UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE
To be published as HC 741 -i

House of COMMONS

Oral EVIDENCE

TAKEN BEFORE the

Justice Committee

THE WORK OF THE SECRETARY OF STATE

WEDNESday 28 NOVEMBER 2012

rt hon chris grayling mp

Evidence heard in Public Questions 1–67

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Oral Evidence

Taken before the Justice Committee

on Wednesday 28 November 2012

Members present:

Sir Alan Beith (in the Chair)

Steve Brine

Mr Robert Buckland

Rehman Chishti

Jeremy Corbyn

Nick de Bois

Mr Elfyn Llwyd

Seema Malhotra

Yasmin Qureshi

________________

Examination of Witness

Witness: Rt Hon Chris Grayling MP, Lord Chancellor and Secretary of State for Justice, gave evidence.

Q1Chair: Lord Chancellor, welcome to the first formal session with you before the Committee. I start with an apology. Because of a cold, I am a bit deaf in my right ear this morning. I hope it will not lead to a differential inability to hear some of the things said in the course of the proceedings, but if I miss something that is my excuse.

Chris Grayling: Don’t worry at all. I have a variation of the same and I am therefore croaking a bit this morning.

Chair: The acoustics in this room don’t help a great deal. I will ask Mr Brine to open the questioning.

Q2Steve Brine: Good morning, Lord Chancellor. When you were appointed to your post, the Daily Mail, which as you know I read every day, quoted you as saying that you wanted to be a tough Justice Minister. I read with great interest your speech to the Centre for Social Justice last week, and I have read closely things that you have said since you have taken over. Who is the real Chris Grayling?

Chris Grayling: The answer is that he is someone who believes in a justice system the public have confidence in. He is also somebody who is a reformer and believes that, whether you are the hardest hard-liner on crime or the most liberal observer, we all have a common interest in tackling the rehabilitation of offenders and preventing people from reoffending. My mantra is that I want more of the right people to go to prison, and I sometimes share the frustration of members of the public who don’t feel that justice is being done, but at the same time, once we have people in the criminal justice system, if we do not make a real effort to turn their lives around, we are doing a disservice to the whole of society.

The people in our prisons are not necessarily a group of evil "Mr Big"s; they are people who come from the most difficult of backgrounds; they have had enormous challenges in their lives; they may have mental health, addiction and literacy problems; they may have dropped out of school at the age of 11 and 12 and not been back since. One quarter of the people in prisons was in care as children, which I still find a completely shocking statistic.

The real Chris Grayling is somebody who believes the justice system has to be hard, firm and fair but, at the same time, has got to have a much stronger rehabilitation element in it for the benefit of society as a whole.

Q3Steve Brine: You set out your five priorities for the Ministry of Justice and you said that was what transforming justice looked like. They are there for all to see and it is a matter of public record. You refer to changes in the way we deal with children who are offenders and much greater focus on education in a secure environment, and there are some proposals coming from you as to a review of the secure environment. I would ask you to hold off slightly until we have finished our report on youth justice, which I think you will find very interesting.

You do not mention in there the stuff about very early years, which is something we discussed before. The Royal College of Speech and Language Therapists came before this Committee as part of our youth justice inquiry. They gave us very interesting evidence about very young children in reception year who have speech and communication difficulties, and how a relatively minor speech and communication difficulty can start to spiral behaviour that follows them through their life and can lead to a brush with the criminal justice system. Once the criminal justice system gets you, it is very hard to get away from it, which is why we have the reoffending rates that we do. You have worked in other Government Departments; you have been shadow Home Secretary. As Justice Secretary, to what extent are you prepared to reach across government and dip into the early years agenda and crime diversion agenda?

Chris Grayling: Very much so. You have put your finger absolutely on the problem that we face. This is not a one-issue challenge. The nature of the social challenge we face is like a jigsaw puzzle of different issues, which range from really good early intervention when children are very small; to teaching with the use of phonics at school to make sure that kids can read; to some of the changes that the Secretary of State for Education is putting in place around the freedom of schools to manage their affairs more closely, with greater degrees of discipline in the classroom; and the work I have been doing with Iain Duncan Smith on welfare reform in trying to break the culture of worklessness.

But in my current role I get them when they have gone a long way down the road already. I would rather they weren’t there, but they are. I see the job of the MoJ as being both to intervene and set boundaries-because a lot of young people growing up in the most troubled backgrounds do not really experience boundaries as they grow up and the criminal justice system has to set boundaries-and, at the same time, to do what it can to put together some of the things that were not put together earlier in life. A good example of that is education. If we are detaining young people who cannot read and write, it would be a total travesty not to use the time that we have with them at least to try to get them to start making progress towards gaining qualifications.

Q4Steve Brine: The clerk has just passed me a note about my declared interest when we took evidence from the Royal College. I am married to a speech and language therapist who works in adult care, so it is very different.

I want to take you back even further. The other day I saw the statistic that 80% of brain cells of an individual are manufactured during the first two years after birth, and if the process of building those brain cells goes wrong the deficits are permanent. There is quite a lot of intellectual work going on at the moment; an awful lot of papers are being written. In government some people are thinking along this agenda about those very early first two years. The way that we teach parents to be parents and the way they nurture and love babies has a huge impact on their life chances and the likelihood of them ending up in the criminal justice system. What is there, on your part, to pursue that agenda?

Chris Grayling: In terms of the ability of the criminal justice system to sort that out, the responsibility really lies elsewhere in government, but through the Social Justice Cabinet Committee and the links that exist between different Government Departments we try to make sure that things are as joined up as they possibly can be. I have very consciously separated the responsibility for women and men in prisons. There is clearly a very real issue about how we detain women in prisons.

Q5Chair: They are interrelated of course.

Chris Grayling: Yes, but also there is an issue about women with children. When I went to Holloway one thing caught me by surprise, which is something we ought to be addressing. One of the staff told me they had an inmate at the moment who was born there. We have a situation where young women are receiving jail sentences and often they are lone parents. How do we address the issue of the children of those women? We don’t want to separate kids from their mums, but is there something that we can do differently that enables both the criminal justice system to act appropriately where somebody has done something wrong but also recognises the very real issue of those parents who have children? That is something Helen Grant, who is responsible for that area, is starting to do work on. We will be interested to see what the Select Committee has to say, but I very consciously split the responsibilities for male and female prisoners because I do think there are different issues to address there.

Q6Nick de Bois: To go back to the point about looking across education in other Departments, you will be familiar with the work that Iain Duncan Smith did on gangs and youth violence. There were identifiable triggers that required multiple agencies to be aware of that could help keep people off a path. Do you have any or sufficient confidence, based on what you have seen so far in government, that we can get inter-agency work properly aligned so that we can flag up where it may be going wrong earlier on?

Chris Grayling: I think so. For example, if you look at the troubled families work that we are doing, which is shared across different Departments, and the way my Department works with the Department for Education over youth justice, a lot of it is about the leadership we give. I am meeting Iain tomorrow morning to talk about issues of commonality between the Departments. It is important that Ministers in this area talk regularly, share what they are doing and look at ways of pooling activity and doing joint projects, where it is appropriate to do so.

It is not just about government. One of the questions put to me recently was why I think the crime rate is falling. There is a whole variety of answers for that. It is more difficult to nick a car than it used to be; we have a higher prison population and, therefore, by definition, some of the people who might be committing offences are behind bars. But, if you look at all the work that is being done by the local community and voluntary sector, sometimes private groups, with younger teenagers to try to make sure we engage them and steer them away from potentially getting involved in crime and antisocial behaviour, it is inconceivable that that is not making a difference. I genuinely think that that is one of the factors why we have fewer young people entering the criminal justice system and a lower crime rate, and we want to encourage that kind of activity at a local level as well.

Q7Rehman Chishti: In relation to prisons and prisoners, picking up your earlier point about being hard, firm and fair, can I switch over from the Daily Mail to The Daily Telegraph of 20 November 2012, which says that prisoners could be banned from watching Sky TV in jail. In relation to that, what steps are being taken to deprive prisoners of certain privileges that hard-working families out there are not able to get?

Chris Grayling: We are aware that there are a number of different issues around the regime in prisons. That is one example. There is the ability to access privileges at different stages of your time in prison. One example where there is a question mark is that, if you are released from prison and commit a breach and you are recalled, you reenter prison at the medium level of privileges rather than the lowest level, which I am not sure is right. Jeremy Wright and I decided that, rather than try to deal with each individual item, we would make a review of the whole prison regime, which has not been done for about 15 years, to say, "How defensible is this?"

You have to make sure there are two things at the heart of the way a regime within prison works. The first is that it has to be defensible in the eyes of the public. If it seems to be way out of kilter, it will create frustration with the system, and that doesn’t do anyone any favours. The other is a very practical one. We are dealing with people who come from very difficult circumstances outside prison, and it is often the case that what they experience in prison is a greater degree of comfort and security than they have experienced outside. That is not a good thing for us. It may be something we cannot totally solve, but I do not want people to look at prison and say, "I’m not worried about going back there."

Q8Chair: But isn’t that unavoidable, in that for those whose lives are the most disrupted to be in a situation where they are to some extent protected from violence against them, and where they are fed and many of the troubles in their normal life are removed, it is bound to seem less harsh than it would seem to you or me?

Chris Grayling: That is why I say in so far as we can, because in some circumstances what you are saying, Sir Alan, is absolutely right. This is the first time in their lives they have had three meals a day and they have been in a reasonably stable and secure environment. That is a damning indictment of the environment they come from and it is not something we can easily solve, but I want to make sure that, at the same time, we don’t make the regime in prison one that is too far the other way. It is really looking at all of it in the round. Clearly, we need to have incentives for good behaviour in prisons and a regime that allows our staff to manage prisons effectively. At the same time I want to make sure we have got the line right, and that is what we are looking at. We decided to do it in the round rather than pick off an individual item and say we will look at this or that.

Q9Chair: Don’t you want a regime which also encourages people to take responsibility for the consequences of their actions? One thing a Norwegian prison governor said to us, which stuck in our minds very much, was, "We fill our prisons with people who have never taken on responsibility for the consequences of the harm they’ve done, and immediately we don’t give them any responsibility at all. We organise their lives for them, feed them, give them a bit of work to do, and they don’t have to make any decisions at all." Haven’t you got to have a regime that gets people taking decisions and understanding the consequences?

Chris Grayling: Absolutely, but that is why, if you have a regime where somebody leaves prison and breaches and comes back, there is a real question about whether they should come back on to the medium level rather than the basic level of privileges. It is things like that we want to address, but to do it properly. It is very easy to do it on the hoof. Personally, I do not think that prisoners in prison should be sitting there watching a match on a Sky Sports subscription TV on a Sunday afternoon. That does not mean they should not have access to television, but that is just one example of things where we say, "First, is this really defensible in the eyes of the public, but, secondly, does it send the right messages internally?" You need an incentive to behave well, to take greater responsibility and to do work within prison, but there has to be a limit to how much you can get while you are in prison because there are things you want people to believe they can only get when they are out.

Q10Yasmin Qureshi: We had a discussion about the Daily Mail and The Daily Telegraph about what should happen to prisoners. Doesn’t it seem almost as if the policy of how to deal with prisoners is being led by The Daily Telegraph and Daily Mail? Should they really be seen as reflecting completely the entirety of the public? Should we not see beyond The Daily Telegraph and Daily Mail headlines?

Chris Grayling: Of course we should. I also read The Guardian. I don’t listen to anything that any of them say, but I recognise that most of them reflect a view that would be shared by their readers. What matters to me most of all is not necessarily what I have read in that day’s papers but what I think I would be able to defend if I walked down the high street and talked to people about what we were doing in the criminal justice system, and that is important. If people believe that we are not doing the right job, it undermines confidence in the system. At the same time, most people probably don’t recognise the degree of social challenge for those in our prisons, so we have to adopt a halfway house. To go back to Mr Brine’s original question, yes, I want to be tough and, yes, I want a message to come out from our criminal justice system that if you commit crimes there are consequences, but I also want a criminal justice system that recognises those social challenges and helps people turn their lives around.

Q11Yasmin Qureshi: I want to ask some questions regarding departmental savings. As you are aware, all Departments are having to make a degree of cuts and savings. When the National Audit Office did a report about restructuring of the National Offender Management Service it suggested that changing sentencing-for example, stopping early releases and reducing the prison population-would cut down the financial cost, but that programme has now been effectively disbanded. At the same time, the MoJ-the Ministry- wants to strengthen, rightly, community sentences and to do more with restorative justice. That will cost another £60 million, possibly more with additional staff. In that respect, how are you able to make departmental savings while achieving both objectives?

Chris Grayling: It is doing things in a smarter way. I do not want a criminal justice system, prison system and system of community sentences where effectively the message to the courts is, "Look, you can’t actually sentence that person to what you want to sentence him to because we don’t have the money to pay for it." That would be a disastrous position for our criminal justice system to be in. We have to do things in a smarter and more cost-effective way.

If you look within the prison system, there is a huge variation in the cost of keeping people in different prisons. Oakwood, which is our newest prison, costs about £14,000 per year per place; some of the older prisons are nearer £40,000. One of the things we want to do as quickly as possible, in so far as we can do so within capital spending constraints, depending on the ability in some cases of private finance to help us, is transform the prison estate and bring down the costs. That can be done in two ways. It can be done by a new-for-old programme within the prison system, but we have also just announced that we are going to do some quite big changes, in partnership with the prison governors, to deliver a lower cost regime within prisons. They have come up with a number of innovative ideas that we want to enact. I think it is about making prison cheaper and not having less prison.

The same principle applies within the community arena. We spend too much on community sentences. In London we have just handed over the management of Community Payback to Serco. I visited one of their projects quite recently and was impressed by what I saw. It has brought down the cost of delivering community sentences quite significantly. Having organised full-time activity programmes within the DWP-I emphasise that it was with a very different cohort of people for a very different purpose-I have a reasonable idea of what they cost. What I see within the MoJ, and this is just the cost of the programmes, not the supervision around them, is that we seem to be spending too much money. It is about using the budgets in a wiser and smarter way. If you are trying to deliver savings in government by slicing and slicing without doing some transformational stuff, in the end your services fall down. You have to change the way you do things and the premise on which you do things, but I am absolutely not in favour of creating artificial mechanisms to bring people out of prison or not put people into community sentences just for financial reasons.

Q12Chair: Is it really possible simultaneously to meet the savings that are being asked of you by the Treasury and to have a policy not only of no reduction in the prison population but in some respects a possible increase, because you think there are some people who ought to be in prison that aren’t?

Chris Grayling: The answer to that is yes. I would pray in aid most big commercial organisations across the western world, who, faced by the challenge of increased cost pressures and customers looking for lower prices over the past 20 years, have consistently delivered a lower cost base while retaining the quality of products and service they deliver to their customers. I don’t see why the public sector can’t do the same thing; that is certainly what we are aiming to do.

Q13Nick de Bois: At a slight tangent, on the question of cost, have you been able to estimate the cost-benefit if we are able to reduce the number of foreign nationals in prison, because I imagine that would have some effect on prison places?

Chris Grayling: There are, give or take, 13,000 people from other countries in our prisons. It would have a huge impact on the budget. I have the very clear goal of trying to reduce that number, but I would say to the Committee-I am sure all of you will be aware of it having looked at it-that it is not as easy as it appears, because what it costs us it would cost somebody else. I am not in the business of taking a rapist from a country in Africa, who is in a jail here, and saying, "Will you go back to Africa? We’re not worried if you are in jail or not." I don’t care where they are; I don’t want dangerous criminals walking the streets. We have to be in a position where the country we are talking to-their country of origin-is willing to take them, put them in jail and keep them there for the same period of time.

We are working very hard and redoubling our efforts to make sure we can do that. There are arrangements within the European Union gradually coming on stream. Jeremy Wright is taking a lead in trying to see this through as fast as we can, but I do not want to mislead the Committee or the House by saying I think it is possible to deliver transformational change quickly, because I don’t.

Q14Seema Malhotra: The Government have focused on payment by results as a key means of introducing their rehabilitation revolution. The MoJ initially planned for six pilots to test different ways of delivering this. Helen Edwards, the DG for criminal justice at the MoJ, explained the rationale for this, including the fact that it is quite complicated and you need to test ways to get this right. You have abandoned pilots in favour of rolling it out nationally, and, arguably, this will be untested. Do you consider this to be overly-risky?

Chris Grayling: I don’t consider it to be overly-risky. In government, if you are going to be a reformer you have to bite the bullet and reform. There is a real danger that government just pilots and pilots and, in the end, nothing really happens for years. This is a really important way of delivering much better rehabilitation of offenders.

My key vision, which I set out in the speech you have seen, is far from the situation at the moment where prisoners, even those who are going to be supported by probation, basically walk out into the street and have an appointment with the probation officer in a few days’ time, and those with short sentences get no support at all. They have just 46 quid in their pockets and go straight back on to the streets. I want there to be better support and mentoring of them when they leave prison and people to help them get their lives back together again. I see the payment-by-results route as the way to deliver that.

We have some good experience from the pilots that have already taken place. If the Committee has not been to see the work being done in Peterborough, I would encourage and invite you all to do so. I was very impressed by what I saw. There was a lot of commonality between what is being done there and what I want to see across the whole country. This is not going from a blank sheet of paper. If you believe passionately that something needs to change and you need to reform it, there are times when you have to say that five years in government might seem a long time, and two and a half years to the next election might seem a long time, but it isn’t. There are times when you have to believe in what you are doing and drive with it.

Q15Seema Malhotra: Arguably, there are some elements that mirror the work programme. Possibly, there will be the same or similar providers in both markets. The work programme we now know has delivered considerably below its target. If the DWP has been experimenting with PBR in this way for several years and hasn’t got it right and hasn’t got it working in a more straightforward area, has this increased any of your concerns about rolling it out nationally so fast?

Chris Grayling: It is very important to strongly defend the work programme. Some of the coverage this morning is not in any way a true reflection of the position of the work programme. If you look at the headline numbers, people say that only one in 28 people have got jobs for six months. You are talking about a statistic published or collated when the work programme was 12 months old. You can’t get a job outcome until you have been in work for six months, so, by definition, half of the 800,000 people referred to the work programme who are being talked about today could not have got a six-month job outcome. Even if they got a job one second after joining the work programme, they could not have been in work for six months by the time that statistic was collected. That most immediately is a reason why the portrayal of the work programme is not in my view an accurate one.

Of course, people don’t get a job one second after they join the work programme. These are people who have been struggling to get into work for a very long period of time; they are the ones in most difficulty. Jobcentre Plus helps 90% of people on jobseeker’s allowance back into work within a year. These are the people who didn’t make it. Therefore, by definition it will take the provider some time to work with them and help them get back into work. One of the things we are experiencing is that long-term unemployed are often happy to go into a short-term contract to get some experience before they get into longer-term work.

Q16Chair: Are you expecting similar short-term evaluations to be critical of the roll-out?

Chris Grayling: I will come back to the offender piece in a moment, but the view of yesterday’s statistics is very premature. If you look at the numbers entering work who started jobs and have not yet got to six months, or who have had a period in work and are now looking to carry on in something else, the number is much higher. The Employment Related Services Association said yesterday that one in four of the people who started in the work programme in that 12-month period had gone into work, which is a pretty good number. We must not allow the debate over the work programme to detract from what we are doing here.

The model of what we are doing here is going to be different inevitably, because we will not be costing or pricing on the basis of an individual. The payment-by-results regime will be about bringing down the overall reoffending rate across a cohort of offenders. We will look at the key intervals-we are still working through the modelling-and assess them. We know that people are more likely to reoffend in the first few weeks, so the first question will be: can we get them to the point at which the level of reoffending tends to drop away? We know that after a year, if they have not reoffended, they are much less likely to reoffend in the future.

It is picking moments in that cycle, looking at the overall level of cohort reoffending and saying, "Has the provider succeeded in bringing down that overall level of cohort reoffending?" One thing this will certainly have in common with the work programme is that the risk to a greater or lesser degree, depending on where we draw the line, sits on the shoulder of the providers. I was a tiny bit surprised yesterday to hear the Chairman of the Public Accounts Committee attacking a programme that puts the risk on to the contractors. Usually, the Public Accounts Committee beats up Government Ministers for paying too much money to contractors. It is the first time I can remember that Committee attacking Government Ministers for placing too much risk on the shoulder of contractors. The contractors themselves will form a view about how much risk they are willing to carry in the bidding process, but I want them to have to chase best practice and innovation in the best ways possible that they can to prevent people from reoffending and therefore earning a return.

Q17Seema Malhotra: What do you envisage happening if a provider decides at some point that it is too costly to continue operating, or it is incredibly difficult to meet targets and therefore decides to cease providing services? How would you manage the risk in such a scenario?

Chris Grayling: In such a situation you have to have a short-term contingency plan that enables somebody else to come in and manage that contract for a period of time while you re-let it. You can’t have any break in the provision for offenders. This is much too serious an area. What is different about this and the work programme is that we must be absolutely certain that the person being supported on D minus one is getting support on D plus one. With the support of reoffenders you don’t want a break in what happens. We have to make sure in the way we contract this that there is provision for a seamless transition if a provider falls by the wayside.

Q18Chair: The same fear is raised by the prison contracts that are being dealt with at the moment. I have a constituency interest in one of them. To me, it is very reminiscent of the situation you have in the rail industry, where contractors take on obligations that they then can’t meet. They get the contract because they make such rosy offers and are unable to fulfil them. As you say, you have to have a seamless mechanism to take over, but in the meantime you may have turned down a more realistic bid, whether from the public sector or another private contractor, that would not have put you in that situation.

Chris Grayling: There have been many debates about the way in which the rail industry was privatised. I have had this in my own constituency. My morning train with Southern was not always run by Southern, but it has always run, or most of the time anyway. If you have a transition of franchise management between two organisations, the train doesn’t stop for a few days while the new management takes over. I would not use the same analogy for prisons, but I don’t believe the move of a prison from the public to the private sector means that one day there is a public sector team, the next day there is nobody there at all, the prisoners are running riot, and the day after somebody else arrives. It is about managing a seamless transition and has to be about that.

I appreciate this is a sensitive issue for your constituency, but you will also be aware from the announcement I made that I inherited a programme of planned privatisation of nine prisons. I have not gone ahead with all of those. I have thrown down a friendly challenge to the public sector, who had come forward with ideas about how we could deliver savings more quickly, by saying that, if we can deliver those across the whole of the public sector prisons over the next couple of years, it eases some of the pressures they have been concerned about in terms of privatisation; it enables us to achieve some of our financial goals and to say that the public sector can deliver when it is under pressure to deliver. I am not somebody who is anti-public sector instinctively and absolutely. I want what works, and this is an opportunity for the public sector to prove it can deliver for us.

Q19Jeremy Corbyn: Do I detect that you are beginning to have doubts about the whole privatisation strategy where companies can take on contracts, possibly with unrealistic bids, and when it doesn’t work they can just walk away from them, whereas the public sector cannot walk away from them because they are there as a service? In any case, many of the staff who are delivering the service one-to-one with prisoners, or whatever else, are the same people who endlessly change employers.

Chris Grayling: Let’s be clear. I am a supporter of privatisation. I am not a supporter of privatisation in all circumstances and in all areas, but I think the private sector brings a level of management discipline to contracts that often is not found in the public sector. It is not the case that I believe all public services should be disbanded and handed over to the private sector. I would absolutely agree with you that I would look very hard and carefully at any bid that we received, and I am not interested in bids from the private sector that are unrealistic. The classic example is where you bring a builder into your home and he says he can do the work for £5,000 and magically it turns into £10,000 in the end because he can’t do it. That is not good for you, and I don’t want the same to happen to public services. I expect somebody who bids for a contract with my Department to bid realistically. We will look very hard at the nature of their bids and ask questions about whether or not we believe it is deliverable. If we believe it is not deliverable, we won’t accept the bid.

Q20Mr Llwyd: I would like to ask you about proposed reforms to community sentences. You will be aware of the new clause tabled by the Government to the Crime and Courts Bill, which states that, where the court makes a community order, it must include in the order at least one requirement imposed for the purpose of punishment. Tagging is very much an issue. The likelihood is that in all cases, bar about 5% of exceptional cases, there will be tagging involved. It follows that from the current 150,000 individuals on community penalties the number is set to rise by about 140,000, which means an increase in the budget from £120 million to £360 million per annum. How does that chime with your intention of getting more for less?

Chris Grayling: There is a cost in delivering a mandatory punishment in almost every community sentence. There will be a very small number of exceptions at the discretion of the courts, where there is somebody with acute mental health problems, for example. I think the public expects a community sentence to contain a punishment. Where a community sentence involves a series of conversations with a probation officer or being sent on a training course only-I am not saying those things are inappropriate, but when that is the only thing that happens-it undermines confidence in community sentences. Our estimates are that the additional cost of providing a punitive element to every community sentence is between £35 million and £60 million a year. As I said earlier, I also believe that we are paying too much for community sentences already, so I expect us to be able to deliver savings that will pay for that additional cost.

In terms of the effectiveness of community sentences, there has been debate about whether they reduce reoffending. A story in The Guardian today, which I know you have taken an interest in, suggests that they don’t have an impact. The document that The Guardian obtained was from an earlier impact assessment. The work carried out most recently in October by the National Institute of Economic and Social Research makes clear that adding a punitive requirement to supervision when performing unpaid work or a curfew reduces the frequency of reoffending by 8.1% in the first year post the offence, so it can make a difference. I don’t for a second say that it is the only thing that should be there. My goal is to ensure that the work we do on rehabilitation in payment by results involves some or all of the community sentence people as well, but finding that balance between public confidence in the system and the rehabilitation element means that the combination of punishment and supervision is the right mix in the community.

Q21Mr Llwyd: I appreciate that, but would I be correct in saying that the likelihood is that, minus the 5%, there would be a huge increase in tagging?

Chris Grayling: I am a strong supporter of tagging in the criminal justice system. The systems we have had in place up to now have been rather crude. The new generation of tagging technology, which uses a GPS tracker, will prove much more effective, and ironically it is beneficial to offenders themselves. If it is known where they were, if offences are committed, at the moment, there is a natural tendency to think that maybe the person who committed the last offence is guilty, and that is not always the case. This provides a degree of security to the offender as well as a degree of security to the criminal justice system in knowing where an offender is and what they are doing. I see a greater use of tagging, but I also see, as is happening across the whole field of technology, the cost of the technology coming down.

Q22Mr Llwyd: But in your own impact assessment you refer to Home Office research paper 141, which I quote: "The UK evidence points towards a more neutral impact on reoffending"; in other words, tagging does not work to reduce crime.

Chris Grayling: The whole point about tagging is that it is a movement restriction and is part of a punishment process or part of the limitations placed upon somebody when they leave prison. Putting a tag on somebody in its own right is not designed specifically to prevent reoffending, though I have to say that a new generation of tags that don’t simply say, "You left your home last night", and we find out the information the next day, but allow your GPS position to be tracked so that we know whether or not you were out in the town centre, is much more likely to prevent reoffending than the older generation of technology.

Q23Mr Llwyd: How do you intend to measure the effectiveness of your proposals for so-called tougher community sentences?

Chris Grayling: We will look in the round at the mix of punishment and rehabilitation. Ultimately, I want to see a reduction in the level of reoffending, but, in measuring the effectiveness, it is also about having a criminal justice system that punishes people when they do wrong. If you are asking about effectiveness, I think the effectiveness piece is all about whether we are reducing reoffending through the support we are providing to offenders to help them turn their lives around. The punishment piece, in my view, is about saying to the public that if somebody commits a crime they will face a consequence.

Q24Mr Llwyd: Might I suggest with regard to tagging that, if some of that extra money was diverted into having more probation officers out there speaking with these people, assisting them and trying to mentor them, that might be more effective?

Chris Grayling: If you were to take that thought process to an extreme, we would not detain people in prison, which is much more expensive. We really need a balance between a system that punishes and a system that says there are boundaries and consequences if you commit an offence and that something will happen. There will be a restriction on your liberty; there will be a restriction in your freedom of movement; you will have to spend a period of time putting something back into your community as a consequence of what you have done. That is an absolutely vital part of the criminal justice system. I am saying that the bit that goes alongside that, which says we will also look at why you have offended and try to help you get your life back together again, and make sure you don’t come back, is the bit that is not done as effectively as it should be at the moment. It is neither one nor the other; it is both.

Q25Nick de Bois: I would like to draw to the Minister’s notice that, in answer to a written question, it became clear in relation to tagging-something I wholly approve of-that in the last contract there was no way that the data was collected centrally as this had been overlooked in contract negotiations at the time so that it was difficult to tell who had tampered with their tag or breached their curfew. I understand the new contracts are due to commence in April 2013, and there was a plea to ensure that providers make that information available to MoJ centrally so that it can be collected.

Chris Grayling: The new generation of tagging has to look rather different, because the technology has moved on so fast. One thing I find a little frustrating about the past tagging technology is that effectively it might tell me if you have left your house last night but I don’t find out until the next day. So, if you are out on the streets causing mayhem, there is not a lot I can do about it. I do want to see tagging used in a much more thoughtful, careful and timely way. It is designed to ensure that people are genuinely restricted in their movements. I want to see some real incentives to them to obey those restrictions, and that is best done in the knowledge that, if they are walking out the door when they are not supposed to, somebody will pretty quickly know that they are there. Tagging ought to be a reassurance to the public that, if an offender is out of prison in the community and in their home subject to a movement restriction, they conform to that movement restriction. I am acutely aware of the need to make sure that the new generation of contracts paves the way not only for new technology but the kind of solidity you will be looking for.

Q26Rehman Chishti: In relation to mentors, which has been touched on earlier, what procedure will be adopted to recruit them? How many mentors would you ideally like to see in place?

Chris Grayling: It will depend very much on the nature of the model that the providers adopt. I am very keen to ensure that we don’t try to dictate. I don’t think we can get the full black box, as it is called, and complete freedom to providers in this area, because there are requirements to adhere to the diktat of the court that they will have to ensure they are in line with. I don’t want to say, "You have to do it in exactly this way." My expectation and what I will be saying to them is that I have a vision of a situation where somebody starts to work with them in prison and who is there to meet them at the prison gate; who has sorted out where they are going to live; who has sorted out whether they need to be booked into a rehab programme or training course; and who continues to work with them for an extended period after they leave prison to try to get their life back together.

One of the things that former offenders say is that they come out of prison and there is no structure and direction; they don’t know what happens next. I am trying to make sure that the providers come in and make sure that support and hand-holding is there. Whether they choose to do it with a ratio of 1 to 15, 1 to 20 or 1 to 25 will in part depend on how much they do with group work. For example, when I went to see the Wise Group in Glasgow two or three years ago they had a larger-than-life character who was mentoring a group of about 30 young male offenders and, as far as I could see, was doing it very effectively. I met some of them. He looked like a very good inspirational figure, who built that group around him. That is fine. I am not worried if the mentor is gathering together a group of young men and working with them collectively or mentoring them individually. What matters is what works, and we should give them the freedom to do that. The nature of the payment-by-results regime that places a significant element of what we are paying them into the outcome areas means they have to look for what works best.

Q27Chair: You are the first non-lawyer ever to be Lord Chancellor. You have taken an oath that marks out the distinctive nature of the office of Lord Chancellor. What has seemed to you to be different about how you have to go about your duties from the role you had as a Cabinet Minister in a different post?

Chris Grayling: The key is that it is my job to defend the rights of the judiciary to take the decisions they do, even if sometimes I might privately think those decisions are daft, but then so do other judges. Every day of every year there are hundreds of decisions being taken up and down the country that are wise and sensible. Just every now and then somebody will take a decision that is challenged and questioned. I don’t think it is my job to do the challenging and questioning; I should be defending the right of the judge to take the decision, even if that decision might be judged by others not to be the right one. My job as a legislator, if I don’t like what the judge does, is to change the law, but, as Lord Chancellor, my job is to defend the right of the judge, who is independent of Government, rightly so, to take the decision that he or she does. I take that role very seriously.

I have a self-denying ordinance-not that I ever actually have, or I don’t remember doing so-that I am not going to get into criticising judicial decisions. The only time you will hear me commenting on a judicial decision is if it is something my Department or colleagues are very directly involved in, or where the Government disagree with a court decision-for example, where we have lost a case-I will say so, but I am not going to attack the judge for taking that decision because they have every right to do so.

Q28Chair: When it comes to upholding the rule of law, are there two kinds of law? You had to come to the House of Commons to explain the Government’s position on prisoner voting, and you seemed to be inviting Parliament to consider whether it wanted not to recognise the decision of the European Court of Human Rights, or indeed its enforcement by a British court, as being law in quite the same sense, which you have to uphold. Am I misunderstanding that?

Chris Grayling: My job in a situation like that is to set out the law as it appears to stand to me. I took the basis of that statement from two distinguished legal figures. Lord Justice Hoffmann, as he then was, ruled in the late 1990s that Parliament ultimately has the right of sovereignty over the human rights regime. He said very clearly that Parliament had the right to overrule, but it had to recognise that there was a political consequence of doing so. That legal advice has also been given to me more recently, and indeed to this House because it was given orally to a House of Commons Committee, by the Attorney-General. He said exactly the same thing. Parliament has the right to exercise its sovereignty over a decision taken by the European Court of Human Rights, but it must recognise that there is a potential political consequence for doing so.

All I did in that statement was set out the twin challenge for Parliament. On the one hand, this country is bound by its agreement to accept rulings of the European Court of Human Rights, but it also has the legal power, if it chooses to exercise it, to step outside that and say, "We don’t agree; we wish to exercise our sovereignty." It is for Parliament to decide which of those lines it wants to follow. It is for me as Lord Chancellor to set out what the legal position is, which might appear to be slightly contradictory but none the less that is what the legal advice says.

Q29Chair: This was not one half of you saying something different from the other half-the Lord Chancellor thinking one thing and the Secretary of State for Justice thinking another-and the two being reconciled in the statement that emerged.

Chris Grayling: I am not sure that is right. It is surely the job of the Lord Chancellor to set out before the House the view of the Attorney-General, and the view of the AttorneyGeneral and Lord Justice Hoffmann was exactly what I said in my statement.

Q30Jeremy Corbyn: What message does it give to other countries if you are inviting the British Parliament and judiciary to pick and choose which ECHR judgments it does or does not enact? In any event, you could easily agree with the ECHR by a very minimal level of prisoner voting. What right does that give you then to criticise Hungary for its treatment of gay people and travellers, and Russia for its denial of public assembly in many cases? Does it not just diminish us and the whole process?

Chris Grayling: No, I don’t accept that. The fundamental problem here is that the European Court of Human Rights has moved a long way from the views of the originators of the conventions back in the 1950s. The original European convention on human rights was a laudable document written by conservatives after the holocaust, when Stalin was in power in Russia and people were being sent to the gulags without trial. Over the period since then, the jurisprudence of the European Court of Human Rights has, in my view, moved further and further away from the original intention and purpose of that convention. There is an urgent need for reform of the court and a return to its roots. That is something that I am arguing for and will strongly argue for, and I have said very publicly that I will bring forward proposals, which this current Parliament can adopt if it wishes, but I suspect it will have to wait for the manifesto of my party at the next election to set out a path for change in this area for this country.

Q31Jeremy Corbyn: Are you going to pick and choose every judgment the ECHR has made for the last 50 years and decide which ones you want to support and which ones you don’t? This is just walking away from any kind of treaty obligation.

Chris Grayling: I will set out proposals in due course. I am not in a position to do that yet this morning. There is a huge difference between the fundamental principles of human rights, which is that you should have a right, if you are a political dissident or you have committed a crime, to have a fair trial in an open court, to be properly legally represented and the ability to defend yourself, and some of the issues the European Court of Human Rights has been focusing on, not just in this country but in others.

Q32Jeremy Corbyn: Give us some examples.

Chris Grayling: If you take the debate at the moment, there is a stand-off in Germany between the German courts and the European Court of Human Rights over the ability to deport a Turkish citizen back to Turkey. There are a number of other examples of member states in dispute over relatively minor matters. If you take a whole variety of current cases, I am not happy that the European Court of Human Rights is dealing with matters of employment policy. The issue under discussion at the moment about the right to wear religious symbols in the workplace, while a serious one, is a matter that should be dealt with by courts in the UK, not the European Court of Human Rights. The European Court of Human Rights is there to protect the fundamentals of people to avoid being dealt with in the way that repressive regimes have dealt with them in the past.

Q33Chair: The courts in the UK sometimes interpret the European convention on human rights in ways that the Government do not like. In those circumstances, don’t you as Lord Chancellor have to uphold the rule of law?

Chris Grayling: Yes, and the Government do. It is a question of where the dividing line is drawn between matters that can and should be dealt with in the UK courts and matters that should be for an international court of which we are part.

Q34Chair: There is a difference between arguing a case for reform either of the convention or the court and how you deal with a situation at the moment, not just on this issue but on a range of issues.

Chris Grayling: That is why the Government did not stand up and say no, although my personal views and those of the Prime Minister about prisoner voting rights are well documented. We simply sought to say that this is the situation we find ourselves in. There is a requirement on the United Kingdom as part of our international agreements to conform to this ruling, but the advice provided by Lord Justice Hoffmann and the AttorneyGeneral is that Parliament has the right to exercise its sovereignty, if it chooses to do so. We have simply offered Parliament the opportunity to choose what it wants to do.

Q35Mr Buckland: I was very interested to hear what you said about bringing forward proposals in the next manifesto. Sometimes the argument is characterised as an either/or; it is either the European convention or a British bill of rights, for want of a better phrase. But is there not another argument that says we can have an "and"? We can bring in, incorporate and develop our own rights domestically, in addition to the rights that we have signed up to as part of the treaty and that have been incorporated into domestic law by the 1998 Act?

Chris Grayling: That is clearly an opportunity, although, if you look at the original convention, it contains a number of things that seem to have been lost on the way. For example, there are requirements in relation to civic responsibilities that exist within the original convention. I sometimes think that in the jurisprudence of the courts those have been forgotten. These are some of the issues that I will be looking at very carefully as we prepare our plans, which I hope Parliament will be receptive to, but, if not, they will be for the next manifesto of the Conservative party.

I think no change is not an option. Ken Clarke, my predecessor, did good work in starting the process of reform with the work done on the Brighton declaration, but in a situation where there are 150,000 cases, and matters coming before the court that the originators of the convention would never have imagined would come before it, there is a need for fundamental change. I do not believe that we should be a party to abandoning the core principles of human rights, but what we have at the moment clearly doesn’t work.

Q36Rehman Chishti: In relation to judicial appointments, what is your reaction to the criticisms that have been made of proposals under the Crime and Courts Bill to enable the Lord Chancellor to sit on panels for appointment of the Lord Chief Justice and the President of the Supreme Court?

Chris Grayling: One of the first things I did on taking office was to change the Government’s approach on that. I do not believe the Lord Chancellor should sit on those panels. It is important that the Lord Chancellor retains the ultimate say, to be exercised in extremis, not as a matter of routine. It is not appropriate for the Lord Chancellor to sit on those panels. It is entirely appropriate for the Lord Chancellor to say to those panels in advance, not, "This is the person I believe that we need", but, "This is the kind of person and the characteristics and skills that I think we need to fulfil this role right now."

I have already said that, given the financial challenges we face and the different pressures on the judiciary, I hope that the next Lord Chief Justice will be a forward-looking person with the ability to lead the judiciary through challenging times. I hope that will be taken into account by the selection committee when they seek to make an appointment in succession to the current Lord Chief Justice, who has done a very good job. I have got to know him very well over the last couple of months. He has done first-rate work in areas such as trying to promote judicial diversity. I will miss him when he is gone. I hope that his successor will have the ability to provide that kind of visionary leadership, but it is not for me to pick that person as part of a panel.

Q37Rehman Chishti: You said that you have told the Government that you should not be in that position. Has that now been accepted?

Chris Grayling: Yes; we are tabling amendments in the House of Lords to that effect.

Q38Rehman Chishti: Do you think more positive action needs to be taken to increase judicial diversity?

Chris Grayling: We need to do everything we possibly can to promote judicial diversity. I shall be talking about that quite a lot in the coming months. I welcome the work already being done by the Judicial Appointments Committee, which has made significant progress in promoting judicial diversity, but there is a long way to go. It doesn’t have to take a very long period of time, but we have to support young barristers who come from minority backgrounds, and young female barristers, from a relatively early stage to encourage them to think of the judiciary as an option. It is as much about nurturing, encouraging, mentoring and supporting. I hope that our existing judges, particularly those who are there already-women judges and those from minority backgrounds-can play a really important part as a role model for those who come after them. I don’t ever want us to be in a position where we are not promoting the right people to the judiciary. I have no doubt whatever about the abilities of women barristers and solicitors and those from minority backgrounds to be really good judges. We have to encourage and support them and make sure they apply.

Q39Chair: One thing this Committee has wanted to encourage in the past is the improvement of opportunities for young barristers who are working in the Crown Prosecution Service to get the kind of experience to allow them to be considered later for judicial appointments, bearing in mind the difficulties that that would present in one area, but there are ways in which that could be accommodated.

Chris Grayling: It is a very interesting area. I am not unsympathetic to what the Committee said and think we should look at that.

Mr Llwyd: Perhaps I may ask a question as a not so young barrister from a minority background.

Chair: The Bar is full of Welsh speakers, Mr Llwyd.

Q40Mr Llwyd: It is indeed-perhaps the majority. Who knows? May I ask you about the public engagement exercise with regard to possible changes in judicial review? You said in your written statement on the 19th of this month that judicial review is a critical means of holding the Executive to account. Many people believe, as I do, that it is the only means by which a citizen can challenge an administrative decision that has been made unreasonably. It is in many ways vital to a healthy democracy. Are the changes to the exercise of the function of judicial review going to be limited, for example, to planning or infrastructure cases, or is it across the board?

Chris Grayling: It is across the board. Judicial review is a very important process. It is right and proper that people should be able to challenge the decisions of public bodies. It is also the case that judicial review is now increasingly used as a public relations exercise rather than a serious legal process, and I don’t think that is acceptable. Judicial review is also becoming a process that just goes on and on, so people keep on coming back. I think tighter rules should be built around when how the judicial review process can be used so that we do not deny people access to justice and the right to challenge but we make it much more difficult for the system to be used in a way that is not simply about challenging an incorrect decision. The early proposals we are bringing forward involve, first, a limit to the amount of time that people can wait before they start judicial review proceedings.

Q41Mr Llwyd: That already exists.

Chris Grayling: We are proposing tighter time limits on that. Secondly, there will be a limit to oral appeals; thirdly, there will be an increased fee for accessing the judicial review system, but we also want to consult more widely about other changes we can make. On this, we think there is common agreement. There is frustration in the judiciary and among public bodies about how extensively it is used. When judicial review was introduced in the 1970s there were a few hundred cases a year; now there are thousands and thousands. I want to get judicial review back to what it should be, which is an opportunity for somebody with a genuine grievance where a decision has been wrongly taken by a public body to challenge it.

Q42Mr Llwyd: But in that scenario, for example, where there is a genuine challenge by an individual, would it not be unfortunate if you were to put up fees to a very high level and that individual found he or she could not afford to pay them?

Chris Grayling: In all parts of our justice system-for example, the ability to access the small claims court-a fee is payable to make sure that the cases brought forward are not simply trivial. I don’t think it is inappropriate to do that with judicial review where potentially you are taking up significant amounts of judge and court time. I want judicial reviews to be taken in matters of genuine, legitimate interest. It is my view that often the judicial review process is used for PR purposes rather than genuine legal ones.

Q43Mr Llwyd: Have the Government undertaken any research into what causes the current delay within the process?

Chris Grayling: This is one of the reasons we are doing some quite exhaustive work on this. We are consulting on initial ideas. We are going to do a much more detailed piece of research into the whole judicial review process. That is one of the areas we are going to be looking at and consulting on, talking to the judiciary and others with an interest in it.

Q44Nick de Bois: Turning to the JHA block opt-out, I warmly welcome the statement in the House. As I understand it, the MoJ has responsibility for about 17 of the 133 opt-outs of the so-called "third pillar" measures. At this stage has any assessment been undertaken within the Ministry of which of these 17 measures the Government should seek to opt back into, assuming the option to opt out is carried out? I am sure you understand all those options and the opts.

Chris Grayling: I do indeed. The current position is this. The Home Secretary made her statement to the House indicating that we are minded to exercise the opt-out. We are currently negotiating within the coalition a final list of measures that we would want to opt into and out of. We have looked quite carefully at the list that falls under the umbrella of the MoJ. There are some that we are supportive of, some we are not and some have been superseded by events, but all of this is subject to a detailed cross-government and crosscoalition discussion. I am not in a position to say very much more than that at the moment, I’m afraid.

Q45Nick de Bois: Perhaps I am being a little unfair, but is it fair to say that this is as much about a management exercise for the coalition as what it may be in terms of managing our criminal justice affairs? Are you leading us up to suspect that compromise may be at the heart of what comes forward?

Chris Grayling: I am not leading you up to anything one way or the other, to be honest, but you will not be surprised to learn that on a big decision like this, in a coalition government, there are inevitably coalition discussions about where the line should be drawn. I don’t think it is any great secret that, shall we say, there are differing views on European issues within the coalition. Inevitably, there has to be some sensible discussion about what we do and do not do.

Q46Chair: There are different views within parties as well.

Chris Grayling: That is true.

Q47Nick de Bois: I won’t go any further down the road of coalition politics, but we have to bear in mind that, once taken, these steps are irrevocable, so I suspect we can anticipate some thoughtful discussions.

Chris Grayling: That is why we are committed to bringing the proposals before Parliament as well and to allow both discussion by Select Committees and votes of the House on these issues. That is very important.

Nick de Bois: Excellent.

Q48Chair: The sooner we can know what opt-out issues are fairly clear-cut and uncontroversial, whether it is one way or the other-

Chris Grayling: I can assure you, Sir Alan, that I would be enthusiastic for that to happen.

Chair: -and, if I may conclude, and which ones would benefit from Committee analysis, the more helpful we can be in ensuring that Parliament is fully informed in the decisions that it takes on these issues.

Q49Rehman Chishti: In relation to the Government’s proposed reforms of legal aid, it has been reported that you have ordered an urgent investigation into the legal aid system, following the disclosure that Abu Hamza received almost £680,000. Given that the Ministry has only just carried out extensive reforms to the legal aid system, what do you hope to achieve?

Chris Grayling: I have two things to say on this. First, you are absolutely right on the broader legal aid issue. The Government have just done some substantial reforms as part of the work towards achieving the Department’s spending review settlement. Good progress is being made with the development of the regulations and preparing for implementation. A number of the specific measures will be coming before this House in the weeks ahead. I can’t give a guarantee that we will be able to avoid further changes to legal aid if the financial pressures are more acute than has been set out so far in the SR period of planning, but what I am doing is not about money; it is about confidence in the system.

Legal aid is an important feature in this country. The provision of access to legal aid services is an important part of a modern criminal justice system, particularly for those who are in the criminal system and facing criminal charges, but it is important to make sure that we have a system in which people have confidence. I want to be certain that legal aid is going to the right people, who need that support rather than those who can afford otherwise. I want to make sure that people are able to use legal aid for genuine purposes, and I want to explore-and indeed I am exploring-how it is possible for individuals to build up very substantial amounts of legal aid entitlement through the way they use our justice system.

I have reached no conclusions at this moment; I have simply asked for the work to be done, but I do not think it is unreasonable. In much the same way that I talked earlier about the need for the public to have confidence in our prison system regime, it is also important for the public to have confidence in the way legal aid works.

Whether we like it or not-personally I don’t-there will be times when we have to provide legal aid to people we find repellent because the interests of justice require that we do so. I do not think there is any point in pretending otherwise, but that does not mean we should not ask serious questions about the nature of the support we provide in difficult and controversial areas to say, "Have we got it right?", and that is what I am doing.

Q50Chair: If we are going to ask those serious questions, is it satisfactory that, as the Evening Standard reported yesterday, the Legal Services Commission is refusing to disclose the amounts spent on legal aid for particular convicted criminals, bearing in mind there have been cases in which over £1 million has been spent, and, more recently, slightly lower figures, say, £700,000, have been spent on legal aid? Ought we not in some of those cases to be able to judge whether the legal aid system is working properly if so much money is spent?

Chris Grayling: It is always difficult to comment on individual cases because circumstances will vary, but we have just published the amount of legal aid that went to Abu Hamza. I suppose my first priority is to stop the situation where legal aid is going to people in a position to pay for their own defence anyway. If somebody has large amounts of money in the bank, I don’t want to see a situation where they are gaining unjustifiable access to our legal aid system, and as to that I am very much on the case.

As to access to information, obviously I will take a careful look in the wake of the story that emerged. There will be times when it is not sensible, for a whole variety of reasons, to publish information about an individual, but I am not afraid to do so. As we see with the Abu Hamza stuff, there is nothing to hide; I would much rather that was out in the open than that it appears to be concealed.

Q51Chair: Are you satisfied with the processes by which recovery can be made of legal aid costs from people who turn out to have significant assets?

Chris Grayling: It is something we are looking at currently. We are clearly not collecting enough money. This is why we are taking powers to remove high-value assets as well from those individuals, because the amount of money we are recovering remains relatively low; it is about 20% of what we would hope it to be. So, no, I am not satisfied yet, and I want more to be achieved.

Q52Rehman Chishti: There is a second part to that. Is equality of arms not essential where there is a threat that individuals may lose their liberty, regardless of views about the individuals concerned? Would it not be better to focus on improving court efficiency, as this Committee has recommended?

Chris Grayling: I don’t think it is an either/or. It is certainly necessary to improve court efficiency, and that is something Damian Green is working on very hard in his combined role across the Home Office and the Justice Department. Sometimes court inefficiency is not a function of the court’s management itself but in the way that different agencies interact. That is a key priority for Damian in his role.

As to equality of arms, I am not sure it necessarily is always the case that a young and up-and-coming barrister is somehow a poorer deal than somebody who is more established. I am not in favour of complete inequality of arms, but it is reasonable for the legal aid system to ask the question, given the fact that we have the most expensive legal aid system in Europe, if we are making sure that defendants are properly represented, rather than simply saying we have to have a particular category of people.

Q53Rehman Chishti: Linked to that and the first point, are you able to assure the public that this amount of money-the £860,000 or similar amounts-will not be incurred again, because it is things like that which frustrate the British public?

Chris Grayling: You are talking about Abu Hamza.

Rehman Chishti: Abu Hamza, yes.

Chris Grayling: I cannot give a categorical undertaking that we will not end up providing legal aid to someone like Abu Hamza in the future, because, as I said, we will find that we are providing legal aid to people whom we find repellent and we would dearly love to see the back of, but it is never that simple. If we are going to have a system of justice in this country that is proper in a modern democratic nation, there are times when we will have to do things that we would all instinctively wish we didn’t have to do, but that does not mean we should not look very hard-and I am looking very hard-at how we get ourselves into a position where an individual can access so much legal aid, because they are using the legal system in a way that they keep on and on coming back. Is that right, sensible and appropriate? That is the kind of question that is perfectly legitimate to ask.

Q54Jeremy Corbyn: Turning to the Criminal Injuries Compensation Scheme, under the proposals put forward by you, 18,600 cases per year will get no compensation at all; a further 15,300 will be reduced by between 24% and 60%. How many people do you think will be eligible for the hardship fund, and do you think that fund will be sufficient to deal with this?

Chris Grayling: I came to this issue literally within 24 hours of getting the job. The purpose of the hardship fund is this. It is always deeply unfortunate if somebody is a victim of crime; of course it is. Where somebody suffers from a relatively minor injury, is it sensible that the state uses such resources as it has to provide additional compensation to that individual rather than concentrating the money it does have, both through the money we are already spending and the money coming in through the victims fund, on people for whom the impact of crime is much more lasting?

There are always unintended consequences of any change. There are a small number of cases where a minor injury has an effect on their life that is far beyond anything you would expect. I wanted to give the people who administer the scheme the discretion to be able to say, "In a small number of cases this is a real problem, and we want to be able to make the payments." The payments are not large; they are about £1,200, but for some individuals in some circumstances that is a very significant contribution to helping them meet the circumstances they face. Therefore, it was about making sure that there was some discretion in the new arrangements we put in place to deal with that very small number of unexpected consequences. But it was a decision about the financial challenges we face, the nature of the money that was available and concentrating the resource that is there on the people who have been most badly affected by crime, and I stand by that.

Q55Jeremy Corbyn: How will the hardship fund operate? Won’t it be expensive to administer?

Chris Grayling: It shouldn’t be. It is a discretionary fund, effectively; it will be subject to referral by Victim Support, who will identify if there is a particular problem.

Q56Chair: Is that the bench or court officers who will do that?

Chris Grayling: No; it is Victim Support-the charity.

Q57Chair: I misheard you; I thought you said "the court". You said Victim Support.

Chris Grayling: Victim Support have agreed to take responsibility for steering people towards the fund, and it is really to deal with the unexpected. If you introduce a blanket change, there is always an example where you think, "We didn’t intend that." I just wanted to make sure that there was a little bit of flexibility in the system to deal with that case.

Q58Jeremy Corbyn: For how long will the hardship fund last?

Chris Grayling: It is an annual fund.

Q59Jeremy Corbyn: Will you review it every year in case it is vastly over-subscribed?

Chris Grayling: If there is good reason to believe that something else needs to happen, of course we will review it. My expectation, though, is that this will be used for a very small number of cases for circumstances that nobody would have envisaged. You have to bear in mind that these are people who have relatively low-level injuries as a result of being involved in crime; these are not the people who are most seriously affected by crime.

Q60Jeremy Corbyn: You made a good point in your earlier response that in some cases a relatively minor injury can have massive effects on somebody’s life. For example, if a young man who is a promising footballer breaks his leg, it can have massive, catastrophic consequences for his career, whereas somebody who is not a footballer and who breaks a leg will recover and the consequences for their career will be very minimal. Is that the sort of thing you have in mind?

Chris Grayling: The payment in the brackets we are talking about was only ever a maximum of £1,200, so that will not make the difference to somebody who has a 20-year career in front of them in football. It is the minor injury that has a minor disruptive effect on your life. For most people it is a pain, it is very unfortunate and you deal with it. The trauma of facing the crime is great, and that is why we value the work done by charities like Victim Support to help victims, but it is about trying to concentrate the money on people for whom the impact of crime is having a material, long-term and serious effect.

Chair: We must move on because we only have another five minutes, but there are some important points that Mr Brine is going to raise.

Q61Steve Brine: The Law Commission has put out its consultation today looking at the future of contempt of court with specific regard to social media and that jurors’ use of social media may be influencing their decisions. Do the Government have a view on that?

Chris Grayling: I am very exercised by the use of social media. It is frequently used to bully victims of crime. There are people in prisons who manage to use social media none the less. I have been very clear to the Department that I expect tough action to be taken if social media is to be used in a way that is inappropriate. I don’t think people in prison should be using social media anyway, but we have to be really tough on the use of social media to intimidate victims, witnesses and others involved in the legal process. Those in prison who become involved in that should face serious consequences. We clearly have a big challenge to address the issue of mobile phones smuggled into prisons, and we are moving ahead with strengthening the jamming provisions in prisons where we can. The problem with jamming technology is that it does tend to jam the neighbours as well, which makes it more difficult.

Q62Steve Brine: That is a particular problem at HMP Winchester, which is next door to the headquarters of the Hampshire Constabulary.

Chris Grayling: Indeed, yes. One of the first things I did was to ask what support we provided. There is a helpline available for people who believe that social media is being used inappropriately. We have to be very firm about it.

Q63Steve Brine: To focus in on the use of social media by jurors, which is what the consultation is about, the whole premise of a jury is trial by your peers in your community or village. These days we live in a global village-I hate the term-where everyone is interconnected through their social media devices. Isn’t this piece of work by the Law Commission really chasing rainbows?

Chris Grayling: I don’t think it can be chasing rainbows, because there are some really important principles in our criminal justice system about not judging people on the basis of their past record. If a past criminal is up before the court charged with a new offence, we give them the benefit of the doubt. We don’t just accept the principle, "Because you are a serial burglar, we’ll tell the court you’re a serial burglar and they will probably find you guilty." We actually give them the benefit of the doubt. If somebody is sitting at home at night doing searches of Facebook pages and Google searches of offenders, and finding out that they are in fact serial burglars, it undermines the principles of justice. It is important that we both educate and mandate jurors to avoid the use of technology in a way that can compromise justice.

Q64Steve Brine: But the commission says it is looking at ways to prevent jurors searching for and being able to find potentially prejudicial material during the course of a trial, irrespective of when it was published. Do you not see the difficulty in potentially devastating the archive of an online newspaper, for instance?

Chris Grayling: Of course it is difficult, and that is why it will have to be thought through very carefully, but it is not the wrong thing to do.

Q65Steve Brine: Continuing the subject of social media, you have made comments in the House about this in relation to some ongoing cases. Can I give you the opportunity to comment on the use of social media, especially Twitter, where users seem to believe that they sit outside the realms of the law of the land that affects everybody else? I suspect that some people, maybe not a million miles from where we are sitting today, are about to find that that doesn’t exist. Are the Government prepared to make crystal clear to users of social media that they absolutely operate within the laws of libel as the rest of us do?

Chris Grayling: The law does make that clear. As indeed people are now finding out, the law gives people very clear redress if they are libelled on Twitter, Facebook or other social media. Therefore, it is not about changing the law. The Justice Secretary, you as members of this Committee, which is an influential body, and others in a position to do so, have to make it very clear to those who are users of social media that they cannot expect to act in a way that is outside the law and not face consequences. There has been a lot of coverage of the most high-profile case. I was particularly shocked, though, by the way in which the identity of the victim in the case involving a former Sheffield United footballer was widely tweeted. That is shocking and unacceptable, and it is absolutely right that the people involved face prosecution. Anyone who is tempted to do something of that kind in future should be aware that they will and should face prosecution.

Q66Steve Brine: Maybe Members of Parliament should remember that using privilege to do so is not setting a great example.

Chris Grayling: Members of Parliament have to be very careful that in using privilege they do not end up compromising the ability of the justice system to do justice afterwards. The fact is that what we do and say here by definition is privileged and gets covered outside with impunity. It can therefore damage the reputation of individuals who are blameless, but, more importantly, it can undermine the ability of people to receive a fair trial. Therefore, it is very important that Members of Parliament use privilege for the purpose it was intended, which is to challenge and expose but not to act irresponsibly.

Q67Chair: Since the Law Commission has been mentioned I just leave a parting thought with you, which is that we would welcome support and encouragement from Ministers to the Law Commission to look at the guardianship provisions that we think are a necessary accompaniment to the Presumption of Death Bill. We welcome the Ministers’ support for that Bill. We think the Law Commission is quite willing to do some work on how people can manage the affairs of those who are missing, and not to their detriment. We would encourage Ministers to support that, and you might like to look at that.

Chris Grayling: I am very sympathetic to the view that the Committee has taken on this, and we are working on that now.

Chair: Excellent. Thank you very much, Lord Chancellor.

Prepared 5th December 2012