Point of Order
Thursday 23rd February 2017
(7 years, 9 months ago)
Commons ChamberRead Full debate Prisons and Courts Bill 2016-17 Read Hansard Text
Philip Davies (Shipley) (Con)
On a point of order, Mr Speaker. On 18 January, I asked the Ministry of Justice, in a written question:
“how many and what proportion of sentences for each category of offence are suspended sentences.”
On 16 February, the prisons Minister, my hon. Friend the Member for East Surrey (Mr Gyimah), replied:
“The information requested can be found on GOV.UK”.
Clearly it took a month for the Ministry of Justice to find the information on gov.uk before it could give that answer to me. It did not indicate where on gov.uk the information could be found.
This is not the first time that such a thing has happened. It is becoming an increasingly regular occurrence with the Ministry of Justice. It seems clear to me that it is doing it deliberately to try to ensure that the information never comes to light. I will refer the matter to the Procedure Committee, but I wonder whether you, Mr Speaker, can do anything to ensure that Departments, particularly the Ministry of Justice, give us open and transparent answers rather than using this rather dishonourable tactic.
Mr Speaker
I am grateful to the hon. Gentleman for that point of order. My response is consistent with what I have said previously on the matter. First, responses should be timely, and he suffered an untimely response—he had to wait rather longer than he should have. Secondly, responses to Members’ parliamentary questions should be substantive, and he did not receive a substantive reply. Thirdly, it is one thing for a Minister answering a written question to refer to a website on which further and more detailed information might be available that would be of interest to the Member concerned, but it is quite another matter simply and blandly to refer to a website, without guidance or direction and saying nothing about where on it the Member should look, and to imagine that that is a satisfactory substitute for a straight answer to a straight question—it is not.
I know that the Leader of the House and the Deputy Leader of the House take very seriously their responsibility to ensure that Ministers provide timely responses that are substantive and do not use that ruse or device. They have heard the hon. Gentleman’s point of order and my response. I thank the hon. Gentleman for raising the matter.
Bill Presented
Prisons and Courts Bill
Presentation and First Reading (Standing Order No. 57)
Secretary Elizabeth Truss, supported by the Prime Minister, the Chancellor of the Exchequer, Secretary Amber Rudd, Secretary Justine Greening, Secretary Jeremy Hunt, Secretary David Mundell, the Attorney General, Sir Oliver Heald and Ben Gummer, presented a Bill to make provision about prisons; make provision about practice and procedure in courts and tribunals, organisation of courts and tribunals, functions of the judiciary and of courts and tribunals and their staff, appointment and deployment of the judiciary, and functions of the Judicial Appointments Commission; and make provision about whiplash claims.
Bill read the First time; to be read a Second time tomorrow, and to be printed (Bill 145) with explanatory notes (Bill 145-EN).
Prisons and Courts Bill
Monday 20th March 2017
(7 years, 8 months ago)
Commons ChamberRead Full debate Prisons and Courts Bill 2016-17 Read Hansard Text Read Debate Ministerial Extracts
The Lord Chancellor and Secretary of State for Justice (Elizabeth Truss)
I beg to move, That the Bill be now read a Second time.
The Bill makes the most significant changes to the Prison Act 1952 since it was passed 65 years ago. For the first time, it will be clear that the Government are not just responsible for housing prisoners; it will also be clear that a key purpose of prisons is to reform prisoners and prepare them for their return to the community. That means getting prisoners off drugs, into work and improving their education while they are in prison. Together with greater powers for governors, performance tables and sharper inspections, more people will leave prison reformed, and this will cut the £15 billion cost to society of reoffending that we all face every year.
Chris Bryant (Rhondda) (Lab)
I understand that people quite often want to be angry at prisoners and say that it is all their own fault, but a large proportion of people in prison have suffered major brain traumas through fights or various other means. The support available in the wider community through the health service can fully rehabilitate them and bring them back into society, but the support in prison is still very weak. Will the Government be doing more to tackle that?
Elizabeth Truss
The hon. Gentleman is absolutely right that many people in prison suffer from serious issues such as the ones he mentioned. Therefore, we are going to give prison governors co-commissioning powers over health services in their prisons so that they can design them around the needs of those offenders, helping them to get the treatment that they need to live a lawful life once they leave prison.
The Bill will usher in a new era for our courts, modernising a process that remains fundamentally unchanged from the Victoria era. Our reforms, in this Bill and wider, create a system that is fit for the 21st century, providing better protection for vulnerable victims and witnesses, improving access to justice for ordinary working people, who will be able to access the courts in a much simpler and more efficient way, and promoting our reputation for global legal excellence and as the best place to do business.
Elizabeth Truss
I will give way to the hon. Gentleman before I talk through the detail of the Bill.
Ian Paisley
I welcome the access to justice proposals in the Bill. I urge the Secretary of State to discuss with the devolved Administrations, particularly Northern Ireland—when we hopefully get a Government up and running again there—rolling out the process there so that Northern Ireland can share in the expertise and expense of the system that she has put in place?
Elizabeth Truss
I understand that the hon. Gentleman has had a demonstration of our system, and I look forward to discussing with him further how we can share best practice.
Prisons rightly punish those who break the law, but they should be a place of safety and reform where prisoners can turn their lives around to then lead a lawful life outside prison. Sadly, that is not the case at the moment. The levels of violence in our prisons are too high, as last week’s shocking attack on the young officer at Oakhill shows. I am sure that the thoughts of all those in this House are with him and his family at this very difficult time.
We have worrying levels of self-harm and deaths in custody. The “Prison Safety and Reform” White Paper, which I launched in November, set out a clear plan, combining immediate action to increase staffing levels and track drugs, drones and phones with radical reforms to get offenders off drugs, into work and away from crime for good.
Several hon. Members rose—
Elizabeth Truss
I will take some interventions in a minute, once I have made a bit of progress.
While there is much we can do and are doing operationally, part 1 of the Bill addresses areas that require primary legislation. First, the Bill enshrines in law the purpose of prison. It sets out that prisons must aim to do four things. First, they must protect the public. Holding prisoners securely is a core job of prisons —protecting the public from the risk that offenders pose. Prisons must do all they can to prevent security failures.
Secondly, prisons must reform and rehabilitate offenders. They must give them the opportunities to allow them to turn their back on crime. That means tackling drug and alcohol addiction; tackling mental health issues; and giving offenders opportunities to work and get training and apprenticeships while they are in prison, to improve their English and maths, and to maintain their family ties.
Mr Dominic Grieve (Beaconsfield) (Con)
May I say how much I welcome this Bill, which seems to me to be going in exactly the right direction in terms of reforming prisons? However, my right hon. Friend will be aware that, ultimately, the ability to deliver these programmes will be intimately dependent on reducing prison overcrowding, because without that, as we have seen on many occasions, the programmes, however good, founder as the prisons come under strain. Will she keep that in mind, and is there anything she can tell the House in the course of Second Reading about the strategy she might have in mind to try to address that issue?
Elizabeth Truss
I thank my right hon. and learned Friend for his question. We have held the prison population stable for the last six years, and there are some areas, such as sex offences, where we have seen sentences rise, and I think that that is right, because those are serious crimes and they were not receiving the level of punishment that we would expect. However, as I have said before—I made this point in a speech a few weeks ago—there is more we can do to prevent people from committing crimes that lead to custody, by tackling issues earlier on, whether that is drug addiction, alcohol misuse or not being in education or training. I look forward to saying more about that in due course.
Mr David Hanson (Delyn) (Lab)
Nobody will disagree with the statements the Lord Chancellor has made in relation to clause 1, because they are sensible and sound, but she must recognise that the indicators on self-harm, assaults and everything else are rising, and that there are 6,500 fewer officers than there were seven years ago. Can she tell us how many officers she has recruited to date, how many she expects to recruit and how she can keep a prison population that is at the level it was in 2010 with fewer officers?
Elizabeth Truss
As the right hon. Gentleman knows, we have a programme to recruit 2,500 additional officers across the estate. I can confirm that we started in 10 of the most challenging prisons. We have now successfully secured the complement of officers in those first 10 prisons, which we said we would do by the end of March. We now have a record number of officers—over 700—in training. I do not deny it is a challenging task to recruit those officers, but as the right hon. Gentleman knows from his experience as prisons Minister, it is vital that we do that, because it is only by having qualified and skilled officers that we will help to turn people’s lives around.
I am not just interested in numbers; I am also interested in the career prospects and additional training that we give officers. That is why we are putting in an additional 2,000 senior officer posts across the country. Those will pay upward of £30,000, and they will reward officers who have additional training in areas such as mental health. As the right hon. Gentleman realises, it takes time to recruit and train those officers, but I am absolutely determined to do that, because, alongside these reforms, it is trained officers who will make the difference in our prisons.
Sir Henry Bellingham (North West Norfolk) (Con)
I think I can help my right hon. Friend with an idea. About 15% of the prison population are foreign prisoners, and prisoners from places such as Albania, Jamaica, Somalia and Nigeria make up about 20% of them. Surely we can have arrangements whereby those prisoners are sent back to their own, friendly countries—including Commonwealth countries. The Department for International Development might help with the arrangements in those countries.
Elizabeth Truss
My hon. Friend is absolutely right. I am pleased to say that a record number of foreign offenders were sent back last year, but we are doing even more on this and making progress. The Under-Secretary of State, my hon. Friend the Member for East Surrey (Mr Gyimah), is working very hard on it.
Mrs Cheryl Gillan (Chesham and Amersham) (Con)
I too welcome the Bill, particularly the emphasis that is placed on the purpose of prison. My right hon. Friend will be aware that one of the most successful young offender programmes is that run by National Grid. It has been going for many years, and National Grid now has 80 partner companies working with it. It has got the reoffending rate down from the average of way over 50% to 7%. In particular, some of its partner companies have been working really hard with Brixton prison in relation to release on temporary licence. Brixton has recently been removed from the ROTL regime, and that is causing some difficulty because there are no other prisons in London that satisfy the criteria. Will she look into that? Will she think about putting this into the Bill, because the ROTL scheme is really working for young offenders?
Mr Speaker
The right hon. Lady was keen to prove that her intervention was not only erudite but comprehensive, and in that mission I think she has been successful.
Elizabeth Truss
I thank my right hon. Friend for her point. She is absolutely right. Getting employers who want to employ people on the outside to train offenders on the inside will help to create the path into work that reduces reoffending. I have been to Brixton and seen the fantastic work that it is doing with offenders. The question she posed is already being addressed by my hon. Friend the Under-Secretary, because we want people to be able to get the experience in work that means that they can leave prison, get into a job, and lead a lawful life. We are also launching a strategy on employment to try to get more employers like National Grid, Timpson and Halfords, which already do fantastic work, to sign up to employing these ex-offenders, because that benefits all of us.
Caroline Flint (Don Valley) (Lab)
The Lord Chancellor has mentioned how important staffing is. The roll-out of a 1:6 ratio in public sector prisons is welcome, but I do not understand why it would not apply to private prisons, because they have to deal with the same sorts of challenges as those in our public sector.
Elizabeth Truss
I should clarify that it is a caseload of 1:6, which means that each officer will have responsibility for six offenders whereby they are in charge of making sure that those offenders are safe and encouraging them to reform while they are in prison. The head of the Prison Service, Michael Spurr, is in discussions with the private sector prisons to make sure that they have access to the same level of staffing. We want that to apply in both the private and the public sectors.
Wes Streeting (Ilford North) (Lab)
I welcome the Lord Chancellor’s response to my right hon. Friend the Member for Don Valley (Caroline Flint). The Lord Chancellor has set out this aspiration before, so could she now set out a timescale as to when the imbalance in ratios between the public and the private sectors will be corrected?
Elizabeth Truss
I can assure the hon. Gentleman that it is on the same timescale as the public sector programme, so we will deliver it over the next year and a half.
Dr Daniel Poulter (Central Suffolk and North Ipswich) (Con)
I commend my right hon. Friend for much of what she is doing in this Bill. Given that she takes great pains to stress the importance of mental health and its link with reoffending and the need to reduce self-harm and other issues in prisons, I am curious as to why one of the fundamental duties in clause 1 is not to promote and protect the mental health and wellbeing of prisoners.
Elizabeth Truss
I know my hon. Friend takes a very strong interest in this area. I assure him that the commissioning arrangements for governors will give them the power to specify mental health treatment in their own prisons. Governors have complained to me that, at the moment, mental health services are available only five days a week. That is an issue if somebody arrives in a prison at a weekend with serious mental health issues.
Governors will be able to co-commission those services. Under the categories of reforming and rehabilitating offenders, we have announced specific performance metrics, some of which will cover health issues. I issued a written ministerial statement recently containing the detail of that, and we will say more about it in due course. That is among the reform measures that we are putting in place, and it will be covered in the performance agreements that individual prisons have with me, as Secretary of State.
Rachael Maskell (York Central) (Lab/Co-op)
Askham Grange women’s prison in York has the lowest reoffending rate in the country, at 6%, but for two years the Government have been saying that they are going to close it. Will the Lord Chancellor look at that again and confirm that she will not close such an excellent prison?
Elizabeth Truss
I am certainly very happy to look at that issue. We will shortly launch a new strategy for women offenders, which will be about dealing better with underlying issues—whether that is substance abuse, or issues of abuse and domestic violence—to find a better solution and prevent women from committing the crimes that lead them into custody. We will launch that shortly, and I am sure we will cover the prison that the hon. Lady mentions.
The third priority and purpose of prisons that we lay out in the Bill is preparing prisoners for life outside prison. As has been mentioned, making sure that the offender has sustainable employment and a home to go to is vital in reducing reoffending.
Mark Menzies (Fylde) (Con)
In my constituency, I have Kirkham prison, which has been a pioneer in leading a programme on jobs, friends and family; the former prisons Minister, my hon. Friend the Member for South West Bedfordshire (Andrew Selous) has met those involved. May I ask the Secretary of State, during proceedings on the Bill, to have a look at the programmes being run by Kirkham prison and see whether similar programmes can be incorporated elsewhere, because they really make a difference to people’s lives?
Elizabeth Truss
I would certainly be happy to see the details of that scheme. Family ties will be included in our performance measures and our empowerment of governors. Governors will be given control of their budget for helping prisoners with their family ties. We have had a report from Lord Farmer, and I am meeting him this week to discuss the matter further. In addition to having work and a home to go to, a supportive family can be a very important part of rehabilitation.
Governors need to look at all those things. I am setting out clear expectations of what prisons should be doing, but not how they should do it. I believe that it is up to the individual governor to look at what works for their area and what works for the people in their prisons, so it is important that they should be given the flexibility to deliver things in an innovative way. I will be very clear about the standards that we expect, but how governors deliver those standards will be increasingly down to them.
Victoria Prentis (Banbury) (Con)
Does the Lord Chancellor agree that if we are able to tackle the problems surrounding links with families—one of the key recommendations of Lord Farmer—that will, in itself, greatly reduce reoffending? Lord Farmer will show that 63% of the children of offenders grow up to offend. Does my right hon. Friend agree that it is important that we intervene early to ensure that that does not happen?
Elizabeth Truss
My hon. Friend is absolutely correct on that point. Those children often feel as though they have done something wrong, and it is absolutely wrong for them to feel as though they are being punished for a crime that their parent has committed. I am determined that we will do what we can to protect innovative schemes such as Storybook Dads, which help to keep the link between children and their fathers and mothers while those individuals are in prison.
Finally, we need to maintain a safe and secure prison environment. Prisons need to feel safe for staff and prisoners. That means that as well as tackling violent incidents and creating the right kind of culture and atmosphere, we need to provide support to vulnerable prisoners. We also need to make sure that we have sufficient levels of staffing to provide that safety and security.
The Bill makes it clear how I, as the Secretary of State, will account to Parliament for progress in reforming offenders. This is the first time that legislation will make it clear that the Secretary of State is responsible for reforming offenders, and the Secretary of State—that is, me—will have to report to Parliament about what they do. That is a very important change in the culture of our prisons: for the first time, there will be accountability at Cabinet level not just for prisons being safe, which is of course important, and for providing enough prison places, but for turning around and reforming the lives of individuals under the care of the state, and ensuring that they leave prison with better prospects and more likely to lead a law-abiding life.
Ian C. Lucas (Wrexham) (Lab)
I have listened closely to this debate, which has largely been extremely consensual. The Lord Chancellor knows about HM Prison Berwyn in the Wrexham constituency—we have already discussed it—and that a great deal of common hope is invested in that institution. In Wrexham, we are hugely impressed by its staff, under the leadership of Russ Trent. To pick up on the point she is making, will she report back regularly on the progress at that prison? Many of the aspects of the philosophy we are talking about are being carried out there in practice, and it will be extremely important to measure that as time passes.
Elizabeth Truss
I am certainly very happy to report back on the progress at HMP Berwyn. We are looking at that progress, and we are learning the lessons across our prison estate.
Mrs Gillan
The Lord Chancellor is very generous in giving way to me twice. She will be aware that people with autism are disproportionately represented in the criminal justice system. Young Offender Institution Feltham was the first prison to have accreditation as autism-friendly, which it has found has reduced violence and helped people with mental health problems. I understand that 20 other prisons are currently going through the accreditation process. Will she give consideration to making sure that all establishments go through the accreditation process, because I believe it will deliver a safer environment in prisons for our officers and for those incarcerated?
Elizabeth Truss
I will certainly look at that. I know my right hon. Friend has a long record of standing up for people with autism and making sure they have proper support.
Elizabeth Truss
I want to finish this point, because I must move on to the courts section of the Bill, but I will give way.
Sir Edward Garnier
My right hon. Friend is very kind. The Bill says:
“The report must set out the extent to which prisons are meeting the purpose mentioned in section A1.”
What happens if a prison, or prisons generally, do not meet such a purpose? What will the Secretary of State do about it, what can she do about it, and what will happen if she does not do anything about it because prisoners are let out?
Elizabeth Truss
My right hon. and learned Friend, who served as the shadow prisons Minister, makes a very important point.
As well as creating a framework for the Minister, the Bill will set up a new Executive agency, Her Majesty’s Prison and Probation Service, from 1 April, to focus on the operational management of prisons and probation. We will have new standards, and performance measures will appear in performance tables so that the public can see, transparently and accountably, what is going on in prisons. At the moment, we do not know the employment rate for those coming out of a prison, how good a prison is at improving the English and maths of the people inside it, or how effective it is at getting them off drugs. Those measures will all be published, which will lead to much greater scrutiny and accountability for the public.
In addition, I am strengthening the powers of the prisons inspectorate. The inspectorate—the chief inspector, in particular—will be able to trigger an urgent response from the Secretary of State in the most serious cases. That means that if a prison is failing to meet the standards, the Secretary of State will have to respond within a specific timetable with an action plan to improve the prison. At the moment, that is not the case.
Elizabeth Truss
It will be enforceable through the inspectorate, which will be given specific powers to ensure that that happens.
The Bill will place the prisons and probation ombudsman on a statutory footing, giving him greater authority and statutory powers to investigate deaths in custody. The Bill supports our efforts to stop drug use and crime enabled by illegal mobile phones. It enables phone network operators to disrupt unlawful use of mobile phones in custody.
Kate Green (Stretford and Urmston) (Lab)
I just want to ask the Lord Chancellor, if she could answer very simply, who is accountable in the event of a prisoner’s escape?
Elizabeth Truss
The governor is accountable for what happens in their prison, but there is a line management structure through to the head of the Prison Service and, ultimately, the Secretary of State.
The Bill supports swifter responses to the devastating effect of psychoactive substances. There have been very serious cases on our prison estate. They fuel debt and violence and can have a serious impact on prisoners’ health. We rolled out new tests for psychoactive substances in September last year—we were the first jurisdiction in the world to do so. The Bill strengthens our ability to keep up with the speed at which substances evolve. It allows quicker testing for all newly identified psychoactive substances based on the generic definition of those substances set out in the Psychoactive Substances Act 2016.
We face challenges in our prisons that will not be solved in weeks or months, but I am absolutely determined to turn the situation around. We now have the resources to do so: we are investing an additional £100 million a year and we have a clear plan. The measures in the Bill provide a structure under which accountability and scrutiny can take place, so we will be able to see how our prisons improve over time.
The Bill introduces major reforms to the court and justice system, which I announced in my joint memorandum with the Lord Chief Justice and Senior President of Tribunals in September. It will introduce more virtual and online hearings, put in place greater protection for victims and witnesses, and provide greater support for our excellent judges and magistrates.
I want to take a moment to pay tribute to the Lord Chief Justice, John Thomas, a great reformer who has spearheaded these reforms and who will retire later this year. I also want to thank the Senior President of Tribunals. Their vision for a courts and tribunals system that is just, proportionate and accessible lies at the very heart of the reforms set out in the Bill. The reforms are a tribute to their tireless work, alongside other senior members of the judiciary.
Robert Neill (Bromley and Chislehurst) (Con)
On behalf of the Justice Committee, may I warmly associate myself with the Justice Secretary’s entirely appropriate comments on the Lord Chief Justice and the rest of the senior judiciary? Will she reflect on whether the Bill’s passage through the House may not provide an opportunity to revisit the retiring age of senior judiciary, which, at 70, runs against the behaviour of much of the rest of society and our economy?
Elizabeth Truss
I thank the Chairman of the Select Committee for introducing this hotly debated issue into our discussion on the Bill. The measure is not a part of the Bill. I have had discussions on this issue with the senior judiciary. We should certainly consider it in due course, but at the moment there is no consensus.
Yesterday, we announced that we are bringing forward the roll-out of reforms to allow rape victims to pre-record their cross examination, sparing them the trauma of giving evidence during trial. This follows successful pilots of measures for child victims of all crimes. This will not reduce the right to a fair trial. During the pilots for vulnerable victims there was no significant change in the conviction rate, but we did see more early guilty pleas and fewer cracked trials. That means less stress and trauma for all of those participating in the case.
I want to praise the determined leadership of the president of the Queen’s Bench Division, Sir Brian Leveson, and the senior presiding judge, Lord Justice Fulford. They have been vital in developing the plans for rolling out these provisions for child victims and victims of sexual offences in all Crown courts. Given that in some of our Crown courts, almost 50% of cases are sexual cases, this is a very important reform that will help us to support people who have to go through this terrible experience and to improve the situation for them.
Ann Coffey (Stockport) (Lab)
This is a very welcome announcement, but it will mean that more cases will have to be included in the roll-out of section 28, which is due to be completed by December 2017. The sexual assault referral centre in Manchester is currently a remote site, enabling cross-examination of vulnerable witnesses by video link to the court. Will the Secretary of State consider the use of existing remote sites such as St Mary’s for pre-recorded cross-examination of witnesses, which would help to prevent delays in the roll-out of section 28, which has been a fantastically successful pilot?
Elizabeth Truss
I am in principle in favour of using alternative venues, other than courts, which can be conducive to people giving the best possible evidence in a less intimidating environment. I would have to discuss that with the senior judiciary—we are working closely with them on this issue—but I am certainly in favour of using places such as sexual assault referral centres to make sure that we give the best possible support to victims and witnesses at a very difficult time for them.
The measures set out in the Bill will further enhance our ability to protect vulnerable witnesses and modernise the courts and tribunal system. Our changes to the system should be reflected in better legal support, but are focused on early help and representation. That is why we are bringing forward a legal support Green Paper in early 2018, setting out proposals to update the system of legal support in a modern court system. Put simply, what we want is less time spent navigating the system and more legal time spent on giving people legal advice and legal representation.
Parts 2 and 3 will take forward measures relating to procedures in civil, family and criminal matters, and the organisation and functions of courts and tribunals. I shall talk through each in turn.
Ian C. Lucas
One area that I am concerned about is representation in court in matrimonial proceedings, which can be some of the most difficult, emotional and contentious cases in our courts, yet very little legal representation is publicly funded. Is the Lord Chancellor content with the current situation, and which areas does she think need the most attention?
Elizabeth Truss
If the hon. Gentleman is asking me whether I am content with the current situation, no, I am not. We need to reform the family justice system. We need to help people to get an earlier resolution of their issues. We need to get better at helping families, and I am a big fan of the family, drugs and alcohol courts and the work that they do in supporting parents. That is why the Minister for Courts and Justice and I will bring forward a Green Paper on family justice that will look at the system in a holistic way to see how we can do things better within the family justice system. There are certainly areas where improvement needs to be made.
Banning the ability of alleged abusers to be able to cross-examine their victims in court is an important step. This was done in the Crown courts in the 1990s, and we are only now catching up with it in the family courts. It is very important to give family courts the priority in the system that they deserve, so that we can deal with these difficult issues in people’s lives as sensitively as possible.
This Bill will also make sure that victims and witnesses in the criminal courts receive the support they deserve. It will extend the use of video links from virtual hearings, which will have multiple benefits. First, it will allow victims to be eligible to take part in cases without having to meet their alleged attacker face to face. In future, about 180,000 victims and witnesses a year will be eligible to give evidence remotely from a convenient location or in advance of a hearing. The Bill will enable more bail hearings to take place through video link and away from the courtroom, saving time and money. It will increase the efficiency and effectiveness of the overall process by allowing a number of decisions to be made outside the traditional courtroom, and it will save people time spent in travelling to court: it will save about 112,000 journeys from prisons to courts each year.
Mr Grieve
I am most grateful to my right hon. Friend for giving way again. I support the thrust and intention of the Bill. Normally a victim is the first witness for the prosecution, but is there not a risk that the question that someone may wish to ask the witness will be changed by the evidence that precedes the giving of that evidence by the witness? We shall have to have a system to deal with that if a fair trial process is to be maintained.
Elizabeth Truss
My right hon. and learned Friend has made the important point that a fair trial is at the heart of our justice system. We already have rules committees, and we are establishing a new online rules committee which will be managed by the judiciary. They will look at the issues in detail to ensure that a fair trial is always paramount.
The Bill will enable screens to be installed in courts across England and Wales to allow the public to observe virtual hearings from court buildings anywhere in the country. Lists of all open cases will be published online, and results will be made available digitally. That will ensure that justice is done and seen to be done.
The Bill will streamline the pre-trial process, and will make changes in the way in which cases are allocated in the Crown and magistrates courts. Defendants will be able to indicate a plea online in all cases, allowing the courts to make administrative decisions without the need for a hearing. We are also stripping out nearly 30,000 unnecessary first hearings for the most serious offences in the magistrates courts each year.
The Bill will abolish local justice areas, simplifying the structure of our magistrates courts and removing the bureaucracy and geographical constraints that cause inefficiencies and delays. It will allow those who are charged with some of the most straightforward, non-imprisonable offences to resolve their cases entirely online. For example, a commuter charged with failure to produce a ticket can log on to a website, have all the options clearly explained, and accept a conviction and pay a set penalty instantly online without waiting for a magistrate to process the case.
Richard Fuller (Bedford) (Con)
My right hon. Friend will be aware that a number of magistrates courts—including the court in Bedford—were closed in past years by the justices themselves, despite the best efforts of my hon. Friend the Member for North West Cambridgeshire (Mr Vara), whose hands were tied. Will these measures help to allay my constituents’ concern about the difficulties of additional travel in the case of some offences? Will the Bill give them some comfort by ensuring that the problems involved in having to go to Luton will be allayed?
Elizabeth Truss
My hon. Friend is right. I represent a rural constituency, and I understand people’s concerns about having to travel far. Virtual hearings will enable people to do more online so that they do not need to travel to court, and to use virtual videos. That is already reducing travel needs throughout the country. If people want to observe a case in another part of the country, they will be able to go into their court to do so, with special permission. Victims and witnesses will have more access to the justice process.
Mrs Madeleine Moon (Bridgend) (Lab)
Transferred online communications are wonderful if people have access to quality broadband, but communities in parts of my constituency have broadband that is as slow as 25% of capability. How on earth will people be able to gain access to justice when they cannot possibly do anything online because of appalling broadband?
Elizabeth Truss
We are doing a lot to improve broadband across the country. The online system is not mandatory; the paper process will be available. I have been looking recently at virtual hearings that are taking place across the country. In some areas, such as the south-west of England, there is very high take-up of these hearings, because being able to use broadband helps people in rural areas, who have long distances to travel to get to court.
The Minister for Courts and Justice (Sir Oliver Heald)
Particularly in the west country.
Elizabeth Truss
The west country is leading the way at the moment, and we are looking at how we can encourage courts across the country to do the same thing.
I am very pleased to say that civil justice is at the forefront of our reforms. I was proud to announce the new business and property courts last week with the Lord Chief Justice and the Chancellor of the High Court. These courts are the vanguard of our world-class civil justice system, making sure that global Britain leads the world in law. They will be based in London, Leeds, Bristol, Manchester and Cardiff, and they represent the fact that our courts and commercial courts serve not only the City of London, which is of course important, but significant regional centres across the country.
Robert Neill
I promise that this intervention is uncontroversial. Does my right hon. Friend agree that, as well as the integrity of the judiciary, one of the strengths of our commercial courts is the ability to enforce judgments worldwide, and that includes within the European Union? Does she therefore accept that it is most important that the ability to enforce the judgments of our courts in the EU remains a top priority in our Brexit negotiations?
Elizabeth Truss
My hon. Friend is correct. As well as making sure that these commercial courts cover all the regions of our country, we need to make sure that there is mutual enforcement of judgments elsewhere. We have a commitment to do that as a Government; it is something that I have agreed with the Secretary of State for Exiting the European Union, and it is a priority for the Government’s negotiations.
This Bill introduces a new online court which will enable people to resolve civil claims of up to £25,000 simply and easily online. These online services will increase access to justice. It will reform procedures so that people can make witness statements rather than statutory declarations in relation to certain traffic and air quality offences in the county court. It means that people will not have to go into court to go through this process. The Bill will also streamline the use of “attachment of earnings” orders, giving the High Court the same power as the county court to make attachment of earnings orders in relation to judgment debts, and on the basis of a fixed deduction scheme.
We also want our excellent judiciary and magistrates to be better supported in the work they do. This Bill will allow judges in all our courts and tribunals to make greater and more effective use of authorised court staff, to assist them with tasks such as dealing with routine applications or ensuring compliance with court directions. This will allow our judiciary to prioritise their time and expertise on the matters where they are needed most.
The Bill will bring the legislative framework for the employment tribunal system into closer alignment with that of the wider tribunals system. It will confer responsibility for making procedural rules to the Tribunal Procedure Committee. Employment judges will be able to delegate routine tasks to appropriately trained or qualified staff. Overall, these reforms will benefit tribunal users, whose cases will be resolved more quickly and proportionately.
We have the most highly regarded judiciary in the world; they are a beacon of independence, expertise and commitment to the rule of law. The Lord Chief Justice and I are working closely together to make sure that we have the strongest possible role for judges and magistrates in a transformed and modern justice system. We are putting in place reforms that recognise magistrates as an integral part of this judicial family. The judiciary is an important part of our constitution and its continued independence is vital for the rule of law. We must continue to uphold the very high standards and to select its members purely on merit. That means ensuring that people want to apply, feel valued and have good working conditions. I value the work that the judiciary does, from the magistrates and tribunals to the High Court and the Supreme Court. As Lord Chancellor, I am determined to support them in all they do.
Part 4 takes forward measures to ensure that our judiciary have the support and opportunities they need for a fulfilling and successful career. This Bill will strengthen leadership structures in the judiciary, supporting our wider work to provide clear career progression for judges, and ensuring that the widest possible range of talent comes into our judiciary. It will make it easier for the judiciary to deploy judges more flexibly, allowing judges to gain experience of different types of cases and helping with their career progression. The Bill will also enable the Judicial Appointments Commission to assist with selection exercises in other parts of the world, sharing the leading expertise within the commission.
Part 5 tackles the rampant compensation culture that has developed around whiplash claims—
Philip Davies (Shipley) (Con)
Just before my right hon. Friend moves on, may I ask her a question about magistrates? She rightly values the work that they do, so when can we expect the Government to allow them to send people to prison for 12 months, rather than six? This Government have been promising to do that for quite some time.
Elizabeth Truss
I thank my hon. Friend for his dogged support for magistrates; he is absolutely right about the fantastic work that they do. I am looking into this issue, and I would be happy to discuss it with him further.
Part 5 tackles the rampant compensation culture that has developed around whiplash claims. The number of road traffic accident personal injury claims is over 50% higher than it was 10 years ago, despite there being fewer accidents and safer cars on our roads. The Bill will enable us to introduce a transparent tariff system of fixed proportionate compensation for whiplash claims with an injury duration of up to two years, and to ensure that all claims will be supported by good quality medical evidence provided by accredited experts.
Chris Leslie (Nottingham East) (Lab/Co-op)
Should not the Lord Chancellor use the Bill to put in place a fairer and more balanced framework for calculating personal injury compensation lump sum insurance payments, following her seismic decision on the discount rate a few weeks ago? That decision has the potential to raise our constituents’ insurance premiums, and the Treasury has said that it could add £2 billion next year and £1 billion thereafter to NHS litigation costs, which will affect the taxpayer. Surely the Bill could introduce a better balance.
Elizabeth Truss
I can assure the hon. Gentleman that he will not have to wait long for an answer to his question. I agree that the system is in need of reform, and I will bring forward a consultation before the Easter recess. I look forward to hearing his contribution to it.
Rob Marris (Wolverhampton South West) (Lab)
Will the Secretary of State tell the House where the consultation’s tariff figures for whiplash came from? What evidence was there for the Government to put those figures in the consultation document?
Elizabeth Truss
The hon. Gentleman will have noticed that we have changed the figures in response to the consultation document. Those were judged to be fair and reasonable for the level of injury that we are talking about in this case.
Chris Philp (Croydon South) (Con)
I strongly welcome the provisions in the Bill to clamp down on whiplash fraud. Will the Lord Chancellor consider widening very slightly the definition of “whiplash injury” in clause 61 to include injuries to the lower back as well as the upper back?
Elizabeth Truss
That issue was covered in the consultation, and we have brought it back after listening to what people fed through in the consultation. The Bill will end the unfairness of higher premiums for motorists while ensuring that fair compensation remains available for genuinely injured claimants.
The Prisons and Courts Bill will usher in a new, modern era for our prisons, courts and justice system. It will do three key things. It will ensure that our prisons are places of reform so that offenders have the skills they need to return to society, to secure employment and to turn their back on crime. It will create a courts and tribunal system that protects the most vulnerable and is more straightforward and accessible for all. It will also enable the judiciary to meet the demands of a modern justice system and enhance our reputation for legal excellence around the world. I commend the Bill to the House.
Richard Burgon (Leeds East) (Lab)
I start by echoing the Justice Secretary’s comments about the young prison officer Ryan Goodenough, who was attacked in Oakhill secure training centre last week. I pay tribute to all our prison officers, who do such a good job in such difficult circumstances.
I thank the Secretary of State for telephoning me the evening before the Bill’s publication to discuss its contents, and the Minister for Courts and Justice for meeting me last week to discuss the Bill in further detail. Even though I have been in this place for only a limited time, I understand that that is a custom more often honoured in the breach than observance, so I was pleased that they contacted me in a courteous and informative way. I also thank the House of Commons Library for its thorough and clear briefing, which has assisted me and my staff, and doubtless many other Members and their staff, too.
We are discussing a Bill to amend the procedures in our prisons and courts. The Bill has been trailed since the Queen’s Speech last May—back in the days when the former right hon. Member for Witney was Prime Minister, the right hon. Member for Surrey Heath (Michael Gove) was Justice Secretary, and the right hon. Member for Tatton (Mr Osborne) could not find the time to edit a daily newspaper. Much has changed since then—we have waited a long time for this Bill.
We are not opposed to the Bill. Indeed, we welcome and support much of its content. However, when we disagree with provisions or believe that the Government should go further, we will pursue amendments in Committee. The Bill comes at a time of dual crises: a dangerous and declining prison estate; and thousands of people being priced out of access to justice. I will set out the reasons for those crises and what the Bill must offer to make a real difference.
It has been the Secretary of State’s misfortune to inherit a brief that has been dominated from day one by the crisis in our prisons. That crisis is not of the Secretary of State’s making, but it was created by the Conservative Government’s cuts agenda. The relevant statistics are often cited in this place, but they are worth repeating. There is overcrowding in 68% of our prisons, with more than 84,000 people for approximately 77,000 places. In the 12 months to September 2016, there were more than 25,000 prisoner assault incidents, which represented a 31% increase on the figure for September 2015. Assaults on prison staff reached 6,430, which was an increase of 82% since 2006 and a 40% increase on the year before. There were more than 37,750 incidents of self-harm, which was an increase of 61% compared with September 2006 and a national increase of 23% on the previous year. In the 12 months to December 2016, there were 354 deaths of prisoners in custody, 34% of which were self-inflicted. This Government’s decision to cut 7,000 frontline prison officers no doubt contributed in large part to the crisis, but that was allied with the disastrous decision to part-privatise our probation service, meaning that the effective rehabilitation of offenders has become all but extinct under successive Conservative Governments.
Philip Davies
I, too, want to support and help to protect our prison officers. I intend to table an amendment whereby a prisoner who assaults a prison officer should no longer be automatically released halfway through their sentence. That would have a big impact on the Prison Officers Association—it would welcome that support—and it might deter some of the violence in prisons. If I table such an amendment, will the hon. Gentleman show his backing for prison officers by supporting it?
Richard Burgon
In Committee, my hon. Friend the Member for Halifax (Holly Lynch) and others will look at ways of ensuring that we put the safety of our prison officers first, and on a par with the safety of police officers. Overcrowding, violence and failure to reform are all challenges that the Bill must confront and surmount.
The Bill sets out proposals to modernise the way in which our courts and tribunals operate, which is welcome. I can testify from my decade as an employment tribunal lawyer that when Dickens complained in “Bleak House” about the turgid pace with which courts dealt with cases, he could have been speaking for our age, too. However, technology has begun to appear in courtrooms, from which it was previously glaringly absent.
It is vital that such innovations do not come at the expense of access to justice, because in recent years, when the Conservatives have released documents with the word “transforming” in the title, that has usually been shorthand for cutting, diminishing and failing—think of “Transforming Legal Aid” and “Transforming Rehabilitation.” “Transforming our Justice System,” which is one of the papers that has influenced this Bill, must not result in the same.
The Lord Chief Justice, Lord Thomas, was certainly correct when he said last year:
“Our system of justice has become unaffordable to most.”
I was glad that the Secretary of State praised Lord Thomas in her speech, but I would welcome it if she went beyond praising him and agreed with his analysis of the barriers to access to justice.
Mr Shailesh Vara (North West Cambridgeshire) (Con)
Lord Thomas certainly said that, but the hon. Gentleman will be aware that Lord Thomas also supports all the Bill’s measures on reforming the courts, particularly on using technology to allow the access to courts that so many people were saying was going to be denied. Lord Thomas supports all the measures.
Richard Burgon
I made it clear at the outset of my speech that we will not oppose the Bill on Second Reading. We welcome a number of the Bill’s measures, but the Government should go further. I hope that the Secretary of State will agree that reform should not come at the expense of access to justice, and if Lord Thomas, whom we all hold in high esteem, is saying that our system of justice has become unaffordable to most, Members on both sides of the House must take that seriously.
Nothing more poignantly demonstrates what Lord Thomas said about the barriers to access to justice than the 70% reduction in employment tribunal cases following the coalition Government’s introduction of employment tribunal fees. The Bill must provide answers to such problems. Technology alone is not a panacea, nor must it be utilised to mask further cuts to public funding.
A key feature of the Bill that has received much coverage in recent weeks is the proposed reform of whiplash claims. When the Bill was published, many people were pleased that it did not raise the small claims limit for all personal injuries, so the Government can be congratulated on listening—or listening a little—but we should be clear that the reform of whiplash claims is based on a false premise. The Secretary of State said today that there is a “rampant compensation culture”, but there is no epidemic of fraudulent claims. The British people are not on the fiddle or on the make in the way the Government so disparagingly suggest.
Mr Vara
The shadow Minister’s tone suggests that he agrees with much of the Bill—that is welcome—but how does he explain the fact that while the number of accidents is going down enormously, the number of whiplash claims has nevertheless increased by 50%? Does that have something to do with fraud?
Richard Burgon
The number of whiplash claims in recent years has reduced—[Interruption.] In recent years it has. I should also point out that there is a duty upon insurers to defend claims and not to pay out when claims are fraudulent.
Mr Hanson
I wonder whether my hon. Friend can help me a little. The Government have claimed that the whiplash proposals will reduce insurance premiums for drivers by about £40. Has he become aware of any evidence to back up that claim? If so, will he share it with the House, because we would be interested in examining it?
Richard Burgon
I thank my right hon. Friend for his intervention. Unfortunately, the Government have provided no cast-iron assurances that this saving will be passed on to drivers—if it exists at all.
Kate Green
Does my hon. Friend agree that it is wrong to penalise people who have valid personal injury claims because of a possible rise in the number of claims that is driven by cowboy claims management companies cold calling people to suggest that they should make claims that have no basis in reality? The Bill does nothing to address that.
Richard Burgon
I agree with the point that my hon. Friend so eloquently makes. Injured people should not be made to pay the price of the behaviour of the unscrupulous minority—the companies that engage in the practices she describes.
The Secretary of State started her speech by explaining how the Bill introduces a statutory purpose for prisons to
“protect the public…reform and rehabilitate offenders…prepare prisoners for life outside prison; and…maintain an environment that is safe and secure.”
Of course we agree with those aims, but most people believe that they are what prisons are meant to be doing already. It is crystal clear that those things are not happening today. The main problems in prisons cannot be disputed: violence, drugs, overcrowding and understaffing. To combat those threats effectively, we need a plan for order—a plan to reduce the demand for and supply of drugs, to manage the prison population, and to recruit and retain prison officers. Where is any of that in the Bill? Where are the practical measures to realise those goals? We will be returning to those issues in Committee.
Rob Marris
Let me try to help my hon. Friend because there is a bit of a theme running through the Government’s approach. Ironically, given that we are considering the Prisons and Courts Bill, the Government’s approach to evidence is somewhat cavalier. Most of us would accept there is likely to be cause and effect between cutting 6,500 prison officers and replacing them with only 2,500, and the terrible state of our prisons; and between the introduction of massive employment tribunal fees and a lack of access to justice. Now we have bizarre compensation tariff proposals for whiplash with no evidence of where the Government got their figures from, but just an assertion from the Secretary of State that they believe in fair compensation. Well, I believe in Santa Claus as well.
Richard Burgon
My hon. Friend puts it very well indeed. Evidence is required in court and in this place, and the evidence to back up some of the Government’s proposals is lacking. I will say more about this later, but there is a similar situation in respect of the review of employment tribunal fees. In effect, it says, “There is nothing to see here,” despite evidence showing that there has been a 70% reduction in the number of cases brought to those tribunals.
Victoria Prentis
I am glad that the hon. Gentleman agrees with much of what is in the Bill. Does he agree that the White Paper alongside it contains a lot of the evidence that he is searching for?
Richard Burgon
Of course we have considered the White Paper but, as I said, we will be returning to these practical proposals in Committee as we attempt to improve the Bill.
Did Ministers consider that the resettlement of prisoners might be a worthy aim to set out in the Bill? Too many prisoners leave prison without a home to go to, and that is a barrier to many things, including getting a job. It hampers rehabilitation and increases—
Mrs Moon
Is my hon. Friend aware of the Emmaus project? It will offer a prisoner who is ready to take the step of moving away from drugs and offending and into work the chance to become a companion. People will prepare goods for sale in the Emmaus shop, and restore and repair other goods. Those people claim no benefits other than housing benefit, so there is no real cost for the state, but they are supported in changing their lives absolutely and getting back into work. Should we not encourage that?
Richard Burgon
Fantastic work such as that of the Emmaus project helps not only to turn around the lives of inmates, but to protect society, because the majority of people who go into our prisons will come out and live next door to us. The project helps to give people a stake in society and to reduce reoffending, and the Government can learn much from it. Leaving prison without a home to go to creates a barrier to many things, including getting a job, and that hampers people’s reintegration into society.
Mrs Gillan
I welcome the hon. Gentleman’s support for many of the Bill’s provisions. Does he agree that the National Grid scheme, which was started all those years ago by Dr Mary Harris, does valuable work in finding homes for prisoners? It takes prisoners out on temporary licence, pays them and finds them a job—this means they have money in the bank—and often finds them a home. That is why the programme is so successful in reducing reoffending. Does he agree that the scheme should be rolled out right across the prison system, particularly as by 2020 we will need around 1.8 million engineers throughout the UK?
Richard Burgon
That programme is certainly worth while and welcome. I have been arguing that the Bill should refer specifically to such practice.
We need to know more about what the Secretary of State’s overall responsibility for the statutory aims will mean in practice. Who will decide whether she is fulfilling her responsibility? We welcome the additional powers for the inspector of prisons, but the inspector’s report will mean little, if not nothing, if its recommendations are simply ignored. As we have heard, the Bill will require the Secretary of State to respond within 90 days. It will be interesting to know how that time period was decided, but beyond responding to a report, what else will she be required to do?
Many stakeholders tell me that a failure to take any action in response to independent monitoring boards’ reports and inquest jury verdicts has contributed to the prisons crisis. The recent tragic death of Dean Saunders is a sad case study of what can go wrong when mental health issues and our prison system collide. Has the Secretary of State considered whether she or prison governors should be required to respond to such findings? Could the role of the governor be more effectively scrutinised through a system of peer-to-peer review across the prison estate—whether public or private?
The urgent notification system is welcome, but how did the Government arrive at the 28-day time limit for a response? Does the concept of urgency not demand a shorter period? There have been past attempts to put the prisons and probation ombudsman on a statutory footing. Perhaps that is now within reach, but that is all the Bill will achieve in this regard. What thought did the Secretary of State give to expanding or augmenting the ombudsman’s powers? There is nothing in the Bill that addresses the need to improve the experience of and care for those who come to prison with mental health problems, or that addresses whether prison is even the right place for many of them in the first place.
Blocking the use of unauthorised mobile phones in prisons is clearly an urgent task, which we of course fully support, but other measures could be taken to complement the innovation in the Bill and reduce the trade in mobile phones. Committed and hardened criminals will seek out mobile phones to try to continue their criminal enterprises and activities from inside our prisons. For those prisoners who just want to phone home or phone a friend, greater access to affordable pay phones for monitored calls will help to reduce the demand for mobiles. Currently, some prisons have pay phones in cells, but most have pay phones only on the prison wing, which means that, at association time, the prisoners end up queuing to use the phone, and they may not get to use it before their association time is up. Better access to affordable pay phones and privacy from other inmates will reduce the demand for mobile phones. We welcome the Government’s measures to block the unauthorised use of mobile phones.
Developing and using an effective way of testing for psychoactive substances is also vital. However, that alone will not deal with the demand and supply of those substances. Recent reports from the inspectorate have found that overcrowding and a shortage of prison officers means that intelligence-led drugs tests are, sadly, a rarity. The best and most effective way of reducing the demand for drugs is to ensure a full and purposeful programme for all prisoners so that their time in prison is occupied.
Many of these problems with which we now grapple can be linked with the disastrous decision to cut prison officer numbers by 7,000—or 30% since 2010. The public sector pay freeze has made recruitment more difficult and without sufficient numbers of officers in prisons, order cannot be maintained. Officers do not have time to mix with prisoners and gather intelligence or to conduct searches, fabric checks of cells, and drugs testing.
Rob Marris
In that context of insufficient staff, does my hon. Friend join me in welcoming the establishment of a prisons and probation ombudsman with considerable powers, including one to direct the form of the response to be made by the Secretary of State to a report from the ombudsman? It is a considerable power. To have a strong ombudsman who would be prepared, if necessary and in certain circumstances, to face up to the Secretary of State is a powerful protection when that ombudsman investigates deaths as well as other complaints.
Richard Burgon
That is a very important point. We support a strong ombudsman, and we want reassurances that the Secretary of State will have to not just respond to the ombudsman, but take action on the basis of the findings of the ombudsman.
Prisons officers to whom I speak want to help offenders turn their lives around. They want more responsibility and to be part of a valued profession. They do not want to be viewed just as turnkeys, but successive Conservative Secretaries of State have diminished their role.
As mentioned earlier, the Government have set out plans for league tables and greater autonomy for prison governors. One wonders why the Government are persisting with the league tables idea when it was first dismissed by the chief inspector of prisons, Peter Clarke, at the Justice Committee in January. The Prison Governors Association has said that league tables
“will not achieve anything other than to risk demoralising staff and of unfairly judging the senior management team”.
Perhaps that was what prompted the Under-Secretary of State for Justice, the hon. Member for East Surrey (Mr Gyimah), to tell the Justice Committee that it would be performance data. The PGA also fears increased governor autonomy coinciding with increased responsibility for the Justice Secretary may result—heaven forbid—in blame being pushed its way. It says:
“Governors are being asked to sign up to agreements, which will become effective in just five weeks, with insufficient detail on what they will be held to account for. The risk is that the prison reform bill will become the prison blame bill”.
Further inroads into overcrowding and chaos could be made by considering who is being remanded and why, whether some offenders with mental health problems need a different approach and by dealing with the backlog of imprisonment for public protection prisoners. None the less, we see insufficient action to address any of those things. We were told that this Bill would transform the lives of offenders, but just saying that that is the case will not make it so. Transforming lives means first transforming the system.
I shall return to the subject of courts and tribunals, which I touched on earlier. Since 2010 Government legal aid cuts have robbed thousands of the legal representation that should be their right. Many of them are those who are most in need of legal representation—for example, people who are in debt, claiming welfare benefits, facing marital breakdown or experiencing housing problems. In 2012-13, 724,243 civil law cases were funded by legal aid; after the provisions of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 were introduced, that figure plummeted to 258,460. I realise that some Government Members will toast those figures as evidence of a job well done, but in reality what are they but proof of access to justice denied?
The coalition Government introduced employment tribunal fees. That measure resulted in a 70% reduction in the number of cases brought. The long delayed review I mentioned earlier essentially concluded, “There’s nothing to see here.” It said:
“While there is clear evidence that ET fees have discouraged people from bringing claims, there is no conclusive evidence that they have been prevented from doing so.”
If only illegal treatment by employers flouting the law of the land had been reduced by 70%. Instead, it is the number of cases that has fallen by 70%.
Mr Jonathan Djanogly (Huntingdon) (Con)
If someone can get something for nothing, are they not likely to take it up? That was the core problem with employment tribunals when people had to pay nothing to get access. It is right that if one goes to court, one pays some sort of fee.
Richard Burgon
That is a very useful intervention because it makes clear the Conservative view of access to justice. Something for nothing? If somebody has not been paid the national minimum wage, why should they be charged to get the money back? If someone has not been paid their proper wage or has experienced disability, maternity or pregnancy-related discrimination, it is outrageous to say that they are seeking something for nothing.
That intervention takes me back to when I was an employment lawyer acting for the people the hon. Gentleman dismisses in such a cavalier fashion. I remember the first time I lodged a case after the coalition Government introduced employment tribunal fees. On the Employment Tribunal Service website, it said, “Customer, please enter your credit card details.” Is that not shameful? When we regard citizens who are attempting to assert their statutory rights—rights made in this place, such as the right to the minimum wage and the right not to be discriminated against at work—primarily as consumers, it shows that the priorities of our society and our justice system have been warped by the Government.
Rob Marris
Does my hon. Friend agree that part of the difference is that some Government Members apparently have overlooked the fact that very often employment tribunal cases are brought by people who have no job? They have no income. That is why they are bringing a tribunal case. It is very different from a big commercial dispute, where court fees are paid for access to justice, to charge tribunal fees to people who have no income and no job, and that is the substance of their complaint to the tribunal.
Richard Burgon
My hon. Friend makes an important point. I would also give the example of people being charged employment tribunal fees that exceed the underpayment of the wage about which they are complaining. That really discourages claims.
Sir Oliver Heald
The hon. Gentleman fails to mention that the policy was designed in part to increase the number of cases that are conciliated. Now, instead of 23,000 cases a year going to ACAS, 92,000 do and half of them are resolved, and of course it is free.
Richard Burgon
The coalition Government’s objective in introducing employment tribunal fees was to strengthen the hand of employers, including unscrupulous ones, and to weaken the hand of individual employees. That is what the policy was about and that is why it has worked from the Government’s perspective. The ACAS conciliation now offered as compulsory conciliation is not the same as the role of ACAS in the past when people issued an employment tribunal case. No professional advice is given on the value of the case. Just because a claim has not been issued or a matter has been discontinued does not mean that it has been resolved satisfactorily with both parties on an equal footing. To make it clear, Labour would abolish employment tribunal fees because Labour believes in access to justice.
Richard Burgon
The hon. Gentleman shakes his head, but his earlier comments about people looking for something for nothing show how out of touch he is.
Mr Djanogly
It is quite the opposite. I am suggesting that the hon. Gentleman’s policy would be giving something for nothing.
Richard Burgon
More than implicit in the hon. Gentleman’s ill-considered comments is that allowing people to seek justice in the employment courts without paying money is a something-for-nothing practice. That is a disgraceful comment, which we look forward to publicising as widely as we can. The Government need to think again when it comes to employment tribunal fees.
Sir Oliver Heald
What is wrong with moving from a system where very many cases go to the employment tribunal to one where most cases are conciliated? It is a much easier way for people to get justice.
Richard Burgon
The problem is that the price that is being paid is that of access to justice, and that is unacceptable to the Labour party at least. Are the Government seriously contending that 70% of claims brought before 2013 were somehow fraudulent? If so, that is absolutely outrageous.
Rob Marris
Would my hon. Friend repeat the figures? I thought he said, in round terms, that there were half a million fewer cases after the changes, but the Minister has indicated that 70,000 more cases go to arbitration. That is a big gap—it is still more than 400,000 people who are not getting access to justice.
Richard Burgon
That is completely right. My final point on the subject, before I move on to the closures of courts and tribunals, is that the introduction of employment tribunal fees has harmed not only those who would bring a case, but those who would never dream of bringing a case. If employers know that there is virtually no chance of an employee bringing a case against them if they break the law, it gives unscrupulous employers the green light because they know that the risk of being held to account is so much diminished. This goes to the root of what access to justice is. Legal rights are basically worthless if we cannot enforce them or rely upon them because of lack of resources or for any other reasons.
Two Government programmes earmarked a total of 243 courts and tribunals for closure. This has obvious and long-lasting effects on the principle of local justice. The cuts have led to an increase in the number of people forced to represent themselves. As far back as 2014, figures such as the Lord Chief Justice, Lord Thomas, were warning of the rise in unrepresented litigants—litigants in person. The Justice Committee’s 2015 report into the impact of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 said:
“The result is that the courts are having to expend more resources to assist litigants in person and require more funding to cope”.
We know that, and we know that litigants in person clog up the court system and make it less efficient.
As Members of Parliament, our weekend advice sessions are full of people who need a lawyer, but cannot get one. Ministers seem to treat the involvement of lawyers in litigation or potential litigation as a fundamentally bad thing. That misses much of the point. Those hon. Members who have ever needed to use a lawyer or who have ever been lawyers themselves will know the valuable role lawyers play in dissuading clients from ill-advised litigation, in encouraging settlements that are fair and beneficial to clients where possible, and in shortening the proceedings in court.
In that respect, the prohibition in part 2 on cross-examination by the abuser of the abused is, of course, very welcome. The stark evidence from groups such as Women’s Aid is that this gap in the law was being used as a further means of control and abuse. Despite the fact that we very much welcome this measure, it cannot be left unsaid that the reason this serious problem became so pronounced was the Government’s legal aid cuts, which exacerbated it in a very damaging and profound way, and Resolution—the body of family solicitors—makes that clear:
“The impact of LASPO has led to an increase in litigants in person, meaning we’ve seen a rise in the number of defendants cross-examining those they have abused.”
Let me turn to the subject of modernisation. Few will disagree that the court system needs modernising and digitising—some would say it is in more need of modernisation than this place. There remains too much paper involved, when technology has made it possible for much documentation to be stored, referenced, annotated and amended using tablets and the like. However, technology alone does not demolish barriers to justice, and it can exacerbate the risks. The Opposition favour streamlining justice and reducing unnecessary court hearings, and we recognise that part 2 seeks to achieve that, but as the chair of the Bar Council, Andrew Langdon, QC, has warned, the fact that online courts
“might encourage defendants to plead guilty out of convenience, when in fact they may not be guilty of an offence, no matter how small, risks injustice.”
We have to be mindful of that. In its briefing on the Bill, the Law Society also issued a caution, saying:
“Although we welcome the introduction of these measures as a way to improve efficiency, there are serious risks associated with them in the absence of adequate access to legal advice. Safeguards must be in place to ensure that a defendant is aware of the consequences of indicating their plea in writing and the other measures highlighted above.”
Online courts, again, present the opportunity for a modern and desirable way of using technology to reduce court hearings and, hopefully, to deal with preliminary matters efficiently. However, the Law Society, again in its briefing, cautions that online convictions should be thoroughly tested and reviewed before being expanded. The Opposition therefore hope the Government will be open to amendments that allow for reviews to take place after a specified time. That would seem sensible. Virtual hearings, procedures on papers only, and written plea and mode-of-trial procedures will all need to be reviewed in time. The Government need to give closer consideration to safeguards, and we will seek to put those in place.
On whiplash, the clauses in part 5 will have come as a relief to many. The Government have backed away from increasing the small claims limit across personal injury, and that is welcome. However, they see a personal injury lawyer lurking around every corner—the Minister with responsibility for courts and tribunals even mistook me for one. [Interruption.] There is a former personal injury lawyer behind me—my hon. Friend the Member for Wolverhampton South West (Rob Marris)—although he has only one job now. However, the Association of Personal Injury Lawyers made it clear in written evidence to the Justice Committee that even
“when whiplash statistics are combined with the number of injuries registered by insurers with the CRU”—
the Compensation Recovery Unit—
“as ‘neck and back’ injuries, there has been”,
as I said earlier,
“a significant fall of 11 per cent since 2011/2012.”
Profound problems also exist with the tariff system proposed. As the Government have accepted, the amounts they have set out elsewhere are low. However, they are too low, and compensation must be commensurate with the severity of an injury. If those tariffs are taken together with the increase in the small claims limit to £5,000, no victims of road traffic accidents—not only victims of whiplash—would be entitled to recover legal costs where the compensation did not exceed £5,000. That will inevitably deter people from accessing legal representation and deter genuine claims. The Government should consider ensuring that victims of road traffic accidents are able to recover their legal costs.
We have heard repeatedly—this was touched on earlier—that the proposals in the Bill will lead to premiums reducing by as much as £40 a year on average. The Law Society has questioned the accuracy of these figures, saying that the pass rates on which they are predicated are difficult to predict and it is unclear how the 85% savings rate has been calculated. As my hon. Friend the Member for Wolverhampton South West said, it is a matter of evidence—or, in this case, a lack of it. Most obviously, there is no mechanism by which insurers can be made to pass on any savings to consumers. We hear a lot of insults thrown at the British people about a rampant claims culture and people being on the make and on the fiddle, but a lot less about the behaviour of some insurers in failing to defend weak claims and how much the insurance industry is making out of all this. Only a tiny minority of insurance companies have said that they will pass on any savings. The Government need to take action to win those guarantees.
I look forward to the remainder of this debate. As I said, Labour does not oppose the Bill on Second Reading, but we do lament the fact that it lacks so much. I suggest that the Bill itself must transform if it is to transform.
Robert Neill (Bromley and Chislehurst) (Con)
I thank the Lord Chancellor and Secretary of State, as did her shadow, for the courtesy that she has shown to me as Chair of the Select Committee in keeping me apprised of the progress of this Bill. That is very welcome. Although there have been occasions when the Committee has come up with constructive—I hope—criticism or intentions contra to the Government’s, the whole ministerial team has always engaged with us very positively. I very much welcome the Bill and the tone of her speech. This is an important Bill because, first, it deals with some very important topics; and, secondly, it is wide enough in scope to merit acting as a framework for further improvement as we go forward.
I will start with, but not confine myself to, prisons, because that is obviously the most significant issue on my right hon. Friend’s agenda, and perhaps the matter of greatest concern to the Justice Committee. We have issued a number of reports during this Parliament, as in the previous one, about the situation in our prisons. Let us be blunt: the situation is grim. That is not the doing of my right hon. Friend; it has grown up over a number of years and under the watch of Governments of different political complexions. We now need to tackle it as a matter of real urgency. There is no single reason why we have got into this difficulty in our prisons; a number of factors are involved. Similarly, therefore, there is no single silver bullet as a solution.
The Bill contains a very valuable and worthwhile framework on which to hang a wider suite of reforms. I very much hope that my right hon. Friend will take courage to be bold and radical in those reforms. Conservative Members should not be afraid of being advocates of prison reform, which is a fundamentally important social cause. I am proud to be a member of a party that has a long tradition of advocating social reform running back through Wilberforce, Shaftesbury, and the reforming work of Disraeli’s second Administration that was done by Richard Cross, his Home Secretary, and others. My right hon. Friend, who takes on the proposals of my right hon. Friend the Member for Surrey Heath (Michael Gove), follows in a radical Tory tradition that I welcome and for which we should not be afraid to make the case.
Dr Poulter
My hon. Friend is making a valuable contribution. I agree with him about the many merits of this Bill. Does he not agree, though, that it is a missed opportunity to improve opportunities for prisoners and reduce reoffending, because improving and protecting the mental health of prisoners is not mentioned in clause 1?
Robert Neill
My hon. Friend makes a perfectly fair point. I imagine that it will be almost impossible to put every single objective into the Bill, and I suspect that Ministers will say that the objectives are intended to be broad and overarching, but the issue of mental health in prisons is a most profound and important one, and I would have no objection were it to be in the Bill. Equally, however, the most important thing is the political good will of Ministers in ensuring that it is made a top priority within the framework of the Bill as it stands. I hope that he and I, and others who share our concerns about this across the House, will be able to work hard to make sure that that is delivered, as this is one of the areas of prison reform that we need to tackle.
We are seeking to provide a legal framework. Part of that is in the Bill; the rest is set out in the important measures in the White Paper, which was a very significant and progressive—in the right sense of the word—document.
Robert Neill
Let me just make this point and I will give way to my hon. Friend again, because I know of his expertise and interest in these matters.
We need to recognise across the House that we must have the political will to tackle reform. That includes creating a climate of public opinion that accepts that prison reform is not a soft option—that it is done not out of a kind of soft-headed liberalism or do-goodism but for sound and profound social, moral and ethical reasons—and that it brings with it real societal and economic benefits.
Dr Poulter
As my hon. Friend will be aware, the White Paper sets out a whole range of proposals to deal with increasing violence and self-harm, and persistently high levels of reoffending. Given, as he said, the profound connection between poor mental health in prisoners and these issues—including substance misuse, which is often linked with poor mental health—I find it very surprising that clause 1 does not mention improving the mental health of prisoners.
Robert Neill
I suspect that my hon. Friend will return to that topic as the Bill progresses, and there will be other opportunities for others to do so as well. In the course of our ongoing inquiries into prison reform, the Select Committee has taken some evidence on the difficulties in mental health provision. Practitioners from the Prison Service came to give evidence to us very recently. It is certainly a topic that we will return to and that others may well address, even in the course of this debate.
Sir Edward Garnier
My hon. Friend mentioned, correctly, the need for political will. However, if members of the public are asked, individually or on a more organised basis, what they think about the current state of our prisons and what needs to be done within our justice system, they are much more liberal than politicians give them credit for. We need to be braver and get on with this rather than allow ourselves to be pushed around by various disobliging organs of the media who want us to be more and more draconian in the way that we deal with prisons.
Robert Neill
My right hon. and learned Friend is absolutely right, and he moves me neatly on to the next thing I was going to say. That political will does sometimes require us to stand up against the writers of the lurid headlines and those who pose as the voices of public opinion but in fact seek to be manipulators of it, and to say the truth—that it is in everybody’s interest that we reduce reoffending because the more we do so, the fewer victims of crime there are, and that is in everybody’s interest. That is a good right-of-centre, as well as left-of-centre, case for undertaking prison reform, and we should make it across the House.
Mrs Moon
Does the hon. Gentleman agree that one of the ways in which we could dramatically cut reoffending would be to look at how many people are revolving-door entrants and leavers of prison, not because of criminal intent but because their mental health condition drives them to behave in a way that leads them, inevitably, into the arms of the police—the police are becoming social workers for the mentally ill—and into the criminal justice system rather than into our psychiatric hospitals, which are massively overcrowded and underfunded?
Robert Neill
The hon. Lady, who follows these issues closely, makes a very fair and reasonable point. That is a significant factor.
I practised as a criminal lawyer for the better part of 30 years. I both prosecuted and defended, so I have had no compunction about sending away people who have committed serious crimes. Equally, when I defended people and when I looked at some of those whom I prosecuted during that career, I saw some who were dangerous, unpleasant and, frankly, in some cases downright evil. They deserved to go to prison, and some of them deserved to go to prison for a very long time.
There were others who were weak and stupid, and some who were greedy. Sometimes—particularly for those who were greedy—that, too, deserved punishment, and prison was an apposite and appropriate punishment. There were also those who were weak or vulnerable, or who found themselves in situations where they were easily coerced. There were people who had made a series of errors in their lives, and others who suffered from physical or mental illnesses or from real social pressures around them.
We have to be much more discriminating and sophisticated in how we deal with defendants in our justice system. Prison does not always work. It works for some people, but not for everybody all the time, and we need to be brave enough to say that in political debate. As my right hon. and learned Friend the Member for Harborough (Sir Edward Garnier), the former Solicitor General, rightly says, the public are much more alert to and realistic about that, and much more willing to buy that argument. We simply need to have the courage to make it.
Philip Davies
I do not know where my hon. Friends go out of an evening or during the day, but I am not sure that lawyers’ dinner parties accurately reflect public opinion at large. Does my hon. Friend accept—it is a fact—that since Michael Howard started the trend of sending more people to prison, the crime rate has fallen? What does my hon. Friend make of that direct correlation?
Robert Neill
To be blunt, I rather suspect that I met a broader cross-section of society in practice as a criminal lawyer than one would meet in the average bookmaker’s. We must be prepared to stand up and challenge stereotypes, wherever they come from on the political spectrum.
We diminish the value of prison if we adopt a knee-jerk approach and say that locking people up and throwing away the key is the best solution in all circumstances. It is the best solution for the dangerous. I had no compunction about saying that those in the Brinks-Mat trial, in which I was involved, deserved to go to prison for a very long time. One was later convicted of a very serious murder, and I thought that they should stay in prison for a very long time indeed. Equally, those who commit crimes to feed drug habits are not served by lengthy prison sentences. More to the point, the public are not served in the long run either.
The real difficulty that we face is that we incarcerate more people per 100,000 of population than virtually any of our western European comparators. That is more than Spain—and more than France, which has demographic, sociological and economic problems and indicators very similar to ours; it is a good comparator, in many respects. We incarcerate more than 140 people per 100,000 of population, while France incarcerates about 98. Our rate of incarceration is practically double that of Germany, a country that is also very similar to us in many other respects. That cannot be because of some greater inherent criminality on the part of the British people. It is simply that we do not have a sufficiently sophisticated suite of alternatives to custody to provide robust and publicly credible options, so sentencers often feel obliged to fall back on custody more than they do elsewhere.
The other point to bear in mind is that Germany and the Netherlands, in particular, do a better job of rehabilitating those who are in custody. We know that because their reoffending rates are much lower. I think the Government recognise, as do all other commentators, that short sentences very seldom have a positive effect. The Government are to be commended for saying that not only do we need to look at prison reform, in terms of what happens in prisons, but we need to look at what happens when people come through the gate; at the support that they get within the community; and at what diversionary activities can be established early on when people—particularly young people—come into contact with the criminal justice system, to make sure that they proceed no further down that path. It is an holistic approach, and the Government are right in that regard.
Philip Davies
My hon. Friend is being typically gracious and kind in giving way. Notwithstanding the point that he made, the fact of the matter is that for every 1,000 crimes committed in this country, only about 19 people are sent to prison. That is one of the lowest ratios of any country. Perhaps he can tell us in which countries the ratio of people who are sent to prison per 1,000 crimes committed is lower? That is the best measure of how many criminals we send to prison—not proportion of the population. We send very few criminals to prison per 1,000 crimes committed.
Robert Neill
My hon. Friend perhaps neglects to say that the reporting arrangements are very different in other countries, particularly when dealing with younger people in the criminal justice system. The different diversion work done in those countries does not allow for that kind of correlation.
I am not just talking about Europe. A number of states in the United States—we do not always think of them, particularly in current circumstances, as beacons of social progressiveness—are more effective than we are at rehabilitation, meaningful community penalties and reducing recidivism. Some of that work, I might add, has been carried out on the watch of Republican governors. There is often a value-for-money case for imprisoning fewer people, as well as a social outcomes case. We ought to be prepared to make the case for prison reform as an important objective of any Government.
To return to the thrust of my argument, the Bill is an important step in achieving such reform. Of course, there is a lot more that we need to work on which is not in the Bill. The statutory purpose of the Bill is a good one. I understand the point made by my hon. Friend the Member for Central Suffolk and North Ipswich (Dr Poulter) about what, specifically, should go in it, but I think that its overarching purpose is correct. The balance between the safety of the public and the inmate on the one hand, and reform, rehabilitation and improvement on the other, is the right set of principles to have.
New duties on the Secretary of State are important. I suspect that they probably are justiciable; none the less, it is important to have proper accountability mechanisms. The new power for the chief inspector of prisons—the right to a response to his reports—is especially important. The current chief inspector, Peter Clarke, is an excellent appointment. I had the privilege of shadowing his team while they carried out a prison inspection—it happened to be at the prison local to my right hon. Friend the Justice Secretary, in Norwich—and I saw how thorough and professional they were.
As my right hon. Friend and the prisons Minister know, and as we in the Select Committee know, one of the chief inspector’s great frustrations is the fact that in some cases, the bulk of his recommendations—not just a few, but sometimes an overwhelming majority—are not taken on board. It is important he can make sure that they are taken on board, and that a proper reason is given if they are not. Too often, his recommendations are repeatedly ignored by the same serial-offender prisons. This is an important legal step, which underpins progress.
The point has already been made about the prisons and probation ombudsman, and I agree with it entirely. These are important and welcome measures, as far as the prisons dimension is concerned, as are those to do with new psychoactive substances and interference with mobile phones. They are all important steps forward.
In the rest of the Bill, the modernisation of court proceedings is important and valuable. As the Bill progresses, I hope that the Government will bear in mind some of the caveats raised by practitioners, such as the Bar Council, the Law Society, the Criminal Bar Association and the Criminal Law Solicitors Association, to avoid unintended consequences. When dealing with things that might give rise to a conviction online, it is important for people to have the resources necessary to make an informed decision in relation to the plea, the means of election and so forth. Having such access will be important. This could be a very useful tool, and I know that the judiciary believes that it can be a good tool, but it is important to have informed decisions, and making guilty pleas online is an obvious example. Similarly, there is often a good case for having virtual hearings, but we need to make sure it does not drift into being the default position. We would obviously not have that for a trial, but we can think of other forms of interlocutory proceedings in which physical presence is appropriate, and we must make sure that we do not have too much of a broadbrush approach. However, the principle is good, and I have no problem with it.
On the whole question of dealing with the abuse of litigants in person in family cases—chapter 8 of the explanatory notes—I think the case is accepted across the piece. Such a system has worked well in the criminal jurisdiction for many years. When we set up in regulations the system of how this will work, I hope there will not be an attempt to over-complicate or over-engineer it. I urge my right hon. Friend the Secretary of State to take the criminal system and, as far as possible, lift it across with adjustments, which seems the sensible way to do it. Practitioners have made the point that when advocates are asked to take on such a role—in effect, on behalf of the court—they often take on a heavy burden. The instructions can be detailed and complex, and in my experience of such cases they frequently change depending on the nature of the person being dealt with, so the task is not easy. I therefore hope that rates of remuneration will not be any worse than in the criminal jurisdiction, because it is important to get good people to undertake this work.
Judicial appointments, which are important, have been mentioned. It is also important to bear in mind that leadership roles should be recognised, given the difficulty we have at the moment in recruiting proper High Court judges.
Moving on to part 5 on the whole question of whiplash—I will finish on this point—I do not think we can pretend that there is not an issue. The Select Committee has already heard evidence on this, and we will want to take more. Nobody can reasonably pretend that there is not an issue about whiplash, although there are disputes about whether the evidence base is strong, as was apparent in our hearings. I am glad that the Government have taken the step of moving to a system of tariffs, rather than having an outright prohibition on general damages. However, we will need to consider the devil in the detail in relation to the definition of whiplash in clause 61 and its subsections. At the moment, there is an ouster of the tariff system for breach of statutory duty, but, as practitioners have raised with me, one can of course envisage a number of circumstances in which it is possible to plead both negligence and a breach of statutory duty as alternatives. It might be self-defeating if we get an industry of people always seeking to put in an alternative head of claim to take it immediately out of the pure negligence category. Some careful drafting may be needed to look at the practical effects as far as that is concerned. Above all, we must not allow this to cause us to take our eye off the ball of the abuse by claims management companies. Good work is already being done by the Ministry and the Information Commissioner’s Office, but a lot of the problems stem from the work of the claims management companies, and it is important to look at that.
On that basis, I wish the Bill well. It is an important and valuable Bill. I am sure we will have lively and constructive debates, and I hope that I and other members of the Select Committee will, as appropriate, endeavour to assist the Government in making a good Bill better. I wish it well in its passage through the House.
Several hon. Members rose—
Madam Deputy Speaker (Natascha Engel)
Order. To be helpful to Members, let me say that 19 Members wish to speak. We have roughly worked out that if you restrict yourselves to about 10 minutes, it should not be necessary to put on any time limit.
Ms Harriet Harman (Camberwell and Peckham) (Lab)
The Bill gives the House, the Secretary of State and her prisons Minister the chance to do something that should have been done a long time ago, but that is now urgent, which is to end the death toll of suicidal mentally ill people who take their own lives in our prisons. When the state takes someone into custody, we have a duty to keep them safe—their life becomes our responsibility—yet prisons are not a place of safety. Last year, 12 women and 107 men took their own lives while in prison in the custody of the state. This Bill affords us the important opportunity to change the law to prevent these tragic deaths, and we must seize that opportunity because the problem is urgent and growing.
We all know that the issue of prison reform is not one that brings people out on to the streets, or that tops the agenda at election time. Unfortunately, I wish I could agree with the Chair of the Justice Committee, the hon. Member for Bromley and Chislehurst (Robert Neill)—I did agree with much of his speech—but I think that when it rises up the agenda, it is usually not in the cause of liberalising prison regimes, but because of demands to make them more draconian. That makes the job of the Secretary of State and the prisons Minister, in any Government, particularly challenging, and it is why, where possible, a cross-party approach is important. It is also why the Committee that I have the honour to chair, the Joint Committee on Human Rights—it is cross-party and composed of members from both this House and the House of Lords—is conducting an inquiry into suicides in prison.
Every single one of these deaths is an absolute tragedy for each individual and their family. Mark Saunders, the father of Dean, who took his own life, told our Committee earlier this month that
“we do not have capital punishment in this country but”
when Dean was sent to Chelmsford prison, he was sentenced to death. So, too, for Diane Waplington, whose mother and aunt came to Parliament to give evidence to our Committee: her suffering had been so intense that, to harm herself, she set fire to a mattress while in a secure hospital, and the response was to send her to Peterborough prison, where she took her own life.
The tragedy of suicide in prison is not new, but, as the Government acknowledge, it is worsening. Last year, the number of self-inflicted deaths rose by 32%. It is not a new problem or even one where no one knows what to do. Over the years, there have been numerous weighty reports to which Members of this House, Members of the House of Lords, judges and many others have contributed. They have analysed the problems and mapped out solutions, and successive Governments have welcomed their proposals, changed policy and issued new guidelines, but nothing changes, except the death toll, which rises. In 1991, we had the Woolf report; in 2007, the Corston report; in 2009, the Bradley report; and in 2015, the Harris report. It is not that we do not know what needs to be done; it is just that we have not done it.
We must recognise reality. There is no point in having more reviews, new policies or new guidance; we must make sure that the changes we all know are needed actually happen in practice. For that to happen, we need a legal framework that will ensure that the necessary changes take place because they are required by statute. Reports, guidance and White Papers are not enforceable and are not enforced, but the law is. The Bill is the opportunity to put into law the changes highlighted by the countless weighty reviews and inquiries.
The inquiry by the Joint Committee on Human Rights is still ongoing, but because the Bill is now before the House, I want to ask the prisons Minister to consider including new clauses to put the following proposals into law. There should be a legal maximum for the number of prisoners per prison officer. When there are not enough staff—sometimes just two prison officers on a wing of 150 prisoners—prisoners remain locked in their cells. Medical appointments and educational sessions are missed. They do not get to see the nurse for their medication. Calls for help go unanswered. Prison officers do not have the time to unlock prisoners for exercise, let alone sit down and get to know them. In the vacuum, the worst prisoners take charge. Staff become demoralised and defensive, prisoners angry and frightened, and the most vulnerable at risk.
We can either cut the number of people going to prison or increase the number of prison officers, but the Government have been cutting the number of prison officers while the number of prisoners has increased. We can see a clear correlation between the falling number of prison officers and the rising number of prison suicides —I put the graph, which shows this very clearly, on a tweet just now. Unless the prisoner to prison officer ratio changes, the death toll will continue to rise. We have an opportunity to put into the Bill a legal maximum prisoner-prison officer ratio.
There should be a legal maximum time in which a prisoner can be locked in their cell. The Government agree that there should be a maximum time—it was in their response to the Harris review and it is in their White Paper—but it does not happen. A legal obligation is required to make sure that it does.
There needs to be a legal obligation for the Prison Service to ensure that each young or adult prisoner with mental health problems has a key worker, whether a prison officer or someone else. What matters is that there is an individual who takes responsibility for bringing together all the information from the different services inside and outside the prison, and, crucially, that there is someone to liaise with the family. That is in the White Paper, but I say to the Minister that unless it is in the Bill it just will not happen. It will remain nothing more than a good intention.
Unless there is a specified reason that it should not be the case, the relatives of a suicidal prisoner should be informed of, and invited to take part in, the safety reviews or ACCTs—the assessment, care in custody, and teamwork reviews. Of all the people involved, the family knows the prisoner best and care about him or her the most. The family of Dean Saunders told us that far from being given the chance to contribute to the reviews of the measures to keep him safe, it was not until the inquest that they actually found out that in the two-and-a-half weeks he had been in prison there had been eight reviews conducted by staff who did not know Dean or anything about him.
There needs to be a legal obligation to ensure that all young offenders and suicidal prisoners are able to call a specified and approved member of their family. One of the most frightening things for a prisoner suffering the misery and fear of mental illness is being out of touch with their family. A desperate, confused and terrified mentally ill prisoner cannot stand on a wing queuing for a phone, and cannot find their way through PINs or getting permission. Phone technology is perfectly advanced enough now for there to be a system for suicidal prisoners to be able to call home.
Where a prisoner needs to be transferred to a mental hospital, there should be a legal maximum time limit between the diagnosis and the transfer. If a prisoner is regarded as so ill that they cannot stay in prison and they need to be moved to a secure hospital, that must happen right away. Under Mental Health Act 1983 guidance, that is supposed to be no more than 14 days, but it often takes many months. The maximum time limit should be laid down in law.
If the Minister says that these six measures are too detailed and specific to be in law, I say: look at the law that applies to education and health, where we find legal provision for maximum staff-child ratios and legal time limits for referral for health treatment. If it is good enough for education and the health service, why not for our prisons? If the Minister says that these issues do not need to be in law, or that they can be or already are in guidance, I say: we have done that over and over again and it has not worked. It is now time to put them into law. If the Minister says that these issues are more suitable for regulations than for being on the face of the Bill, I would have no objection. Whether they are in primary or secondary legislation is not what matters; what matters is that they should be put into law.
I know exactly what the Minister’s civil servants will say when he goes back to his Department. They will say it is unnecessary or that it cannot be done, but I ask him most sincerely to reflect on this point. Being a prisons Minister is a great responsibility and a great privilege, and I know that he is committed to his ministerial role, so I hope he will resist the voices who will urge him to do no more than preside over this wretched status quo. I ask the House to help the Minister to do what needs to be done by putting new clauses into the Bill.
Nothing will bring back Dean Saunders and Diane Waplington, whose heartbroken families gave evidence to our Committee, or any of the other 12 women and 107 men who killed themselves in our prisons last year alone, but we in this House and the Minister have a chance to make the Bill a turning point where we stop talking about the problems that are costing lives and take action. As prisons Minister, he more than many other Ministers has an opportunity to make a difference and to save lives. I hope he will seize that chance. We must make sure that he does.
Mr Jonathan Djanogly (Huntingdon) (Con)
I congratulate Justice Ministers on bringing forward this very competent Bill. I very much appreciated the helpful and informative briefings on, and technology demonstrations for, the proposed court reforms that were organised by my right hon. and learned Friend the Minister for Courts and Justice. In many aspects of prisons, court and litigation policy, the Bill moves the debate forward in a generally pragmatic and rational way. If I have any overall concerns, they relate not so much to the Bill’s general content, but to the need to give fuller context to some of its clauses. This I intend to do in relation to a few of its measures.
On whiplash, we need to keep in mind that the proposals in part 5 are a continuation of the policy held since 2010 to reduce a compensation culture that has had a detrimental impact on our society. In Justice questions on 7 March and again in this debate, the shadow Minister, the hon. Member for Leeds East (Richard Burgon), seemed to question the existence of a compensation culture. Frankly, I thought that we had positively proven that that was an issue at the time of our consideration of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, but it seems that the situation now needs to be re-explained. Before LASPO we noticed, as my hon. Friend the Member for North West Cambridgeshire (Mr Vara) pointed out, that although accidents had fallen by a quarter, claims had increased by a third. That unacceptable position led us to instigate a series of incremental measures with the aim of reversing that trend.
The key problem originated from the dynamic created by the no win, no fee provisions of Labour’s Access to Justice Act 1999, which had put in place an unreal marketplace. To cut a very long story short, due to the workings of Labour’s Act, the interest of the client in their advocate’s fees had become detached. That was because the client would never directly have to pay any of the fees, so it followed that they would not care what those fees were. The situation was stoked by claims farmers and aggressive cold callers. This was a further example of Labour supporting a something-for-nothing system, and that system put constant upward pressure on fees and thereby insurance premiums.
In LASPO, to counter that, we ended the recoverability of success fees and after-the-event insurance premiums from the losing defendant. We then moved on to ban referral fees, and to address spam texting and cold calling by claims handlers and their agents. We also toughened up the regulation of claims handlers. The overall impact of the changes was considered to have reduced insurance premiums by some 25%. However, it is vital to keep an overall picture of what is a complicated situation. For instance, the Association of British Insurers considers that some 1% of whiplash claims are fraudulent, meaning that criminal sanctions also play a part in dealing with this issue. The fraud figure used at the time of LASPO was over 5%, so I will be interested to hear from the Minister whether he believes that insurers and prosecutors have now got the message and upped their game by taking more fraudsters to court. However, I am not convinced that the problem of illegal cold calling has yet been resolved, and I would be interested to hear whether the Minister has any further proposals in this regard.
Another important aspect is the small claims limit for personal injury cases, which is frankly well out of date. To those who are complaining about the proposals, I would say that the fact that this measure is being taken up now, rather than when it was first considered in around 2012, shows how cautious the Government have been to take one step at a time. I fully support the Government’s proposal to increase the road traffic accident-related personal injury small claims limit to £5,000, which will encourage more thought before cases are taken. Will the Minister please confirm whether mediation will be a requirement for consideration, as it is for general small claims, or will the use of a tariff not require this?
I am surprised that the Government propose to increase the limit for all other personal injury claims from £1,000 to only £2,000, rather than £5,000. My understanding was that if only inflation were taken into account, the limit would increase to above £3,000. I appreciate that the change to the small claims limit is a matter for secondary legislation rather than the Bill, so I hope that the Government might reconsider this level. I recall putting up the general small claims limit from £5,000 to £10,000, and what was generally seen by lawyers at that time as something that would hurt their businesses has been very successful in practice.
The compensation culture tag is not one that I would attach to seriously injured accident survivors who need complicated legal help, but rather more to the mass of whiplash claims that involve an injury duration of less than two years and are currently waved through to settlement by insurers who do not want the cost or bother of dealing with each small claim. The average compensation for a six-month injury duration is £1,850. This is why I fully support the Bill’s proposal that the tariff should be based on injury duration, but if that proposal is not to be taken advantage of, a better system for organising medical reports is needed. At the moment, offers to settle can be made without medical reports, even though changes were made in 2014 to discourage that practice. From now on, there will be a ban on settling without medical evidence, which I certainly think is to be welcomed.
A related area that I understand is contributing to the increase in insurance premiums relates to the cost of so-called free hire cars for accident victims. Is the Department looking at that?
The overall insurance premium saving attributed by the Government to these proposals is £40 per year. However, I agree that that message has been somewhat diluted by insurers, who are saying that the proposed reduction of the discount rate applicable to personal injury lump sum compensation payments to minus 0.75% will result in a significant increase in premiums of up to £75. I appreciate that the law, not the Lord Chancellor, sets the discount rate, and I am pleased that the Government are consulting on an alternative framework, but one wonders why the consultation could not have been handled with the Bill. Having said that, it is certainly the case that, through this Bill, the Government are continuing the incremental fightback against the compensation culture, which I think is a very good thing.
Mrs Moon
I understand the hon. Gentleman’s points about the whiplash culture, but does he appreciate that the Bill does not cover the ability of rogue solicitors to pursue false claims against individuals who have not been involved in car accidents? Those solicitors claim that they have, and that people have been injured. An elderly couple in my constituency were harassed terribly, and although there was no evidence of injury, the solicitor pursued the claim. The court threw it out, but the Solicitors Regulation Authority would not look at the matter at all.
Mr Djanogly
I totally agree with the hon. Lady. Fraud is an important part of the overall situation, but the criminal side is not dealt with in the Bill. I asked the Minister earlier if he would address that issue. At the time of LASPO, it was considered that 5% to 7% of claims were fraudulent. The latest ABI information I have seen is 1% or perhaps less, which would suggest that there has been a dramatic improvement, but I will be interested to hear whether the Government accept that and what they are going to do about the 1%, if that figure is accurate.
The Bill also sets out a wide variety of proposals for case management and the operation of the courts, all of which will, taken together, make for a much more effective, modern and technology-friendly system. Of course, the fact that the Government propose to invest £1 billion in the courts will do much to ensure that they remain world class. There will be fewer courts, but a much better service—by 2022, I understand. I hope that some of the money will be used to simplify processes and facilitate non-lawyers’ ability to navigate the system. Will the Minister indicate where the Department has got to on using technology to assist litigants in person?
Technology was often disregarded in the past because people did not think that its use would deliver justice as effectively as turning up in person. I would suggest that that view is very out of date, particularly with respect to younger people. Indeed, we are moving to a situation in which most crime is likely to be carried out online, so I welcome proposals such as having automatic online convictions with statutory standard penalties for a few criminal offences. I hope that that will shortly be reviewed with the aim of extending the range of offences. Likewise, enabling claimants to recover money owed up to £25,000 entirely online will save time and will certainly help small businesses.
The extension of the use of virtual hearings is to be commended in terms of not only protecting the vulnerable from those accused of certain crimes, including rape, but making justice cheaper and more efficient. How much better will it be to have the police brought in online from their stations, rather than their hanging round the court waiting for cases with nothing else to do? Having said that, I appreciate that we will need good procedural rules so that trials are kept fair.
In some ways, the technology is still being developed. I spoke recently to a criminal district judge who said that he was all in favour of court cameras, except when they did not work, which was all too frequently for his liking. Apparently, private companies that deal with bridging link-ups act strictly to timetables that sometimes do not tie in with those of the courts. Will such practical issues now be ironed out? Of course, that will become even more relevant because the Bill proposes that criminal cases could be conducted virtually, whereby all court participants join the hearing through a live link. The proposal to balance tech developments with the ability for the public and media to view virtual courts online is a good safeguard and a modern re-assertion of the old principle that justice needs to be seen to be done.
I note the proposal to reorganise the magistracy and make it a unified judiciary. It is exactly right, and will provide an adaptability similar to that given when the county courts were unified. It will actually enhance the concept of the magistrate as a nationally qualified judge rather than as a person tied to a particular bench.
This is a worthy Bill. It will do much to move our justice system into modern ways of organisation and efficiency.
Mr David Hanson (Delyn) (Lab)
I shall focus on a number of points in the Bill. As my hon. Friend the Member for Leeds East (Richard Burgon) said in his opening remarks, the Labour party will not oppose the Bill, but that does not mean that we cannot take steps to try to improve it and to get clarity from Ministers about what the Bill means in practice and what its impact will be.
Like the Minister, I support the aims of clause 1, which says that prisons are intended to
“protect the public…reform and rehabilitate offenders…prepare prisoners for life outside prison, and… maintain an environment that is safe and secure.”
Nobody can disagree with those objectives, but, as my right hon. and learned Friend the Member for Camberwell and Peckham (Ms Harman) said in her excellent speech, the prisons system faces a number of challenges. Those challenges have not come from nowhere; they have come from deliberate decisions—from Government policy—and the Bill provides an opportunity to at least look at them, and, potentially, to rectify them.
My right hon. and learned Friend the Member for Camberwell and Peckham covered some of the statistics, but they are worthy of repetition. It is now the case that 76 of the prisons in our estate—some 60%—are overcrowded, and have been deemed to be overcrowded by the prisons inspector. We have seen an increase of 39% in the number of deaths in prison custody over the last year, while there has been a 32% increase in self-inflicted deaths. There has also been a massive increase—22%—in the number of self-harm incidents reported. We have seen an increase in the number of assaults by prisoners on staff and on fellow prisoners. There has been an increase in the number of psychoactive substances found in prisons. There has been an increase in the number of mobile phones found in prisons, and, therefore, an increase in the number that are getting into prisons. Sadly, as we heard from my right hon. and learned Friend the Member for Camberwell and Peckham, there has been a reduction of some 6,335—26%—in the number of prison officers in the past seven years.
I believe that those facts are linked. We have fewer prison officers and the same number of prisoners—prisoners who, for a range of reasons, are more difficult and more challenging and, in many cases, have been convicted of more violent offences. The reduction in prison officer numbers has a real impact on the other statistics. While I do not object to the aims of clause 1 —indeed, I support them—I think that we need to think about what they mean in practice, and about how the White Paper is linked to them.
In what was, as I have said, an excellent speech, my right hon. and learned Friend the Member for Camberwell and Peckham made some positive suggestions about clause 1. The amount of time spent in cells is extremely important, and we should also think about how to establish mechanisms for the recognition and support of people with mental health problems. I would add two issues to her list: family links and distance from home.
In the past 12 months, I have dealt with two constituency cases—quite apart from my work as a member of the Justice Committee—involving people in prisons in the Isle of Wight and Norwich respectively. Let me explain to those who are not familiar with the geography that the Isle of Wight is 273 miles from my constituency—an 11-hour train journey—and that travelling to Norwich takes six hours by train or a four-and-a-half-hour drive. If one of the key purposes of the Bill is reform and rehabilitation, contact with family is surely critical to that achievement.
Sir Edward Garnier
Could not those two examples be replicated, but to an even worse degree, in the case of young offenders? Obviously there are fewer young offender institutions than prisons. Youngsters are bussed around in the back of sweatboxes for hours—for hours and hours after court hours—and often do not reach their destination until nearly midnight. That is not a good way to rehabilitate anyone.
Mr Hanson
I agree, but we both know that such problems are not easy to solve. Central to today’s debate is the question of what we can do in the context of the Bill. As I have said, I would add the question of family links to the list given by my right hon. and learned Friend the Member for Camberwell and Peckham. I was prisons Minister for two years and one month. It is a difficult job, and it is difficult to change policy, but we have opportunities to consider these matters. I hope that the Minister will reflect on them in Committee, and will think about how clause 1 can be strengthened in order to achieve its objectives.
The Justice Committee welcomes the fact that clause 2 puts Her Majesty’s inspectorate of prisons on a statutory footing, and we consider the statutory recognition of the inspectorate’s role in visiting places of detention to be a positive development. We are pleased that the chief inspector of prisons will be required to have regard to the new statutory purposes of prisons. I am particularly glad that the Government will have to respond to the chief inspector’s recommendations within 28 days if the matter is urgent, or within 90 days in the case of a general inspection, and that there will be scrutiny of inspection powers. Clauses 4 to 20 put the prisons and probation ombudsman on a statutory footing, and we welcome that as well.
The Government accepted the Committee’s recommendation that the HMIP protocol should be finalised, and said that they would produce a final version before Second Reading. The Committee was consulted on the draft protocol in January, but as far as I know no final protocol has been agreed or published. I think it important for it to be published as soon as possible so that we can develop it accordingly. It was more than a year ago that we recommended a protocol on the relationship between the inspectorate and the Ministry, and we need to know what that relationship is.
Whiplash poses a challenge for the Minister and the Government. The Committee heard evidence from the Association of British Insurers and from the association of legal professionals who deal with whiplash cases. Because we have not been convinced by the Government’s case to date, we have established a follow-up inquiry—as the Minister is doubtless aware, it was announced last Friday—to call for evidence on whiplash. The terms of reference for our fuller inquiry include the definition of whiplash and the prevalence of road traffic accident-related whiplash claims, considering whether fraudulent whiplash claims stack up and whether the provisions in part 5 introduce an effective tariff to regulate damages for RTA-related whiplash claims. In particular, they include consideration of the impact of raising the small claims limit to £5,000 for RTA-related whiplash claims, and—this is not in the Bill, but it is directly linked to it—raising the small claims limit to £2,000 for personal injury claims more generally. They also include consideration of the role of claims management companies, which have not been touched on to date.
The challenge for the Minister, in Committee and on Report—and I hope that the Justice Committee will influence those debates—is to convince us that his policies, established on a cross-party basis with the Committee, will meet our objectives. The claims that the Government have made about savings being passed on to motorists and about the level of fraud in the system have not yet been tested to my satisfaction or that of the Justice Committee, which, it should be remembered, has a Conservative majority.
The Government’s consultation paper sets out no rationale for including employment injuries in what is billed as a reform of whiplash claims. I wrote to the Lord Chancellor last week, and was told that the employment injury aspects would be dealt with by a statutory instrument following completion of the whiplash measures in the Bill.
Sir Oliver Heald
The aspect of whiplash that is in the Bill is the tariff, along with the judge’s ability to enhance it by 20%. However, there is an entirely separate secondary legislation route whereby the small claims limit can be raised. It could be reduced, of course, but that is not happening in this instance.
Sir Oliver Heald
The point is that the small claims threshold is being raised to £5,000 for road traffic-whiplash related cases and to £2,000 for other cases.
Mr Hanson
I am fully aware of that. What the Minister needs to know is that the Justice Committee believes that there is still a tangential link between two matters, which is why it is considering the whiplash provisions in the Bill together with employment levels. We are very conscious that, as well as the potential examination of the Government’s case in regard to whiplash, there should be an examination of their case in regard to industrial and employment injuries. There are myriad cases—I have no time to list them now, but I shall do so on another occasion—in which industrial injury claims would be detrimentally impacted by the change in the limit, and while that is not directly in the Bill—
Mr Hanson
The Minister does not work in the same spheres that I work in; people in my constituency depend on that level of employment injury support to ensure that they get justice at work. We will return to that at a later stage. The Minister is looking quizzical; he will have an opportunity to come and explain his proposals and those on whiplash to the Justice Committee in due course.
The Bill’s direction of travel can and should be supported. However, the beef of this Bill is what really matters. There are measures that the Government can take to improve it, and to reduce the poor indicators that have been growing in disparity over the last few years, and not just in staffing. They should also consider issues such as those raised by my right hon. and learned Friend the Member for Camberwell and Peckham and those that the Justice Committee asks the Government to look at again.
Mr Shailesh Vara (North West Cambridgeshire) (Con)
It is a pleasure to follow the right hon. Member for Delyn (Mr Hanson), who had a distinguished ministerial career and speaks with considerable authority in this House. I also refer Members to the Register of Members’ Financial Interests, in which it is stated that I am a non-practising solicitor.
I welcome the Bill. I firmly believe that we have one of the finest, if not the finest, legal systems in the world, and the measures in this Bill will ensure that we can maintain our pre-eminent position in the global legal system.
I shall begin by making some comments on the court reform proposals. It is important to recognise that when we talk about access to justice we do not mean access to, and being in, a physical building called a court. I had that argument with many colleagues when I was the Minister in charge of courts and had to convey the bad news that many courts were to close—indeed, my hon. Friend the Member for Huntingdon (Mr Djanogly) had to do likewise a few years beforehand. Effectively, this Bill fulfils what we said then—that there are different ways of accessing justice and courts.
I always remember what an African Justice Minister once said to me. He said that he wanted a justice system in his country whereby the people living in the villages outside the capital city could access justice through their smartphones. The world is moving on, and it is good to see that we are keeping pace with the technology that goes with that.
I particularly welcome parts 2 and 4 of the Bill, which deal with the court reform measures. In the past, the legal system has concentrated rather too much on process and procedure, but I am very pleased that this Bill puts the court user centre-stage and ensures that we have a system that is good for them. The changes will mean that the public who use the courts will not necessarily have to spend huge amounts of time, at huge cost, or indeed have to spend their time physically waiting and hanging around in a court.
The Bill provides for court dealings to be carried out by audio and video links, and to have virtual hearings, where no parties are present in a courtroom, but instead attend by telephone or through video-conferencing facilities. The provision for evidence to be given by video links is good for victims and witnesses, particularly vulnerable witnesses, and it has to be right that prisoners can give video evidence while staying in prison, rather than expending the time, effort and cost of transporting them to and from courts—which, incidentally, often leads to delays when they get caught up in traffic. This modern way of using video-conferencing facilities also means that witnesses can easily give evidence when overseas, and that lawyers do not have to hang around outside the courtroom waiting forever and a day until they get their 10 minutes before the judge, for instance for a bail application. The barristers and judges can now stay in their chambers and the solicitors in their offices, and they can simply book a time when they can all speak and have their 10-minute conversation and the bail application can go through.
The Bill proposes that where there are low-level offences—and the majority of offences are low level—and offenders are charged with summary-only, non-imprisonable offences, such as fare evasion or not having a TV licence, and where there is a guilty plea, they can be convicted and given standard penalties by use of an online procedure. Effectively, this means that people have the luxury of being able to use their smartphones from their sitting rooms to get access to justice. Of course, it is important to recognise that for people who plead not guilty the majesty of the court remains; they can have their court cases in the usual way.
I welcome the proposal that in civil cases for claims up to £25,000 there will be simple online hearings, although it is important to recognise that some of those cases might need to go offline and to follow the usual process. I am pleased that the Bill provides for that, and I very much hope that, despite the surge towards technological advances, we keep that option, and that where, for whatever reason, a case needs to be dealt with in the usual way, that will be done. We also at present have very complex forms full of legal language that are very difficult for the lay person to deal with. I hope that as we use new forms and go online, the justice system will take the opportunity to make those forms easier and far more user-friendly.
I also hope that the Minister will recognise that not everyone uses modern technology. Some people cannot use it—for example, the elderly or some people who are disabled. I hope the Minister will be able to give us an assurance that those people will retain the opportunity to speak by phone to a person or indeed have a meeting, as is necessary, because otherwise we will be denying some people access to justice.
I also urge the Minister to ensure that the technological advances that we employ are not rendered redundant very soon. Advances in technology are so fast that millions of pounds can be spent on a system that becomes outdated in a year or two. I hope he will ensure that his civil servants try to introduce a technological system that allows for easy adaptation to more modern systems as and when they arise, and at a cheap cost.
Part 4, along with schedule 15, deals with the judiciary and the Judicial Appointments Commission, and there are various references to senior judicial appointments. I wish to make a general point on appointments. To be absolutely clear, I believe, as do most people, that all judicial appointments should be made on merit. That is crucial, but, that being said, it is also fair to say that we still need to make serious advances in the numbers of women, disabled people, people from ethnic minorities and people from a variety of backgrounds who hold senior judicial positions. I hope that the Ministry of Justice, the judiciary and the JAC will ensure that we continue to have a judicial system that is reflective of the country at large.
Sadly, there are still people who believe that the old boy network is the way for people to get promoted to senior levels. For them, it is about whether someone belongs to the right dining club or golf club, and whether they went to the right school and university. Some people simply do not put their names forward for senior positions for that reason. Of course advances have been made, and I hope that we will continue to persuade good candidates to put themselves forward even if they believe that they will not get through because of the old boy network.
I particularly welcome clause 21, which will allow public communications providers to block the use of unauthorised mobile phones in prisons. Frankly, it is absurd that this has not been done earlier; it is high time that it was done. I also welcome the provisions in clause 22, which will allow more powers to test for psychoactive substances in prisons, so that prison authorities will be able to respond more quickly to new drugs.
People are sent to prison because they have to be punished, but we all recognise the importance of a regime of education and training to enable those individuals to play a useful role in society when they come out. We rightly talk about education and training, but we should talk just as much about the health of those prisoners, and particularly about their mental health. Colleagues on both sides of the House have made reference to mental illness, and I hope that the Minister will be able to assure us that he will look into that issue and ensure that people in prison suffering from mental illnesses and who are genuinely unwell get the treatment they require. I welcome the Bill, and I am particularly pleased that—notwithstanding our differences across the political divide—we agree on a great deal. I wish the Bill well as it progresses through to receiving Royal Assent.
Kate Green (Stretford and Urmston) (Lab)
I, too, welcome much of the Bill. I am pleased to follow the hon. Member for North West Cambridgeshire (Mr Vara), and I particularly endorse his comments about judicial diversity. This is a far-reaching Bill, although we have to infer quite a lot of the detail from the White Paper, particularly in relation to prison reform. As others have said, the Bill is relatively thin on detail.
I welcome the establishment of a new statutory purpose for prisons, but I also hope that there will be opportunities to strengthen and extend it as we take the Bill through this House and the other place. The Prison Reform Trust has suggested that the statutory purpose should make exclusive reference to standards of fairness and decency. Given the problems in our prisons today, including the exceptional amount of time that prisoners are spending in cells and not engaged in purposeful activity, the disturbances that have put prisoner and staff safety at risk, and the appalling mental health of many of those in our prisons, I strongly endorse the need for a purpose that captures those elements of fairness and decency.
Like many hon. Members who have spoken today, I want to talk about the need for good mental healthcare in prisons. According to the Royal College of Psychiatrists, at least 3% to 4% of prisoners have a psychotic illness; 10% to 14% have a major depressive illness; and up to two thirds have a personality disorder. Many prisoners are so unwell that prison is utterly the wrong place to treat them. This has been starkly brought home to me when handling a constituency case over the past few months. That case has really shown that the system is not working to ensure that prisoners’ mental health is paramount. It involves a young man accused of very serious offences who has been on remand in Manchester prison since before Christmas. He is seriously psychotic, and prison is not the right place for him to have been sent to, yet still, four months on, no secure hospital bed has been found where he can be securely and appropriately cared for. I therefore strongly endorse the call by my right hon. and learned Friend the Member for Camberwell and Peckham (Ms Harman) for statutory time limits in the Bill for the length of time that someone who is so unwell can be kept in prison. We need to take that important measure to ensure that parity of esteem between mental health and physical health exists in our prisons as it does in the wider healthcare system.
We also know that women in custody have a high incidence of mental health problems. This year, we mark the 10th anniversary of Baroness Corston’s seminal report on women in custody, and this is a real opportunity for us to make a step change in the way in which we deal with women in the penal system. The Justice Secretary has said that she intends to bring forward a strategy in relation to women in the next few weeks, and I very much look forward to debating it with the Government. I hope that Ministers will take this opportunity, and not simply build more new women’s prisons that are far from home and too large to provide the right regime for their particular needs. Baroness Corston identified the need for small, local, secure units—not prisons—that specifically cater for the needs of women. This is a once-in-a-generation chance for Ministers to transform the nature of the women’s prison estate, and I really hope that they will not miss the opportunity.
I am also concerned that the Government seem intent on building new large male prisons, such as Berwyn, which I understand is to have a population of 2,000 prisoners. However, there is a lot of evidence of smaller prisons doing better, according to the Centre for Social Justice, the Prison Reform Trust—which found that prisons with fewer than 400 prisoners were more likely to perform well than those with more than 800—and the National Audit Office, whose 2013 report showed that the smaller prisons achieved better internal performance ratings. We do not know whether there is a difference in reoffending rates for small and larger prisons, and I would be grateful if anyone in the House enlightened me on that. If we do not have the information, however, I strongly urge Ministers to conduct a programme of research to help us to understand that.
My right hon. Friend the Member for Delyn (Mr Hanson) went into some detail about the importance of family contact, which incarceration a long way from home naturally makes more difficult. According to a 2008 study for the Ministry of Justice, family contact reduces recidivism by 39%, which is a substantial reduction. A joint report by Her Majesty’s inspectorate of prisons and the Youth Justice Board found that boys who suffered from emotional or mental health problems were less likely usually to have a visit at least once a week from family or friends than those without mental health problems, yet half of women and a quarter of men on remand receive no family visits. Concentrating prisoners in larger prisons, further from home and covering large geographical areas, is going to work against the family contact that can make such a difference.
Mrs Moon
I totally endorse everything that my hon. Friend says. She sets out the tragedy of the difficulties that women in prison face in maintaining family contact. Their children often end up in care or being farmed out to family members who cannot travel long distances. In particular, for Welsh women, children have to travel to England to see their mum in prison. This damages the family cohesion that is so vital to rehabilitation.
Kate Green
I completely agree with my hon. Friend. Women are usually the main carers of children, and the consequences of their being in custody can be devastating not only for the women but for the children, who ought to be our paramount consideration. I support the calls from the Prison Advice and Care Trust, among others, for a requirement on sentencers specifically to ask about the provision for the children of parents who are about to be given a custodial sentence, and particularly to know where they will spend that first night as their parent faces incarceration.
If we are serious about prison reform, we have to face the fact that our fundamental problem is sentencing policy. We incarcerate too many people who do not need to be there, which costs a great deal of money, and too many of them resume offending on release. I could not agree more with the Lord Chief Justice, who told the Justice Committee last November that the focus needs to be on rigorous, demanding and effective community penalties. However, that requires those penalties to be available and it requires sentencers to have knowledge of and confidence in them. This cuts to magistrates’ training budgets, the lack of full pre-sentence reports because of pressures on the National Probation Service, and problems with community rehabilitation companies.
I want to comment briefly on the Bill’s extensive court reform proposals, and in that regard I declare my interest as a life member of the Magistrates Association. While I recognise the opportunities that modern technology can offer to an efficient court system, I echo the concerns about how vulnerable users will fare in a virtual system. The virtual courts pilot of several years ago offers little reassurance and this Bill’s impact assessment frankly tells us nearly nothing. However, there are concerns, as highlighted by Transform Justice and others, about the lack of access to legal advice, the impact on lawyer-client relationships, the impact on sentencing—the virtual courts pilot suggested that there may be some inflationary impact—the fairness of the process, public perception, and the cost to the public purse, about which the impact assessment is quite vague. I share the concerns of the Magistrates Association and others about the use of online courts in relation to pleas, remand, sentencing and vulnerable young people. Significant numbers of prisoners have low levels of literacy and numeracy or suffer from learning disabilities and may struggle to present their case in the best possible light. They may agree to their case being dealt with in writing or online because it is quicker, it gets things over with, or because it is suggested to them by a police officer in a police station, but that does not necessarily serve the best interests of justice.
I understand the argument made by the hon. Member for Huntingdon (Mr Djanogly) about the loss of the local justice area being an opportunity for a unified magistracy and judiciary, but there are advantages to local justice. As the Justice Committee identified in its report on the magistracy last year, the loss of local justice must not mean losing the leadership and peer support that helps a bench to function collectively more effectively and efficiently. I hope that the Minister will be able to reassure us on that.
On the other proposed reforms to civil justice, I endorse the concerns expressed about the proposals on whiplash and the small claims route, and I regret that the Government have not taken the opportunity to be more assertive in their tackling of the aggressive marketing practices of some claims management companies. I also endorse the concerns of my right hon. Friend the Member for Delyn about the rise in the small claims limit and the impact that that may have. Workers in relatively low-paid employment with modest claims for accidents at work may find themselves unable to access the legal advice that enables them to make claims successfully. USDAW, a trade union of which I am a member, offers several examples of where relatively minor accidents that are significant to those in minimum wage jobs would not have secured compensation under the Government’s proposed changes due to the lack of access to legal help for workers to pursue their cases.
Finally, I am also concerned about one aspect of the proposal to move responsibility for employment tribunals to the Ministry of Justice. In doing so, I hope that we will not lose the real value that comes from having expert tribunals made up of representatives of both employers and trade unions, employees and the trained judiciary.
Like others, I welcome the Bill, much of which I look forward to seeing develop, but I hope that Ministers will take seriously the concerns that are being expressed and ensure that the justice system, of which this country is so proud, remains the best and most modern in the world as result of the reforms.
Sir Edward Garnier (Harborough) (Con)
I begin by declaring an interest not only in the subject that we are discussing, and not only in the fact that I am a trustee of the Prison Reform Trust and a patron of Unlock—those two charities are concerned with criminal justice and prisons in particular—but in the fact that I am on the advisory board of Samaritans, and much of what has been discussed this evening touches upon on its work. Literally tens of millions of calls are made to the offices of Samaritans every year. The fact that it is difficult for prisoners to get access to telephones and that the suicide rate in prisons is high—I understand that 119 prisoners took their own lives last year—suggests that we cannot push this subject aside lightly as one of the consequences of someone going to prison. We all need to concentrate on what we say and do about reducing self-harm and suicide in prison. I hope that the Minister for Courts and Justice will be able to respond positively on that point at the end of the debate.
It is uncontroversial to say that prisons are violent, overcrowded and understaffed, but the question of what we do about that is difficult to answer, because the politics relating to the criminal justice system is about sentencing, not prisons. We take a reasonably consensual view—with one or two exceptions—about what we think ought to be done in prisons, for prisoners and to protect the public, but sentencing is acutely politically controversial. The right hon. and learned Member for Camberwell and Peckham (Ms Harman) asked Ministers why, if we can do it for education, we cannot create a regime to regulate prisons, but the answer is that while most of the British public—not all, but a great proportion—either have children of their own or know children, and therefore take a personal, direct interest in schools, few of us know people who go to prison or know what goes on in prison. It is a secret world. I have often said that the more prisons that are opened up to the public’s gaze—not in a ridiculous way, but sensibly—the better the debate about prisons and that aspect of the criminal justice system would be.
Mr Stewart Jackson (Peterborough) (Con)
Notwithstanding what my right hon. and learned Friend has just said, does he agree that it is perfectly possible to resile from an over-liberal approach to sentencing while supporting an innovative approach to tackling recidivism, such as through the social investment bonds that we have seen at prisons in Doncaster and Peterborough?
Sir Edward Garnier
I do not have an argument with that at all. The argument for making our prisons work for the public as a whole, for the victims of crime and for prisoners is not just moral and political, but economic. We push hundreds of millions of pounds into the criminal justice and prison systems, and what do we do with that investment? We produce failure. If the prison system was a business or a factory, and if I, as the managing director of that business or factory, pushed millions and millions of pounds into the process, but the things that I produced broke or failed 65% of the time, I would get the sack or my investors would go elsewhere. That is the economic argument. It happens to be bolstered by a moral argument and a political argument that we need to do better on prisons, but I do not resile from the fact that the money that we spend on prisons is not well spent, because it does not produce a lower rate of reoffending, or teach people to read and write so that they can get jobs.
Some 95% or 98% of the 85,000 people currently in prison will come out. I have sat as a judge for 20-odd years. I have put plenty of people into prison for perfectly good reasons, but if they come out of prison still addicted to drugs, still mentally ill, still unable to read or write and still incapable of getting a job, and if they then reoffend because they have no other ambition but to do what they have always done, which is to commit crime, what I am sensibly doing with the public’s money? Not much. It seems to me that there should be a perfectly straightforward economic consensus. Forget whether I am a lily-livered liberal—[Interruption.] Of course, my hon. Friend the Member for Shipley (Philip Davies) and I belong to the same political party and, although he is rather more expert than me, we both take an interest in racing.
Kit Malthouse (North West Hampshire) (Con)
My right hon. and learned Friend is making an important point, but to achieve a compromise between him and my hon. Friend the Member for Shipley (Philip Davies), does he accept that if we were more successful at rehabilitating low-level offenders—I think that my right hon. and learned Friend is correct about that—it would leave more space for us to lock up more serious offenders for longer, thereby satisfying the public’s need for more severe sentences for very violent and serious crime?
Sir Edward Garnier
I agree with my hon. Friend. I have sent plenty of people to prison, some of them for very long periods of time. I wish that we were able to make sure that those who do not need to go to prison, or who need to be sent to another place, such as a mental hospital, could be dealt with in a more sensible, productive, efficient and effective way. The argument is not about whether criminals are good people and whether we should love them dearly and hug hoodies; it is about doing what is best for all of us and ensuring that the money raised through taxes—the money spent on the health service and education—is properly devoted and directed towards getting these people better so that they do not do it again. Most people who have their house burgled want to ensure that the person responsible is caught, stopped and dealt with but, secondly, they want to be sure that that person does not do it again. If all we do is feed the conveyer belt, we achieve nothing but a waste of money.
The crux of the problem that we face with prisons—it is not a new problem—is overcrowding. I wrote a paper called “Prisons with a Purpose,” having visited 65 of the 140 or so prisons, young offenders institutions and secure training units when I was shadow Minister for prisons between 2005 and 2009. It was abundantly clear then, as I suspect it is now, that our prison estate was woefully overcrowded. We cannot sensibly rehabilitate or reform prisoners, adequately protect the public, prepare prisoners for life outside and maintain a safe and secure environment within our prisons unless we deal with the problems of overcrowding. My right hon. Friend the Secretary of State and my hon. Friend the Member for East Surrey (Mr Gyimah), the Minister for prisons, are fully aware of that. They have been inside prisons and know what is going on, and they have to deal with the arithmetic of how to spend the money in the most sensible way, subject to the demands of the Treasury.
The task of the Secretary of State and the Minister is a difficult one. The aims that the Secretary of State has written into the Bill are good, but in six months or a year—or a suitable time period after the Bill has been enacted—I do not simply want a report from the Secretary of State or the chief inspector of prisons, welcome though such reports are; I want real, practical advances. It is one thing to write things in the Bill; it is quite another to ensure that they happen.
Most centrally, we must address the hideous problem of overcrowding because with overcrowding we get churn. A person who is sentenced to prison at Canterbury Crown court is sent that night to Canterbury prison.
Sir Edward Garnier
They end up in Norwich having been via Maidstone, Lewes, somewhere on the Isle of Wight, somewhere in Dorset, somewhere in Devon, somewhere in Bristol, somewhere in the east midlands and somewhere in the west midlands. They eventually end up in Norwich, from where they are released miles away from their family without having had any contact with them. A prisoner’s medical records and education records do not follow them seamlessly.
I have uttered this plea time after time over the past 10 to 15 years and, no matter what party was in government, Ministers have told me, “What a perfectly sensible thing to say.” Unfortunately, because the politics is in sentencing, not prisoners, little is done about it. I hope that on this occasion, with this new Secretary of State for Justice, we will see an advance whereby it will not take another 65 years until we have a new prisons Bill to consider that question because we will not need such a Bill. I hope that in a few years we will see a reduction in prisoner numbers, an increase in reform and a reduction in reoffending levels, for the benefit of the public and the taxpayers whom my hon. Friend the Member for Shipley and I want to protect, in terms of not only their pockets but their safety in their homes. I want an improvement to the advantage of us all.
Mrs Madeleine Moon (Bridgend) (Lab)
I hope to bring great cheer to the right hon. and learned Member for Harborough (Sir Edward Garnier), because I am proud to say that one prison that has developed a world-class suite of rehabilitation interventions to reduce reoffending is Parc prison in my Bridgend constituency. Those interventions are largely thanks to the leadership of the prison’s director Janet Wallsgrove as well as Corin Morgan-Armstrong, the head of its family intervention unit and his team of staff and volunteers. Most importantly, the prison has clear partnerships with numerous local organisations within the community, which has led to rehabilitation work with families being not only possible but successful.
The Invisible Walls Wales programme was set up in 2012 and funded for four years by the Big Lottery Fund, Bridgend County Borough Council, Barnardo’s Wales, Gwalia housing and the Welsh Centre for Crime and Social Justice—money not from the Ministry of Justice but from organisations within Wales that are worried about reoffending.
The three core aims of Invisible Walls Wales meet all four of the aims of this Bill. Parc is a 62-bed family intervention unit aimed at reducing reoffending, reducing intergenerational offending and encouraging community cohesion. The funding has transformed family engagement at Parc prison. The environment of prison visits has been fundamentally revamped and, in a bold step, the prison’s visit hall feels more like a community centre than a prison.
Across the prison estate, 48% of prisoners receive regular family contact, but at Parc, thanks to a small change, the proportion has now risen to 69%. As we all know, evidence shows that people in prison who maintain links with their family are 52% less likely to reoffend. Some 90% of prisoners were misusing drugs and alcohol at the start of the Invisible Walls Wales programme, but that fell to 24% by the end of the project. There were particular benefits for the children of prisoners—by the end of the project there was a 30% reduction in the number of children assessed as having school attainment and attendance issues, and 91% of the children had appropriate peer relationships.
In June 2016, Her Majesty’s inspectorate of prisons declared that the children and families work at Parc was “innovative and radical” and “probably the best” it has seen in the UK. The work has been exported internationally to prisons in the Netherlands, Uganda and Australia. The President of Malta has visited to see what can be learned from Parc, the first prison in the EU to achieve an “Investors in Families” charter mark. This week, Parc’s head of family interventions, Corin Morgan-Armstrong, is to speak at the International Coalition for Children with Incarcerated Parents conference in New Zealand.
Parc represents a global hub of excellence, especially given that we are expecting evidence to show that the reoffending rate among 80 high-risk families is to reduce to about 10%. The results speak for themselves: before the changes, physical altercations in the visit halls were witnessed by family members and children once a week, whereas since the revamp Parc has had just one incident in the past six years. Facilitating positive family engagements becomes all the more important when, as we have discussed, six out of 10 boys with fathers in prison will end up incarcerated themselves. We need to place more emphasis on family engagement as a tool for reform. We have all said that, but Parc actually makes it possible.
I cannot tell Members how many ways Parc has changed lives. For example, Mark won the platinum award—the highest possible award—in the 2016 Koestler Trust prison art awards, which attract entries from prisoners from around the UK and abroad. Parc is among the top three establishments to have submitted the most entries to the trust, whose chief executive, Tim Robertson, said:
“HMP & YOI Parc’s outstanding record of success in the Koestler Awards is a testament to the excellent education staff and facilities at the prison: they turn prisoners’ latent potential into concrete positive achievement. It also reflects the fact that G4S, across all its establishments, takes the arts seriously as a means of learning and rehabilitation.”
Many Members will know of the Hay literary festival in Wales, but they may not know of “Hay in the Parc”, which takes place at the same time. This literary and arts festival encourages prisoners to write and to present their artworks, and sometimes the presenters at the Hay literary festival go to “Hay in the Parc” to talk to prisoners.
Schools now go into the prison to work with dads, helping with their reading and understanding of educational jargon, and with developing their listening and reading skills, so that they can engage in their children’s education. Schools are provided with the information they need to support children affected by parental imprisonment. Contact details are provided to schools so that if issues arise they can go to the prison to ask for information and advice. Prisoners are helped to improve their children’s literacy and numeracy, while also building their own literacy and numeracy skills. Building a parent’s confidence in parenting and teaching them how to do it while incarcerated really makes a difference in the life of that family and of that prisoner once they leave prison. The “Fathers Inside” scheme focuses on intensive group work on parental responsibility for a child’s education, development and wellbeing, using drama, fiction, games and written portfolios. A Duke of Edinburgh leadership pilot at the prison gives fathers the opportunity to gain a Duke of Edinburgh leadership qualification while mentoring their children or siblings through different sections of the bronze award. The prison also has a beaver scouts group, the first in the UK for prisoners and their children, while the “Baby Steps” programme provides innovative antenatal education to parents so that they know how to parent.
The prison has developed an introductory booklet that enables a robust risk assessment to be made, so that prisoners who may be violent are identified and measures can then be put in place immediately to reduce that violence. New arrivals are screened for discriminatory views, and prisoners found to have contravened the prison’s community inclusion policy are required to attend a diversity training programme, whereby set actions are fed into their sentence plan.
I talked earlier about the work of Emmaus with Parc, but this works only if Parc prison works in advance of a prisoner’s discharge to make sure that they are ready: ready for the change; ready for the responsibility; ready to move into work; ready to build a new life; and ready to change and move away from the old patterns, the old friendship group, the old offending and the behaviour that led to it, before moving towards becoming a “companion” in one of the Emmaus homes. I ask the Secretary of State also to work with the Department for Work and Pensions, because the new proposals on changes to access to housing benefit will damage the Emmaus scheme; the only income companions have is that housing benefit, and that makes it possible for Emmaus to continue its work.
I know that time is running short, but I must say that money is not everything; skilled and dedicated prison officers, partnership working outside the prison and maintaining the family link are vital to rehabilitation, but so, too, are taking risks and trying new, innovative ideas which do not fit the traditional view of punitive sentencing. It is not a soft option for someone to know that they will lose contact with their children if they take drugs; to have their child tell them about their bed-wetting and about the bullying they face because their father is in prison; or to have to face their own illiteracy and innumeracy, and the way in which their offending has damaged their community and family life. I hope that the Secretary of State will visit Parc to see the work that has been done there. I hope she will have the same kind of look on her face as the previous Justice Secretary did when he came to Parc and spoke to one of the prisoners about their educational experience there. This young man told him that he had dropped out of education because it was not for him and it was not going to take him anywhere, but Parc had given him a chance, not only to do his GCSEs, but to do a degree. He was asked, “In what?” He replied, “Philosophy.” If prison can take people through degrees in philosophy, that is the sort of rehabilitation and changes in people’s lives that I hope this Bill will be able to produce.
Sir Henry Bellingham (North West Norfolk) (Con)
It is a privilege to follow the hon. Member for Bridgend (Mrs Moon), an acknowledged expert on prison reform. What she said about HMP Parc was incredibly informative and moving, and I was really interested to hear what she said about Parc supporting families, as that could be rolled out in other prisons. I wish to declare an interest, as a former criminal barrister who both defended and prosecuted. I also wish to pay tribute to the Lord Chancellor and Secretary of State, my Norfolk neighbour, for the work she and her ministerial team have done in preparing for this Bill. They have been indefatigable in putting together a very impressive Bill, which appears, given what the hon. Member for Leeds East (Richard Burgon) said, to command a great deal of consensus.
On prisons, there obviously is a crisis, and a number of right hon. and hon. Members have alluded to it. I have a great deal of concern about it, because in the 12 months to December 2016 there were 25,000 prisoner assault incidents, which was a 31% increase on the previous year’s figure. Furthermore, there were 6,430 assaults on prison staff, of which 761 were serious. As we heard from the right hon. and learned Member for Camberwell and Peckham (Ms Harman), there were 37,750 self-harm incidents, and 354 prisoners died while in custody, with only 55% of those deaths due to natural causes. There is obviously a crisis. Although the number of prisoners who test positive for drugs has come down, which is encouraging, there has been a big increase in the use of new psychoactive substances. I am pleased that the Secretary of State is introducing, through the Bill, measures to bring NPSs under the existing testing powers; that is sensible. I also welcome the measures on mobile telephony, because there are far too many illegal mobile phones in prisons.
I recently went round Wayland prison in Mid Norfolk, and I was struck by the number of prisoners who are getting access to Spice and other NPSs. They are having a devastating effect on the management of prisons. The death of a prisoner in HMP Forest Bank on 29 January from a Spice overdose was the 16th death throughout the prison estate in that month. One prisoner who was recently released from Forest Bank said that half the prison is on the stuff, and the other half spend their whole day trying to keep away from those prisoners who are on the stuff. We have a real problem.
When I visited a particular prison—I shall not say which one it is because I do not want to embarrass the governor—the governor said he was keen to create a drugs-free wing. I find the lack of ambition incredible. Our prisons should be drug-free; it is as simple as that. How are the drugs getting in? The prisoners do not bring in drugs and I do not believe that visitors do so. They are coming over the wire on drones and perhaps in supply vehicles, and I am sorry to say it, but there may well be a small number of corrupt prison officers. A significant amount of drugs, particularly these new psychoactive substances, are getting into our prisons and causing a great deal of mayhem, misery and, in some cases, death. I urge the Secretary of State and her team to do all she can to keep up the pressure to make our prisons entirely drug-free.
I agree with my right hon. and learned Friend the Member for Harborough (Sir Edward Garnier) that, in some ways, there are too many people in prisons. I think that not enough people who have done certain things wrong and have committed horrendous crimes are in prison, and they should be in prison for longer, but I also feel strongly that some people who are in prison should not be there. I am worried that there are more and more prisoners aged 50-plus, and there are currently many more prisoners aged over 65. As the Secretary of State conceded, that is partly because of the extra convictions for child abuse crimes. I certainly do not want to underestimate the seriousness of some of those crimes—no one can claim for one moment that they are victimless crimes, because they are not; there are victims of such crimes and the perpetrators need to be punished—but I agree with Chief Constable Simon Bailey of Norfolk constabulary, who is the Association of Chief Police Officers lead on this subject, that some people need help, not prison. There has been over-zealous prosecution of some of these people, who should be given help to wean them off their dreadful habits.
Several colleagues—including the hon. Member for Stretford and Urmston (Kate Green), my hon. Friends the Members for North West Cambridgeshire (Mr Vara) and for Bromley and Chislehurst (Robert Neill), and the good doctor, my hon. Friend the Member for Central Suffolk and North Ipswich (Dr Poulter)—have mentioned the mentally ill in our prison estate. It is worrying that 4% of prisoners have a psychotic illness, 14% suffer a major depressive illness, and nearly two thirds have some form of personality disorder. I wish to make a suggestion to the Secretary of State as to how we could make some progress on this issue.
The alternative to prison for some people who suffer from serious mental ill health is to be found in the mental health treatment requirement. It can of course be added to a community or suspended sentence after a conviction, but it worries me that only 0.5% of community sentences in 2016 included an MHTR. Why is that? Perhaps the prisons Minister can look into that and elaborate further on it, because significant progress could be made on that front.
Sir Henry Bellingham
I am glad to see my neighbour the Secretary of State nodding.
I find it extremely worrying that of our prison population of 84,307—as at last week—just under 10,000 are foreign prisoners. I have not done the maths, but I think that is around 15% or 16%. Some of them are of course European, so there is a problem with ensuring that they are deported, because we have to have arrangements in place and that does not normally happen across Europe. There are, though, prisoners from countries including Albania, Jamaica, Pakistan, India, Somalia—unfortunately —and Nigeria. Roughly 3.5% of all foreign prisoners come from Nigeria, and a staggering 5.3% come from Jamaica. The prisons Minister and his team of officials really must try to do more to grip the problem. Why are better, reciprocal arrangements not in place? Why are we not working with the Jamaican and Nigerian Governments to, for example, use Department for International Development money to improve their prisons? Why are we not doing the same in Somalia? As far as I understand it, the new Government there have complete control of most of the urban areas and most of the prisons, so surely something could be done.
I shall conclude in a moment; I was going to say something about the courts, but a lot of colleagues are waiting to speak. I was keen to get the key points across, and additional points can be discussed in Committee and on Report. I find it heartening that the Bill commands a great deal of consensus among all parties and that, although the Government’s energy over the next few months—indeed, perhaps two years—is going to be focused on Brexit and all the challenging negotiations that will go with it, they still have time to stand true to their reforming zeal and introduce an important Bill. I congratulate the Secretary of State and her team. Let us hope that a really good Bill can be made better still in Committee.
Holly Lynch (Halifax) (Lab)
It is an honour to follow the hon. Member for North West Norfolk (Sir Henry Bellingham), whose speech was very articulate. I am grateful for the opportunity to speak in this debate ahead of serving on the Bill Committee over the next few weeks.
With the Government’s White Paper, which was published in November last year, and the Bill before us today, I welcome many of steps being undertaken to get to grips with the challenges in our prisons and the justice system more widely. Greater scrutiny and more transparent allocation of responsibility are positive steps but, as others have already said, the Bill will succeed only once we have comprehensively got to grips with overcrowding and safety in our prisons. Without an effective, functioning prison system with reform at its very core, the wider justice system simply fails to function. When he appeared before the Justice Committee back in November, the Minister for prisons and probation admitted that all the numbers relating to prison violence, self-harm and deaths in custody are pointing in the wrong direction. I shall therefore use my role as constructively as possible to make sure that the Bill goes far enough and fast enough in improving those numbers.
In part because of several high-profile incidents, Members will be well aware of the prevalence of overcrowding in prisons, which is so commonplace that it sadly now seems to have become institutionalised in the justice system. When they gave evidence to the Justice Committee, both the Minister and the chief executive officer of the National Offender Management Service were in agreement that overcrowding has been a sustained problem for the past decade. The prison population rose from 43,000 in 1993 to just over 84,000 in 2016. Despite this increase, the number of uniformed prison officers tasked with managing and caring for those in prisons has decreased. Following the closure of 18 prisons since 2010, the prison estate has seen a reduction of around 6,000 places, at a time when the prison population is increasing. Although there are plans for new prisons and extensions at existing sites, at this rate such measures will not alleviate overcrowding in this Parliament or the next.
Overcrowding is a problem in 69% of prisons—that is 80 out of 116 establishments. My nearest prison, HMP Leeds in Armley, is one of the most overcrowded in the country. The Prison Reform Trust found that although it was built to accommodate 669 men, as of October 2016 it held 1,145, meaning that it is populated at 171% of its intended capacity. What is the impact of overcrowding on the conditions inside prisons? We have already heard statistics from the House of Commons Library, which reveal that, in the 12 months to September 2016, the number of prisoner-on-prisoner assaults increased by 31% on the previous year, with just over 25,000 recorded incidents. There were nearly 38,000 incidents of self-harm, which is an increase of 61% compared with 2006. In the 12 months to December 2016, there were 354 deaths in custody, 34% of which were self-inflicted and 1% the consequence of homicide.
A report by the Prison Officers Association revealed that there are more than 42 incidents of violence in prison establishments every day. Given, as the Minister said, that all the numbers by which we measure the effectiveness and safety of our prisons are pointing in the wrong direction, it is perhaps surprising that we have seen a reduction of 7,000 prison officers since 2010. I appreciate that the Government have closed 18 prisons in that time, but the prison population has still increased. In fact, it peaked at an all-time high in 2011. By any analysis of prisoner to prison officer ratios, the number of officers will surely be found to be inadequate to meet the challenges, and I support the call from my right hon. and learned Friend the Member for Camberwell and Peckham (Ms Harman) to look at how we can introduce ratios into the Bill.
I welcome the decision announced in the White Paper to recruit 2,500 more prison officers, and I am glad that the Secretary of State was able to tell us more about that recruitment process, and that 400 more prison officers have been recruited for the 10 most challenging prisons, but I hope that the Minister can go further in outlining what the next steps will be in recruiting for the remaining 2,100 posts.
Michael Spurr, chief executive officer of the National Offender Management Service, confirmed to the Justice Committee in November that the rate for new prison officers leaving within their first year is 13.5%, and has been as high as 16% in the past three years. I would be interested to know whether the Secretary of State has factored in that retention rate when recruiting those new officers. If 13.5% of the 400 already recruited leave within their first year, we will need to find 54 additional officers. I have set out the context not simply to make the case for sufficient prison capacity to meet demand, but to make the case for my amendments on prison officer safety, which is an area in which this Bill could go much further.
My right hon. and learned Friend the Member for Camberwell and Peckham talked about how two officers were left to cover a wing of more than 150 prisoners. Members can appreciate that sense of being outnumbered when they think about the reality of those figures. What needs to change to make sure that prison officers do not leave in their first year, are safe at work and are staying in post until retirement? Colleagues will be aware that, since having had an eye-opening experience while shadowing a lone police officer in my constituency last year, I have been campaigning for greater protections for emergency service workers, and prison officers are no less deserving of those same protections.
A report by the Prison Officers Association revealed that eight staff members are assaulted every day and that, in 2010, there were 24 sexual assaults against prison staff. That is just unacceptable. Section 8 of the Prison Act 1952 says:
“Every prison officer while acting as such shall have all the powers, authority, protection and privileges of a police constable.”
In the event that a prison officer is assaulted, and where the evidence affords, the prosecutor has a choice between pursuing common assault charges, under section 39 of the Criminal Justice Act 1988, or assault police charges under section 89 of the Police Act 1996. Assault police is a summary only offence and as such carries a maximum of 24 weeks custodial sentence, with community resolution orders and fines the most common outcome. I will not share the details now, but I can recommend the report “Prison Violence—How serious does it have to get”, which is published by the Prison Officers Association, for harrowing testimonies from prison officers, complete with photos of their injuries. It is well worth a read if anyone is in any doubt about the need for having the toughest possible deterrents in place to protect prison officers.
Philip Davies
I commend the hon. Lady for all her work on this matter and also with regard to police officers. It is very much appreciated by them. She says that the number of assaults on prison officers is going up, but is she also aware that the number of extra days given for the assault of a prison officer by a prisoner is going down? The average number of extra days given for a prisoner assaulting a prison officer was 20 five years ago, and it is just 16 now. Does she agree that that is completely inadequate punishment for a prisoner assaulting a prison officer?
Holly Lynch
I completely agree with the hon. Gentleman. I wonder whether the pressures of overcrowding are starting to reflect in those sentences handed out in prisons, which do not then serve as a proper deterrent. I would be more than willing to consider that point and others when we debate the Bill in Committee.
This is why I am calling on the Government to consider making it an aggravating factor to assault a prison officer under existing common assault, grievous bodily harm, actual bodily harm and malicious wounding charges. That would give the judiciary much greater flexibility when considering sentencing. Sentencing must be about effective deterrent. It is about not exacerbating the existing conditions in prison, but ensuring that there is a real incentive not to assault officers.
There is also the practice of “potting”, where urine and faeces are thrown at a prison officer as a means of assaulting them—it seems to be female prison officers who are singled out for this treatment—and it is simply horrific. Those acts must be followed up and charges brought against every individual who engages in that activity. It is no wonder that there is a 13.5% drop-out rate in the first year when that is what we ask our prison officers to face every day they go to work.
The second part of my campaign relates to spitting. As well as being horrible, spitting blood and saliva at another human being can pose a very real risk of transmitting a range of infectious diseases, some with life-changing or even lethal consequences. In presenting my ten-minute rule Bill, which addressed that very issue, I shared with MPs the story of Arina Koltsova, a police officer in Ukraine who died after contracting tuberculosis from an offender who spat at her while she was trying to arrest him. At the moment, if a prison officer or any other emergency service worker is spat at, they can take a blood sample from an individual only if they give their permission. Needless to say, in most cases in prisons, prisoners are deliberately seeking to inflict the maximum distress on a prison officer, and so decline to provide a sample. This then leaves the prison officer or staff member with no choice other than to take anti-viral treatments and face a six-month wait.
To address this issue, I have looked to laws in Australia where refusal to provide a blood sample can result in a fine of 12,000 Australian dollars and a custodial sentence. Adding such a measure to the Bill would mean that to refuse to provide a blood sample would in itself be a crime, punishable by a fine or an additional custodial sentence. If a prison officer has already had to endure being spat at or bitten, this measure would hopefully save them having to endure a six-month ordeal waiting to see whether the consequences are much more serious. I hope to demonstrate the merit of these amendments in Committee and hope that the Government will work with me on these measures.
On behalf of my hon. Friend the Member for St Helens North (Conor McGinn), who cannot be in the Chamber today, I wish to raise his commitment to Helen’s law, which would deny parole to those convicted of murder who refuse to reveal the location of their victim’s remains. He will be seeking to build support for that change and amend the Bill to that effect, and I will be supporting him in doing so.
I have been particularly animated about the closure of both the magistrates court and the county and family court in my constituency. I am grateful to the Minister for Courts and Justice for keeping me informed about this Bill. He knows that I am particularly passionate about the provision of justice.
Last week, having attended the briefing on the sweeping reforms to access to justice, I can see that there is a lot to be optimistic about. When starting from a position of what is best practice for supporting vulnerable victims and witnesses through the justice system and when giving evidence, I accept that our old-fashioned court buildings and outdated systems are just not up to the job. However, having accepted some of the reasoning for the closure of the courts—to facilitate this revolution in access to justice which promised to make justice more available than ever before—what happened in Halifax was that the courts closed, and people now have to travel much further than ever before to attend old-fashioned court buildings and use outdated systems. With a six-year roll-out on the measures that we are all looking forward to seeing, my experience in Halifax is that there has been a massive step backwards in justice provision in the intervening years. I have engaged with this process, accepted that there were inefficiencies across the two courts, and even lobbied to merge them, which would have returned a cost saving for Her Majesty’s Courts and Tribunal Service.
I visited Kent police’s excellent video-enabled justice system, and bought the Government’s arguments, but, through no lack of trying, I have failed to get HMCTS to engage with me on how technology can be used to the benefit of my constituents and to deliver a justice system that is indeed fit for purpose. I am really grateful that the chief executive of HMCTS, Susan Acland-Hood, has offered to meet me to discuss this matter further, following similar pleas that I made at that briefing hosted by the Minister for Courts and Justice last week. I genuinely hope that we can get a video hub in place to mitigate some of the impact of the court closures in Halifax.
I genuinely welcome the move to introduce modern technology into the justice system, so that vulnerable victims can record their evidence just once to save potentially painful and unnecessary repetition; so that we can cut down the time spent by police officers in court; and so that justice can be accessed on an iPad in a front room. Such changes would be fantastic. I will use my time in Committee to outline examples of where court closures have left a void, which this Government have failed to bridge, and work towards practical measures for delivering a better service as soon as possible.
I look forward to examining and debating the Bill in more detail in Committee. I welcome many of the measures. While the situation remains so pressing—I would go so far as to say pretty desperate—in some of our prisons, the pressure to get this right and quickly weighs on us all. I intend to work constructively to firm up the Bill as it relates to prison officer safety. Given the recruitment and retention pressures they face, I hope that the Government will be receptive.
Michael Tomlinson (Mid Dorset and North Poole) (Con)
It is a pleasure to follow the hon. Member for Halifax (Holly Lynch) and so many other experts who have spoken already from both sides of the House. It is also a pleasure to have caught your eye, Madam Deputy Speaker, and to be called to speak so early in this Second Reading debate on a Bill that commands cross-party support.
The Bill contains much that is commendable. I warmly welcome the strengthening of regulations on whiplash injuries and the provisions on the introduction of new technologies in court procedures. I was pleased to hear the Secretary of State describe how courts in the south-west of England—my part of the world—are doing so well in using technology.
I will focus on prisons and prison reform. I am delighted that the Bill sets out the purposes of prisons, in particular that they should
“reform and rehabilitate offenders”
and
“prepare prisoners for life outside prison”.
Many Members have expressed their concerns about the prison system, but none, I think, has dwelt on the reoffending statistics, which have remained stubbornly high. The rate of reoffending by young offenders is running at 68.7%, the rate among those sentenced to less than a year in prison is 60%, and the overall reoffending rate is 44.7%. Such rates come at a cost of £15 billion a year. That is not the cost of reoffending overall; it is the cost in relation to reoffending by those who were in prison. It is right that we refer in the Bill to the necessity of reforming and rehabilitating offenders.
The statistics that I just cited compare badly with those for our international counterparts. Some countries do particularly well—Denmark’s reoffending rate is 29%, and Iceland’s and Singapore’s are both 27%, but Norway leads the field with a rate of 20%. I accept that the legal jurisdictions in some countries are very different from our own, but it is worth looking at where there is good practice and seeing what we can learn. In that regard, I was pleased to visit a young offenders institution in Norway, just outside Bergen. Prisons in Norway have been compared, unfairly, to holiday camps by some in our country’s media, but given Norway’s reoffending rates, it would be churlish to ignore its example. When there are good lessons to learn from other countries, we should try to learn them.
Dr Sarah Wollaston (Totnes) (Con)
Does my hon. Friend agree that there are also examples of good practice in this country? I visited a project in my constituency, LandWorks, which works with offenders providing routes into employment, mentoring and counselling. It offers an extraordinary range of opportunities and achieves reoffending rates of just 4%. Does he agree that we should look at practical examples in this country and roll them out more widely?
Michael Tomlinson
I agree absolutely and I am grateful to my hon. Friend for that intervention. It is clear that LandWorks is doing an excellent job in her area. We heard from the hon. Member for Bridgend (Mrs Moon) about the good work that is done in Parc prison, which is being rolled out internationally. When we can learn, whether from institutions in our own country or abroad, we should be big enough and brave enough to learn those lessons, to adopt good practice and to roll it out across the country.
The two principles I learned from my visit to the young offenders institution in Norway related to staff ratios and officer training. There, all prison officers are either graduates or have completed a two-year training programme. I was pleased to hear my right hon. Friend the Secretary of State say that we are recruiting more prison officers and more is being done to improve their training. Earlier today, I learned of the “Unlocked” graduate scheme—a two-year programme, I think.
The Parliamentary Under-Secretary of State for Justice (Mr Sam Gyimah)
indicated assent.
Michael Tomlinson
I am pleased to see the Minister nodding. I warmly welcome that programme.
Mr David Burrowes (Enfield, Southgate) (Con)
Will my hon. Friend, whose professional background is similar to mine, comment on the need for offenders leaving prison to go not into the arms of drug dealers, which leads to further reoffending, but into the arms of a loved one or family members, so that that relationship can give them ongoing support and help them not to reoffend?
Michael Tomlinson
I was going to touch on that point later in my speech, but I will deal with it now. Members on both sides of the House have talked about the importance of that. The hon. Member for Bridgend talked about a 51% reduction in reoffending—I would be interested to hear where that figure comes from. The hon. Member for Stretford and Urmston (Kate Green) mentioned a 39% reduction, and I believe that that figure was drawn from research instigated and conducted by the Ministry of Justice in 2008. I am interested in both those figures.
My hon. Friend the Member for Enfield, Southgate (Mr Burrowes) is right. I challenge the Minister to consider whether maintaining close family relationships outside prison should be mentioned in the Bill, perhaps in clause 1, which sets out the purposes of prisons. I was pleased to hear the Secretary of State say that Lord Farmer has been looking into this, and I know he will bring his great expertise to bear. We eagerly anticipate the publication of his report.
I had the opportunity to visit, with my hon. Friend the Member for Hexham (Guy Opperman), Her Majesty’s Prison Coldingley, which is a reform prison, to see the work that goes on there. When reform prisons were launched, I questioned how they would make a difference and what empowering governors would mean on the ground. The governor of Coldingley gave two examples that made clear to me the impact that reform prisons and giving governors greater autonomy can have. They are small examples, but I believe they paint a bigger picture. They have had a big impact, certainly in Coldingley.
First, every prisoner in Coldingley works. We had the opportunity see the vast factories there—there is a printing press and the like all set up. As a result of the flexibility given to the governor, she has been able to increase the food allowance from less than £2 to in excess of £2. That seems like a small uplift, but it was done in recognition of the fact that every prisoner works, and if nothing else it has made a dramatic difference to prisoners’ morale. The second example was the appointment of a key position that the governor simply would not have been able to afford without having flexibility in the budgets and the autonomy to prioritise funds as she saw fit. Those two small examples brought home to me the importance of giving governors autonomy and greater authority.
Another measure foreshadowed in the White Paper was release on temporary licence. Schemes whereby prisoners are released early are sometimes criticised, even by Conservative Members. Some say, “Well, what about the risk to the public?” While I agree with those concerns and although it is right to highlight them, it is also right, when proper, to challenge them, because release on temporary licence has a success rate in excess of 99%. In 2015, there were 162 failures, the definition of which is a prisoner who has breached his or her terms of release, committed a further offence or failed to turn up on time. The figure equates to 49 out of 100,000—less than 0.5%. If we translated that into reoffending statistics, I think we would all be pleased, so I warmly support measures giving governors greater autonomy in rolling out and prioritising release on temporary licence.
I am conscious that other experts are waiting to speak, so suffice it to say that I warmly welcome the measures set out in the Bill. I fully support it and am pleased that it has cross-party support.
Philip Davies (Shipley) (Con)
It is a pleasure to follow my hon. Friend the Member for Mid Dorset and North Poole (Michael Tomlinson).
I have been disappointed to hear prison being disparaged so much in this debate, as prison is actually a pretty successful place. According to the Ministry of Justice’s own figures, the longer people spend in prison, the less likely they are to reoffend. The Ministry’s latest figures, released in November 2016, show that although 60% of those released from a sentence of less than 12 months go on to reoffend, only 37% of those who serve a sentence of between 12 months and four years, 24.7% of those who serve a sentence of four to 10 years, 15.6% of those who serve a sentence of 10 years or more, and 11.4% of those sent on an indeterminate sentence go on to reoffend after release. Prison is clearly not the problem because the longer people spend in there, the less likely they are to reoffend. Perhaps the problem is that they are not spending long enough in prison. That seems to be the lesson from those figures.
Kit Malthouse
I have some sympathy with part of what my hon. Friend says, but does he accept that those statistics ignore the nature of the offence? For instance, quite a lot of people are serving very long sentences for murders—crimes of passion—that they may have committed only once in their life and are unlikely to go on to commit again, whether they go to prison or not.
Philip Davies
The problem with that is the example of those who serve less than 12 months. If my hon. Friend looks at the figures, he will find that it is very difficult to be sent to prison for a first offence and a short sentence. People who are eventually given short prison sentences have been given community sentence after community sentence, which have not worked. The reason that these people end up in prison on a short sentence is that the courts eventually say, “We have no other option but to send you to prison because every other intervention we’ve tried has failed.” The reoffending rate for the cohort of people who end up in prison after community sentences was 100%. The fact that they have a reoffending rate of 60% when they leave prison is a greater triumph than was shown by community sentences for that cohort of people who end up in prison.
Philip Davies
I do not have time to give way to my hon. Friend again.
The Bill contains provisions to toughen up the current position on the use of mobile phones. I am sick to death of seeing pictures of smiling criminals from within prison cells, surrounded by all kinds of creature comforts and ill-gotten gains courtesy of the use of mobile phones in prison. More concerning is the use of phones to intimidate or threaten victims, or to ensure the continuation of crimes, so I welcome the steps the Government are taking to deal with that scourge.
I have some concerns about extending the use of video links in certain cases, and I am certainly not comfortable with people using video equipment in all kinds of venues that are not courts. I shall listen to the points made by those promoting such technology, but sometimes, in the interests of justice, saving a few pennies should not be the overriding factor. We need to be very careful that, in trying to protect victims, we do not affect the scales of justice and end up with a situation where it is difficult for defendants to have a fair trial. Having a fair trial should be paramount, just as it is essential to deal appropriately with those found guilty. I am not overly keen on the sound of the online conviction process, so I will be listening with interest to the types of offences it might cover. The Magistrates Association also has concerns about this, and I hope they are considered carefully.
I am concerned about the abolition of the local justice areas, which organise magistrates and their work within geographical locations. I understand that some work can be done in different areas, but there is something to be said for the argument that justice should be dispensed locally. I hope we do not end up with a situation whereby all kinds of cases are being heard randomly all over the country for no good reason.
I have a bit of concern about judicial appointments and the drive for diversity. Surely we should just be interested in recruiting the best people. It should be irrelevant whether they are men or women, black or white, Christian or Muslim, gay or straight. Who cares about any of those things? We want the best person for the job, irrespective of their gender or race. Surely that is what equality means in this day and age—not just giving somebody a job out of tokenism because they happen to tick a particular quota box. Let us stick to appointing people on merit alone, and ignore every other irrelevant factor about them.
In my brief contribution, I want to focus on what is missing from the Bill, which is more important than what is in it. I would like the whole sentence given by the courts to be served. People should certainly should not be automatically released halfway through their prison sentence, as is the case at the moment. That was a scandal when it was introduced. The Conservative party was apoplectic when the last Labour Government introduced it, but we now seem to think that it is wonderful to release people automatically halfway through their sentence, irrespective of how badly they behave in prison. I will certainly table an amendment at a later stage in the passage of the Bill to ensure that any prisoner who assaults a prison officer cannot be released automatically halfway through their prison sentence. We must have some proper punishments for assaulting prison officers. The least that prison officers deserve is that kind of support.
One reason for the breakdown of order in prisons is that prisoners know that no matter how badly they behave, they will be released halfway through their sentence. All that is given for assaults on prison officers is extra days. As I indicated in my intervention on the hon. Member for Halifax (Holly Lynch), who has done a great job and should be commended greatly for all her work on defending prison officers and police officers, the average number of extra days given to a prisoner for assaulting a prison officer was 20 days in 2010 and 16 days last year. That is completely and utterly unacceptable. I am sure that the Prison Officers Association would welcome the Government saying that if a prisoner assaults a prison officer, their opportunity for automatic early release halfway through their sentence will end, and that their position will be judged on whether they are safe to be released out into the public.
Bob Stewart (Beckenham) (Con)
I presume that the sentences should, at the very least, be the equivalent of the sentence for someone who does that outside prison.
Philip Davies
I am grateful to my hon. Friend for what I consider to be his support for my amendment. I only need the support of the Opposition and about eight more on our side and we should be in business. I will put my hon. Friend’s name down as a likely supporter.
The Library briefing paper confirms:
“There were 6,430 assaults on prison staff, 761 of which were serious. This was an 82% rise on the number of assaults on prison staff in 2006 and was a 40% increase from 2015.”
Prison officers have a very hard and, at times, dangerous job. I am sick of hearing about the pathetic additions to sentences for prisoners who assault them. I hope the Government will deal with that in the remaining stages of the Bill.
I would also like to see an amendment to limit the use of fixed-term recalls. When prisoners are released early, they do not even go back to serve the remainder of their sentence when they are convicted of a further crime. They just go back into prison for 28 days, for what I would consider a mini-break. They can usually keep an eye on their criminal activities knowing that they will be back in prison for only 28 days. I hope the Government will deal with that.
I would recommend giving consideration to making judges accountable for their decisions, particularly when they do not hand down custodial sentences that are perfectly justifiable and possibly even expected, and particularly when the offender goes on to reoffend. I do not need to say now what the consequences of collecting such information should be, but it should be clear to many that where a judge consistently allows offenders to avoid prison, and those offenders go on to make others suffer as a result of their continuing crime spree, there should be accountability and consequences for that judge.
I would like to table an amendment to allow magistrates to sentence people to prison for up to 12 months for one offence, instead of the current six-month limit. We already have the law in place to do that, and it just needs a commencement date. That is something the Government have been promising for years, but they still have not got round to doing anything about it. When the Minister winds up, perhaps he can tell us when he intends to activate this part of Government policy.
I would like to recommend increasing the age limit for magistrates and judges to 75, and I will table an amendment to that effect. As of 1 December 2016, the Government increased the age limit for jurors to 75, and I cannot really see any difference between being a juror and determining someone’s guilt or innocence in a serious criminal trial, and, for example, sitting as a member of a bench of magistrates. Surely, the same rationale applies to both.
I am not a fan of release on temporary licence, unlike my hon. Friend the Member for Mid Dorset and North Poole. If prisoners serve only half their sentence, the least they can do is actually serve that half in prison, rather than being released in advance of the half for which they are automatically released. It is ludicrous to count time out of prison as time in prison, and I am considering tabling amendments to cover some instances of release on temporary licence.
Philip Davies
I am not going to give way, because my time is almost up, and I want other people to have the chance to speak.
I want to place on record my continued interest in seeing male and female offenders treated equally by the courts, not only for sentencing purposes but in all aspects of the criminal justice system. It is increasingly accepted that women are treated more leniently than men. For every single category of offence, a man is more likely than a woman to be sent to prison. In the interests of equality, this matter needs to be looked at. However, we should look after women in the criminal justice system by abolishing sharia councils, which discriminate against them terribly, although the Government sit idly by and allow that to continue, which is an absolute disgrace.
Finally, on a more positive note, I am delighted to support the Secretary of State when she said in a speech last month that:
“the wrong way to address the problem would be to shorten sentences or to release offenders earlier. That would be reckless and endanger the public. And it would restrict the freedom of the independent judiciary to choose the most appropriate sentence for each offender.”
I could not agree more. She is certainly on the right lines. If she sticks to that kind of principle, she will be doing okay. I hope to be able to support the Bill by strengthening it in its remaining stages.
Mr David Nuttall (Bury North) (Con)
It is a privilege, as always, to follow my hon. Friend the Member for Shipley (Philip Davies), and I very much look forward to supporting some of the amendments he foreshadowed in his speech.
At the outset, I must draw the House’s attention to my entry in the Register of Members’ Financial Interests, as I am on the roll of solicitors. I am a non-practising solicitor now, but earlier in my career I was involved in many personal injury matters, and it is to part 5 of the Bill, which deals with whiplash, that I want to restrict my remarks.
There are things to commend and welcome in the Bill, but the one area where I do have concerns is over the proposals relating to whiplash. It is completely understandable that the Government would want to root out fraudulent whiplash claims, and I am sure everybody would agree with that, but I am not convinced that the proposals in part 5 will assist in achieving that aim. I welcome the fact that the Government have abandoned some of the more extreme proposals in the consultation paper, but we have nevertheless finished up with a set of proposals that I doubt will have the desired effect.
There is no doubt that if fraudulent claims are submitted and not spotted, the damages that are paid out will increase premiums. However, I am not convinced that the way to reduce premiums is to restrict artificially the level of damages payable by someone found liable for the tort of negligence. The Government’s proposal has nothing to do with controlling public expenditure; we are told that it is all about rooting out false, fraudulent claims and trying, as a consequence, to reduce insurance premiums. If the Government are really keen to do that, one way would be to reduce insurance premium tax. It seems rather perverse that we should tax those who seek to do the right thing. I can understand the argument—I might not always agree with it—for taxing goods or behaviours that are perceived to be bad, but it is less easy to understand the rationale for taxing those who seek to do the right thing by taking out insurance to protect themselves and take care of their future.
There are already procedures in place to reduce the potential for fraudulent claims to be successful. I am all in favour of taking the strongest possible action to root out those who try to con the system, but perhaps we should have given the existing measures—it is not many years since they were introduced—more time to work, and there is already evidence that they are working. The number of whiplash claims, as reported to the compensation recovery unit at the Department for Work and Pensions, fell from 511,111 in 2010-11 to 335,365 in 2015-16.
Sir Oliver Heald
The expression we use is whiplash-related road traffic injuries. Some of them are described as upper torso strain caused by shunt by a vehicle; that is a whiplash-related claim, and it would not count as a whiplash claim, but we think they are the same thing, and we reckon that the figures show a 50% increase over the last 10 years, at a time when the number of road traffic accidents generally has been falling.
Mr Nuttall
Clearly, there are issues around the definition of what constitutes a whiplash injury. The fact remains that, under the definition of whiplash used by the CRU, there was a 34% fall between 2010-11 and 2015-16.
Regardless of the number of claims, if they are valid, appropriate damages should be paid. The introduction of tariffs will have a number of effects, particularly when combined with the proposed increase in the small claims limit, which I accept is not in the Bill but is foreshadowed in the Government’s proposals. First, the level of damages will hardly ever be correct, as the Government recognise in their proposed uplift provisions. This is a rather clumsy way to try to finesse the basic scheme, recognising that the damages will not be at the appropriate level. There will inevitably be an increase in the number of litigants in person, and that raises questions as to how the courts will cope. For example, is the portal proposed as the mechanism by which the system is accessed intended for use by litigants in person?
Claims management companies will have a field day as they look to expand their operations in the light of these proposals. I fear that there will inevitably be an increase in the number of nuisance telephone calls. The Government may feel that insurance premiums are a problem, but that is as nothing compared with the problem of nuisance telephone calls. I am sure that I am not alone among MPs in being able to say that I hardly ever get a complaint about insurance premiums in my postbag or email inbox, whereas I get many, many complaints about the number of nuisance telephone calls.
Another problem resulting from the introduction of tariffs is that the same injury will attract a different level of compensation dependent on whether the injury was suffered as a result of a road traffic accident or in the workplace. I am not sure how that could be justified to the injured person, but I look forward to hearing the explanation of how it could be justified. There will inevitably be a transfer of cases from qualified legal practitioners to unqualified claims companies—McKenzie friends and so forth—and thousands of high street practices will face closure or, at the very least, job losses. There will also be unintended consequences. For example, the Access to Justice Action Group has pointed out that an injured party would be entitled to £3,725 for a neck injury lasting 24 months under the small claims track, but £6,750 for a neck injury lasting just one month longer outside the small claims track. That will be an incentive for the small minority who try to play the system to exaggerate their claims.
In summary, why should the vast majority of innocent, law-abiding citizens be penalised for the actions of the dishonest few?
Andrew Selous (South West Bedfordshire) (Con)
I strongly welcome this Bill because it will help to improve the rehabilitation of offenders, which is at the heart of preventing more crime and keeping the public safe.
Prisons are the end of the line for maintaining law and order in this country, and we expect an awful lot of them. Of course, prevention is always better than cure, and we need to redouble our efforts in cracking down on the scourge of drugs, which so often leads to a life of crime. We also need to continue to provide more and more ladders of opportunity for people to engage in legitimate, worthwhile and rewarding study and work. Rehabilitation in prison cannot take place unless the environment is safe and secure, and it is absolutely right that those words appear on page 1 of the Bill.
If we are to reform and rehabilitate offenders and prepare prisoners for life outside prison, we need to focus on a number of areas. Many prisoners arrive in prison with serious mental health issues, and making sure that the very best mental healthcare is available for them must be at the heart of the prison regime. I welcome the moves towards joint commissioning so that prison governors are more involved with the mental healthcare being delivered within their prisons.
I was also delighted that the Secretary of State agreed to take forward the Farmer review, to keep prisoners’ family and other relationships healthy and strong where it is safe to do so. Some prisons, such as Parc in Bridgend, as we heard in the wonderful speech by the hon. Member for Bridgend (Mrs Moon), are already doing that work really well. If prisons are truly to be places of reform, we cannot ignore the reality that a supportive relationship with at least one person is often indispensable to prisoners’ ability to get through their sentence well and achieve rehabilitation. It is not only family members who can provide that. Other significant and supportive relationships can make a significant difference to the prevention of reoffending.
Bob Stewart
Huge advances have been made by Jim Davidson’s charity Care after Combat, which works with military veterans and is supported by the Government. To start with, more than 50 of its mentors have gone into prisons, been friendly with prisoners and put them on the road to really decent rehabilitation. It is a great charity, and I am very grateful for all the work it has done for the military.
Andrew Selous
I could not agree more with my hon. Friend. I have met Jim Davidson on a number of occasions, and I thoroughly commend the work of Care after Combat throughout the Prison Service.
Family work, which brings prisoners face to face with their enduring responsibilities to their families who are left in the community, is indispensable to the rehabilitation culture that we urgently need to develop in our penal system. I welcome the commitment by the Ministry of Justice to measuring the quality of prisoners’ relationships. At a very practical level, we know that enduring family relationships lead to many prisoners being able to access on release family accommodation that would be unavailable to them if those relationships had broken down.
Kate Green
There is a huge amount of consensus this evening about maintaining prisoners’ family relationships. Does the hon. Gentleman agree that a corollary of that is that family contact should not be removed as a penalty where other forms of sanction are available? It is unfair to the family members and it defeats the object, which he and others have talked about, of maintaining prisoners’ contact with their families.
Andrew Selous
I share the sentiments expressed by the hon. Lady, and my instincts are with hers. I have talked extensively to prison officers about the issue, and on occasions they have a relatively limited number of levers that they can use. I am with the hon. Lady, however. Family relationships are really important, and they are often powerful forces for good that can help prison officers to achieve what they are trying to achieve.
Accommodation is the base camp of rehabilitation, and we are unlikely to make any progress without it. It is concerning that some local authorities are, frankly, discriminatory towards ex-offenders. Ex-offenders should not be given preferential treatment, but neither should they be treated worse than others who seek accommodation.
I hope that Her Majesty’s Prison and Probation Service, as it will be called from 1 April, will look at the cost of prisoners phoning home. Many prisoners have mobile phones so that they can speak to their wives, husbands, partners and children. We need to make sure that prisoners have good access, for legitimate use, to affordable prison telephones. I am also a fan of the prison voicemail initiative, which is spreading in our prisons. A daughter managed to leave a message of her first violin piece for her father to hear on a prison voicemail, for example.
Suella Fernandes (Fareham) (Con)
On the issue of housing and released prisoners, does my hon. Friend agree that many prisoners struggle to get on to the housing list in various local authorities? How does he suggest we incentivise local authorities to consider in priority need those prisoners who have served their sentence and need a bit of support to prevent them from getting into homelessness?
Andrew Selous
At the very least, we need fairness across the system. What concerns me is that some local authorities have a blanket approach of telling ex-offenders to wait a couple of years. My local authority, Central Bedfordshire Council, has a very good policy. It is concerned about antisocial behaviour, and it does not really mind whether someone is an ex-offender; it wants to know whether that person will be a good tenant. As long as they are a good tenant, the council does not discriminate against them. I think that that is a good and practical policy.
Michael Tomlinson
Does my hon. Friend welcome, as I do, the Third Reading in the House of Lords of the Homelessness Reduction Bill, in which there is duty on local authorities to provide advisory services to those who have been in prison? Does he welcome that excellent measure?
Andrew Selous
I very much do so, because so many of the other things that we want to do—improving prisoners’ education, getting them into work, keeping family links strong—depend, very naturally, on having somewhere to live.
I am concerned that offenders’ innocent family members are being unfairly and wrongly penalised by insurance companies either withdrawing insurance cover or making it prohibitively expensive. In some cases, this is happening while the offender is in prison, and it is hard to see how there could be an additional risk to the insurer with regard to the family home in such cases. The Ministry of Justice needs to make its views about this issue very clear to the Association of British Insurers. I am grateful to the Salvation Army for highlighting it in a recent edition of its magazine, The War Cry.
The previous Secretary of State was absolutely right to get an outstanding headteacher, Dame Sally Coates, to review prison education. We need much better baseline assessment of levels of literacy, numeracy and other key skills on arrival in prison, and a real determination not to waste a single day in prison in making progress on those areas. We also need a culture change so that prisons become places of education across the whole establishment. One of the ways to achieve that is through the much greater use of mentors—for example, with the Shannon Trust’s reading schemes, or by using numeracy schemes, such as one to one maths. Some of our best governors, such as Ian Bickers at Wandsworth, have accelerated this progress and formalised the mentoring arrangements with prisoners who have level 3 qualifications and are able to help other prisoners.
The Ministry of Justice is to be commended for realising the vital importance of making sure that prisoners leave prison with a job to go to. This is a huge challenge and we are a long way from achieving it, but no longer is purposeful activity just to be about keeping prisoners occupied, worthwhile though that is. Work and training in prison needs to be related to getting and keeping a job on release. I welcome the focus on prison apprenticeships. I hope there will be more properly focused release on temporary licence, as its decline from 529,000 instances in 2013 to 333,000 in 2015 is a great concern.
It would be good to have an update on how the Government and the wider public sector are doing with the Ban the Box initiative. Companies such as Boots, Barclays, Carillion, Land Securities, Ricoh, Virgin Trains and many others are leading the way. We need other firms to join them, and we need to bring employers who are not as enlightened up to the mark.
I am very pleased that the Bill does not alter the statutory provision for chaplaincy set out in the Prison Act 1952. Chaplains play an extremely important role in prisons, and recent research on Catholic prisoners found that over 90% trusted their chaplain. The cost of accommodation for clergy can lead to vacancies, and I hope that Churches will look at shared appointments, making use of existing clergy housing, or indeed invest further in housing for this important ministry. I am also extremely grateful to the benefactor who, at no cost to the public purse, has provided thousands of copies of the “Doing HIS Time” devotional guide for prisoners. Chaplains should be aware of this excellent free resource, which I believe will have a significant impact in our prisons and beyond, given the clear links between rehabilitation and redemption.
Prisons will be successful in achieving rehabilitation and preventing reoffending only if we have an effective probation service that is working hand in hand with our prisons. I welcome the implementation of the key worker role in prisons to help bring this about, and I hope that the probation service will look at the inspiring examples of what can be done by initiatives such as Jobs, Friends & Houses in Blackpool. It is an initiative between Lancashire police and Blackpool Council that provides construction skills training, accommodation, employment and friendship, as well as strengthening the wellbeing of those it serves in very practical ways. I have explained the model to the chief constable and police and crime commissioner in Bedfordshire, as well as to senior judges in Luton, and I hope that they will be inspired to establish a similar initiative in my own county.
Victoria Prentis (Banbury) (Con)
It is an honour to follow the distinguished former prisons Minister, my hon. Friend the Member for South West Bedfordshire (Andrew Selous). Like him I would like to confine my remarks to part 1, but I am afraid that I am tempted by the presence of the Minister for Courts and Justice. With your permission, Mr Deputy Speaker, I would like to thank him for the very enjoyable hour I spent in his company last week piloting the excellent provisions of parts 2 and 4. During that hour, I was able to apply for divorce and probate, both of which, I am glad to say, were fictitious elements—my husband and parents should not be worried. It was a mercifully short, easy and painless application process, and one that is warmly to be welcomed. I commend him for all his work.
The Bill is a note of hope in the fairly dark places that are our prisons. It is very welcome in both its scope and content. I follow such a line of distinguished speakers that I would like to confine myself, if I can, to three points. The first is on rehabilitation.
Some 99% of prisoners are released, whether my hon. Friend the Member for Shipley (Philip Davies) approves or not. They are members of our communities, yet over 50% of released prisoners go on to commit further offences. It is in all our interests to break the cycle of reoffending and to do what we can to rehabilitate them. As the Lord Chancellor herself told us earlier, the only legislation we currently have to build on is the Prison Act 1952, which was consolidating piecemeal legislation that gives prisons one role and one role only: to hold those sentenced by the courts.
Truthfully, much good work has been done by those in the sector for many years to stop prisons simply warehousing offenders. It is still welcome, however, that the provisions included in clause 1 establish for the first time a much broader statutory purpose. It emphasises reforming and rehabilitating offenders, preparing prisoners for life outside prison, and maintaining an environment that is safe and secure. It is clear and unequivocal in its purpose, and provides a point of focus for all who work in the prison community. The Minister will have noted the considerable pressure from Members on both sides of the House during the course of the debate to incorporate mental health on the face of the Bill.
The provisions will be supplemented by new standards for governors. Increasing their autonomy is essential if we want genuine improvement. From my many conversations with the governor of HMP Bullingdon in my constituency, I know that giving him greater control, in particular over decisions on hiring staff, will in itself be transformative.
The Bill lays out clearly the Secretary of State’s personal accountability for the prison system. I was very interested to hear her exchange with my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve). My own experience of administrative law would lead me to believe that this will be justiciable, and my previous experience as a civil servant would encourage me to say that the Secretary of State is being brave—I mean that in a good way, rather than in a civil service way—in taking that power upon herself. Personally, I am very comfortable with judges considering whether a failing prison should be considered by the courts, but I welcome the fact that the Lord Chancellor is taking these powers upon herself for the very first time. It is real proof of how clearly she feels that this is important.
The Bill contains welcome requirements on the Lord Chancellor to respond to both the chief inspector and the ombudsman. Clause 1 adds to the remit of Her Majesty’s inspectorate of prisons, and—the Justice Committee has been calling for this for some years—puts the prisons and probation ombudsman on a statutory footing.
Secondly, the Bill introduces new powers to authorise public communications providers to disrupt the use of unlawful mobile phones in prisons. We know that in 2016 nearly 13,000 mobile phones and sim cards were found in prisons—almost double the number found three years previously. A recent Channel 4 documentary showed viewers how easily they can be brought in by visitors, who, for example, conceal them in Mars bars. The prevalence of mobile phones presents a real security risk by increasing the amount of organised crime that can be carried out daily in prisons. It is absolutely critical that we deal with this. The powers in the Bill will lead to real change.
Thirdly, alongside the increased use of mobile phones, we have seen a horrific rise in the use of new psychoactive substances. We do not have recorded incidents before 2015, but in 2015, there were 1,385 incidences of these drugs being used. Sadly, we do not have the updated figures, but we know that these drugs are everywhere in prisons. Indeed, many prisons have a drug freeway, and we can assume that the rest of the prison is not drug free.
NPSs present a real problem and have led to a significant deterioration of behaviour in prisons, as recent unrest has shown. These drugs make prisoners both more aggressive, and thus a threat to others, and depressed, which amounts to a real threat to themselves. The safety of our prison officers is essential, but NPSs are making that increasingly more difficult to ensure. Prison officers need the power to test for these drugs as well as for any new ones that we subsequently identify. I welcome the provision in the Bill to do exactly that. No longer will secondary legislation be needed to rush to keep up with new drugs as they appear.
I am aware from my conversations with her that the Lord Chancellor wants to go down in history as a strong prison reformer. I am looking forward, as are my colleagues on the Justice Committee, to seeing real change in prisons under her stewardship.
Amanda Solloway (Derby North) (Con)
It is a great pleasure to speak in this debate, and I intend to focus on part 1, too. As stated in clause 1, we should aim to
“protect the public…reform and rehabilitate offenders…prepare prisoners for life outside prison, and…maintain an environment that is safe and secure.”
I am pleased to sit on the Joint Committee on Human Rights under the excellent chairmanship of the right hon. and learned Member for Camberwell and Peckham (Ms Harman). I have been appointed within the Committee to the role of rapporteur on mental health, and our first inquiry has been into self-inflicted deaths in prisons, based on the Harris report of 2015. In common with others, I have been conscious of previous reports such as the Woolf report of 1991, the Corston report of 2007 on women in prison and, more recently, the Harris report of 2015 on suicide among young prisoners. There are merits in all those excellent reports, which have been welcomed, yet find more people are still taking their own lives in prison—12 women and 107 men in the last year alone.
I have visited many prisons in my role, and the first point to note is that prisons should be and are places of punishment. They do, however, have their challenges and responsibilities when it comes to human rights, so I would like to explore a few of those.
To me, strong leadership is vital, because good practice needs to come from the top and cascade throughout the system. I welcome, of course, the proposed increase in the number of prison officers, because it is undeniable that the system is stretched. We must therefore make sure that the new officers get proper training, and we should also consider existing officers, who might have become demoralised in their work. We should ensure that they, too, are aware of and adhere to the new standards, while being fully supported and trained in the new expectations. This will necessitate a culture change—a change of attitude and behaviour—which requires investment across the board, not just to increase staff levels.
Let me provide a simple example that has nothing to do with money, just good practice. We heard evidence that in one prison an orange file was used if prisoners were suspected of having a mental health issue. Of course no one wants to be branded as having such issues, so prisoners are reluctant to seek medical help in case others see them with the orange folder. With a little forethought, a simple solution arose relating to good practice. Why not use a file the same colour as all the others? It would be no extra cost, but would deal sensitively with the prisoner’s needs.
On my first visit to a prison, I was struck by the amount of banging on doors in cells. At one point, it became unbearably loud with a prisoner striking the wall and door with his chair and shouting at the top of his voice. What really concerned me, though, was that the cell was shared. Imagine being the person who had to share a cell with someone who was kicking off like that. Imagine the impact that would have on your own wellbeing.
At the time I asked a prison officer what the problem was, and was told that the yard time had been stopped because of the weather. When I asked how often that happened, I was told that it happened a lot, and that some prisoners would kick off at night, waking the whole floor. As a result, no one would get any sleep, and the next day they would all be irritable. The problem just goes on. We must ensure that enough exercise and association time is provided, and that the time in the cell is not excessive. I welcome the fact that an increase in the number of prison officers will make that possible, but please, please, we must consider time outside the cell even if it is raining, because the frustration and anger are evident if that is not allowed.
A great deal needs to be done. I welcome the Bill’s aim of reforming and rehabilitating offenders, but let us not underestimate the challenge of the culture that exists in prisons. Let us not deny that drugs are available, that there is a workforce that needs to be reinvigorated, that a gang culture exists, and that for some prisoners prison is just a way of life.
Dr Wollaston
My hon. Friend is making some compelling points. Given that suicide rates are higher than they have been since records began in the late 1970s, does she agree that the best way of addressing the many important problems that she has raised would be to include in the Bill the mental and physical health needs of prisoners as part of the purpose of prison?
Amanda Solloway
I thank my hon. Friend for her comments. I am about to make some further suggestions.
I have heard accounts of returners walking through the doors, winking at the officers. and saying, “Ay up guv, it’s me again.” However, I have also heard harrowing stories of prisoners with mental health issues and learning disabilities who had absolutely no idea why they were there. Of course, people find themselves in prison with mental health issues for several different reasons. The condition may be triggered by the use of new psychotic substances, there may be an existing addiction to drugs or alcohol, or there may be existing but unidentified mental health issues. There is increasing evidence that veterans are entering the prison system with mental health issues, often with too much pride to admit there is a problem, and ultimately taking their own lives. Organisations such Care after Combat are working to tackle that, but we need to identify it before such tragedies occur, and educate officers and others.
We must ensure that a mental health assessment is carried out thoroughly on arrival, and is subsequently ongoing; that we have good, strong leadership; that we increase our investment in people, resources and training; that existing officers are reinvigorated and trained; that exercise time and association time are always guaranteed; that departments work together with, perhaps, a key worker to bring them together; that families are involved—they need to be involved, and indeed they have to be; and that the time between determination of a mental illness and transfer to a mental health hospital is as brief as possible.
I could speak for much longer, but let me end by saying that at the heart of this issue are people like Dean Saunders. He was not a hardened criminal. His family did not know what to expect from prison, but they knew that Dean had mental health issues. When he was admitted, he was denied treatment. In the words of his mother,
“He was in there for two and half weeks with no medication, no support, and no family support. They took all his rights away, everything”.
Dean had previously tried to take his own life at home. His mother said:
“We fought and saved him that night at home, but part of us wishes we hadn’t, because all we did was to get him locked away for two and a half weeks on his own, with no support and no family contact. He just suffered for two and a half weeks until they let him do it again. At least if he had done it at home we would have been with him.”
I welcome these reforms, because we need them. Instead of just talking about what we should do, we must actually do something.
Kit Malthouse (North West Hampshire) (Con)
Mr Deputy Speaker, I am learning to love my place in the pecking order in this building: first, because I get to hear splendid debates such as this one in their entirety, and in particular the thoughtful and moving speech of my hon. Friend the Member for Derby North (Amanda Solloway); and, secondly, because by my maths, I have an hour in which to speak—[Interruption.] Oh, dear; well, perhaps half an hour. I hope that Members are all sitting comfortably.
Four years as deputy mayor for policing taught me everything I needed to know about the dreary cycle of despair that our criminal justice system had become. The endless merry-go-round of the same people going through the hands of the same organisations year in, year out turned me into a “convicted” penal reformer, so I am extremely pleased to welcome the Bill.
My four years at City Hall left me broadly with two frustrations, which I will share with Members because I think that they have some bearing on the Bill. The first is that while there have been attempts at rehabilitation in the criminal justice system—presumably not as ambitious as the proposals of my right hon. Friend the Lord Chancellor—too often the effort and money were spread far too thinly. The jam in a finite world was spread very thinly across the youth estate and the adult estate to the extent that the marginal difference that the funding or any programme might make was hardly noticeable. The research into rehabilitation programmes attempted in the criminal justice system over the past 30 years shows that not many of them have made a difference above 2% or 3%, and much of that has often been explained away by the characteristics of the people they have been dealing with. While this Bill is extremely welcome and I approve wholeheartedly of the bias towards rehabilitation in part 1, and although I know that much of the radicalism of the Lord Chancellor’s programme is in the White Paper, I urge her to think carefully about where she puts her resources.
In my view, the earlier we spend the money, the better. We get much more bang for our buck by spending money on offenders aged between 18 and 25 than, sadly, by spending on somebody over 25. The truth about crime is that generally people either grow out of it or become habituated in it. That is why the bulk of offenders tend to be under 25, hence that is where we should be spending the money. If we had endless sums, we would obviously spread the money, but we do not, so I urge the Lord Chancellor to spend it in the way I propose.
My second frustration was the paltry sentences that were often handed out for very serious crimes. Individuals in London who were convicted of quite serious non-fatal stabbings would be given four years and then would be out after 24 months. That really is a disgrace and, as we learned in London, such a sentence is certainly not a significant deterrent to the commission of those kinds of crimes. The truth is that people were being given those sentences and let out that early because of the pressure on the system and the numbers in it. Time and again I would get the message back that the police and the Crown Prosecution Service were nervous about putting cases in front of the courts because of the pressure on prisons, and often because the youth estate was struggling to take the people it should be taking, particularly given that it often had to separate individuals because of gang affiliations.
That means that we need to clear out some space. In short, my view is that we are locking up far too many of the wrong people, but not locking up the right people for long enough. Lots of clever, smart technology-based disposals are available these days for low-level offending, such as tagging and testing. We should be pushing hard and much more enthusiastically to put those measures into effect in this country so that we can clear space in our prisons, meaning that longer sentences can be served by those convicted of serious offences, particularly violent crime.
On part 2 of the Bill—the courts section—I welcome the reforms, and particularly the use of technology, because we know that there are broadly two deterrents to committing crime: first, the probability of getting caught, which is down to the skill of the police; and, secondly, the certainty and swiftness of sentencing. Criminals who are caught and then put before the courts swiftly, and who are certain in the knowledge that they will be convicted and of what their sentences will be, are much more likely to be deterred. Anything that brings about swift and certain justice is therefore to be welcomed.
Overall the Bill is heading in the right direction, but there are three areas in which I would like the Secretary of State to consider welcoming amendments from me. The first is about the probation service. I have long held the view that we will make very little progress on the rehabilitation of offenders outside prison until the police get involved. For my money, probation should be an arm of policing. Offender management in the community should be done by the police. That would be more effective, because they have personnel in those communities 24 hours a day, and they are already monitoring many of the offenders.
Such a change would also yield enormous savings. At the moment, there are double estates, double chief executives and double HR departments, and all the people—probation officers and police officers—are often sitting in the same meeting talking about the same individual. Giving the probation service to the police and letting them manage offenders in the way they are supposed to be managed would be a huge step forward. Let us consider the health service. If we separated GPs into a different department from hospitals, everyone would think we were mad, yet we put the police and the management of criminals coming out of the secure estate into different departments. Bringing probation back would be an enormous improvement. It would signal a step change in offender management on the streets that would make a huge difference, and it would also save money.
The two other amendments are of less significance, but they might help the Lord Chancellor with her budget. The first is to do with coroners courts. I do not know how she voted on this matter, but I am a proponent of assisted dying. I have supported it for a long time, and I think it is the next great liberal cause for this country. However, there is a wrinkle in the law that causes unnecessary distress to those who travel overseas for the purpose of seeking assistance to take their own life. At the moment, if the family of the deceased return from Switzerland with their ashes, there is no inquest and they can scatter them in privacy. If, however, they wish to repatriate the body of the deceased, the coroner has an obligation to open an inquest because the death is deemed to be uncertain. There might well be an autopsy, and a criminal investigation would follow, although a prosecution would not, because the Crown Prosecution Service has already given guidance that it will not pursue the prosecution of people who have travelled overseas for the purpose of assisted suicide.
An amendment to the Bill allowing coroners the same discretion as they have in this country for those kinds of deaths, if they were satisfied of the purpose for the individual travelling overseas, would allow people to bring the body back for burial in the UK. That would save the coroners courts time and money, because several hundred people have now been involved in such cases, and it would also avoid enormous distress for families who naturally want to fulfil the wishes of the deceased, but fear an inquest and prosecution, and therefore opt for cremation overseas. Such a provision would be a small adjustment to remove an inconsistency in the law relating to prosecution by the CPS and what coroners are obliged to do, and it would relieve a huge amount of distress.
The third amendment that I hope the Lord Chancellor will consider relates to charging for alcohol and drugs testing. She might be aware that, some years ago, I managed from outside this place to get alcohol abstinence orders on to the statute book. There was a huge battle in this House and the House of Lords, but in the end we beat the then Lord Chancellor, my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), who objected to people convicted of alcohol-related offences being compelled to be sober for three or six months. Anyway, we got this on to the statute book, but the Government would not agree to offenders being charged for their testing.
In similar schemes overseas, offenders are charged for their testing. In the US, for example, they pay $1 a test—about £1 a test—and that changes the psychology involved. It means that offenders who undergo testing of their sweat, urine or breath take more responsibility for their own sobriety. They are investing in their own freedom. By undergoing the testing, they are avoiding a prison sentence, which means that they can maintain contact with their families and keep their jobs, but they have to remain sober for three or six months. Having to invest a small amount in those tests means that, psychologically, they are taking responsibility for them, and it also means that the scheme is self-funding. Under such a system, police and crime commissioners, who have not taken up this disposal with alacrity, despite the fantastic results when it was tried in Croydon, would have the business case to do so, because it would be a source of funding for them.
Dr Wollaston
Does my hon. Friend agree that the immediacy of consequences has contributed to the success of such schemes overseas? In other words, if someone fails a test, they are immediately taken back into custody.
Kit Malthouse
My hon. Friend is absolutely right. When I was at City Hall, we found that this disposal had taken off like wildfire in South Dakota—the judges loved it; it was enormously effective; recidivism rates were incredibly low; and the compliance percentage rates were up in the high 90s. This is all based on the notion that justice is swift and certain if an offender contravenes the rules of the scheme, and that offenders take responsibility for their own punishment and feel invested in it. Every time they reach for a drink, they have to decide whether they want to stay out of prison. As a result, the disposal has been enormously successful and is spreading across the entire United States. We have the power here; it just needs the small adjustment of allowing the police or courts to charge offenders a nominal amount for testing—money that they were spending on booze or drugs—which would allow them to invest in their own rehabilitation and therefore make some progress.
I welcome the Bill. It is a refreshing step in the right direction of breaking the dreadful merry-go-round with which I lived for far too long.
Richard Arkless (Dumfries and Galloway) (SNP)
I refer the House to my entry in the Register of Members’ Financial Interests: I am a non-practising solicitor, qualified in England and Wales, and in Scotland. I start by paying tribute to the people on the frontline of what some describe as a prison crisis—that is perhaps not the terminology that I would use in front of the Lord Chancellor. Our frontline prison officers have had to deal with the brunt of much of the under-resourcing, the psychoactive substances, and the violence in prisons. Everyone on both sides of the House should make it abundantly clear that we owe them a sincere debt of gratitude. As we go through the recruitment and upscaling processes, I hope that they will start to feel more wanted in their jobs, which will be crucial in allowing them to help us to develop a more rehabilitative society.
I will touch on a few of the contributions made in this excellent debate before I refer to one or two aspects of the Bill that are of interest to SNP Members. The Back-Bench contributions were kicked off admirably by the Chair of the Justice Committee, the hon. Member for Bromley and Chislehurst (Robert Neill), a gentleman I have grown very fond of in my less than two years in this House. When a Tory Chair of the Justice Committee is telling a Tory Front-Bench team that the situation is grim, we should all listen, but the hon. Gentleman’s tone was constructive, as always. He described some of the more progressive measures in the White Paper and the Bill as radical Tory proposals. I thought that they were moving in the other direction—towards progression—but nevertheless I completely take his point.
The hon. Gentleman also succinctly hit on a real political problem in prison reform: the climate of public opinion. There is a notion that it is unpopular to say—or that this implies that we are somehow soft on crime—that we are motivated to ensure that prisoners receive funding, rehabilitation and life advice when they come out so that they do not do the things that got them inside in the first place. If the Lord Chancellor is willing to take up that battle, she will get great praise from me. That is not an easy political decision to make, and I wish her all the best in fighting that political climate. If she can change it, I will be a fan.
My friend, in the sincerest form of the word, the right hon. Member for Delyn (Mr Hanson) outlined with his usual great clarity the statistics that corroborate the Chair of the Justice Committee’s assertion that the position is grim. He struck an excellent tone and was very constructive, which does not belie at all his two years as a prisons Minister. He made the point, as did the hon. Member for Leeds East (Richard Burgon), that just because we think that elements of the Bill could be improved, that does not necessarily mean that we do not agree with its general thrust. I can say on behalf of my party that we welcome, for the most part, the measures in the Bill.
The hon. Member for Stretford and Urmston (Kate Green), my fellow member of the Justice Committee, tackled one of the most difficult issues head on. She, unlike many, was willing to address the subject of prisoner numbers. Although we can beef up recruitment and beef up the number of prison officers, I agree that we should perhaps consider ways of not filling our prisons with people who are there needlessly. She spoke with great passion about the situation of women and those with mental illness, and I agree that there are so many people in prisons who should not be there and for whom it is not the right place to be rehabilitated. She is brave, and should be commended, for striking that tone.
The right hon. and learned Member for Harborough (Sir Edward Garnier), who is no longer in his place, made an excellent economic and moral case for our prisons being rehabilitative institutions. He said that the principles contained in the Bill are laudable, but he said that there is a difference between those principles and action to drive them through the operation of the prison estate. We will all have to face that challenge.
The hon. Member for Bridgend (Mrs Moon) is just retaking her place. If any Member did not hear her speech, I suggest that they look it up with haste. Her speech was incredible. She spoke of 69% of prisoners at Parc prison in Bridgend having regular family contact, with a 10% reoffending rate, as well as many other statistics. I propose to the Lord Chancellor that we scrap this Bill and devolve prison estate management in its entirety across these islands to the offices of the hon. Member for Bridgend. If we can do across the United Kingdom what Parc is doing, we will have made enormous progress in making our prison estate fit for purpose.
Perhaps the hon. Member for Shipley (Philip Davies) should visit Parc prison, which would be an incredibly enlightening experience. I would pay serious money to be a fly on the wall during that visit. He made a typically robust yet unusually brief contribution and, to be fair, parts of his speech were more balanced than perhaps his reputation would dictate. When he talks about those who assault prison officers being denied early release, it is very difficult to disagree with him. He does not say much with which I agree, but it is difficult to disagree with him on that. Our prison officers face the brunt of the consequences of austerity, as I would describe it, and should they face the brunt of this, too? They deserve more protection, and his proposal would certainly have my ear if it could provide that protection.
Finally, like my colleague and friend from the Justice Committee, the hon. Member for Banbury (Victoria Prentis), I pay tribute to the Minister for Courts and Justice for the interesting and comprehensive one-hour pilot of the digital scheme before the Committee last week. Like the hon. Lady, I was able to apply for divorce and issue an astronomical money claim to my wife at the flick of a button—I am sure everyone, not least my wife, will be delighted to learn that it was fictitious. One thing that occurred to me—[Interruption.] Perhaps the Minister will give me a wee bit of attention so that I can describe it to him.
There seems to be an opportunity relating to costs within the digital construction of case management files online—the legal profession will not thank me for saying that. One of the huge criticisms of the legal profession is that its costs can be inflated, but if we have a digital system in which we can see, step by step, what has happened in each and every case, it might act as a skeleton on which to base standard assessments for costs. The legal profession will not be delighted that I say that, but it strikes me as sensible to have that framework in place. If reduced costs are a consequence of digitising the courts system, I will be very pleased.
Part 1 of the Bill establishes a statutory purpose for prisons, with principles that should guide our administration of the prison estate, but the real issue in prisons, and it is not addressed in the Bill for understandable reasons, is the lack of resource and lack of staff. The Government are rightly embarking on a campaign to recruit 2,500 net new officers to the prison estate. I have heard various figures for what the gross figure would have to be to get to that net figure. It is somewhere between 4,000, as I think the Government have said, and closer to 8,000, as I have heard the hon. Member for Leeds East say on TV. I would like to know how we are getting on with that recruitment drive. I was intrigued yet worried to hear a statement from the Lord Chancellor in her opening speech, although I am sure it was erroneous, about the progress being made in the 10 prisons we have identified for additional staffing resource. Contrary to that position, we received a letter from the prisons Minister outlining that as at 31 December, six months into the recruitment drive, four of those prisons had lower staff numbers than they had six months before—High Down, Rochester, Hewell, and Wandsworth. In defence of Ministers, let me say that that position may well have been superseded in the 10 weeks that followed, but if that is the case I would be grateful for some clarity on it. I, as much as anybody, want these resources to be beefed up so that we can do the job properly.
One prison where things were static at the end of last year was Wandsworth, which I was lucky enough to visit with the Justice Committee slightly before this recruitment drive started. We did not need to spend long there before we became acutely aware of what the problems were. We had meetings with representatives of the inmates and of the officers, and when 15 convicted criminals are telling us, “We need more prison officers”, that is worth listening to. Clearly many people would think it would not be in these prisoners’ interests to have more prison officers, but these prisoners were being locked in their cell for 23 out of 24 hours and not getting visits. Their natural frustration at that was building up to cause many of the problems we have seen over the past few months.
I asked a question in the House a few weeks ago about the existing staff, because although it is clearly sensible to recruit more staff, we must consider what happens to the existing staff. Part of the estate has had a pay rise, but I ask the Lord Chancellor and the Ministers to consider what that does to the morale of the rest of the estate. The current discontent is not confined to certain prisons—it goes across the board entirely—so we must be very careful when we give incentives to one part of the prison officer population but not to others, as there may be a danger of exacerbating the problem. I say that all of them deserve a pay rise and all of them deserve their roles to be professionalised. It would be great to be updated on progress on that.
One point about prison numbers that I have not heard mentioned today but which is worth mentioning, because it has been raised by the Prison Governors Association, is that prisons have 500 fewer governors than they did seven years ago, as well as 7,000 fewer staff. Parts of the Bill rightly place more responsibility on governors. We have heard lots about the recruitment drive for officers and staff, but nothing about the recruitment drive for governors. Is there a drive to secure more governors, given the extra responsibility that this Bill will rightly bestow upon them?
The Bill extends to Scotland in the sense that it will create a framework for the reserved tribunals remaining in Scotland, and for the most part that means the immigration detention centres and tribunals we have in Scotland. In that context, we welcome these proposals, but Scotland is a smaller jurisdiction and we do not have the same claims management culture that seems to prevail in England and Wales. We have not had the same problem in our prisons that England and Wales has had, but it is not in our interests for the situation there to continue to be exacerbated, and we wish the ministerial team all the best in dealing with it.
In Scotland, Her Majesty’s chief inspector of prisons for Scotland is responsible for the monitoring of Scotland’s 15 prisons, and during 2016 the inspection found that Scotland fulfils its responsibilities to a high degree. The Scottish Prison Service has a bold and ambitious vision to unlock the potential of everyone in prison and transform their lives. Its stated intention is:
“Providing services that help to transform the lives of people in our care so they can fulfil their potential and become responsible citizens.”
Given the contributions I have heard today, I believe most people will agree with that. I have also had the privilege of visiting Dumfries prison in my constituency, and I cannot emphasise enough the difference between what I saw at Wandsworth and what I saw at Dumfries. Dumfries prison does not have the category of dangerous prisoners or the population that Wandsworth prison has, but it is sufficiently resourced and all the staff there are completely motivated to transform the lives of the prisoners. I can only describe the prison officers at Wandsworth as ashen-faced. It was as if they had lost hope. The Justice Committee was there with them, but they did not see it as an avenue for change. They felt they were in a hopeless situation. I know, though, that Ministers acknowledge that.
The Scottish National party does not agree with the principle of private prisons, which we think are for profit and not for public safety. The Justice Committee has heard evidence from the governors of private and public prisons, and I have been struck by the differences. The governors of private prisons are bound by contracts and are not motivated in the slightest to come before the Committee and explain that they are having problems.
Andrew Selous
I am not sure whether the hon. Gentleman is aware, but the prison he has just praised to the rooftops is privately run by G4S.
Richard Arkless
I was not aware of that, but it seems like my friend the hon. Member for Bridgend and her constituency team are running that prison, not G4S. I doubt whether such enlightened and progressive policies would have come from the G4S boardroom; they are much more likely to have come from the hon. Lady. I do not seek to be contentious, though, and if that is the case, I stand to be corrected. I have suggested that the Justice Committee examine the effectiveness of private prisons vis-à-vis the public sector, because it is a legitimate question. If the hon. Gentleman is correct and I am mistaken in my view, such an inquiry will bring out the details. I look forward to the point at which we can have a reasonable, constructive, politics-free discussion.
Michael Tomlinson
As the hon. Gentleman has heard from the former Justice Minister, my hon. Friend the Member for South West Bedfordshire (Andrew Selous), that it is indeed a private prison—the hon. Member for Bridgend (Mrs Moon) may well confirm it in her own words—will he reconsider his party’s position?
Richard Arkless
It is not for me to reconsider my party’s position; I am merely a foot soldier of my party’s movement. However, I will say that we will be led by the evidence. If the evidence from any future inquiry into public and private prisons gives me a different impression, I will of course be led by the evidence, not the politics, which the hon. Gentleman is clearly being led by.
Mrs Moon
I thank the hon. Gentleman, whom I consider my friend, for giving way. I suggest that the Justice Committee does visit Parc prison, because the leadership from the director there is essential. These things work only with leadership, quality staff, a whole organisational approach and a commitment to change. I am sure the Chair of the Select Committee would be delighted at what he finds there. I must admit that my staff and I can take no responsibility for the wonderful work there; we can only support it.
Richard Arkless
I reciprocate the hon. Lady’s views on our friendship, for various reasons. I would of course be delighted if the Chair of the Select Committee agreed to visit Parc prison, and I would be even more delighted if the hon. Member for Shipley was with us so that I could take photographs of his ever-changing complexion as he saw the progressive benefits.
Philip Davies
I have visited lots of prisons, and the hon. Gentleman might be surprised to hear that one of my favourite visits was to Grendon prison in the Speaker’s constituency. It is a therapeutic prison, and I was most impressed on my visit there. One of the things I learned was that all the things about being in prison that we would find terrible, most prisoners find easy, and most things that we would find easy, most prisoners find difficult. That taught me—I hope others will take this on board—that we should look at prisons through the eyes of the prisoners, not from our particular perspectives on what might work and does not work in a prison.
Richard Arkless
When I hear interventions of that nature, I sometimes feel that the hon. Gentleman has cultivated an unfair reputation. As I said when I talked about his speech, he made some pragmatic points, and if there are elements of enlightenment about his thought process, I will of course welcome that, as we do on these Benches.
I am conscious that we want to hear from the Opposition spokesman and from the Minister, but I have one or two final points to make. The hon. Member for Stretford and Urmston touched on prisoner numbers. Scotland is not immune to having an inordinately high prison population. We do not hide from that fact, but we are committed to challenging the basis on which it arises and to examining the effectiveness of short sentences. We have had a presumption against short sentences and we are consulting on that further. We will be led by the evidence.
I was delighted to hear the Chairman of the Justice Committee, almost at the close of his remarks, very lightly touch on short sentences. Perhaps he and I can work in Committee on that matter, because the cycle of violence and reoffending is not assisted in any way, shape or form by young people going in and out prison for one, two or three months at a time. It does not achieve anything. Effective community payback orders, where those young people are in touch with the community, face the consequences of what has happened and deal with the other aspects of their behaviour would be a much more efficient process.
I am very conscious of the time. I will not touch on the other two or three parts of the Bill, because I am very keen to hear the Front-Bench speakers sum up the debate. I wish the Ministers and the Lord Chancellor well. If it is her ambition to be known as a great prison reformer, then this is a decent start. If she is determined to tackle the public perception myth, then I wish her all the very best in that endeavour.
Nick Thomas-Symonds (Torfaen) (Lab)
I refer at the outset to my relevant entry in the register as a non-practising barrister at Civitas Law.
I thank Members from all parts of the House for the quality of this debate on Second Reading. There is much in the Prisons and Courts Bill that the Opposition can support, not least the very welcome prohibition in the family courts of cross-examination of victims by alleged perpetrators—something that was raised in an urgent question only a couple of months ago by my hon. Friend the Member for Hove (Peter Kyle).
We welcome modernisation and innovation, but we will seek to amend this Bill in Committee to embed the principles of justice and fairness and to ensure that innovations come with safeguards and appropriate statutory reviews. Indeed, our approach to this Bill of holding the Government to account and of not giving them a blank cheque was summed up in the contributions of my hon. Friends on the Opposition Benches. I commend the work that is done by my right hon. and learned Friend the Member for Camberwell and Peckham (Ms Harman) in her chairing of the Joint Committee on Human Rights. She spoke very movingly about the problem of suicides in our prisons.
I commend my hon. Friend the Member for Halifax (Holly Lynch) for her campaign for protections for emergency workers, including for our prison officers, and for speaking up for local justice in Halifax—Halifax could have no finer voice speaking up for it than that of my hon. Friend.
I am grateful too to my hon. Friend the Member for Stretford and Urmston (Kate Green) who spoke very movingly about mental health in our prisons—something that has come up in a number of contributions this afternoon—and the excessive number of women in custody in 2017. I am also grateful to my right hon. Friend the Member for Delyn (Mr Hanson) who drew on his extensive experience. In particular, he highlighted the issue of prisoners in prisons far too far away from home.
I also commend my hon. Friend the Member for Bridgend (Mrs Moon) for her contribution. It was great to hear about Her Majesty’s Prison Parc and the charter mark that it has received. I am grateful, too, to my hon. Friend the Member for Wolverhampton South West (Rob Marris) who made a number of very useful and important interventions as the debate progressed.
With regard to the success of this Bill, it is difficult at times not to draw the conclusion that factors outside it will be at least as important, if not more important, than what is inside it. We are all in favour of rehabilitation and reducing the reoffending rate. The 2,500 extra prisoner officers are welcome, but they do not compensate for the 6,500 jobs that have been lost since 2010.
We are in favour of modernisation of our courts system, but the cuts to legal aid have meant that there are far more litigants in person within our courts system. Similarly, there are measures on employment tribunals in this Bill, but they do nothing to take away the ideological vandalism of the employment tribunal fees that were introduced in 2013. We welcome online courts, but they should not be at the expense of local justice; they should be a complement to it. In relation to the measures on small claims, I never thought that I would find myself at this Dispatch Box agreeing with the hon. Member for Bury North (Mr Nuttall), but he was entirely right when he said that if we want to tackle fraudulent claims, the way to do it is not to penalise everybody who brings legitimate claims.
We will judge the Bill on whether it will actually deliver. Prisons are its centrepiece, and we know of the problems of violence, overcrowding, drugs and the shortage of prison officers, which the Government have to tackle. The Lord Chancellor, in her opening remarks, talked about turning the situation around, but I remind Conservative Members that their party has been in power for seven years.
I have a confession to make: I have been reading the memoirs of the right hon. and learned Member for Rushcliffe (Mr Clarke). I was interested in what he says about his time as Justice Secretary. He says that when the Conservatives came into power in coalition in 2010, he consulted the Conservative party website to find what its justice policy was, but was somewhat disappointed to find that it was based on
“trying to respond to the various campaigns in the tabloid press”.
He added:
“Thereafter I did not consult my party’s website again.”
That is probably good advice for the Ministers on the Treasury Bench tonight. The right hon. and learned Gentleman said of his successor:
“When Chris Grayling took over from me as Justice Secretary, he was not at all interested in reforming the prison system in a liberal direction, nor in reducing the prison population.”
Nick Thomas-Symonds
I will come to the hon. Member for Shipley later. The right hon. and learned Gentleman continued:
“Inevitably, therefore, he had to return to seek more savings from the legal aid system. He revived the disastrous proposals for criminal legal aid, which dragged him into prolonged and unsuccessful controversy during much of his term of office”.
I entirely agree that the criminal legal aid changes were disastrous. Those cuts have produced a false economy, because of the proliferation of litigants in person in our courts. That, in turn, puts the success of measures such as live and virtual courts at risk, because one of the risks in that situation is that the person appearing in court is not able to follow or understand the hearing. That might be a challenge in a virtual court with a lawyer present; it is an even greater challenge where there are litigants in person. The Government have to be clear and careful that virtual courts are managed properly and do not end up costing more money than they save.
Similarly, I place on record a note of caution about the idea of online guilty pleas. Although I can see an argument in favour for very simple offences, such as motoring offences that are readily understood, the defendant must know and understand their right to legal advice and understand too their right to challenge the charge. An online plea removes the opportunity that sometimes comes later in prosecutions before the courts when different charges are ultimately pursued by the Crown Prosecution Service. Nor must online guilty pleas be the thin end of the wedge to extend them to far more complex offences. Finally on online courts, we must never lose sight of the fact that we must have a criminal justice system that is open and visible to the public.
Nowhere is the problem of what is not in the Bill summed up more clearly than in the iniquitous employment tribunal fees, which with issue fee and hearing fee can reach £1,200. If someone has been subjected to discrimination or unfair dismissal, such a fee will be extremely hard to find. Early in the debate, Members discussed the effect that the fees have had, but I will quote the report of the Select Committee on Justice. Incidentally, I commend the work of its Chair, the hon. Member for Bromley and Chislehurst (Robert Neill), who makes such an important contribution to our debates on justice matters. After the introduction of the fees in July 3013, there was
“an undisputed and precipitate drop in the number of cases brought, approaching 70%”.
The Minister made a point about conciliation when intervening on my hon. Friend the Member for Leeds East (Richard Burgon). Well, let me quote the Justice Committee:
“We heard a considerable amount of evidence that, far from encouraging early conciliation and resolution of disputes, employment tribunal fees were having precisely the opposite effect, because there was no incentive for an employer to settle in cases where the claimant might have difficulty raising the fee.”
Therein lies the crux of the problem.
I heard many erudite contributions from the Government Benches, but the one that will really reverberate on employment tribunal fees is the one made by the hon. Member for Huntingdon (Mr Djanogly), who, when my hon. Friend the Member for Leeds East talked about the need to abolish these fees, said that that would encourage something for nothing. Let me say quite openly that someone who has suffered discrimination at work or been subject to an unfair dismissal does not seek something for nothing. They seek access to justice and to assert their legal rights.
Mr Djanogly
The hon. Gentleman must tell me for which other type of application people do not pay a fee. Why is it only employment tribunals for which he does not want fees to be paid?
Nick Thomas-Symonds
Because these are the very people who do not have the money to bring their cases. The hon. Gentleman is so far from reality. With the greatest of respect, although he did make some useful contributions in his speech, he is in a hole when it comes to this issue, so I suggest that he stops digging. His contribution really gets no better with the number of remarks he makes.
The final parts of the Bill are on whiplash claims. I have already said that I agree with the hon. Member for Bury North that the way to deal with fraud is not to increase the small claims track limit in this way. On whiplash, as on everything else, we will judge the Bill and look to amend it in Committee based on what it does for access to justice. That is the central principle on which it must be judged.
The Minister for Courts and Justice (Sir Oliver Heald)
We have had an excellent debate this evening. I congratulate this very esteemed and experienced group of speakers: the Chair of the Select Committee, my hon. Friend the Member for Bromley and Chislehurst (Robert Neill); former Justice Minister, my hon. Friend the Member for Huntingdon (Mr Djanogly); my hon. Friend the Member for North West Cambridgeshire (Mr Vara), another successful colleague who actually had my job; my right hon. and learned Friend the Member for Harborough (Sir Edward Garnier), who did this as a shadow Minister; my hon. Friend the Member for North West Norfolk (Sir Henry Bellingham), who has been a Minister in the Department; and former prisons Minister, my hon. Friend the Member for South West Bedfordshire (Andrew Selous). I also congratulate my hon. Friends the Members for Banbury (Victoria Prentis), for Derby North (Amanda Solloway), for North West Hampshire (Kit Malthouse) and for Mid Dorset and North Poole (Michael Tomlinson), who all made excellent contributions. I will comment on some of the other speeches, which were generally very thoughtful. It is obvious that there is a good deal of support for the Bill.
As the Secretary of State outlined at the beginning of the debate, these are vital provisions if we are to make the justice system fit for the 21st century. We are talking about a major reform of prisons, and an important set of changes to the law on the courts that will underpin the transformation programme that is going on at the moment and has the support of the senior judiciary. I pay tribute to those who work in our prisons, courts and the wider justice system. Their commitment to public service and care of the most vulnerable in society is inspiring, and I know that many of them will be following the Bill, which means a lot for their work.
Before addressing some specific matters, I want to clarify how the Bill does some important things and does not do some things that might have been suggested. The provisions in the Bill mean better access to justice and the simpler resolution of cases for people. It is important to reiterate that the Bill has been prepared with extensive user testing and consultation with those affected by the measures. Access to justice will not be compromised by the Bill. Sacred principles of open justice and the rule of law will be protected in a modern system that reflects how people access public services in the 21st century.
A good deal was said in support of the idea of having the statutory purpose of prisons in the Bill—for the first time, it is about not just housing the prisoner, but having to keep the person and the public safe, carrying out reform and rehabilitation, and preparing people for a life outside prison. That new framework is there, and everything follows from it: governors’ contracts, the information that is spread about best practice, and training. As the right hon. and learned Member for Camberwell and Peckham (Ms Harman) said in her very thoughtful speech, it is also important to prepare the prisoner for release. Other Members, including the hon. Member for Bridgend (Mrs Moon), referred to the importance of the family and accommodation. Those things are there in the purpose in the Bill, so when we talk about the reform and rehabilitation of offenders, we are talking about tackling their mental health needs. When we talk about preparing prisoners for life outside prison, we are talking about housing, accommodation and good contacts with their family. Those things are all in the Bill, but the right hon. and learned Lady—
Neil Carmichael (Stroud) (Con)
Will my right hon. and learned Friend give way?
Sir Oliver Heald
I have not got much time, I am afraid.
I think the right hon. and learned Lady made the point that we might want to see whether there was a solution in secondary legislation, as well as in primary legislation, that might address some of the important points she raised. Of course, the prison rules are secondary legislation, and they already contain a lot of detail about the way in which prisoners should be treated. So it is possible to look at those issues, and I will certainly do that.
The hon. Member for Stretford and Urmston (Kate Green) mentioned the Prison Reform Trust and its suggestion that we should add fairness and decency to the statutory purpose. It is right that those are important considerations in running prisons, but we need to remember that there is already an interlacing of legal obligations that apply in prisons. The right hon. and learned Member for Camberwell and Peckham, with her background in the Joint Committee on Human Rights, mentioned that there are basic human rights—articles 2, 3 and 8—that apply to the way in which prisoners are treated. There is health and safety legislation. There is the duty of care that comes through the law of tort. So it would be wrong to think that there is not protection already, but this is certainly something we can examine further in Committee. I would like to pay tribute to my hon. Friend the Member for Derby North, who has done so much as the rapporteur for the JCHR on the issue of deaths in prison.
My right hon. and learned Friend the Member for Harborough and others asked what happens if a prison does not meet the purpose set out in law. The purpose of prisons is in the Bill, and it is underpinned by the inspectorate’s duty to inspect against the purpose and the aims. It is also protected by the Secretary of State having to respond. I would not say that it is impossible that a case could be mounted for judicial review—to even say that is to press the case too far—but I think it would only be in a case where an individual prison totally ignored or disregarded the purpose, or something of that sort, that it would be grounded. Possibly, these things could also be considered as a factor in another case, where other aspects were being raised.
The right hon. Member for Delyn (Mr Hanson) asked about the update on HMIP’s protocol with the MOJ, and I pay tribute to his experience in this area. Earlier this year, a draft protocol was shared with the Justice Committee and other bodies. The final protocol will be available very shortly, and I can promise that it will be there before the Committee stage. [Interruption.] Very shortly—imminently.
I could say a lot about family engagement, and the Farmer review looks very much at it. It is well understood that maintaining family relationships is a key element in trying to set prisoners on the straight and narrow and that it is very important in rehabilitation.
The hon. Member for Leeds East (Richard Burgon) asked about the time limits for responding to inspection reports. Action will be taken from day one of an urgent notification by the chief inspector, so immediate energy will be brought to bear. Twenty-eight days is the appropriate period in a really urgent case of that sort. On the Law Society’s concerns about safeguards for online conviction, defenders must opt in to the new procedure, and proper warnings will be available making it clear that if a defendant wants to challenge the case in any way—for example, if they want to argue that time to pay is needed for a financial penalty or that the penalty should be lower because of means or circumstances—then all these things will be made clear. The Bill also provides that in the event of a mistake made, for whatever reason, it will be possible to set aside the conviction or the sentence in order to have the matter dealt with in the traditional way. I am sure that we will discuss this more in Committee, but certainly the idea is to have those protections in place.
My hon. Friend the Member for Huntingdon asked about successful prosecutions of fraud cases in relation to whiplash. The insurance industry data show that in 2015 there were 70,000 cases of insurance fraud worth £800 million. The City of London police insurance fraud enforcement department has secured over 200 prosecutions in the past four years, resulting in over 100 years’ worth of jail time for insurance fraudsters. A lot of action is being taken on this.
On whiplash more generally, the Government note that over a 10-year period when we have seen the number of road traffic accidents falling and car safety improving, we have had a more than 50% increase in the number of whiplash-related cases. These cases are obviously exaggerated to some extent, and perhaps fraudulent. No Government could ignore these sorts of statistics and not take action. We have not taken extreme options but gone for moderate options such as a tariff of damages for the very minor cases. The tariff does not apply in a serious case of whiplash where the damages would be substantial—it is for cases where the pain and suffering lasts less than two years and is of a minor nature. Against that background, such a tariff is surely a reasonable approach. If there is any element of exceptionality in these cases, then there is a provision to uplift. We say that this approach is proportionate to the scale of the problem.
My hon. Friend the Member for Shipley (Philip Davies) talked about violence against prison officers. I do not totally agree with him about this. I think that if there genuinely is violence against a hard-working and dedicated prison officer—he has been assaulted and it is an offence—we should go further than my hon. Friend suggests. I think that the perpetrator should be prosecuted in court for that violent offence, that he should face swift justice, and that the court should give the full penalty that is right for the offence. I would not say that it is a question of him serving his full time for the original offence, but that he should serve the full time for a serious offence of attacking a prison officer. I take a slightly different view from my hon. Friend on that.
Philip Davies
Can the Minister explain why, with all the assaults on prison officers at the moment, the average amount of extra time that prisoners spend in prison for assaulting a prison officer is 16 days, which is, quite frankly, pathetic and insulting?
Sir Oliver Heald
To be honest, my hon. Friend is looking at something different—adjudications within the prison for an offence of some sort. I am saying that where somebody has been assaulted, the perpetrator should go to court. It should not be an internal adjudication if it is a serious matter. The person responsible should be taken to court and face the full penalty of the law. That is the approach that I would take. I will be interested to discuss the matter further in Committee, and I have no doubt that we will do so.
As a result of the Bill, prisons will be safer. They will be places of reform. Our courts will provide straightforward access for all users. There will be stronger confidence in the justice system. We will enhance our global reputation for the excellence of our legal system. This is a bold, reforming ambition for justice, and I commend it to the House.
Question put and agreed to.
Bill accordingly read a Second time.
Prisons and Courts Bill (Programme)
Motion made, and Question put forthwith (Standing Order No. 83A(7)),
That the following provisions shall apply to the Prisons and Courts Bill:
Committal
(1) The Bill shall be committed to a Public Bill Committee.
Proceedings in Public Bill Committee
(2) Proceedings in the Public Bill Committee shall (so far as not previously concluded) be brought to a conclusion on Thursday 27 April 2017.
(3) The Public Bill Committee shall have leave to sit twice on the first day on which it meets.
Proceedings on Consideration and up to and including Third Reading
(4) Proceedings on Consideration and any proceedings in legislative grand committee shall (so far as not previously concluded) be brought to a conclusion one hour before the moment of interruption on the day on which proceedings on Consideration are commenced.
(5) Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion at the moment of interruption on that day.
(6) Standing Order No. 83B (Programming committees) shall not apply to proceedings on Consideration and up to and including Third Reading.
Other proceedings
(7) Any other proceedings on the Bill (including any proceedings on consideration of Lords Amendments or on any further messages from the Lords) may be programmed.—(Guy Opperman.)
Question agreed to.
Prisons and Courts Bill (Money)
Queen’s recommendation signified.
Motion made, and Question put forthwith (Standing Order No. 52(1)(a)),
That, for the purposes of any Act resulting from the Prisons and Courts Bill, it is expedient to authorise:
(1) the payment out of money provided by Parliament of:
(a) any expenditure incurred under or by virtue of the Act by the Secretary of State or Lord Chancellor; and
(b) any increase attributable to the Act in the sums payable under any other Act out of money so provided; and
(2) any increase attributable to the Act in the sums charged on and payable out of the Consolidated Fund under any other Act.—(Guy Opperman.)
Question agreed to.
Prisons and Courts Bill (Carry-over)
Motion made, and Question put forthwith (Standing Order No. 80A(1)(a)),
That if, at the conclusion of this session of Parliament, proceedings on the Prisons and Courts Bill have not been completed, they shall be resumed in the next session.—(Guy Opperman.)
Question agreed to.
Prisons and Courts Bill (First sitting)
Tuesday 28th March 2017
(7 years, 8 months ago)
Public Bill CommitteesRead Full debate Prisons and Courts Bill 2016-17 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 28 March 2017 - (28 Mar 2017)
The Chair
Before we begin, there are a few preliminary announcements. May we switch off electronic devices, or put them on to silent? Tea and coffee are not allowed during sittings.
We will first consider the programme motion printed on the amendment paper. We will then consider a motion to enable the reporting of written evidence for publication, followed by a motion to allow us to deliberate in private about our questions before the oral evidence sessions. In view of the time available, I hope that we can take those matters formally, without debate.
Ordered,
That—
(1) the Committee shall (in addition to its first meeting at 9.25 am on Tuesday 28 March) meet—
(a) at 2.00 pm on Tuesday 28 March;
(b) at 9.25 am and 2.00 pm on Wednesday 29 March;
(c) at 4.30 pm and 7.30 pm on Tuesday 18 April;
(d) at 11.30 am and 2.00 pm on Thursday 20 April;
(e) at 9.25 am and 2.00 pm on Tuesday 25 April;
(f) at 11.30 am and 2.00 pm on Thursday 27 April;
(2) the Committee shall hear oral evidence on Tuesday 28 March in accordance with the following Table:
TABLE
Time | Witness |
|---|---|
Until no later than 11.00 am | Prison Officers Association; Her Majesty’s Inspectorate of Prisons; Prisons & Probation Ombudsman; Royal Society for the Encouragement of Arts, Manufactures and Commerce |
Until no later than 3.15 pm | Legal Aid Practitioners Association; Professor Richard Susskind OBE; The Law Society; Women’s Aid; Transform Justice |
Until no later than 4.30 pm | Association of British Insurers; Association of Personal Injury Lawyers; Aviva |
(3) proceedings on consideration of the Bill in Committee shall be taken in the following order: Clauses 1 to 4; Schedule 1; Clauses 5 to 21; Schedule 2; Clauses 22 to 30; Schedule 3; Clauses 31 and 32; Schedule 4; Clause 33; Schedule 5; Clause 34; Schedule 6; Clauses 35 and 36; Schedule 7; Clause 37; Schedule 8; Clauses 38 to 44; Schedule 9; Clauses 45 to 49; Schedule 10; Clause 50; Schedule 11; Clause 51; Schedule 12; Clauses 52 to 54; Schedule 13; Clause 55; Schedule 14; Clause 56; Schedule 15; Clauses 57 to 72; new Clauses; new Schedules; remaining proceedings on the Bill;
(4) the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00pm on Thursday 27 April. —(Sir Oliver Heald.)
The Chair
The deadline for amendments to be considered at the first line-by-line sitting of the Committee was the rise of House on Friday. The next deadline will be 4.30 pm on Tuesday 11 April for the Committee’s meeting on Tuesday 18 April, after Easter. The Clerks will circulate a note about tabling arrangements during the recess.
Resolved,
That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(Sir Oliver Heald.)
The Chair
Copies of written evidence that the Committee receives will be made available in the Committee Room.
Resolved,
That, at this and any subsequent meeting at which oral evidence is to be heard, the Committee shall sit in private until the witnesses are admitted.—(Sir Oliver Heald.)
The Chair
We will now hear oral evidence from the Prison Officers Association, Her Majesty’s inspectorate of prisons, the prisons and probation ombudsman and the Royal Society for the Encouragement of Arts, Manufactures and Commerce. Before I invite the witnesses to introduce themselves, I remind the Committee that questions should be limited to matters within the scope of the Bill and that we must stick to the timings in the programme motion that the Committee has agreed to: this session finishes at 11 o’clock.
Liz Saville Roberts (Dwyfor Meirionnydd) (PC)
I take this opportunity to declare an interest as the chair of the cross-party justice unions and family courts parliamentary group.
The Chair
That is noted, thank you. Will the witnesses please introduce themselves for the record?
Joe Simpson: Joe Simpson, assistant general secretary of the Prison Officers Association.
Nigel Newcomen: I am Nigel Newcomen, the prisons and probation ombudsman.
Rachel O'Brien: Rachel O’Brien. I lead the work of the Royal Society for the Encouragement of Arts, Manufactures and Commerce on prisons.
Martin Lomas: And Martin Lomas. I am the deputy chief inspector of prisons.
The Parliamentary Under-Secretary of State for Justice (Mr Sam Gyimah)
Q Good morning, and thank you all for coming. I would like to start with Joe, please, on staffing and recruitment. I would like to get your view of how the offender management model, which has been announced and will give each prison officer a workload of six, could help improve safety in prisons.
Joe Simpson: First and foremost, you have got to recruit, Minister. At the moment—I make no apology about it—the remuneration package for a prison officer is not meeting the needs of the National Offender Management Service. Will it help? Of course—more prison officers will always help. Pre-2012, we had 7,000 more prison officers. We had fewer deaths, fewer suicides, less violence and less drugs, then all of a sudden 7,000 go and we are in the situation we are in. But, yes, it would help.
Mr Gyimah
Q I guess the question I was driving at is, if you were able to get to the situation where you had the 1:6, could you improve safety? You are saying that, yes, that could help improve safety.
In terms of the other point that you made about remuneration, of course I agree that remuneration is important in this context. Do you see that what the Ministry of Justice is doing about additional allowances—there are obviously ongoing negotiations with the POA on pay and so on—could also help with recruitment and retention?
Joe Simpson: Yes. If we get the right deal, yes, of course that will always help. I hope we do.
Yasmin Qureshi (Bolton South East) (Lab)
Q Thank you very much for coming to the session. Good morning. Can I ask you about what measures are not in the Bill? I want to explore that with you. In the nine months since this Bill was promised, we have seen major riots in prisons, an increase in violence and a continued fall in staff numbers. Do you think this Bill in any way addresses those issues?
Joe Simpson: In the long term, it will; in the short term, no, because we are not seeing any difference. To get the 2,500 prison officers in post, you are going to have to recruit 8,000. As quickly as the Prison Service is bringing them in, they are leaving. It is not just new starters—you are losing experienced staff as well. They no longer want to work for the Prison Service because of the violence, because of what is happening in our prisons and because of the lack of support.
Yasmin Qureshi
Q Does anybody else want to add any comments?
Rachel O'Brien: For a long time, there has been a discussion about steady state being needed before you can look at rehabilitation seriously. My view is that you have to do both. I think the Bill does not say that much, but what it does say is potentially profound. I agree that it is not just about recruiting people and remuneration. It is about saying, “What kind of people do we need now in this new world?” The duty implies significant differences, and I think there is a race going on between trying to get to that point of steady state and looking at the longer-term picture. I agree with much of what is in the Bill.
Yasmin Qureshi
Q Mr Lomas?
Martin Lomas: The Bill addresses a number of operational matters—certainly relating to telephones and drugs—that we think are very important, but its main emphasis is on the purpose of imprisonment and scrutiny, so obviously that will be a medium to long-term improvement. We welcome that. Some of the issues you raised are about practical management and operational matters, which can be dealt with under current arrangements and structures.
Mr Gyimah
Q If I may come in on the staffing point, are you aware that, for example, we have more people training to be prison officers than we have ever had before, at approximately 700, and that we are on track, at the end of March, to meet the commitment announced in October to recruit 400 new officers in the 10 most challenging jails?
Joe Simpson: Yes, I am aware of that, Minister. However, the question will be how long we have them for. Once they come into prison and actually see the reality of where they are going to be working, a lot of staff are not getting past the probation point, which is 12 months, because the training does not get them ready for working in a prison. It is a challenging environment, especially now.
Mr Gyimah
I have met a number of our new recruits at Newbold Revel. I think they are going into it with their eyes wide open and a lot of them are proud to be working in a uniformed service with the opportunity to turn lives around. In terms of retention, I think it is down to everyone in the Prison Service to make sure that new recruits settle in well—the governor, prison officers on the wing—so that they can actually contribute productively.
Yasmin Qureshi
Q Ms O’Brien, you have said that to have proper rehabilitation we need to return frontline staffing to 2010 levels.
Rachel O'Brien: We have not done that. I welcome the measures that have been taken, but we have not done that and I do not think for one minute that we do not have an existing staff problem. Even with what we have, it is going to take a long time for those people to come through. I have also met fantastic new officers who want to make a difference and are struggling to do so. One thing we have to bear in mind is that the new way of working means stopping doing some other stuff, and that is going to take time to flow through.
I also think, though, that there is a deeper need to look at the workforce capabilities. For example, we know that mental health is a major issue within prisons, and most officers do not feel prepared to give that kind of support; I am not talking about detailed intervention but just being aware of the key issues that they are going to face, day in and day out. The race is between really thinking about what that workforce looks like at a time when most people turn on the telly and see things that may not encourage them to join the service. I have met some fantastic people; the key is to keep them, to develop them and allow them to progress.
Michael Tomlinson (Mid Dorset and North Poole) (Con)
Q I do not think I have anything to declare, but for the avoidance of doubt I am a former practising barrister—non-practising at the moment. Joe Simpson, what are your views on the further professionalisation of the Prison Service in general, and then, specifically, what are your views on the new graduate scheme, the Unlocked scheme, that I think is starting this September?
Joe Simpson: I joined the Prison Service in 1987 and I have seen a lot of different things happen within the prison system, such as social work in prisons. We have seen the fast-track scheme before; it has taken prison officers right up to governor level—in fact, right up to second in command of the Prison Service. They are all well and good, but to make prisons safe we have to give prison officers more training than they are being given—mental health training, more suicide awareness, and more intervention with prisoners. Most of all, we need prison officers on the landing for what we call “dynamic security”—that is, they can see us and we can see them. We can keep an eye on them and keep them safe. When they can see us, they feel safe.
So we welcome the professionalisation of the prison officer and we are ready to talk to whoever wants to talk to us about professionalisation of our members and all prison staff. Yes, the graduate scheme will take people from the shop floor into higher management, if they want to go there; sometimes, though, in my experience, some of our managers forget where they have come from and what it is like to work on the shop floor. But we welcome anything that will professionalise our prison staff in making prisons safe.
Michael Tomlinson
Q Thank you. I recently had the privilege of visiting HMP Wandsworth. They explained the extension of the training that was going on there. Presumably, again that is something you would welcome. I am assuming that you would welcome the extended training period for new recruits as well, given what you have said.
Joe Simpson: We would like to see a much longer training programme for new entrant prison officers, because what can you teach a prison officer in 10 weeks? What about all the other things we do? A prison officer in reality is an untrained drug counsellor and marriage guidance counsellor. We are everything rolled into one, with no training.
The only thing that you have got is experience, and you gain that experience through working in the system and in life. When you are recruiting prison staff who are 18 years old, it makes it more difficult for the more experienced staff to guide them in the way it is. When you finish your training, you are supposed to get a two-week induction into the prison to get you used to the way it works, but that never happens.
Michael Tomlinson
Q That brings me to my final question; you have neatly brought me round to rehabilitation. You mentioned marriage guidance counselling and so on. What further role do you think there could be for prison officers not only in relation to rehabilitation in general, but in relation to such things as education?
Joe Simpson: On education, the POA is involved with Toe By Toe, which is where we get other prisoners to teach prisoners to read and write. We are heavily involved in that. I think we must be the only profession that wants to put itself out of a job, because we want rehabilitation, but with the levels of overcrowding we have at the moment, you are not going to achieve it. It will take a long while to start the rehabilitation that the Government want for the simple reason that we have to make prisons a safe place to work and live in.
Mr Gyimah
Q Mr Simpson, I would like you to comment on professionalisation. We are consulting with the trade unions on the creation of 2,000 new senior positions across the estate, where they will be able to work at band 4 level in such jobs as self-harm prevention or mentoring, earning up to £30,000 a year. How could that help retain senior staff and professionalise the workforce?
Joe Simpson: I used to do that as a prison officer; I did not need promotion for that. It was part of my role and what I was paid for, but the service has long depended on prison officers and prison staff volunteering to do that extra work with no pay and no pay rise. Some 70% of prison staff have not had a decent pay rise in five years. That is when you get problems in the Prison Service. They feel forgotten and as though they do not count. With the 2,000, why not train the rest of them in that and make the Prison Service a truly professional service?
Liz Saville Roberts
Q I think I am correct in saying that the level of turnover among prison officers is something like 12%.
Joe Simpson: Yes.
Liz Saville Roberts
Could you tell us something about the impact of that degree of change? The underlying impact is that their salary is for ever starting at the lower level. Also, there is now regional variation in salaries. What is the impact of that—I have visited HMP Berwyn and I will be going to HMP Liverpool next week—on recruiting outside of south-east England?
Joe Simpson: In areas with high unemployment, you will get people wanting to be prison officers because it is paid work and they will want to be in work. The high turnover is not just down to salary; it is also about when people come in and see the reality of prison life. It is all right talking about when you go to the school; I attended Newbold Revel and went straight to HMP Strangeways, and that was a big eye-opener for me.
In fact, when the door closed behind me for the first time, the hairs on the back of my neck stood up. I nearly put my keys in and left—I didn’t. The high levels of turnover are for the simple reason that prison officers no longer feel safe in our prisons. Why would you want to come to work and earn £21,000 to be spat at, assaulted, have excrement and urine thrown over you, and be physically and verbally abused? No other profession would put up with that.
Liz Saville Roberts
Q Is the training perhaps not preparing new recruits? Would it be possible to adapt the training to prepare new recruits better for the reality of prison work?
Joe Simpson: I think you could get a training programme that will get them ready for prison life and for working in prisons, but they also have to go into prisons and work there. When I first started, I went into Durham prison for three weeks. I came back, did the rest of my training and then went into Strangeways. When I was at Strangeways, I had what I called a “buddy officer”, and I worked with him for 12 months. If I had a problem working there, I went to him to ask a question and he answered it. He was with me all the time. That no longer happens: because of the pressure on getting prison officers into prisons and getting a regime going in prisons, that is no longer there. I think that would help.
Liz Saville Roberts
Q May I ask one general question to everyone on the panel who might be able to respond? The Bill is proposing the purpose of prisons. What would you feel about including health, substance abuse and addictions while people are in prisons as a possible fundamental purpose?
Rachel O'Brien: Two of the purposes—if you are talking about progression—imply that you have to address the fundamentals, including mental health and drug use. In terms of holding governors to account, it speaks to a flaw in the prison reform agenda more widely, which is that this is only a part of people’s journey—for some people, a very short part of their journey.
If you are in prison for a matter of weeks, there is very little that even the best governor and staff can do, even with some of the training support. We know that deaths peak the week after custody, so the key that is missing is the integration question. How do we hold governors to account for something they ultimately do not own? What role within that is there for local authority substance misuse organisations, NHS providers and the CLCs? There is a need to look across the journey in the Bill and the wider reform agenda.
Martin Lomas: There is a balance to be struck. Who could object to an objective of supporting and promoting mental health and wellbeing? The issue is, how do you define them? What does “wellbeing” mean, for example? There needs to be a certain clarity about that. Another argument is, where do you draw the line? One of the advantages of the purposes as they are currently stated is that there is clarity about them. They are punchy, specific and particular. We could perhaps stand having another couple, but there is a point at which they stop being purposes and start being standards. It is really a question of balance.
Nigel Newcomen: I certainly endorse that. On, for example, the fourth purpose—
“maintain an environment that is safe and secure”—
I cannot imagine an environment that is safe and does not have adequate mental health provision, an adequate approach to healthcare and, indeed, a decent environment. Unless I have misunderstood what is intended in the list of four purposes, I think most of the suggestions you just made would be encompassed within them. I am with Martin in assuming that if we have an endless list, you lose some of the prescription, direction and sentiment that is intended.
Matt Warman (Boston and Skegness) (Con)
Q This question is probably as much for Martin Lomas or Rachel O’Brien as it is for the rest of the panel. The Bill enshrines the idea of rehabilitation and reform for the first time. In my constituency there is a category D prison, North Sea Camp, and I have seen how difficult that can be. Do you think that that is a symbolically important gesture, but also that it will make a practical difference across the prison estate? Is it something that you welcome as a whole?
Martin Lomas: That it is clearly articulated that the purpose of an institution is to help rehabilitate and reform the individuals that are sent there? I think that is pretty fundamental and empowering, and brings clarity.
Certainly, as an inspectorate, we are committed in the Bill to take account of the purposes of imprisonment, although our criteria—the expectations, as we refer to them—are independent and separate. When we were formulating our expectations, we saw resettlement, as we term it, as fundamental, one of four interconnected features of a healthy prison: safety, respect, activity—work, in other words—and resettlement. So yes.
Rachel O'Brien: I agree. Out there, there is a need to define some of that. What we do not need is a long list of a hundred items. When we talk about wellbeing, it is not far off, and there is lots of evidence to show that you can measure that. So it should flow through to the leadership models. For example, what are new group directors for? That is going to imply a whole new partnership approach with this core purpose at its heart.
It comes back to staff, as well. Too often it is people like me that get to do the nice stuff. I do not get spat at; I do not have the uniform; I have keys but I do not have to have that authority. Staff are being pushed into a role in which they are doing only the authority side, and lots of other agencies are doing what I call “the nice bits”. It may not be brilliantly funded. I would argue that, when we look at the core workforce, that is the core job. Yes, they still need to have that authority, but all the dynamic security tells us that it is about relationships they have; it is spotting that flame in someone that can be enhanced. If you do not have enough people or time, it is hard to do that. So I would slightly push out people like me and really focus on the core workforce.
Matt Warman
Q Related to that, am I right in thinking that greater autonomy for governors should allow some of that to happen locally, as is best, rather than having a one-size-fits-all model?
Rachel O'Brien: Absolutely. The centralisation issue is a critical one. There is this profound sense of change but, at the same time, it is bureaucratic: people are feeling quite disempowered. We need to be thinking about how you drive those relationships locally. An example would be the use of ROTL—release on temporary licence. That is a decision best made locally, where governors know their people and their employers, and they can make those decisions.
Although in policy we have changed our minds, in practice, as far as I know, not a single London prison is using ROTL at the moment because of the pressures we are talking about. If we are serious about that purpose, it has to be a stick-of-rock approach right the way through. It is not just the institutions that change, but also people like us on the outside that need to respond to that.
Matt Warman
Q ROTL is routine at somewhere like North Sea Camp—that demonstrates the variation across the estate currently.
Rachel O'Brien: Absolutely.
Richard Burgon (Leeds East) (Lab)
Q I want to return to the subject of staffing. The Minister mentioned the 6:1 ratio in terms of staff caseloads; I want to raise a different ratio. We have already heard about the 7,000 reduction in prison officers since 2010. We have also heard about the aim to have a 2,500 increase. On Second Reading, there was some discussion in the Chamber of the need for prison staff to prisoner ratios. In their experience, do panel members think this could be helpful—a ratio of prison officers to inmates?
Martin Lomas: It might, but I am not sure. It is quite a crude measure, and what matters is the outcome and whether there is a quality to the supervision—that prisoners have confidence in the staff around them, that the staff around them are effective and trained, as has already been referred to, and that those prison officers, in a sense, are confident in what they are doing. I think it might be useful, but equally prisons are endlessly complex, have differing requirements, face differing risks, and have different geography, which will all inform the numbers of people you will need.
Richard Burgon
Q Would you think—to add a second question, if that is okay—that presumably there could be different ratios for different categories of prison, as a minimum ratio? Presumably, whatever the variables, there must be, in each category of prison, a minimum below which it would be dangerous to go, which would be contrary to the possibility of fulfilling the purpose of prisons as set out in clause 1.
Martin Lomas: Possibly, but within, for example, a category, there are different types of institution, different emphases in terms of supervision and risk, and competing requirements. The issue is to ensure that the outcome is right—that there is quality to the supervision, and sufficiency in the numbers, and a way of working with people that is respectful and supportive and engages the prisoner.
We have seen lots of places where prisons are insufficiently supervised—there are not enough people around. There is a variety of reasons for that. One of the consequences of that, ironically, is that prisoners have a chronic collapse in confidence. They are afraid because of it, but I am not persuaded that just a crude measure is the way forward.
Nigel Newcomen: May I endorse that? I investigate deaths in custody—self-inflicted deaths, for example—and they are a pressing problem in the system. One of the features that we often find is that it is the quality of that interaction between a staff member, and showing that the staff member is trained and has enough time for that interaction, that is the issue, rather than the numeric ratio of staff to prisoners on that particular wing. If there are more staff and no empathetic interaction, there is no likelihood of the vulnerabilities being picked up.
Nick Thomas-Symonds (Torfaen) (Lab)
Q To refer to my relevant entry in the Register of Members’ Financial Interests, for the purposes of the Committee I should say that I am a non-practising barrister and door tenant at Civitas Law in Cardiff.
On the issue of deaths in custody, you will be aware of the inquest findings in January on the death of Dean Saunders in Chelmsford prison, in which a number of criticisms were made of mental health care, and the prison system generally. Are you satisfied that the Bill will address those failings?
Nigel Newcomen: It is difficult to be satisfied that a Bill that I am still coming to terms with has got a sufficiently comprehensive reach to cover all the deficiencies exposed in that particular case. It was a very sad case where systemic failure outside as well as within the prison system was exposed—mental health deficiencies. The provision for individuals at risk was certainly not as good as it could and should have been, and I was quite robust in our investigation report.
I think the Bill will assist. I think it brings attention to the issues, and brings focus. It brings an approach to the management of prisons that should put accountability on governors to try to ensure that the provision in their establishment—at Chelmsford, for example—is sufficient to manage the sorts of very needy and vulnerable people who come through the gates of prisons. But it will also need to be supported by adequate resource, and adequate investment both from the prison staff perspective and the healthcare perspective.
The case you referred to, as I say, demonstrated a lot of systemic failures within and without the prison system, and if you are going to address them we will have to have a holistic approach, which also will involve other Departments and other provision, other than simply the Prisons and Courts Bill.
Nick Thomas-Symonds
Q If you as ombudsman make recommendations, how confident are you that the Secretary of State will act on them?
Nigel Newcomen: I published a report today on self-inflicted deaths among women and I said in the introduction that I was disheartened that I was saying again many of the things I had said previously. I have been in post six years, and I say very little that is new; I tend to repeat things. That does not necessarily mean that there is any ill will or any lack of desire to implement the recommendations I make. Virtually all the recommendations I make are accepted, almost without exception. I have given action plans, and my colleagues from the prisons inspectorate will go and see whether progress has been made.
Progress is often made to a degree. I am sure that if we go back to Chelmsford, to look at one establishment you just mentioned, much will have been done in the aftermath of the case of Mr Saunders and the aftermath of other cases there, too. But sustained and consistent improvement is something that the Prison Service has struggled to achieve. One of the aspirations the Bill must have is that by ensuring greater accountability and some devolution of responsibility to governors, sustained development and improvement can be achieved. To go back to your question, I personally am quite disheartened that I have been saying the same thing for so long.
The Minister for Courts and Justice (Sir Oliver Heald)
Q I want to ask you about mobile phones and drugs. Obviously, prison has never been a pleasant place, and I visited many prisons when I was practising as a barrister, but recently I visited a prison and talked to one of the trusted prisoners who said that the impact of psychoactive substances has been marked, particularly on younger men prisoners, with there being a lot more violence than there used to be. Mobile phones are also enabling prisoners to commit crimes at one remove that they did not use to be able to do. Will you each say a word about drugs and mobile phones—what their impact has been and whether the measures in the Bill are a help?
Martin Lomas: The linkage is very clear. The tsunami of new psychoactive substances in the last three or four years has had an enormously destabilising impact on prisons. The chief inspector referred to that in his annual report, and I for one have never seen anything quite like it. Interestingly, some prisons cope better than others, and there are some lessons to be learned there.
The linkage between drugs and the use of mobile phones and technology is clear. It facilitates criminality—there is no doubt about it. I was talking to a colleague of mine who has inspected this regularly and one of the tricks is to meet a new prisoner arriving in the institution who does not have a phone card and so is unable to communicate, and entrap them in a sense by lending them a phone, in which the numbers are stored. That facilitates the intimidation of families and leverage on them.
The answer to that is proper prevention mechanisms to stop mobile phones coming in and to interrupt those that arrive, and the Bill is supportive of that; but also, in tandem, effective means of ensuring that prisoners have access to legitimate phones, either in cell—we see that in some more modern institutions, which is incredibly helpful—or through phone cards and effective access to, for example, the canteen. We routinely report on new arrivals to institutions who do not get access to the canteen for 10 days, which increases their vulnerability both to self-harm—it is a high-risk time—and to others. It is a twin-track response, and the Bill helps.
Rachel O'Brien: I agree with all of that on phones. You see that really small things in prisons, like not having your phone card and getting the small stuff right, can have a huge impact. On NPS, to go back to the centralisation and the local, we took a long time to respond—inspections were raising that from 2012 onwards —and it is an absolute game changer. We have not been adaptive and responsive, and I think that is partly because we wait for the central machine to respond. That resulted in a quite punitive initial response; it was like we had forgotten everything we know about healthcare and substance misuse, with NPS seen somehow as different, which is ironic, because it is legal outside. It is very strange. So you have had a really punitive response generally, and I think that is beginning to change now.
Thirdly, you need to look at supply and demand. Yes, stopping it coming in in the first place is absolutely critical, but if you have no activity and no purpose—there is a lot of evidence to suggest it is partly about boredom and time out of your head, if not your cell—you are going to seek it out. I am not sure I would not seek it out, if I was stuck in a cell day after day. We have to look at the demand side, as well as supply.
Sir Oliver Heald
Q If you take the aims in the Bill of active reform and rehabilitation, and trying to prepare people for the world outside, are you saying that if you achieved that sort of purposeful regime, you would have a more peaceful regime?
Rachel O'Brien: Absolutely.
Nigel Newcomen: You would also have a safer regime. Access to legitimate phones increases family contact and the ability to mitigate your pressures inside. If you have more activity, you are less likely to be bored and less likely to need the bird-killer that is NPS. I endorse what colleagues have said: it is absolutely, fundamentally right for supply reduction to be at the heart of the Bill, but demand reduction—the lessening of the need—has to be implicit, and I take it to be implicit in the new purposes of prisons that have been specified. If it is not, we will be chasing a punitive response without the likelihood of success, because we will not have dealt with demand.
Sir Oliver Heald
Q I do not know whether you would agree, Mr Simpson, but I think a lot of prison officers find it very rewarding if they are able to help a prisoner to come round and live a better life after he leaves prison, and to help him get some skills while he is in there. I have certainly always found that when talking to prison officers. Do you agree that the overall idea of having proper purposes for prison, trying to increase the number of officers and tackling this scourge of drugs and mobile phones is the overall package that is needed?
Joe Simpson: It is, but drugs are not new in prisons.
Sir Oliver Heald
Q No, it is these psychoactive substances, which are allegedly legal.
Joe Simpson: Yes. The Government have also said it is illegal to bring them into prison or throw them over the wall, yet it still happens. When you are talking about supply and demand, say for argument’s sake that you can buy a bag of NPS on the street for £1. When it comes into prison, it is worth anywhere between £60 and £80. It is big business, and it does not have a great effect on the person who is supplying it from the outside, because they are never, ever going to get into trouble, because nothing ever goes back to them. Mobile phone are big currency in prisons. As a union, we have been asking for mobile phone blockers to be put into prison for years. That would stop the criminality inside and outside of prison.
Then we have drones. When they come over, it is about what they are carrying. We have had to approach the employer and say, “When there is a package dropped off into the grounds of a prison, you have got a prison officer immediately being told to go over and pick it up. It could contain anything, and there is no proper control over that.”
Yes, more time out of cell, and a prison officer watching them and interacting with them, would help. When I was a prison officer at Holme House, we used to have prisoners out on association, and they played pool and went on the phone. When you had a bank holiday weekend, such as Easter, by Sunday dinner time they were bored, because they were doing the same thing every weekend and every evening. It is about changing that, with education in the evening, gym programmes and programmes that prison officers can lead on, because before we entered the job, we had a prior life. We have teachers who have joined the Prison Service. They have a wealth of experience, but no one is using them, because we are going back to what we fear is a turnkey situation.
Sir Oliver Heald
Q Of course, a lot of these prisoners could benefit from that experience, could they not? They are not very well educated, and they could get some skills and make more of their lives.
Joe Simpson: Yes.
Martin Lomas: I agree that NPS is a specific challenge, and it has been a game changer. We have seen prisons that do better than others—this is a bit speculative, and there needs to be more research into this—and that seems to be down to effective multi-disciplinary working, particularly with local law enforcement and the like.
However, your point is valid: there cannot be reform, work, education and rehabilitation without safe institutions, but there is then a feedback loop. If prisoners understand, believe and realise—as enough of them do; there is a critical mass—that they might have to be in prison, but at least there they have a chance, or that it is worth investing their effort, or that there is a constructive opportunity for them, that in itself will begin to lift the bar and create a sense of positivity and civility within the institution.
Matt Warman
Q You briefly mentioned mobile phone blockers; the Bill allows for more rapid blocking of individual mobile phones that are associated with prisoners. Presumably, you would welcome the fact that you would not have a blanket ban on everything, or use more widespread blocking, because prison officers have mobile phones, which are useful for keeping in contact with families and all that while in the prison. Of course, people who live nearby prisons do not appreciate their systems being blocked, either. This helps with that, I would hope.
Martin Lomas: Whatever technology works. Actually, in prisons, nobody is allowed a mobile phone; there may be a community consequence.
Matt Warman
Q Not on the block, but in the broader area it is still a pain to have anything blocked, is it not?
Martin Lomas: I can imagine so.
Rachel O'Brien: If you look at open prisons, or somewhere like Britannia House in Norfolk, the prisoners who are working outside during the day have access to mobile phones. That is really important for jobs. As ever, it is about looking at the context.
Matt Warman
So the more targeted the technology—that is what the Bill more quickly allows for—the better, ultimately?
Yasmin Qureshi
Q Whether we are talking about mobile phones, psychoactive drugs, mental health or education, the truth is that you do not have sufficient trained people in the Prison Service, or in the round, to deal with these problems. Unless and until those properly qualified and trained people are there, none of these problems will go away. It does not matter how much legislation we have about phones or drugs or whatever; unless there are people there to deal with it, nothing is really going to shift, is it?
Rachel O'Brien: That is a problematic position, and in a way I think that is where we have been stuck for years. We cannot do this stuff—we all agree with this rehabilitative outcome—until we have that. I agree, and I would love to see more staff investment, but a lot of it is also about culture and leadership. We have talked about rehabilitation, but we have a prison system that is still, in lots of ways, very command-and-control, and of the old military model. In terms of culture and hope, prison officers and prisoners are like us: they have ambition, purpose and activity. That is what is missing. Yes, we need more staff, and we need to use them and the external agencies more wisely, but the key is rethinking the culture and how prisons are run. That is what makes the difference. We know it makes a difference, because we have some fantastic prisons and wings and so on that operate very differently.
Nigel Newcomen: If I may say so, I think it is a counsel of defeat. The prison system has always faced many challenges. I described NPS as a game changer in one of my reports, and it probably has been, but it is not that there is no work going on in either supply reduction or demand reduction. There are even some very good efforts being made at harmonisation by prisoners themselves. There is always scope for improvement, and to assume that there is no answer to the problem is, as I say, a counsel of defeat.
Yasmin Qureshi
Q I was not saying that there is not an answer to the problem. I was saying that, yes, some good things are happening—I am not saying nothing good is happening—but to achieve a level of productivity, if I may use that expression, you will need back-up resources. That is what I am talking about, in essence. That needs to be addressed fully.
Martin Lomas: There needs to be proper supervision of prisoners to give confidence to staff and prisoners. That might involve a resource solution, but equally, as colleagues have said, there are issues around leadership, accountability, learning the lessons that have just been pointed out to you, and sustaining improvement, rather than this being the rollercoaster that we often see. A variety of resource, cultural, management and leadership issues need to be put right.
Rachel O'Brien: You mentioned prisoners and the role of prisons. That is a huge untapped resource. It is very easy to talk about things like co-design and working with prisoner empowerment, but when you do it, you see the transformative change, not just among the prisoners but in the staff, and if staff are doing it, rather than people like me, that is how you get a completely different kind of response. Prisoners can be your best allies. They do not want to live in unsafe environments where it becomes the norm to be off your head. One of the things that would not be in the Bill but is absolutely about the culture is seeing prisoners and their families as key assets to support outcomes.
The Chair
Chris Philp, on this point. I want to exhaust this area before we move on to the next questions.
Chris Philp (Croydon South) (Con)
Q Mr Lomas, you said a moment ago that you thought that there were some failures of leadership in this area. Will you expand a bit on what you mean by that?
Martin Lomas: I was making a broad point about there not being a single solution to the problem, and about how there needs to be analysis of what is needed in particular institutions. The Bill requires us, as an inspectorate, for the first time to take account of leadership, and we will be commenting on it. We sort of do already, but this will be a more transparent arrangement. Our intent is to link our commentary on leadership very directly to the outcomes that we see in the prison. We are not management consultants as such, but we will look for there to be evidence of leadership—at every level, because it is not just about the governor. There needs to be leadership among staff and at the Ministry of Justice. A variety of influences will create a situation in a particular institution.
Chris Philp
Q In your experience of inspecting prisons, how frequently are there comprehensive searches both of prisoners and their cells, with the purpose of identifying things like mobile phones and drugs?
Martin Lomas: It is not something we specifically look at, although they are going to begin looking at it, but every prison will have a security protocol that will specify the amount of searching that takes place. That is just the routine element. There will be search protocols around specific risk areas like visits, reception and the like, and there will be targeted searching in response to intelligence that comes in through information reports. There will be a variety of responses and different levels of searching, some more intrusive than others. Beyond that, there will be the application of technology, dogs and all sorts of available options.
Chris Philp
Q In your experience of inspecting prisons, do you think that search, whether of individual prisoners or of their cell accommodation, is adequately frequent, bearing in mind the amount of contraband that seems to be in circulation?
Martin Lomas: I do not think that I can give a broad-brush answer to that. There are 120-odd institutions that perform differently, and the identification of contraband might be a sign of the success of searching, so it is a difficult one to answer. We look at the security of the institution, the risks that it faces and questions of proportionality. Prisons have to be constructive places, so searching needs to be justified, reasonable, effective and for a purpose. A variety of factors need to be considered.
Chris Philp
Mr Simpson, what is your view of the search regime?
Joe Simpson: At the moment, it is hit and miss across the whole system, and that is down to staffing pressures and the regime. The Prison Service ultimately does whatever it has been told to do by the Secretary of State in power at the time. We have gone from “security, security, security” to “regime, regime, regime”. Only at the weekend one of our prisons had to shut down the whole prison in order to put on visits on a Saturday afternoon. Nothing else happened—there was no searching and the prisoners were not out of their cells. They were in their cells because there were not enough staff on duty to get them out.
It depends on what the searching protocol is for the prison as well. Obviously, we have got different categories—A, B, C and D. I would say that the searching strategy in the category A and B systems is more robust because of the types of prisoner being held. In cat C and cat D, I would say it is not as much as we would like to keep people safe—especially in the cat C estate.
Nick Thomas-Symonds
Q Rachel, a moment or two ago, you were taking about what the prisoners themselves have to offer in this. I know that the RSA has spoken about things such as rehabilitation culture—I think “rehabilitation capital” is the phrase that is used by the prisons. Can I pick up on that and, in a general sense, ask you whether you think the Bill incorporates that sort of culture and those sorts of measures in the way you would like to see?
Rachel O'Brien: I am slightly nervous of the new HMPPS defining this thing. We know a lot about wellbeing: for example, we can measure people’s ability to make good decisions and their self-confidence—all sorts of things that are prerequisites for the resilience they will need going forward. We are working with a high-security prison at the moment to develop a community-wide strategy. The outcome is going to be great. It is about thinking about, in a very closed system, how you have a better relationship with the outside world, family and so on. Actually, it is about the process of engagement with those prisoners, when they are talking strategies and tactics. They would not necessarily agree to do desktop publishing, but they will do it because they are producing a newsletter to communicate. It is that kind of approach, and you can measure people’s progress—partly because they will tell you and partly because you see it. It is that kind of approach that we need to replicate. Prisons need to be able to do things themselves rather than outsource them, because that is how staff can get those really valuable relationships.
Liz Saville Roberts
Q Nigel Newcomen, you mentioned the dichotomy between supply reduction and demand reduction. There are aspects of this Bill that deal with supply reduction per se. To what degree do you and other members of the panel feel that the demand reduction aspect is sufficiently considered within the Bill?
Nigel Newcomen: As I said, I impute from the purposes onward that some of the balances that we have been struggling to put across to you are required are implicit in the Bill’s structure. Demand reduction is a necessary partner of supply reduction. If you have only one, you are going to have only part of the solution. It is essential to have supply reduction, both for phones and for drugs, but you equally have to have work to mitigate the demand and the need for those illicit goods. Without that balance, I think we are on a hiding to nothing. There is nothing in the Bill that I can see that precludes that balance.
Liz Saville Roberts
Q Would you be prepared to suggest additions to the Bill that might make it less implicit and more explicit?
Nigel Newcomen: I am not sure I can think of any. It just seems to me that, unless we are misinterpreting it, the supply reduction issues are necessarily going to be balanced if you want a purposeful, rehabilitative prison. It is implicit that you have to do both. You cannot simply attempt to reduce supply if demand is insatiable.
Martin Lomas: I agree with that, but I would also make the point that there has to be a balance. One goes with the other. I make the observation that it is not perfect. How much is enough? We often report quite positively on some of the demand-side work that we see taking place within institutions, notwithstanding some of the other issues around it. In contrast, when we inspect we survey prisoners and one of the questions we ask is, “How easy is it to get drugs in this prison?” and although I cannot remember the exact statistic, the increase in positive responses in recent years has been striking. We comment on that routinely in our reports—that quite a lot of prisoners are telling us it is easy to get drugs in. Some of that will be over the wall, some will be an interpretation of the question around, for example, the diversion of prescribed medication, which is also an issue. So it is a complex problem and there has to be a balance. Questions of quantity will always be difficult to determine absolutely, but a balance is what is needed.
Liz Saville Roberts
Mr Simpson, what do you think?
Joe Simpson: On the demand side, the Prison Service has been very successful. When I joined, the drug of choice was cannabis; then, when they started mandatory drug testing, it went from cannabis to heroin and cocaine, for the simple reason that they stay in the body a lot less than cannabis. But we just punish prisoners; if they get a positive MDT, they are punished and that is the end of it. We are not doing anything to say to them, “Why are you taking it?” Why don’t we turn around and start educating them about the drug issue, rather than just punishing them? As long as we punish them, nothing is going to change, because they still want that drug; they will still want it inside.
As long as people are coming into prison and bringing it in—the supply side of it—they do go hand in hand. We have to stop the supply but we also have to start to reduce the demand as well, because if we reduce the demand, the supply will stop coming in because people will no longer want it.
How do we do that? When I was at Holme House we had a successful drug treatment wing there. We turned it on its head: it was run by the prisoners. They looked after everything; they made sure everything was clean and took over the duties of the prison officer. The prison officer was still there; we were still there supervising it and it worked. Then all of sudden, because we ran out of money, it went. We reduced the demand and then, once the money stopped, the demand went back up, because there was nothing there to get prisoners to take charge of their lives in prison. That is what is missing.
Rachel O'Brien: It is an interesting question, in terms of responsibility. I would raise a concern about that being just on the governor, not going any wider. It is interesting to ask about the responsibility to reduce demand and how you might show that. The other parts of the Bill that are important concern education, employment and health commissioning, because ultimately if we do not have more people working, more people getting the treatment they need, the supply will respond to demand. For me, a key question is whether that commissioning going to be more local, more sensitive and more productive. Many prisoners will tell you that they are either in their cell most of the time or they are doing another level 1 catering when they have done four as they have moved around the system. The intention, not so much as reflected in the Bill, but in the education strategy and so on, is to actually look at more progression for people.
Again, it comes back to the fact that a prisoner will tell you exactly how they want to progress, but what if that is not available? I really worry that while what is in the Bill looks like a decentralisation of commissioning, I am not clear that that is actually what is going to happen.
Suella Fernandes (Fareham) (Con)
Q I refer the Committee to my entry in the Register of Members’ Financial Interests. I am still in receipt of fees from the Treasury Solicitor for providing legal services to the Ministry of Justice and the Parole Board.
Nigel, I want to follow up on your point about the statutory purposes listed in proposed new section A1. There are four purposes set out and you said that an endless list would be unhelpful for professionals and for the inspectorate. Can you say a bit more about why you think that the current drafting hits the nail on the head and strikes the right balance?
Nigel Newcomen: I did not quite say that the current drafting hits the nail on the head. I said that an endless list would, I think, be unhelpful; I think Martin made the same point. If you are going to have a set of overarching purposes, they need to be relatively discrete, something managers can focus on and, in Rachel’s words, could run through a stick of rock. If it is an endless list, that is a very big piece of rock. This needs to be a means of gaining clarity for the organisation and the institution.
I said in passing, I think, that the word “decency”, for example, was missing. It may be that there are bits of drafting that may be attended to as the Bill goes through. I think a relatively discrete statement of purpose and set of aims is useful. All experience of business management and organisational institutional change is predicated on having a relatively limited set of outcomes that you are seeking to achieve. I think these are pretty good and discrete statements. They could probably be improved, but I do not think I would like to see the list get that much longer.
Suella Fernandes
Q My second point I would like to raise with all members of the panel relates to health and mental health provision in the Bill and also in the White Paper. In those, there is considerable detail on how governors can work together with the local clinical commissioning group or other health providers to assess the health needs of prisoners, co-commission services and assess quality of performance, instilling a bit more responsibility and flexibility in the system to safeguard health and mental health concerns. I would like the panel’s views on the mental health and health provisions.
Joe Simpson: When you are bound to outside agencies, especially in prisons, they are not there 24/7. The only people who are there 24/7 are prison officers and prison staff. One thing that we are going on from mental health is also social care in prisons. We have a lot of older prisoners who need more social care. Between the hours of 7 o’clock at night until 7 o’clock the next morning, they do not have access to that, and we do not have access to that as prison staff. We have no training whatever in order to assist prisoners who have those needs.
Mental health and health wellbeing should start on reception at the prison, when the prison officer brings the prisoner into prison, goes through the reception process and then passes them on to our colleagues for the mental health check. From that should come a plan of care, but that is not there, for the simple reason of time—“Let’s get them through because staff need to get off,” or, “We need to do this; we need to do that.” It is constant pressure on the regime and having the staffing available to do that.
If you are dependent on an outside agency that has its own staffing problems, it is not going to be done. That is the frustrating part from our members’ side. They identify a problem and nothing seems to be done for two or three days because we cannot get that expertise in. Why not utilise the person who is already there—the prison officer—and train them to do those duties, so that we can give better mental health care and increase wellbeing?
Holly Lynch (Halifax) (Lab)
Q May I return to the issue of prison officer safety? I have tabled some new clauses that I hope will be helpful in that regard. On Second Reading, we touched on the issue of a prison officer being assaulted in prison by a prisoner. Is that referred to the police, followed up by the Crown Prosecution Service and taken to court, or is it dealt with internally within the prison? What is your experience of the decision making around that process, and what would be the preference of the Prison Officers Association for dealing with those types of incidents?
Joe Simpson: Our view is that somebody who assaults our members should be punished. As for the question of who does that, we are not really bothered. Our experience, and my members’ experience, of the police and CPS is actually getting a policeman in to do the investigation. More often than not, what comes back from the CPS is that it is not in the public interest, because that person is serving a sentence and in prison anyway. That demoralises our members. They feel as if they go to work and they are just punchbags. There was a big campaign by the trade union to try to change people’s thinking on that, because we work behind a wall—people do not look in and we do not look out. We would like our members to be protected by the law and to be taken seriously when they are assaulted at work.
Some incidents are serious physical assaults, but you also have to look at the mental aspects, especially in relation to spitting and biting. Let us say that a prison officer is bitten. We do not know the prisoner’s history. We do not know whether they have any blood-borne disease or anything like that. The officer then has to spend six months on antiviral treatment and everything like that, and along with that goes the mental anguish, not just for the member of staff, but for their family, because they cannot interact properly with their family for six months. That leads to its own problems: high rates of divorce, cases of alcoholism and people just not wanting to come to work. That develops into mental health problems. While they are in the service, they are looked after, but once they are dismissed by the service, all that assistance stops, because the employer turns round and says, “Well, we’re no longer responsible for that care.” Sometimes we are putting really poorly and ill prison officers back into society with no assistance whatever, because of something that has happened in the course of their work.
One of the most disgusting things ever is potting. It is especially the female members of staff who are targeted. A prisoner or prisoners will fill a bucket or whatever with excrement and urine, wait for the officer and then tip it over them. We are seeing an increase in that, because prisoners seem to think that it is more acceptable than hitting a member of staff or hitting a female member of staff. They still see that as a bit of a taboo subject, but that is starting to break down. They are not just targeting male staff; they are now targeting female staff as well, especially with potting, which is absolutely disgusting.
Holly Lynch
Q Mr Lomas, when you do inspections of prisons, is how assaults on prison officers are investigated something that you would look at?
Martin Lomas: The specific technicalities of how they are investigated, no, but the fact of assaults on staff, yes, it is something we would look at. We would look to disaggregate the data to see whether we can get any learning from them, so we would look at fights and assaults—prisoner-on-prisoner assaults and prisoner on staff. There is no doubt that violence is increasing across the three, but it is notable that violence against staff is increasing; it has increased quite markedly in recent times. At an anecdotal level, we watch videos to try to get some sense of the—this is an unfortunate word—quality of the violence, and yes, some of it can be quite disinhibited, concerted and reckless. There was a case recently in which a member of staff in a midlands institution was very severely assaulted and hospitalised. They went through considerable trauma; the case has been reported in the media.
Yes, we report on violence as a feature of relationships between staff and prisoners, but the questions about policing priorities in a certain area or the decisions of the CPS in terms of public interest and what have you are matters that they would need to account for. But yes, we believe that staff should be supported and that prisons should be safer, and we believe the Bill is a positive measure in supporting that endeavour.
Holly Lynch
Q Can I press you on that point? Do you think this is something that you should be looking at in that case? It sounds as if you are collecting the statistical data about frequency, but not doing the follow-up about how violence is investigated to see whether there is evidence about how deterrents should be in place, for example.
Martin Lomas: We look at outcomes. The process of investigation and whether the investigation was competent, whether the police should be more engaged and certainly whether the CPS should have charged—we would not look at that.
Mr Gyimah
Q I would like to ask a question and get the panel’s views about accountability in the new prison system and how that works. Starting with Mr Lomas, what difference do you think the Bill will make to the effectiveness of the prisons inspectorate? Could you also comment particularly on how you see the notification trigger being used?
Martin Lomas: We think this is an important step forward. We think the Bill is helpful and useful. We have already talked about what it says to those who run institutions, with regard to their purpose and what they are meant to be doing. As far as the inspectorate is concerned, we believe it strengthens our institutional framework. It recognises us formally as an entity and clarifies our powers. At one level, those powers have not changed, but the Bill clarifies them, which is important in terms of asserting our independence and reflecting the public’s understanding of what we are about. We believe that the reference to OPCAT—the optional protocol to the convention against torture and other cruel, inhuman or degrading treatment or punishment—is absolutely critical in emphasising the independence of the inspectorate and consequentially its authority and ability to speak to issues and to all stakeholders, including the Government and others.
We believe the specifics around the requirement to respond on recommendations—reflecting current practice, but raising the importance of the process, formalising it, and making it more accountable—is a very big step forward in terms of our impact. Added to that, the notification arrangement and the significant concerns that are referred to again reflect practice. We would not walk away from a disastrous prison and not do something. We do act, and in fairness to the National Offender Management Service as it is now—Her Majesty’s Prison and Probation Service—it does respond in those circumstances. This is about making that process more transparent and accountable and putting names to the responsibilities. It is most definitely a step forward.
Rachel O'Brien: I agree with all of that. We recommended that stronger role for the inspectorate. There is a question about what happens in between inspections; that is sometimes a bit strange. There are top-level things that drive change for the three or four years in between. That is a question that we did not answer. We looked at the possible role of the independent monitoring boards, for example, to look at the more institutional day-by-day changes in the shorter term, but also new issues that might come up. The danger is that sometimes we say, “Those are the three priorities” and meanwhile something changes over here, in the local drugs market or whatever it is, so there is a question about what happens in between.
My overall accountability freedom issue would be that I worry about the balance. There are a lot of new accountabilities, still from the top-down league tables. Are those governors and new group directors going to have sufficient freedoms to make local decisions? That is the key question. That cannot be defined in primary legislation; it is much more about the narrative coming out from Government and so on.
Joe Simpson: The POA welcomes the changes, but do not think they go far enough, both for the chief inspector and for the Prisons and Probation Ombudsman. We would like to see the same legislative powers given to them as the Health and Safety Executive. If someone is going to inspect prisons, then inspect prisons and everything that goes on. If there are recommendations, someone should turn round and say to the governor “You are not doing something right.” If we are giving governors autonomy, it is not the Secretary of State who is running the prison—it is the governor. He is the employer and the person who is in charge of that prison, so they should get the 28-day notice. What is the point in putting that all the way back up for the Secretary of State, so that she can say, “Yes, we have an action plan”? We would rather see something coming from the chief inspector of prisons go to the governor to improve things, and if they do not improve them, the legislative powers akin to the Health and Safety Executive given to the chief inspector and the PPO. If we are going to have independence—the independent scrutiny of prisons and the independence over deaths in prisons—they should have that legislative power to turn round and make things change, rather than wishing for it.
Richard Burgon
Q I have two questions. First, following on from what Joe has just said, should the inspector review the resourcing and availability of staffing in prison, and should this Bill legislate to enable that?
Joe Simpson: Yes, because we have got a chief inspector of prisons and you cannot just go and do some parts of a prison and not do it all. You have got to look at everything. You have got to look at the safety—are there enough staff, are staff being looked after, are assaults against staff being investigated properly? Then you have to make the recommendations to the governor to get it right.
Richard Burgon
Q When you mention staff, Joe, is there a level of staffing beneath which you believe it is dangerous to go?
Joe Simpson: There is, yes. You have to have enough staff to do what we call the basics—to ensure that prisoners are safe and getting their meals, access to medication, access to education and access to fresh air and exercise. That is the basic minimum we can give, and everything above it is what we term the fluffy parts of prison. At the moment we are operating at that level. We believe that if the chief inspector has that legislative power things will change, because the governor becomes accountable and so does the Secretary of State.
Mr Gyimah
Q The role of the Secretary of State in the Bill is to be responsible for the whole system and accountable to Parliament. Just to make it clear, are you arguing that somehow the Secretary of State should not be in this loop at all, and that it should all be about the governor? In which case, how is the Secretary of State responsible for the system?
Joe Simpson: What I am saying is that if the chief inspector goes in and has the 28-day order, the notification to change something comes to the Secretary of State—it does not go to the person who can make that change. The Secretary of State gets it, and then you have a three-month intervention. They then come back down to the governor to say, “This is what is wrong. What are you going to do about it?” They give the plan, it comes back up to the Secretary of State, and then the Secretary of State announces it to Parliament. Why do we not just give it to the governor and, for want of a better word, copy the Secretary of State in so that they know what is happening? Then if things are not improving, the Secretary of State intervenes once the chief inspector turns around and says they need to do that.
Mr Gyimah
Q There is a line management structure that goes from the Secretary of State through HMPPS and the governor. If a prison is failing—for want of a better word—it makes sense to have the person who is accountable for the system, and the line managers of the prison, be aware of it and take action with the governor.
Joe Simpson: My answer to that is, why has not anyone done anything about HMP Featherstone?
Richard Burgon
Q The prisons and probation ombudsman touched on this earlier, and I just want to give everyone on the panel the opportunity to respond. The Howard League, the Prison Reform Trust and the Prison Officers Association have all highlighted the need for the purpose of prisons to commit to decent and fair conditions. The wording comes from Lord Woolf, who set it out in 1991. Would the panel members prefer the Bill to clarify that with reference to “decent” and “fair”, as set out by Lord Woolf in 1991?
Nigel Newcomen: Having made that point previously, I have to repeat that it merits consideration at least. I stick with my previous balancing point: we need to minimise the verbosity of the statements and limit the words, although maintaining an environment that is safe and secure will not necessarily ensure an outcome that is a “decent environment”, let alone a “fair environment” —again, Lord Woolf’s phrase. I hope that as the Bill goes through Parliament that will at least be explored.
Martin Lomas: I agree with that. In the inspectorate, one of our key judgments is “return of respect”. It is essentially saying the same thing and we see it as significant in defining a healthy prison.
Rachel O'Brien: I agree. For a long time, “decent, safe and secure” has been the vision, if you go into most prisons. Having that vision should be absolutely fundamental for institutions. How the new stuff is interpreted and kept simple and straightforward is what really interests me, as we talked about before.
Joe Simpson: We welcomed it. I was at Strangeways when it was done and we welcomed everything that was said. Yet again, it is another report that is gathering dust. We have seen this with different reports since I joined in 1987. My colleague has already had a go at the Corston report; it is 10 years old and nothing has happened. There has been the Mubarek report and the Woolf inquiry to end over-crowding—nothing has happened with any of that. If we are going to have a report, let us do what it recommends.
The Chair
We are coming to the end of the session. Two Members are indicating a wish to speak. We will take their questions and, if any Members wish to declare any interests, they can do so before we wrap up.
Mr Gyimah
Q On deaths in custody, I would like to hear Nigel Newcomen’s thoughts on how putting the PPO on a statutory footing is beneficial and what difference it could make to your investigations.
Nigel Newcomen: I am very clear that this is a step-change improvement in the situation for the prisons and probation ombudsman and I hope my successor benefits from it. It is quite astounding that a body tasked with investigating some of the most sensitive and secretive contexts in looking at deaths in custody and complaints in custody is basically dependent on the goodwill of those whom it is investigating for access to places, people and documents. The Bill rectifies this. This is something that not just I but parliamentarians of many hues have been calling for for many years.
There have been two previous attempts. You will note that there has been very little objection in any of the materials I have seen from NGOs. I think it will enhance the actual and perceived independence of the office, but more particularly it will improve the practical and investigative capacity and, I hope, contribute to the outcome of greater safety and fairness in custody.
Nick Smith (Blaenau Gwent) (Lab)
Q I want to touch on the point about the education and health needs of offenders. I will refer to the written evidence submitted by the Royal College of Speech and Language Therapists today that there is a high prevalence of speech, language and communication needs in the criminal justice system. It says that
“over 60% of young offenders have speech, language and communication needs”—
and that this affects offenders’ ability to engage with
“verbally mediated physical and mental health assessments effectively including suicide risk screening”
and their health and rehabilitation programmes. Will the Bill help to address these issues, particularly in commissioning health and education professionals to support offenders with these needs?
Martin Lomas: The Bill sets out the purposes of imprisonment, which are meant to take account of specific needs and rehabilitative agendas. If a needs analysis of a particular population group confirms that view—and I believe it—then that is a priority that the governor will need to emphasise.
If the Bill works, and that is to be seen, it gives opportunities for governors to make decisions locally based on their understanding of what is going on around them and the connectivities they can create with local providers and services. What applies to the specific case you have identified also applies to a range of other things to do with—for example, education or mental health intervention, partnerships with health authorities, safeguarding initiatives and all sorts of opportunities in that regard.
Rachel O'Brien: Yes, I think the implication of that key change is profound, but the prison system does not communicate well, generally, I would say, from top to bottom. It is a huge and complex system. We had Nils Öberg from Sweden over recently. He said the most important thing they had changed was how they communicate across the system. That goes right down to that level of forms and communication on the wings, how you do education, and so on. In my experience the best way to change that is not top down. Again, often the prisoners will say, “The way we are going to try to engage people in this is through a different format”—very visual, very simplistic. They will be best placed, often, alongside officers, to know how to do that, rather than that being mediated from above.
I am doing some work at the moment on something called the New Futures Network, which will look at how you drive innovation through the system. A key part of what we want to look at is the way we use animation, visuals and so on, right across the piece. That requires technology questions to be answered, but absolutely it is about innovation and fairness, and sensitivity in thinking about the audience. I do not think that is a kind of legislative issue in that way.
The Chair
A final brief question, because I want to give time for declarations, and a brief response, please.
Yasmin Qureshi
Mr Lomas, in response to a question about the educational aspect of things you said, “Look at the intention of the Bill and the purpose of prisons.” Bearing in mind we have been hearing about issues of self-harm and about suicide rates increasing, what about enshrining prisoners’ mental and physical health in the statute book, in clause 1, giving it parity with the four other things?
Martin Lomas: I have not really anything more to add to what has been said already. Yes, possibly: it is an issue and a priority. Whether that specific issue of detail should be one of the stated purposes of imprisonment is a judgment call. It could be. As an inspectorate we will inspect it whether it is a stated purpose or not. There will be an obligation to meet that need if you are genuinely meeting the purpose of being rehabilitative and reforming. Mental health, for example, is fundamental. It is a priority. It is in a sense a subset of the stated purposes already. As to whether or not it should be elevated into being a stated purpose itself and whether that will impact all the issues that Nigel referred to earlier—of course we would like it to be stated in those terms, but what about other things of importance? Her Majesty’s inspectorate of prisons has its own criteria. We operate to independent criteria and will look at health outcomes, including mental health.
The Chair
Are there any hon. Members who want to declare an interest before the end of the sitting?
The Lord Commissioner of Her Majesty's Treasury (Guy Opperman)
I declare an interest as a non-practising former barrister. I am still owed certain fees by the state and insurers even after seven long years, and I wrote a book called “Doing Time”, which unaccountably has not sold out, on prison reform—so I declare its existence.
Richard Burgon
I am a former practising solicitor—I am non-practising now. I used to be an employee of Thompsons solicitors who have an interest in matters discussed this afternoon.
Yasmin Qureshi
I was also a practising barrister. I stopped practising in 2010 but I have recently become a door tenant and I can now practise and may choose to practise.
Nick Smith
I am pretty sure it is not declarable, but I used to work for the Royal College of Speech and Language Therapists.
Nick Thomas-Symonds
To add to the point made by the Lord Commissioner of Her Majesty’s Treasury, the hon. Member for Hexham, I am still owed thousands of pounds in fees, some of which I think may be from insurers.
Sir Oliver Heald
I am a barrister, not currently practising, and I am the legal aid Minister, so I apologise, boys.
Robert Jenrick (Newark) (Con)
May I also declare an interest? I am a solicitor, not currently practising, and a prison visitor at HMP Lowdham Grange in my constituency.
Craig Tracey (North Warwickshire) (Con)
I chair the all-party group on insurance and financial services and was an insurance broker for 25 years.
The Chair
I am afraid that brings us to the end of the time allotted for the Committee. I thank the witnesses on behalf of the Committee for their evidence.
Ordered, That further consideration be now adjourned. —(Guy Opperman.)
Prisons and Courts Bill (Second sitting)
Tuesday 28th March 2017
(7 years, 8 months ago)
Public Bill CommitteesRead Full debate Prisons and Courts Bill 2016-17 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 28 March 2017 - (28 Mar 2017)
The Chair
We will now hear oral evidence from the Legal Aid Practitioners Group, Professor Richard Susskind, the Law Society, Women’s Aid and Transform Justice. We have until about a quarter past 3 for this session. Would the witnesses please introduce themselves for the record?
Richard Miller: My name is Richard Miller. I am head of justice at the Law Society.
Penelope Gibbs: I am Penelope Gibbs, director of the charity Transform Justice.
Polly Neate: I am Polly Neate, chief executive of Women’s Aid.
Jenny Beck: I am Jenny Beck, co-chair of the Legal Aid Practitioners Group.
Professor Susskind: I am Richard Susskind. I am IT adviser to the Lord Chief Justice and I chaired the Civil Justice Council advisory group on online dispute resolution.
The Minister for Courts and Justice (Sir Oliver Heald)
Q51 It is a joy to serve under your chairmanship again, Mr Brady. I thought I would start with some questions to Professor Susskind about the online procedure for civil and family courts and tribunals, which is dealt with in clauses 37 to 45. Then, after colleagues have put their questions, I will perhaps deal with cross-examination in family matters—clause 47—and criminal proceedings, which are dealt with in clauses 23 to 30 and 35 to 36.
Professor Susskind, I believe you have been the technology adviser to the Lord Chief Justice for many years and you are an advocate for the law adapting to modern technology. These proposals involve the use of digital processes, simpler rules and an online procedure rule committee to set them up. I wonder what your views are about whether the quality of this work will be as good as it is now—that it will not be not a second- class system—and what you think are the implications for the legal professions.
Professor Susskind: The motivation behind this is interesting. If one thinks of low-value claims—say civil claims—the current process is too costly, too time-consuming, largely too combative and largely unintelligible for the non-lawyer. Lord Dyson, the former Master of the Rolls, put it well when he said that any system that has a 2,000-page user manual has a problem, and that is the traditional civil justice system. I have long been an advocate of thinking of different ways of resolving disputes.
It seems to me that one argument that is often put is that we are going to allow people who can afford lawyers and legal advice access to the traditional court system, and those who use an online process will receive a second-class service, but our group—and, I believe, the Government—anticipates a system that is more accessible, more proportionate, quicker, easier to use and does not require people to take a day off work or pore through thousands of pages of rules, which seems to me to be a first-class service rather than a second-class service. It may be that, from a purist’s point of view, one can see advantages in the traditional system—I am a great believer in the traditions of the law—but for small, low-value claims, I think what is proposed here will be a great improvement rather than some pale substitute for the traditional system.
The implications for lawyers are very interesting. In so far as one of the great mischiefs sorted out here is that of litigants in person—that is to say people who represent themselves—then today lawyers are not involved in the process in any event. So for both litigants in person and for the great mass of people to whom we often refer as having unmet legal need—those who cannot afford or find too forbidding entry into the system in the first place—there is no impact on the legal profession at all, because the legal profession is not involved today.
As for the cases—they will probably be slightly higher value cases—that lawyers currently undertake, it is wrong to suggest that lawyers will be excluded from the process. There is a misunderstanding and ongoing debate about this. It has never been anyone’s intention that lawyers should not be allowed to participate; the intention is that this should be a system that people can use without the assistance of lawyers. My research is in medicine, law, tax, audit and architecture, and I think there is no denying that right across the professions we are seeing technology being used in ways that will reduce the number of some traditional jobs. On the other hand, new jobs will arise.
As I often say, the law is no more there to provide a living for lawyers than ill health is there to provide a living for doctors. It is not the purpose of the law to keep lawyers in a living. Lawyers, like all other industries, have to face the challenge of modernising and industrialising, and this is one of the consequences of offering far greater access to justice through technology.
Sir Oliver Heald
Q Do any of the other witnesses want to comment on the online court for civil cases, family courts and tribunals and whether it improves access to justice—the point that Professor Susskind just made?
Richard Miller: I think it has been readily accepted among many people who have discussed this issue that the system will work most effectively if there is good legal advice at appropriate points within the process. It may well be that the role of lawyers in this revised system is very different, but people who are looking to enter into any sort of dispute resolution system will want to know whether they have a good case, what evidence they need, whether any defence filed is valid and how to respond to it. There will be key stages within any case where good-quality legal advice will be essential if the system is to work effectively, but that is not to say there will not be a different role for lawyers within the system if it rolls out as is currently envisaged.
Sir Oliver Heald
Q Lord Justice Briggs said that it might be a role where a particular piece of legal advice would be given and then fixed recoverable costs would be involved, as a way of ensuring it could be funded. Do you have any views on that?
Professor Susskind: That is entirely feasible. I take the point entirely that there will be places where it would be beneficial to have the participation of lawyers. It might well be that we can, in an online process, involve lawyers in a more modular, occasional way, rather than an all-or-nothing way. If I am absolutely honest, we are to a large extent on new ground here. We can look at what has happened in Canada and what is happening in Singapore and Holland. We are feeling our way.
The overwhelming evidence is that online dispute resolution provides a cheaper, quicker, less forbidding service, but no one in the world has yet delivered an integrated service of the sort that the Law Society is sensibly anticipating, where lawyers can be involved in a structured, systematic way in the new process. I would welcome that, but again, we cannot forget the swathes of cases just now where people are self-represented or do not go to law at all, and lawyers are not involved. With online dispute resolution, there is the possibility of lawyers becoming more involved in some of those cases that they do not reach at all now.
Sir Oliver Heald
Q Perhaps I can ask one more question, before opening this up. Would you like to say a word about the benefits of virtual hearings and dispute resolution within this process?
Professor Susskind: It is important to draw a fundamental distinction—I am doing it in my terms—between virtual hearings and online process. With virtual hearings, there is a hearing: that is to say, there are people communicating with one another at the same time, but they are not all physically in one place; there is a video connection and an audio connection. Technologists would call that “synchronous”. Everyone has to gather together, and it may not be in one physical space, but there is a hearing and they are all attending it virtually. Online process is quite different. It is asynchronous: that means a party can submit a piece of evidence and a judge can respond, but they do not all need to be online at the same time. I am not sure if the Bill or people around the table are completely comfortable with that distinction between virtual hearings and online process. They are very, very different beasts.
The virtual hearing, in a sense, is a natural evolution from the traditional hearing. If people are vulnerable, if they are many miles away, or if it does not seem proportionate for them all to attend in person, why not attend by video and audio? That is the idea of a virtual hearing. It is an extension of the current system. An online process is often entirely different.
Nick Thomas-Symonds (Torfaen) (Lab)
Q I want to talk about virtual and online courts—I am with Professor Susskind in recognising that they are very different animals—in the criminal context. I will start with Penelope from Transform Justice. In your recent report you looked at an evaluation of the use of technology in the criminal courts back in 2010. The report said:
“The evaluation of the pilot was published in 2010, and concluded that virtual courts as piloted were more expensive, may lead to more guilty pleas and longer sentences, and impeded the communication between lawyer and client.”
As we embrace new technology, how can we seek to deal with those worries?
Penelope Gibbs: With huge difficulty. I would say that the virtual hearings as done now are slightly different from the ones piloted in 2010 in terms of the cost basis, but we still have a huge problem about the relationship between the lawyer and the client. Every piece of research that exists suggests that that communication is impeded.
The other huge problem that came up in that research, which was under-reported, was that actually it reduced the number of people who used a lawyer. In that research, I think only 52% or something of the defendants used a lawyer, despite the fact that all had access to legal aid. So there was something about the circumstances of doing it virtually that meant that they did not use a lawyer, and I would say that the criminal system, in some ways like the civil system, is pretty unsuited to anybody not having a lawyer. It is very complicated and complex, the procedure is difficult and the law is difficult, so there are huge concerns about having people virtually, nearly half of them without a lawyer, with huge decisions being made about remand and sentence, and even the proposition of trial in the Bill by conference call or virtually where you can see people.
Nick Thomas-Symonds
Q This is a follow-up, first for Richard and then for Professor Susskind. Should youth defendants be excluded from the Bill’s provisions on virtual courts?
Richard Miller: There would be strong argument for that, yes. We see a clear difference between initial hearings in criminal cases where, for example, bail is being decided and subsequent administrative hearings. For subsequent administrative hearings—for example, where the client has been remanded in custody and is already in prison—having the video link from prison makes a lot of sense. Our members report to us that those sort of virtual hearings work perfectly okay.
The real concern is around the initial hearings, where a whole range of interactions lead to decisions on, for example, whether bail should be granted. The lawyer has to talk to their client and to the prosecution, and they might have to talk to the defendant’s family. There may be ongoing discussions while the case is being heard, with the magistrates coming up with ideas for bail conditions that the lawyer needs to take instructions on. All of those interactions are very difficult to have when you are holding a virtual hearing and the lawyer and the client are not in the same place. That is based on feedback from our members who are involved in the existing pilot projects: they find those interactions very difficult. There are real risks, and particularly when the client is vulnerable it is very difficult indeed to build up that necessary relationship of trust between the defendant and the lawyer to ensure that the right outcome is reached.
It is worth remembering that if in the hearing there is a situation where bail might have been granted but because the necessary instructions cannot be taken or necessary discussions cannot take place the client is remanded in custody, that has a significant impact not only on the client but on the public purse. That is particularly noteworthy, given that the Bill has as its first part—the prisons part—a clear aim to reduce the use of prison where appropriate and to make prison more rehabilitative. If we end up sending more people to prison who should not have been there in the first place, that really is running counter to what we are trying to do with the Bill.
Professor Susskind: I want to answer the question in a slightly different way. Incidentally, I think it is very dangerous to make assumptions about the future based on a report about technology that was written in 2010. We are seven years on from 2010 and I presume the technology was from at least a few months, if not a couple of years, before then. The transformation in video calls since then has been absolutely astounding. Think of the way in which we all use FaceTime and Skype. We are now entering an era of telepresence—I joke not. Recently, I offered someone a cup of tea when I was in a telepresence conversation with them by video. These systems are never going to be any worse: they are getting better and better. Strategically—and this is where we have to have a collective vision—our role is not to think, “How was that technology X years ago when we looked at it?” but rather, “How will it be in two or three years’ time?” It is only going one direction.
Is it not interesting when you think of youth, because is that not such a common way for young people communicate now? Relationships are established through FaceTime and other similar types of videolinking. The assumptions we make as “grown-ups”—as one might say—about how we establish trust and communicate comfortably with others cannot necessarily be carried forward to people who have grown up in the internet era, for whom the conduct of a meeting and interaction via video may be more comfortable and comforting and give rise to a greater experience of trust than it would for our generation. We have to think of the next generation too.
Frankly, the research is not in the justice system. It is like the research we do at Oxford Internet Institute—considering how young people are using and adapting to technology. All the signs are that these technologies are becoming more and more powerful and people are more comfortable using them.
Nick Thomas-Symonds
Q I will just move to the online criminal convictions—this is clauses 35 and 36 of the Bill. This is a general question to the panel. Do you think there are sufficient safeguards in the Bill for defendants who use the automatic online conviction process? For example, how could you make an offender aware of the consequences to their employment status of having a criminal conviction? What are the safeguards to enable them to fully understand the consequences of that guilty plea?
Penelope Gibbs: That is a challenge. The Bar Council has suggested that only non-recordable offences should go on to the online conviction system, and I agree with that. To an extent, that would resolve some of the criminal record issues, because non-recordable offences are not added to the police national computer. They can attract a rehabilitation period, but they do not come up in Disclosure and Barring Service checks. That is one of the issues.
If we move on to recordable offences that do attract a criminal record, it is absolutely crucial that people are given full information. A criminal record is not just a barrier to employment: it is a barrier to education, travel and housing. Also, something might be minor and recordable, and you think, “Oh well, that is okay,” but if you have two minor offences, they come up on a DBS check. So if you apply for lots of jobs, they will come up. It is a complex area, and it is crucial that the online conviction system does do that.
It is also important that the system gives people an idea of what a viable defence is. There is an idea that people know whether they are guilty or not. It is true that they might have done the deed, but if they have a legally viable defence, they have a good possibility of being acquitted. This is a complex legal area, and it is crucial that the online criminal conviction court should go through what a viable legal defence is, and refer people to legal agencies that could help with that.
Sir Oliver Heald
Q Penelope, you mentioned the 2010 pilot, which was between a police station and the magistrates court and which did reveal some interesting lessons, such as how to schedule cases—that needed to be done better—the elements of a case that are best dealt with by videolink, and the importance of technical quality and reliability. I am sure you would agree that, since then, videolinks have been used successfully in the Crown court, magistrates court hearings and in many other ways, and that the lessons have been learned. Now videolinks are better scheduled, they are used in a more targeted way, and the technology has improved.
There are a lot of benefits to a videolink: for vulnerable witnesses it is often used as a special measure, it stops people having to travel long distances, it stops the wasting of police time, and the professionals find it increasingly helpful to be able speak to their clients at distance. Then there is the security side of it, which means you do not have a lot of people having to use prison transport. Do you accept that things have moved on since 2010?
Penelope Gibbs: They have moved on in a tiny way. I went to observe a court the other day and the videolink worked but the camera angle on the defendant was towards the top of his head and he was quite distant from the camera. People had real difficulties understanding what he said. That was just a month ago.
I would like to talk more about that case—
Sir Oliver Heald
Q Before you go on, on that point, in the Rolf Harris trial that recently concluded, the video evidence was given from Australia. That meant the victims did not have to travel thousands of miles. Surely that is a benefit?
Penelope Gibbs: Can I distinguish between the use of videolink for expert witnesses and other witnesses and defendants? There are different issues with witnesses, who will often benefit from a videolink, and defendants.
Sir Oliver Heald
Q Rolf Harris watched it from prison.
Penelope Gibbs: It was his choice to do so, but in the 2010 research, the evidence was that those who were on videolink got longer sentences.
On the police station videolink, it is worth going backwards and saying, “Why are so many defendants being detained by the police on quite minor charges?” When I twice observed videolinks the other day, those people had been detained by the police, they are produced in the videolink room and most of them were released immediately after that videolink appearance. One of the police stations that it was linked to was 15 minutes’ walk from the magistrates court and the cost of the journey—in the 2010 report; I do not know if it is the same now—was only £35. For a defendant to be participating in their own process, it is worth £35 to get them into the court, because all the evidence says it is a less good process. Also, crucially in the 2010 report, people on videolink got longer sentences.
Sir Oliver Heald
Q Do you not accept you are going back to the very early history of this and that since a whole range of videolinks have been set up in prisons and in other places right across the country, as well as in police stations? The whole thing has moved on in leaps and bounds over the last seven years.
Penelope Gibbs: I do not think the basics of what was looked at in the 2010 report have actually changed. Of the lawyers I am in contact with, I have not met one lawyer now who thinks they can have the same relationship and the same communication with somebody who is on videolink as if they are in the court with them.
Sir Oliver Heald
Q It has been made clear that there will be safeguards for the online procedure. Although I accept they have to be done well, it is a procedure that should be tried, given how simple it is for everybody concerned. Are you against even trying it?
Penelope Gibbs: I am not opposed to online criminal conviction if we are talking about non-recordable offences and if sufficient, very rich information is put on the net. I have many more concerns about online indications of plea.
Nick Thomas-Symonds
Q Jenny, one of the critical things in the virtual court environment is that people and defendants understand what is going on within that environment despite being on videolink. This is why I raised a concern earlier about young defendants. How do you feel the cuts to legal aid and the proliferation of litigants in person will affect the way people are able to understand what is going on when there is no lawyer present either?
Jenny Beck: It is a massive risk. The critical point is that those who are the most marginalised are the most affected. People who have difficulty understanding, people who have learning needs and people who have language difficulties are the most likely to be those facing the most difficulty. I can see a split in access to justice as a consequence. In the absence of really targeted lawyer intervention at very strategic points, including the introduction of early advice across the board for people, which would be a huge step in the right direction, from a qualified lawyer via legal aid, you can get into a situation where people will be pushed to the margins and miscarriages of justice will result.
Professor Susskind: I want to highlight something that is important in civil, family and tribunals, which is that the introduction of the online process is to be accompanied—this is crucial—by a highly simplified set of rules. That does not fully meet Jenny’s point, but I do not want people to think we are cutting and pasting the old rules online. The idea is that the system will be governed by a very simple set of explicit rules, a lot of which will be embedded within the system, so it will be intuitive and easy to use. There will always be the hard to reach, those who do not use technology comfortably, for example, and the Government have in mind some assistive technology services. I think we will need services for people who otherwise would find the process difficult, but for the lion’s share of people, who use Amazon daily or perhaps renew their tax online, the system should not be complex in the sense of its having a vast body of unintelligible rules.
Nick Thomas-Symonds
Q I have just one brief follow-up question for Professor Susskind—I am grateful for your patience, Mr Brady. How do you think the whole online courts idea affects the principle of open justice?
Professor Susskind: Again, we have to have a very clear distinction between virtual courts and online courts.
Nick Thomas-Symonds
I am asking about online courts.
Professor Susskind: Okay. Online, my view is that we can make a system that is far more transparent. What we have in mind when we talk about open justice is that members of the public—anyone—can scrutinise the process, understand the results and view justice as it is being administered. When I speak to the judges who are involved in thinking through what the online process will be like, they are entirely happy. For example, in tribunals, an ongoing dialogue between the parties and the judges can be available online and scrutinised. The decisions will be made available online.
I want to challenge the assumption that is often made that you need physically to congregate in a courtroom for a service to be transparent. That is only really available to the public who live nearby. What we have in mind is an internet-based service that could be subject to scrutiny and visibility by anyone who has internet access. It would be a different kind of transparency, but it is transparency none the less, giving far wider access to the process.
Michael Tomlinson (Mid Dorset and North Poole) (Con)
Q I will pick up on a couple of points that have been raised. Professor Susskind, you talked about technology improving. Just to give you an idea, I can remember using this technology myself in court as a practising barrister—I am now a non-practising barrister—both before 2010 and after. Since then, technology has been improving on a daily basis. I was particularly pleased to hear that the west of the country seems to be doing well in using technology.
My specific question is directed towards Richard Miller, and Penelope Gibbs as well. Richard, you were talking about concerns about defendants giving evidence virtually. Do you accept the benefits of, for example, vulnerable witnesses giving evidence virtually? For those who would be nervous or anxious about attending court, all those anxieties can be put to rest and they can give evidence from a safe distance.
Richard Miller: We do not have any major problem with that, subject to the judge’s overall control to ensure that justice is being done in the individual case. On the concern about bail hearings in particular, it is not so much the defendant giving evidence as the whole series of interactions that have to happen during the hearing and whether it is practical to accommodate all that within a virtual hearing.
Michael Tomlinson
Q If it were possible to overcome that, for example by having proper briefings with lawyers in advance and debriefings after the hearings, that would allay some of your concerns. Would that be fair?
Richard Miller: Yes, it probably would. We would obviously need to see the detail, but the main concern is to ensure that all those issues properly are taken into account.
Matt Warman (Boston and Skegness) (Con)
Q I used to write about technology and in 2010 I covered the launch of FaceTime. I wonder whether the panel collectively agree that commercial products such as that have fundamentally changed the way that almost the entire public engage with this kind of video communication. Sitting here trying to put my old journalistic hat on, we are talking about technology based on a report from 2010, but it seems fundamentally a different world. I suspect that Richard Susskind might agree, but I wonder whether Penelope Gibbs or Richard Miller could try to convince me that the technology of 2010 is even relevant in 2017.
Richard Miller: I want to pose a challenge in response to that: how far has the technology actually available in the courts moved on from 2010 technology? The real issue is whether the courts actually have this up-to-date technology which, as you say, is leaps and bounds ahead of what was going on in 2010.
Matt Warman
Q So it is not so much the principle as the technology? You were talking earlier, Penelope Gibbs, about the angle of the camera and how well people could be understood. Obviously, we would all want people to be understood and adequately photographed, but that is a very trivial thing in comparison to the principle of using digital technology, is it not?
Penelope Gibbs: I use Skype, FaceTime, everything, but still I think you will find in business, however much increase there is in the use of such things, that people will still get on planes and go halfway across the world to have a meeting with somebody. There is a consensus that seeing a person in reality, as we are in this room, makes a difference, in terms of the relationship, the body language and so on. So I would ask, is it truly necessary?
Here, I repeat that we are talking about very vulnerable people, who while they may be able to do FaceTime, certainly do not understand criminal law or the criminal justice system. They may be unrepresented, so while there may be extra barriers—they may have mental health problems, learning difficulties, et cetera—all these mean that even when they are in the court they struggle to understand what is going on and how to participate. If you put them at one remove, where they cannot talk to their lawyer—
Matt Warman
Q Just to challenge you on that: they have to talk to their lawyer in a different way. This is different, is it not?
Penelope Gibbs: They have to talk to their lawyer, but I urge the Committee to go incognito into a court with a video link and watch what goes on, and then look at a court where you have the normal interaction with the lawyer and the client; you will see that it is different. Every lawyer, at the moment, says that it is far more difficult. Obviously, you talk to them beforehand, you talk to them afterwards—you go into a separate room or you clear the court or whatever—but there are various barriers with this.
As I say, we are talking about people who do not understand the criminal justice system and the law already. So I would say it is not ideal to be virtual, even if that person uses FaceTime the whole time with their friends. It is a different situation. We are talking about people’s liberty here, or whether they get a criminal record for life or whatever. These are huge decisions and people meet person to person on purpose for things that are far more minor.
Matt Warman
Q Is not the other side of this, though, that for a lot of people the very process of travelling long distances to court, in many cases—I think of my own constituents—is what makes the system intimidating and unapproachable? It is part of the problem and to some extent, particularly for the vulnerable witness we talked about before, this can diminish those issues. I suppose what I am driving at is that you are making it sound like this is all bad, whereas actually you are even conceding yourself that some of it is good. Perhaps we should be a bit more nuanced.
Penelope Gibbs: Can I distinguish the views and evidence about witnesses versus defendants? They are totally different parties with different dynamics going on. Obviously, the defendant has much more to face if they are found guilty. Yes, it is difficult for witnesses: I am not opposed to witnesses appearing virtually, because they are doing a different thing and it is a different role. Even so, we have very, very little evidence in the way of research.
On the 2010 report, it would have been great if the Ministry of Justice had updated that subsequent to 2010 and so on. With witnesses, what we do not know, because we have not done the research, is what impact this has on juries and on the process of the court case. I absolutely agree that it is probably, in most cases, a better experience for witnesses, but I am also concerned that we need urgently to do some research to see whether it has a negative impact on juries. With regard to pre-trial cross-examination of witnesses, where it is not live during the trial and the jury does not hear the witness live, again, this might be a good thing for the witness, but we really need to know whether it is going to have such a negative effect on juries that cases will collapse.
Matt Warman
Q Richard Susskind, as the other side of this argument, if you like, how would you characterise the evidence for this working better?
Professor Susskind: When people say there is no evidence, I often say there is no evidence from the future: we have not actually introduced the kinds of system that many of us are anticipating. I suppose as policy makers, as politicians, what you are trying to do is make our country a better place and embrace technology where it is appropriate; I am not suggesting for a second that one introduces technology for the sake of it. All the signs, across so many corners of society, are that we can defeat problems of distance, overcome problems of excessive cost and make public services more accessible and more affordable by using a whole set of technologies.
I was not for a second suggesting that because you use FaceTime to chat, that means you should use FaceTime. I was simply making the point, and there is other research—this is not anecdotal; it is good empirical stuff—to suggest people would prefer to see their psychotherapists; people would prefer to see their doctors. People actually like some of the distance that the technology puts in place. A lot of assumptions are made that somehow the technology is putting people at one remove. In fact, people feel more relaxed.
I think there is sufficient evidence elsewhere to suggest that this is a proportionate way of resolving a great many of the disputes and problems that arise in a highly physical courts system—a system, incidentally, that is inaccessible for many millions of people who are disabled or who can attend only with great difficulty. It seems to me intuitive in the 21st century—I agree that we need to undertake research as we go along—that in a measured and controlled way, we introduce modern technologies as we are doing right across society. I cannot provide evidence from the future, but I can say that in so many other areas this seems to be a sensible direction of travel.
Jenny Beck: Could I make a very small observation from the coalface? I am also a practising lawyer. I use a lot of technology because I am a legal aid lawyer and, as a consequence of the advice deserts that have popped up all over the place because of cuts in funding, we often have to see people via FaceTime or take instructions over the telephone. It is absolutely a fact that the most vulnerable people find it less easy to access their justice via those mechanisms. I am not saying there is not a place for this, but it is a fact, in my experience, that that is the case.
Matt Warman
Q But these are the greatest challenges for digital inclusion full stop, are they not? This is not a unique problem for justice.
Jenny Beck indicated assent.
Liz Saville Roberts (Dwyfor Meirionnydd) (PC)
Q What is very interesting about this discussion is that we seem to have become very polarised in favour and against. It strikes me that perhaps we need to take a step back and look at the other considerations that need to be brought in to make this effective and not a risk in terms of justice outcomes.
If I may, I will make this slight comparison. I used to be responsible for teaching through video non-traditional A-level subjects—through the medium of Welsh, as it happens—to widen their accessibility, to 15 secondary schools in Wales. Of course, we constantly had the check of the results and seeing how the students who were being taught by video performed in comparison with the conventional teaching method. There is great potential in technology, as is being discussed, but I think there are issues in relation to the vulnerable and there are age—generational—issues as well, without beginning to touch on the nature of technology in some of our rural areas.
What worries me, and what I would like your opinion on, is how we bring this in and have the checks and balances to assess the research—whether there are different outcomes to justice in terms of this—and that this is not a headlong rush into technology in which some participants will actually suffer or there will be unjust results because of it. This cannot be polarised; it has to be something that we discuss as we go along.
Professor Susskind: I accept that it cannot be polarised. You obviously invite people along who are likely to take a position, and my position is a position of change. I have been involved with this for 35 years, suggesting that technology should be used more in the court system. I cannot say for a second that anyone has ever been rushing in; it has been a very slow, arduous and sometimes painful process.
I travel the world, have spoken in more than 40 countries and visited courts. We are, in this country, falling behind other courts, so we cannot be accused of rushing in. I fully agree, however, that to jump ahead in a foolhardy way would be silly. I am simply pointing out, and will say again, that in the context of civil law the current system is inaccessible, unaffordable and unintelligible—full stop. It seems to me worth at least introducing some of these new procedures to offer access to people who would otherwise never have had it. I do not find that contentious; in fact, on civil, I do not think I have been hearing great opposition to it.
Liz Saville Roberts
Q Forgive me, but what would the checks be as we change from one very well established and familiar system to a new system? What will be the checks from day to day that they are operating properly?
Professor Susskind: Are we talking about the civil system or the criminal system? Because if we are talking about the civil system, I have to come back at you. You say that it is a very well established system, but my view is that it is a system that suffers from very serious difficulties.
The last research was shown to suggest that 1 million people every year have justiciable entitlements and do not, or cannot, pursue their rights in the civil justice system. We have vast numbers of litigants in person who really struggle to understand the system. If our system was great just now, I would be very hesitant about saying we should replace it with technology.
If this is taking a polar position, I am happy to take one—we have a civil justice system just now that is inaccessible for the overwhelming majority of citizens. I want to say to you that it is surely worth introducing, for some low-value claims, a new way of offering access to judges and then monitoring it very carefully—maybe that is the point you want a response on. I think it is vital that we do ongoing research. The point is well made that we need to understand the impact as we go along and we need be willing to change direction.
As for the evolution of technology in the private sector and the public sector, we are not architects. You cannot design the finished building and say, “Here is what it is going to look like.” It is a bit of a journey. If you are hesitant about starting the journey because we do not have the checks and balances in place—we need to have the checks in the place. I think you will find that most leaders, both in the public and private sector, have a sense of direction and say, “Let’s start this together, monitor carefully and ensure we are delivering the benefits.” It seems to me that the option of saying, “Let’s not change at all because we cannot be certain how it is going to unpack,” is not an attractive one. The discussion we should be having is how we ensure, with all these new technologies, that we are monitoring their impact, and that there is an appropriate hand on the tiller when it seems it is taking us in different directions.
Liz Saville Roberts
Q Could you recommend what form that should take?
Professor Susskind: I am bound to say this, because in part I am an academic by background, but I think we need to move beyond anecdote. I can tell you what I heard in the court room that I visited—it was nothing like what was heard over here—but actually, what each of us says as individuals is less important than engaging serious researchers to undertake attitudinal surveys and surveys of people who have been through the process. That is the kind of work that we have seen someone like Hazel Genn at UCL doing over the decades—understanding why people go to the law, how they feel when they have been through the process and whether they have confidence in the system.
I have been strongly advocating, even for the civil system that I have recommended we introduce, that we should not rush in. We should think big, but start small. We should start small, monitor, evaluate, undertake serious academic empirical research, report back, invest where things seem promising and be prepared to accept if developments do not work out. We do not have the evidence yet so we have got to kick-start it somewhere. This, for me, is a call for an incremental—the technology would say an agile—modular step-by-step approach. If I was getting the sense that the Government were advocating a big bang—one single system, architect in advance—I would be very critical of that, but that is not the approach being taken.
Sir Oliver Heald
Q I was hoping we might move on to clause 47—the cross-examination in family justice. I was hoping to ask Polly from Women’s Aid, who is sat very patiently, one or two questions about this. Polly, could you give us a sense of the harm caused by victims being cross-examined in person by alleged abusers in the family courts?
Polly Neate: It is hard to overstate how harmful it is, actually; it is genuinely traumatising. In particular, it makes it very difficult for the family courts to play the role they should play, which is to put the child’s best interests first, when usually the mother of the child is not able to advocate adequately because she is being questioned by somebody who has put her through abuse—sometimes, years of abuse.
The other thing that is really important to understand about this—this is what is worrying about judges’ understanding, if I may say so—is that domestic abuse is not all about incidents of physical violence; it is all about control, and coercive control. The family courts are being used, if you like, as an arena for perpetrators to continue to exert the control over their partner or former partner, and in particular they are using child contact proceedings as a way of continuing to exert that control.
So it is not only that the person might be overtly abusive towards the survivor in the court, although that happens unfortunately. It is also that there are like trigger words and almost code words that a perpetrator can use when talking to the victim, which will mean something to her that is extremely traumatic but to anyone listening it would not necessarily appear to be abusive, on the face of it. That is why we say that the practice just has to be banned, because as an onlooker you cannot necessarily tell the meaning of what is being said between those two people, particularly—this often happens—after years of abuse and coercive control of all kinds, and psychological control in particular.
Sir Oliver Heald
Q We have been very grateful to work with Women’s Aid on this issue and for the help that you have been giving in trying to help with the training of those in the family justice system. Do you think the provisions in the Bill will help, and do you have any more that you feel needs to be done in terms of guidance and the judiciary?
Polly Neate: Absolutely, the provisions in the Bill will help. As you know, we very warmly welcome the move that has been made; I think it will make a big difference. We work on this issue with quite a number of women who have been through this experience and their reaction to the news that this is coming in the Bill has been quite amazing; there has been a very big kind of welcoming from women themselves. That is really important.
The only bit where I think we really need to take care is the level of judicial discretion in the other cases. So, we know that where an alleged perpetrator has already been convicted or charged, or where there is an injunction in place, automatically they will not be able to cross-examine the witness—the victim. However, there are other cases that will rely on judicial discretion and I guess my concern with that is, as I said, the understanding of judges. Their understanding of domestic abuse is what they will have to draw on in order to use that discretion. Very often their understanding is simply extremely inadequate, to be completely frank—particularly their understanding of coercive control, which is the key issue here.
Either the ban on cross-examination has to apply whenever domestic abuse is alleged, which would be our preference, or it is really vital that training for judges is absolutely ensured, and also that there is much better access to special measures in protection as well, so that the whole family court estate and system can be much safer for survivors of domestic abuse.
Sir Oliver Heald
Q Jenny, I know that the Legal Aid Practitioners Group has been very involved with this issue, as well.
Jenny Beck: Yes, we have.
Sir Oliver Heald
Q I do not know whether you would like to say something about all of those issues.
Jenny Beck: Yes, please. I echo all the points that Polly has made. I am also a family practitioner, so I go to court a lot and specialise in domestic abuse work. Last week, I had a client who did not give evidence in the case concerning her children, because she was terrified of being cross-examined. I know that the applicant in that case deliberately was unrepresented in order to be able to cross-examine her. That is a hands-on example of exactly what is happening, which is that perpetrators are using the court process to effect further abuse on their victims. We all know that; it is commonplace. It is not a special trick; it is very well known, so this is a hugely welcome move in the right direction.
Equally, I would like to see a widening of the last provision for the other cases to make sure that the representation covers the victim cross-examining in those cases as well, because that is not quite as clear as it is in the first two clauses. The reciprocity is quite clear in the first two clauses, but in the other cases there is a concern because, although legal aid is still available for victims of domestic abuse, there are still people who are not able to get it, because they have not got the right gateway evidence or because they are excluded on the basis of means or unable to make a contribution. It would be a perverse situation if you found that the perpetrator were able to be represented and the victim were not.
Sir Oliver Heald
Q As you probably know, on the evidence requirements, we have made partial announcements and we are reviewing it with the aim of making a fuller announcement fairly soon.
Polly Neate: Which is also extremely welcome.
Sir Oliver Heald
Q Richard Miller, do you want to come in?
Richard Miller: We also very much support the proposals. One of the issues that has been of concern, but I think is understood, is that there is a lot of comparison with provisions in the criminal courts. However, in the criminal courts, the victim is a witness in the case who comes in and gives evidence and leaves, whereas in the family courts they are a party and there is interaction throughout the entire process. It means this is a different situation with more scope for harm to be caused to victims of domestic violence within the family courts. We would want to continue to have dialogue to ensure that as much protection as possible is given in those circumstances.
We have identified a couple of specific points that we want to think about a little further. For example, the first provision talks about instances where someone has been convicted or charged. We wonder whether that ought to cover instances where they have been cautioned for the offence as well. That is something that might be added in.
The other issue that has struck us is that this protection will apply not just to the victim but also potentially to other witnesses, such as a child of the family who has witnessed some of the alleged abuse. In that situation, the child could be called on behalf of either party and therefore the issue might not be strictly cross- examination. That may also need to be looked at to ensure that adequate protection is there for all the vulnerable witnesses we are trying to protect.
Nick Thomas-Symonds
Q Clause 47 is very welcome. These protections have existed in the criminal courts for some time and to have them now in the family courts is absolutely right. Starting with Polly, what is your view on extending that principle to the civil courts more generally, even beyond simply the family court?
Polly Neate: This is why in the other cases where there was judicial discretion, I said we should discuss any alleged perpetrator of domestic abuse, where there is an allegation. I cannot see the benefit in any situation of any perpetrator of abuse being able to use any court directly to question or cross-examine the victim or the children in the situation. Coercive control does not only exist between a couple; it is something that is deliberately exerted by one person on the other members of the family, which very often includes the children. I want to back up that point, which was very well made.
I can think of no reason other than cost for the idea that someone has to have his day in court. I think that notion needs to be done away with altogether. There is no circumstance where that could possibly be a good idea.
Nick Thomas-Symonds
Q Jenny, I see you nodding. Do you share that view?
Jenny Beck: Yes. I would also add that it is in the interests of justice being done, of equality of arms and of ensuring that the system is fair. Any area where justice is not done because one person is unable to represent their case properly—it does not really matter which discipline it is—lacks fundamental natural justice. If we can do something to avoid that by putting measures in place to ensure that the evidence given is proper and robust, why would that not happen?
Nick Thomas-Symonds
Q The point presumably is that the court should never become an instrument for the extension of coercive behaviour.
Jenny Beck: Exactly, although there are a couple of ways in which that happens; it is not just in the cross-examination of expert witnesses. Perpetrators also prolong cases and bring additional unnecessary litigation within family cases, but this is certainly a welcome move in the right direction.
Penelope Gibbs: I think this is an excellent initiative; it just brings a question mark for me. If the person is to have aid cross-examining throughout a family case, why should they not be legally aided in the first place? It seems to me that the Government will probably spend as much paying the lawyer for their interventions in helping cross-examine as they would if they legally aided the person.
Nick Thomas-Symonds
Q Richard, can I come to you on the issue of funding? Clearly, there will be a court-appointed advocate who needs to be funded, but one curiosity is that the funding of the court-appointed advocate is left to regulation; it is not in the Bill. Do you think that it would be helpful if it were in the Bill, given how crucial funding is?
Richard Miller: Potentially. This issue is very much in the criminal sphere at the moment, because there is a proposal substantially to reduce the payments for advocates who carry out this role in the criminal courts. One concern is basically that the market will speak—if the rates are set at too low a level, you might find that lawyers are just not willing and able to undertake these cases. It is vital that whatever rates are agreed for this work are sufficient to enable advocates of suitable quality to conduct it. At the moment, we think that it is an issue of potential concern that we will not be in that position in the criminal courts if the proposals go through as currently suggested.
Richard Burgon (Leeds East) (Lab)
Q I have a question for the representative of Women’s Aid, then two questions on employment tribunals. Polly, are you in a position to comment on the effect of the nature of the MOJ estate on the elongation of abuse or coercive behaviour? It seems to me that there may be an issue with the layout of family court buildings and other things. Regardless of the welcome change set out in clause 47, which you also welcomed, is there anything that you would like to add about issues such as waiting rooms and so on?
Polly Neate: Absolutely. That is the kind of thing that I was referring to when I talked about the need to look at special measures as a backdrop to this. The court reform process now provides an important opportunity to improve the family courts’ ability to provide special measures. We believe that that should be a priority. Separate waiting areas are an obvious example. In the surveys that we have done of women who have been through the family courts and who are survivors of domestic violence, abuse within the court estate is incredibly common. Again, because of the coercive controlling nature of domestic abuse, sometimes it is not visible.
I will give you an example. I spoke to a woman who was in the same waiting room as her ex-partner throughout the whole time the case was going on, and any time she moved anywhere in the building, he would leap up and hold the door open for her as she walked through. To her, that was incredibly intimidating. He was constantly there whenever she went anywhere in the building. Anybody watching would not necessarily have seen that as abusive behaviour, but in fact, given the history of the relationship, it was extremely intimidating behaviour. If there had been separate waiting areas, it could not have happened—so, absolutely, it is very important.
Richard Burgon
Q On employment tribunals, I would be interested to hear what Richard Miller from the Law Society has to say. Our position on employment tribunal fees is well known. We would abolish the fees that were brought in in 2013 because we believe, among other things, that they have a really negative affect on access to justice, with a 70% reduction in cases being brought. Richard, are you in a position to give your view on the effect of the introduction of employment tribunal fees on access to justice in the employment courts?
Richard Miller: The Law Society is well aware of the research showing the 70% reduction, and what is more significant about the figure is that there has been no change in the proportion of successful cases. That means that legitimate cases have been deterred in the same proportion as frivolous ones. We think that the evidence makes it crystal clear that a lot of people who previously would have had access to tribunals to get justice in employment disputes are now not getting it.
Richard Burgon
Q That is very useful. My final question is to Richard Miller, and to Penelope in particular, if she has any thoughts on this. Clause 52 of the Bill talks about the composition of tribunals. As a former tribunal lawyer, I very much did not welcome—and Labour Members do not welcome—the reduction in the use of tribunals and the increase in instances of judges sitting alone. We do not make that point out of any partisan pro-employee or anti-employer position—we are, of course, not anti-employer. It is very useful to have an employer representative and an employee representative there to provide real-world experience to assist the judge. Clause 52 commits the senior president, or the president, of tribunals to extend even further the type of cases in which employment judges would be sitting alone, further undermining the tripartite nature of the tribunal. Do you think that the Committee should amend that?
Penelope Gibbs: I sat as a magistrate myself, so I am very much in favour of the use of lay judges in our justice system. It gives a different perspective from that of people who are part of the paid judiciary, of great quality though they are. I also have concerns about judgments made by people sitting alone. If you have two or three people discussing something, they can hear something, notice something, or bring a perspective that is very relevant to the decisions made, which is why we have benches of three magistrates. So I have huge concerns, and I also see it, I am afraid, as part of an ongoing diminution of lay justice, in that it is reducing or, potentially reducing, lay representation on tribunals while, at the same time, the number of lay magistrates has fallen by a third in the past eight years.
Richard Miller: From the point of view of the Law Society, when the proposal was originally consulted on, it was certainly read as suggesting there should be a default position of a single person deciding these cases, rather than the panel of three, and the Law Society was extremely concerned about that. It was particularly in the context of mental health tribunals and social security tribunals that we got very strong evidence from our members as to the benefits of the additional participants in the panel. It is something that has significant benefits across the board. Having it as a discretion for the senior president of tribunals is a much improved position from the idea of a default that there should be only a single person, but it is worth further thought as to whether it is extending the use of a single person panel further than is appropriate.
Nick Thomas-Symonds
Q Penelope, you mentioned that you sat as a lay magistrate. There is a provision in the Bill that abolishes local justice areas, which means a magistrate will not be allocated now to a particular area. Can you comment on the morale of lay magistrates at the moment and how you think it will be affected by the abolition of local justice areas?
Penelope Gibbs: The actual effect of this provision in terms of whether benches will be abolished is not quite clear. I would say if it becomes a situation where local benches of magistrates are abolished, that is a big problem. Already, there have been many amalgamations. Magistrates like to be part not only of their community geographically, but to be part of a community of magistrates. Therefore, even if we create a single justice area, I would say it is very important that benches remain, from the point of view of the morale of magistrates but also being able to communicate and have links to local agencies and people. Without benches, who is the local community supposed to go to when they want to interact with magistracy?
The Chair
There are no further questions. I thank all the witnesses for their evidence and we will move on to the next panel.
Examination of Witnesses
James Dalton, Brett Dixon and Rob Townend gave evidence.
The Chair
I welcome the next panel of witnesses. We will now hear oral evidence from the Association of British Insurers, the Association of Personal Injury Lawyers and Aviva. We have until 4.30 pm for the session. Please will the witnesses introduce themselves for the record?
Brett Dixon: Hello, I am Brett Dixon. I am the vice-president of the Association of Personal Injury Lawyers. We are a not-for-profit organisation that looks out for the interests of injured people.
Rob Townend: Hi, I am Rob Townend. I am the UK claims director for Aviva.
James Dalton: I am James Dalton, the director of general insurance policy for the Association of British Insurers.
Sir Oliver Heald
Q Let us start with you, Mr Townend. In recent years, since 2005, we have seen a fall in the number of road accidents, we have seen safer vehicles and we have seen a more than 50% increase in whiplash-related claims. Can you put this in perspective and tell us what you think the problem is and whether you think our tariff system is going any way to solving it?
Rob Townend: The first part, yes, we have seen a reduction in road traffic accidents and an increase in injury claims. From our perspective, it is the easy access to cash that has created the problem. In terms of your tariff, I think that will go part way with the other parts of the solution to deal with the problem around whiplash in the UK. It is interesting if you look at places such as Germany, where injury claims have fallen in line with a reduction in road traffic accidents.
Sir Oliver Heald
Q On what you think the problem is, you said “easy access to cash”. Would you like to explain the whole thing a bit more fully?
Rob Townend: The insurance industry has been part of this in settling claims too quickly. Some of that has been an attempt to avoid ongoing costs. A whiplash claim can get anything from £1,500 to £4,000. It is quite difficult to diagnose whiplash, so the propensity for claims has increased over the last 10 to 15 years.
Sir Oliver Heald
Q What do you put it down to? What is actually going on?
Rob Townend: I think it is claims farming, nuisance calls and people drawn to easy money. I think it is everything from “cash to crash” gangs to opportunists. Claims management companies are driving up claims and incentivising people to make claims.
Sir Oliver Heald
Q What about you, Mr Dalton? Do you agree? Do you think the tariff system will help?
James Dalton: I think the way Mr Townend has articulated the problem is exactly right. The behaviours that he described are symptomatic of a system that has too much money in it and incentivises lawyers to farm claims and to push claims into the system for insurers to pay, which drives up the cost of car insurance for everyone.
In terms of the Government proposals in the legislation, the tariff system is an important mechanism to provide clarity to claimants about the amount of damages that they will receive. That is an important clear signal to claimants in terms of ensuring that they get some compensation for the injury that they have suffered.
Sir Oliver Heald
Q Say that Mr Dixon says in a moment, “No, these are all genuine claims, and anyway they haven’t gone up; they’ve gone down.” That is something I have heard said. What would you say about that?
James Dalton: I am sure Mr Dixon will say that. He is being selective with the numbers he is using. There is absolutely no doubt that the number of whiplash claims has decreased. That is true—it is what the Compensation Recovery Unit statistics will tell you—but at the same time that the number of whiplash claims has gone down, the number of back injury claims has gone up significantly. Claimant lawyers re-labelling what is essentially the same injury as a back injury rather than a whiplash injury does not mean that the claim has gone away.
Sir Oliver Heald
Q The circumstances are the same, are they not? A shunt up the back, and then it is described as a back injury rather than a whiplash injury.
James Dalton: Correct.
Sir Oliver Heald
Q Well, Mr Dixon, are you going to tell us what I predicted, or do you disagree?
Brett Dixon: No, I was going to start by correcting something Mr Dalton said. It is not the claimant’s lawyer who enters the details for the Compensation Recovery Unit; it is the defendant’s representative. If they are being entered as back injuries, it is the defendant’s representative doing so. I am aware of that as a practitioner. The Government CRU statistics seem to me to be crucial to understanding this. If you look back—
Sir Oliver Heald
Q Can you explain what it is, in case anybody here does not know? It is the DWP, isn’t it?
Brett Dixon: It is. If you have an injury claim, the defendant’s representative informs the DWP—the Compensation Recovery Unit—that a claim is being made. Then there is a mechanism for the Government to recover costs such as NHS costs or benefits paid because someone has been unable to work. It is important that the money from the person who has negligently caused harm finds its way back into the Government system, rather than the Government and the taxpayer footing the bill, but what is important about those statistics is the simple fact that they effectively record the number of claims that go through the whole court system as well as claims settled before the court system.
If you look back six years, you can see that the Government figures show a 41% decrease in this type of whiplash claim. If you look at it in terms of neck and back—there are different recording mechanisms; they are all available and there to be seen—there is an 11% decrease over a similar period. The ABI’s own statistics also show that since 2013, which is roughly after the last major set of reforms, the cost of dealing with these types of claim is down 12%. They are saving approximately £500 million per year. There is not an issue in terms of cost.
I would urge the Committee not to be taken in by the hyperbole prevalent in the sector and think how we as a society we would want to deal with someone who has been genuinely injured as a consequence of somebody else’s negligence. There should be consequences for wrongs, and insurance is there and takes a premium to cover people in those circumstances. If there are issues with people pursuing claims that are not genuine, that is a completely different thing for the Committee to look at. We should not impact on genuine people and the fabric of our society in an effort to deal with that problem.
Sir Oliver Heald
Q So, Mr Townend, you are exaggerating the figures and these are genuine claims.
Rob Townend: There is a point around it being a choice for society—that is the one thing we agree with—whether people want to pay for these claims in their premiums; whether they want the ongoing nuisance calls; whether they want the fraudulent and opportunistic claims. We seem to think of this as victimless crime where people are not injured, but we have to defend our customers from spurious claims through the courts. We have had serious injuries and fatalities related to “cash for crash”.
In terms of the volume point, our volumes have been flat for the last three or four years. We still see significant variations between different areas of the country in terms of injury as a proportion of total claims. Somewhere like Exeter has 20% of road traffic accidents with an injury. If I go to Manchester, it is nearly two and a half times that. Why do they have weaker necks in Manchester than in Exeter? The road traffic accidents are no different, so that tells you the extent of the problem.
Sir Oliver Heald
Q If there are some savings here, is it right that Aviva has said that they will pass them on to the customer?
Rob Townend: Absolutely. We will guarantee to pass on 100% of the savings through the premiums.
Richard Burgon
Q Can I just start by clarifying with the Aviva representative that Aviva has chosen to pass that saving on? That is not compulsory; it is your organisation’s choice to do that.
Rob Townend: It is our commitment as an organisation. Most of you are aware of how the market works; it is a highly competitive motor market. There are a lot of underwriters and business providers. Whether claims costs increase or reduce, they typically flow through to our premiums.
Richard Burgon
Q To the best of your knowledge—obviously, you will know all about your competitors—is Aviva in a minority in taking this position to pass on the saving?
Rob Townend: I know others have. I do not know whether James knows more.
James Dalton: There are firms that, like Aviva, have committed to pass on the savings. As Rob said, the market is highly competitive. There are 97 businesses in the UK that write car insurance. If one firm fails to pass on the savings—that may happen—the premiums charged by that firm will be higher, so consumers will switch. There is a report out from the Competition and Markets Authority this morning that indicates that over 80% of consumers use a price comparison website each year to shop around for insurance. It is a highly competitive market, and the dynamics of that competition will ensure that savings are passed on to consumers.
Richard Burgon
Q So there is no figure at moment about how many of the 97 competitors have adopted Aviva’s approach? We do not know whether it is a minority or a majority of them?
James Dalton: There is no figure.
Richard Burgon
Q Finally, I would like to ask each of the panel members, starting with Brett, why, in your opinion, the Government do not seek to better regulate claims management companies, which unlike solicitors are free to cold call potential customers?
Brett Dixon: In my opinion, the Bill is a missed opportunity to deal with the real drivers of these types of claims, and that is claims management companies. I can see the argument that, in some respects, if you do not regulate claims management companies—which we would firmly support—and you do not ban pre-medical offers and cold calling, you are creating a circumstance where someone who does not have a genuine claim might see this as a one-way bet. By that I mean that you might be encouraged by a claims management company to make a claim. I am told that insurers make pre-med offers without any medical evidence and you can, in effect, make it up and not be able to be called to account, because you can stop before there is medical evidence. If you take rogue claims management companies out of the equation and ban this insurance-led practice of making pre-med offers then I think you deal with most of the problems in the sector that we are hoping to deal with through the Bill and maintain the position of the genuine claimant who wants access to justice.
Craig Tracey (North Warwickshire) (Con)
Q I shall start with you, Mr Dalton. Obviously, the Government are keen to get a definition of whiplash in the Bill, and I think it will be key to this being successful that we get that definition right. Does the current framework definition hit all the right spots, or should we be looking at something else?
James Dalton: This is a critical point. Clause 61 defines whiplash: we have some significant concerns, which go to my earlier comment that the definition does not adequately include cover for back injuries: it includes neck and upper torso but does not include back. We think that is a really important part of the jigsaw that needs to be included within this legislative framework, so that you capture the right type of claims. The risk if you do not do that is that whiplash injuries will become back injuries and they are not covered by this legislation.
Rob Townend: I have the same answer, really. We do not want to see a loophole where back is excluded and you end up with two systems, one for neck and upper torso and one for back. It adds complexity and reduces the number of claims that are caught by the legislation by about 60%.
Brett Dixon: Clause 61, particularly clause 61(1), does contain provisions for further regulations. I think it is important to understand what is intended in the regulations and how that would interact with it. I sound one note of caution as a practitioner: it would be within the realms of a medic or a medical expert to define what whiplash is. If you were to ask a medic, or you were to ask a lawyer to give a go at what a medic would say, they would say it is soft tissue injury to the upper torso and neck that has been caused by hyperextension or hyperflexion. The mechanism is as important: some thought needs to be given to involving a medic in the way that regulations are drafted. That is the most important point.
Craig Tracey
Q What about the MedCo definition?
Brett Dixon: The MedCo definition is something of a work in progress in many respects. There is a definition there that has been imported into the civil procedure rules and this draws in part from it. Just because it exists in the civil procedure rules and is used for MedCo does not mean that this is either a good starting point or the way to go. This is an opportunity to define it properly by using and involving medics.
Craig Tracey
Q What are the consequences to insurers if you get the definition wrong, in terms of additional cost? Has there been any analysis of how much more that will cost insurers?
Rob Townend: You will see displacement of claims from purely neck injuries to back injuries. The analysis we have done suggests that 60% of the claims that are currently wrapped under small soft tissue injuries will drop out. Without the displacement impact, where people will claim, I think it gives a loophole for fraudsters and I do not think it will help to reduce nuisance calls.
Craig Tracey
Any other thoughts?
James Dalton: No. I think the revised regulatory impact assessment from the Ministry will be extremely important for understanding the extent to which this definition will deliver the Government’s anticipated savings. Because I do not think it will, for the reasons I have already explained. So if we do stick with this definition, the regulatory impact assessment should show that.
Craig Tracey
Q That brings me to the cost. We have already said that Aviva has said that it will pass on the cost, as have other insurers. It was based on a £40 figure, wilfully, at the time, but I think that figure was based on the complete removal of soft tissue injuries. Has there been a re-evaluation of likely cost? What is the impact on other things such as insurance premium tax rises and discount rate changes, which we will obviously see? You can pass on a saving but that does not necessarily mean a lower cost.
Rob Townend: Let me deal with the exclusion of back, which has the biggest impact in terms of how the definition is written. Having a tariff instead of removing damages in its totality has a smaller impact. I think our analysis—we can share it properly with the Committee—was £4 or £5. So the bigger impact is in the reduction of back. The second part of the question was—
Craig Tracey
It was around other impacts such as IPT rises.
Rob Townend: The environment around motor pricing at the moment is really dynamic. IPT has been going up and the discount rate has significant impact on premiums for larger injuries. Adding these together, the opportunity to offset premium increases with a reduction in the cost of whiplash claims would be beneficial to consumers.
James Dalton: We have been very public about our view that the decision to reduce the discount rate to the extent that it has been reduced is absurd. There is a very important need to reform the system and we look forward to seeing the Government’s consultation on that in due course. Inevitably that has already led to increased car insurance premiums and an increase in the insurance premium tax. This makes it even more important to progress these reforms in order that premiums will not go up as much as they would were you not to proceed with these changes.
It comes back to the society question: do you want to live in a society where you have a claims culture and compensation system that drives the sort of behaviours that Rob Townend was describing earlier. I think the answer that most consumers give to us is that they are sick and tired of the cold calling and the text messages. This is the system that drives them.
Nick Thomas-Symonds
Q I have two points, Mr Brady, and the first is to Brett Dixon. The small claims track limit of £1,000 has been there since 1999. If you increased it by the same rate as the consumer prices index, you would end up with just under £1,500. If you increased it by the same rate as the retail prices index, you would end up with just under £1,600. Do you think there is any justification for going to £2,000 in most cases and £5,000 in whiplash cases?
Brett Dixon: I do not think there is any justification for it, to be perfectly frank with you. The use of a small claims track system is to identify those claims that somebody can deal with on their own, rather than it being about a monetary value. If you introduce changes to the small claims track at the same time as altering the court system to provide hearings at a distance—video evidence—you are going to make it incredibly difficult for a litigant in person to deal with and understand all those issues on their own.
Remember, the defendant who has paid an insurance premium has a right to call on those insurers to provide them with legal representation. I always think of it as being the person in the dentist’s chair on their own—that is what you would be as a litigant in person against well-represented opponents. I think that there is no justification, either monetarily as you have put it, or on the basis of the purpose of a small claims track.
Nick Thomas-Symonds
Q Perhaps Mr Dalton could answer another question. You are talking about a claims culture and all the rest of it. When we are talking about fraudulent claims, if there is sufficient evidence to plead fraud—and I appreciate there has to be a bar to plead fraud—the defendant lawyers, whoever they are, will plead the fraud and it is either proved before the court or it is not. I can remember my own involvement with these cases. You will have a number of cases where fraud has been definitively proven. Beyond that, any statistics are just based on suspicion, aren’t they?
James Dalton: No, not really, because the ABI produces statistics which indicate the number of detected fraudulent motor claims each year. In 2015, the last year for which statistics are available, there was £800 million of detected insurance fraud and there were around 70,000 cases. However, I think the really important thing to think about in this context is whether the reforms are designed to address fraud. I think that they will help to address the fraud issues that you have articulated, but again it comes back to the societal question: do you want the text messaging, the spam calls and that type of environment, with the money in the system that drives those sorts of behaviours?
Nick Thomas-Symonds
Q In how many of the 70,000 cases where you say fraud was detected were the frauds actually proven before the courts?
James Dalton: I do not have those statistics. Each insurer will decide whether they take further action; maybe Rob can explain how Aviva approaches it. Each insurer will make a decision as to how they deal with the case in question.
Nick Thomas-Symonds
Q You just made a statement about 70,000 cases of detected fraud and you cannot even tell me how many of those are actually proven before the courts?
James Dalton: No.
Suella Fernandes (Fareham) (Con)
Q I have defended parties in low-velocity impact claims, and the guidance is generally set out when an allegation of fraud is going to form part of a defence; it is set out in the Court of Appeal guidance for Casey v. Cartwright. What do you think is the problem with that guidance and how will these proposals assist? It imposes a burden on the defendant to notify that fraud will be part of the defence and, importantly, in many cases it will allow them to adduce medical evidence on the issue of causation.
James Dalton: There are a number of tools at insurers’ disposal to address the type of cases that we have just been discussing. Whether insurers choose to use them is obviously a decision for them and, as I said, Rob might be able to explain what Aviva’s position is.
However, the Government have recognised that fraud is a big problem in insurance. They established an insurance fraud taskforce, which has reported and made a number of recommendations for reform. The Government have delivered. For example, there is now a fundamental dishonesty action that insurers can plead in court, so that those claims that are so flagrantly fraudulent are kicked out of the system. We need those tools and we are using them to get rid of fraud from the system.
Rob Townend: It is a good question; I will answer two questions together. We started defending claims at Aviva a couple of years ago. We stood back and said, “Look, we’re not going to back away quickly. We are going to trust the courts to support us,” and we took a defence excellence strategy on behalf of our customers. If they are saying, “There wasn’t anybody injured. I might have been liable, but the speed of the accident didn’t cause injury,” we have been defending our customers through the courts for the last couple of years. I think we have put 1,700 through the courts; we have a success rate of something like 70%. More recently, we have had great success with fundamental dishonesty and the judges are generally starting to support us. I think we have had 174 cases where we have had fundamental dishonesty.
If we go to the other gentleman’s comment about fraud, we do not pay one in 10 of our whiplash claims. Some of that disappears when we challenge it. I invest millions of pounds in investigation analytics capability technology and we will challenge plaintiffs at the first point where we think the claim is linked to a gang and is spurious. We do not pay one in 10 of our whiplash claims at Aviva.
Suella Fernandes
Q Does Mr Dixon wish to comment?
Brett Dixon: Yes, I would—thank you.
In some respects, the debate has moved on from fraud and low-velocity impact. That is because of the provisions that were enacted in relation to fundamental dishonesty, which are in the civil procedure rules at rule 44.16 and in section 57 of the Criminal Justice and Courts Act 2015.
If a defendant thinks that there is fundamental dishonesty involved in a claim, they have two opportunities to challenge it. They can challenge it at the conclusion of a case, when the case is unsuccessful, and then seek their costs. They can also challenge a case if it is successful but there is a question mark over what has been claimed, and that can lead to a claimant losing all of their damages and to a cost order as well. There are sufficient drivers in the system and levers that can be pulled to discourage any type of claim like that.
It is important, though, to understand this in context. First, the most important thing is to consider proven fraud. I see in practice, from different members of our organisation, many allegations of fraud or fundamental dishonesty that are not made out when tested by the court. You only need to look at a recent Court of Appeal decision by Lord Justice Briggs in Qader & Ors v. Esure Services Limited to see that there is a developing gaming of the system by insurers to prevent people from being able to challenge those cases properly. That case was about trying to prevent a claimant from having access to the same tools to fight the allegations as a defendant has to bring them.
There was an implicit recognition from the Court of Appeal in that judgment that it is important that a person who is accused of something like that has the ability and resources to answer it. It is a serious issue for somebody accused of it and it is about what is proven fraud, rather than vague statistics of about 70,000 cases, where we are not quite sure whether it is fraud, detected fraud or suspicion of fraud and what standard that is at. It is for the judiciary to decide if that is an issue and, if it is found to be an issue, that person should be dealt with. Equally, if you are going to have access to justice and equal rights on a level playing field, they need the ability to challenge it in appropriate circumstances.
Chris Philp (Croydon South) (Con)
Q Welcome to our panellists this afternoon. About three years ago, my wife and I were involved in a relatively minor road traffic accident. For the year that followed that, I was phoned up on my mobile almost every week by people talking about the accident and trying to make me submit a claim for a neck injury. No matter how many times I told them that neither I nor my family had suffered any injury, they persisted in trying to incite me to commit fraud. Mr Townend, why were they doing that?
Rob Townend: I spoke a bit about it earlier: it is encouraging you to make a claim so they can access the cash. The referral fee ban that was put in LASPO obviously is not working. There are marketing fees available for people to attract you to make a claim. I agree with Mr Dixon and his earlier comment about regulation of claims management companies. Insurers and lawyers are heavily regulated; I would still like to see more regulation of the legal fraternity by the Solicitors Regulation Authority. The regulation around CMCs has been pushed back, I understand, to 2019. The referral fee ban has not worked. There is too much money still in the system and they will keep pestering. We know that. We have got a lot of examples where vulnerable customers are being contacted repetitively, like you were, until they make a claim.
Chris Philp
Q Am I right in saying that panel members are unanimous in their view that cold calls by CMCs should be banned?
Brett Dixon: Yes.
James Dalton: Yes.
Rob Townend: Yes.
Chris Philp
Q The panel is unanimous on that point.
You mentioned referral fees, Mr Townend. As you say, they were banned a few years ago. My understanding is that some organisations, including insurance companies, seek to circumvent the referral fee ban by entering into what they euphemistically term “alternative business structures”, where they essentially have some kind of equity stake in a claims management company and, effectively, get paid via their equity stake or similar arrangement, rather than an explicit referral fee. Is it the opinion of the panel that this practice, designed to circumvent the will of Parliament, is going on?
James Dalton: The referral fee ban is widely regarded as being relatively ineffective. The mechanism you have articulated is one of the ways people have chosen to get around that ban, including insurance companies and law firms, I would emphasise. That problem is addressed substantially by the reforms in this legislation, because what they do is take that money out of the system and, therefore, take out the incentive to try and circumvent a referral fee ban.
Chris Philp
Q Mr Dixon, do you want to add at all to that before I move on?
Brett Dixon: I will with an anecdote, more than anything else. I shared a similar experience to you where I had vehicle damage. I was not in the vehicle. It was in a supermarket car park and an older gentleman was kind enough to leave his details. I was pestered by my insurance company. I was even asked, “Are you sure you weren’t in the vehicle?” Take that on board.
If you have damage to your vehicle—your car that is insured—the first organisation that has access to knowledge that you have had an accident is the insurance company. They take referral fees for work—I am aware of that practice—and they also make a profit from referring such cases on. You only need to look at some of the reports that they make as part of the stock market requirements in relation to that.
Generally, if you take claims management companies out of the equation, you will remove one of the drivers. If you look at banning the practice of insurance companies and claims management companies referring work on, you go some way towards doing that as well. If you ban cold calls, for which the Association of Personal Injury Lawyers has been campaigning for some time, you remove the possibility of what I call the one-way bet and you are focusing then on the real problem, rather than on the genuinely injured person.
Chris Philp
Q Your mention of the one-way bet brings me to my next area of questioning. Take the example I experienced: had the recipient of that cold call been someone who was more open to temptation than I am and gone along with what the claims management company was suggesting, how would the claims management company have ended up making money out of an essentially bogus claim? They must be able to make money out of it, otherwise it would not be worth them soliciting the public.
Brett Dixon: It is the one-way bet analogy. If you then compound the problem by allowing an insured defendant to make an offer to somebody without seeing medical evidence, where are the checks and balances in the system? Bear in mind that a claims management company may be dealing with that, rather than a lawyer or a solicitor at that point. If you remove those two levers, those two drivers—the cold calling and the effect of a claims management company encouraging somebody to make it, and an insurance company then making pre-med offers without evidence of the actual injury—then you can deal with a lot of the problems that are inherent in the sector.
Chris Philp
Q Am I right in saying that under qualified one-way costs shifting, were an insurance company to take the choice to defend a claim, even if it were successful in defending that claim—if the claim was found to be without foundation—the insurance company would none the less bear both sides’ costs? Would it not further be the case that those costs would be substantially—probably by a factor of two or three—in excess of the value of the claim, and that is why for the past five, 10 or 15 years, insurance companies have simply coughed up without challenging the case? Perhaps Mr Townend might comment on that.
Rob Townend: Yes; I am one of the insurers who has been defending despite the costs.
Chris Philp
Q When you defend a claim and win, do you lose money?
Rob Townend: It depends on whether we then go for a costs order. We will try to if we think we will be successful in that. What is really interesting is that, in the model I operate, the only person I am paying as a result of an injury claim is the party who has been injured and their lawyer. How the CMC gets remunerated for that introduction, I do not really know. The only person I am paying cash to is the plaintiff and their lawyer.
Chris Philp
Q Presumably one of those two makes an onward payment to the claims management company?
Rob Townend: I do not know how it works.
Chris Philp
Q Mr Dixon, you practise in the area. How does the money get to the CMC—by magic?
Brett Dixon: I do not take any work from CMCs; I take the work from personal referrals. What I would like to do is to pick up on some of your questions.
Chris Philp
Q Before you do, you also represent the trade body representing personal injury lawyers, so you can answer in general terms. How does the money get from the claimant’s lawyers or the claimant to the CMC?
Brett Dixon: We do not recommend that any of our members interact with CMCs.
Chris Philp
Q I did not ask what you recommend, which I am sure is very virtuous; I asked what actually happens in practice.
Brett Dixon: I would not know what happens in practice because I don’t do it and our members are told not to do it either.
Chris Philp
Q They clearly do, otherwise CMCs would not exist.
Brett Dixon: We have a large membership but it is not all people who practise in the area. There may be areas where they are not APIL members where that practice goes on. To go back to your earlier point about the qualified one-way cost shifting and the effect of it, qualified one-way cost shifting was brought in to replace the after-the-event insurance policy, which was something insurance companies were making money out of.
Now, if a claim is not successful, then there are exceptions to the qualified one-way cost shifting rule. Take the example of the one-way bet, where someone has not actually had an accident. There would be two different provisions in the civil procedure rules whereby a defendant could get their costs paid. There would be fundamental dishonesty, and there would also be the fact that the claim would be struck out for being no cause of action, or an abuse of process. If there was no actual accident, then it is not a viable claim. It would be an abuse of process.
If the claim was successful, there is a provision in section 57 of the Act for them to recover in circumstances where there is a taint of fraud in relation to a fundamental, or large, part of the claim. If a defendant challenges a claim where there is evidence of fundamental dishonesty, or it is based on a one-way bet, there is a mechanism for them to be paid. It is a mechanism that is being used and, like any provision that you introduce into the civil procedure rules, the mechanism takes time for the courts to interpret and to bed in. However, there have been quite a lot of cases—at county court level, High Court level and some in the Court of Appeal—that are starting to shape how that works. The fundamental point is that, in those circumstances, there is a mechanism for a defendant to be paid for the costs they have incurred.
The final point you made was about the cost being two or three times the likely damages. If it is for a whiplash claim that is in the fast track, then that is fixed cost, so you will not get two or three times the damages. The only circumstances in which you would are if you have made a part 36 offer to the defendant and then gone on to do better than it. In other words, you offered to settle at an early stage and that offer was ignored. That is there to promote settlement between the parties and save court time.
Chris Philp
Q The phrase I have heard several of you use is this idea of a one-way bet. Given that it is a one-way bet, it is no surprise that the floodgates have opened in the past few years.
I would like to come on to the pre-med offer point, which is important. In clauses 64 and 65, legislation contemplates essentially banning pre-med offers where there has been a whiplash claim—a whiplash claim is defined as in clause 61. Would it not make sense, in relation to the banning of pre-med offers, to suggest that any personal injury claim in relation to a road traffic accident should involve a face-to-face medical examination, rather than just the whiplash claims, as currently drafted? Would that not be a much stronger way of ending the pre-med offer practice?
Rob Townend: From our perspective, absolutely. We would like to see a pre-med offer ban. In Aviva, we do not make any offers without a medical—again a decision we made—
Chris Philp
Q You are unusual in doing that, are you not?
Rob Townend: Yes, we are pretty unusual doing that. We looked at the overall system and said, “We do not want to feed it”. We wanted to make sure we have medical evidence around the settlements we make, and that we then follow through and defend those if we think the injury is not in line with either the accident—
Chris Philp
Q So the suggestion I just made is in line with your current practice, and it would effectively force the rest of the insurance industry to adopt the very commendable practice you are already adopting voluntarily?
Rob Townend: Yes, I think: do not pay a claim without medical evidence, whether that is a motor accident or a liability claim in the commercial courts.
Chris Philp
Q Mr Dixon, are you happy with that?
Brett Dixon: Very short and very simple: yes, ban it in all personal injury claims. Pre-med offers should not happen.
Chris Philp
Goodness me, there we are! A further usual outbreak of unanimity.
Rob Townend: There is one point to go back to. Do not end with a system with your current definition of whiplash that excludes back because, unless you do that, you will have no pre-med offers—
Chris Philp
Q There are two operative provisions in the Bill. One is in relation to the fixed tariff, and one is in relation to pre-med offers, and one might treat them slightly differently.
In relation to the definition of whiplash in clause 61, my colleagues have asked about this already but, having read your submission to the Committee, Mr Dalton, I think I am right in saying that you are concerned that the definition in clause 61(1) is too narrowly drawn. In particular, it excludes the back, and you are worried that there will be a sudden miraculous upsurge in people with bad lower backs.
James Dalton: Absolutely correct. I repeat the point I made earlier: getting the definition right is absolutely critical to ensuring the success of this legislation, in terms of delivering the outcome that the Government have articulated that they want to achieve. At the moment, I am concerned that by excluding back you will see a surge in back claims that are not covered by this legislation.
Chris Philp
Q To be clear, we have heard a figure of £1 billion a year of savings mooted in the past. If we adopt the definition as drafted, in your opinion what proportion of those estimated savings will in fact be realised?
James Dalton: I think you said earlier that Aviva’s figures suggest that 60% of the claims are probably going to be excluded, so take away 60% of £1 billion.
Chris Philp
Q The final question I would like to ask is about a matter I understand might be introduced into the Bill at a later date, which is to do with the discount rate used when paying claims for long-term injuries. It has recently been amended by the Lord Chancellor from, I think, 2.5% down to minus 0.75%. I would like to close by giving each of the panellists an opportunity to comment on that move and the impact it may have on the wider public.
James Dalton: The decision to reduce the discount rate by 325 basis points has imposed substantial costs on the insurance industry. By “substantial”, I mean to the tune of about £6 billion. That is about 60% of the annual claims cost of motor claims. That cost simply cannot be absorbed; it must be passed on to consumers. Premiums will inevitably rise as a result.
A number of firms have indicated in the public domain that that is the case. The Government need to put out the consultation they said they would produce so people can address the principles underpinning how a rate is set. At the moment, it is linked to Government bonds. No one goes and buys Government bonds. It makes assumptions that 100% of a claimant’s damages are invested in one asset class. No rational investor would do that. So the fundamental underpinnings of how the discount rate are set are fundamentally wrong, and we need to address that.
Chris Philp
Q In the absence of any change, what is your assessment of the percentage impact on the average car insurance premium in this country?
James Dalton: It will go up significantly. I think the impact on young drivers is going to be particularly bad, because those are the customers who are most likely to have catastrophic injuries. It is estimated that their premiums could increase by £1,000.
Rob Townend: I will not say a lot that differs from what Mr Dalton has said. We have got to sort out the methodology for setting out the discount rate, because I think nobody would say that it fits the current world, either from an investment return point of view or from the point of view of looking after those who are seriously injured.
The fact that there are so many variations of the potential solution that the Lord Chancellor could have chosen tells you that the mechanism does not work. At the moment, while the consultation is happening, there is a world of uncertainty around what will happen in the future. I think it is in everybody’s interest to get clarity around a longer-term rate that can be as formulaic as possible and looks after the long-term interests of those who are seriously injured while looking at the longer-term investment returns that lump-sum payments can achieve. We just plead that the consultation is got on with quickly. We would love to see the piece of legislation that it could be put into.
Brett Dixon: It is important to understand that you are dealing with issues at two ends of a different spectrum. You are talking about a whiplash claim, and in the same breath, in terms of the discount rate, you are talking about the catastrophically injured person. The important point in relation to that is that, first, the insurers have known for some time that this change was coming. It was long overdue. For a number of years they have made provisions in their own accounts for this, so to suggest that this has come like a bolt out of the blue is disingenuous.
Secondly, the changes are to ensure that a seriously injured person has sufficient moneys available to make provision for their future needs because of somebody’s negligent act. A lot of it is about care. If you are not making sure the person who did the damage is paying via their insurance policy, it will be the NHS and the taxpayer who ultimately have to foot the bill to look after that seriously injured person. What you will not change by changing the mechanism for the discount rate is the fact that that person is seriously injured and needs that care. It is right for society that the person who did the damage should foot the bill, not the taxpayer.
Insurers knew this was coming. I hear a lot of talk about how you cannot buy Government gilts. Because of the mechanism chosen in the Damages Act 1996, the person who is investing their money does so on the basis that they are taking a no-risk investment. That is why that is there. There are no other no-risk investments available. If you want a judge to calculate damages, he has to have a methodology and a starting point.
James Dalton: No one is arguing about whether these claimants need the support that an insurance company is going to provide. No one is saying that these people should get less money. What we are saying is that the formula for setting the rate, which is now 20 years old, needs to be updated to take into account the fact that it is linked to Government bonds and assumes 100% compensation. These things do not just happen in practice.
Sir Oliver Heald
Q I do not know if Mr Dixon and Mr Dalton would agree that the Lord Chancellor has had to exercise her duty in a quasi-judicial way under the existing mechanism as it stands. It is right for this to be a consultation about the future, but that was the law. Do you agree?
Brett Dixon: I agree entirely. The Lord Chancellor made the decision that she was legally required to make. She was exercising a quasi-judicial function when we made the reforms, introduced the Supreme Court and made other changes. That role was retained by the Lord Chancellor, even though setting damages is properly a judicial function.
James Dalton: I do not agree. The Government undertook consultation exercises in 2012 and 2013 specifically asking questions around whether the regulatory framework for setting the discount rate was right. Indeed, there is going to be a consultation now asking similar questions. To me, that suggests that the Government do not think that the framework is right. In that context, it also suggests that the decision that the Lord Chancellor has decided to take, based on legal advice, is questionable. I do not think that the way that she has taken that decision is right.
The Chair
If there are no further questions, may I thank the witnesses for their evidence and invite the Government Whip to propose the adjournment?
Ordered, That further consideration be now adjourned. —(Guy Opperman.)
Prisons and Courts Bill (Third sitting)
Wednesday 29th March 2017
(7 years, 7 months ago)
Public Bill CommitteesRead Full debate Prisons and Courts Bill 2016-17 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 29 March 2017 - (29 Mar 2017)
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
he Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
Yasmin Qureshi (Bolton South East) (Lab)
I beg to move amendment 9, in clause 1, page 1, line 10, leave out “aim” and insert “adopt procedures and practices designed”.
This amendment strengthens “aims to” in Clause 1.
The Chair
With this it will be convenient to discuss the following:
Amendment 10, in clause 1, page 1, line 14, after “safe” insert “, decent, fair”.
This amendment requires the purposes of prisons to include decency and fairness.
Amendment 11, in clause 1, page 1, line 14, at end insert
“for prisoners and prison staff”.
This amendment requires the purposes of prisons to include prison staff.
Yasmin Qureshi
It is a pleasure to serve under your chairmanship, Mr Brady. May I inform the Committee that we will be seeking a Division on amendment 10?
When we heard that this Bill was being introduced, everyone got very excited about it because it was advertised as a once-in-a-generation chance to reform prisons. However, when we actually went through the Bill, we found that it has left out many things that it should be dealing with. Although we welcome certain parts of the Bill, it does not deal with many of the things that are at the crux of the problem with our prison system.
I think everybody is aware of the fact that there has been disorder at Lewes, Bedford, Moorland, Birmingham and Swaleside prisons. Yesterday, we heard from the experts that violence against staff and inmates and suicides are at record levels. Hard-pressed prison officers need more numbers and resources to deal with prisoner violence and to make prisons safe. The Bill does not deal with the issues of overcrowding, understaffing and the proper rehabilitation of offenders.
The probation service is not working, and again the Bill does not address its issues. People should leave prison ready to lead productive and law-abiding lives, but that can be achieved only if prisons are safe, decent and fair places in which those being punished can also begin to rebuild their lives. It is with that in mind that we tabled these amendments.
Rather than simply aiming to deliver the purposes of prisons, we want to adopt prison procedures and practices designed to deliver the purpose of prisons. Therefore, we want to add the words “decent” and “fair” to the clause. We think the prison environment should be decent and fair. That was one of the central conclusions of Lord Woolf’s inquiry into the disturbances at Strangeways and other prisons in 1990, which remains the central foundation for everything that a prison might achieve. The link between safety and decency is also recognised by the UN’s Nelson Mandela rules, which require that, in addition to safety, prisons must maintain the dignity of every person in custody. To ensure the Bill is compatible with the United Kingdom’s obligations, that duty should not be assumed or implicit; rather, it should be made explicit in our legislation.
A lack of confidence in the complaints system among prisoners stubbornly persists. Fewer than 30% of prisoners reported to inspectors that they felt their complaints were dealt with fairly. That view was upheld by the prison and probation ombudsman, which has seen the proportion of upheld complaints rise from 26% to 40% in only five years.
Establishing the minimum standards of safety, decency and fairness in prisons should also be a matter for Her Majesty’s inspectorate of prisons. The Prison Reform Trust has argued that, on the purpose of prisons, we should also enshrine in statute the existing case law about what life in prison should be like, as set out in Raymond v. Honey in 1982, which states that prisoners retain all civil rights not taken away expressly by Parliament or by necessary implication of the fact of imprisonment, such as voting and freedom of movement. An annual reporting duty will be linked to the statutory duty of prisons.
Amendment 11 would insert the words
“for prisoners and prison staff”.
Prison officers work in some of the most challenging conditions, and the Bill needs to focus on protecting them. We must ensure that their safety and working conditions are taken into consideration. In 2016 there were 25,049 assault incidents, which was up by 5,995 or 31%. That included 6,430 assaults on staff, which was up by 1,833 or 40%. No measures in the Bill impact on the likelihood of violence. An official statistics bulletin recognises the role of staffing cuts in the rising violence:
“The rise in assaults since 2012 has coincided with major changes to the regime, operating arrangements and culture in public sector prisons. For example, restructuring of the prison estate including staff reductions, which have reduced overall running costs, and an increasing awareness of gang culture and illicit psychoactive drugs in prisons.”
On 15 November last year, members of the Prison Officers Association took national protest action over the failure of the National Offender Management Service to address concerns about health and safety before a court injunction required them to return to work. The POA said:
“The continued surge in violence and unprecedented levels of suicide and acts of self harm, coupled with the recent murder and escapes demonstrate that the service is in meltdown.”
Staff morale is low and the statistics show that the number of prison officers continues to fall, and the leaving rate is increasing, in particular after one or two years’ service, despite the recruitment efforts. Unless we recognise that prison staff—their rights and working conditions—must be considered within the scope of the legislation, there is little prospect of prisons achieving their statutory purpose.
The Parliamentary Under-Secretary of State for Justice (Mr Sam Gyimah)
Mr Brady, may I say how delighted I am to serve under your chairmanship on this historic day for our country? It is 65 years since the last major prisons Bill.
I am grateful to the Opposition for the points that they have made on the important issues of the debate, in which we are considering the statutory purpose of prison. From the outset, we should remember that prisons are there to deliver the sentences of the courts. As the Criminal Justice Act 2003 makes clear, one of the purposes of sentencing is to punish offenders, and of course this is important; but equally important is what we do with offenders when they are in prison.
The clause will make it clear in statute for the first time that the purpose of prisons should not only be to house prisoners, but include reforming prisoners and preparing them for a return to their community. Given the significance of that, I understand hon. Members’ interest. However, before I respond to the amendments individually, it might be helpful if I touch on four opening points to show how the statutory purpose fits within the broader prison landscape, as this will come up with some of the subsequent amendments that we will be debating.
First, we are enshrining the purpose of prisons in statute, to provide a clear common purpose that everyone working in the prison system, whether prison officers, governors, the independent inspectorates or the Secretary of State, can unite behind. Secondly, we have prison rules set out in secondary legislation, and therefore approved by Parliament. The rules are there to ensure the good regulation and management of prisons, and to make provision for the classification, treatment, employment, discipline and control of prisoners. They are also there to ensure that prisons are run fairly and to provide a clear legal basis for any interferences with prisoner rights. I emphasise the importance of prison rules in ensuring that some of the more detailed arrangements of running our prisons are captured in legislation.
Thirdly, our reforms will sharpen accountability through the system. We are clarifying the distinction between the Secretary of State’s role in managing the prison system as a whole and the operational running of individual prisons, which is for governors and their staff, as part of a new, operationally focused Executive agency, Her Majesty’s Prison and Probation Service. As hon. Members will be aware, the Secretary of State made a written ministerial statement on the introduction of the Bill which set out the standards for which governors will be held to account. Of course, they include security, such as the number of escapes or absconds from closed prisons, but they also include progress made on getting offenders off drugs, progress in health and in maintaining or developing family relationships.
To hold governors to account for these new standards, they must be free to manage. We are freeing them up to deliver change and devolving key operational policies to them, a subject I look forward to discussing further in amendments on minimum standards. The new performance management regime works with the purpose and prison rules by ensuring that a clear line of sight exists between the purpose and the standards.
Fourthly, we are enhancing the transparency and scrutiny of our regime. We already publish data on a wide number of different topics, for example, safety and custody statistics but we will go further because we want the public to understand that progress is being made in our prisons, so we will publish data setting out how prisons are performing. Data on some of the new performance measures will be available from October, as data start to be made public on a quarterly basis, and the performance agreements will be published from the summer. We will also publish performance tables to show how individual prisons are performing against key safety and reform standards. The table will present the data in a format that the user can rank by standard. It will be populated as data become available.
Finally, we will discuss later our approach to strengthening the independent scrutiny of our prison system through the prisons and probation ombudsman and Her Majesty’s inspector of prisons. All of that will contribute to assessing how the statutory purpose is being met.
As we consider the proposed additions to the purpose from the hon. Member for Bolton South East, it is important to consider whether they are rightly aims, or better suited to a different part of the new operational framework. I shall consider each in turn. Amendment 9 would replace “aim” with “adopt procedures and practices designed”. Although I understand that the hon. Lady’s purpose is to strengthen the clause, I am not sure I agree that it would do so. The Government consider that it is implicit in the drafted duty of “must aim to” that prisons must “adopt procedures and practices designed” to achieve those aims. As I have set out, the statutory purpose is designed to provide a common purpose that all parts of the justice system can unite behind. In my view, “aim” is a broader and more inclusive way of ensuring that all the different parts of the system can identify their role in meeting the purpose.
Amendment 10 proposes the inclusion of “decent and fair” in the purpose. I want to stress that of course the Government strongly believe that all prisoners should be treated fairly and with decency. It is absolutely right that decency and fairness are, and continue to be, essential elements of running prisons. That is why there is already a range of legal obligations to ensure that prisons are run in a way that is decent.
First, it is a general principle of public law that the public authority must act fairly with those whom it deals with. Many of the obligations we signed up to under the European convention on human rights, and which were incorporated into domestic law in the Human Rights Act 1998, are relevant to decency in prisons. For example, article 3 of the convention means that prisoners must be detained in conditions that are compatible with respect for their human dignity.
Prisons must, of course, comply with the Equality Act 2010 and ensure that they do not discriminate against a person with a protected characteristic, such as race or disability. That is also an important part of ensuring fairness and decency. Many of the minimum requirements that contribute to ensuring that prisons are run in a decent way are also set out expressly in secondary legislation, in the Prison Act 1952 and principally in the Prison Rules 1999, which are secondary legislation approved by Parliament in the usual way.
The provisions are detailed and extensive and cover a wide range of requirements. For example, they include rules on checking cells and cell conditions; the provision of wholesome, nutritious food; hygiene; beds and bedding; and clothing adequate for warmth and health. In order to ensure that prisons are meeting those minimum standards, all prisons have an independent monitoring board that examines all aspects of prison life in order to ensure that prisoners are treated with fairness and decency. I argue that it is better to focus on ensuring that the aspects of a decent regime are included in the prison rules, rather than in the Bill. Prisons are already bound by legislation that requires them to act with decency and fairness.
Turning to fairness, there are a number of safeguards in place in the day-to-day running of prisons to ensure that the regime is fair. There is, of course, the general public law duty on prisons to act fairly and there are statutory requirements in place too. For instance, should a prisoner be charged with an offence against discipline, prison rule 54 provides that the prisoner
“shall be informed of the charge as soon as possible and…be given a full opportunity of hearing what is alleged against him and of presenting his own case”.
Prison rule 45, on removal from association, requires extended periods to be authorised by someone who is external to the prison who can scrutinise the reasons for the segregation. Where a prisoner has exhausted the internal complaints procedure, he may direct a complaint to the prisons and probation ombudsman. The Bill puts the PPO on a statutory footing to ensure his permanence and give him statutory powers. I look forward to discussing the role of external scrutiny in prisons in more detail later.
It is, of course, vital that we treat prisoners with decency and fairness if we are to expect them to turn their lives around. I completely agree about the importance of ensuring that we do. However, I believe that it is not necessary to include such a provision in the purpose, because a requirement for a fair and decent regime already exists elsewhere in legislation.
Although amendment 11 raises a very important question, I am happy to confirm that we are confident that the clause already covers prisoners and prison staff without an explicit reference to both. There is a risk that including such a reference may inadvertently omit others working within or with prisons, such as charities, inspectors and civil servants, who also need to take account of the purpose while performing their duties. I therefore beg the hon. Lady to withdraw her amendment.
The Chair
The shadow Minister has already indicated that she wishes to press amendment 10 to a Division; it would be helpful if she indicated whether or not she wishes to withdraw amendment 9.
Yasmin Qureshi
I intend to press amendment 10 to a Division, but I beg to ask leave to withdraw amendment 9.
Amendment, by leave, withdrawn.
Amendment proposed: 10, in clause 1, page 1, line 14, after “safe” insert “, decent, fair”.—(Yasmin Qureshi.)
This amendment requires the purposes of prisons to include decency and fairness.
Question put, That the amendment be made.
Conor McGinn (St Helens North) (Lab)
I beg to move amendment 1, in clause 1, page 1, line 14, at end insert—
“(da) maintain an environment where it is safe for prisoners to practise their faith.”
This amendment guarantees the rights of prisoners to practise their faith in prison.
The Chair
With this it will be convenient to discuss amendment 2, in clause 1, page 2, line 7, at end insert—
“(da) ensure family and other supportive relationships are maintained and developed.”
This amendment requires the Secretary of State to provide a prison chaplain in every establishment.
Conor McGinn
It is a pleasure to serve under your chairmanship, Mr Brady. This is the first Bill Committee I have participated in from the Back Benches, having sat through five or six on the Front Bench as an Opposition Whip, but I will resist the temptation to speak at length despite that. I should declare an interest of sorts as someone who was previously a prison chaplain and the UK director of the Irish Catholic Bishops Conference commission for prisoners overseas. During two years in that role, I visited dozens of prisons across England and Wales—as far north as Frankland, as far south as the Isle of Wight, as far east as Wayland and as far west as Parc. I am glad to say that I served in that role at the pleasure of His Eminence rather than Her Majesty, and that I was free to leave of my own volition at the end of the day.
Mr Gyimah
I thank the hon. Gentleman for raising this important topic. As hon. Members are aware, there is already legislative provision in the Prison Act 1952 to ensure that every prison has a chaplain. The hon. Member for St Helens North asked for some information at the start of his speech on the amendment, and I will write to him with the breakdown requested.
Prisons are committed to enabling prisoners to practise their religions, and all prisons have multi-faith chaplaincy teams to facilitate and enable them in the practice of their faith. Secondary legislation, in prison rule 15, provides for regular visits to prisoners by ministers of religion. If a prisoner belongs to a denomination for which no minister has been appointed at a particular prison, the governor must arrange for visits by a minister of that denomination.
Instructions and guidance on religious practice in prisons is set out in Prison Service instruction 5/2016, “Faith and Pastoral Care for Prisoners”, which includes specific information on a wide range of religions and beliefs. The PSI was developed in consultation with NOMS faith advisers and includes specific information on the requirements to practise each religion. For example, the PSI requires that prisoners have the opportunity for corporate worship for one hour per week led by the relevant faith chaplain. For numerically smaller faith traditions, there is scope for prisoners to meet together under supervision, in the absence of the faith chaplains if needs be.
The PSI also makes provision for informal, unsupervised worship, religious study or meditation so that prisoners can also practise their faith in their cell, and they may have key religious artefacts and scriptures in their possession. Prisons will also meet the religious dietary requirements of prisoners, and prisoners are able to observe key religious festival dates. Given that those provisions and existing legal protections are clearly in place, I hope that the hon. Gentleman will withdraw his amendment.
Yasmin Qureshi
I just want to say that we support the amendments. Religion is important for many people. Safe provision of and access to religious faith leaders, whether a chaplain, an imam or whoever, are also important.
Conor McGinn
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Michael Tomlinson (Mid Dorset and North Poole) (Con)
I beg to move amendment 3, in clause 1, page 1, line 14, at end insert—
“(da) ensure family and other supportive relationships are maintained and developed.”
This amendment includes maintenance of family relationships in the purpose of prisons.
It is a great pleasure to serve under your chairmanship, Mr Brady. I am grateful to the hon. Member for Stretford and Urmston (Kate Green) for adding her name to the amendment. On Second Reading I challenged the Minister to consider whether issues of family ties and strong personal relationships should be in the Bill. That is why I have tabled the amendment.
As the hon. Member for Stretford and Urmston said on Second Reading, there was a huge amount of cross-party consensus on the importance that family plays in prisoners’ lives. I do not know whether you have had a chance to look at each and every word of that debate, Mr Brady, but the words “family” and “families” appear 80 times—more than the word “rehabilitation” and almost as often as the word “reform”. That indicates how important all parties consider the role that families should play in prisoners’ lives. There is a strong connection between all three: rehabilitation, reform and maintaining family links.
The hon. Member for St Helens North mentioned research showing the just under 40% rehabilitation rate. That is absolutely right, and it is from the Ministry of Justice’s own research that was commissioned in 2008. A very simple question was asked of a sample of just under 5,000 prisoners: did you receive a prison visit from family members? Of those who indicated yes, there was a 39% lower chance of their reoffending than those who had not received a prison visit. That is compelling evidence of the importance of maintaining close family ties.
Hon. Members who attended the Second Reading debate will remember the hon. Member for Bridgend (Mrs Moon) describing the work at Parc prison, also mentioned by the hon. Member for St Helens North. We heard of the life-changing outcomes of the work at HMP Parc, which is being adopted across the world. We want all of our prisons to carry out the work that is done so well in that prison, but family work has been frustratingly elusive to date. I say “frustratingly” because, of course, the issue was pointed out by Lord Woolf when he conducted his inquiry over 25 years ago; the importance of maintaining close family ties was one of his report’s 12 recommendations.
Having visited HMP Wandsworth and HMP Coldingley, I am conscious of the impact that reform prisons can play generally and in relation to family work. One of the first fruits of that devolution is that governors will have control over their own family service budgets. I welcome the clear intent from the Ministry of Justice to prioritise family relationships. I also welcome the appointment of Lord Farmer to draw up a much-anticipated report on the importance of family work. I believe that would be greatly strengthened if the Minister considered including that aspect in the Bill.
The Minister mentioned prison rules. Rule 4 already mentions families, so I ask him to consider that there is still inconsistent application of those rules, hence the variance across our prison estate. I would welcome his comments on that. Where respect for prisoners’ family ties permeates a prison, that can be instrumental in both prisoner reform and prison safety, which many hon. Members have mentioned. I ask him to consider including this matter in the Bill, but I stress that this is a probing amendment.
Mr Gyimah
In responding to amendment 3, I stress at the outset that the Government attach huge importance to prisoners, in the vast majority of cases, developing and maintaining supportive family relationships, which are critical to rehabilitation and reducing intergenerational crime. Families can play a significant role in supporting an offender. They are the most effective resettlement agency once a prisoner has been released, and research has found that prisoners who report improved family relationships over the course of their sentence are less likely to reoffend after release. Positive family relations have been identified as a protective factor in helping prisoners to turn their backs on crime.
Lord Farmer, working in partnership with Clinks, was commissioned to chair a working group to investigate how supporting men in prison in England and Wales to engage with their families could reduce reoffending and assist in addressing intergenerational crime. The Government will consider his findings and respond in due course. The evidence that his review has gathered will allow governors to deliver a local offer that best meets the needs of their respective prisoner cohort, thereby helping them to improve family ties.
However, the Government’s view is that maintaining and developing family relationships is already covered by paragraphs (b) and (c) of what will be new section A1 of the Prison Act 1952 when the Bill becomes law. Requiring prisons to aim to reform and rehabilitate offenders and to prepare prisoners for life outside prison is intended to capture a wide range of activity that is rehabilitative and helps to reduce reoffending. Maintaining family relationships is critical to both those aims.
I can also confirm that the role of the family is already contained in secondary legislation, as my hon. Friend the Member for Mid Dorset and North Poole pointed out. Prison rule 4 already ensures that “special attention” is paid to the maintenance of family relationships, so long as they are in the best interests of both prisoner and family. Furthermore, rule 4 ensures that both encouragement and assistance is provided for prisoners in establishing relationships with those outside prison that will best promote the interests of his family and his own social rehabilitation.
An explicit reference to the maintenance and development of family relationships for that purpose ignores the fact that, for some prisoners, such as violent domestic cases, that would not be appropriate and therefore should not be pursued. Family relationships are already covered in the aims, with important detail contained in prison rules. That strikes the right balance between the overarching aim of the system and the detailed way in which the management of the prison should be carried out.
Let me be clear about the importance of family ties and relationships. Lord Farmer refers to that as a golden thread that runs through prison life, which is why from autumn 2017 governors will control budgets for family services, such as visitors’ centres, family engagement workers and family learning, which includes parenting skills classes. Those reforms will help governors to improve the way in which prisoners can engage with their families. Governors will therefore be able to respond flexibly to the particular needs of their local prison population in order to put in place the programmes and services that will be of most benefit. They will be able to deliver a local family offer that best meets the needs of their prisoners, helping them to develop and maintain positive family ties and reducing the risk of reoffending.
My hon. Friend rightly said that we need consistent practice across the estate. The ideas that Lord Farmer has generated, which we are considering, will help to deliver such consistency. I hope that I have provided my hon. Friend with the necessary reassurance and ask him to withdraw his amendment.
Yasmin Qureshi
We support the amendment. I assume that the hon. Member for Mid Dorset and North Poole tabled it because although everybody says that it is important for offenders to maintain family relationships, in reality that is not happening. We find that many a time the offender is locked away in a prison about 300 miles away from his or her family, and the families are unable to visit either because of the great distances involved or because they cannot afford to travel several hundred miles or find the time to go—they may have young children or be elderly. There are all sorts of issues. Therefore, in reality families are unable to maintain contact with the offender, and the offender is unable to maintain contact with their family.
A number of constituents have come to me about this. A young woman has just had a second child, the husband has gone to prison and he has never seen his baby. She wants the father and the child to know each other, but because the distance to travel is so great and it is often so costly, in reality that is not happening. I ask the Government and the Prison Service to think about that. It is all very well saying, “Let’s maintain family relationships,” but we must ensure that the resources are there so that relationships can be maintained. Retransferring prisoners, perhaps to a location near to their home, if possible, should be considered urgently. I know from trying to get prisoners moved from one prison to another that it is an almost impossible task. It is all very well in theory, but we need something in the prison reforms to take place in practice.
By seeking to enshrine this provision in law, the hon. Member for Mid Dorset and North Poole is flagging up the importance of family relationships and ensuring that everyone is mindful of it. That is why we support the amendment.
Mr Gyimah
I want to make a couple of brief points. I acknowledge what the shadow Minister said about prisoners sometimes being located a long way away from their families. One of the facts about prison life is that prisoners often have to be moved. Sometimes prisoners want to be moved of their own volition, for example if they get into debt in prison or they are being bullied, and sometimes they do things that require them to be moved. At other times, for example if there is a major disturbance in a prison, it makes sense to disperse prisoners to deal with it. When that happens, we have the assisted visits scheme for those families who need help.
As we embark on reorganising the prison estate, we will be designing flexible facilities so that families can visit more easily, and the prisoner’s journey throughout their sentence will be organised in such a way that prisoners spend as much time as possible close to where their families are. That said, that is not always possible because prison life is incredibly complex. However, I take on board the points made by the shadow Minister.
Michael Tomlinson
I have listened carefully to the Minister and am grateful for his considered response to my amendment. All I ask is that when Lord Farmer’s report is widely disseminated, he does not close his mind to the possibility of the amendment’s wording being in the Bill. Obviously that will depend on timing. At present I am content not to press the amendment. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Liz Saville Roberts (Dwyfor Meirionnydd) (PC)
I beg to move amendment 4, in clause 1, page 1, line 14, at end insert—
‘(e) provide for the wellbeing and healthcare of offenders, including treatment for drug and alcohol misuse and assuring access to continued relevant support upon release.
(f) liaise with the Probation and other relevant services to ensure coordinated rehabilitation of offenders.’.
This amendment ensures that it is within the purpose of a prison to ensure offenders receive the appropriate physical and mental healthcare, as well as necessary rehabilitative support upon release.
The Chair
With this it will be convenient to discuss amendment 12, in clause 1, page 1, line 14, at end insert—
‘(da) maintain and promote physical and mental health of prisoners.’.
This amendment requires the purposes of prisons to include the wellbeing of prisoners.
Liz Saville Roberts
The amendment concerns the wellbeing and healthcare of offenders, the relationship with bodies such as probation and the co-ordinated rehabilitation of offenders. Despite reforms, the evidence is clear that the physical and mental healthcare we offer our prisoners still needs to be addressed. The purpose of prisons is undoubtedly to protect the public, rehabilitate and keep prisoners safe and prepare them for a life outside the institution. I welcome the inclusion of those concepts in this part of the Bill. However, it seems to be an obvious omission not to recognise specifically prisoners’ healthcare needs, both mental and physical. Equally, although the need to prepare offenders for life outside of prison is stated in the Bill, there seems to be somewhat a lack of foresight when it comes to expressing how prison should ensure a smooth transition into our communities by liaising with external organisations.
Let me inform the Committee of the statistics on healthcare: prisoners are 12 times more likely to suffer a personality disorder and 16 times more likely to suffer from psychosis; 10% to 14% of prisoners suffer a major depressive illness; two out of three have a personality disorder; seven out of 10 have alcohol abuse issues; and a third have a drug addiction on entry. I shall raise hepatitis C specifically under a later amendment.
The Government’s own regulator on the standard of healthcare in prisons, the National Guideline Centre, which is funded by the National Institute for Health and Care Excellence, said last year that it had become clear that healthcare provision in prisons was typically poorer than in the general community and not sufficient to meet prisoners’ needs. If we do not recognise that most basic of obligations, healthcare in prisons is likely only to slide. That in turn will mean a risk of significantly worse outcomes, both for offenders in prison and those leaving prison. By not recognising the need for a prison to cater for the basic needs of its inmates, we will continue to fail to address key issues that contribute to criminal and disruptive behaviour inside and outside prisons, which of course will only burden the state further in the long run.
The amendment would add new paragraph (f) to proposed new section A1 of the Prison Act 1952; that relates to the need for prisons to look outwards as well as inwards, to properly reintegrate offenders back into communities. The Bill indicates that it is entirely within the prison that an inmate will become proficient in skills and learn to deal with demands in the way that reintegration requires. The reality is of course very different. A prison must liaise with a plethora of organisations across the public, private and third sectors to ensure that offenders have the best possible chances of reintegrating. New paragraph (f) would ensure that that reality was reflected in the Bill.
I recognise, of course, that clause 1 could become a list as long as my arm; however, I feel that the two relatively modest additions in the amendment would reflect the necessity and reality of the way modern prisons function, which is not, of course, in isolation. I will not press the amendment to a vote now, but I hope that the Government will give it proper consideration and a full response.
Mr Gyimah
The Government are very aware of the serious challenges that mental health, drug and alcohol issues pose for offenders and the prison system. The Ministry of Justice is committed to working closely with my colleagues at the Department of Health, NHS England and Public Health England, to help to provide the right support and healthcare in prisons.
There is already a statutory underpinning to the health of prisoners; ensuring that prisons are safe is already one of the aims contained in the statutory purpose. Our duties under the Human Rights Act 1998, which, as I have said already, incorporates the European convention on human rights, are also relevant to prisoner wellbeing and healthcare. For instance, under article 2 we must take active steps to prevent suicide and self-harm in custody. Under article 3 prisoners must be detained in conditions compatible with respect for their human dignity and not be subjected to distress or hardship that goes beyond the suffering inherent in detention; the article also requires that, given the practical demands of imprisonment, prisoners’ health and wellbeing should be adequately secured.
There are also already many processes and protections in place in prisons to protect prisoners’ health. For example, health needs assessments help to ensure that accurate information is available on the provision of healthcare needed in each prison; and we are introducing new training for prison staff, including awareness training on supporting prisoners with mental health issues, so that governors and staff better understand the mental health issues of the prisoners they are helping to support.
As set out in the National Health Service Act 2006 as amended by the Health and Social Care Act 2012 and regulations, healthcare in English prisons is commissioned directly by NHS England. That is important because it is right that healthcare in prisons should be delivered by clinical experts. Governors do not have the qualifications or the capability to make clinical decisions about patients, so it is right that responsibility for those decisions should lie with those professionals who can ensure that patients receive the best care.
Governors are already under a legal duty, under prison rule 20, to work in partnership with local healthcare providers to secure access to the same quality and range of services as the general public receive from the national health service. Part of that involves making sure that governors facilitate access to the healthcare provided by NHS England, including giving security clearance to the right people and providing escorts to appointments. However, as set out in the Government’s “Prison Safety and Reform” White Paper in November 2016, we want to go further.
Yasmin Qureshi
Although everyone is aware that, theoretically, prisoners are treated for drug or alcohol misuse, in reality it is not happening. In reality, substance abuse is leading to more disturbances in prison and, of course, causing much reoffending. We are spending something like £16 billion tackling reoffending, so something is not going right. Many people are coming into prison because they are addicted to drugs or alcohol. I remember from my 20 years of prosecuting and defending in the criminal law that many of my clients and some whom I was prosecuting, often involving domestic violence, for example, were there because one partner was normally drunk and, in an argument, would start hitting out at their partner.
Young people I would see, who were often committing what we would call low-level offences—although I do not like to use that term—were often addicted to drugs. So, for example, they might be walking past a car with a door open or a window down, and if they saw a purse, they would take it; or they might break a window, take a purse and run off with it because they needed the money; or a mobile phone, which they could sell to get money to feed their drug addiction. In the same way, if they walked past a house with an open door and nobody seemed to be there, they often thought it was an ideal opportunity to go in and steal. I am not making excuses for anyone, but that is the reality of how things happened.
Why did those people do those things? Because they were addicted and they needed to find money quickly. They needed to sell something and get their next fix, to use a colloquialism. Therefore, as I think everyone knows, a lot of people who come into prison already have substance or alcohol abuse problems, and they still have those problems when they leave prison. It is therefore appropriate for the Committee properly to consider this issue, so we very much support the amendment moved by the hon. Member for Dwyfor Meirionnydd. It is one thing to say what should happen in theory, but that is not happening in reality. In reality, there is not enough provision in the Prison Service to deal with substance and alcohol abuse, and we know that that causes reoffending and violence. This really important issue needs to be addressed.
Mr Gyimah
I thank the shadow Minister for her points; I will make a couple of brief points in response. I agree that the level of violence—particularly violence related to the use of new psychoactive substances such as spice and mamba—is too high. In September, we rolled out a new drug test for psychoactive substances—the first and only such test in the world—so we are aware of the issue and we are dealing with it.
We are all aware that prisons are difficult places with some very difficult people to manage. The question is whether we need provision in the Bill to manage these issues. I contend that we need effective practice. When it comes to mental health, for example, we should ask whether processes work well in every prison and whether our prison officers are properly trained to identify how people present when they have mental health problems. I spoke to one of the people who works in our prisons about these issues, and they said that when a prisoner has a mental health problem or is considering taking their life, they enter a dark place and seek to cover their tracks and not really show what is happening internally. These are issues that we really need to train people on the ground to deal with.
I suggest that the amendment be withdrawn. This is about effective practice on the ground. We are alive to these issues, and we will get to grips with them by empowering governors to work closely with the agencies that matter, rather than by adding another list to the Bill.
Liz Saville Roberts
I thank the Minister for his comments. I note that he referred exclusively to NHS England. Healthcare is devolved in Wales; prisons are not. That in itself raises the question: to what degree are we consistent in our approaches, and does this issue really need to be raised?
Others eloquently made the point that mental health problems and alcohol and drug addictions are so significant among the prison population that their treatment is surely critical to both rehabilitation and reducing reoffending. The Bill refers to prisons aiming to
“maintain an environment that is safe and secure.”
That does not seem to fully reflect the gravity of the situation, which we need to respond to. I hope that the Government will consider that. However, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment proposed: 12, in clause 1, page 1, line 14, at end insert—
‘(da) maintain and promote physical and mental health of prisoners.’—(Yasmin Qureshi.)
This amendment requires the purposes of prisons to include the wellbeing of prisoners.
Question put, That the amendment be made.
Yasmin Qureshi
I beg to move amendment 13, in clause 1, page 1, line 14, at end insert—
‘1A Cooperation with agencies
(1) The Secretary of State has a duty to co-operate with other agencies and bodies whose functions are relevant to the purpose outlined in section (A1).
(2) For the purposes of subsection (1), agencies and bodies must include—
(a) local authorities,
(b) the National Probation Service,
(c) Community Rehabilitation Companies, and
(d) any agency which provides to offenders the following—
(i) housing,
(ii) education,
(iii) employment,
(iv) health care,
(v) treatment for addiction,
(vi) mentoring for offenders, or
(vii) support to families of offenders.’
This amendment requires the Secretary of State to co-operate with other agencies to fulfil the purpose of prisons.
It is vital that agencies work together to provide the best context in which to avoid reoffending. Many of the solutions to offending lie outside prison walls, in education and training, health and social care, accommodation and family support. A duty to co-operate introduced under amendment 13 would establish clearly in statute the vital importance of agencies working together to achieve the purposes of prison, and bind them to it.
The newly formed community rehabilitation companies are responsible for “through the gate” provision, but a recent joint inspection by Her Majesty’s inspectorates of probation and of prisons into the through-the-gate resettlement services found that the CRCs
“are not sufficiently incentivised under their contract arrangements to give priority to this work. Payment is triggered by task completion rather than anything more meaningful. Additional financial rewards are far off and dependent on reoffending rates that are not altogether within the CRC’s gift. CRC total workloads (and therefore income) are less than anticipated when contracts were signed. As CRCs continue to develop and adjust their operating models accordingly, CRCs are hard-pressed and are generally giving priority to work that is rewarded with more immediate and more substantial payment.”
Most concerning, the report also found:
“Too many prisoners reached their release date without their immediate resettlement needs having been met, or even recognised.”
The problems associated with CRCs are only exacerbated by the lack of co-ordination between relevant agencies. For example, housing is a crucial issue, with up to two thirds of prisoners requiring support to find housing once released. However, the inspectorates’ report found that prisoners did not know who would help them, what that help would consist of and when they would know what had been done. Many applications for housing made by those responsible were standard applications to local authorities.
At a recent meeting of the all-party parliamentary group for ending homelessness, however, when we were considering prison leavers, all the witnesses agreed that local authorities regard housing former inmates as a low priority. Furthermore, the APPG found:
“Local authorities do not record people who become homeless immediately after leaving prison and we do not know the scale of prison leavers who are hidden homeless.”
The Bill should attempt to overcome such lacuna by mandating closer co-operation between all relevant agencies.
On mental health, it is crucial to consider the effect of leaving prison on former inmates. A report published in 2013 found that
“those leaving prison are almost seven times more likely to commit suicide than the rest of the population”.
Michael Tomlinson
The hon. Lady mentioned the APPG for ending homelessness. Has she had a chance to consider the Homelessness Reduction Bill, on the Bill Committee for which I had the privilege to serve? It was a private Member’s Bill, and I believe that it has just completed its passage through the Lords as recently as last week.
Yasmin Qureshi
Any additional legislative reform is welcome, but problems still exist, which I am speaking to. In April 2016, the Centre for Mental Health published a report, “Mental health and criminal justice”, which called for a new concordat between different Government agencies, so that they can join together better to help people leaving prison.
Mr Gyimah
The amendment is about a duty for the Secretary of State to co-operate with other agencies and bodies whose functions are relevant to the purpose outlined in the Bill. There are already well-established ways of working between governors and different agencies and bodies, some with their own pre-existing legislation. For example, the multi-agency public protection arrangements provide a process through which the police, probation and prison services work together with other agencies to manage the risks posed by violent and sexual offenders living in the community, in order best to protect the public. Probation is one of the represented bodies, along with the police, local authorities, fire and rescue authorities and health, represented on community safety partnerships, which were set up under the Crime and Disorder Act 1998. The responsible authorities work together to protect their local communities from crime and help people feel safer.
Chris Philp (Croydon South) (Con)
Will the Minister confirm whether the Prison Service also works closely with the Home Office to ensure that we act quickly to deport foreign national offenders at the end of their sentences?
Mr Gyimah
I assure my hon. Friend that we work closely with the Home Office, which is ultimately responsible for deportation. The Prison Service has to facilitate its work in prisons. There is a lead Ministers group, including Ministers from the Home Office, the Foreign Office and the Department for International Development, which meets regularly to discuss all the issues about moving foreign national offenders under various schemes.
New legislation is not needed to ensure that co-operation between governors and other agencies and bodies continues; governors do that on a daily basis to ensure that different services, from education and employment to healthcare, are carried out. That can be seen in the relationships with employers, such as Timpson and Halfords, which run academies within prison to train offenders for employment on release, and in formal arrangements with NHS England to ensure that prisoners have access to the healthcare they need. We are introducing new performance measures to hold governors to account for their performance in a wide range of areas, including education and housing, and we expect governors to work closely with other agencies and bodies to do that.
The hon. Member for Bolton South East mentioned probation and, in particular, the community rehabilitation companies. I assure her that we are going through a probation system review and will publish the results shortly. That will deal with some of the challenges she outlined. Furthermore, the National Probation Service—as opposed to the community rehabilitation companies—is already covered by Her Majesty’s Prison and Probation Service, so the amendment would have the effect of creating a duty for the Secretary of State to co-operate with herself. We already have a formal contract with CRCs, so it would be unnecessary to create an additional duty to co-operate. I therefore urge the hon. Lady to withdraw the amendment.
Yasmin Qureshi
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Yasmin Qureshi
I beg to move amendment 14, in clause 1, page 2, line 7, at end insert—
“(2A) The Secretary of State must by regulation set minimum standards required to achieve the purpose as detailed in section (A1).
( ) Minimum standards in subsection (3) set under these regulations must in particular include, but shall not be restricted to, the following—
(a) overcrowding of prison cells,
(b) prison staff to prisoner ratio,
(c) access to appropriate and education,
(d) access to health care,
(e) access to time in open air,
(f) weekly time spent in locations other than cells, and
(g) Equality Act 2010 requirements.”
This amendment requires the Secretary of State to set minimum standards to achieve the purposes of prisons.
The Bill should require minimum standards in relation to the purposes of maintaining safety and decency. According to Silvia Casale’s 1984 publication “Minimum standards for prison establishments: a NACRO report”, the setting of those standards by the Secretary of State should establish
“certain basic conditions of life to which any human being is entitled as of right as bare minima while taking into account that a prisoner has forfeited for a period the right to liberty and that the punishment consists in, and is defined as, that deprivation”.
The two areas of major concern to us are overcrowding and understaffing. At the end of February 2017, 77 of the 116 prisons in England and Wales were overcrowded. Overcrowded prisons currently hold 9,676 more people than they were designed for. People have to double up in cells to accommodate the additional numbers, and that means that almost 20,000 people—nearly one quarter of the prison population—still share cells that are designed for fewer occupants, often eating their meals in the same space as the toilet they share. The prison system as a whole has been overcrowded every year since 1994. That is largely driven by a rising prison population, which has nearly doubled in the past two decades.
It is also concerning to note that in February the Ministry of Justice stopped the publication of the monthly overcrowding figures; for many years it has published monthly figures on individual prisons’ populations. The term “overcrowding” has already been rebranded as “crowding” by the Ministry, and now that vital indicator has been downgraded to an annual publication. The Government’s White Paper on prison safety and reform outlines the ambition for a “less crowded” estate, but contains little by way of concrete proposals to achieve that aim. Giving evidence to the Justice Committee, the chief executive of the National Offender Management Service, Michael Spurr, said that overcrowding would not be resolved in this or the next Parliament.
Analysis conducted by the Prison Reform Trust shows a correlation between levels of overcrowding and prison performance. In the past three years the proportion of prisons rated “of concern” or “of serious concern” by the Prison Service has doubled—the number now stands at 31 establishments. The number of prisons rated “exceptional” has actually plummeted from 43 in 2011-12 to just eight in 2015-16. Overcrowding can affect the performance of prisons in a number of ways, and it can impact on whether activities, staff and other resources are available to reduce the risk of reoffending. Inspections regularly find a third or more of prisoners unoccupied during the working day because prisons hold more people than they should. Overcrowding makes it more likely that basic human needs will be neglected, with key parts of prisons such as showers, kitchens, healthcare centres and gyms facing higher demand than they were designed for.
Overcrowding also has a significant impact on where prisoners are held and their ability to progress in their sentences. Every day, prisoners are bussed around the country to more remote locations just to make sure that every last bed space is filled. Prisoners progressing well are suddenly told that they have to move on, regardless of their sentence plan or where their family and loved ones live. Overcrowding is not just a case of two people being forced to share a space and toilet facilities designed for one; it also affects whether a prison has the appropriate activities, staff numbers and other resources necessary for the size of its population and to reduce the risk of reoffending.
The Government need to deliver a comprehensive strategy on prison reform to reduce overcrowding and the pressures on the system. The amendment would require the Secretary of State to develop one, and to outline the progress in meeting it. If the Secretary of State does not do that, there is little hope of prisons meeting the statutory aims outlined in the Bill. One of our top priorities is that we believe it is absolutely necessary to establish an appropriate ratio of prison officers to inmates.
Michael Tomlinson
Has the hon. Lady had the chance to consider the evidence of Martin Lomas, who was specifically asked about that yesterday? He said that a ratio would be “a crude measure” and that instead it is the quality that matters. Has she had a chance to reflect on that evidence?
Yasmin Qureshi
I sat through the sitting yesterday and heard what he said. With respect to him, I think that is quite a simplistic approach. Of course we recognise the fact that different categories of prisons might require different ratios, but that does not mean we cannot aim for one. Let us face it, it is common sense that if there is one prison officer looking after 12 prisoners, that is not right. Trying to work out a ratio is, in fact, very important.
Conor McGinn
I wonder whether the deputy chief inspector of prisons would think differently about the crudeness of the measure if he had to do a shift on a wing, rather than a visit.
Yasmin Qureshi
That is absolutely right. The reality is that prisoner ratios can be worked out. Obviously, I accept that the relationship might be different for category A and category C prisons. However, if we think about how many prisoners there are, the kinds of prisoners and the offences they are in for, it is not beyond human imagination to work out realistic figures.
The prison population has been stable, at around 85,000. At the same time, a number of prisons have closed and prison officer numbers have reduced from around 25,000 to less than 18,000. The latest National Offender Management Service workforce statistics, published in February 2017, show that there was a reduction of 6,450 band 3 to 5 officers between 31 March 2010 and 31 December 2016. The White Paper proposes recruiting 2,500 new prison officers. However, the chief executive of the National Offender Management Service, Michael Spurr, confirmed to the Justice Committee in November that the service would need to recruit more than 8,000 officers over two years to achieve a 2,500 increase, due to failure to retain staff.
NOMS statistics show that there has been a fall in officer numbers over the past 12 months. The latest calculation of the leaving rate among band 3 to 5 prison officers is 9%, which is an increase of 1.5 percentage points compared with the year ending March 2016. The shortfall of band 3 to 5 officers in post to the target staffing level at 31 December 2016 was 983, an increase of 1 percentage point from 4.3% in September 2016. Over half of prison establishments had a deficit of 5% or more.
Clearly the Government’s supposed recruitment drive is failing. Statistics show that only 18 establishments employ a full complement of band 3 to 5 officers. Some 89 prisons are operating with frontline staffing below that set through the benchmark process, and the data show that only 14 establishments are operating above their benchmark level for operational support grades, with 93 operating below that. Without a sufficient number of officers, there is no possibility of each prisoner being allocated a designated member of staff who will be responsible for their welfare while in prison.
In his annual report, Her Majesty’s chief inspector of prisons, Peter Clarke, said:
“Some prisons still operated temporarily restricted regimes to cope with chronic staffing shortages”.
Staff reductions mean regular use of restricted regimes, preventing prisoner access to recreational and rehabilitation services, such as physical exercise, education and training. That would lead to a number of prisoners facing depression and mental health issues, exacerbated by the fact that they are being locked up for, say, 23 hours a day. There are no measures in the Bill to deliver better rehabilitation services in prison or to address problems in the probation service. The major point is that without more staff, the statutory purposes of prisons will be unachievable.
Most alarming of all are the increasing levels of violence that have accompanied reductions in staff. Prisons have become dangerous places to work and dangerous for inmates. That is not acceptable. There were 37,784 reported incidents of self-harm to June 2016—up by 6,967, or 23%. We know that more and more assaults are happening in prisons. We need to ensure that the rise in assaults is dealt with. Overcrowding is causing so many problems in the Prison Service. We will revisit that subject when we come to new clause 8.
Richard Arkless (Dumfries and Galloway) (SNP)
Setting a benchmark in relation to prison cell overcrowding is an admirable objective, but will the hon. Lady be so kind as to delve into the policy aspects that would make that benchmark obtainable? We would need to create more prisons, let people out or have some kind of assumption against short sentences, which we think is a good idea.
Yasmin Qureshi
How many people we send to prison is clearly an issue. Many argue that there has been sentence inflation in the last number of years. There are two approaches. The Secretary of State could say that she does not want to look at prison sentencing reform in the sense of either reducing prison numbers or sentence inflation. In that case, we need to build a lot of prisons and recruit a lot of people to man them. The other option is to look again at sentences and the question of whether people who are in custody should be. As a senior judge recently said, community service orders, which could be stringent, could be made more widely available. Presumably that would require the Sentencing Council to revisit sentencing issues, which of course is one of the political issues.
It would be good if the Government thought about sentence inflation. We know from the last number of years that more offences now have longer custodial sentences than 20-odd years ago when I started work. As a result, there are more people in prison. If we want to have a policy of incarcerating people, we must ensure that there are enough prison spaces and enough people there to look after them—and to deal with the rehabilitation side, because we spend £16 billion a year on reoffending. Those issues need to be looked at, and there is nothing in the Bill to address them.
I apologise to colleagues for using statistics, because sometimes people can be blinded by them, but I use them to demonstrate a point. The fact is that there has been a large rise in assaults on prison officers and inmates since 2012. There has also been a large rise in self-harm and many incidents of people committing suicide. It is not surprising that every few weeks it seems a prison riot happens in some part of the country. I know from speaking to prison officers, the Prison Governors Association and other people about how they feel really depressed when they go to work in the morning, because they do not know what challenge there might be; who might assault them or what might happen. That must be addressed.
We are asking for the principles to be crystallised in statute. When that is done in statute, rather than put somewhere in prison policies or rules, or some manual tucked away that says, “This is the right way of doing things”, people have to be aware of it. By having that in the Bill, the measures that need to be achieved are there for everyone to look at.
Mr Gyimah
The amendment would require the Secretary of State to set a series of minimum standards to achieve the purposes of prisons. As I outlined, we want to put the governor at the heart of reform, ensuring that they have the ability to make decisions, innovate and be more responsive in meeting the needs of their prison. We are moving away from a centralised bureaucracy mandating the processes by which that should be achieved.
We are empowering governors by giving them the levers and controls they need to drive forward reform in their prisons. However, at the same time we are strengthening how we monitor and take leadership into account. That will include a more prominent role for Her Majesty’s inspectorate of prisons in specifically reporting on the effectiveness of leadership in a prison. We are giving freedom while sharpening accountability. From April, we will give governors greater authority to do their own workforce planning and design their regime to fit the needs of their prison; greater power over service provision in their prison, such as work in partnership with health commissioners to plan health services; and greater authority to decide how to spend their budget to deliver their strategy.
It is important that the Bill should not inadvertently take away control from those who are best placed to run our prisons. However, the amendment raises important issues. I am pleased to confirm that many of them are already addressed by secondary legislation. The Prison Rules 1999 include measures to deal with crowding, or overcrowding, which—to be absolutely clear—means having more prisoners per cell than it was originally designed for: two people in a cell designed for one, or three in a cell designed for two, which is happening in 25% of the prison estate. Section 14 of the Prison Act 1952 provides that every prison will have
“sufficient accommodation…provided for all prisoners.”
It further states:
“No cell shall be used for the confinement of a prisoner unless it is certified by an inspector”—
an officer acting on behalf of the Secretary of State—
“that its size, lighting, heating, ventilation and fittings are adequate for health”.
Rule 26 of the 1999 rules states:
“No room or cell shall be used as sleeping accommodation for a prisoner unless it has been certified in the manner required by section 14 of the Prison Act 1952… A certificate…shall specify the maximum number of prisoners who may sleep or be confined at one time in the room or cell to which it relates”.
Access to appropriate education is governed by rule 32:
“Every prisoner able to profit from the education facilities provided at a prison shall be encouraged to do so.”
Rule 31 provides that a prisoner
“shall be required to do useful work for not more than 10 hours a day, and arrangements shall be made to allow prisoners to work, where possible, outside the cells and in association with one another.”
Access to healthcare is governed by Rule 20, which ensures access to the same quality and range of services that the general public receive from the national health service. Rule 30 governs access to time in the open air:
“If the weather permits and subject to the need to maintain good order and discipline, a prisoner shall be given the opportunity to spend time in the open air at least once every day”.
Rule 29 governs weekly time spent in locations other than cells, allowing one hour of physical activity a week. As part of the privilege systems set out in rule 8, prisoners can also get additional time to associate. Like all public authorities, prisons are legally bound to comply with the requirements of the Equality Act 2010, including the public sector equality duty. There is therefore already a statutory framework for the sorts of issues that the amendment covers.
On the ratio of prison staff to prisoners, I agree that we need the right numbers to provide a secure and safe regime, increase staff confidence and have the resilience to deal with unexpected incidents that take staff away from duty, such as hospital escorts. We are therefore investing £100 million to increase staffing by 2,500 officers. However, that is only the start of what is necessary to provide a properly rehabilitative, supportive regime that engages with prisoners properly. We know from many sources of evidence that the relationship between staff and prisoners is fundamental in helping prisoners decide to turn away from crime, and that having the right support and challenges from a trusted prison officer can help them come to that decision.
Having a positive relationship with staff can also help reduce the drivers of self-harm and self-inflicted deaths. We are therefore changing to a key worker model, as mentioned in Lord Harris’s review into self-inflicted deaths on the youth estate. There will be a dedicated prison officer, on the landing, for each prisoner across the closed estate, on the basis of one officer for six prisoners, on average. They will spend 30 to 45 minutes each week with their prisoner to deal with complaints, talk about issues that affect them, encourage them to engage with wider regime activities and challenge offending behaviour. Probation will also be involved for higher risk individuals, case managing the prisoner, including sentence planning. That will be done by other prison staff, not officers. The governor will manage the levels of staff in their own establishment, tailoring the model to the needs of the population and regime availability. They will be empowered to vary the staffing regime as they see fit.
It is deceptively simple to propose a fixed staff-to-prisoner ratio. We will ensure that we have the right staffing levels to run safe regimes, but setting out a ratio in primary legislation would not be meaningful. That is partly because the ratio varies from prison to prison, and also because even within a prison it will vary from day to day. I have been in prisons where more staff were needed because they had prisoners on bed watch, and I have been in prisons that needed more staff on the vulnerable prisoner unit at a particular time because of a problem there. To have a fixed ratio would not exactly fit with a prison’s practical needs, and the prison governor, who understands the needs and is designing the regime, should be the one looking at that.
A future Secretary of State could meet the proposed ratio by, for example, filling prisons with staff acting as turnkeys and guards rather than key workers. That is why I agree with what the deputy chief inspector of prisons that a fixed staff-to-prisoner ratio would be “a crude measure”. The most important thing, as we look at the system that the Bill will set out, is to look at the outcomes from prisons. I hope that explains why we do not believe that it would be appropriate to include this measure in the purpose, and I beg the hon. Member for Bolton South East to withdraw the amendment.
Yasmin Qureshi
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Liz Saville Roberts
I beg to move amendment 5, in clause 1, page 2, line 12, at end insert “and
(b) steps taken in relation to meeting health targets specified by the Secretary of State on—
(i) blood borne viruses, and
(ii) substance abuse,
including the provision of testing and treatment for hepatitis C.”
This amendment ensures that the Secretary of State’s annual report on prisons includes targets on blood borne viruses and substance abuse and analysis of whether they are being met.
This probing amendment seeks to create an obligation on the Secretary of State to include in the annual report on prison governance an analysis of progress in meeting health metrics on blood-borne viruses and substance abuse, including the provision of testing and treatment for hepatitis C.
Hepatitis C is a blood-borne virus affecting the liver that can cause fatal cirrhosis and liver cancer if untreated. Around 214,000 people are chronically infected with hepatitis C in the UK. Around 90% of cases arise through injecting drug use, although there are other potential causes including overseas medical care, tattooing and receipt of a blood transfusion in the UK prior to 1991. People are able to live without symptoms for decades after infection, but untreated cases can lead to severe liver problems. Liver disease is one of the five big killers in the UK, and the only one of those where mortality is rising, and hepatitis C is the third most common cause of it.
Why are prisoners particularly at risk? Hepatitis C disproportionately affects disadvantaged and marginalised communities, and around half of people who inject drugs are estimated to have the virus. With around a third of the people in prison having injected drugs, rates of hepatitis C infection are particularly high among prisoners. A 2012 study from Scotland estimated rates of hepatitis C among prisoners to be almost 20%, and we might expect that rate to be similar in other prisons. Offering testing and treatment for hepatitis C is therefore a highly effective way of contributing to prisoners’ rehabilitation; indeed, by allowing them to focus on improving their health and wellbeing it is often found that they are better placed to address other issues contributing to their offending, such as substance misuse. It is also essential that this is carried out if prison governors are to meet the commitment to improve health outcomes.
In October 2013, the UK Government agreed to implement blood-borne virus opt-out testing in prisons. Testing rates for hepatitis C in prisons have improved as a result, rising from 5.3% in 2010-11 to 11.5% in 2015-16. That figure is still too low, however, and progress needs to be made on fully implementing the opt-out testing policy.
The prison environment is an ideal one in which to test and treat people who lead chaotic lives and may not have previously been in contact with healthcare services. With new oral drug treatments becoming available in recent years, which have considerably shorter treatment durations and markedly fewer side effects than previous treatments, the opportunity to treat people in prison is greater than ever before. Achieving a cure for hepatitis C can be a trigger for long-term addiction recovery and help people to take control of their lives. Offering treatment for hepatitis C can therefore be an important step in helping to prepare prisoners for their release.
I prepared that speech with the help of the Hepatitis C Trust, and I would very much like to hear the Minister’s response.
Yasmin Qureshi
We entirely support the amendment and agree with the points that the hon. Lady made.
Mr Gyimah
This is a probing amendment concerning a duty on the Secretary of State to include as part of her annual report to Parliament the steps taken to meet targets on blood-borne viruses and substance abuse.
Healthcare in prisons is provided by NHS England, which already uses health and justice indicators of performance and other data to report the performance of substance misuse services and blood-borne viruses. Those data inform NHS practice in commissioning and providing healthcare to prisons. For example, Public Health England, NOMS and NHS England introduced opt-out testing for blood-borne viruses for people in prison in the first national partnership agreement published in 2013. Full implementation across the whole adult prison estate in England is planned by the end of the 2017-18 financial year.
Data on the offer and uptake of testing and referral for treatment are measured through the health and justice indicators, which are based on information provided directly by healthcare teams in prisons to NHS England and shared with Public Health England. Additionally, data on people treated for substance misuse in prison and in the community are collected by Public Health England through the national drug treatment monitoring system.
Using those data, under the programme of co-commissioning that the Government are implementing, prison governors will be able to work with NHS England to commission healthcare services that meet their individual prison’s needs. That, of course, can include elements that provide testing and treatment for blood-borne viruses and substance misuse. I hope I have provided sufficient assurance to the hon. Member for Dwyfor Meirionnydd that placing this requirement on the face of the Bill is unnecessary, as a programme of work is already under way in this area.
Liz Saville Roberts
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Mr Gyimah
We have had a full and detailed debate on clause 1. It will not surprise hon. Members to know that in drafting the clause, the Government thought long and hard about what it should contain in view of the fundamental changes it makes to the current legislative framework.
The clause reforms the framework of the prison system, providing aims for the system as a whole to unite behind, clarifying the role of the Secretary of State and sharpening accountability. It modifies the Secretary of State’s overarching responsibility for prisons, removing the outdated duty to superintend prisons. The clause also reforms and modernises the Secretary of State’s accountability to Parliament for the performance of prisons. It replaces the existing archaic requirements to report on operational detail, such as hours of work completed in each prison and number of punishments, with a requirement to account to Parliament for the extent to which prisons are meeting the statutory purpose created by the clause.
Yasmin Qureshi
We have raised our concerns about the issues we think are important and should be covered in the clause. We hope that the Minister will reconsider some of those things on Report.
Question put and agreed to.
Clause 1 accordingly ordered to stand part of the Bill.
Clause 2
Her Majesty’s Chief Inspector and Inspectorate of Prisons
Liz Saville Roberts
I beg to move amendment 6, in clause 2, page 2, line 18, leave out “a” and insert “an independent”.
This amendment ensures the person appointed as Her Majesty’s Chief Inspector of Prisons has the necessary independence from Government and associated bodies.
The Chair
With this it will be convenient to discuss amendment 15, in clause 2, page 2, line 18, at end insert—
‘(1A) Before Her Majesty makes an appointment under this section, the Chair of the Justice Committee of the House of Commons shall recommend for Her Majesty’s consideration an appropriate person who in its view could satisfactorily carry out the functions of the Chief Inspector by moving a name on the floor of the House.”
This amendment provides that the Justice Select Committee should make a recommendation on the appointment of the Chief Inspector of Prisons.
Liz Saville Roberts
At the moment, there is no statutory obligation for the person appointed as Her Majesty’s chief inspector of prisons to be independent of Government and associated bodies, and I think we would all agree that it is essential that the chief inspector of prisons is independent. There are provisions in the Bill to empower prison governors to deliver on extra responsibilities, so it is more important than ever that independent chief inspectors of prisons are able to scrutinise and hold prison governors, as well as the Ministry of Justice, to account in a way that is beyond any question of bias.
We already have the Independent Police Complaints Commission, which in legislation is clearly stated to be just that—independent. In the Police Reform Act 2002, through which the IPCC was created, there are stringent tests precluding candidates with particular backgrounds, which might bring into question their independence, from becoming a chairman or member of the commission. The Government must recognise that that imposed, and legislated for, distance between any appointee to the IPCC and a body that that person might investigate is required also for senior prison inspectors. The inspectorate is already advertising itself as an independent body. Surely now is the time to enshrine this common-sense policy in law, both transparently and explicitly.
I will not press the amendment to a vote at this stage, but I hope that the Government will give a detailed answer explaining why they have not chosen to include this wording in the legislation and whether on reflection they might be amenable to a more specific and stringent statement.
Yasmin Qureshi
We support any attempt to ensure the independence of the inspectorate from the Government, so we support this amendment.
Mr Gyimah
These amendments concern the role of Her Majesty’s inspectorate of prisons. Increasing the inspectorate’s impact is one part of our plan to have in place effective mechanisms to monitor and improve performance. There will be new performance measures, on the outcomes of which governors will be held to account. We will create new three-year performance agreements, which will be phased in over the next two years.
If we are to hold governors to account for meeting the new standards, they must be given the power to deliver change. We are devolving key operational policies to give governors greater flexibility, and have already cancelled 101 policies to help to reduce bureaucracy for prisons.
We are empowering our leaders, but at the same time strengthening our monitoring of leadership. That includes a more prominent role for HMIP: for the first time in legislation, the chief inspector will be required to report on the effectiveness of leadership in a prison. We will set up a new quarterly performance committee, chaired by the permanent secretary. The committee will reach evidenced assessments of performance, both at individual prison level and across the system. We will also make data available so that the public and governors can see how prisons are performing across different measures. This monitoring is supported by other assurance activities, such as internal audit, providing a complete view of prison performance. It is clear that we will not be waiting around for the inspectorate to signal problems, but within this framework, external scrutiny is vital, too. We need independent, objective assessments of our prisons to hold the governors to account.
We are seeking in the Bill, and specifically in clause 2, to achieve a number of aims for HMIP. I will set those out before turning to the amendments. First, we are making changes to what the inspectorate is required to report on. Importantly, the chief inspector will continue to set his own inspection criteria and report to the Secretary of State on the treatment of prisoners and the conditions in prison, but in addition, when preparing inspection reports, the inspectorate must have regard to the statutory purpose of prison. That will align inspections with the new statutory purpose of prison. As I have set out, inspections will also be required to consider the effectiveness of the leadership in a prison.
Secondly, we are seeking to increase the inspectorate’s impact: we want inspection reports to lead to improvements. There is a requirement for the Secretary of State to respond to the findings of an inspection within 90 days. Where the chief inspector has significant and urgent concerns about a prison, he can trigger an urgent response from the Secretary of State, but as I have outlined, the system will not be waiting for an inspection in order to ensure that proper oversight takes place in our prisons.
Thirdly, we wish to enhance the statutory footing for the inspectorate to conduct inspections. For the first time, it is established in legislation that there is an inspectorate of prisons supporting the chief inspector. The clause also gives the inspectorate new powers to enter prisons and to request information so that they have the right tools to do their job.
Finally, clause 2 provides statutory recognition of the inspectorate’s role in meeting the objectives of the optional protocol to the United Nations convention against torture and other cruel, inhuman or degrading treatment of punishment, or OPCAT.
The final point is relevant to amendments 6 and 15 and is about independence. We have above all in the Bill sought to maintain the independence of HMIP. I hope the chief inspector would agree with me that his role includes being able to report freely on what he sees. We believe the Bill reinforces such independence.
Amendment 6 seeks to make it explicit that “an independent” person is appointed as chief inspector. The independence of the chief inspector derives from how the inspectorate is set up and how it operates. The chief inspector sets his own inspection criteria, so he decides what matters he wishes to look at and report on. He decides where and how inspections will be conducted. That includes, for example, whether inspections are announced or unannounced and the frequency of visits. The chief inspector publishes his own inspection reports, so the findings are not restricted in any way.
Following interest from the Justice Select Committee, we have just finalised a protocol between the Ministry of Justice and HMIP setting out the terms of engagement between the two organisations. Taken together, we consider the chief inspector’s independence is clear, and I am therefore not persuaded that amendment 6 is necessary.
Amendment 15 concerns the appointment of the chief inspector. Like other chief inspector posts, this role is subject to the Cabinet Office’s governance code on public appointments, which is overseen by the Commissioner for Public Appointments. The Commissioner regulates the processes by which Ministers make appointments to public bodies. The appointment therefore follows an established transparent process for public appointments. We agree that Parliament should play a role in such an important appointment. The Justice Select Committee is consulted on the job description and criteria prior to a recruitment being launched. The chief inspector appointment is subject to pre-appointment hearing by the Justice Select Committee. This allows the Committee to assess the preferred candidate and provide its views to the Secretary of State before any appointment. The Cabinet Office guidance on pre-appointment scrutiny states:
“In relation to the findings of the Committee, Ministers should weigh the views of the committee carefully against the evidence from the appointments procedure to reach a final view to ensure that the decision is made fairly and taking all relevant considerations into account.”
There is, therefore, an important role for the Committee, but, overall, I consider that the choice for this critical role should rest with the Secretary of State, who is accountable to Parliament for prison performance.
I hope that I have been able to set out our plans for strong, external scrutiny of the prison system, with an empowered, independent inspectorate at its heart. The Bill strengthens the independence of the inspectorate, and on that basis I hope that the hon. Lady is able to withdraw the amendment.
Yasmin Qureshi
We are asking for this provision because we think it is important that the chief inspector of prisons is independent from the Government and other associated bodies. I will therefore press the amendment to a Division in a few moments.
The Justice Select Committee looked at this issue and recommended that the Committee should be able to move the name of the person from the Floor of the House. This corresponds with many other independent bodies who have also expressed concern about the apparent lack of independence of the chief inspector of prisons. One of the former chief inspectors, Nick Hardwick, has publicly said that the question of independence is affected when the person somebody is reporting on is the person who will extend their contract, so there is a question about whether they carry on being employed by that person. We therefore say the independence aspect in this particular appointment is very important.
The Prison Reform Trust has said that the independence of Her Majesty’s inspectorate of prisons should be bolstered by having the chief inspector appointed by the Justice Select Committee. The Royal Society for the Encouragement of Arts, Manufactures and Commerce has stated:
“If the Secretary of State now has a statutory duty to support rehabilitation, with the prisons inspectorate charged with assessing this, then surely there is a logical and ethical argument for Her Majesty’s Chief Inspector of Prisons to be appointed independently?”
The Prison Governors Association has also said that giving new powers to the chief inspector of prisons is welcome provided he is able to hold the Ministry of Justice to account. So we welcome the changes in the legislation which bolster the powers of the chief inspector of prisons, but we think that going one step further and making him completely independent would make the system even better.
Liz Saville Roberts
It is right, I am sure everyone will agree, for the chief inspector of prisons to be beyond any doubt in relation to the independence of his role and of his judgment. It seems to me that this should be stated explicitly in the Bill. Amendment 15 would make changes to the appointment procedure. That would put what is proposed into effect and on to a robust footing. There would then be no doubt in that respect. I have some difficulty in understanding the Minister’s response, particularly in relation to the explicit use of the terminology of independence. None the less, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment proposed: No. 15, in clause 2, page 2, line 18, at end insert—
“(1A) Before Her Majesty makes an appointment under this section, the Chair of the Justice Committee of the House of Commons shall recommend for Her Majesty’s consideration an appropriate person who in its view could satisfactorily carry out the functions of the Chief Inspector by moving a name on the floor of the House.”—(Yasmin Qureshi.)
This amendment provides that the Justice Select Committee should make a recommendation on the appointment of the Chief Inspector of Prisons.
Yasmin Qureshi
I beg to move amendment 16, in clause 2, page 2, line 30, leave out “The provisions in this Act about” and insert “The operation of”.
This amendment requires the work of HMIP to be compliant with OPCAT.
The Chair
With this it will be convenient to discuss amendment 17, in clause 2, page 2, line 31, leave out “are in accordance” and insert “must comply”.
This amendment requires the work of HMIP to be compliant with OPCAT.
Yasmin Qureshi
The purpose of amendments 16 and 17 is to say that the work of Her Majesty’s chief inspector of prisons should be compliant with OPCAT, the optional protocol to the convention against torture, a treaty that supplements the 1984 United Nations convention against torture. It establishes an international inspection system for places of detention and requires “national preventive mechanisms” to be independent. Her Majesty’s inspector of prisons is one of 21 statutory bodies that together make up the UK’s national preventive mechanism. We know that the Government consider that the UK’s national preventive mechanism is already OPCAT compliant, but the previous chief inspector of prisons, Nick Hardwick, voiced concerns, as I mentioned earlier, that having to apply to the Government for reappointment compromised his independence. Amendments 16 and 17 would make this commitment to OPCAT explicit and have been welcomed by John Wadham, chair of the UK’s national preventive mechanism. To assume OPCAT compliance is not sufficient.
Mr Gyimah
Clause 2 provides statutory recognition of the chief inspector’s role in meeting the objectives of OPCAT. In the context of making changes to the provisions in the Prison Act 1952 on the chief inspector, we consider it helpful for the statute expressly to recognise the role of the chief inspector in relation to OPCAT. The UK is, and has always been, a strong supporter of OPCAT and we consider that we are fully complying with the international obligations contained in the protocol. OPCAT requires states parties to establish a national preventive mechanism to ensure regular, independent inspection of places of detention to prevent torture and other cruel, inhuman or degrading treatment or punishment.
Clause 2 captures the role of Her Majesty’s inspectorate of prisons in relation to OPCAT. However, the obligations contained in the protocol are aimed at the states parties to the protocol—thus, the UK—not the organisations that are designated by those states to be members of the national preventive mechanism. It would therefore be inappropriate to place upon the inspectorate international obligations aimed at the UK, as amendments 16 and 17 seek to do. In addition, the inspectorate alone would be unable to fulfil all the OPCAT obligations. The UK national preventive mechanism is in fact composed of 21 members from across the UK.
The statutory recognition of the inspectorate’s OPCAT role is an important change that I know is strongly welcomed by the chief inspector. Given the difficulties that I have highlighted, I ask the hon. Lady to withdraw the amendment.
Yasmin Qureshi
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Yasmin Qureshi
I beg to move amendment 18, in clause 2, page 4, line 19, at end insert—
‘(3A) In preparing a section 5A(2) report, the Chief Inspector must also consider the effectiveness of practices and procedures in the prison in relation to the protection of the rights of prisoners.”
This amendment requires the Chief Inspector to report on the rights of prisoners.
The Chair
With this it will be convenient to discuss the following:
Amendment 19, in clause 2, page 4, line 22, leave out “90 days” and insert “60 days”
This amendment requires a response from the Secretary of State within a set timeframe when a HMIP report makes recommendations.
Amendment 20, in clause 2, page 4, line 23, at end insert—
‘(5A) The response must set out the actions that the Secretary of State has taken, or proposes to take, in response to the concerns described in the report.”
This amendment requires the response from the Secretary of State to set out actions.
Amendment 21, in clause 2, page 5, line 2, leave out “28 days” and insert “14 days”
This amendment requires a response from the Secretary of State within a set timeframe when a HMIP report giving rise to significant concerns makes recommendations.
Yasmin Qureshi
Amendment 18 would require the chief inspector to report on the rights of prisoners. That is really important, because it would ensure that prisons are safe and decent places to be, based on the set of minimum standards in prisons that we have proposed are set by the Secretary of State.
Amendment 19 would require a response from the Secretary of State within a set timeframe when Her Majesty’s inspectorate of prisons makes recommendations. We believe that 60 days is a more appropriate timeframe and allows any problems to be dealt with a lot more quickly.
Amendment 20 would require the Secretary of State to set out what actions they will take to deal with issues raised by the inspectorate. It is not clear in the current legislation what should happen as a result of an adverse report from the inspectorate. Although there are protocols on what prisons and other inspected institutions should do, there is no requirement at the moment to accept the inspectorate’s recommendations. In line with agreed protocols, inspected bodies should produce an initial action plan, approved by the Secretary of State, in response to inspectorate recommendations. The action plan should set out the consequent action taken or planned, approved by the Secretary of State.
Amendment 21 would require a response from the Secretary of State within a set timeframe when an inspectorate’s report gives rise to significant concerns. That is really important, and the response should be given within a shorter period—14 days, instead of 28.
The idea behind the amendments is to ensure that when the inspectorate’s report is produced, the turnaround period is shorter, there is a shorter time limit on action being taken and an action plan is put in place to deal with the problems in a prison quickly and effectively. That would avoid further deterioration in the prison or institution and ensure that prisoner and prison staff safety is taken much more seriously. There should be a much quicker response.
Ordered, That the debate be now adjourned.—(Guy Opperman.)
Prisons and Courts Bill (Fourth sitting)
Wednesday 29th March 2017
(7 years, 7 months ago)
Public Bill CommitteesRead Full debate Prisons and Courts Bill 2016-17 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 29 March 2017 - (29 Mar 2017)
The Chair
I remind the Committee that with this we are discussing the following:
Amendment 19, in clause 2, page 4, line 22, leave out “90 days” and insert “60 days”.
Amendment 20, in clause 2, page 4, line 23, at end insert—
“(5A) The response must set out the actions that the Secretary of State has taken, or proposes to take, in response to the concerns described in the report.”
Amendment 21, in clause 2, page 5, line 2, leave out “28 days” and insert “14 days”.
The Parliamentary Under-Secretary of State for Justice (Mr Sam Gyimah)
Welcome to the Chair, Mr Stringer. I explained earlier that we are making changes to what Her Majesty’s inspectorate of prisons is required to report on. The chief inspector will continue to set his own inspection criteria, but in addition the inspectorate, when preparing inspection reports, must have regard to the statutory purpose of prison, which is set out in the Bill. It must also report on leadership.
Amendment 18 would require the chief inspector to report on procedures relating to prisoners’ rights. We have discussed how the Bill gives statutory recognition of the inspectorate’s role in relation to the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment. OPCAT is about preventing ill treatment of prisoners and HMIP draws on OPCAT in setting out its inspection criteria.
Furthermore, section 5A of the Prison Act 1952 already requires the chief inspector to report on the treatment of prisoners and conditions in prisons. The current inspection framework focuses heavily on prisoner rights. One of the four HMIP “healthy prison tests” is “Respect”, which assesses how far prisoners are treated with respect for their human dignity. Prisoners’ rights are therefore already central to the work of the chief inspector.
Amendments 19, 20 and 21 relate to responses provided by the Secretary of State to inspection reports. We want to increase the impact of the inspectorate and we want inspection reports to lead to improvements. Amendment 19 seeks to shorten the time taken by the Secretary of State to respond to an inspection report, from 90 days to 60 days. Although I am sympathetic to the intention behind the amendment, which is to ensure a timely response to inspection reports, I would not want that to compromise action needed to implement recommendations.
Some inspection reports have around 80 recommendations, which involve contributions from prisons, policy leads and other providers, such as NHS England. It can take time to evaluate inspection reports and then to put in place meaningful responses to them, particularly if recommendations relate to services that are not directly provided by the Prison Service, such as health.
Of course, that does not mean that action is not taken before 90 days. Where a report highlights matters of concern, those matters will start to be addressed immediately. The 90-day limit to respond to inspection reports is informed by current practice. It enables thorough responses to be given to what are serious and detailed reports.
Amendment 20 seeks to shorten the time for the Secretary of State to respond to an urgent notification from 28 days to 14 days. I must stress that of course action will be taken from day one of an urgent notification by the chief inspector, but immediate energy should be focused on securing improvements rather than drafting a report. We consider that 28 days is an appropriate period, first to take action and then to present the steps that were taken through a report.
Finally, amendment 21 would require responses to inspection reports by the Secretary of State to set out actions that have been taken or that will be taken to address concerns. We consider that that is already covered by subsection 2(6), which requires the Secretary of State to provide a response to recommendations made by the inspectorate. It will be clear from such a response what actions are planned.
Having given these assurances that prisoners’ rights will be central to inspections and that we will act immediately when significant concerns are highlighted, I ask the hon. Lady to withdraw the amendment.
Yasmin Qureshi (Bolton South East) (Lab)
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Yasmin Qureshi
I beg to move amendment 22, in clause 2, page 5, line 12, after “prison” insert “at any time”.
This amendment enables the Inspectorate to enter prisons at any time.
The Chair
With this it will be convenient to discuss amendment 7, in clause 2, page 5, line 20, at end insert—
‘(2A) The Chief Inspector may require any person to provide information on—
(a) the adequacy of staffing levels,
(b) the nature of education and literacy programmes, and
(c) the effectiveness of rehabilitation programmes and re-conviction rates.”
This amendment ensures the Chief Inspector has the necessary powers to obtain information relating to staffing levels, education programmes, rehabilitation programmes and re-conviction rates.
Yasmin Qureshi
It is a pleasure to serve under your chairmanship, Mr Stringer.
I will speak to amendment 22 as well as speaking on behalf of the hon. Member for Dwyfor Meirionnydd, who tabled amendment 7. The amendments would enable the inspectorate to enter prisons at any time. At the moment there is no guarantee that it has access to an establishment at the time of its choosing. Clearly that is unacceptable, and it must change. Different duties are performed in prisons at various times of the day and night, and it is important that the inspectors be allowed in to observe the policies and procedures of the prison regime at all times. It is important for that to be codified in law.
Amendment 7 would ensure that the chief inspector had the necessary powers to obtain information about staffing levels, education programmes, rehabilitation programmes and reconviction rates. Again, that is important because those are crucial markers showing whether a prison fulfils its statutory purposes. They are rightly of concern to the inspectorate, which should be able to get the information.
Mr Gyimah
The Bill gives the inspectorate new powers to enter prisons and to request information so that they have the right tools to do their job. That brings it into line with other inspection bodies that already have such powers. Although the inspectorate currently enjoys good co-operation with prisons, the powers put it beyond doubt that it can request information to complete its inspections.
Amendment 22 is intended to make it clear that the chief inspector may enter a prison at any time. We agree that that is an important requirement for an independent inspectorate. We consider that access to be implicit in the clause, which reflects the fact that inspections can be conducted unannounced.
The purpose of amendment 7 is to make it explicit that the chief inspector can request information on specific areas such as staffing levels and literacy programmes. Paragraph 2 of new schedule A2 to the Prison Act 1952 requires any person who holds relevant information to provide it to the chief inspector. “Relevant information” is defined in paragraph 4 of new schedule A2 as information needed for the inspection that
“relates to the running of a prison, or to prisoners detained in a prison”.
The definition is therefore sufficiently broad to capture the information described in amendment 7.
We agree that the inspectorate should be able to get the information and access that it needs. Given those assurances, I ask that the amendment be withdrawn.
Yasmin Qureshi
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Yasmin Qureshi
I beg to move amendment 23, in clause 2, page 7, line 29, at end insert—
“(8) Before this section comes into force the Secretary of State must prepare and publish a report describing progress made towards the implementation of recommendations of the Chair of the Parole Board concerning the treatment of prisoners serving sentences of imprisonment for public protection and detention for public protection and must lay a copy of the report before Parliament.”
This amendment enables issues relating to IPPs to be debated within the long title.
The purpose of the amendment is to deal with the issue of prisoners who have effectively served their custodial sentence but who are still waiting to be released because they have been detained for public protection. It is important because there are currently thousands of people in that category still in the prison system. We ask that the matter be specifically addressed in the Bill.
The amendment would enable issues relating to sentences of imprisonment for public protection to be debated within the long title of the Bill. It would also allow the Government to outline the steps taken to implement the recommendation of the chair of the Parole Board, Nick Hardwick, on the treatment of people currently imprisoned and serving an IPP sentence. If the sentencing issue is not dealt with in the long title of the Bill, it will not be possible to address the injustice faced by thousands of people serving indeterminate sentences for public protection years beyond the expiry of their original tariff date.
The Legal Aid, Sentencing and Punishment of Offenders Act 2012 abolished the IPP sentence and introduced powers to change the release test for IPP prisoners. However, although the IPP sentence is no longer an option for the courts, the powers to change the release test have not been enacted, and Her Majesty’s inspectorate of prisons has called on the Justice Secretary to take decisive action to reduce the number of people serving IPPs who have been held beyond the tariff.
Although the rate of release of IPP prisoners has increased in recent years, the effect of Parole Board delays, limited resources, poor procedures for amending risk and the lack of available places on offending behaviour programmes is that a large number of IPP prisoners continue to face significant obstacles to working towards their legitimate release. According to the Ministry of Justice, of the 3,683 people in prison currently serving an IPP sentence, 3,081 have passed their tariff expiry, and 603 remain in prison despite having been given an original tariff of less than two years. I must declare an interest: I have a client who has served his tariff and is still in prison because he is waiting for the IPP procedures to be carried out. That group would not have been able to receive an IPP sentence following the reforms to the legislation introduced in 2009. Instead, it is likely that they would have been given relatively short determinate sentences.
Statistics released by the Prison Reform Trust in June 2016 showed that IPP prisoners have one of the highest rates of self-harm in the prison system, and highlighted the impact of ongoing incarceration on the mental health and wellbeing of IPP prisoners. A thematic review of IPP prisoners published by Her Majesty’s inspectorate of prisons in November 2016 found that the cost to the public purse of continuing to hold high numbers of IPP prisoners and the pressure that they exert on the system in terms of risk management activity and demand for offending behaviour programmes and parole processes are significant. It stated that
“resources are being stretched increasingly thinly.”
It concluded that
“for many IPP prisoners, it is not clear that holding them well beyond their end-of-tariff date is in the interests of public protection and therefore there are issues of fairness and justice”.
Without a legislative change, the Parole Board has confirmed that it will not be possible to reduce the IPP prisoner population below 1,000. It will also be impossible to address the particular injustice faced by IPP prisoners with an original tariff of less than two years or tackle the growing problems of IPP recalls and the disproportionate licence period attached to the IPP sentence.
In my excitement, I might have slightly misled the Committee when I said that one of my clients is still waiting to come out. What I was trying to say is that, in my practice in the past, I have had clients who were detained under the IPP and whose sentence expired, but years later they were still in the system. One of the main problems was that many of those people had to attend a number of different types of courses before they were released, some of which were very expensive and quite lengthy, and the system—the prison, the probation service and the Parole Board—did not allow them to attend them in time to be ticked off as having done them. They therefore ended up spending more time in prison than they had been sentenced for. That is a very relevant issue. There are more than 6,000 people—that is a big figure—who really should be out but are not, and only because the Parole Board was slow in signing them up to those courses.
Mr Gyimah
Having listened to the shadow Minister, I believe that amendment 23 is a probing amendment, so I will give assurances about the work we are doing on IPPs. In dealing with all IPPs, public protection is and will always be of paramount concern to us. I recognise, of course, the concerns about prisoners serving IPP sentences. We are taking considerable steps to address those concerns and continue to explore what further improvements could be made to the process.
The amendment would require the Secretary of State to prepare and lay before Parliament a report describing progress made on recommendations from the chair of the Parole Board concerning the treatment of prisoners serving IPP sentences. I do not believe that there is a need for such a report. We work very closely with the independent Parole Board and its partners on tackling the issues presented by IPP prisoners and will of course take account of any views or recommendations from its chair on further improvements that could be made. We do not believe that there should be a statutory requirement on the Secretary of State to report to Parliament in response to such recommendations.
The Government are already making significant efforts to address the issue of IPP prisoners. Our most up-to-date figures show that there were 512 first-time releases of IPP prisoners in 2015, the highest number of releases since the sentence became available in 2005. I fully expect that trend to continue. Figures on releases in 2016 will be published in April. I believe that these figures show that the efforts we are making to give IPP prisoners support, opportunities and motivation to reduce their risks and so progress through the system are bearing fruit. Those efforts, which are being taken forward by the Parole Board and, from April, the new HM Prison and Probation Service, are encapsulated in an IPP action plan. A new unit has been set up within the Ministry of Justice to improve progress in individual IPP cases. We are also working with the Parole Board to improve further the efficiency of the parole process for these prisoners.
Michael Tomlinson (Mid Dorset and North Poole) (Con)
I am very grateful to the Minister for explaining what is happening. He may recall that I have raised a constituent’s case with him. Will he continue to be alive to such cases, so that we can continue to bring those cases to him and he can continue to explain how the process will improve in the future?
Mr Gyimah
Yes, I am always open to representations on specific cases, although decisions are made by the independent Parole Board. Where there are challenges in the system that hon. Members become aware of, I am open to receiving representations and will look into them. Obviously, in order to speed up the process, the board has increased its capacity and is successfully tackling delays in the listing of cases. We are making sure that IPP prisoners have access to accredited offending behaviour programmes where appropriate and ensuring that such programmes can be delivered more flexibly, so that prisoners with particular complex needs, such as those with learning difficulties, can have greater access. I should mention, in particular, the progression regime at HMP Warren Hill, which has proved very successful, with 77% of IPPs who have had an oral hearing under the regime achieving release. The potential for additional places within the progression regime is currently being explored, with the aim of improving the geographical spread of places, including in the north of England.
All these measures are already having a significant beneficial impact on the IPP prison population and are facilitating the release of prisoners where the Parole Board is satisfied that their detention is no longer necessary for the protection of the public. These diverse measures, and the evidence that they are working, shown by the current highest-ever release rate, demonstrates that a report of the sort proposed by the hon. Member for Bolton South East is simply not necessary, and I therefore ask her to withdraw the amendment.
Yasmin Qureshi
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 2 ordered to stand part of the Bill.
Clause 3 ordered to stand part of the Bill.
Clause 4
The Prisons and Probation Ombudsman
Richard Arkless (Dumfries and Galloway) (SNP)
I beg to move amendment 30, in clause 4, page 9, line 6, at end insert—
“(d) Investigating cases where a person is detained in immigration detention facilities for longer than 28 days.”.
This amendment includes as a function of the Prisons and Probation Ombudsman to investigate where a person has been held in immigration detention for more than 28 days.
The Chair
With this it will be convenient to discuss the following:
Amendment 8, in clause 4, page 9, line 14, at end insert—
“(f) investigating—
(i) attempted suicides,
(ii) the number and nature of assaults on staff or prisoners, and
(iii) the adequacy of staffing levels to prevent such behaviour;
(g) investigating the content and effectiveness of rehabilitation programmes and liaison arrangements with the probation and other relevant agencies to ensure that such rehabilitation continues after a prisoner’s release from custody.”.
This amendment expands the remit of the Prisons and Probation Ombudsman in relation to the investigation of attempted suicides, assaults in prison and staffing levels as well as powers relating to the investigation of rehabilitation programmes and liaison arrangements.
Amendment 31, in clause 11, page 12, line 37, at end insert—
“(1A) The Secretary of State must request the Ombudsman carry out an investigation relating to detention of any person for over 28 days in immigration detention facilities including, but not restricted to, the effect on the individuals detained.”.
This amendment ensures the Prisons and Probation Ombudsman investigates each case where a person has been held in immigration detention for more than 28 days.
Richard Arkless
I am sure it is not lost on hon. Members that it is almost exactly the hour that those awful events happened in Westminster last Wednesday. There are various memorials going on around us. I am sure all colleagues would back me in saying that we would much rather be at those memorials than here, but business goes on, life goes on, laws continue to be made and we have to continue to do our job.
The Bill applies only in part to Scotland; specifically, it applies primarily to immigration detention and its processes. Amendments 30 and 31 would ensure independent oversight of detention periods in immigration cases, and that detention happens with due regard to Home Office rules and the facts of the individual case. Amendment 30 would add to the ombudsman’s powers the function of investigating where a person is held in detention for more than 28 days. Amendment 31 would compel the ombudsman to investigate such cases where detention exceeds 28 days.
The Government know this debate well. During the passage of the Immigration Act 2016, an amendment tabled by honourable colleagues went further than the amendment I have moved today. It would have limited detention for immigration cases outright to 28 days. The Government were defeated in the Lords and the amendment attracted cross-party support in the House of Commons, but was ultimately unsuccessful. I hope that closer consideration will be given to this amendment than was given to the last.
The all-party groups on refugees and on migration have concluded very clearly that there should be a 28-day limit. People held in immigration detention have committed no crime, yet their detention is open-ended, without limit, and could last for years. In no other sphere of our jurisdiction would we allow that to happen. It simply would not happen in the rest of the prison estate—no one would be held for more than 28 days without being placed before a judge—but it happens in our immigration system. The UK is the only EU country not to have a time limit on immigration detention. The current position is inhumane, ineffective and hugely expensive. Personally, I would say that indefinite detention without trial is an affront to the rule of law, which I hold so very dear, having studied law on both sides of our border.
Let us consider some statistics. Some 7% of detained immigrants were detained for longer than six months. Only 23% of those detained leaving Dungavel in Scotland were deported, so by inference 77% were deemed safe. In that circumstance, is it proportionate to not have a 28-day limit? It is in the interests of both sides of the Committee that following detention or following anybody coming to this country to settle and make their life, integration is of paramount importance. Having this draconian measure and not having safeguards to limit the amount of time that immigrants may be detained will not get them off on the best foot in terms of integrating them into our society. That is in no one’s interests. I respectfully suggest that the Government act and impose a limit to the time that people can be detained in immigration centres.
Yasmin Qureshi
The Committee will be relieved to hear that I am not going to comment on amendments 30 and 31, as the hon. Gentleman has made an eloquent case for them, but I promised the hon. Member for Dwyfor Meirionnydd that I would speak to amendment 8 on her behalf.
Amendment 8 would give the ombudsman the functions of
“investigating…attempted suicides…the number and nature of assaults on staff or prisoners …the adequacy of staffing levels to prevent such behaviour…investigating the content and effectiveness of rehabilitation programmes and liaison arrangements with the probation and other relevant agencies to ensure that such rehabilitation continues after a prisoner’s release from custody.”
Those are perfectly proper things for the ombudsman to look at, so we ask the Government to consider accepting the amendment. We also support amendments 30 and 31.
Mr Gyimah
Before dealing with amendments 30, 8 and 31, I will speak about some of the broader policy objectives of clause 4. The prisons and probation ombudsman was established in 1994 as the prisons ombudsman, following Lord Woolf’s public inquiry into the Strangeways prison riots. Over the years, its role and remit have expanded, but despite many calls for it to be put on a statutory footing that has yet to happen.
The ombudsman plays an essential role, not only by providing an independent avenue for complaints, which can be a source of great tension for prisoners, but by investigating deaths in custody, the numbers of which are worryingly high, as all hon. Members will be aware. There have been long-standing commitments from successive Governments to put the ombudsman into legislation, and statutory status has been widely supported by stakeholders, including the Joint Committee on Human Rights and the Harris review. I am pleased that we can finally establish the office in legislation.
I should say that the ombudsman is part of a much broader response to the record high levels of self-inflicted deaths and self-harm. We are redoubling our efforts to make prisons places of safety and reform for those at risk. The actions that we are taking include rolling out new training across the estate to support our staff in identifying the risks and triggers of suicide and self-harm and understanding what they can do to support prisoners at risk; putting in place specialist roles—regional safer custody leads—in every region to provide advice to prisons and to spread good practice on identifying and supporting prisoners at risk; and developing our partnerships with experts, including by providing extra funding for the Samaritans to provide targeted support to prison staff and to prisoners directly. All that is in the context of an extra 2,500 staff and the roll-out of new ways of working that I have already set out, which will enable individual prison officers to manage a caseload of about six prisoners each. That extra capability will enable staff to support at-risk prisoners more effectively and will enable prisons to run more predictable regimes, improving safety.
That is all happening without legislation; however, when a death occurs, it is right that it is investigated with the utmost seriousness. Having a statutory office will give the prisons and probation ombudsman more visible independence, permanency and stronger powers of investigation.
Amendments 8, 30 and 31 relate to the ombudsman’s remit. Amendment 8 would widen the remit of the ombudsman to include investigating
“attempted suicides…assaults…staffing levels…and effectiveness of rehabilitation programmes”.
There are already other routes of investigation or scrutiny for these matters. At present, there is no set category to capture data on attempted suicides because it is not possible to determine intent when someone resorts to self-harm. NOMS records all self-harm incidents in prison custody. A self-harm incident is defined as
“any act where a prisoner deliberately harms themselves, irrespective of the method, intent or severity of any injury”.
Nearly 38,000 self-harm incidents were reported last year, so it would be neither practical nor desirable for the ombudsman to investigate them all; however, they are taken very seriously. There are existing systems for treating the prisoner and for providing support through assessment, care in custody and teamwork. Where appropriate, prisons investigate internally and take relevant action.
Investigating assaults is done through adjudications or by the police, so it should not be a function of the ombudsman. In the safety and order section of prison performance standards, we have included a measure of the rate of assaults on prison staff, which we will supplement with an additional measure of staff perception of safety within the prison. Governors will be held accountable for the results that they achieve in reducing assaults on staff; the inclusion of this measure is designed to drive positive change and improve staff safety. Requiring the ombudsman to investigate the effectiveness of post-release arrangements would be a significant departure from its current remit and would overlap with the work of the probation inspectorate.
Clause 11 enables the Secretary of State to request the ombudsman to investigate other matters that may be relevant to the ombudsman’s remit. In the past, that has included the investigation of an attempted suicide and rioting at an immigration detention centre. The ombudsman therefore has flexibility to investigate wider matters, but that is intended for exceptional cases and not to duplicate other established routes for investigation. In conclusion, we do not believe that the amendment is necessary, as other provisions are already in place to cover the functions.
Richard Arkless
I thank the Minister for those words. I will pick up on a couple of points and then make clear whether we will press the amendment to a vote. He mentioned that the amendments would compel the ombudsman to investigate 35% of more than 28,000 cases. My hope is that if there were a limit, there would not be as many cases to investigate, so I do not think he was making a fair point.
I appreciate what the Minister said about automatic referrals to the first-tier tribunal, but that only triggers after four months. Frankly, holding someone in detention for four months without placing them in front of a judge is just as much of an affront to the rule of law as it would be open-ended. I cannot agree that automatic referrals are a suitable mitigating measure, but we will not press the amendment to a vote this afternoon. We anticipate that it commands cross-party support, and we think there is a good chance we can make the Government see sense. We reserve the right to bring back the amendment in full force at a later stage of the Bill’s passage. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4 ordered to stand part of the Bill.
Schedule 1
The Prisons and Probation Ombudsman
Yasmin Qureshi
I beg to move amendment 24, page 68, line 5, in schedule 1, at end insert
“, with the consent of the Justice Committee of the House of Commons.”
This amendment requires the Prisons and Probation Ombudsman to be appointed with the consent of the Justice Select Committee.
Establishing the ombudsman’s independence, similar to that of the chief inspector of prisons, is a priority for a range of stakeholders. The amendment would ensure that independence.
Mr Gyimah
Amendment 24 relates to the appointment of the ombudsman. We have already debated the appointment of the chief inspector, and as the arguments are similar I will keep my comments brief.
Like that of the chief inspector, the appointment of prisons and probation ombudsman is subject to the Cabinet Office’s governance code for public appointments, which is regulated by the Commissioner for Public Appointments. It therefore follows an established transparent process for public appointments. We consider that the appointment of this critical role should rest with the Secretary of State, who is accountable to Parliament for prison and probation performance.
Like the appointment of the chief inspector, that of the prisons and probation ombudsman is subject to a pre-appointment hearing by the Justice Committee. The Justice Committee therefore already has a role in assessing its preferred candidate and providing its views to the Secretary of State. I hope Committee members agree that Parliament has an appropriate role in the public appointment process of the ombudsman, and I hope the hon. Member for Bolton South East is therefore content to withdraw the amendment.
Yasmin Qureshi
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 1 agreed to.
Clause 5
Investigations of deaths within the Ombudsman’s remit
Question proposed, That the clause stand part of the Bill.
Mr Gyimah
Clauses 5 and 6 set out which deaths fall within the ombudsman’s remit for investigation. They should be read in conjunction with clause 20, which sets out which institutions are in scope. Clause 5 also requires the ombudsman to investigate any death of a person who at the time of their death was detained or resident in an institution within its remit. Clause 6 provides the ombudsman with a discretion to investigate deaths that occur when the person is no longer detained or resident in a relevant institution or immigration detention facility, or subject to immigration escort arrangements.
If the ombudsman is aware of the death of a person who has recently ceased to be detained in a place that is within his remit and has a reason to believe the person’s death may be connected with their detention, clause 6 allows him to investigate the death. The ombudsman will determine the extent of the investigation required according to the circumstances of the death. For example, a death that is clearly the result of natural causes may require less investigation than an apparently self-inflicted death.
Clause 7 refers to the position of the Lord Advocate, who leads the system of criminal prosecutions and the investigation of deaths in Scotland. It states that the Lord Advocate’s role as head of the system of investigation of deaths in Scotland is not affected by putting the ombudsman into legislation. That is relevant, because the ombudsman has a duty to investigate the deaths of those detained in immigration detention facilities or under immigration escort arrangements in Scotland. It is intended that the ombudsman will enter into a memorandum of understanding with the Lord Advocate to provide a clear framework for both officers to discharge their independent functions effectively.
Question put and agreed to.
Clause 5 accordingly ordered to stand part of the Bill.
Clauses 6 and 7 ordered to stand part of the Bill.
Clause 8
Reports on deaths investigated by the Ombudsman
Yasmin Qureshi
I beg to move amendment 25, in clause 8, page 10, line 36, after “recommendations” insert “within 60 days”.
This amendment requires a response from the Secretary of State within a set timeframe when a Prisons and Probation Ombudsman report on a death makes recommendations.
The Chair
With this it will be convenient to discuss the following:
Amendment 26, in clause 8, page 10, line 38, at end insert—
“(c) the response must set out the actions that the Secretary of State has taken, or proposes to take, in response to the recommendations described in the report.”
This amendment requires the response from the Secretary of State to set out actions.
Amendment 27, in clause 10, page 12, line 16, after “recommendations” insert “within 60 days”.
This amendment requires a response from the Secretary of State within a set timeframe when a Prisons and Probation Ombudsman report on a complaint makes recommendations.
Amendment 28, in clause 10, page 12, line 16, at end insert—
‘(5A) The response in subsection (5) must set out the actions that the Secretary of State has taken, or proposes to take, in response to the recommendations described in the report.”
This amendment is consequential on amendment 27. It requires the response from the Secretary of State to set out actions.
Yasmin Qureshi
Amendment 25 would require the Secretary of State to respond within a set timeframe—we think 60 days is reasonable—after a prisons and probation ombudsman report on a death makes recommendations. Amendment 26 is also designed to elicit a fast response from the Secretary of State. Just as with Her Majesty’s inspectorate, the Secretary of State should be required to set out how he or she will respond to the recommendation of the ombudsman.
Amendment 27 is similar, requiring a response from the Secretary of State within a set timeframe when the prison and probation ombudsman reports on a complaint and makes a recommendation. We think that 60 days is a reasonable time for the Secretary of State to respond to that complaint. Amendment 28 is sequential to amendment 27 and requires a response from the Secretary of State to set out actions, because in reality there is no point in having a report if there is no response to set out actions that the Secretary of State will take. We believe that a response should be statutorily encompassed in the legislation and that it should be done within the relevant statutory framework.
Mr Gyimah
These amendments concern the Secretary of State’s responses to the ombudsman’s reports. Clauses 8 and 10 currently provide that a response must be provided within a period specified by the ombudsman. Currently, the ombudsman’s terms of reference establish a 28-day time limit for responses to the ombudsman’s recommendations to set out whether or not a recommendation has been accepted. In practice, the majority of the ombudsman’s recommendations are accepted and responses provided to this effect. We consider it preferable to retain flexibility for the ombudsman to set the time limit for responding by not providing a statutory timeframe for responses.
Finally, amendments 26 and 28 would require that responses to ombudsman reports by the Secretary of State must set out actions that have been or will be taken to address concerns. We consider this already covered by clauses 8(5) and 10(5), which require that the Secretary of State must provide a response to recommendations made by the ombudsman. It will be clear from such a response what actions are planned. I hope that hon. Members will agree that provisions are already in place for the ombudsman to require a response within a timescale that he thinks appropriate and for the Secretary of State to respond on actions to be taken. I therefore suggest that the amendment be withdrawn.
Yasmin Qureshi
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 8 ordered to stand part of the Bill.
Clause 9
Investigation of complaints by the Ombudsman
Question proposed, That the clause stand part of the Bill.
Mr Gyimah
We have discussed the benefits of putting the ombudsman into legislation. I will briefly set out the remaining clauses that establish the ombudsman’s statutory role. Clause 9 sets out the eligibility criteria for individuals who wish to lodge complaints with the ombudsman and the powers of the ombudsman in relation to complaints. It also provides a power for the Secretary of State to make regulations about the type of matters that fall within the ombudsman’s complaint remit. This clause will give the ombudsman the discretion required in conducting these investigations and the power to act and enable the Secretary of State to reflect necessary changes in the ombudsman’s remit without further primary legislation.
Clause 10 sets out the reporting requirements and powers following complaints investigated by the ombudsman. Importantly, the nature of reporting and publication will be determined by the ombudsman, so that he can maximise the effectiveness of the report in the light of the intended recipient. Clause 11 makes provision for the ombudsman to investigate matters that relate to the ombudsman’s functions at the request of the Secretary of State. This is a valuable function that we wish to retain in practice. Examples of its use include an investigation of a major fire at Yarl’s Wood in 2003 and a more recent suicide in prison.
Yasmin Qureshi
I want to make a couple of observations. We welcome the provisions, which are absolutely right and needed in the 21st century. I specifically want to thank the Government for putting the ombudsman on a statutory basis and giving him to the power to investigate deaths in immigrations centres, as well as those agencies that escort prisoners from immigration centres to other places, so that they are also covered. If somebody tries to obstruct the ombudsman, he can go to the High Court and the person causing the obstruction can be done for contempt of court. Those are really welcome provisions that we wholeheartedly support.
Question put and agreed to.
Clause 9 accordingly ordered to stand part of the Bill.
Clauses 10 to 20 ordered to stand part of the Bill.
Clause 21
Interference with wireless telegraphy in prisons etc
Yasmin Qureshi
I beg to move amendment 29, in clause 21, page 19, line 34, at end insert—
‘(8) Before this section comes into force the Secretary of State shall—
(a) carry out a review of arrangements for prisoners to make telephone calls, the cost of such arrangements, the benefits of such arrangements, the level of charges to prisoners and options for providing an improved and more affordable service, and
(b) lay a report before Parliament containing the Secretary of State’s conclusions as a result of the review.”
This amendment requires a review of prison phone arrangements.
The reason for the amendment is that everybody accepts that when somebody is in prison they need to be able to communicate with their families. We recognise that mobile phones have also caused problems. In 2015, nearly 17,000 mobile phones and SIM cards were found in prisons in England and Wales. That was an increase from around 10,000 in 2014 and 7,500 in 2013. Since October 2015, data have been collated differently, so that direct comparisons cannot be made.
In 2016, there was a total of 8,813 reported incidents of mobile phone finds and 4,067 reported incidents of SIM card finds. Section 1 of the Prisons (Interference with Wireless Telegraphy) Act 2012 already allows the Secretary of State to authorise governors to interfere with wireless telegraphy to disrupt unlawful mobile phone use. Clause 21 would allow the Secretary of State to authorise PCPs—for example, telecoms and internet service providers—to interfere with wireless telegraphy in prisons.
The Serious Crime Act 2015 makes provision for prison staff or the police to apply to the courts for a telecommunications restriction order, to require a mobile phone network to stop the use of a phone remotely. Regulations under the Act came into force on 3 August 2016.
Fundamentally, the clause seeks to provide PCPs with greater independence to conduct interference. Limiting access to mobile phones is necessary. However, a central plank of rehabilitation is ensuring prisoners have sufficient controlled contact with the outside world. In discussion with former prisoner officers, we were told that a lack of access to telephones was a major cause of disturbances in prisons.
The Prison Reform Trust has stated that access to telephones is limited and relatively expensive, hindering rehabilitation. It has suggested establishing a mandatory minimum level of access to telephones. The health charity, Change Grow Live, said:
“We recognise that the use of mobile phones within the prison estate can have negative security implications, but we do believe this could be better managed by ensuring there is wider access to telephones within prisons, to enable prisoners to maintain contact with friends and families.”
The Royal College of Psychiatrists states:
“The Joint Commissioning Panel guidance for forensic mental health services in the NHS…recommends that family support and maintenance and re-establishment of family relationships should occur where possible.”
The Howard League states:
“Steps to increase access to legal methods of communication in prisons would have a much greater impact. Ensuring that prisoners can frequently access affordable payphones with a reasonable amount of privacy to make calls to their families would reduce the demand for mobile phones in prison.”
The Public and Commercial Services Union states:
“It is worth noting that these reforms are long overdue and unions have been arguing for this issue to be addressed for many years.”
We are asking for improved, controlled access to telephones, which will have the benefit of helping the prisoners and, we hope, lead to fewer mobile phones being found illegally in prisons.
Mr Gyimah
As hon. Members will know, technology—particularly mobile technology—is constantly evolving. The Government are determined that legislation should keep pace with developments to combat the serious problem posed by the use of illegal mobile phones in prison.
Illicit mobile phone use is linked to the supply of drugs and other contraband, serious organised crime and the evasion of public protection monitoring, bringing further harm to the victims of crime. The scale of the issue is stark. In 2016, nearly 20,000 mobile phones and SIM cards—that is 54 a day—were found in prisons in England and Wales.
Although this is not a new problem, the scale has increased steadily. In 2013, only about 7,000 mobile phones and SIM cards were found. To help combat that challenge, clause 21 and the associated schedule 2, will make a number of changes to the Prisons (Interference with Wireless Telegraphy) Act 2012. In its briefing on the Bill, the Prison Reform Trust stated:
“We welcome the introduction of sensible and proportionate measures to prevent the damaging and illicit trade in mobile phones in prisons.”
The Government welcome the trust’s support for measures to tackle the many serious problems caused by illicit mobiles in prison. They are used, as I have said, as a link to the supply of drugs and contraband and serious and organised crime. The trust noted that, as well as targeting the supply side, attention should also focus on limiting demand by improving the availability of, and prisoners’ access to, lawful telephones in prison. Once again, we agree with the trust.
As part of our digital prison programme, we have made changes to make it easier for prisoners to use telephones in HMP Wayland. Secure telephone handsets are now available in cells. The deployment started in September 2016 and was completed in December 2016. This has been repeated at HMP Berwyn, and we are in the process of extending it across the estate as part of the programme. We are then able to reduce the phone tariff in these institutions to make calls more affordable and accessible, and the result has been excellent. Notably, call minutes used in Wayland are up 114% from our baseline week in September. Anecdotal evidence also indicates noticeable improvement in behaviour.
As a result of these encouraging developments, we are now looking at further ways to accelerate the improved accessibility and affordability of telephony across the whole estate. We are steadily building a body of evidence that shows the benefits which arise from a nudge that simultaneously discourages the illegal use of mobile phones, while encouraging legitimate calls to families, friends and supporters, by making handsets more accessible and affordable. We will continue to monitor the effectiveness of these measures over the coming months. We intend to retender the national telephony contract this calendar year to reduce call charges to prisoners, while introducing technologies that block and disrupt illicit mobile phones.
We have given detailed consideration to the need to assist prisoners in maintaining relationships with family members while they are in prison, as we develop policy on prisoner access to telephone services. I do not believe that it would be right to accept the amendment, because the work to be covered by the review is already under way and will continue.
Further, placing a requirement to conduct a review in primary legislation would delay commencement of provisions in the Bill designed to improve our ability to combat the use of illicit mobile phones in prisons until such time as a review is carried out. Our work to improve prisoner access to telephone services will continue, irrespective of a review. I hope therefore that the hon. Lady is persuaded to withdraw the amendment.
Yasmin Qureshi
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 21 ordered to stand part of the Bill.
Schedule 2 agreed to.
Clause 22
Testing prisoners for psychoactive substances
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss new clause 6—Testing prisoners blood following assault—
“Testing prisoners blood following assault
‘(1) The Prison Act 1952 is amended as follows.
(2) After section 16B insert—
0 “Power to test prisoners blood
‘(1) If an authorisation is in force for the prison, any prison officer may, at the prison, in accordance with prison rules, require any prisoner who is confined in the prison to provide a sample of blood for the purpose of investigating assaults including spitting and biting, carried out by the prisoner.
(2) If the authorisation so provides, the power conferred by subsection (1) above shall include power—
(a) to require a prisoner to provide a sample of urine, whether instead of or in addition to a sample of blood, and
(b) to require a prisoner to provide a sample of any other description specified in the authorisation, not being an intimate sample, whether instead of or in addition to a sample of blood, a sample of urine or both.
(3) In this section—
“authorisation” means an authorisation by the governor;
“intimate sample” has the same meaning as in Part V of the Police and Criminal Evidence Act 1984;
“prison officer” includes a prisoner custody officer within the meaning of Part IV of the Criminal Justice Act 1991;
“prison rules” means rules under section 47 of this Act”
(4) A person commits an offence if that person fails to comply with requests to provide samples under subsection (2).
(5) A person guilty of an offence falling within subsection (4) shall be liable on summary conviction to—
(a) imprisonment for a period not exceeding 51 weeks,
(b) a fine not exceeding level 5 on the standard scale, or
(c) both.””
This new clause to the Prison Act 1952 gives prison officers the power to require a blood sample where the prisoner is accused of certain assaults.
Holly Lynch (Halifax) (Lab)
It is a pleasure to serve under your chairmanship this afternoon, Mr Stringer, and I take this opportunity to put on record my thanks to the outstanding Library and Clerks, who have been incredibly helpful in assisting me in preparing the new clause. I support new clause 6. In the event that a prisoner spits at or bites a prison officer, the new clause would give the prison governor the power to request a blood sample from that prisoner. Refusal to provide a sample would become an offence in and of itself.
The new clause follows similar work that I have been doing with police officers and other emergency service workers, where spitting and biting have been on the rise as a means of assault. Not only is it a horrible act, but spitting blood and saliva at another human being can pose a very real risk of transmitting a range of infectious diseases, some with life-changing or even lethal consequences. Arina Koltsova, a law enforcement officer in the Ukraine, died just last year after contracting tuberculosis from an offender who spat at her while she was trying to arrest him. I have sought practical and proportionate ways to improve the situation for those who face such risks as part of their job.
Yasmin Qureshi
The Opposition support my hon. Friend’s new clause. It is important that prison officers should be able to work in a safe environment and have the right to know if they are being exposed to any infectious diseases.
Before I sit down for the last time today, I want to make a brief observation about clause 22 and the proposal to simplify the legislation so that testing can be done for all drugs. Testing alone is not an adequate response to the problem of drugs and psychoactive substances in prisons. Although it is important, it can only be of limited value because not all prisoners can be tested regularly; far greater resources would have to be provided.
The Prison Reform Trust has said that testing can be partial, but must be intelligence-led. The Howard League states that,
“drug testing alone does little to reduce drug use in prisons. Recent HMIP reports have found that overcrowding and a shortage of officers mean that intelligence-led drug tests often do not take place.”
Testing must therefore be intelligence-led. Again, that requires greater resources than are available at present.
Mr Gyimah
I want to pay tribute to the incredible work that our prison officers and support staff do every day. They work in an incredibly challenging environment and do a very brave job indeed. The new clause highlights some of the more challenging circumstances that they face when an offender spits or bites a prison officer. I also want to put on the record now that I recognise the additional worry and stress that prison officers can face waiting, as the hon. Member for Halifax has mentioned, often for several months to discover whether, in addition to the assault they have suffered, they have contracted a transferable medical condition. I therefore welcome the debate that that raises. I know that the hon. Lady has raised this issue before in relation to assaults on emergency workers. The only concern, and why we will resist the new clause, is that, as currently drafted, I can see some legal and practical difficulties, which I will outline.
A detailed regime applicable to securing samples from prisoners already exists under the powers set out in a Prison Service instruction in the Prison Act 1952. The powers enable testing for illegal activity and testing for drugs either by randomised samples or where there is a suspicion of drug use. Section 16B of that Act provides a power to test for alcohol. Changes in clause 22 of the Bill extend testing powers to psychoactive substances. Testing can be voluntary or mandatory and is normally conducted by urine testing and other non-invasive testing methods.
It is not clear to me, however, where the main focus of the power in the new clause lies. Is it for the detection of crime—proving the assault—or is it to provide information quickly to the prison officer involved about the risk of a communicable disease? A testing power without specific safeguards does not serve to understand what the purpose of a test is.
Also, significant practical issues have to be considered. Under PACE, other than urine tests, all intimate samples, including blood samples, can be taken only by a registered medical practitioner or registered healthcare professional. A blood sample cannot be taken by a police officer under the PACE regime in a similar situation. Prison officers are simply not trained to take blood samples. They are not medical professionals, and the sterile medical conditions required are not always available in prisons.
I would also be concerned to avoid situations in which prison officers, owing to a lack of medical training and the absence of a provision requiring prisoner consent in taking blood samples, found themselves accused of assault.
We need to consider what impact the use of the power would have on the relationship between prisoners and prison officers, which is crucial to successful offender management. The safeguards on consent, testing processes and data protection are needed for practical and legal reasons. Without sufficiently circumscribed criteria giving rise to the power to take samples; without suitably qualified staff to take the samples; and without proper training of staff and fair and proportionate penalties for non-compliance, the power is unlikely to be compatible with article 8 rights, and the Government cannot support it.
Having said that, I want to make some additional points about what can be done now. As we set out in our “Prison Safety and Reform” White Paper, we are committed to improving the safety of prisons for all who live and work there. We do not tolerate any behaviour against staff that undermines their essential work. Staff must have the confidence that assaults against them will be met with a robust and swift response.
To that end, we are taking an evidence-led approach to improving prison safety. I have already mentioned the 2,500 staff in the new key worker regime that we are rolling out. I believe that increased numbers will also enable more staff to be available on wings, to increase staff confidence in the support that they have available from colleagues, and that they will also act as a deterrent to assaults by prisoners on staff.
Additional staff will also mean more predictable regimes, reducing prisoner frustrations and providing opportunities for purposeful engagement. We already have a well established process for sanctioning violence in prisons. A range of sanctions is available, from downgrading privileges, segregation and adjudications. Cases that are serious enough are heard by an independent adjudicator, who has the power to add up to another 42 days to a prisoner’s sentence.
Governors are also required by the published adjudications policy to refer more serious assaults to the police for investigation. It is worth stressing that an assault that involves biting may be charged as a more serious offence of assault occasioning actual bodily harm, rather than the lower level common assault, depending on the nature of the injuries sustained. Spitting and biting can also be considered as aggravating factors within the offence, meriting a more severe sentence. Any sentence imposed should also, in accordance with sentencing guidelines, be served consecutively to the existing sentence.
Finally, there are also some technical issues relating to the penalties for failing to comply with a test. I do not want to labour the points, but I think that the hon. Member for Halifax has raised some important matters in the debate and, as I said at the outset, I completely understand the thinking behind the new clause. I sympathise with the intention, but given the legal and practical difficulties in the drafting, we cannot support it at this point. I therefore urge the hon. Lady to withdraw the new clause.
The Chair
Order. When we have exhausted the debate, we shall vote on clause 22. The vote on new clause 6, if there is one, will happen later in the proceedings.
Holly Lynch
I thought that the Minister’s response was constructive, and I am grateful. I want to respond to some of the issues he raised; I hear his concern. The new clause is about an extension of the powers to test, which currently have a focus on drugs, and on identifying them in a prisoner’s system; however, there is a key gap with respect to identifying whether someone has a communicable disease.
As to the intention, I appreciate that the evidence in question could contribute to a case brought against a prisoner for biting or spitting at a prison officer; however, it is about establishing in a timely way whether a prison officer would need to embark on anti-viral treatment. That is our key focus. I entirely agree that prison officers would not be qualified to take blood samples from a prisoner and should not do it; what was done would need to involve NHS-qualified staff.
I understand the Minister’s points about shortcomings in the drafting of the new clause, but I am not entirely satisfied that the measures that he has outlined deal with the issue comprehensively enough; we shall therefore reflect on that before there is an opportunity to vote later in the proceedings.
Question put and agreed to.
Clause 22 accordingly ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Guy Opperman.)
Prisons and Courts Bill (Fifth sitting)
Tuesday 18th April 2017
(7 years, 7 months ago)
Public Bill CommitteesRead Full debate Prisons and Courts Bill 2016-17 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 18 April 2017 - (18 Apr 2017)
The Committee divided: - Ayes: 4 / Noes: 7 - Question accordingly negatived.
The Committee divided: - Ayes: 4 / Noes: 7 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 4 - Question accordingly agreed to.
The Committee divided: - Ayes: 3 / Noes: 6 - Question accordingly negatived.
The Committee divided: - Ayes: 3 / Noes: 6 - Question accordingly negatived.
The Committee divided: - Ayes: 3 / Noes: 6 - Question accordingly negatived.
The Committee divided: - Ayes: 3 / Noes: 6 - Question accordingly negatived.
Nick Thomas-Symonds (Torfaen) (Lab)
I beg to move amendment 92, in clause 23, page 20, line 40, at end insert—
‘(c) provision ensuring that persons charged with offences have available to them information on the suitability of the written information procedure, taking into account their particular circumstances.’
This amendment ensures the Criminal Procedure Rules include a provision requiring defendants have adequate information about the written information procedure provided to them.
The Chair
With this it will be convenient to discuss amendment 91, in clause 23, page 21, line 13, at end insert—
‘(4A) Criminal Procedure Rules must include provision for a person charged with an offence, or a parent or guardian of that person, to be given in writing—
(a) notification of a defendant’s right to legal assistance;
(b) notification of plea procedures available, not limited to the written information procedure;
(c) an explanation of the consequences of indicating their plea in writing.
(4B) Information provided under subsection (4A) must be presented in an accessible format using clear language.’
This amendment ensures defendants receive adequate information and notification about the written information procedure, including alternative plea procedures and the consequences of indicating their plea in writing.
Nick Thomas-Symonds
It is a pleasure to serve under your chairmanship again, Mr Stringer.
On the first day the Committee sat, I mentioned in a declaration of interest that I thought that, in the aged debt that I still bear as a barrister, fees might be owing from insurers. I was not immediately able to do the sums—I was away the next day because my baby son was having an operation—but, having checked, I know now that no fees come specifically from insurers, although some of those I represent had the benefit of after-the-event insurance. I wanted to make that clarification before I began my remarks.
I will press the Committee to Divisions only on amendments 91, 94 and 32 in the first group. My remarks will mainly be on amendments 91 and 92, but I will touch on the other amendments.
Amendment 92 deals with something we are very concerned about—I will return to it in a moment—and amendment 91 is also about adequate information and notification. Amendment 94, on which I intend to divide the Committee, is about an independent evaluation of the operation of the expanded written procedures. Amendment 32 also relates to independent evaluation and has been grouped on that basis.
The Chair
Order. May I make it clear that we are dealing with amendments 92 and 91 to clause 23? We will have separate debates as listed on the selection list: on amendment 93 on its own, and on amendments 94 and 32 and new clause 15. I am grateful to the hon. Gentleman for telling us which amendments he wants the Committee to divide on, but at the moment we are debating amendments 92 and 91.
Nick Thomas-Symonds
I am grateful, Mr Stringer. I will confine my remarks to those two amendments. I was trying to be helpful; it is a slight curiosity that although amendment 32 relates to clause 34, it is grouped with the others because it relates to independent evaluation. That is the point I wanted to clarify.
The Opposition very much appreciate the need for greater efficiencies throughout the justice system, but to ensure that our justice system is just, proportionate and accessible, it is of the utmost importance that there be access to justice—access for the most vulnerable citizens in our communities, whether they are witnesses, victims or, indeed, the accused. It is well established that high numbers of people who come into contact with our criminal justice services have multiple needs, many of which are directly related to their ability to interact with Her Majesty’s Courts Service in a meaningful and effective manner using technology. To ensure that all defendants—especially the vulnerable, including children and those who suffer from mental health issues and may have addictions or learning difficulties—do not fall prey simply to the exigencies of swift and efficient resolution, robust safeguards have to be in place to ensure informed decision making and a comprehensive understanding of the nature of the decisions.
Clause 23 includes the ability of the defendant to give a written indication of their intention to plead guilty or not guilty. The aim is to save time and money. In subsection (4) there is already a provision for defendants to be given information about the written information procedure, how it works and the consequences, but we believe, in accordance with representations we have had from a variety of stakeholders, including the Bar Council, the Law Society, Justice, and the Magistrates Association, that the wording is not as explicit as we would like it to be. In addition, we wish to ensure that there is a user-friendly way in which the language is expressed. It is vital that people clearly understand their right to legal assistance before making a decision, to understand their options before they follow the online process; and, critically, that the defendant is aware of the consequences of indicating a plea in writing.
There is an additional concern that written procedures will lead to more unrepresented defendants in our system. Research by Transform Justice suggests that entering the plea is one of the points in the system where those without a lawyer are at their most disadvantaged. Unrepresented defendants did not understand when they had a viable defence and should plead not guilty, but that works in reverse as well: people can plead not guilty when the evidence against them is overwhelming, thus losing credit for an early guilty plea.
Furthermore, there are concerns that under the new written procedures defendants will no longer have access to the informal support network in courts, which includes clerks and ushers in addition to legal counsel. It is vital that we at least seek to replicate such support in the written procedures with an option to stop and seek legal advice at each stage. We need to prevent a situation where the defendant could reach the sentencing stage of their case before even seeing a judge or magistrate and for there to be a risk that a conviction should not have been entered. Of course, that could ultimately lead to an outcome that is in nobody’s interest: a miscarriage of justice.
In subsection (5) there is provision for how and by whom written information may be given to the defendant, but, again, concern has been raised by Transform Justice about the minimum levels of training that individuals will receive to ensure that they are appropriately qualified to offer advice on such complex issues. It is sometimes hard to imagine a situation in which representatives would not be in that position. We all have to try to ensure that they are in a position where we can serve the interests of justice.
Clearly, there are concerns. I refer specifically to amendment 92. Justice and the Prison Reform Trust are concerned in relation to persons who are unable to follow written procedures because of their particular needs. Many people in the justice system can lead chaotic lives for a variety of reasons and have complex needs, including mental health needs and/or learning difficulties. Others may be partially or wholly unable to read or write. There is also a concern that defendants and witnesses are reluctant to declare, or may not even be aware of, a disability, and online and virtual processes can exacerbate that assessment challenge. We are concerned about the risk that a vulnerability will be missed, and we certainly want to ensure that those who have to deal with it are able to do so. There is also a concern about the incentivisation of guilty pleas owing to the ease of simply responding to written options. I hope I have set out some of the concerns in relation to clause 23.
We suggest that the two amendments in this group—the first, amendment 92, is about adequate information; the second, amendment 91, is more specific, on the notification of the right to legal assistance, consequences of a plea and notification of plea procedures available—would deal with some of the concerns that I have outlined and would be sensible for the Government to adopt.
The Minister for Courts and Justice (Sir Oliver Heald)
It is a great pleasure to serve under your chairmanship again on such a momentous day, Mr Stringer. I put on the record my gratitude to the Ministry of Justice officials who have put so much work into briefing me and helping me with this Bill. I thank them all very much indeed.
I commend the hon. Member for Torfaen and his hon. Friends for seeking to ensure, in proposing amendments 92 and 91, that our planned reforms to pre-trial criminal procedures are fair, transparent and as straightforward as possible. I share the concerns about protecting the principles of justice. I hope that I can reassure them that the safeguards they seek are to be provided and are catered for by the Bill.
The first thing to say is that engaging with the written information procedure will always be entirely optional: defendants will always be free to opt out for a court hearing if that is their wish. The court will always retain the discretion to hold a hearing if it thinks that is necessary. Every defendant will be given a hearing date at the same time as they are invited to engage online. They will be provided with enough information to make an informed choice. If they choose not to engage online, they can simply attend the hearing that they have been notified about.
Clause 23(4), mentioned by the hon. Gentleman, states that the criminal procedure rules may specify what information is to be given to defendants about the nature of the written information procedure and the consequences of following it as well as about seeking legal representation. It states that this information can also be given to a parent or guardian where a defendant is under 18.
The Criminal Procedure Rule Committee, independent of the Government, is chaired by the Lord Chief Justice and is full of expertise, given that it has representation from other judges, magistrates, justices’ clerks, barristers, people from voluntary organisations and so on. It will have the power to stipulate the information that it considers to be pertinent to the defendant’s ability to make an informed choice. We believe that it is appropriate to give that committee the power because it has that expertise, and also because it will be able to refine the rules once it sees how the written information procedure works in practice. Section 69(4) of the Courts Act 2003 already requires that the rules be accessible, fair, simple and efficient. Those rules, of course, come before Parliament as secondary legislation.
In terms of accessibility, Her Majesty’s Courts and Tribunals Service is determined that the written information procedure shall be straightforward and comply with government digital service accessibility standards. User research has been at the heart of developing the technology. There will also be assisted digital provision for those, mentioned by the hon. Gentleman, who are unable to use digital services; they will be able to get help either over the phone or in person if they need it. I commend the hon. Gentleman for seeking reassurance and hope that I have provided it. On that basis, I ask him to withdraw the amendment.
Nick Thomas-Symonds
On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Nick Thomas-Symonds
I beg to move amendment 93, in clause 23, page 21, line 6, at end insert—
“(3A) Where a person is unrepresented the written information procedure will only apply if the person is charged with a summary, non-imprisonable offence.”
This amendment ensures the written information procedure can only be used in limited circumstances in cases where the defendant is unrepresented.
I will be brief in my remarks on this amendment, having set out some of my concerns in my previous remarks. Amendment 93 states specifically that the written information procedure can be used only in limited circumstances in cases when the defendant is unrepresented. It deals with the Opposition’s long-standing concern about the increasing number of unrepresented people in our courts system and the increasing number of unrepresented people coming into contact with these new procedures. The restriction is a sensible measure to enact at this stage, and I commend it to the Minister.
Sir Oliver Heald
Again, I commend the hon. Gentleman on putting forward a protection, but I hope to be able to satisfy him that the Bill tackles the issue.
I start by saying that I agree it is desirable for defendants to seek legal representation in the case of serious crimes. Engaging with the court online at pre-trial stages will be voluntary, and if a defendant wants to speak to a lawyer at a hearing before indicating a plea, he will be perfectly entitled to do that. Similarly, if he wants to obtain legal advice before indicating a plea online, he can do that. The measure does not fundamentally undermine the current system. In fact, it is probably better.
It is also relevant that, save when specific procedures apply in respect of summary offences—those are very limited—the defendant will have to enter a plea at the court hearing rather than simply indicating what their plea is online. So before trial or sentencing, a plea will have been entered at court.
If a defendant withdrew a previously indicated guilty plea, the previous admission of guilt could not be admitted as evidence in the proceedings, and no defendant who attended a court hearing rather than engaging online would be disadvantaged for the purposes of the early guilty plea discount.
Amendment 93 is undesirable to some extent because it would restrict the defendant’s right to self-representation, which has always been there, and I ask the hon. Gentleman to withdraw the amendment.
Nick Thomas-Symonds
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment proposed: 91, in clause 23, page 21, line 13, at end insert—
“(4A) Criminal Procedure Rules must include provision for a person charged with an offence, or a parent or guardian of that person, to be given in writing—
(a) notification of a defendant’s right to legal assistance;
(b) notification of plea procedures available, not limited to the written information procedure;
(c) an explanation of the consequences of indicating their plea in writing.
(4B) Information provided under subsection (4A) must be presented in an accessible format using clear language.” —(Nick Thomas-Symonds.)
This amendment ensures defendants receive adequate information and notification about the written information procedure, including alternative plea procedures and the consequences of indicating their plea in writing.
Question put, That the amendment be made.
Nick Thomas-Symonds
I beg to move amendment 94, in clause 23, page 22, line 13, at end insert—
“(11) Within two years of this Act coming into force, the Secretary of State shall commission an independent evaluation of the operation of the expanded written procedure made under this section and shall lay the report of the evaluation before each House of Parliament.”
This amendment ensures the expanded use of the written procedure is reviewed within two years.
The Chair
With this it will be convenient to discuss the following:
Amendment 32, in clause 34, page 33, line 22, at end insert—
“(1A) Within two years of this Act coming into force, the Secretary of State shall commission an independent evaluation of matters under section 34 and shall lay the report of the evaluation before each House of Parliament.”
This amendment ensures the Secretary of State will undertake a review within two years of the Bill’s provisions relating to public participation in proceedings conducted by video and audio.
New clause 15—Review of expansion of availability of live links—
“( ) Within two years of this Act coming into force, the Secretary of State shall commission an independent evaluation of the expansion of availability of live links in—
(a) criminal proceedings under section 32, and
(b) other criminal hearings under section 33,
and shall lay the report of the evaluation before each House of Parliament.”
This new clause ensures the Secretary of State will undertake a review within two years of the Bill’s provisions to expand the availability of live links in criminal proceedings and other criminal hearings.
Nick Thomas-Symonds
The amendments and new clause deal with independent evaluation. Amendment 94 is about independent evaluation of the operation of the expanded written procedure, and it would require the Government to lay the report of the evaluation before each House of Parliament within two years. I referred previously to amendment 32; it relates to the independent evaluation of the matters in clause 34, which deals with public participation in proceedings conducted by video and audio. New clause 15 also concerns the principle of review. It is about the expansion of the availability of live links. Again, there would be an independent review within two years of the coming into force of the Act, and that would have to be laid before both Houses of Parliament.
The amendments are sensible, and the Government should not be afraid of them. We are all united in our wish that there should be access to justice. We are of course aware of, and embrace, the new technology that is available. However, two arguments arise. First, we should ensure that there are proper safeguards to protect people, and secondly we should evaluate how the system works as we take it forward.
We heard substantial evidence on the first day of the Committee, and there was also substantial written evidence, much of which highlighted various worries. A two-year review would not in any way impede the Government’s progress on the central aspects of the Bill, but it would ensure that the Government were held to account properly for whether the measures work as we want them to and do not impede access to justice. It would also be a useful reference point for the Government to look again at where the system was not working as well as it should.
Sir Oliver Heald
Again, I acknowledge the concerns that have been expressed. I support the idea of reviewing and monitoring measures put in place in legislation. However, the proposals have all been developed alongside extensive user research, and we already intend to review and monitor the new processes on a continuing basis to make sure that they are used properly. We consider that that iterative approach is better than conducting a one-off evaluation of the matters that we are discussing.
We also have plans to monitor performance data and gather feedback on all our new systems. Both Her Majesty’s Courts and Tribunals Service and the Ministry of Justice publish annual reports and accounts, reviewing performance against the year’s priorities and objectives, which are available to Parliament and the public. Defendants engaging online will be given the same information and warnings that they would receive in court, and will have access to the same legal advice. Of course, the court has discretion to conduct its proceedings at a hearing whenever it wishes.
The measures concerning audio and video technology in the criminal courts are very specific about the circumstances in which live links and virtual hearings may and may not be used, so sentencing hearings may not take place wholly as audio hearings. We have also invited the Criminal Procedure Rule Committee, which I mentioned before—an independent body chaired by the Lord Chief Justice—to consider the new powers and whether the current rules should be amended to set out additional factors that the court should consider when deciding the appropriate mode of hearing. The court will always have the final say on that, and assisted digital provision will be in place to support users to interact with Her Majesty’s Courts and Tribunals Service using digital channels, and to support access to the necessary technology and digital skills, so that it can be easily used.
I turn to public participation. Open justice is a fundamental principle of our justice system. It is vital that we maintain transparency, which is why we propose to enable access to fully virtual hearings that do not take place in a physical courtroom, using terminals, which will be located in court buildings across England and Wales. We have conducted extensive research with stakeholders to help develop our proposals, and we will be testing the provision with court users.
As we make virtual hearings available, HMCTS will carefully monitor observer demand to ensure that we are providing the appropriate levels of access. We anticipate that observer numbers for virtual hearings will generally be low but we will ensure, as far as we can, that provisions are flexible in order to accommodate interested observers of a virtual hearing.
I hope I have been able to reassure hon. Members that the appropriate arrangements and safeguards are in place, and that the written information procedure of virtual hearings will be used effectively and appropriately and to enable access to fully virtual hearings.
Nick Thomas-Symonds
I intend to push amendment 94 to a vote.
Question put, That the amendment be made.
Nick
Thomas-Symonds: I beg to move amendment 95, in clause 23, page 22, line 13, at end insert—
“(11) Persons under the age of 18, when charged with the relevant offence, are exempt from this section.”
This amendment removes children from provisions allowing defendants to engage with a court in writing.
Nick Thomas-Symonds
I will not unduly delay the Committee on this amendment, because I intend to speak in a little more detail on clause 30, which relates to the same matter. None the less, we appreciate the opportunity to remark on amendment 95, which I do not intend to push to a vote. It is about removing children from the provisions allowing defendants to engage with a court in writing.
There are a number of concerns about those provisions, which I hope the Minister will acknowledge and be able to deal with to an extent. For example, there is nothing in the Bill to ensure that children’s parents or guardians will be informed about the written procedure before a child indicates their plea. Evidence seems to suggest that children are more likely than adults to enter guilty pleas for offences that they have not committed. Our concern is that indicating pleas online will make that significantly worse.
We worry about peer pressure to indicate a guilty plea, for example, in cases in which an offence is committed by a group of children and a particular child is being bullied. We are also concerned by something that came through in both the Taylor and Carlile reviews, with which the Minister will be familiar—the fact that children do not necessarily understand court proceedings and their implications.
Our real worry is about children participating in court proceedings in writing, without any real understanding of them. It is not clear how written proceedings will be intelligible to children who may be as young as 10. That is before we even consider children who offend who may have difficulties in communication, and of course one in three children in custody have special educational needs. We worry that there is a problem in children’s engagement in the criminal justice system in any event, which will be exacerbated by their involvement in written procedures. I will not go any further at this stage, because I will come back to this point on clause 30, but that is the outline of my concerns and why I commend amendment 95 to the Committee.
Sir Oliver Heald
I will speak to Government amendments 51 and 50, but amendment 95 raises the important issue of whether the written information procedure in the Bill should apply to young defendants. Government amendment 51 clarifies how the court might proceed if a youth is on the cusp of turning 18, and Government amendment 50 looks at how the expanded power to remit cases from the youth court should apply when a defendant turns 18.
The written information procedure means that a person charged with offences may choose to give specified information to the court, including an indication of a guilty or not guilty plea. The plan is that that will usually occur online through the Government’s digital channel, which is a unified digital case management system that is currently being developed by HMCTS. Although young defendants may therefore indicate a plea earlier than now, amendment 51 makes sure that the court will retain discretion in relation to those on the cusp of turning 18 so that it can still treat them as youths, because they will no longer have to wait until the first courtroom hearing. Therefore when a defendant turns 18 having previously indicated a plea online, the youth court may still treat them as a youth and deal with them using the powers under the Children and Young Persons Act 1963.
Amendment 50 clarifies how the expanded power to remit cases from the youth court to another criminal court will apply when a defendant turns 18 between charge and trial. If a defendant turns 18 post-charge and the youth court decides pre-trial to remit the youth to the mainstream magistrate’s court, the receiving court will not be able to continue to treat them as a youth, and for example use the more extensive custodial powers of a youth court. As a result, defendants will have greater certainty about what will happen as a result of the youth court’s decision to remit. They will therefore be in a better position to decide whether at the time of remittal they want to elect for jury trial. From time to time the age of a defendant may be unclear, and there are young defendants who, for example, are also victims of human trafficking. In some such cases, fresh information may arise later on that allows the court to more accurately determine age. Amendment 50 caters for those scenarios and allows a case to be remitted back to the youth court.
Turning to Opposition amendment 95, the purpose of clause 23, combined with clause 30 and schedule 3, is to reduce the number of times young defendants and their parents or guardians need to travel to court. That is part of the distinct service model that is being developed for young persons. For example, when a case must be sent to the Crown court because it can be tried only with an indictment, young defendants will no longer have to travel to a youth court to allow that simple process to occur.
That is important, because there has been a 70% decline in the number of proceedings against young people in the criminal courts since 2006-07. Although that reduction is welcome, its scale does pose logistical challenges. In some areas, sittings of the youth court are in fewer locations and are already occurring less frequently, causing delays. Allowing case management at the pre-trial stages of cases to take place outside the courtroom means that young defendants ought only have to travel to court for a trial or for a sentencing hearing. Through its six-year reform programme, HMCTS is developing a specific service model for young defendants, including those who provide information in writing. It is a distinct youth justice system for children and young persons. Young defendants will therefore continue to be subject to procedures and processes that are different from those for adults.
The Bill provides a number of safeguards applicable to young defendants who choose to provide information in writing. I will not say more about those at this stage, as we have clause 30 to come. In the light of those safeguards and the distinct service model that is being developed, I ask the hon. Gentleman to withdraw amendment 95.
Nick Thomas-Symonds
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 23 ordered to stand part of the Bill.
Clause 24
Charge by police or prosecutor: non-appearance in court after guilty plea
Question proposed, That the clause stand part of the Bill.
Sir Oliver Heald
The purpose of clause 24 is to extend the current procedure of pleading guilty in writing, which is in section 12 of the Magistrates’ Courts Act 1980, to summary offences that are charged by the police. Under the procedure, a defendant can indicate a guilty plea in writing, and then the court can convict him or her of the summary offence in question without the defendant’s having to appear before it for a hearing.
Under existing law the procedure applies only to summary offences begun by summons or written charge. Clause 24 provides that a defendant can adopt the procedure in cases begun by police charge. In all cases, opting to plead guilty in writing and to be convicted in absence will remain entirely voluntary. Clause 24 reaffirms and continues the important safeguard that a magistrates court cannot sentence a defendant to custody, or impose a driving disqualification, without first bringing him or her to court.
Under the clause it will also remain the case that the section 12 procedure can apply only where the defendant has been served with the information about the charge and the evidence against him. Where there is reason to do so, clause 24 allows the court, relevant prosecutor, or police to decide not to apply the procedure whereby a defendant pleads guilty and is convicted in their absence, so that they are brought before the court to enter a plea.
Question put and agreed to.
Clause 24 accordingly ordered to stand part of the Bill.
Clause 25
Either way offence: choice of written procedure for plea before venue
Nick Thomas-Symonds
I beg to move amendment 98, in clause 25, page 24, line 7, leave out paragraph (d) and insert—
“(d) explain that, if the person chooses not to give a written indication of plea or fails to do so within 21 days of the date on which the document was sent, the court must proceed under section 17A upon the expiry of the 21 day period;”
This amendment gives greater clarity and certainty about the timeframe in which a court hearing must be held where a person does not give a written indication of plea.
The purpose of the amendment is to give greater clarity and certainty about the timeframe in which a court hearing must be held where a person does not give a written indication of plea. Clause 25 inserts into the Magistrates’ Courts Act 1980 a section that provides for the defendant charged with a summary, indictable or either way offence to have a choice to engage with the “plea before venue” procedure in writing, without having to attend court, provided that they have been equipped with certain information. Under the section, where the defendant indicates a guilty plea in writing, the offence is treated as if it were a summary offence.
In the case of a guilty plea, the defendant can be convicted without the hearing of any evidence, and the magistrates court can proceed to sentencing or refer the proceedings to the Crown court, if it considers its powers inadequate. Where the defendant indicates a not guilty plea in writing, they are given the choice of agreeing that the court should proceed to decide mode of trial outside court in their absence. Clause 25 also provides that where the defendant fails to give any written indication of plea, the proceedings continue in accordance with existing court-based procedures. There is a concern that that is likely to build in delay, rather than reduce it.
The clause provides a safeguard, in that it allows a defendant who has given an indication of plea in writing to withdraw it in writing at any time before the case is heard. However, it is our view that further safeguards should be added, to ensure that assistance is provided for those who are not able to engage with a written or online procedure. It is well established, as I mentioned in my remarks on clause 23, that high numbers of people in contact with the criminal justice system have multiple needs, many of which are directly related to their ability to interact with Her Majesty’s Courts Service in a meaningful and effective manner using technology. For example, literacy rates among prisoners are low, with about half at or below level 1 in reading, and four fifths at or below level 1 in writing.
It is generally acknowledged that between 5% and 10% of adult offenders have a learning disability of some kind, thus support is required in reading, writing, communication and comprehension. There is also a worry that someone with a learning disability before the justice system may be suggestible. We have to ensure that they are not in a situation where they fail to understand what they are accused of and the implications of decisions they are being asked to make.
There is a worry that someone may plead guilty in order to expedite proceedings in the hope of being allowed, for example, to leave custody and return home quickly, without appreciating the implications of entering a guilty plea.
Many people with mental health problems have conditions that fluctuate. That, of course, means that they may engage well with technology on one occasion but not on another. That can vary, not just day to day, but over the course of a day. It is vital that, where a defendant does indicate a plea, they must be able to choose between using a written, online or court procedure and that that is a legitimate choice, free of pressure or prejudice of any kind.
There are concerns that indirect pressure will be applied to defendants to opt for the written procedures by unduly delaying in-person proceedings. On that basis, I seek assurance that, where a person does not indicate his plea in writing or online, a clear and reasonable timeframe is offered in which a court hearing must be held. That is precisely what the amendment would do. It would make clear in circumstances where a person does not indicate his or her plea in writing or online that the timeframe of 21 days is given in which a court hearing must be held, so as not to discriminate against those who opt for an in-person hearing.
Sir Oliver Heald
The point underlying the amendment is, again, valid. Clearly, defendants will have to be told that, if they wish to indicate a plea online, they must do so before the date to which they have been bailed to appear at court. The time allowed for that purpose must not be so long as to lead to increased delay. However, the deadline set by reference to the date when documents were sent would not in my view work.
The date to which defendants are bailed after charge, pending their first court appearance, is governed by the criminal practice direction, issued by the Lord Chief Justice. It is significant that the date set for a hearing depends on the circumstances of the case and varies according to whether a guilty or not guilty plea is likely: respectively, 14 days or 28 days after charge.
The 21-day deadline specified in the amendment would expire a week before the hearing date in the case where a not guilty plea was expected or, less practically, a week after the date to which a defendant would be bailed to appear where a guilty plea was anticipated.
There are two conclusions. The first is that a single deadline, set by reference to the date when the documents were sent, would not work. The second conclusion is that, whatever deadlines may be suitable, it is probably not for primary legislation. I know that the Criminal Procedure Rule Committee has started to look at this matter. I therefore invite the hon. Gentleman to agree that this could more appropriately be prescribed in the criminal procedure rules and so ask for the amendment to be withdrawn.
Nick Thomas-Symonds
I hope that something like that will be prescribed in the criminal procedure rules, as indicated by the Minister. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 25 ordered to stand part of the Bill.
Clause 26
Either way offence: choice of written procedure for mode of trial
Question proposed, That the clause stand part of the Bill.
Sir Oliver Heald
The purpose of clause 26 is to provide for defendants to choose to have mode of trial dealt with in writing outside court and without being present. It will allow the court to hold fewer pre-trial hearings and to deploy its time more effectively and proportionately. As the Committee no doubt knows, mode of trial is the procedure for offences classified as triable either way when there is a decision to be made as to whether the case is more suitable for a magistrates court hearing or a Crown court hearing.
As part of the mode of trial procedure, the defence and prosecution have the chance to make representations to court concerning, for example, previous convictions. The defendant may have the right to ask whether a custodial sentence would be likely if he pleaded guilty. After such communication, the magistrates court makes a decision about whether summary trial at the magistrates court or Crown court trial is more suitable. If the magistrates reject jurisdiction, the defendant is sent to the Crown court for trial and their consent is not required. If the court decides that summary trial is more suitable, the defendant is asked to choose whether they wish to elect for trial at the Crown court.
Clause 26 makes it possible for all these interactions with the court to be conducted in writing if the defendant so chooses. As such, it plays an important role in allowing the criminal court to streamline case management procedure. It also amends the provision dealing with police bail after arrest. The date, time and place at which a defendant is remanded to attend court is to be that fixed by the court officer. This gives the court the flexibility to allow the defendant a reasonable opportunity to engage in the written procedure.
I turn to clauses 27, 28 and 29. Clause 27 would enable magistrates courts to decide mode of trial for either way offences in the absence of an adult defendant. It is needed to allow the courts to continue to progress cases when defendants have failed to appear. When mode of trial is to be decided in the defendant’s absence, he or she is deemed to have indicated a not guilty plea and the court then proceeds to allocate the case for summary or Crown court trial as appropriate. If the court allocates the case for summary trial, the defendant retains the right to elect for Crown court trial up to the start of that trial.
Clause 27 provides a safeguard in that the court can proceed to decide mode of trial in absence only if it is also satisfied that all the relevant documents have been given to the defendant and that he or she has been made aware of the date of the mode of trial hearing. Moreover, the court does not have to allocate the case in the defendant’s absence in accordance with this provision, but may choose to adjourn.
Under existing law, theft from a shop of goods worth less than £200—known as low-value shoplifting—is triable only summarily unless the defendant exercises the right to elect for trial in the Crown court. Clause 28 gives defendants in such cases the choice of exercising that right in writing without attending court.
Clause 29 enables indictable offences to be sent to the Crown court without a hearing and the defendant to be notified in writing that this has been done. A so-called sending hearing in the magistrates court—sending to the Crown court—would be superfluous in either way cases that are allocated for Crown court trial pursuant to clause 26 when the defendant has engaged online. Such a hearing would also be superfluous in any indictment-only case, which has to be sent to the Crown court for trial regardless of the defendant’s consent.
Clause 29 also provides that the circumstances when joined cases or co-defendants are to be sent to the Crown court along with the main offence are to be dealt with by criminal procedure rules, which may also include provision for related summary-only offences to be sent to the Crown court.
Question put and agreed to.
Clause 26 accordingly ordered to stand part of the Bill.
Clauses 27 to 29 ordered to stand part of the Bill.
Clause 30
Children and young people
Question proposed, That the clause stand part of the Bill.
Sir Oliver Heald
We have already had some discussion of the clause when considering amendment 95. The clause introduces schedule 3 to the Bill, which permits preliminary proceedings for defendants aged 10 to 17 charged with criminal offences to be conducted in writing. A person charged with offences may choose to give specified information to the court in writing, including the indication of a guilty or not guilty plea. It is planned that the giving of that information will usually occur online through a common platform—a unified digital case management system—currently being developed by Her Majesty’s Courts and Tribunals Service.
Through its six-year reform programme, Her Majesty’s Courts and Tribunals Service is developing a specific service model for young people, including those who provide information of the sort I mentioned in writing. That is in recognition of the fact that there is already a distinct youth justice system for children and young persons, with separate procedures and processes applying to them when they come to court. The future service model for young people takes account of the 70% decline in the number of young people proceeded against in the criminal courts since 2006-07. While that reduction is welcome, its scale poses the logistical challenges I have mentioned before, which can lead to delays; for young people, it is particularly important that cases are heard as quickly as possible.
The purpose of the clause and schedule is to reduce the number of times young defendants and their parents or guardians need to travel to court, so reducing the burden of travel. The Bill will allow for case management at the pre-trial stages of cases to take place outside the courtroom, so that young defendants preferably travel to court only for trial and sentencing hearings—for example, where a case must be sent to the Crown court, it will no longer require a court hearing to do so.
The Bill provides a number of safeguards applicable to young defendants who provide information in writing. For example, having regard to the circumstances of the case and the age of the young defendant, the court will ascertain whether the parent is aware of the written proceedings, and if not, will make them aware. The aim is to ensure that, taking into account the young defendant’s age and maturity, he or she is given enough information to make an informed decision when choosing to participate in the preliminary proceedings in writing. Courts must therefore also provide the young defendant, and as appropriate, their parents, with information that explains the written procedure, the choices available to them and the effects of those choices.
Where a plea of guilty or not guilty is indicated in writing, courts will also subsequently have to make sure, at the first hearing in the courtroom, that the young person has understood and confirms their written indication of plea before proceeding further. It is worth underlining that the young person is indicating their plea, not pleading in writing; they have to do that in court. As with any case involving a young defendant, when dealing with preliminary matters in writing, courts must have regard to the overarching statutory duties to prevent offending by young people and to have regard to their welfare.
Nick Thomas-Symonds
We oppose clause 30. As the Minister has indicated, we have already discussed children being involved in written proceedings when we discussed amendment 95 to clause 23 a moment or two ago. I am grateful for some of the safeguards the Minister has set out, but for the Opposition they remain insufficient. I indicated in our discussion about amendment 95 concerns about the awareness of parents and guardians, the likeliness of children entering guilty pleas, peer pressure and, most fundamentally, children being able to understand proceedings.
I want to deal specifically with the Taylor and Carlile reviews, with which the Minister will be familiar. The Taylor review, which was commissioned in 2015, looked at the youth justice system and was published in December last year alongside the Government’s response, which included a commitment to implement the spirit of the review. The Taylor review was highly critical of the court system, which it found was
“not set up to ensure the full participation of children in criminal proceedings.”
It should trouble the Committee that Taylor found that court procedures and outcomes are frequently not understood by children. He stated:
“On many occasions children leave the court confused by the outcome and need to have their sentence explained to them by a YOT”—
youth offending team—
“worker… Too often children are the passive recipients of justice and do not understand the process to which they have been subjected.”
In addition, he found that the youth justice system
“has a statutory aim to prevent offending, but the criminal courts are not equipped to identify and tackle the issues that contribute to and prolong youth offending… Magistrates frequently report that they impose a sentence without having a real understanding of the needs of the child, and they rarely know whether it has been effective.”
The phrase “frequently report” is important; it is not simply a problem that a minority worry about, but a frequent problem.
Taylor recommended the introduction of a new system of children’s panels to sentence children. Those panels would have greater powers to identify and tackle the causes of offending, and panel members would oversee a child’s progress. In 2014 a major review of the children’s court system, chaired by the noble Lord Carlile, made similar findings—particularly that children were not engaged in proceedings—and advocated a problem-solving approach.
The Opposition’s concern is that the Bill does nothing to rectify the very serious problems that both Taylor and Carlile identified. We worry that those problems of engagement, participation, understanding and comprehension will be made worse by introducing proceedings in writing in this way. Our position is therefore that clause 30 should not stand part of the Bill and should be deleted altogether.
Sir Oliver Heald
I agree with the hon. Gentleman that the reports to which he refers are well worth considering. The Government responded warmly to the Taylor review.
Young people lead their lives in a more online way than some of us older folk, so having an online procedure that explains things to young people, with the safeguard of their having to attend court so that they give only an indication of plea in writing—they do not actually plead—will help.
Nick Thomas-Symonds
On online procedure, in the initial evidence session Professor Susskind referred to the fact that children interact with one other in a very different way from the way they did 20 or 30 years ago. My only slight concern about that is that we often urge caution on children when they engage with people online, particularly when that online contact is transferred to offline contact.
The Chair
Order. I remind the hon. Gentleman that interventions should be short and to the point.
Nick Thomas-Symonds
We should therefore perhaps exercise some caution about the way that children engage online.
Sir Oliver Heald
I do not disagree with the hon. Gentleman about being cautious—as a Conservative, it comes naturally. Having said that, there are a range of safeguards in the Bill, for example the fact that the parents and guardians are involved and that the parent has to be made aware of the written proceedings if they are not already aware. That has to be investigated. The online procedure will explain matters, as well as the oral explanations that always take place in the youth courts.
We obviously do not agree about this, but I invite the Committee to support clause 30, which will help rather than hinder the cause of young people in the courts, and schedule 3.
Sir Oliver Heald
Clause 31 creates a power for the Lord Chancellor to make regulations to enable or facilitate the making of preliminary and enforcement decisions in criminal proceedings by a court on the papers—that is, without a hearing. Regulations may only be made under that power with the agreement of the Lord Chief Justice and will not be able to remove from the court the option of holding a hearing. The regulations may be used to amend primary or secondary legislation.
Courts already have an inherent power to determine matters on the papers in some circumstances, but existing provisions preclude that in certain cases. In order to give the court greater flexibility to manage criminal proceedings, it may be appropriate to remove those barriers, so that the court can decide whether a hearing is required. I should emphasise that any regulations made under this power will be subject to affirmative resolution. Both Houses of Parliament will therefore have the opportunity to scrutinise any proposed change and will be invited to approve it.
Given the wider court reform proposed in the Bill, we believe that the merits of removing legislative requirements for a hearing will be best assessed once the reforms have come into force and have bedded in. It is therefore not possible to say exactly which matters we would like to enable the courts to deal with on the papers, but Members can be assured that the necessary safeguards are in place to ensure that this power will only be exercised where it is appropriate to do so.
Nick Thomas-Symonds
It is not my intention to oppose the clause, but perhaps the Minister could comment on one or two concerns. It is doubtful whether this provision would save time overall in highly complex cases, but I can see the case for it in numerous other eventualities. We should always remember that case management decisions are judicial, not administrative, decisions. What flows from that is that we have to ensure that the relevant information is available to the judiciary in deciding that, and that interested parties always have the opportunity to contribute, should they wish. Of course, in this, as in other situations, the court has to be able to respond to the individual circumstances of a particular case.
Sir Oliver Heald
I agree that these are judicial decisions, but I believe there is a case for flexibility. Where appropriate, any legislation that requires that a pre-trial or enforcement matter be determined at a hearing, if that is to be removed, the courts can still on a case-by-case basis decide whether a hearing is required. That, of course, is a provision that requires the support not just of the Lord Chancellor but of the Lord Chief Justice. I certainly take the hon. Gentleman’s point but still commend the clause to the Committee.
Question put and agreed to.
Clause 31 accordingly ordered to stand part of the Bill.
Clause 32
Expansion of availability of live links in criminal proceedings
Question proposed, That the clause stand part of the Bill.
Sir Oliver Heald
I had understood that it might be the case that the amendments would be dealt with next, but I am more than happy to move straight to the clause if I should.
Sir Oliver Heald
Then I will. I propose to deal with clause 32 and schedule 4 together, as the clause simply gives effect to that schedule. Schedule 4 expands the court’s powers under section 51 of the Criminal Justice Act 2003, to make better use of live audio and video links in trials, appeals and other specified hearings in criminal proceedings. At present, section 51 enables a witness, but not the defendant—
The Chair
Order. May I help the Minister? At the moment we are dealing only with the debate that clause 32 stand part of the Bill; we will come to amendment 104 to schedule 4 next. I hope that is helpful to the Minister.
Sir Oliver Heald
I beg to move clause 32.
Question put and agreed to.
Clause 32 accordingly ordered to stand part of the Bill.
Schedule 4
Live links in criminal proceedings
Nick Thomas-Symonds
I beg to move amendment 104, in schedule 4, page 77, line 14, at end insert—
“(aaa) in the case of a person who has not attained the age of 18 years, a live audio link or a live video link is in the individual’s best interests,”
This amendment ensures the court will only give direction to under 18 year olds to take part through a live audio link or a live video link, when it is in their best interests.
The Chair
With this it will be convenient to discuss amendment 110, in schedule 5, page 87, line 30, at end insert—
“(aa) in the case of a person who has not attained the age of 18 years, a live audio link or a live video link is in the individual’s best interests,”
This amendment ensures the court will only give direction to under 18 year olds to take part through a live audio link or a live video link, when it is in their best interests.
Nick Thomas-Symonds
The amendments seek to ensure that the court will give directions for under-18-year-olds to take part in either live audio or live video links only when it is in their best interests to do so.
Schedule 4 expands the court’s powers under the Criminal Justice Act 2003 to use technology across a wider range of hearings and participants. The provisions allow for the conduct of certain preliminary aspects of criminal proceedings to be conducted in writing, as we have previously discussed. The court is required to be satisfied that the live link is in the interests of justice before making one, and that parties are given the opportunity to make representations to the court as to whether to make such direction.
Paragraph 2(7) of the schedule specifies that the court must give reasons for not giving live link directions, which we say reverses the presumption in favour of physical hearings and is of real concern. We believe it should be standard that for a fair hearing all participants are in the same room, although, of course, alternative forms can be considered alongside that.
For many stakeholders—in the experience of the Bar Council and the Law Society, for example—virtual hearings can diminish the ability of the parties to follow proceedings and understand each other. That can inevitably have consequences for the quality of justice as it is done and as it is seen to be done. Court etiquette—I say this from experience—can be difficult to follow at the best of times, and that is exacerbated if the individual cannot follow visual and non-verbal cues.
Amendments 104 and 110 focus, again, on children and under-18s. I set out in previous remarks the issue with children engaging and participating in court proceedings, as recognised in the Carlile and Taylor reviews. Children in the justice system exhibit especially high rates of communication difficulties, which should trouble us. Those problems will be exacerbated by the expansion of the use of video and audio links. As I indicated in my overly long intervention on the Minister earlier, while I totally accept that children now engage with one another online far more, we none the less have to treat that with caution, particularly when we are talking about children and live links.
The Youth Justice Board issued a statement voicing its concerns about this in April 2016, which is worth pausing on. It said that
“a ‘digital by default’ approach to court hearings is not appropriate for children and young people. Consideration must first be given to the nature of the hearing in question. The use of video links is not appropriate for trial, sentencing or appeal hearings involving children. Suitability of a preliminary hearing for video technology must be assessed on a case-by-case basis and be subject to a robust decision-making process involving the judiciary, the young person’s youth offending team, the defence representative, the CPS and other relevant parties. The assessment must take into account the individual needs and requirements of each child or young person, including whether the young person has any speech, language or communication needs. Where the use of digital technology is deemed suitable, defence representation must be guaranteed.”
We must therefore guard against the creation of a new legal fiction that participation by audio link is the absolute equivalent of in-court participation.
Under schedule 4, courts are prohibited from refusing or revoking bail at a live audio link hearing, and they cannot deal with a person for contempt of court at hearings that are also audio attended. We worry that those restrictions are not extensive enough and would like to see further safeguards, to avoid mission creep in the scope of offences under these provisions.
Transform Justice has raised concerns regarding the lack of examination of the equality aspect of virtual courts, particularly for vulnerable defendants. As I set out in my earlier remarks, victims, defendants and witnesses can be reluctant to declare, or may not be aware of, their disability. We worry that vulnerability can be missed, and virtual processes exacerbate that.
The aim of the virtual courts proposals is to improve efficiency and reduce costs, but there has been little in the way of consultation, research or costing to establish that the measures will achieve those aims. In one of the Committee’s initial sittings, we discussed the 2010 evaluation of the virtual court pilot, and I recall the Minister having a discussion with one of our witnesses. I appreciate that that occurred in 2010, and we had a subsequent discussion as to how technology has evolved since, which I take on board, but the concern remains that the evidence available does not point to as positive an outcome as we all wish for.
Indeed, the evaluation of the virtual court pilot concluded that virtual courts are more expensive and may lead to more guilty pleas, longer sentences and impeded lawyer-client communication. The Bar Council said:
“We have seen no evidence in the Impact Assessment, or elsewhere, to support the assertion that virtual hearings confer benefits on victims and witnesses. Whilst some may be less likely to have to travel to court, it is not clear what proportion of victims and witnesses would instead prefer to have their ‘day in court’.”
There is also a concern regarding the reliability and fitness for purpose of IT and product design. The Government have to be held to account on that. Indeed, the recent “Justice Denied” report by the TUC showed that only 4% of staff who responded to a survey agreed that IT in courts works effectively. We worry that the provision has not been effectively costed.
Sir Oliver Heald
Again, I think that, across the Committee, we are seeking to achieve the same result. The Government sympathise with and share the intention behind the amendment. We want young people only to take part in proceedings that use such technology where it is appropriate for them to do so. I will reassure Committee members as to how the provisions in the Bill, and other protections, will achieve that objective.
Under the provisions in the Bill, a court may direct that a young person participate through a video link only where it considers that it is in the interests of justice for that person to do so. In exercising that power, the court also has a statutory duty under section 44 of the Children and Young Persons Act 1933 to have regard to the welfare of the young person. Furthermore, safeguards set out in the Bill will help to make sure that the court has adequate information with which to make that decision.
Schedules 4 and 5 provide that the court can make a direction to use a live link in respect of a young person only where the relevant youth offending team has been given the opportunity to make representations. Overall, it would be considered to be in the interests of justice for a young person to participate in proceedings through a live link where it could also be said that it was in their best interests to do so. The interests of justice test will consider the entire proceedings, and a detrimental impact on the young person would be, in my view, inconsistent with considerations of justice and having regard to the welfare of the young person.
Of course, where the defendant, victim or witness would not give their best evidence through appearing in person in the courtroom, it would likely neither be in the interests of justice or in their best interests to not use a video link. Conversely, where a young defendant’s mental condition is so disturbed that his or her production would be a significant detriment to his or her welfare, it would be difficult to argue that the use of the video link as an alternative—on medical advice—might not be in his or her best interests.
It is also worth noting that the recent amendments made by the Lord Chief Justice to the criminal practice directions of 2015 currently state that it will usually be appropriate for the young person to be produced in person in court. The directions suggest, where it may be appropriate, using video links on a case-by-case basis. They also refer to the need to ensure that the court can engage properly with the youth, and that the necessary level of engagement can be facilitated with the youth offending team, the defence representative and an appropriate adult. Those are the protections in place.
The hon. Gentleman asked whether there will be more use of the live link, but I think the key point is that the means through which a young defendant attends court proceedings will be and should be determined on a case-by-case basis. Courts have to consider whether it is in the interests of justice for a young defendant to participate, and I think we can rely on our courts to take those decisions with great care. Personally, I think one of the strengths of our independent legal system is that we have such expertise in our youth courts.
The 2010 study was mentioned, but 2010 is a lifetime ago in modern technology. That study did not cover the range of virtual hearings that we are talking about; it simply covered cases that were dealt with between the police station and the magistrates court. It came out in the evidence that the hon. Gentleman mentioned—many witnesses made this point—that that was not comparing apples with apples. Well, they did not use those words, but that is the way I put it. I therefore ask hon. Members to withdraw amendments 104 and 110.
Nick Thomas-Symonds
I am still not entirely satisfied, so I will press the amendment to a vote.
Question put, That the amendment be made.
Nick Thomas-Symonds
I beg to move amendment 105, in schedule 4, page 78, line 36, leave out “not”.
Together with amendments 98 to 109, this amendment would require that reasons be given for issuing live link directions, rather than for not giving them.
The Chair
With this it will be convenient to discuss the following:
Amendment 106, in schedule 4, page 78, line 38, leave out “not”.
See explanatory statement for amendment 97.
Amendment 107, in schedule 4, page 78, line 41, leave out “not”.
See explanatory statement for amendment 97.
Amendment 108, in schedule 4, page 78, line 43, leave out “not”.
See explanatory statement for amendment 97.
Amendment 111, in schedule 5, page 89, line 1, leave out “not”.
See explanatory statement for amendment 97.
Amendment 112, in schedule 5, page 89, line 3, leave out “not”.
See explanatory statement for amendment 97.
Amendment 113, in schedule 5, page 89, line 6, leave out “not”.
See explanatory statement for amendment 97.
Amendment 114, in schedule 5, page 89, line 8, leave out “not”.
See explanatory statement for amendment 97.
Amendment 115, in schedule 5, page 91, line 10, leave out “not”.
See explanatory statement for amendment 97.
Amendment 116, in schedule 5, page 91, line 13, leave out “not”.
See explanatory statement for amendment 97.
Amendment 117, in schedule 5, page 93, line 1, leave out “not”.
See explanatory statement for amendment 97.
Amendment 118, in schedule 5, page 93, line 3, leave out “not”.
See explanatory statement for amendment 97.
Amendment 119, in schedule 5, page 93, line 6, leave out “not”.
See explanatory statement for amendment 97.
Nick Thomas-Symonds
This group of amendments seeks to require courts to give reasons for issuing live link directions rather than reasons for not issuing them. Our position is straightforward: we do not want a “digital by default” system to arise. We believe that the best method of achieving justice is having all participants in the same room. We suggest that that is a simple, well established proposition on which we should all be able to agree.
The amendments would still allow live links where appropriate, but they would build into the Bill an assumption in favour of the physical majesty of the courtroom rather than of digital technology being used most of the time. I suggest that the amendments would create the right balance in our court system, so that courts are able to utilise new technology when it is appropriate to do so but we do not lose sight of the fact that having all participants in the same room is the most appropriate way of producing a just outcome.
Sir Oliver Heald
I understand that hon. Members are concerned, as the hon. Member for Torfaen said, that the Bill will have the effect of making virtual hearings the default mode, but I assure them that that is not the case. Instead, it will enable the use of virtual hearings in a wider range of circumstances to improve accessibility and efficiency. Live link technology is already used by the courts to great effect. It reduces inefficiencies for court users and time-pressed citizens, and it makes the court process less intimidating for vulnerable or intimidated witnesses and young people, as we recently discussed.
Asking the court to give its reasons for not giving a live link direction is the established practice—for example, in respect of an accused person in custody at a preliminary hearing under section 57B(6) of the Crime and Disorder Act 1998. Although it does not create the presumption that live links must be used, it encourages the court at least to consider whether it would be more proportionate or in participants’ interests to make use of live audio or video link technology. With the status quo of the court hearing there is really no need for that particular measure.
We want to encourage the court and other participants to make greater use of live audio and video links, but at the same time there will be rigorous safeguards in place to ensure that those are used only appropriately and that defendants get a fair hearing. The court will always have the final say on mode of hearing and will need to be satisfied that it is in the interests of justice and compatible with the defendant’s right to a fair trial, having considered representations from the parties and, in the case of young people, the youth offending team.
I hope I have been able to reassure hon. Members that asking the court to give its reasons for not issuing a live link direction is the established practice. It will not have an impact on the court’s determination and it will, of course, provide useful information to Her Majesty’s Courts and Tribunals Service on what limitations there may be to the use of live audio and video links, according to the reasons given by the court. I therefore ask the hon. Gentleman to withdraw the amendment.
Nick Thomas-Symonds
We think that this is a very important point of principle in the Bill, so I propose to push amendment 105, but none of the others, to a vote.
Question put, That the amendment be made.
Nick Thomas-Symonds
I beg to move amendment 109, in schedule 4, page 79, line 5, leave out paragraph (10) and insert—
‘(10) A court may not deal with bail, sentencing or any hearing where a remand decision is to be made, other than for the purposes of giving evidence, through a live audio link.”
This amendment would prevent live audio links being used in bail or sentencing proceedings, or at any hearing where a remand decision is to be made, except for the purposes of giving evidence.
The amendment is on the same theme of safeguards with regard to the use of live links. It would prevent live audio links from being used in bail or sentencing proceedings or at any hearing where a remand decision is to be made, except for the purposes of giving evidence.
We put this forward as part of the battery of concerns about the use of live links. Live links can be utilised by courts to speed up a process but we are firm believers in robust safeguards, as shown again in this amendment.
Sir Oliver Heald
We say that the safeguards are there. Schedule 5 provides that sentencing hearings may not take place with participation through a live audio link, except to enable persons other than the defendant to give evidence where there are no suitable video facilities available. We believe that has the same effect as that intended by the amendment.
In relation to live audio links more generally, they can be used at a hearing where conditions of bail are in dispute but not the principle of bail. The protections in schedule 5 deal with the points that have been raised and I ask the hon. Gentleman to withdraw the amendment.
Nick Thomas-Symonds
Having pressed amendments 104 and 105 to a vote, I do not propose to divide the Committee further on amendment 109. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 4 agreed to.
Clause 33 ordered to stand part of the Bill.
Schedule 5
Live links in other criminal hearings
Sir Oliver Heald
I beg to move amendment 52, in schedule 5, page 96, line 14, leave out “accused” and insert “offender”.
The amendment makes the terminology of this provision consistent with other provision in Part 1 of Schedule 5.
The Chair
With this it will be convenient to discuss Government amendments 53, 54 and 55.
Sir Oliver Heald
I proposed to deal with clause 33 and schedule 5 together as the clause simply gives effect to that schedule, but we have already dealt with the clause. Schedule 5 expands the courts’ powers under part 3A of the Crime and Disorder Act 1998 to make better use of live audio and video links in preliminary sentencing and enforcement hearings.
Amendment 52 agreed to.
Amendments made: 53, in schedule 5 page 96, line 16, leave out “accused” and insert “offender”.
The amendment makes the terminology of this provision consistent with other provision in Part 1 of Schedule 5.
Amendment 54, in schedule 5, page 97, line 32, leave out “deals with” and insert “is minded to deal with a person for”. —(Sir Oliver Heald.)
The amendment makes the terminology of this provision consistent with other provision in Part 1 of Schedule 5.
Schedule 5, as amended, agreed to.
Clause 34
Public participation in proceedings conducted by video or audio
Amendment proposed: 32, in clause 34, page 33, line 22, at end insert—
‘(1A) Within two years of this Act coming into force, the Secretary of State shall commission an independent evaluation of matters under section 34 and shall lay the report of the evaluation before each House of Parliament.”—(Nick Thomas-Symonds.)
This amendment ensures the Secretary of State will undertake a review within two years of the Bill’s provisions relating to public participation in proceedings conducted by video and audio
Sir Oliver Heald
Schedule 6 facilitates the observation of fully virtual hearings by members of the public and the media. The measures also prohibit unauthorised recording of virtual hearings in order to protect the solemnity of the court as well as the rights of victims, defendants and other participants. We propose to enable members of the public to view virtual hearings using screens located in court buildings.
Question put and agreed to.
Schedule 6 accordingly agreed to.
Clause 35
Changes to institution of proceedings by written charge
Question proposed, That the clause stand part of the Bill.
Sir Oliver Heald
The clause replaces the single justice procedure notice with the new written procedure notice. The new notice will be used to initiate proceedings that may proceed as now or, if eligible and appropriate, by way of the new automatic online conviction and standard statutory penalty procedure introduced by clause 36. If it is offered, defendants will need to actively opt into using the procedure and will be provided with all the information they need to make an informed decision about whether to use it.
Question put and agreed to.
Clause 35 accordingly ordered to stand part of the Bill.
Clause 36
Automatic online conviction and standard statutory penalty
Nick Thomas-Symonds
I beg to move amendment 101, in clause 36, page 35, line 6, leave out subsection (2) and insert—
‘(2) The person is convicted of the offence by virtue of—
(a) accepting the automatic online conviction; and
(b) not revoking this acceptance during the period of 14 days following, but not including the day of, acceptance.”
This amendment would enable a person convicted of an offence and who accepts the automatic online conviction to revoke that decision within a period of 14 days.
The Chair
With this it will be convenient to discuss amendment 102, in clause 36, page 35, line 13, at end insert—
“(ba) the accused has been made aware of their right to seek legal advice;
(bb) the consequences of a guilty plea have been clearly explained;
This amendment ensures individuals are made aware of their rights before they accept an online conviction.
Nick Thomas-Symonds
This pair of amendments relates to the theme of safeguards, which the Opposition are attempting to push throughout the Bill’s passage.
Amendment 101 would enable a person convicted of an offence who accepts the automatic online conviction to revoke that decision within a period of 14 days. Amendment 102 would insert a provision to ensure that individuals are made aware of their rights before they accept an online conviction.
In the evidence we have had, stakeholders have expressed concerns about the creation of a new automatic online conviction process where a defendant who pleads guilty and agrees to be dealt with under the process would be convicted automatically and sentenced automatically. The Bar Council referred to concerns about a lack of provisions for ensuring the defendant’s knowledge of their right to legal advice; the range of offences in the scope of this scheme; and the Secretary of State’s power to put new offences in scope.
Under clause 36, the online conviction would be applicable to summary-only, non-imprisonable offences specified in a positive statutory instrument by the Secretary of State that would need to be approved by both Houses. Fines, compensation, costs, surcharges and, where relevant, driving endorsements could be included. Those would be fixed by order of different classes of offence and, potentially, different circumstances for the same offence. They would be specified in a statutory instrument under the negative resolution procedure.
Clause 36 inserts six new sections into the Magistrates’ Courts Act 1980. It is clear that the definition of offences in the “Transforming our Justice System” consultation has been shortened to summary, non-imprisonable offences. The definition no longer excludes offences where there is an identifiable victim, which removes an important safeguard for victims and should be remedied.
Adequate safeguards are also lacking to ensure that defendants are aware of the consequences of entering an online plea. That is vital if an offence results in a criminal record, which can have serious and long-term implications, such as restrictions on employment, travel and the ability to obtain insurance. The Opposition say that offences under the scope of the clause should be restricted to non-recordable offences only.
Of course, individuals may mistakenly plead guilty through lack of adequate or any legal advice, which is a concern. We therefore say that defendants must be made explicitly aware of their right to seek legal advice and of the implications of pleading guilty. Not providing such information could have very serious consequences for the defendant’s right to a fair trial and the quality of justice that they receive. For example, many defendants will not know that an offence such as fare evasion, which we believe will be under the scope of the online process, is significantly more serious than a minor motoring offence because of the intention to evade payment.
We are also concerned that the Bill gives the Secretary of State the authority to specify that any summary offence not punishable by imprisonment can be eligible for online conviction. That leaves the door open for an alarming expansion of the scope of offences included without proper scrutiny. Any extension of the range of offences beyond those that attract fixed penalty notices should be made the subject of consultation, at which stage a full evaluation of the existing scheme should be provided. Further concerns have also been raised by stakeholders—including Liberty, for example—that the clause would transfer to the Government the power to sentence individuals convicted, as opposed to the independent judiciary. Looking at the clause in the round, I suggest that the amendments are sensible safeguards.
Sir Oliver Heald
I welcome the hon. Gentleman’s objective to protect defendants who may choose the new procedure as a way of dealing with their case. The amendments raise important issues, but they are issues that I am satisfied we are conscious of and will be addressing in the design of the process and the system.
Amendment 101 seeks to provide that the person to be convicted must accept the online conviction, and it then provides for a cooling-off period. The prospect of being able to accept a conviction and its associated penalty, and then undoing it two weeks later, undermines an element of certainty in the judicial process. However, I believe I can point to protections that the hon. Gentleman will find compelling. Amendment 102 proposes to make it a qualifying condition of an automatic online conviction that the accused has been made aware of their right to seek legal advice. In our view, that is not necessary; it may help if I set out the process a bit more fully.
A defendant charged with an offence that may proceed either by way of the single justice procedure—where a magistrate deals with a case on the basis of a guilty plea—or the automatic online conviction procedure will be sent a notice that formally commences proceedings and sets out the procedures available for dealing with their charge. That notice will advise defendants that they have a set period of time to respond to the charge; we expect something like 21 days, as it is with the single justice procedure notice. That notice will advise defendants, as requested by the hon. Gentleman, to use that time to obtain legal advice should they wish to—again, as the current single justice procedure notice does. The details of the timing and what is contained in the notice will be set out in criminal procedure rules.
Amendment 102 also seeks to make it a qualifying condition of an automatic online conviction that the consequences have been clearly explained to the defendant. For the sake of clarity, I note that it is not only a guilty plea that will lead to a conviction, but that plea combined with an agreement to be convicted and penalised in accordance with proposed new sections 16H and 16I to the Magistrates’ Courts Act 1980. Defendants will be presented with all the information that they will need to make an informed decision, and they will also be given details of the range of sentences available to the court. That will all be set out in clear and simple terms. They will be able to opt out of the procedure at any time, up until the point that they accept the conviction. I mentioned the other protections.
Nick Thomas-Symonds
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Nick Thomas-Symonds
I beg to move amendment 100, in clause 36, page 35, line 18, leave out
“a summary offence that is not punishable with imprisonment”
and insert
“a non-recordable offence, and where there is no identifiable victim”
This amendment ensures the automatic online conviction option includes only offences which are non-recordable offences and where there is no identifiable victim, providing an important safeguard for victims.
The Chair
With this it will be convenient to discuss amendment 103, in clause 36, page 35, line 19, at end insert—
‘(4A) Prior to making any order under subsection (3)(a), the Secretary of State must commission an independent evaluation of any changes to the offences for which automatic online conviction may be offered and shall lay the report before each House of Parliament.”
This amendment requires the Secretary of State to consult and seek independent advice prior to extending the range of offences for which the automatic online conviction option may be offered.
Nick Thomas-Symonds
Again, the amendments relate to the safeguards that we are pressing upon the Minister.
Amendment 100 would ensure that the automatic online conviction option includes only offences that are non-recordable offences for which there is no identifiable victim, which would provide an important safeguard for victims. Amendment 103 would require the Secretary of State to consult and seek independent advice prior to extending the range of offences for which the automatic online conviction option may be offered.
Those two safeguards are important. Amendment 100 is very important in terms of how we treat victims in our criminal justice system. Amendment 103 would deal with the concern about mission creep and the idea that the range of offences will keep being extended. The requirement to consult and seek independent advice would provide reassurance to many who are worried about that aspect of the Bill.
Sir Oliver Heald
Amendment 100 seeks to define differently the features of offences in scope of the new procedure. As hon. Members will know, we propose to test this procedure with just three offences. Those are non-recordable and will be in the initial phase of introduction. This procedure will be used to prosecute, in any event, only the most straightforward summary offences in our criminal justice system.
We have stipulated that the offences for which the automatic online conviction procedure can be offered will only be summary-only, non-imprisonable offences. That means automatic online conviction can never apply to indictable either way offences, and a sentence of imprisonment will never be imposed by this procedure. Those are important safeguards.
To address the hon. Gentleman’s particular request that the Bill exclude offences where there is no identifiable victim, I should say that we have taken a policy decision that cases involving identifiable victims will not be specified for prosecution by way of the automatic online conviction procedure, just as such offences are not prosecuted by way of the single justice procedure. We are referring here to individual victims, rather than corporate victims.
Likewise, on the matter of non-recordable offences, the majority of offences intended to be in scope are non-recordable, including the first three that I mentioned—failing to produce a ticket for travel on a train, failing to produce a ticket for travel on a tram and fishing with an unlicensed rod and line.
Amendment 103 would commit the Government to commission an independent evaluation of any changes to the offences in scope of the procedure and to lay the report before Parliament. We have been clear from the start that we propose to test the automatic online conviction procedure with a small number of offences in the initial phase, so that we can review how well it works. We have already committed to reviewing the procedure 24 months following its implementation. If that initial phase is successful, we will consider widening the scope to other offences. Any decision to extend to other offences would, of course, also be based on the assessment of what impact any changes to the offences and scope would have.
Finally, the Committee will be aware that the clause provides that future offences need to be specified in secondary legislation made by the Secretary of State, which has to be agreed by Parliament through the affirmative procedure. It is the Government’s view that the amendments are not necessary, and on that basis I ask the hon. Gentleman to withdraw them.
Nick Thomas-Symonds
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Nick Thomas-Symonds
I beg to move amendment 33, in clause 36, page 38, line 35, at end insert—
“(4) Within two years of this Act coming into force, the Secretary of State shall commission an independent evaluation of the implementation of the automatic online conviction option made under subsection (1) and shall lay the report of the evaluation before each House of Parliament.”
This amendment ensures the Secretary of State will review automatic online conviction within two years of its implementation.
I will be extremely brief. We will push the amendment to a vote. It concerns an independent review of the automatic online conviction process within two years of the Act coming into effect, on exactly the same principle as we have suggested for other independent reviews: to facilitate good governance and the opportunity to look at how well these new procedures are working.
Sir Oliver Heald
I have just given a commitment to review this 24 months following its implementation. On that basis, I invite the hon. Gentleman to withdraw the amendment.
Nick Thomas-Symonds
We are in favour of an independent evaluation within two years of the Act coming into effect. I will put the amendment to a vote.
Question put, That the amendment be made.