car again? Perhaps we can take a look at that as we take the Bill through Committee. Given the tragedy suffered by that family and the fact that not everyone enjoys the privilege of driving a motor car, it is not acceptable for someone in those circumstances to serve a ban for such a short period.

I support the fight against organised crime, but we on the Labour side are concerned that the Home Secretary is undermining that fight by cutting the budget to tackle it. However, I am happy to recognise the valuable work of the north-east regional organised crime unit, which was established by the chief constables of Durham, Cleveland and Northumbria in March 2010. It consists of a specialised team of detectives who target the organised crime groups that pose the greatest threat to the communities in those three areas. No doubt the House will want to congratulate officers in the unit who, last Wednesday, used a warrant to search premises in Topcliffe, north Yorkshire, and recovered approximately 30 kg of heroin and an estimated 40 kg of amphetamine. The street value of the drugs is estimated to be between £6 million and £7 million. Two men have been charged; the investigation continues, and there is more to come.

There is a welcome consensus on the issue of avoiding reoffending. The starting point of the consultation was a good one: the Government acknowledged that nearly half of all adult offenders reoffend within a year of leaving custody, and also acknowledged the need for

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reform of the criminal justice system. Cleveland’s newly elected police and crime commissioner, Barry Coppinger—in common with many others—has made

“diverting people from reoffending with a focus on rehabilitation and the prevention of reoffending”

a key priority. So far, so good. It seems there is a common purpose, but the question must be whether the proposals in the Bill are adequate to assist the attaining of that vital objective.

The powers that the Bill seeks to introduce are already available to sentencers. They can already impose punishment in combination with other elements. Lord Woolf, the former Lord Chief Justice, described the proposals as

“offensive to the judiciary, who strive to ensure that each person dealt with by them is sentenced to the appropriate sentence.”—[Official Report, House of Lords, 30 October 2012; Vol. 740, c. 529.]

Lord Ramsbotham, the former chief inspector of prisons, called them “totally unnecessary and counter-productive”.

In the brief time remaining to me, let me say something about clause 23. My constituent David Jukes has written to me pointing out that 2,000 people are employed by Her Majesty’s Courts and Tribunals Service in the enforcement of criminal fines. I hope that we shall have a chance to ensure that the existing service is given every opportunity to be maintained and to succeed, and also to ensure that rigorous standards and targets are set for recovery of fines and fixed-penalty notices.

Finally and very briefly, I want to comment on the law of self-defence as it applies to householders. I recently went around the houses in Middlesbrough, and none of those on whose doors I knocked told me of their overbearing desire to knock seven bells out of a burglar. People were more concerned about, for instance, employment and being hit by the under-occupancy tax. We must think carefully about whether clause 30 takes us any further.

The hon. Member for North West Cambridgeshire (Mr Vara) referred to the guidance notes that are issued to officers. I rather think that that tells the tale: the notes are available to officers to prevent householders from being taken to court unnecessarily, under the law as it stands—

Madam Deputy Speaker (Dawn Primarolo): Order.

8.38 pm

Fiona Bruce (Congleton) (Con): I congratulate the Government on leaving in the Bill the Lords amendment in clause 38, as it is wholly in accordance with the proud heritage of upholding free speech in this country. I thank Ministers for listening to those of us in this House, and many outside it, about the detrimental impact of section 5 of the Public Order Act 1986, as currently drafted. In this country, we have traditionally enjoyed great freedom of speech—we certainly have in this Chamber—but many people have felt that section 5 has curtailed it and undermined wider civil liberties, and that it needs addressing. As Liberty says in welcoming this amendment and discussing the need to remove “insulting” from section 5,

“the mere fact that this is a criminal offence is enough to stifle freedom of expression.”

It also states that

“section 5 can have a chilling effect on peaceful protest.”

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In responding to the Secretary of State’s introduction to this debate, the shadow Secretary of State expressed reservations about the Government’s proposal to include clause 38 and invited examples of the detrimental impact of section 5 to be provided in Committee. I am pleased that my hon. Friend the Member for Gainsborough (Mr Leigh), to whom I pay tribute for his lengthy and persistent campaign on this issue, has cited some of the examples, and I wish to add a few more. I make mention of the couple who used to own a hotel but lost the business as a result of a prosecution under section 5, which arose from a conversation with a resident—a customer—who asked their views on a particular subject and then, when she did not like them, reported them.

Mr Leigh: The point is that this was not a threatening situation; it was simply a talk, over the breakfast table, in a bed and breakfast.

Fiona Bruce: That is absolutely right. Ultimately the case was thrown out by a judge, but the strain of enduring the prosecution process proved too much for that couple and they could not keep that business going.

I am particularly concerned about the arrests of individuals under section 5 for expressing views relating to their faith, because I am a committed Christian. Another case was that of Jamie Murray, who runs a café in Blackpool. He had displayed texts from the New Testament on his café wall but received a visit from two police officers who said that they had received a complaint and were investigating a possible offence under section 5. The complaint was simply about Bible texts. Bible texts can be found outside many churches across this land and inscribed on buildings. There are Bible verses on the floor of the Central Lobby in this place and I can even see scripture engraved on the door behind the Speaker’s Chair. However, section 5 is apparently so broad that police in Lancashire thought it banned the Bible. The obvious problem with section 5 is that the word “insulting” is too vague and too subjective; what one person might consider insulting may not trouble another at all.

Incidents such as those I have mentioned frighten people; even where the person does not end up with a criminal record, they create a chilling effect. I now know of church ministers who fear a knock on the door simply for preaching historic Christian truths at their own pulpits. That cannot be right, which is why clause 38 is so welcome. The wording of the current provision needs to be trimmed back; as the recent report by the Joint Committee on Human Rights said, it

“constitutes a disproportionate interference with freedom of expression.”

The Director of Public Prosecutions, Keir Starmer, has said that

“the word ‘insulting’ could safely be removed without the risk of undermining the ability of the CPS to bring prosecutions.”

A gap will not be left in the law; the word “abusive” should cover the issue satisfactorily.

I could cite many other instances, not necessarily involving faith aspects: the concerning issue of the 16-year-old man threatened with prosecution for peacefully

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holding a placard that said, “Scientology is not a religion, it is a dangerous cult”; the animal rights activists who displayed models of red seals, with the red representing blood; the street-preaching pensioner with Asperger’s who was convicted and fined under section 5 for holding a religious placard—Peter Tatchell, while not agreeing with his opinions, has fully and publicly expressed his right to express them. All or any of those cases, or the views expressed within them, might be regarded as controversial, but what hope is there for free speech if someone can dial 999 every time they hear something controversial? What a colossal waste of police time.

Many groups, as my hon. Friend the Member for Gainsborough has already stated, have expressed concern about section 5 of the Public Order Act, and I am delighted to note the support received in the Lords from so many worthy Members, including a former chief inspector of constabulary, a former Lord Chancellor, a former DPP and the chair of Liberty.

I also pay tribute to those outside the House who have campaigned on the issue, particularly those who have spearheaded the “Reform Section 5” campaign, with which I have been associated since its launch last year. It is a joint initiative of the Christian Institute and the National Secular Society; how many other causes could unite such implacable foes?

We are all familiar with the statement attributed to Voltaire: “I may disagree with what you say, but I will defend to the death your right to say it.” I know that that sentiment resonates within this House, and that is what clause 38 is all about. history has shown that, if societies do not take opportunities such as the one presented by clause 38 to underline and reinforce the importance of free speech, other precious liberties can begin to slide away. Once we cross a Rubicon and allow infringements of free speech, how many other freedoms disappear? I am sure that we all support the campaign of the Chinese journalists for free speech in their press; we should equally support clause 38 and free speech in this country. The United Kingdom has been a beacon of free speech to the world. This is a chance to underscore that reputation.

The publicity it has generated means that the debate on section 5 has been followed not only by a wide cross-section of society in this country but by people around the world. I hope that, through clause 38, we can give them something to celebrate and that Opposition Members will join us when we come to vote on it.

8.46 pm

John McDonnell (Hayes and Harlington) (Lab): I want to deal with a couple of clauses that have not been referred to so far, but before I do so let me express my support for the comments made by the right hon. Member for Dwyfor Meirionnydd (Mr Llwyd) about clause 31 and the concerns expressed by others about clause 34 and visa appeals. The abolition of those appeals will have a direct impact on my constituents and I believe that there will be a considerable backlash in the community. Let me also express my support for clause 29, which abolishes the offence of scandalising the judiciary as a contempt of court. I understand which case that relates to, but I feel that scandalising the judiciary should be a right, if not a duty, every now and again.

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Three clauses have so far not been mentioned in any detail. The first is clause 16, on the establishment of the family courts. It has been genuinely welcomed, as has the introduction of mediation in the processes of the family courts and the greater emphasis given to it. Concerns have been expressed, however, by Children and Family Court Advisory and Support Service officers and family law practitioners about the need to ensure that there is adequate insurance in the delegated legislation and the guidance that the views of the children in these cases are properly represented and protected. I hope that there will be further dialogue with professionals in CAFCASS, in particular, who will be able to advise on the detailed implementation of the legislation, and of this clause in particular.

Let me turn now to clauses 23 and 24. My hon. Friend the Member for Middlesbrough (Andy McDonald) mentioned the issue with clause 23, which effectively privatises the functions of the officers dealing with the collection of fees. They are judicial functions, which is a step forward in privatisation that we have not seen before. Clause 23 facilitates the contracting out of all the functions of fines officers and makes provision for the cost of collecting compensation, fines and other financial penalties to be recovered from offenders. That will effectively mean contracting out the functions of those officers to private bailiffs. Let me remind hon. Members of those functions: the decision to make a deduction from benefits order; the making of an attachment of earnings order; and the ordering or varying of the length of time to pay or the amount of the instalments that are payable. Those functions relate to the exercise of judicial power and the sentencing of criminals and they are to be privatised.

My concern about that is that as Members we have all experienced the role of bailiffs in our constituencies. In its evidence to Government in the consultation, “Transforming bailiff action”, Citizens Advice reported that it was dealing with nearly 25,000 cases involving problems with private bailiffs. Citizens Advice said that it

“has been seeing problems with the practices of private sector bailiffs for many years and these problems seem to be growing. Unfair practices we see include: misrepresenting powers; intimidating behaviour; charging fees in excess of what is allowable in law; failing to accept reasonable (in the circumstances of the debtor) offers of payment”,

and failing to recognise vulnerable debtors in particular. We are now passing over a key element of the judicial system to private bailiffs, who have this record of failure.

Andy McDonald: Does my hon. Friend recognise that the court staff have had some significant successes in recent times, increasing the rate of recovery by 14%? Does he agree that that improved performance is to be welcomed and that they should be congratulated?

John McDonnell: My hon. Friend has hit the nail on the head. There are 2,000 people out there in the service, consistently meeting the targets set for them by Government and improving their record of service by 15% last year, not 14%, as he said. These loyal, dedicated staff, who are professionals in their own field, have delivered, yet are being threatened with privatisation. We are handing over this function to a group of people who we know are causing large numbers of our constituents severe

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problems as a result of their behaviour in the performance of their duties in other areas of fine collection and in the system as a whole.

All that is being asked for is the opportunity for existing staff to bid for their jobs. As the Bill stands, they will be excluded from being able to continue to perform the functions that they currently perform. Moreover, clause 24 would make available information held by HMRC to private bailiffs for use in the collection of fines. That is a step too far and it breaches people’s ability to maintain personal privacy with regard to their taxation affairs. That was never envisaged in previous consultations.

We have had experience of privatisation in the Ministry of Justice in recent times. Members in all parts of the House have raised the problems that we have had with the contracting out of the court interpreter services, which saw only 58% of bookings met. It resulted in chaos in the courts and criticism from the Public Accounts Committee.

I urge the Government to think twice about the proposed privatisation of an important service that is critical to many of our constituents, and to back the concept that what works is what matters. If the existing system is working effectively, it should not be put at risk as a result of what seems to be an ideological decision, rather than one based upon practice. It would be worth while for the Minister to sit down with some of the existing practitioners to gain their advice and, if the Government want further improvements in the service, to work with the existing staff—with the grain of the service—to achieve those improvements, rather than to go forward with this wholesale privatisation, which will prove to be not only counterproductive but, for many of our constituents, catastrophic.

8.53 pm

Simon Reevell (Dewsbury) (Con): I shall concentrate on one aspect of the Bill: clause 30, which deals with self-defence and which has been touched on already by my hon. Friend the Member for North West Cambridgeshire (Mr Vara). The clause introduces important practical changes, but I wonder whether it concentrates too much on where things are happening and not enough on what is taking place.

The title of clause 30 is “Use of force in self-defence at place of residence”. It has been suggested that the result of the provision is that an Englishman’s home is his castle, but I wonder whether an individual grappling with a burglar at 2 am is worrying about where he is, rather than what is actually happening. In other words, is his concern the defence of his own person, rather than the defence of his property?

I hope that my examples will demonstrate the importance of that point. Imagine a person who runs a petrol station in a rural area and lives in a house 100 yards away. If he is attacked in his home, the new law will apply, but if he is attacked at the petrol station just as he turns out the lights and is about to lock up, or while he is walking from the petrol station to the house, it will not apply. Someone who works as a night watchman is protected by the new law while they are at home, but when they arrive for work, the provisions will not apply. A vicar is covered if the burglars come to the vicarage,

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but if he goes to investigate a light in the church at night and behaves in the same way there, the new law does not apply.

We have heard an interesting example involving a farmer. If a farmer hears a noise downstairs in his home and goes to investigate with a shotgun that he has taken from his gun safe in his hand, the new law will apply, but if, after he has been shooting legitimately, he is wandering back through his farmyard and goes to investigate a noise where all his expensive machinery is kept, and is then boxed in by the same people and reacts in the same way as in his home, the proposed law will not protect him.

Leaving aside the obvious point that we are asking people to remember that the law is different depending on whether they are at home, just outside their home or at work, notwithstanding the fact that they could be attacked by the same person in the same way and in the same early hours of the morning, a different test will apply if ever someone who is alleged to have breached the new law by behaving in a certain way is tried alongside someone who dealt with another member of the gang, but happened to do so in an outbuilding. The person who confronted one of the burglars in his home may rely on the new law, but his brother or son who behaved in exactly the same way towards another member of the gang in the outbuilding will not be protected at all.

Dr Huppert: The hon. Gentleman is setting out an interesting argument. Does he accept that anyone who uses only proportionate force, given the circumstances as they believe them to be, will always be protected?

Simon Reevell: The point of the clause is to put in place the new test, but that test applies only in a dwelling.

The clause gets even more bizarre when we consider proposed new subsection (8B), which deals with the corner shop with a flat above. A shop owner who comes downstairs from the flat and meets a burglar in the shop premises will be fine, because he will be covered by the new definition, but the person who lives next door and has to step out on to the street before going into the shop to start their work there for the day, and who encounters exactly the same circumstances when locking up for the night, will not be covered. If those two people meet the burglar while the premises are open, the shop owner who lives on site has the advantage of the new law, because the shop is part of the building in which their flat is located, but his assistant does not, so a different test will be applied to two people in exactly the same circumstances and encountering exactly the same villainy—and, indeed, the same villain.That cannot be a sensible revision, and the reason is that the focus is on the place of residence as opposed to what the problem really is, which is self-defence.

If this was reconsidered, and if instead of the test relating to the dwelling it related to whether the person was a victim of a criminal enterprise, all the examples I have given would be neutralised, because in all of them the person concerned would have been a victim of a criminal enterprise, whether it was in the church, the petrol station, at home, walking from one to the other,

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at work as a night watchman or outside as a farmer. If that were the trigger, the person concerned could rely on the new test, but as it is drafted, all those contradictions apply.

Subsection (6) makes it clear that this would not be a retrospective provision, and I understand that, but the amount of publicity generated by this clause means that to a lot of people out there the law has changed already. It would be ridiculous to have somebody waiting to face trial in circumstances where once the legislation was passed, a prosecution would never be brought, because the test would have changed. In whatever form the section appears in the Act, it needs to be introduced as soon as possible so that people do not rely on it before it is available for them to rely upon.

I should have said at the beginning, and so I say at the end, that I draw attention to the fact that, as a practising member of the Bar, I have an interest.

9.1 pm

Mr George Mudie (Leeds East) (Lab): I want to speak about the withdrawal of family reunion visas. The Government propose to do away with recourse to an independent judge, in place of which they say that a fresh application should be made to the same people who turned down the application in the first place—an additional paper might swing the case. I have 20 years of personal experience of visa work in my constituency. In 2000, the decision of the Labour Government was deeply and warmly welcomed by the ethnic communities, families who have come here but have mums and dads, grandparents and siblings in another country. We all speak about family values, but I think that all hon. Members will agree that they should be treasured. It is important that in the event of a wedding, a birth, an illness, a funeral, even just so that the old lass can see her daughter and grandchildren, family members should have the opportunity to visit.

I want briefly to describe some of my experiences. There is the elderly person, an old lass, from a village in Pakistan who wants to visit her daughter and granddaughter. The decision is that there is something in the papers—something that the old lass knows nothing about—that leads someone to believe that the motivation for coming is not the one set out. Case closed—refused. There is the person who has come here two or three times and every time has returned home within the visa period, but that is not taken into consideration. They are not trusted to go back. Cases are turned down because documents not asked for were not given. I had a recent case concerning a man who I thought was 80, but rather than mislead the House I will settle for the 70s. One of the reasons for his being turned down was that he did not give the entry clearance officer any details of his employment. The provision means that the applicant has to go back to that entry clearance officer for a decision rather than an independent judge.

It might be said that I am prejudiced about those cases, but I have three reports from the independent chief inspector of borders and immigration, John Vine. The second one says:

“While there were no decision quality issues revealed in 761 cases”

out of 1,500 cases

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“I found there were errors affecting decision quality in 515 cases. In a further 201 cases the lack of evidence retained on file made it impossible for me to assess whether the correct decision had been made.”

The same report from 2011 said:

“The general quality of decision-making can and must be improved.”

In 2010 John Vine discovered that UK Border Agency managers were dismissive of determinations made by immigration judges to allow appeals. More importantly still, he found that because these cases were being dealt with in Abu Dhabi, where all the Pakistani cases go for a decision, people from the Gulf were being treated in a better fashion than people from Pakistan. It took John Vine’s intervention to address that. He is saying, as the professional commissionaire, that there is a lot wrong.

My personal experience—I think this goes for any inner-city Member with a large ethnic community—is that the situation is dreadful. The Minister will say, “No, we’re not asking you just to pay the fee again and send it back—we’re suggesting that you read the decision, see what basis you have been turned down on, and send those papers.” I have got news for the Minister: if someone brings me a decision letter and asks for my help, I go through it closely to see what the entry clearance officer is asking for or is turning a person down for, and then write a considered letter, get the evidence and send it for a review, as every Member of this House can. I can count on one hand the number of times when the entry clearance officer changes the decision; despite the fresh evidence, the decision is upheld. The Minister is going to tell our communities, “Don’t go to an independent judge.” Why do people want to go to an independent judge? It is not because 38% of cases are accepted, but because they will have someone who will listen, ask questions, ask for documents, and take a decision based on all those points.

I plead with the Minister to reconsider the heartbreaking decision to withdraw this right of appeal and to keep it, because it is desperately needed.

9.7 pm

Mr David Burrowes (Enfield, Southgate) (Con): I declare an interest as a criminal defence solicitor.

I welcome the Bill and want to draw out some nuggets that I believe can, in certain circumstances, be refined to be even more golden. On the whole thrust of the Bill in terms of efficiency and coherency, I welcome and support the single county court and single family court provisions. I particularly draw the Minister’s attention to the jurisdiction issue in relation to the youth court. The Government’s approach is to triage cases into the appropriate courts. The nugget that I particularly welcome is the change giving youth courts the power to grant gang-related injunctions. That is welcome in my constituency and in the borough of Enfield. We were the first north London borough to obtain a gang-related injunction, which led to a 14-month prison sentence. Indeed, the cross-partnership work in the borough has led to a 50% reduction in serious gang crime-related violence.

However, there needs to be flexibility. We can perhaps go further in making this nugget even more golden when dealing with young offenders. We have seen across courts the value of community justice, having drawn from America the examples of Red Hook and Harlem, and now there is the example of Liverpool as well.

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In our whole approach to community justice we must recognise that when someone comes to court they come with a whole package of concerns that may well go across jurisdictions. That arises particularly when dealing with young offenders, given the need for timely and effective intervention.

From my experience over the years, I know that young offenders often come with a package of family problems. They might well be the victims of abuse. There will often be parenting issues, and some children who appear before the youth court should be in care. At the very least, they are likely to be vulnerable. The magistrates who deal with them often also sit on the bench of the family division, and they have been expressing their frustration for a number of years that they cannot intervene quickly to enable those young people to get into the family court where appropriate welfare orders can be made. That is what happens in the Scandinavian jurisdictions, and the possibility of it happening here has been mooted by the Government in the past.

This is not a new issue. I refer hon. Members to the Home Office consultation document produced in March 1997 entitled “Preventing Children Offending”. Paragraph 103 states:

“Under the law at present, the Youth Court is not able to refer children to the Family Proceedings Court for consideration of a care or supervision order. It is possible that this might be a useful additional power which would enable the Youth Court to deal more effectively with difficult children.”

We then had an election, and the rest is history. I still believe that that proposal would be welcome, however, and it should be looked into. We have an opportunity to try to get young people into the right jurisdiction. The proposal has also been welcomed recently by the Youth Justice Board, which is very supportive of it. When John Drew, the chief executive, spoke at the board’s annual conference in November, he welcomed the opportunity, in appropriate cases, to get children to where they needed to be, which could well include the family court.

Another nugget in the Bill is the provision on community penalties. I welcome the proposal to ensure that there will be a punitive element to them. That is appropriate because, when an offence is serious enough to warrant a community penalty, the deprivation of liberty must be implicit in that penalty. That will now be the case. I also welcome the provision to allow the courts to defer sentencing at the pre-sentence report stage in relation to the provision of restorative justice. Fifteen years ago, I was involved in a pilot at Haringey magistrates court in which sentencing was deferred to accommodate restorative justice conferencing. We have been through many such pilots and reviews over the years, and the evidence is clear. It is about time we got on and dealt with this, and I welcome the fact that the Government are now pushing the measure forward. It will be based on the need not only for restorative justice but for quality restorative justice. We need to look at the details to ensure that the right people will be dealing with the provisions, and that the provisions are victim led and carried out to the satisfaction of the victims. That could well lead to a reduction in reoffending.

The hon. Member for Hayes and Harlington (John McDonnell) mentioned the provisions on fines. I welcome the changes in the Bill. Yes, they may lead to contracting out; “may” is a very important word in legislation. This is not about wholesale privatisation. The ideological

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bent is that we are on the side of the victims, all too many of whom are not receiving the compensation due to them. The financial penalties involved are simply not being paid, which is why we need to pursue all options to ensure that fines can be collected more effectively and quickly, especially in relation to compensation orders. The burden of the collection costs should fall not on the taxpayer but on the offender, and I welcome the fact that that will now happen.

I also welcome the new offence of drug-driving; it is about time that it was introduced. As a legal practitioner, I have defended many cases that were unable properly to be proven in relation to the impairment caused by an intake of drugs. I have seen the gaps that prevent such cases from being properly proved in court. The Bill provides clarity in that regard. We need to proceed with caution, however, and to ensure that cases are based on evidence and examine the specified levels. This is a complex area in relation to particular opioids and certain other drugs. We need to focus on ensuring clarity in the law, so that we do not allow people on prescribed medication to fall foul of the legislation, when its target is those who are flagrantly taking drugs and going out in a vehicle and causing a menace to others.

There is a medical defence in the Bill, but that might not be enough when a person is arrested and taken into custody. That person will have had their liberty taken away and will then have to prove their medical evidence in court. We shall have to see how we can deal with such cases proportionately, when we produce the guidance. On sentencing, I note that schedule 18 contains a provision to up the sentence for being unfit to drive owing to drug-taking to the equivalent of the sentence for causing death by dangerous driving. We need to ensure there is equity with driving with excess alcohol.

I welcome those and other provisions in the Bill, some of which will perhaps receive further refinement in Committee. I am also grateful to the Government for acceding to the wish of Members across the House and in the other place that the term “insulting” be removed from clause 5. That is welcome on the grounds of religious freedom and freedom of speech; it also demonstrates common sense.

9.14 pm

Mark Durkan (Foyle) (SDLP): I join other hon. Members in welcoming clause 38 as a sensible, proportionate adjustment with regard to public order. Clause 29, which the hon. Member for Hayes and Harlington (John McDonnell) has touched on, would remove the offence of scandalising the judiciary in England and Wales. However, the change is being made because a Member of this House found themselves cited on exactly that charge in the courts of Northern Ireland, so the issue is not being addressed where the problem arose. Will the Minister clarify whether, when and if the Northern Ireland Assembly gets around to having a legislative consent motion, that consent could allow the Bill to be further amended so that the removal of the offence of scandalising the judiciary in Northern Ireland could be accommodated?

Other aspects of the Bill also relate to Northern Ireland. The right hon. Member for Wythenshawe and Sale East (Paul Goggins) has just come back into the Chamber at the wrong time, because he will hear from

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me the familiar refrain that he used to hear when he was security Minister for Northern Ireland. I think that, in his book, I and my party colleagues are Patten pedants. We are insistent on keeping to the precise architecture, thrust and spirit of the Patten policing reforms and to protecting the Patten dispensation. The previous Government did some injury to that as a result of moves to put national security policing in Northern Ireland in the hands of MI5. Those activities were moved beyond the purview of the accountable policing structures in Northern Ireland, such as the scrutiny undertaken by the Police Ombudsman for Northern Ireland for the Northern Ireland Policing Board, which is where the ombudsman had been sensibly and deliberately placed.

The establishment of the National Crime Agency adds a further complication, because the Bill will create an additional police force and constables. Indeed, special constables will be created again in Northern Ireland. Having many years ago, courtesy of the civil rights movement, seen off the B Specials, we now face the potential appointment of NCA specials by the director general of the National Crime Agency. If we look at the Bill’s schedules, we will see that some people can be both NCA specials and Police Service of Northern Ireland officers, but that anything they do in one capacity cannot be cited in relation to anything they do in the other. The Bill provides that they can hold, coterminously, those two sets of constable powers, which will have serious implications for the Policing Board with regard to its key oversight role on policing. It will also create potential difficulties down the road for the police ombudsman in dealing with any complaints, and it means, presumably, that officers who are both NCA specials and PSNI officers will be subject to two separate complaint authorities.

Paul Goggins: My hon. Friend is making some important points that the Committee will need to consider in detail when the Bill is scrutinised line by line. Does he not agree that the most important thing is that, when a Serious Organised Crime Agency officer and, in future, an NCA officer acts with the powers of a constable in Northern Ireland, they should be as accountable to the police ombudsman as they would be if they were a police officer of Northern Ireland?

Mark Durkan: That is one of the things that has to be tested and clarified. If we look at some of the ousters that seem to be built into the schedules, we see that it appears that somebody cannot be cited in one capacity for something they do in another. That needs to be tested in Committee.

The Bill provides for a compulsion to be issued to the Northern Ireland Policing Board. There is obviously provision for there to be co-operation and engagement between the NCA and the Police Service of Northern Ireland, but there is also provision for directed assistance, which allows the Department of Justice to direct the Policing Board to provide particular assistance, whether or not the Policing Board wants to make that provision. It seems to me that the director of the National Crime Agency will be in a position almost to require the Department of Justice to, in turn, impose a requirement on the PSNI via the Policing Board. The Policing Board was given specific, deliberately assembled and properly protected powers in the Patten dispensation. It seems to me that those are being casually injured in these provisions.

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Many people in Northern Ireland will judge the performance of the National Crime Agency on whether it improves on the work that has been undertaken by SOCA and the Organised Crime Task Force, which is linked in to HMRC, SOCA, the PSNI and the Garda Siochana and deals not least with the issues of fuel smuggling, drugs and waste trafficking. People will ask about the difference between the NCA and SOCA. We know that the NCA will have four command areas and a bigger brief. I suppose that it is like the old advert for Baxters soup: “The difference is in the thickness.” People will want to know whether the difference is in the effectiveness of the way in which the agency works. In Northern Ireland, many of us are also concerned about the effectiveness of its partnership and engagement with others, such as the PSNI and the oversight mechanisms. It seems to me that not enough sensitivity has been shown so far to the interests of the Northern Ireland Assembly or the Policing Board.

This is an example of a Bill that could have particular implications in Northern Ireland. Yet again, the Government tell us that there will be a legislative consent motion from the Assembly, but no legislative consent motion has been put. This is another example of there not being joined-up scrutiny between legislators in this Chamber and in the devolved Assembly. With the Welfare Reform Act 2012, we had a different device. That legislation has passed through Parliament and it is just assumed that a karaoke Bill will be taken through the Assembly, with people able to change very little. They can sing it in their own accent, but no significant details can be changed, and yet it appears on paper as though it is a Bill. The legislative consent motion from the Assembly for this Bill will probably come after it is done and dusted. There needs to be better, more joined-up scrutiny on such matters.

Finally, I join other hon. Members in expressing concern about clauses 34 and 36 in relation to immigration and visas.

Several hon. Members rose

Madam Deputy Speaker (Dawn Primarolo): Order. I am changing the time limit again. There are three remaining speakers. We need to get to the winding-up speeches by 9.40. I will set the limit at six minutes, but if there are interventions, I will reduce it again.

9.23 pm

Sir Paul Beresford (Mole Valley) (Con): This being a lawyers’ Bill, I am tiptoeing in with great caution. I will touch briefly on two issues, the first of which is self-defence.

I learned a little about the self-defence issue a few years ago when I observed one of my neighbour’s windows being jemmied open by a gentleman. As he went through the window, I collected him by his heel and brought him back. He and I had a physical discussion, shall we say, and when the police arrived to collect him, he pointed out that his face was a different shape from the face that had arrived on the premises. While saying “I know my rights,” he asked the police to arrest me. Fortunately for me, the police took the gentleman away. When the policeman came back, he said to me, “At least you remembered to turn him round before you hit him. Therefore, it’s self-defence.” I did not say a word, but I went off and prayed, which is rare.

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In my constituency, there are a lot of shops in the villages, most of which have accommodation attached. Many of them are burgled on and off by people coming down from London, and this change will give them just a little more of a feeling that they can use self-defence. Some of them do so—some of them use self-defence that comes on four legs with a lot of teeth. I hope that the retail aspect of the provision will cover more than just shops, because many of my villages have cafeterias, restaurants and pubs. I wonder whether the Bill will apply to pubs as well as shops, because almost all my local pubs have residents above them.

The Minister for Policing and Criminal Justice (Damian Green) indicated dissent.

Sir Paul Beresford: From the way the Minister is shaking his head, perhaps it will not.

The right hon. Member for Wythenshawe and Sale East (Paul Goggins) mentioned CEOP, and I must congratulate him because it was a wonderful invention. It has been very effective and is getting more so. Unlike him, however, I believe that it should be in the NCA. CEOP works nationally and works for the UK internationally, examining individuals, gangs in the UK, international trafficking gangs and some of our citizens who take their child sex activities overseas. It is a logical step to link it with the organised crime police teams, the immigration teams, the border teams and so on.

The previous chief of CEOP was opposed to the proposed change and resigned in a bit of a huff, which I really think was illogical. Peter Davies, the newish head of CEOP, is right behind the change. I believe that is as well, because we are starting to see new nasties appearing in the field. There are signs of increasing trafficking, ritual abuse and possible multiple murder. The depths to which child abuse appears to be able to sink are beyond what any of us would have thought. The police are fighting it, but setting up the NCA with CEOP as part of it must help us, and I certainly support the Bill and CEOP’s move into the NCA.

9.26 pm

Dr Julian Huppert (Cambridge) (LD): It is a pleasure to be called to speak. This is a large Bill, and it has been noticeable that most of the debate has focused on a few specific parts of it. That is a tribute to the fact that the rest of it is clearly less contentious and rather more successful.

I wish to highlight a few concerns that I have. I welcome the creation of the National Crime Agency in part 1, but an important question is how we can keep the SOCA brand internationally. I look forward to the Home Secretary’s work on that. I have a couple of concerns about how the NCA is to be inspected and made transparent. The Bill allows for Her Majesty’s inspectorate of constabulary to examine the NCA but allows discretion as to whether the Independent Police Complaints Commission will examine it. It seems to me that the NCA will be fundamentally a policing body and should be subject to the IPCC in the usual way. I hope that that will happen through primary legislation.

Similarly, the NCA is excluded from the Freedom of Information Act 2000. In many cases, of course, it would be inappropriate for it to be subject to FOI, but a

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number of other organisations, such as the police, the immigration services and Customs are not exempt but provide information where they can. It would be in the interests of transparency for a similar provision to be made in this case.

I do not have time to go through the details of much of the Bill, but I am aware that clause 30 has received a lot of interest in the House. It is clear that the current law allows force to be used against a trespasser if that force is reasonable and proportionate in the circumstances as they were considered at the time. That is an important defence, because people can make errors of judgment in the heat of activity. However, the Bill takes it a lot further, as it will mean that somebody can use self-defence even if they use a disproportionate level of force given the facts as they believe them to be at the time. It will not allow grossly disproportionate force, but it will allow people to be disproportionate.

I absolutely understand that in many cases, someone who has tried to defend themselves should not be arrested but should be treated as a victim while the matter is examined. However, it seems to me that people should be sensible and use only proportionate force, and that we should not allow disproportionate force. We need a change not in legislation but in how the police interact with people in such circumstances.

There is some extremely good stuff in schedule 15 to the Bill about restorative justice—an issue core to Liberal Democrat thinking for a long time. A lot of research backs up the role of restorative justice, and I pay particular tribute to Professor Larry Sherman who has done a huge amount of the fundamental research showing how effective it is. I am pleased that the Government are putting money into restorative justice but they may need to make rather more than £1.5 million available, particularly if it turns out to be successful and very popular. We know that restorative justice reduces reoffending and is far more satisfactory to victims than prison is. I am also pleased with progress on community sentencing.

There has been a large discussion about family visit visas and there is a problem with the incredibly high appeal rate—the figure I have seen was something like 60%. It seems that there are two possible solutions: the first is to have better decision making by UK Border Agency, and the second—the option the Government have chosen to adopt—is simply to stop appeals happening. We need the Border Agency to be much clearer about the information it requests and give people the opportunity to provide extra information that was not initially required. That could solve the problem in a far simpler and less draconian way.

I would be grateful for the Minister’s comment—it may be a written answer—on the specific issue of citizenship for the children of unmarried British fathers when the child was born before 2006. The former Immigration Minister has highlighted that the anomaly would be changed when there was legislative opportunity, and I wonder whether it might be possible to include that in the Bill. If not, we will have to wait until the next one.

I am delighted that the House of Lords voted to remove the word “insulting” from section 5 of the Public Order Act 1986. That is in line with Liberal Democrat policy and we have already heard many instances

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of where that provision was unreasonable. I hope the Government will reflect on section 4A of that Act, which has similar provisions about insulting behaviour. There are other steps that I hope the Government will consider or review to try to protect freedom of speech, such as, for example, section 127 of the Communications Act 2003, which was used so inappropriately in the Twitter joke trial.

In the last minute remaining, I want to consider drug-driving. I am strongly in favour of a drug-driving offence that mirrors that of drink-driving. There is definitely a problem with people who are incapable of safely driving a vehicle being in a situation where they could cause serious to harm to others. That is right and I accept that the current position requires too high a level of proof. However, one should not use this measure as an excuse to deal specifically with illicit drugs; it should be tailored to existing levels of impairment. In fact, alcohol seems to be the most worrying issue.

A specific issue has been raised with me by Napp Pharmaceuticals, a company in Cambridge that is concerned about the effects of the proposed legislation on patients taking legitimate, prescribed medicines, in particular to manage chronic pain. There is significant evidence to suggest that their ability to drive may not be impaired compared with other drivers, but the patient would have the onerous burden of proof to show that they should be allowed to drive. Napp Pharmaceuticals is concerned about the consequences of that and would rather stick with the approach of the Road Traffic Act 1988. I hope the Government will reflect carefully on that.

9.33 pm

John Hemming (Birmingham, Yardley) (LD): There are some very good things in this Bill, but while I declare my interest in justice for families and concern about miscarriages of justice in the family courts, I have to say that it is also a missed opportunity. Lord Bingham’s excellent book “The Rule of Law” identifies eight principles for the rule of law. The first two are that the law should be accessible and not depend upon judicial discretion. That underlines that law should be comprehensible to non-lawyers and hence it should be possible to identify miscarriages of justice even when appeals are not allowed by the Court of Appeal. The Court of Appeal should not be seen as having a form of papal infallibility.

My academic qualifications are in science rather than law, and that is where my concern about family court proceedings comes from. Rachel Pullen’s case—I recently assisted her to send it to the Grand Chamber of the European Court of Human Rights—is a perfect example of that. She was deemed on the basis of a single expert report to have a significant learning disability and not to have the capacity to instruct a solicitor. I am, however, lucky enough to have had access to a second expert report, the comments of her GP and an IQ assessment for employment, and to have met her. All those things point to the original expert being plainly wrong. However, the case has been considered by the county court, the Court of Appeal, the House of Lords Judicial Committee and the initial Chamber of the European Court of Human Rights without that being picked up.

Sadly, that case is not unique. I have spoken previously in Westminster Hall on 21 March—at column 244WH—about other people whose mental capacity has been wrongly removed from them and I will not repeat those

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details now. If a case can travel through the appellate system to Strasbourg without the scientific facts being properly determined or even open to challenge, there is a serious problem.

A more recent case is unique because the mother kept her capacity, having faced its removal after an allegation of querulous paranoia by her barrister. She had been asked to spend £3,880 on an expert’s fee, even though the NHS had previously found no diagnosable conditions and her employer stated that she seemed fine. Nevertheless, she managed to win the battle as litigant in person with the assistance of a McKenzie friend. That does, however, raise serious questions about equality of arms. Nothing in the Bill will improve the situation when many people have their capacity wrongly removed or improve the quality and accountability of scientific expert evidence. There are two possible solutions: a Daubert procedure would assist for a case-by-case review, while allowing academic access to secret proceedings, as I suggested in my family justice private Member’s Bill, would provide a level of quality control currently lacking.

The proposal in the Bill to allow proceedings to be broadcast could help to improve the integrity of the legal system. Early-day motion 536 refers to a case heard on 2 May. Initially, the McKenzie friend who assisted the mother in that appeal told me it had been allowed, but after I chased it for six weeks’, a transcript was found stating that it had been lost, which caused me concern as I had been told that it had been allowed. I therefore wrote to the court in July requesting that I be allowed to listen to the official recording, but I got no response.

Hence in October I wrote to the Minister. I then had a response from both the Court and the Minister saying that the rules had been changed and that I could not now listen to the hearing. I wrote asking for the reasons, and it was only in late December that I was told by the judicial office that the Judicial Executive Board had decided not to allow people to listen to official recordings. Its argument was that in theory a recording in open court could include legally privileged material. I would argue that someone speaking in open court who knows that everything is being recorded would not expect the conditions needed for privilege. The judicial office has also said that the JEB is not subject to the Freedom of Information Act, and hence we have no idea who participated in the meeting that made this decision or when it was taken.

To me that looks like a cover-up, but we do not know. If it is, we need to know who was involved, how high it went and why. It is puzzling that people have failed to say when this rule change happened. If the pronouncement of the judgment was broadcast, under clause 28, we would have an independent copy of the hearing and would be able to check why there was a discrepancy between the report of the hearing and the official transcript. Another thing missing from the Bill is a proposal to make the JEB clearly subject to the Freedom of Information Act. It is arguably caught by the Judicial Studies Board being subject to FOI, but that is not made explicit in the Act.