Nick Herbert MP answers your questions

The new Shadow Secretary of State for Justice answers the questions that you posed here.

601: What do you think of giving judges "investigative" powers?

First of all, can I thank Conservative Home for giving me the opportunity to answer these questions?  Getting a read-out of activists' concerns is itself very useful as I begin this new job.

I'm willing to consider any serious proposal to improve our system of justice, and I think we need to be especially open-minded about reforms when it comes to ensuring national security.  Introducing investigatory magistrates along the French line would, though, be a pretty radical departure from the English legal system.  The Home Office admits that we could not simply incorporate elements of the investigatory procedure into our system: we would have to address our whole legal culture.  I'm told that in France there's increasing disquiet over the system, with people are starting to feel that it means prosecuting judges are too close to the judges who hear trials.

I'll look more carefully at this, and there may for instance be some limited application in relation to the use of intercept evidence, but generally my instinct is that the police should retain control over investigations.  It's obviously important to retain the independence of the judiciary, but it's also important that prosecutions are led by police officers and a Crown Prosecution system which are both publicly accountable.   I'm particularly interested in how effective that accountability is.

Simon: Why do our police force resemble that of Springfield's police force under the 'dynamic' leadership of Chief Wiggum? For example: my car was written off by a gormless driver- no fault of my own. Whilst having PC Plod at the scene, I had him come up to me and say 'the treads on your tyres are a little thin'!!! He was not joking. I'm surprised i kept me gob shut on THAT one. Could we have DCI Gene Hunt made Home Secretary please? Less 'softly, softly'- thank you.

I think David Davis would be a safer bet!  No-one should want to turn the clock back to the bad old days of cops like DCI Hunt framing suspects or beating them up in the cells.   But I do think we need to restore discretion to police officers, get them back out on the streets, and return some common sense to crime fighting.  I set out my proposals to enhance police accountability and drive up performance in "Policing for the People", which can be seen at www.policereform.com.  The Government immediately responded by launching its own review purporting to cover the same ground, but the new Home Secretary has already expressed opposition to one key element, directly elected police commissioners.   It'll be for David Davis and my successor as Shadow Minister for Police Reform, David Ruffley, to decide how our ideas are taken forward.

Old Hack: This may not be your brief entirely, but I'd value your view.

There is a great deal of frustration, grief and anger at the way the family law system works.

Whilst we should do all we can to protect children and other vulnerable people we should also consider that it is always in the childs best interest to remain with parents rather than be fostered or taken into care.

This often happens based simply on the opinion of an expert who gives evidence to a court in a closed session and with judgment given on the balance of probability rather than firm evidence. So we have the calamities regularly reported on with convictions being quashed, the likes of Sir Roy Meadows being vilified and so on.

Family law in my view is in dire need of reform. What do you think and how should we do it?

The basic test of the family court system must be how well it protects the interests of children. The secrecy of family courts is I think a problem in this respect – it encourages misunderstandings.  No-one is suggesting that family courts should be completely open: it wouldn't be in children's interests to have details of their family's difficulties all over the newspapers.   But it should be possible for expert evidence to be tested openly, and for any shortcomings by social services to be challenged.  It's important not only that justice is done, but is seen to be done.

At a broader level, I agree that reform of family law is necessary.  In particular, we should try to encourage far greater use of mediation in divorce proceedings, explore greater use of children's advocates and try to ensure disputes over issues like access and maintenance are resolved without recourse to the courts where possible.

Matt Davis: I totally agree with your view that we need to repatriate powers from Brussels back to our national Parliament. But how exactly do we do that?

In March David Cameron and the Czech Prime Minister, Mirek Topolanek, announced a European Reform Commission with the task of finding a way 'to enshrine the principle that powers can be returned to member states - not as a vague aspiration, but as a central element of the legal architecture of the Union.'  This is a good start, as is our continued demand for a referendum on the EU constitutional treaty.  It was interesting to observe the way in which Poland, a new entrant and in a far weaker position than Britain, achieved its controversial demands in the negotiations on the constitution.  If we had a government with some determination and a clear-sighted view of our national interest we would be on the right track.

Thatcher Boy: Judges hands are tied by the liberal strictures of the Sentencing Guidelines Council. Would you favour "trusting professionals" and scrapping all sentencing guidelines?

If so, would you investigate ways of making judges more accountable - like through election as in some US states?  This is the same principle as elected police chiefs and would lead to more just sentences for violent offenders, restoring trust in the whole system.

I've decided that the prisons review which I'm leading will also cover sentencing, because you can't divorce the two.  As part of this we'll look at how the Sentencing Guidelines Council operates.   I don't object to the idea of ensuring consistency through a Council rather than relying on judgements handed down from the Court of Appeal, but our maxim is to trust professionals and I do worry about fettering individual discretion and burdening professionals with bureaucracy.   As a believer in localism I don't automatically have a problem with variations, for instance, in sentences imposed by magistrates in different parts of the country if they are reflecting community priorities.

I'm particularly concerned about the Government's attempt to use the Sentencing Guidelines Council improperly, for instance by telling it to take account of the availability of prison places when issuing guidelines.    I think this does give rise to the question of who exactly is guarding the public interest in sentencing, individual judges, a quango or Parliament, and  what influence the Executive should have on the Council.

I also want to consider whether the concerns of the victims of crime are sufficiently represented, both on the Council and generally in the legal process.  I subscribe to the principle of honesty in sentencing, so that offenders serve their sentence in full.   That principle, which the Government has so seriously undermined with its policy of automatic parole after just half a determinate sentence is served, will underpin our review.

I'm not in favour of electing judges.  I think Parliament should decide what the law is, and judges should administer it.  There's a big difference between judges and elected police commissioners in this respect.  Commissioners will be making decisions over policing priorities and the distribution of resources, for which they should be accountable to communities.  But judges aren't making those sorts of decisions.  They should be focusing on ensuring an impartial trial and a just sentence.

Paul Oakley: Will the party ensure that those who are arrested for, but not subsequently convicted of, an offence will have their DNA records destroyed?

We shouldn't forget that the DNA database has enabled the police to solve a huge number of crimes, including very serious ones.  I myself would have no objection to my DNA being put on it.   But I'm aware from my own constituency of cases where people have been arrested but then released without charge and feel very strongly that their DNA record should not be retained.   At the moment the only recourse is to chief constables who have the discretion to remove such people from the database, but usually don't.  That's why David Davis has said that we need a proper Parliamentary debate on these issues.

David Belchamber: I would first like to second Matt Davis' question at 11.56 and then ask whether the tories are sufficiently prepared for government to be able to slash - within 100 days of gaining office = sufficient red tape and targets for the police to get back to real policing and be seen as a presence on the streets again.

As I've said, this is no longer my responsibility, but I'm confident that the answer is yes, and if you read our proposals in 'Policing for the People', I think you'll agree.  A member of my taskforce, Aidan Burley, who is a management consultant, spent three months visiting police forces and stations up and down the country to identify what the problems of bureaucracy are.   We set out a detailed policy agenda to deal with this, beginning with eliminating central targets – so, yes, we will be sufficiently prepared.

TaxCutter: You established a think tank in Reform which has produced some excellent work.  Which think tanks in the UK and abroad do you most respect, and what do you think the successes of UK rightwing think tanks have been in recent years?

Clearly I'm wholly biased in believing that Reform is the best UK think tank.  I'm proud of what it has achieved and the fact that Andrew Haldenby and his team are still setting the domestic policy agenda in key areas such as healthcare reform.    I also think that Open Europe, which is run by Neil O'Brien who used to work with me, does a great job.

We set up Reform on the model of the Heritage Foundation in the US as a think tank which would determinedly promote its agenda through the media, rather than simply publish pamphlets, which we thought was an old-fashioned way of doing things here.   I don't  necessarily agree with what Heritage says but I admire what they have achieved and the influence which they bring to bear on US politics.   I don't think that think tanks should effectively become lobbyists for specific commercial interests, as some on the Left have in Britain.

Tired and Emotional: 1. If elected, what is the timetable for bringing in elected sheriffs?

2. Will you remove the police and security services from the Race Relations Amendment of 2000 that requires them to

-Eliminate unlawful discrimination;

-Promote equality of opportunity; and

-Promote good relations between persons of different racial groups

None of the above are the job of the police.

3. Will you delete data and databases containing the details of people who have not been convicted of a crime?

Again, I'm afraid that these are all matters for the Home Office team.

David Cooper: What steps will you take to halt and reverse the proliferation of the "spot fine" culture that has occurred over the last ten years, given that this flies in the face of the constitutional doctrine of the separation of powers between legislature, executive and judiciary?  It may be administratively convenient not to have court lists cluttered with minor offences fit only for summary disposal, but the balance has arguably swung too far in favour of petty officialdom e.g. bin police, speed camera partnerships, in search of soft and lucrative targets.

I think the Government's increasing reliance on what it calls 'summary justice' is highly problematic.  As the Times reported yesterday, the police are now issuing on the spot fines once every three minutes.   They argue that it helps them to deal swiftly with minor crimes.  But it also helps them to hit their targets.   The notices count as 'offences brought to justice' even though half of the fines aren't paid.  They are often used inappropriately, either for crimes which should be dealt with in court, such as serial shoplifting, or for things which should never count as crimes.   Last year the police gave a stall holder a penalty notice for displaying T-shirts with the words "Bollocks to Blair".  I think it's incredible that someone can be fined in this country for expressing a sentiment that at the time was shared by about 80 per cent of the population – including Gordon Brown.   It underlines what's wrong with administrative 'justice'.

It is the magistrates courts which are properly courts of summary justice, and in finding a way to bypass them, the Government is left with little interest in addressing the need to speed up the process of justice there.   So I want to look at how magistrates courts could work far more effectively.  I think they are an enormously overlooked part of the system.  Community representatives working with legal professionals are exactly the sort of resource we should be utilising.  I also want to investigate innovative ways to deliver swift and effective community justice while still involving some form of judicial process.   We do need to work at streamlining justice for less serious crimes, but not by trivialising them.

The Huntsman: 1. Have you visited The Policeman's Blog? If so, do you share my horror at the obvious bureaucratic nightmare that passes for policing which it discloses? If you have not seen it, can I suggest you spend some time on it?

I certainly have.  I've met PC David Copperfield, and a lot of the ideas in 'Policing for the People' were shaped by what he and his colleagues are saying on their blogs about the realities of policing.   I'd also recommend former PC Johnno Hills' www.realpolicing.co.uk.   Both of them talk a huge amount of sense about the issues.

2. Here in Kettering we have quite a number of Community Support Officers. Without in the least wishing to denigrate their work (and they are a welcome and cheerful addition to already highly overstretched constabulary: indeed any help would be), they dress in exactly the same uniform as the Regular Police and thus, when out and about give the impression that the town is full or real police officers: do you agree with me that this is, in effect, a Labour Confidence Trick?

I think PCSOs have a role to play, and they are broadly popular with the public.  I've seen them work very effectively in one of my local schools, for instance.   But I think they should supplement sworn officers to extend the police 'family', not replace them.  As I said in 'Policing for the People', I think the business case for PCSOs needs re-evaluating to make sure that they are properly effective.   It infuriates me, for instance, when I see PCSOs walking around in pairs talking to each other, rather than engaging with the public. 

Labour's real con trick was to promise 24,000 PCSOs in its last manifesto and then renege on that pledge so that it will only now deliver 16,000.

3. Concerning the repatriation of powers from Brussels, can you explain what the Plan 'B' is for when, as I believe will happen inevitably, Brussels says 'no' to any such thing? Will you simply throw up your hands and say "What a shame!" or will you then take matters further down the route of disengagement? Or is there some other cunning plan?

I don't think it's sensible to begin a negotiation on the presumption that it will fail.  If it's ok to quote a Frenchman who isn't a politician, I recommend Raymond Blanc's advice: 'I've never been able to contemplate failure.   Success is everything.'

Under the 'deal' (sic) that the Government negotiated in 2005 the UK is going to be paying 10.5 billion pounds a year into the EU.  In fact we are the second biggest donor to the EU budget and one of only two serious military powers in Europe.  If you had a government with any kind of backbone that should give us huge leverage ... but at the moment it doesn't because the Government will never say no to anything in the EU because it is worried about losing 'influence'.

In reality having influence is about arguing for what you want and having the guts to say 'no' to proposals you don't want.  But at present the Government isn't even making the arguments for the kind of Europe we want.  According to the Swedish trade minister, behind closed doors Britain never speaks up against the protectionists.  I find that pretty contemptible.

Tony Makara: Nick, how can we best take the bureaucracy out of police work and get our coppers out onto the streets where they can be a 'presence' once again?

Once again, I'm afraid that this isn't my policy responsibility now, but 'Policing for the People' has the answers.

John Leonard: Nick, A slightly irreverent question here.

Several years ago I worked for the Home Office for a number of years and during that time I was told by numerous sources that the Home Office considered itself a small Policy Unit. It disliked extremely the fact that it had two large departments (Prisons & Immigration) attached to it.

Now the Prison Service has been hived off to the Justice Department and assuming that Immigration will now be merged with the operational arm of Customs and Excise it would seem that the Home Office have got their way.

So my question to you is, considering the chaos that the Home Office has been in over the last few years, do you think this is a case of the dog wagging its tail or the tail wagging the dog?

Who knows?  But since the new Home Secretary is already publicly disagreeing with the Justice Secretary about the merits of indeterminate sentences and prison, you can already see the danger of policy incoherence as result of splitting the department.  One of them appears to want to lock offenders up, the other to let them out.  Now that we are seeing the scale of the crisis in the prison system and the collapse of the National Offender Management Service's'  flagship IT system, perhaps it's not surprising that the Home Office wanted to get prisons and probation off their hands.

Richard: Are you going to continue Oliver Heald's strong defence of legal aid so, for example, it is possible for women subject to domestic violence to get the protection they need?

I think there's a real problem with the Government's legal aid reforms.  Everyone agrees that something needs to done about the ballooning cost of legal aid.  The problem is the cack-handed way the Government has gone about it.  For instance, the new contracts are likely to hit disproportionately hard on black and ethnic minority solicitors, operating out of smaller legal practices working predominantly for ethnic minority clients.  This could leave some communities without suitable legal advice.  There may well be a similar effect in rural areas.

Plus, many of the reforms have perverse incentives that could undermine the aim of reducing the legal aid bill.  In Hull, for instance, legal aid providers have been told they can't claim for time they spend travelling to the courts in Beverley, ten miles away.  So they have decided not to sign the new contracts.  Instead, the Legal Services Commission now uses firms from Scarborough, and does pay them to travel in – an hour in and an hour out.  That costs much more than it would have cost to pay a solicitor to travel from Hull.  That sort of narrow minded bureaucracy will do nothing to cut the cost of legal aid.

Martin Koder: What is your view of the compensation culture debate?  The Law Society says that much of it is hysteria whipped up by the insurance industry and that the number of claims have not risen substantially.   Meanwhile, the insurers are looking for more and more ways to cut the lawyers out of it on the grounds that they raise costs which are ultimately passed on to the consumer via higher premiums.  So for example with personal injury cases, the insurers are looking to shift more cases into the small claims court (where claimants represent themselves) but the lawyers say that lower payouts will result and there is an access to justice issue for less informed victims.  Who to trust - the lawyers or the insurers?

I don't think the harm caused by the compensation culture can be measured simply by the number of legal claims.  I suspect that one reason that claims are falling is that organisations are curtailing activities that might give rise to claims and too readily pay out rather than defend themselves in court.   

Nor do I think there's much doubt that risk-aversion is having hugely undesirable effects.  Last Christmas, Worthing Borough Council near my constituency advised a pantomime cast not to throw sweets to the audience because of food allergy fears.  We've all heard the stories of children who can't play conkers in case of injury.  Teachers won't take pupils on school expeditions for fear of litigation.  You can be an experienced mountaineer and still have to sign a council form to allow you to climb a ladder.

As to who should be trusted, lawyers or insurers, I say trust the people.  The idea that someone must be to blame for any wrong is, it seems to me, the antithesis of the principle of personal responsibility.   And when the legal system is abused for personal or commercial gain it undermines the goal of access to justice for those in genuine need.

Mark: Do you support any of the following...

1. Tough minimum sentences for serious offences

2. Zero tolerance policing

3. Elected sheriffs/chief constables

...and if not, why not ?

Yes, yes and yes - elected commissioners, not chief constables themselves – they should be professionals appointed by the commissioners.

John Leonard: Will you reverse the current policy (since May?) where individual cases of internet fraud are not to be reported to the police but to the relevant financial institution who then decide whether they will report the crime or not?

This will be up to the Home Affairs team to decide.  James Brokenshire has criticised the policy shift, arguing that it sends a very poor signal either that internet crime doesn't matter or that the police can't deal with it.   I think the general principle should be that if a person is a victim of a crime, he or she should be able to go to the police.

CCHQ Spy: Please name five things that the Conservative Party will do to make Britons safer from terrorism.

You'd need to ask David Davis or Pauline Neville-Jones, but doubtless their answer would include a dedicated border police force, allowing the courts to hear intercept evidence and allowing the police to interview suspects once they have been charged.

The key reform in the area for which I am responsible is that of the Human Rights Act.  David Cameron has said that we will replace the Act with a British Bill of Rights to ensure that we can protect ourselves from terrorist activity which threatens our country, and we are looking at how to do this.   I note that in spite of former Home Secretary John Reid's view that human rights legislation is an impediment to counter-terrorism, Gordon Brown has attacked our stance.

Informed Outsider: why did you break from your previous admirable libertarian stance on such issues to support the incredibly illiberal social  orientation bill of the goverment- that ends freedom of association even in private clubs, closes down gay nights, end serious religious adoption agencies etc.

see this

I didn't at first find the Sexual Orientation Regulations an easy issue to decide, since they appeared to involve competing rights and an infringement of freedom of conscience.  But when I thought about it, I didn't see how a law which is designed to protect minorities from discrimination could exempt particular groups simply because of their belief.  There is no obvious limit to the application of such a principle.  It would, for instance, allow Muslim organisations to discriminate against women on the grounds that their interpretation of Islam should override the law.   

In principle I believe that the best upbringing for a child is in a stable married family.  I think that if at all possible children should receive the loving attention of a father and a mother.  But the fact is that many children – far too many – do not have this.  If a professional adoption agency concludes that a gay couple could provide the love and stability which a child could not possibly otherwise have, I think it would be quite wrong to prevent that adoption.

If you're still not sure, try substituting the word "black" for "gay" and then see if you can argue that a hotel owner should be allowed to turn that person away because of his belief.  I can't pretend that my attitude to these issues isn't influenced by the fact that I'm gay – it is.  But at the end of the day I think this is about equality.

Mark: It is not politically attractive to give money to lawyers. But do you accept that cutting public funds for lawyers will either drive them out of business or force them to give up publicly funded work, leaving the public without any recourse to the justice system? How will you work with lawyers (especially criminal and family) lawyers to ensure they are able to continue providing this essential public service?

I hope I've covered this in answer to Richard's question above.  Thanks, again, for the opportunity to answer these questions.

Comments

[Jennifer Wells]

Very impressive set of answers Mr Herbert. Thank you.

[The Huntsman]

I thank Nick for his courteous replies to my 3 questions (sorry for being greedy, people!)

As to his answer to Q3, please see my blog at http://tinyurl.com/3ddk5x for my observations. On that matter I fear I cannot begin to agree.

[Inside CCHQ]

Note how Herbert refers to Davis' responsibility because he is trying not to annoy Davis.

Herbert and Davis used to be very close friends. They have had a bitter fall out partly because Herbert is siding with Michael Gove and wants to be tougher on terrorism but Davis wants to continue building bridges with Liberty.

This fall out will surely be picked up by Her Majesty's press before long with lamentable consequences.

Davis should be sacked and Herbert given his job. Until then, we will struggle to be taken seriously on security affairs.

[Derek]

Nick - you should adopt some of the excellent ideas of Sheriff Joe Arpaio of Arizona, see HERE