Police, Crime, Sentencing and Courts Bill (Seventeenth sitting)
Tuesday 22nd June 2021
(3 years, 5 months ago)
Public Bill CommitteesRead Full debate Police, Crime, Sentencing and Courts Act 2022 View all Police, Crime, Sentencing and Courts Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 22 June 2021 - (22 Jun 2021)
The Committee divided: - Ayes: 6 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 8 - Question accordingly negatived.
The Chair
Before we begin, I have some preliminary reminders for the Committee. Please switch electronic devices to silent. No food or drink is permitted during sittings of this Committee, except for the water provided.
I remind Members to observe physical distancing. They should sit only in the places that are clearly marked. It is important that Members find their seats and leave the room promptly, in order to avoid delays for other Members and staff. Following a decision of the House of Commons Commission yesterday, we may now sit a little closer together—one metre—but it is important to continue to observe other distancing measures. Members should wear face coverings in Committee unless they are speaking or medically exempt.
Hansard colleagues would be grateful if Members emailed their speaking notes to hansardnotes@ parliament.uk.
We completed line-by-line consideration of the existing clauses of the Bill last week. Today, we will start to consider new clauses. New clauses that were grouped for debate with amendments to the Bill will not be debated again, but if the Member who tabled the new clause indicated in their speech that they wished to divide the Committee, they will have the opportunity to do so. The selection list for today’s sittings is available in the room. I remind Members wishing to press a grouped new clause to a Division that they should indicate their intention when speaking to the clause.
New Clause 74
Proceeds of crime: account freezing orders
‘(1) In section 303Z1 of the Proceeds of Crime Act 2002 (application for account freezing order)—
(a) omit subsections (5A) and (5B), and
(b) in subsection (6), at the appropriate place insert—
“‘relevant financial institution’ means—
(a) a bank,
(b) a building society,
(c) an electronic money institution, or
(d) a payment institution.”
(2) In section 316(1) of that Act (general interpretation), in the definition of “relevant financial institution”, after “303Z1” insert “(6)”.
(3) In section 48 of the Financial Services Act 2021 (extent)—
(a) in subsection (1), for “subsections (2) and (3)” substitute “subsection (2)”, and
(b) omit subsection (3).
(4) In paragraph 14 of Schedule 12 to that Act (forfeiture of money: electronic money institutions and payment institutions) omit sub-paragraphs (3) and (4).’
This new clause amends for Northern Ireland the definition of “relevant financial institution” for the purposes of account freezing orders under the Proceeds of Crime Act 2002 so as to align the definition with that which applies in England and Wales and Scotland.—(Victoria Atkins.)
Brought up, read the First and Second time, and added to the Bill.
New Clause 1
Harassment in a public place
‘(1) A person must not engage in any conduct in a public place—
(a) which amounts to harassment of another, and
(b) which he knows or ought to know amounts to harassment of the other.
(2) For the purposes of this section, the person whose conduct is in question ought to know that it amounts to harassment of another if a reasonable person would think the conduct amounted to harassment of the other.
(3) For the purposes of this section—
“conduct” includes speech;
“harassment” of a person includes causing the person alarm or distress.
(4) Subsection (1) does not apply to conduct if the person can show—
(a) that it was for the purpose of preventing or detecting crime,
(b) that it was under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or
(c) that in the particular circumstances it was reasonable.
(5) A person who engages in any conduct in breach of subsection (1) is guilty of an offence.
(6) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months, or a fine not exceeding level 5 on the standard scale, or both.”—(Alex Cunningham.)
Brought up, and read the First time.
Alex Cunningham (Stockton North) (Lab)
I beg to move, That the clause be read a Second time.
The Chair
With this it will be convenient to discuss the following:
New clause 2—Kerb-crawling—
‘(1) It is an offence for a person, from a motor vehicle while it is in a street or public place, or in a street or public place while in the immediate vicinity of a motor vehicle that they have just got out of, to engage in conduct which amounts to harassment in such manner or in such circumstances as to be likely to cause annoyance, alarm, distress, or nuisance to any other person.
(2) A person guilty of an offence under this section is liable on summary conviction to revocation of their driving licence, or a fine not exceeding level 3 on the standard scale, or both.
(3) In this section “motor vehicle” has the same meaning as in the Road Traffic Act 1972.
(4) In this section “street” has the meaning given by section 1(4) of the Street Offences Act 1959.’
New clause 23—Street sexual harassment—
‘(1) A person must not engage in any conduct in a public place—
(a) which amounts to sexual harassment of another, and
(b) which they know or ought to know amounts to sexual harassment of the other.
(2) For the purposes of this section, the person whose conduct is in question ought to know that it amounts to sexual harassment of another if a reasonable person would think the conduct amounted to sexual harassment of the other.
(3) The conduct referred to in subsection (1) is known as street sexual harassment.
(4) A person (A) engages in conduct which amounts to street sexual harassment, or which they know or ought to know amounts to street sexual harassment, of another (B) if—
(a) A engages in unwanted conduct of a sexual nature, and
(b) the conduct has the purpose or effect of—
(i) violating B’s dignity, or
(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
(5) In deciding whether conduct has the effect referred to in subsection (4)(b), each of the following must be taken into account—
(a) the perception of B;
(b) the other circumstances of the case; and
(c) whether it is reasonable for the conduct to have that effect.
(6) For the purposes of this section, “conduct” includes speech, non-verbal attitudes such as gestures imitating or suggesting a sexual act, and obscene sound effects.
(7) A person who engages in any conduct in breach of subsection (1) is guilty of an offence.
(8) Where on any occasion an authorised officer finds a person who he has reason to believe has on that occasion committed an offence under section 1 above, he must give that person a notice offering him the opportunity of discharging any liability to conviction for that offence by payment of a fixed penalty, unless subsection (9) applies.
(9) This subsection applies (and subsection (8) does not apply) if a person has previously—
(a) been found guilty of an offence under subsection (1), or
(b) made payment of a fixed penalty issued under subsection (8).
(10) Where a person is given a notice under this section in respect of an offence—
(a) no proceedings shall be instituted for that offence before the expiration of fourteen days following the date of the notice; and
(b) he shall not be convicted of that offence if he pays the fixed penalty before the expiration of that period.
(11) A notice under this section shall give such particulars of the circumstances alleged to constitute the offence as are necessary for giving reasonable information of the offence and shall state—
(a) the period during which, by virtue of subsection (2) above, proceedings will not be taken for the offence;
(b) the amount of the fixed penalty; and
(c) the person to whom and the address at which the fixed penalty may be paid; and, without prejudice to payment by any other method, payment of the fixed penalty may be made by pre-paying and posting to that person at that address a letter containing the amount of the penalty (in cash or otherwise).
(12) Where a letter is sent in accordance with subsection (11)(c) above payment shall be regarded as having been made at the time at which that letter would be delivered in the ordinary course of post.
(13) The form of notices under this section shall be such as the Secretary of State may by order prescribe.
(14) The amount of a fixed penalty payable in pursuance of a notice under this section is £500.
(15) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale.’
This new clause creates an offence of engaging in unwanted conduct of a sexual nature in public. Those found to have committed an offence would be given an on the spot fine of £500. Those who commit the offence on further occasions would liable to receive a fine of up to £1000.
Alex Cunningham
I move new clause 1 in the name of my right hon. and learned Friend the Member for Camberwell and Peckham (Ms Harman). I will also speak to new clause 23, which is in my name and those of my hon. Friend the Member for Rotherham and my right hon. Friend the Member for Kingston upon Hull North (Dame Diana Johnson).
For young women up and down the country, being harassed in a public place has become a way of life. Derogatory comments, wolf-whistling, stalking and harassment have become so commonplace that many women find themselves living in a constant state of fear simply by stepping out of their front door. The figures are as startling as they are shameful. A recent survey by UN Women UK showed that 80% of women in the UK have experienced sexual harassment in their lifetimes; that increases to a staggering 97% of women aged 18 to 24. The survey also showed that sexual harassment in the street had become so commonplace that the majority of women take no action, because they have lost all faith in the authorities to deal with it.
Shamefully, only 4% of women who had suffered sexual harassment reported the crime, and only 45% believed that reporting the crime would make any difference. Among those who did not report their crime to the police were people who had been groped, followed and coerced into sexual activity. This shows that women have a catastrophic lack of trust in the Government when it comes to doing anything about sexual harassment or to taking any concrete steps to tackle the underlying causes of it.
For many women, first-hand experience tells them that when they do report the crimes, they are often gaslighted, or told they are overreacting or making a fuss about nothing—yet nothing could be further from the truth. Being sexually harassed can have a profound impact on the lives of victims. Rose Caldwell, the chief executive officer of Plan International UK, points out:
“Street harassment makes girls feel ashamed, frightened and vulnerable. It causes them to change their behaviour, like avoiding certain streets or changing their clothes before leaving the house, which has serious implications for their freedom and autonomy.”
A feature on the news last night was about women and where they felt that they could and could not go when walking home in the evening.
Sexual harassment also acts as a precursor to other acts of violence and discrimination against women and girls. Laura Bates, founder of the Everyday Sexism Project, points out:
“As a society, the normalisation of sexual harassment in public spaces plays a huge part in creating a gendered power imbalance and ingraining derogatory attitudes and behaviours towards women. What starts in public places does not stop there. It plays into discrimination against women in the workplace and abuse in the home. If we say street harassment doesn’t matter, we are designating women’s bodies as public property and that has a huge knock-on impact.”
The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)
It is a pleasure to serve under your chairmanship, Sir Charles, as always.
I am grateful to the right hon. and learned Member for Camberwell and Peckham (Ms Harman) for tabling her amendment. I know it will not be pressed formally, but I put on the record my thanks to her for bringing the issue before the House and, indeed, to the hon. Member for Stockton North for giving us the opportunity to debate this important issue in Committee. The Government are absolutely committed to tackling all forms of abuse against women and girls, including sexual harassment. No one should feel unsafe while going about their daily life, and it is completely unacceptable for anyone to make a woman or girl feel objectified or scared.
Following tragic events earlier this year, my right hon. Friend the Home Secretary reopened the first ever public call for evidence for the new tackling violence against women and girls strategy, to capture the many stories that women and girls shared with their friends and their family and on social media. We want to capture those stories as part of our work to shape the new strategy that is coming forward later this year. More than 160,000 responses were received in just two weeks, bringing the total of public responses to more than 180,000—an extraordinary figure for a Government consultation. It says so much about the determination of women and girls to stop those sorts of behaviours.
We are equally determined to respond to the sharing of those experiences. The new strategy will include work to tackle sexual harassment and to recognise the disproportionate impact it has on women and girls.
Sarah Champion (Rotherham) (Lab)
I thank the Minister for giving way—we are so intuitive now that we do not need to ask to intervene on each other.
This sort of behaviour starts at a very young age, which is why the Government were right to accept my amendment to the Bill that became the Children and Social Work Act 2017, to make relationships education for all primary school children mandatory. That should have started last September; we are now told it will start this September. Will she comment about that early intervention and the importance of it?
Victoria Atkins
I am extremely grateful to the hon. Lady for her previous work and for making this important point. I want to give the Committee an impression of the work that we are undertaking as part of the strategy. Legislation is of course an option, but we need to do so much more. We need boys and young men to understand that some of the things that they might have seen on the internet are not real life and not appropriate ways to behave towards women and girls in the street, the home or the school, as we have seen in the Everyone’s Invited work. Education is critical and, I promise her, flows throughout our work on the strategy.
I wish to correct some impressions that might exist. While there is not an offence of street harassment—or, indeed, of sexual harassment—a number of existing laws make harassment illegal, including where such behaviour occurs in a public place. That can include, depending on the circumstances of the case, offences under the Protection from Harassment Act 1997, the Public Order Act 1986 and the Sexual Offences Act 2003.
However—this is a big “however”—I assure hon. Members that we are looking closely at the existing legislation on street harassment and we are committed to ensuring that the law is fit for purpose. We remain very much in listening mode on the issue. We will continue to examine the case for a bespoke offence and will listen closely to the debate as it develops through this House and the other place.
It is important to stress that a law is of limited use unless people know it is there and have the confidence to make a report in accordance with it. Equally—this relates to the point made by the hon. Member for Rotherham about education—it is important that police officers and law enforcement know how to respond properly to such allegations.
Sarah Jones (Croydon Central) (Lab)
I am glad about what the Minister has just said, that she remains in listening mode and that she will continue to examine the case. Does she have more detail on what form that listening mode takes? Are people in the Home Office looking at this? Is there any possibility of it? Is there a timeline, a review, that we are waiting for before a decision or any kind of structure around that?
Victoria Atkins
I hope the Committee will understand that it is taking us time to work through the 180,000 responses that we received—an extraordinary number for any Government survey. We have a team of officials who are working through each and every response, and we have taken each and every response very seriously. It is taking a bit of time. Once that exercise, the results of the survey, has been fully understood—fully collated and absorbed—from that, the strategy will be shaped. Later this year, we hope to be able to publish.
The strategy will deal not just with the sorts of topics that have been discussed in the course of the Committee, along with many other forms of crimes that disproportionately affect women and girls, including, for example, female genital mutilation, so-called honour-based abuse and such like. We want this to be an ambitious strategy that meets the demands of the 2020s, including the emergence of online crimes. We know from our discussions of this Bill and the scrutiny of what became the Domestic Abuse Act 2021 that perpetrators of crime can find ample opportunity online to continue their abuse. We are being mindful of all those aspects when drawing up the strategy.
Maria Eagle (Garston and Halewood) (Lab)
The Minister is indicating a willingness to look carefully at this. Does she expect the strategy to which she is referring to end up creating new legislation? Does she expect new legislation to come out of it?
Victoria Atkins
The hon. Lady is asking a question I cannot properly answer at this stage. She will know from her previous experience that drafting strategies of such depth and breadth requires cross-Government work. I am not at a stage at the moment of being able to comment directly on that. Our wider work, such as commissioning the Law Commission to look at the use of the internet and image-based abuse, which I suspect we will be talking about later this morning, and the online safety Bill, is all part of ensuring that there is lots of work across Government knitting together to provide a safer environment for women and girls, both on and offline.
We are aware that the issue is not just about the public knowing and understanding what the law is, but helping the police in knowing how to respond. I am pleased that the College of Policing has agreed to develop advice for forces in England and Wales to assist them in using existing offences in the most effective way. The Crown Prosecution Service, similarly, will revise its legal guidance on public order offences to include additional material on public sexual harassment.
Hon. Members across the Committee will agree that legislation alone cannot be expected to tackle sexual harassment. We are clear that we need to continue to drive a cultural change in attitudes and help boys and girls grow up to understand what a healthy relationship looks like and what sort of behaviour is healthy, respectful and civil in public places, and we must ensure that the sorts of episodes that girls in particular referenced in the Everyone’s Invited work are no longer experienced. I acknowledge and appreciate the debate that the amendments have induced and understand what hon. Members are seeking to achieve through the new clauses. However, I hope that, given our assurance that the Government continue to explore the issues, the hon. Member for Stockton North will feel able not to press the new clause today.
Alex Cunningham
I am grateful to the Minister for her response and that commitment to tackling the issues being debated this morning. I recognise that it is not just a matter for legislation. It is a matter for education as well, working with boys, girls and young men to have a greater understanding of the impact that what they might think is a bit of fun can have on people’s lives.
The Minister talked about 160,000 or 180,000 responses —I think she used both figures—but either way, 160,000 responses to any consultation exercise is a tremendous result and I am delighted about that. It illustrates the extent of the problem that has existed for many decades. She talked about the forthcoming strategy and the report later this year. I think we can act now; we can do something now. We can do small things now as we await that and we have a number of amendments that can contribute to what will want to be achieved in time by the overall strategy. We do not need to wait many more months—possibly years—before something happens on this.
There was no indication from the Minister of when the strategy will be published. If it is later this year, we are a long way from the end of the year—when will the various provisions suggested within that strategy be implemented? That may require some form of primary legislation, so we will be looking at that next year, and there will be some time before it is implemented. It could be some considerable time before we see some action.
Alex Cunningham
I beg to move, That the clause be read a Second time.
The Opposition think that this excellent new clause makes up for the missed opportunity in the Bill. I thank my hon. Friend the Member for Oldham East and Saddleworth (Debbie Abrahams) and the hon. Member for Thurrock (Jackie Doyle-Price), who are the co-chairs of the all-part parliamentary group on women in the penal system. I also thank the Howard League, which acts as the secretariat to the APPG, for its continued energetic work on this issue.
Under the Bail Act 1976, the courts can remand an adult to prison for their own protection, or a child for their own welfare, without being convicted or sentenced, and when the criminal charge they face is unlikely to—or in some cases cannot—result in a prison sentence. The new clause would repeal the power of the criminal courts to remand a defendant into custody for their own protection—or in the case of a child, for their own welfare—pending trial or sentence. Last year, the Howard League published a briefing from the APPG that looked at those provisions and their use. The briefing concludes:
“The case for abolishing the power of the courts to remand for ‘own protection’ or ‘own welfare’ is overwhelming. The use of prison to secure protection and welfare is wrong in principle and ineffective, even damaging, in practice.”
It goes on to say:
“Repealing the provisions in their entirety would be in-keeping with the direction of other recent and proposed reforms. In particular it is in line with, and is a necessary and urgently required extension of, the reforms to the use of police cells as a ‘place of safety’ under the Policing and Crime Act 2017.”
Professor Sir Simon Wessely’s 2018 review “Modernising the Mental Health Act” recommended the removal of the power of the courts to remand defendants for their own protection and own welfare on mental health grounds. The Ministry of Justice has already indicated that it will act on that recommendation. The Government’s sentencing White Paper suggested there would be forthcoming reforms to remand for own protection but, disappointingly, that was not included in the Bill. On page 58 of the White Paper, the Government notes:
“The Independent Review of the Mental Health Act highlighted that there are still cases where sentencers appear to make decisions that prison is the safest option for some people who are mentally unwell, under current legislation in the Bail Act 1976 or the Mental Health Act 1983.”
It goes on to say:
“Prisons should be places where offenders are punished and rehabilitated, not a holding pen for people whose primary issue is related to mental health.”
The White Paper mentions a project by Her Majesty's Prison and Probation Service on these cases. Could the Minister provide an update on the work in that area? In the Lord Chancellor’s letter responding to the APPG’s report, he said,
“we are determined to ensure that remand to prison is not considered as an option when seeking a place of safety for a person in crisis. However, it is vital that the operational mechanisms are in place before any legislative reforms are made in order to ensure that the system can work smoothly and effectively to deliver this objective.”
Could the Minister please share an update on the operational mechanisms that the Lord Chancellor refers to? Are they in place yet? How much longer should we expect to wait for them to be so?
The provisions in the Bail Act are already out of step with the aims of our justice system, but the implementation of the proposals in the Bill will make them look even more outdated. Since there will now be a requirement to consider welfare before remanding a child, as we know how damaging even short stints in custody are for children, how does it make sense to keep a provision on the statute book to put a child into custody to protect their welfare? The ability to remand women and children for their own protection is, as Dr Laura Janes of the Howard League put it in one of our evidence sessions, “rather Dickensian”. The Opposition agree that this power in the Bail Act is completely outdated, and that it has no place in a modern justice system. We urge the Government to support the new clause so that we can do away with it.
Sarah Champion
It is always a pleasure to serve under your chairmanship, Sir Charles. I am fully supportive of new clause 3, because I think it addresses a rather patriarchal approach that is going on and needs flushing out. The all-party parliamentary group on women in the penal system recently released its third briefing report, “Arresting the entry of women into the criminal justice system”, and its key finding was that 40% of women arrested resulted in no further action. That figure is even higher for women who are arrested for alleged violence.
That shows to me that women are being arrested and put into custody disproportionately, without the necessary due process in terms of what the outcome is likely to be. This creates a drain on police resources and, to be quite honest, is a waste of time, as arrest is not an appropriate response to women showing challenging behaviour. We need a more nuanced approach. Many officers arrested women for fear of criticism from more senior officers if they did not, and black women are two and a half times more likely to be arrested than white women, which raises concerns. Officers need to realise that turning up in a uniform can actually make a situation much more tense, and many women are arrested due to their response to the police turning up, not necessarily because of what the police were called in for. Frances Crook of the Howard League put it very well when she said that these women are annoying, but not necessarily dangerous.
I am interested to hear the Minister’s thoughts on Lancashire police, who have started a pilot through which they bring independent domestic violence advisers to the scene where domestic altercations are going on. Officers are reporting that they have found that incredibly useful in de-escalating the situation, rather than just going straight to charging or bringing the woman in for their own protection. The new clause raises the points that first, there is a problem with the system, and secondly, more creative approaches can be used, so I am very interested to hear the Minister’s thoughts on it.
The Parliamentary Under-Secretary of State for the Home Department (Chris Philp)
As always, it is a pleasure to serve under your chairmanship, Sir Charles. New clause 3 seeks to remove the provision in the Bail Act 1976 for a defendant to be refused bail where the court feels it is necessary for their protection—or, in the case of children, their own welfare—that they are remanded in custody. It is extremely important to make clear to the Committee that this provision is used very rarely. It is considered to be a last resort, and it is only used when there are no alternatives, so we should be in no doubt that this is an unusual provision to use.
Maria Eagle
“Rare” is a relative concept. Would the Minister like to tell us how many people were remanded in this way during, say, the last year for which he has figures?
Chris Philp
I am afraid that I do not have that precise figure to hand: I was relaying reports I have received from people who are active in this area. I can certainly see if that figure exists, and if it does, I would obviously be happy to share it.
The intent behind this amendment is clearly to ensure that prison is used only when strictly necessary. Of course, when somebody has a mental health crisis, for example, prison is not ultimately the best place for them to be, but there may be limited circumstances in which it is necessary to use remand for someone’s own protection—as a last resort, as I say. There is a risk that if we abolish this power without being absolutely clear what the alternatives are, vulnerable people could be left exposed. The Government agree with the sentiment behind this amendment, but we want to be certain that there will be no unintended consequences and no gaps created as a result.
Alex Cunningham
The Minister made the point that the use of this provision is very rare and that prison should be used only as a last resort. I accept that, but surely for such people we should ensure that there are facilities across the country, so that it is not necessary to remand a person, in any circumstances, to prison for the good of their own health.
Chris Philp
Clearly, the provision of alternative accommodation in those circumstances is the most desirable outcome. We need to think carefully and make sure we have covered the full range of circumstances that may arise. That is why the Government have committed to a review of this issue. We have already written to the all-party parliamentary group on women in the penal system to set out our plan for this, so that is in the public domain. I know the Howard League for Penal Reform has been campaigning in this area and it will be consulted as part of that review.
Maria Eagle
I am grateful to the Minister for giving way again. I welcome the fact that he is going to conduct a review. In doing that, could he see whether any research already exists or do some research on what the outcomes are for the small number of people who are remanded in this way? I can certainly see circumstances in which they might end up in a worse state than they would have done had they not been remanded in such a way. That is important if the Minister is considering whether to get rid of these provisions.
Chris Philp
Yes, that is exactly the type of question the review should consider, along with the counterfactual question of what would happen if this measure is not used. Both alternatives need to be considered to reach an informed decision.
Hywel Williams (Arfon) (PC)
When that review takes place, can the Minister ensure that there is particular consideration of alternatives in very rural areas? Currently, women in Wales are generally held outside Wales, for example at HMP Oakwood, as there is no local provision.
Chris Philp
Yes, consideration of the available provision needs to form part of the review to ensure that, if the option were to be withdrawn, rarely used though it is, appropriate provision across the jurisdiction of England and Wales would be available.
As this is a complicated issue, and we do not want to accidently cause a gap in provision, and because a review has already been commissioned to look at the issue, I respectfully ask that the new clause is not pressed.
Alex Cunningham
I accept what the Minister says about unintended consequences. It is important that the individual is always protected. My hon. Friend the Member for Garston and Halewood has welcomed the review into this, and I do too. I also welcome the fact that the Minister responded positively to my hon. Friend when she talked about an outcome study about the people who are actually involved.
I look forward to hearing from the Minister at some time in the future about how that would work, to ensure that we work in the best interests of the people who are affected by this situation. We may well want to return to the matter in future, but for now, I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 4
Video recorded cross-examination or re-examination of complainants in respect of sexual offences and modern slavery offences
“(1) Section 28 of the Youth Justice and Criminal Evidence Act 1999 comes into force in relation to proceedings to which subsection (2) applies on the day on which this Act is passed.
(2) This subsection applies where a witness is eligible for assistance by virtue of section 17(4) of the Youth Justice and Criminal Evidence Act 1999 (complainants in respect of a sexual offence or modern slavery offence who are witnesses in proceedings relating to that offence, or that offence and any other offences).
(3) This section has effect notwithstanding section 68(3) of the Youth Justice and Criminal Evidence Act 1999.”—(Alex Cunningham.)
This new clause would bring section 28 of the Youth Justice and Criminal Evidence Act 1999, which provides for the cross-examination of vulnerable witnesses to be recorded rather than undertaken in court, fully into force for victims of sexual offences and modern slavery offences.
Brought up, and read the First time.
The Chair
With this it will be convenient to discuss new clause 20—Special measures access for eligible witnesses—
“(1) The Youth Justice and Criminal Evidence Act 1999 is amended as follows.
(2) In section 19(2), omit paragraphs (a) and (b) and insert—
“(a) inform the witness of the special measures which are available to them by virtue of this Act; and
(b) give a direction under this section providing for whichever measure or measures as the witness may decide they wish to be applied to apply to evidence given by the witness.
Provided that a direction under paragraph (b) shall so far as possible ensure that the measure or measures provided for do not inhibit the evidence of the witness being effectively tested by a party to the proceedings.
(3) Omit section 19(3).”
This new clause would mean that once witnesses are determined as eligible for special measures they will be informed of all provisions and able to decide which option best suits them, rather than relying on the court to decide which measures would best improve the quality of evidence.
Alex Cunningham
The new clause will extend the roll-out of section 28 of the Youth Justice and Criminal Evidence Act 1999, which allows the cross-examination of vulnerable witnesses to be recorded rather than undertaken in court, to come fully into force for victims of sexual offences and modern slavery offences.
Section 28 is now in place at all 83 Crown court locations in England and Wales for vulnerable witnesses. That includes all child witnesses and any witness whose quality of evidence is likely to be diminished because they are suffering from a mental condition of a significant impairment of intelligence and social function, who have a physical disability or who are suffering from a physical condition that would impact their quality of evidence.
The Opposition are extremely supportive of the Government’s work in this area. However, we are concerned that the roll-out of that measure, which can obviate the distressing and sometimes traumatising experience of being cross-examined in court, is going far too slowly.
Sarah Champion
I fully support new clause 4. It links very tightly to my new clause 20, which I would like to speak to. New clause 20 would mean that once a witness was determined to be eligible for special measures, they would be informed of all provisions and able to decide which option suited them best, rather than the onus being on the court to decide which ones they were allowed. Special measures are an absolute lifeline for many victims giving evidence in court against their abuser. Navigating the criminal justice system can be incredibly challenging, and the idea of giving evidence as a witness against your own perpetrator is extremely distressing. Cross-examination causes re-traumatisation for victims and special measures are vital for reducing the impact on their mental wellbeing. Special measures include screening the witnesses from the accused, giving evidence by a live link and in private, and video- recorded evidence. Currently, victims of child sexual abuse are eligible for special measures in court when giving evidence as a witness. However, delivery of the provisions remains inconsistent and victims often have trouble accessing the measures to which they are entitled.
The onus is currently on the court to offer the provisions to the victim if it believes it will
“improve the quality of evidence”
by witnesses—so is not about the survivor’s mental wellbeing and abilities. An APPG on adult survivors of childhood sexual abuse survey found that 44% of victims were not offered the opportunity to give evidence remotely or behind a screen.
This new clause would amend the Youth Justice and Criminal Evidence Act to ensure that once a witness was determined as eligible for special measures by the court, they would be informed of all options and could decide which measure or measures suited them best. It is worth saying that some survivors I work with actually want to be in court and face their abuser—but it is up to them to make that choice.
This amendment will provide what is best for the witness’s wellbeing, rather than if the judge thinks it will improve the quality of evidence. There was support for this proposal in the Bill Committee’s evidence sessions. Phil Bowen, Director of the Centre for Justice Innovation, said:
“Yes, I think a presumption would be useful, but I think it also requires attention to implementation and delivery issues. Special measures should already be used in specialist domestic abuse courts across our magistrates court estate and, in many cases, domestic abuse victims are without access to those measures, for want of anyone who asked.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 18 May 2021; c. 43.]
Adrian Crossley, Head of the Criminal Justice Policy Unit at the Centre for Social Justice, said of special measures:
“I think it makes a massive difference to the view of the complainant and, unfortunately, it would also make a massive difference to the view of some defendants, who may face the reality of the evidence against them earlier. It may encourage pleas that should have happened earlier.”
“Sometimes the implementation of special measures and, certainly, the pragmatics of what happens in court are not there and the stress that that puts witnesses through is absolutely huge.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 18 May 2021; c. 46.]
As we have seen too vividly with the rape review findings, lack of support for witnesses and victims in court proceedings has a genuine impact on the justice process. More than a quarter of child sexual abuse cases did not proceed through the criminal justice system last year because the victim and survivor did not support further action. One of the main reasons was that the victim worried they would find the legal process too upsetting.
The Minister may say that we should keep the law so that it is the quality of evidence that remains, because that matters the most. I say to the Government that it is obvious that when we prioritise the wellbeing of victims and survivors—the people giving the evidence—the conviction is more likely to be secured because they feel more able to speak. If the victim assumes that they will be re-traumatised in the court proceedings, why on earth would they even try to secure justice? If that is the assumption, more offenders will walk free.
Dame Vera Baird, the Victims’ Commissioner, also agreed with this proposal. In her view, the problem begins
“with the fact that the needs assessment is not done clearly by a single agency.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 20 May 2021; c. 113.]
It needs to be carried out as part of the witness care unit, rather than across the Crown Prosecution Service and police, as it currently does. Dame Vera Baird also said that the measures that may best suit the victim are not always available. Special measures are not consistently available across the country.
What will the Minister do to ensure that resources and funding are sufficient to support victims giving evidence? Some witnesses who gave evidence have claimed that special measures should remain available at the discretion of the judge. The Minister may use that argument in the Government’s response to my new clause. However, we know that the current system is letting victims down, and something needs to be done so that it is legally required that they have these options available to them. The majority of court proceedings have taken place via a live link since the pandemic began. What reason is there to refuse the same provision to vulnerable witnesses? Let us be frank: the court is not always functioning with the victim’s best interests at the centre of its decisions. This change would grant vulnerable witnesses much more autonomy over their experience in court, rather than the courts relying on who and how they are able to give evidence—the same courts that have let so many down.
If it were better for special measures to be left to the flexibility of the court rules, we would not have a situation where victims wait years to give evidence, and often then face their abuser in court. Additionally, under this new clause, the court would still be included in the decisions. It would still have to ensure that the measures or measures provided
“do not inhibit the evidence of the witnesses being effectively tested by a party to the proceedings.”
As the Victims’ Commissioner said, it should be the default position that victims, if they choose, can pre-record their video evidence weeks, months or years before the trial takes place. Not only would that be less traumatic for them, but it means the recollections are more current and therefore more reliable.
Cross-examination can also take place on video under section 28 of the Youth Justice and Criminal Evidence Act. This is particularly useful to reduce the huge backlog that the courts currently face, and these measures already exist. We just need to make sure that victims can access them as they should. The Government need to ensure that implementation is effective, and that the courts are fully resourced for it. More funding must be given to courts to provide places for vulnerable witnesses to give evidence securely, and ISVAs must also be available and dramatically expanded, so I am glad that the Minister has said that as part of the review she will actively look to employ more ISVAs.
I hope the Government listen to this argument and address the issue urgently, so that no more victims have to suffer the traumatising process of giving evidence without access to special measures.
Chris Philp
I am grateful to the shadow Minister, the hon. Member for Stockton North, and the hon. Member for Rotherham for raising this important issue. Clearly, all hon. Members from across the House would want victims of these terrible crimes to be supported at what are often traumatic court hearings, and the Government have certainly been working hard on it.
Reference was made to the rape review published last week. As the hon. Member for Rotherham suggested, it contains a range of measures designed to help support victims of these terrible crimes, not least a provision for more ISVAs, as she said in her remarks. It also asks the police to take a better, more proactive, faster, more comprehensive approach to the investigation of rape. No victim is to be left without their phone for 24 hours; digital material will be requested only where strictly necessary and proportionate to the line of inquiry; and there will be better joint working between the police and the CPS and so on. So numerous measures were announced last week, all designed to help improve the situation in the area that we are discussing. In all frankness, it certainly does need to be improved.
Specifically, the clauses mention pre-recorded evidence permitted under section 28, as we have heard. It is worth saying that for vulnerable witnesses we have already fully rolled out the availability of section 28 pre-recorded evidence; that was completed in November last year. Vulnerable witnesses include all child witnesses, and also witnesses whose quality of evidence is likely to be affected because of a mental health disorder or some form of physical disability. The measure has already been implemented in every single Crown court across the country.
On intimidated witnesses, as the shadow Minister said we are already piloting the use of section 28 evidence for intimidated witnesses in three early adopter Crown courts—Leeds, Kingston upon Thames and Liverpool. That means that victims of those crimes have access to this measure and are able to pre-record their evidence, cross-examination and possibly re-examination via video early in the process, outside of the courtroom environment. That, for reasons we have discussed, is often of significant benefit to the victim.
Sarah Champion
I am very heartened by what the Minister is saying. One problem that keeps getting raised with me is that if victims choose to go down the live link route there must be authorised sites, but there are so few in the country, and they have backlogs and so on. There is a resourcing issue. However, it is my understanding that a lot more live evidence has been given by video link during the pandemic. Surely we have had a year of piloting this, as well as the specific pilots that the Minister is doing, so is he now looking at rolling back the opportunity to give evidence via live link, in order to wait for the pilot?
Chris Philp
Giving evidence by live link in proceedings is obviously different from section 28, which applies to pre-recorded evidence and cross-examination. In answer to the question about live links, no, there is no intention to try to influence the judiciary to use live video links less than they have been doing so. Generally speaking, it has worked very successfully. Each week there are 20,000 court sessions across all jurisdictions—criminal, civil, family and tribunals—using video technology, and there is no desire on the part of the Government to see that reduced, should the judge and other participants want to continue with it. That option is available. All Crown court rooms have the cloud video platform installed in them, which will remain the case.
A new system is coming in that will improve things further, but there will be no removal of remote capability from Crown court rooms. They will have the ability to take live evidence by video link. Every cloud has a silver lining, and one of the silver linings has been the fact that every Crown court room now has that capability.
Sarah Champion
My new clause shifts the choice to the victim rather than the judge. What the Minister is saying is great, but will he support my new clause, so that the victim is able to choose whether to give evidence by live link?
Chris Philp
Having spoken to new clause 4, let me turn now to new clause 20. As the hon. Lady says, it moves the discretion away from a judge and makes it the witness’s choice whether the section 28 recording is conducted. We want to encourage as many eligible people as possible to make use of the special measures that are available, and we have taken a number of steps to ensure that objective. For example, the revised victims code, which came into force just a few weeks ago, on 1 April, focuses on victims’ rights and sets out the level of service that victims can expect to receive from criminal justice agencies. The code also enshrines victims’ rights to have their needs assessed by the police or a witness care unit in order to determine whether they are eligible to give evidence using special measures and would benefit from doing so, to help relieve some of the stress involved in giving evidence. We want to ensure that every single eligible witness is identified, and that the matter is actively considered.
Maria Eagle
Does the Minister accept that many of these offences leave the victims feeling powerless? Powerlessness, and having things done to them, is part of the horror that arises from such offences. To give victims agency—to allow them to decide for themselves in those proceedings what would work for them—would be a powerful fillip to their psychological wellbeing, so that the court system is not then doing to them, after they have had the perpetrator doing things to them, and all the while they are feeling powerless. The Minister could do a lot of good by accepting the provision.
Chris Philp
Clearly the victims code, published a few weeks ago, is designed to help victims in many of the ways that the hon. Lady described. I will come on to the specific question of who makes the decision in a moment. In addition to the victims code, however, we are doing more work with important agencies such as the police and the CPS, drafting guidance to share with victim care units and making sure that the understanding of the special measures, such as section 28, is as high as it possibly can be. We are also looking to maximise the use of section 24 and to improve the use of remote link sites—the point that the hon. Member for Rotherham made a moment ago—again to help victims.
On the question of empowerment, which the hon. Member for Garston and Halewood just asked about, there is clearly a balance to strike. Obviously we want to ensure that victims are protected and looked after, and that we minimise the trauma that may follow from reliving the experience. We should also be aware, however, that these are court proceedings, designed to determine guilt or innocence. The consequence of a conviction in such cases is, most likely, a long time in prison—rightly so. We therefore need to ensure that the interests of justice are considered, as well as the interests of the victim, which are also extremely important; they are both important.
Ultimately, the judge decides whether a live link may be used or the other special measures may be activated for someone who is eligible. The reason for that is that it is for a judge to make a determination in an individual case on how that case is managed and conducted, having regard to all the particular facts in the case—the circumstances, the victim and the nature of the victim, the nature of the questioning or cross-examination that might need to take place.
The concern of the Government is that if we simply legislate to remove that judicial discretion, saying that the judge cannot decide and what happens is automatic, it means that the judge will in some sense lose control of how the proceedings are conducted. There may be circumstances in which that undermines the delivery of justice.
We hope that judges listen to our proceedings—I am sure they do—and hear the very strong emphasis that we in this House give to victims. The judges are aware of the victims code and the strengthened rights that it gives victims, and they will keep that at the front of their minds when they make such decisions. I hope that they will make them—they normally make them and I hope will continue to do so—in a way that is sympathetic and sensitive. To wholly extinguish judicial discretion, however, would go a long way.
Sarah Champion
I appreciate the Minister’s giving way. I am not entirely convinced that his civil servants have read my amendment. After proposed new paragraph (b) in subsection (2), the new clause states:
“so far as possible ensure that the measure or measures provided for do not inhibit the evidence of the witness being effectively tested by a party to the proceedings.”
It explicitly gives the ultimate call to the judge. We would be giving the victim the right to have a choice, but if the judge believes that it in any way discredits the evidence that they are able to give, the judge has the right not to allow it.
Chris Philp
The drafting is:
“Provided that a direction under paragraph (b) shall so far as possible ensure that the…measures provided for do not inhibit the evidence”.
As far as I read it, it does not give the judge the power not to make the order; it simply states that they must make the order in such a way as not to inhibit the evidence being given
“so far as possible”.
My understanding of the words on the page is not that the judge has an ultimate veto; they must simply exercise a direction in that way.
Furthermore,
“so far as possible”
is not a high test when it comes to justice being done and ensuring that evidence is given fairly. When we are potentially convicting someone and sending them to prison for a long time, ensuring that justice is done
“so far as possible”,
intuitively, does not feel like the standard is quite high enough.
Sarah Champion
I am happy to work with the Minister to get the wording exactly right, so that it does exactly what I think we both want.
Chris Philp
The Government’s position, in conclusion, is that it is very hard to sit in Parliament and legislate definitively and bindingly—
Chris Philp
Let me finish the sentence—for all the circumstances that may arise in an individual case. Therefore, although we have guidelines, procedures and so on, ultimately, the management of any particular case, including things such as the use of live links and proceedings in the courtroom, are a matter for the very experienced judge who is looking at the case, the defendant and the witnesses in front of him or her, the judge.
That is why, ultimately, judicial discretion is required. However, we agree with the direction of travel. I have already mentioned some of the things that we are doing to push things further. I am certain that judges looking at our proceedings will respond accordingly and will take a positive, constructive and accommodating view where the issues arise. In fact, they already have a duty under section 19 of the Youth Justice and Criminal Evidence Act 1999 to take into account the views of the witnesses in making their decisions. We feel that that strikes the right balance.
Alex Cunningham
I do not know whether the Minister accepted the kind offer of my hon. Friend the Member for Rotherham to assist him in developing new clause 20 to make it fit for purpose. He has indicated with a nod of the head that he is pleased to work with her—is that the case?
Alex Cunningham
I am grateful for that clarification.
I am also heartened by the Minister’s response to new clause 4. I will not take anything away from the Government for the tremendous progress that they have made in this area. However, there have been many pilots and I believe that those have already proved that the system is working. I suspect that if it were not working, he would be looking to do something else, rather than extending the pilot. I hope that we can make some more progress sooner rather than later.
The Minister talked about the various recommendations in the rape review. I do not think that we need to wait for the Government to roll out their actions from the rape review. We could take some action now. I see the new clause as another opportunity to take another small step, but it is a significant step, to protect victims and even to improve the quality of evidence that is given in court. Who knows, that, too, might improve some of those abysmal conviction rates that we suffer as a country—suffered by victims who do not receive justice.
Sarah Champion
Does my hon. Friend agree that the fear of giving evidence as the system stands, prevents any justice from happening? Any movement that the Government can make that is sensitive to the needs of victims and survivors would be hugely beneficial.
Alex Cunningham
That is very much the case. Yesterday, following the statement from the Lord Chancellor, there were various discussions of the statistics around cases. For some people, the case does not get beyond the police investigation; it never reaches the CPS. That is because of some of the issues outlined by my hon. Friend. We believe that it is time to start taking action. I say gently that it is great to have warm words from Ministers, but we actually need to make real progress. I will therefore press the new clause to a Division.
Question put, That the clause be read a Second time.
The Chair
With this it will be convenient to discuss the following:
New clause 7—Offence of pet theft (Scotland)—
‘(1) The Animal Health and Welfare (Scotland) Act 2006 is amended as follows.
(2) After section 17 (protected animals) insert—
“17A Definition of pet
A protected animal is a “pet” for the purposes of this Act if it provides companionship or assistance to any human being.”
(3) After section 23 (animal fights) insert—
“23A Pet theft
A person commits an offence if they dishonestly appropriate a pet belonging to another person with the intention of permanently depriving that other person of it.”
(4) In section 40 (disqualification orders) after subsection (13)(b) insert—
“(ba) an offence under section 23A,”.
(5) In section 46 (penalties for offences) after subsection (1) insert—
“(1A) A person guilty of an offence under section 23A (pet theft) shall be liable—
(a) on summary conviction to imprisonment for a term for a term not exceeding 51 weeks, or a fine, or to both;
(b) on conviction on indictment to imprisonment for a term not exceeding 2 years, or to a fine, or to both.
(1B) When the court is considering for the purposes of sentencing the seriousness of an offence under section 23A it must consider the following as aggravating factors (that is to say, a factor that increases the seriousness of the offence)—
(a) that theft caused fear, alarm or distress to the pet, the owner or the pet or another person associated with the pet;
(b) the theft was for the purposes of commercial gain.”
(6) In Schedule 1 (powers of inspectors and constables for Part 2) after paragraph 4(5)(a) insert—
(aa) an offence under section 23A,”.”
New clause 8—Offence of pet theft: consequential amendments—
‘(1) The Police and Criminal Evidence Act is amended as follows.
(2) In section 17(1)(c)(v) (entry for purposes of arrest, etc in connection with offences relating to the prevention of harm to animals), for “and 8(1) and (2)” substitute “8(1) and (2) and 8A”.”
Alex Cunningham
We now turn our attention to quite a different subject. New clauses 6 to 8 would work as a package to create a new specific offence of pet theft, punishable by a custodial sentence of up to two years. As the Minister is aware, the theft of pets is currently an offence under the Theft Act 1968. However, although the law of theft caters for certain specific offences—for example, bicycles, scrap metals and even wild mushrooms, unbelievably—that is not the case for pets. That matters because the Theft Act does not consider a pet’s intrinsic value as a much-loved member of the family. Instead, it takes into account only its monetary or sale value.
I am sure that, like me, the Minister gets a regular flow of emails from animal lovers and owners who want tougher laws to deal with those who would deprive them of their pets. They value their pets way beyond many things in their lives and even make sacrifices to ensure they get the expensive vet treatment that they need. It seems absurd to us that the theft of a much-loved pet is currently regarded in law as the same as the theft of a mobile phone or a handbag.
Pets are living, sentient beings that come into our lives and become irreplaceable members of our families. I do not mind saying that it broke my heart when my dog, Lady, died. It was the same when KT the cat died. He was called KT after we discovered that we had a male cat, which had previously been named Katie by one of my sons.
We believe that legislation and sentencing must reflect reality, and that is why Labour tabled new clause 6. It would create a specific offence of pet theft that would enable courts to deliver sentences for pet theft offences that properly reflect the attitudes of modern society. I know the Minister will remind us that the Government are looking to reform this area of the law, but that was due to happen last year.
Fewer than 1% of pet thefts lead to charges being brought. Although the Theft Act allows for a minimum custodial sentence of up to seven years’ imprisonment, the evidence shows us that someone found guilty of pet theft is far more likely to be handed a caution than a custodial sentence. That is because the vast majority of cases involving pet theft will be handled by the magistrates courts, rather than the Crown court. That is exactly why we need a change in the law. Creating a specific offence of pet theft, rather than leaving offences to be prosecuted under the Theft Act, would mean that judges are able to sentence acts of pet theft in accordance with the huge emotional damage that the offence causes.
The change is as important as it is timely. As the Minister is aware, the number of pet thefts—dog thefts in particular—has skyrocketed during the pandemic. Five police forces across England and Wales reported more acts of dog theft in the past seven months than during the whole of the previous year. Indeed, the number of dog thefts has been increasing year on year for the best part of the past decade, and we are now at the point where, on average, at least five dogs are stolen in England and Wales each and every day. That is a staggering and horrifying figure. I have heard of pets actually snatched from their owners in the street, as criminals steal them to order.
What is even more worrying is that, while the number of dog thefts increases with each year, the number of court charges relating to dog theft has gone down. In 2015, only 62 court charges were brought. In 2016, that had decreased to 48, and by 2017 the number was only 37. By failing to take decisive action as pet thefts rocket and successful prosecutions fall, the Government are sending a dangerous message to criminals—that they can continue to break the hearts of families up and down the country with complete impunity.
Given that the Government have taken no action, the Opposition feel that we must step in and offer them an opportunity for change with a specific offence of pet theft, punishable with a custodial sentence of up to two years. Again, that would allow judges to hand down sentences that properly reflect the emotional family value of a pet, rather than simply its value as an object. That seems to us a wholly sensible response to the current crisis of pet thefts that we see today. Pets are not simply objects; they are invaluable members of our family, within our homes. They provide emotional comfort, support and happiness to families across the country.
It is not just the Opposition who recognise that. The Minister will be aware that many animal welfare groups support a change in legislation, as do members of his own party and the vast majority of the public. The current system does not work and it is the country’s 12 million households that have pets who are being let down. I hope that the Minister, rather than saying that the Government will sort this issue out some other time, will take decisive action and support the new clauses today.
Sarah Champion
I am extremely grateful to my hon. Friend the Member for Stockton North for tabling these new clauses, because during the pandemic in particular the rate of dog theft has gone through the roof, as the cost of puppies, dogs and all other pets has also skyrocketed.
These animals are worth so much more than their monetary value; they are valued members of our households. And we have seen some very high-profile cases that demonstrate the impact when pets are stolen. The law needs to catch up and I really urge the Minister to take this opportunity to do that.
In March, DogLost—a UK charity that helps victims of dog theft—recorded a 170% increase in the rate of this crime between 2019 and 2020. It is very welcome that in May the Government announced a taskforce that will consider the factors contributing to the rise in dognapping and recommend solutions to tackle the problem, but we do not need just another consultation. What we actually need is action and the Bill provides the perfect opportunity for the Government to take that action.
Campaigners against dog theft have called for pet theft to be made a specific offence and they are right to do so. That crime needs more robust punishment than just being covered by theft of property; treating pets just as “property” does not recognise the emotional attachment that people place on them.
Hywel Williams
Does the hon. Lady recognise, as I do, the value of pets in therapeutic situations, especially when people have a disability and perhaps build a particular relationship with a cat or dog? In that respect, the theft of such an animal is even worse than the theft of just a family pet, as it were.
Sarah Champion
I completely agree. While the hon. Gentleman was talking, I was reminded of my grandma, who had a budgie called Bluey. As a child, I did not realise why, every few years, Bluey changed colour. But for my grandma, if Bluey had been stolen it would have broken her, as Bluey was the one constant in her life. The value of a budgie is—what? I do not know—£20? What we find, though, is that when people are caught for petnapping they only receive a small fine; indeed, sometimes they just receive a suspended sentence. Those punishments do not reflect the emotional worth that the pets have.
According to the Pet Theft Reform campaign, in recent years only 1% of dog thefts have even led to prosecution. Campaigners have called for reform of the current system of pet microchipping, to improve the chances of reuniting stolen animals with their owners.
As we have discussed, it is heartbreaking when a beloved family pet is stolen. Currently, however, it is very difficult to collate definitive statistics on pet theft, which is principally due to, first, the different methods of recording pet theft that are used by different police forces and, secondly, pets not being differentiated under the Theft Act 1968. Pets are more than property and legislation should reflect that.
Siobhan Baillie (Stroud) (Con)
I have campaigned on this incredibly important issue. However, having looked into the details and worked with different campaign groups and the Gloucestershire police force, which is recording these crimes well, I think some of the issues that the hon. Lady has touched on are becoming wider and wider in scope. There is a range of things that we need to fix.
I am inclined to say that the taskforce is the way forward to get to legislation. Does the hon. Lady agree that we must look at all of the issues, rather than just trying to tackle either specific sentencing or specific legislation?
Sarah Champion
I completely agree with the hon. Member. Yes, of course, we need robust data to be able to do that. We are in a chicken-and-egg situation because, as the hon. Member highlights, different police forces record different things, so it is hard to grasp the problem. The thing that I am most mindful of is that the opportunity to make changes to the legislation are slight in Parliament, but the Minister has an opportunity now, so I urge him to grasp it.
Does the Minister agree that the punishment should outweigh the potential rewards for stealing pets? At the moment, people receive tens of thousands of pounds for stealing dogs, but they are not given a sentence if they are convicted. I completely understand the work of the taskforce, but we need a positive response, which campaigners and pet owners have called for. There have been some really disturbing cases, with increasing violence used in dog thefts. That is another reason why I want the Government to send a strong message that that is not acceptable and is punishable.
A dog owner was knocked to the ground and punched in a terrifying attack by two men trying to steal her pet. Allie Knight, 22, was attacked near Mutley Plain, Plymouth, as she walked her pug, Paddy. Mike Jasper was walking his dog Ted—this was awful—a sprocker spaniel, in south London in December after visiting his allotment when he was brutally attacked by two men wearing face masks and Ted was taken. “BBC Breakfast” raised this case, and it highlighted the depth of the loss that someone feels when their pet is taken. A 50-year-old woman was attacked and had her dog stolen while she was out walking in Moira Road in Woodville, Derbyshire. One man pushed her to the floor, and grabbed her two-year-old dachshund called Minnie, while the other held his fist to her face.
Police forces need sufficient resources and training to be able to deal with pet theft in a sensitive manner and highlight resources where owners can turn for support. Blue Cross strongly supported the recent decision of Nottinghamshire police to appoint Chief Inspector Amy Styles-Jones as the first specialist dog-theft lead in the country. Having a dedicated dog-theft specialist in each police force would make a huge difference, and would address the point made by the hon. Member for Stroud about the disparities across the country.
Chris Philp
Once again, I am grateful to the shadow Minister and his colleagues for raising an extremely important issue: criminals seeking to profit from the theft of a pet. Sadly, it is a growing trend. Dog owners do not feel safe or comfortable very often, and it can be heartbreaking when a much-loved family pet is taken. Recognising that, the Lord Chancellor, the Home Secretary and the Secretary of State for Environment, Food and Rural Affairs have recently created a new taskforce to investigate the problem end to end and find solutions—not just in relation to the criminal offence, which we will come on to in a moment but in relation to prevention, reporting, enforcement and prosecution of the offences. It will make clear recommendations on how the problem can be tackled. We have seen in other contexts—for example, there was a problem a few years ago with scrap-metal thefts from church roofs—how an end-to-end approach can have an effect. We should not look simply at one element of the problem but at the whole thing end to end, and that is what the task force is urgently doing, as well as taking evidence from experts. The Minister for Crime and Policing is also involved, to make sure that police investigation is what it should be.
As we have heard, the theft of a pet is currently a criminal offence under the Theft Act 1968, so the question arises of why we need a new offence. The first thing I would say is that the maximum sentence for the new offence proposed by the new clause is only two years, whereas the maximum sentence under the Theft Act is seven years. The new clause, if adopted, would reduce the maximum penalty available for stealing a pet from seven years to two years, which strikes me as incongruous, given the purported objectives of the new clause.
The shadow Minister made some points about whether the emotional value of the pet was recognised and accounted for. I draw his attention, and the Committee’s attention, to the Sentencing Council guidelines on theft, which are used by judges when passing sentence for theft up to the seven-year maximum. Under the guidance, which judges are bound to use, harm includes the emotional distress caused by the theft. The guidance also talks about the value to the person who suffered the loss, regardless of monetary worth, so the emotional distress and the non-monetary value are baked in already, in black and white, in those Sentencing Council guidelines. Indeed, the table specifying the level of harm sets out that emotional damage and harm to the victim cause an escalation in the sentence, over and above what would be the case based simply on monetary value.
Siobhan Baillie
Characteristically, the Minister is absolutely correct in everything he is saying, but we cannot get away from the fact that even though legislation provides for sentences of up to seven years, such sentences are not being passed. It is important to recognise that. One of the reasons that I would not back the proposal is that the Minister is right about the two years. We already have a greater sentencing option in the legislation, but that is not being taken, which is why the taskforce is key to looking at the range of options. That includes the judiciary and the Sentencing Council.
Chris Philp
My hon. Friend makes a good point, and those topics are precisely the ones the taskforce is addressing to make sure the appropriate statutory powers exist. The maximum sentence of seven years is there. The ability to take account of emotional distress and non-monetary value is there in black and white, in the Sentencing Council guidelines. I talked through a couple of examples in which instances of high harm and high culpability can lead to substantial periods in custody. Even if the level of harm was 3, there would still be level A culpability and the possibility of between six months and several years in custody. The powers are there in statute. The question is more practical, as my hon. Friend says, and that is exactly what the taskforce will address.
Alex Cunningham
The Minister is outlining how people who steal pets could get up to seven years in jail, but there is no evidence at all, anywhere in the country, to suggest that those cases go beyond magistrates court. The sentence is normally a fine; there is no evidence of custodial sentences. I do not know what the Minister proposes to do to improve guidance to the courts on how they deal with that, but perhaps it is something he needs to consider.
Chris Philp
That is exactly the kind of question the taskforce will be considering. Under the 1968 Act, theft is a triable either-way offence, which means it can be tried in the Crown court or the magistrates court. One matter the taskforce might consider is where the more serious of those offences are prosecuted. The option of the CPS seeking to have more of the cases tried in the Crown rather than the magistrates court could be explored, and that is a topic the taskforce most certainly may consider.
It is also worth mentioning that, in addition to the work of the taskforce and the existing powers relating to a maximum sentence of seven years, there is a lot more the Government are doing. For example, in the area of animal welfare, we are introducing legislation to recognise animals as sentient beings and putting animal welfare at the heart of Government policy decision making. We have also supported calls for increasing the penalty for animal cruelty from six months to five years under the Animal Welfare (Sentencing) Act 2021, which received Royal Assent in April.
Maria Eagle
The Minister is making an interesting point about classifying animals in law as sentient, which is overdue. Does he foresee such a change leading to changes in this legislation? Theft of a sentient being appears to be a somewhat different offence from theft of what is currently seen as an object with monetary value.
Chris Philp
On monetary or emotional value, the Sentencing Council guidelines recognise emotional value and non-monetary worth. The hon. Lady asks about the interaction between the 2021 Act and sentience, on which we are looking to legislate. That is the kind of topic that the taskforce will have in mind. It is an interesting point, and I will ensure that it features in the taskforce’s deliberations.
Given the work that the taskforce is doing across a far wider area than the criminal offence, and given that the criminal offence already has a maximum of seven years and that emotional value is recognised, I feel that the taskforce is doing the necessary work to step up action in this area. We recognise that there is a problem. More needs to be done, and the taskforce is doing it.
Alex Cunningham
Pet owners across the country will be delighted that we have had the debate. We listened to what Members have said and listened the Minister’s response, and we look forward to the taskforce reporting. I do not know when the report is due, but pet owners across the country still want the Government to take action. We do not want any more dilly-dallying; we need the Government to act. We hope that they will press the taskforce to report quickly and to make recommendations that will deliver what the public want: more severe sentences for people who would steal their pets. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 9
Rental of high performance vehicles
“(1) It is an offence to offer for rental a motor car of more than 300 brake horsepower, unless the motor car is fitted with a black box.
(2) For the purposes of this section, a black box is a telematic device which records information about the way a motor car is driven.
(3) The Secretary of State must by regulations determine the information which a black box must record for the purposes of this section.
(4) Regulations under subsection (3) must provide, at a minimum, for the following information relating to the motor car to which it is fitted to be collected throughout the period of rental—
(a) its location;
(b) its speed; and
(c) its rate of acceleration or deceleration.
(5) The information recorded by the black box must be disclosed to a constable on request, and the failure to disclose such information is an offence.
(6) A person guilty of an offence under this section is liable on summary conviction to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum or both.
(7) The Secretary of State must by regulations determine how the brake horsepower of a motor car is to be calculated for the purposes of this section.
(8) For the purposes of this section, “motor car” has the meaning given by section 185 of the Road Traffic Act 1988.” —(Sarah Jones.)
Brought up, and read the First time.
Sarah Jones
I beg to move, That the clause be read a Second time.
The new clause was tabled by my hon. Friend the Member for Halifax (Holly Lynch), with my support and that of my hon. Friends the Members for Hove (Peter Kyle) and for Stockton North. It would produce more accountability in the rental of high-performance vehicles or supercars. I understand that the issue of high-powered vehicles being driven recklessly in and around neighbourhoods, thereby plaguing towns and communities, is a challenge not only in parts of West Yorkshire, but across the country. Many attempts have been made to combat the issue at local level, involving local authorities working side by side with police forces, but such partnership initiatives can go only so far, and it has become clear to all involved that action at national level is needed.
More often than not in the examples of road traffic offences committed by people using cars described as high-performance vehicles, supercars or even prestige cars, the driver is not the owner, but has hired the vehicle. In recent years, there has been an increase in people hiring cars such as Lamborghinis and Ferraris and passing the keys to someone else, if not several others. The vehicles are then driven at dangerously high speeds, which puts other road users, pedestrians and the drivers themselves at risk.
Often the driver will not have the appropriate insurance. They will argue that they believed that they were somehow covered by the rental agreement, by their own insurance or simply by the fact that the person who hired the car had given them consent to take it around the block. They will say that they had not intended to crash, so they did not need insurance. In the majority of cases, they will not have experience of handling 300 hp-plus vehicles, which can be deadly in the wrong hands. Many companies that hire out vehicles operate responsibly and with transparency, but there are much darker elements in the industry. The sliding scale of criminality ranges from drivers engaging in antisocial use of the roads in communities to dangerous and reckless driving through to serious and organised crime.
What can we do to ensure that all companies that rent performance vehicles act responsibly and drivers are accountable for their actions behind the wheel? The new clause makes a start, and it follows a ten-minute rule Bill that was introduced on the Floor of the House on 24 February by my hon. Friend the Member for Halifax. She recalled a recent example in which a police officer had stopped two high-performance vehicles on the same 40 mph road, one going at 76 mph and the other at 86 mph.
The new clause would mandate all rental vehicles of 300 hp or above for use on public highways to be fitted with a black box. A black box is typically the size of a matchbox and it records information about how and when a car is driven. Many hire car companies act competently and do their very best to ensure that their vehicles do not fall into the hands of the irresponsible—that includes fitting black boxes—but a minority fail to carry out due diligence.
Mr Robert Goodwill (Scarborough and Whitby) (Con)
I am a member of the all-party parliamentary historic vehicles group, and I am a little concerned that many older vehicles that may be hired—for example, vintage Bentleys—cannot be fitted with a black box, which might prevent those vehicles from being enjoyed by people who perhaps want to hire a little of our history.
Sarah Jones
I confess that I am not a car expert, but my understanding is that the vehicles in question are 300 hp or more. I do not know whether the vehicles the right hon. Gentleman has mentioned are in that category. The new clause relates to powerful cars that are hired by people—often young people—who pass them on to their friends. In some cases, significant damage is caused.
Mr Goodwill
I thank the hon. Lady for her generosity in giving way. I understand the problem she has identified. However, the Jaguar F-Pace 3.0 litre 4x4, for example, which families might hire to pull a caravan on a holiday or to go on a trip, would fall into that category. I am a little worried that many people who are not part of the problem might be drawn into additional cost and the difficulties that that might present.
Sarah Jones
I imagine that if a vehicle could not accommodate a black box, it would not fall within the remit of the new clause. Perhaps we could work on the guidance accompanying the new clause to fix the issue that the right hon. Gentleman has mentioned. I am grateful to him for doing so.
Sarah Champion
Does my hon. Friend agree, though, that fitting a black box would not inhibit a good driver, and it should not put an additional cost on the hire? The new clause would allow us to capture the data that could prove that people had been acting recklessly after hiring sports cars.
Sarah Jones
My hon. Friend is right, as always. The purpose of the new clause would be of no concern to people who drive safely and competently.
The new clause would also make it a requirement for companies to hand over that black box data to the police should they request it. As Members of the House have communicated to me, this problem is repeatedly raised on the doorstep in some communities and in constituency surgeries, and getting a grip of it would not only make people safer, but push back on the costs picked up by responsible road users who are penalised through their own insurance to cover the risk presented by a minority of reckless road users who drive vehicles without insurance that become involved in crashes.
The Motor Insurers Bureau has shared with me some troubling examples of questionable insurance policies being used by some companies in this rental sector. Agencies agree that costs are passed on to law-abiding road users by those abusers of system. A black box would help to provide an evidence base for determining whether road traffic offences had been committed and, ultimately, for securing prosecutions if necessary. That would protect law-abiding road users from risk and cost to them.
Over the years, I have seen the police and various partnerships deploy several attempts to address the issue, with varying success. The new clause would make a start by using legislation to address reckless driving facilitated by the irresponsible use of hired supercars.
Victoria Atkins
I have listened very carefully to the arguments made by the hon. Lady, and it seems to me that the issue comes down to the driving habits of the small group of people in West Yorkshire and elsewhere that she described.
Sarah Jones
I fear, Sir Charles, that two non-car-experts are talking about cars, which is probably uncomfortable for car experts across the country. Many of the cars the Minister has mentioned are fitted with black boxes. Police cars are fitted with black boxes. A lot of companies offer much cheaper insurance if someone has a black box fitted to their car. Indeed, there are insurance companies with the words “black box” in their name. The provision is not extreme, and this is becoming normal anyway. Given the Minister’s argument about the breadth of models of car that might be affected by the new clause, perhaps she will commit herself to considering a better definition so as to tackle this particular, extreme problem, which is very concerning for a lot of people.
Victoria Atkins
There are other concerns about the new clause, which come back to the proportionality argument. I fully accept, of course, for those communities that are affected by the sort of antisocial—indeed dangerous—driving that hon. Lady has described, that their feelings as to proportionality will differ from those in a quiet rural area, for example, where there is no such behaviour, but this is where the powers that I have already outlined come in. They include public spaces protection orders, which can be particularly powerful, because they allow a local area to address the concerns in a particular part of the area as appropriate.
The concern that we have for the wider hire market is that the requirement to fit devices to these vehicles—the Honda Civic, the Volvo V60 and suchlike—could restrict choice and availability of vehicles. The low threshold may defeat the objective of stopping higher-performance vehicles being driven at speed. Consumers may in fact switch to lower-powered vehicles so as not to be monitored by black boxes, and continue to break the law.
Sarah Jones
As I understand it, given the problems that have been described to me, people specifically want to hire these high-glamour cars—Lamborghinis and so on—because they want to show off and race each other. Getting a lower-performance car is not what they are aiming for; the point is to hire these big, high-powered, high-glamour cars and show off in front of their friends.
Victoria Atkins
This is difficult, in terms of defining the type of car. But I also fall back on the proportionality argument, because in requiring devices to be fitted to every single car as a matter of law, we would be affecting the overwhelming majority of law-abiding citizens, who do not race Lamborghinis and so on—although I do note, having watched Jeremy Clarkson’s farming programme, that he has a Lamborghini, albeit a Lamborghini tractor, which I suspect would not fall into this category.
We would have further concerns about the privacy consequences of fitting these devices, because to ensure that we were acting in the way that the new clause sets out, it would have to affect responsible road users as well as irresponsible ones. Telematic data is normally used to assess individual road safety risk, which can be an inexact science. As the hon. Lady said, this is currently voluntary, not mandatory. Forcing those using even medium-sized rental cars to have these devices fitted could understandably lead to privacy concerns on the part of all rental vehicle users and not just the irresponsible racers, on which the new clause is understandably focused.
For those reasons—for reasons of proportionality but also because there are existing powers to deal with this irresponsible, dangerous behaviour—we do not believe that the new clause is proportionate and therefore we hope that the hon. Lady feels able to withdraw the motion.
Sarah Jones
I have heard from several MPs about the problem that this behaviour is causing in their constituencies. The argument of proportionality is always a strong one, but in this case the problem is such that people are concerned for their safety and for the lives of the people hiring these vehicles, and therefore I would like to press the new clause to a vote.
Question put, That the clause be read a Second time.
The Chair
With this it will be convenient to discuss the following:
New clause 11—Definition of “issue of consent”—
“(1) Section 42 of the Youth Justice and Criminal Evidence Act 1999 is amended as follows.
(2) For paragraph (b) substitute—
“(b) “issue of consent” means any issue where the complainant in fact consented to the conduct constituting the offence with which the defendant is charged and any issue where the accused reasonably believed that the complainant so consented;””
This new clause re-defines “issue of consent” for the purposes of section 41, including in the definition the defendant’s reasonable belief in consent, and thus removing it as a reason for the inclusion of a complainant’s sexual history or behaviour.
New clause 12—Admission of evidence or questions about complainant’s sexual history—
“(1) The Youth Justice and Criminal Evidence Act 1999 is amended as follows.
(2) After section 43 insert—
“43A In any trial or contested hearing to which section 41 of the Youth Justice and Criminal Evidence Act 1999 applies, if no pre-trial application in accordance with Part 36 of the Criminal Procedure Rules has been made, or if such application has been made and refused in whole or in part, no further application may be made during the course of the trial or before its commencement to call such evidence or ask such question, and no judge may allow such application or admit any such questions or evidence.””
This new clause would have the effect that no section 41 evidence or questions could be admitted by a judge at trial unless there had been an application before trial in accordance with the practice directions; and the amendment would ban applications from being made immediately before or during the trial.
New clause 13—Complainant’s right of representation and appeal on an application to adduce evidence or questions on sexual conduct—
“(1) The Youth Justice and Criminal Evidence Act 1999 is amended as follows.
(2) After section 43 insert—
“43A In any trial to which section 41 applies, where notice is given that there will be an application under Part 36 of the Criminal Procedure Rules for leave to ask questions or to adduce evidence as to any sexual behaviour of the complainant—
(1) The complainant may not be compelled to give evidence at any hearing on the application.
(2) The complainant will be entitled to be served with the application and to be legally represented (with the assistance of legal aid if financially eligible) as “a party” within the meaning of the Criminal Procedure Rules in responding in writing to the application and in presenting their case at any hearing on the application.
(3) If the application succeeds in whole or in part, the complainant will have a right to appeal for a rehearing of the application to the Court of Appeal on notice within 7 days of the judgement being delivered.
(4) On any such appeal, the Court of Appeal will rehear the application in full and may grant or refuse it in whole or in part.
(5) The Secretary of State may, by regulation, set out rules of procedure relating to any hearing or appeal under this section.””
This new clause would give the complainant a right of representation, with legal aid if they are financially eligible, to oppose any application to admit section 41 material about them. This new clause would also give complainants a right of appeal to the Court of Appeal if the application is allowed in whole or in part. The new clause also provides that the complainant is not compellable as witness at the application.
New clause 14—Collection of and reporting to Parliament on data and information relating to proceedings involving rape and sexual assault—
“(1) The Secretary of State shall collect and report to Parliament annually the following data and information—
(a) The time taken in every case of rape or sexual assault for the case to progress from complaint to charge, from charge to pre-trial plea and management hearing; and from then until trial.
(b) The number of applications to ask questions or adduce evidence of any sexual behaviour of the complainant under section 41 of the Youth Justice and Criminal Evidence Act 1999 (“the 1999 Act”) made in the Magistrates and Crown Courts of England and Wales, irrespective of whether a trial was subsequently held.
(c) The number of cases which involved questions on or evidence of any sexual behaviour of the complainant in all rape, sexual abuse and other trials or contested hearings in the Magistrates and Crown courts in England and Wales, irrespective of whether an application was made to admit such questions or evidence in advance of the trial or hearing.
(d) In cases to which section 41 of the 1999 Act applies—
(i) whether Part 36 of the Criminal Procedure Rules was followed in each application and if it was not, how it was not;
(ii) the questions proposed to be asked;
(iii) the evidence proposed to be called;
(iv) whether the prosecution opposed the application and if so the content of their representations;
(v) whether evidence was called to support or oppose the application;
(vi) whether the application was allowed in whole or in part and a copy of the judgement made on the application; and
(vii) any other material which might assist in an assessment of the frequency, basis and nature of applications for the use of such questions or evidence and the likely impact on any parties to any trial and the trial outcome.
(2) The data and information to be collected under subsection (1) shall include—
(a) all the material from any pre-trial application;
(b) the questions in fact asked and the evidence in fact called about any sexual behaviour of the complainant in the trial;
(c) any application at the start or during the course of the trial to vary or alter any judgement given in any earlier application or any further application to admit such questions or evidence;
(d) whether any material not previously authorised was used in the trial;
(e) whether the prosecution objected; and
(f) any ruling made or action taken by the judge on the further conduct of the trial as a consequence of the admission of questions or evidence under section 41 of the 1999 Act.
(3) The data and information to be collected under this section shall be collected from the date of Royal Assent to this Bill.”
This new clause requires the Secretary of State to collect and report to Parliament data and information on trial delay and section 41 matters.
New clause 15—Training for relevant public officials in relation to the conduct of cases of serious sexual offences—
“(1) The Secretary of State shall, on this Act coming into force, publish and implement a strategy to provide training on the investigation of rape and alleged rape complainants, and the admissibility and cross-examination of complainants on their sexual history to—
(a) the Crown Prosecution Service;
(b) Police Forces;
(c) the Judiciary; and
(d) such other public bodies as the Secretary of State considers appropriate.
(2) The Secretary of State shall ensure that any judge who is asked to hear a trial where the accused is charged with rape or any other serious sexual offence has attended and completed a training programme for such trials which has been accredited by the Judicial College.”
This new clause ensures that all criminal justice agencies shall be trained and that no judge can hear a sexual offence trial of any kind unless they have attended the Judicial College serious sexual offence course.
New clause 42—Enhancement of special measures in sexual offences—
“(1) The Youth Justice and Criminal Evidence Act 1999 is amended as follows.
(2) In section 27, after subsection (1), insert—
“(1A) Any interview conducted under this section of a complainant in respect of a sexual offence must be conducted by—
(a) a member of the Bar of England and Wales,
(b) a member of the Faculty of Advocates,
(c) a member of the Bar of Northern Ireland, or
(d) a solicitor advocate.””
New clause 57—Restriction on evidence or questions about mental health counselling or treatment records relating to complainant or witness—
“(1) The Youth Justice and Criminal Evidence Act 1999 is amended as follows.
(2) After section 43 insert—
“43A Restriction on evidence or questions about mental health counselling or treatment records relating to complainant or witness
(1) If at a trial a person is charged with a sexual offence, then, except with the leave of the court—
(a) no evidence may be adduced, and
(b) no question may be asked in cross examination,
by or on behalf of any accused at the trial, about any records made in relation to any mental health counselling or treatment which may have been undertaken by a complainant or witness.
(2) The records made include those made by—
(a) a counsellor,
(b) a therapist,
(c) an Independent Sexual Violence Adviser (ISVA), and
(d) any victim support services.
(3) The court may give leave in relation to any evidence or question only on an application made by or on behalf of a party to the trial, and may not give such leave unless it is satisfied that—
(a) the evidence or question relates to a relevant issue in the case which will include a specific instance (or specific instances) of alleged sexual behaviour on the part of the complainant,
(b) the evidence or question has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice, and
(c) a refusal of leave might have the result of rendering unsafe a conclusion of the jury or (as the case may be) the court on any relevant issue in the case.
(4) For the purposes of making a determination under paragraph (3)(b) the judge shall take into account—
(a) the interests of justice, including the right of the accused to make a full answer and defence;
(b) the need to preserve the integrity of the trial process by removing from the fact-finding process any discriminatory belief or bias;
(c) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;
(d) the potential threat to the personal dignity and right to privacy of the complainant or witness;
(e) the complainant’s or witness’s right to personal security and to the full protection and benefit of the law;
(f) the provisions of the Victims Code; and
(g) any other factor that the judge considers relevant.
(5) Where this section applies in relation to a trial by virtue of the fact that one or more of a number of persons charged in the proceedings is or are charged with a sexual offence—
(a) it shall cease to apply in relation to the trial if the prosecutor decides not to proceed with the case against that person or those persons in respect of that charge; but
(b) it shall not cease to do so in the event of that person or those persons pleading guilty to, or being convicted of, that charge.
(6) Nothing in this section authorises any evidence to be adduced or any question to be asked which cannot be adduced or asked apart from this section.
(7) In relation to evidence or questions under this Section, if no pre-trial application in accordance with Part 36 of the Criminal Procedure Rules has been made, or if such application has been made and refused in whole or in part, no further application may be made during the course of the trial or before its commencement to call such evidence or ask such question, and no judge may allow such application or admit any such questions or evidence.””
This new clause would restrict evidence or questions about mental health counselling or treatment records relating to complainant or witness unless a defined threshold is met.
New clause 68—Law Commission consideration of the use of complainants’ sexual history in rape trials—
“The Secretary of State must seek advice and information from the Law Commission under section (3)(1)(e) of the Law Commissions Act 1965 with proposals for the reform or amendment of the law relating to the use of complainants’ sexual history in rape trials.”
Sarah Champion
I would like to speak to new clause 57, which would restrict evidence or questions about mental health counselling or treatment records, unless a defined threshold is met. Under current legislation, the police and defence are able to access all the victim’s counselling notes relatively easily. That results in many victims fearing that their counselling notes will be used against them in court proceedings, while some victims are actively discouraged from accessing counselling until after the trial has taken place.
New clause 57 would create a presumption that the disclosure of counselling notes would not be used as evidence, so that only in exceptional circumstances could the victim’s records be accessed. The new clause would add a new section to the Youth Justice and Criminal Evidence Act 1999, so that the judge would have to take into account multiple factors, including the victims’ code, and the potential threat to the person’s dignity and right to privacy of the complainant or witness.
The mental health records would also have to relate to a relevant issue in the case, and the judge would have to ensure that the evidence has significant probative value. That would reassure victims that it would be unlikely that their records would be used, and give them more confidence in working with the police and courts to secure justice.
I recently received an email from a brave woman who used to live in my constituency. She has now moved away from the UK because she did feel emotionally or physically safe in Rotherham, or indeed in England. She left the UK as a direct result of the traumatic court case. She literally moved to the other side of the world. In 2011-12, she reported childhood sexual abuse to South Yorkshire police. In her email to me, she wrote:
“After I completed my video evidence, the officers told me it would complicate the trial if I sought any mental health support, and to wait until it was over. That took 18 months, 18 of the most difficult months, when I was emotionally abused and outcast by my family for reporting the abuse. I had nowhere to turn, needed to see a psychologist for support and I was utterly traumatised. Today, I suffer from post-traumatic stress from that trial, and I feel it is related to being denied my human right of access to mental health support. If the police denied anyone cancer treatment during court proceedings, there would be uproar. We need to see mental health in the same way.”
She goes on to say:
“Despite it not being illegal to see a counsellor, it appears to be more convenient for the police case if one is not seen. When someone in such an immense position of trust indicates it would be better not to see a counsellor, the victim is so vulnerable and so strongly led by the police that I fear it will continue, even if it is off the record. Furthermore, the fear of past or ongoing counselling notes being shared with the courtroom is so overwhelmingly terrifying it is enough to put someone off seeking help, even if they were not directed against it by the police, as I was.”
Minister, this needs systematic change. Receiving counselling or mental health support should not make a victim unreliable as a witness. In 2018, in a debate about the victims’ strategy, the then Solicitor General, now Lord Chancellor and Secretary of State for Justice, the right hon. and learned Member for South Swindon (Robert Buckland), said:
“Where we have suitably qualified…mental health professionals, there should…be no bar to the sort of general counselling help that would be of real value to people who are experiencing some form of trauma.”—[Official Report, 11 October 2018; Vol. 647, c. 374.]
More recently, in response to my written question, the Minister for Crime and Policing, the hon. Member for North West Hampshire (Kit Malthouse), said:
“Victims of crime have a right to be referred to support services and have services and support tailored to their needs. There are no rules that restrict access to therapy in advance of criminal proceedings.”
My constituent was denied mental health support. I received a letter from South Yorkshire police confirming that there is guidance, which the CPS relied on in this case, to deny therapy to vulnerable witnesses in cases where the evidence can be argued as tainted and the prosecution lost. My constituent was refused counselling, but the police then found and shared counselling notes from sessions she had had at university, four years before the court case. She states:
“I was already fearful about how much of that information I’d freely shared in confidence four years earlier would be shared with my abuser and whoever else turned up to court that day.”
Police, Crime, Sentencing and Courts Bill (Eighteenth sitting)
Tuesday 22nd June 2021
(3 years, 5 months ago)
Public Bill CommitteesRead Full debate Police, Crime, Sentencing and Courts Act 2022 View all Police, Crime, Sentencing and Courts Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 22 June 2021 - (22 Jun 2021)
The Committee divided: - Ayes: 5 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 5 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 5 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 5 / Noes: 7 - Question accordingly negatived.
The Chair
Here we are. We have the ambition, according to the Whips, to get to new clause 59 by 5 o’clock. That will take some energy and effort from Committee members, but I am sure that with a fair wind behind you and natural checks in place, you will succeed in your ambition.
New Clause 10
Restriction on evidence or questions about complainant’s sexual history
‘(1) Section 41 of the Youth Justice and Criminal Evidence Act 1999 is amended as follows.
(2) In subsection (1)—
(a) starting in paragraph (b) omit “in cross examination, by or on behalf of any accused at the trial,”;
(b) at end insert “with anyone other than the defendant”.
(3) In subsection (2)—
(a) for “an accused” substitute “a party to the trial”;
(b) in paragraph (a) omit “or (5)”.
(4) For subsection (3) substitute—
“(3) This subsection applies if the evidence or question relates to a relevant issue in the case and that issue is not an issue of consent.”
(5) For subsection (5) substitute— In subsection (6), for “subsections (3) and (5)” substitute “subsection (3)”.”
“(a) For the purposes of subsection (3) no evidence may be adduced or question asked unless the judge determines in accordance with the procedures in this subsection that the question or evidence has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice.
(b) In determining that question the judge shall take into account—
(i) the interests of justice, including the right of the accused to make a full answer and defence;
(ii) the need to preserve the integrity of the trial process by removing from the fact-finding process any discriminatory belief or bias;
(iii) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;
(iv) the potential threat to the complainant’s personal dignity and right to privacy;
(v) the complainant’s right to personal security and to the full protection and benefit of the law;
(vi) the provisions of the Victims Code;
and any other factor that the judge considers relevant.
(6) In subsection (6), for “subsections (3) and (5)” substitute “subsection (3).’—(Sarah Champion.)
This new clause excludes the admission in evidence of any sexual behaviour of the complainant with a third party, whether by the prosecution or the defence, to show consent, whilst leaving it admissible if it is relevant to any other issue in the case. It sets out the additional requirement that to be admitted the material must be more probative than prejudicial and sets out the considerations the judge must have in regard to considering that extra requirement.
Brought up, and read the First time, and Question proposed (this day), That the clause be read a Second time.
The Chair
I remind the Committee that with this we are considering the following:
New clause 11—Definition of “issue of consent”—
‘(1) Section 42 of the Youth Justice and Criminal Evidence Act 1999 is amended as follows.
(2) For paragraph (b) substitute—
“(b) “issue of consent” means any issue where the complainant in fact consented to the conduct constituting the offence with which the defendant is charged and any issue where the accused reasonably believed that the complainant so consented;”
This new clause re-defines “issue of consent” for the purposes of section 41, including in the definition the defendant’s reasonable belief in consent, and thus removing it as a reason for the inclusion of a complainant’s sexual history or behaviour.
New clause 12—Admission of evidence or questions about complainant’s sexual history—
‘(1) The Youth Justice and Criminal Evidence Act 1999 is amended as follows.
(2) After section 43 insert—
43A In any trial or contested hearing to which section 41 of the Youth Justice and Criminal Evidence Act 1999 applies, if no pre-trial application in accordance with Part 36 of the Criminal Procedure Rules has been made, or if such application has been made and refused in whole or in part, no further application may be made during the course of the trial or before its commencement to call such evidence or ask such question, and no judge may allow such application or admit any such questions or evidence.’
This new clause would have the effect that no section 41 evidence or questions could be admitted by a judge at trial unless there had been an application before trial in accordance with the practice directions; and the amendment would ban applications from being made immediately before or during the trial.
New clause 13—Complainant’s right of representation and appeal on an application to adduce evidence or questions on sexual conduct—
‘(1) The Youth Justice and Criminal Evidence Act 1999 is amended as follows.
(2) After section 43 insert—
43A (1) The complainant may not be compelled to give evidence at any hearing on the application.
(2) The complainant will be entitled to be served with the application and to be legally represented (with the assistance of legal aid if financially eligible) as “a party” within the meaning of the Criminal Procedure Rules in responding in writing to the application and in presenting their case at any hearing on the application.
(3) If the application succeeds in whole or in part, the complainant will have a right to appeal for a rehearing of the application to the Court of Appeal on notice within 7 days of the judgement being delivered.
(4) On any such appeal, the Court of Appeal will rehear the application in full and may grant or refuse it in whole or in part.
(5) The Secretary of State may, by regulation, set out rules of procedure relating to any hearing or appeal under this section.’
This new clause would give the complainant a right of representation, with legal aid if they are financially eligible, to oppose any application to admit section 41 material about them. This new clause would also give complainants a right of appeal to the Court of Appeal if the application is allowed in whole or in part. The new clause also provides that the complainant is not compellable as witness at the application.
New clause 14—Collection of and reporting to Parliament on data and information relating to proceedings involving rape and sexual assault—
‘(1) The Secretary of State shall collect and report to Parliament annually the following data and information—
(a) The time taken in every case of rape or sexual assault for the case to progress from complaint to charge, from charge to pre-trial plea and management hearing; and from then until trial.
(b) The number of applications to ask questions or adduce evidence of any sexual behaviour of the complainant under section 41 of the Youth Justice and Criminal Evidence Act 1999 (“the 1999 Act”) made in the Magistrates and Crown Courts of England and Wales, irrespective of whether a trial was subsequently held.
(c) The number of cases which involved questions on or evidence of any sexual behaviour of the complainant in all rape, sexual abuse and other trials or contested hearings in the Magistrates and Crown courts in England and Wales, irrespective of whether an application was made to admit such questions or evidence in advance of the trial or hearing.
(d) In cases to which section 41 of the 1999 Act applies—
(i) whether Part 36 of the Criminal Procedure Rules was followed in each application and if it was not, how it was not;
(ii) the questions proposed to be asked;
(iii) the evidence proposed to be called;
(iv) whether the prosecution opposed the application and if so the content of their representations;
(v) whether evidence was called to support or oppose the application;
(vi) whether the application was allowed in whole or in part and a copy of the judgement made on the application; and
(vii) any other material which might assist in an assessment of the frequency, basis and nature of applications for the use of such questions or evidence and the likely impact on any parties to any trial and the trial outcome.
(2) The data and information to be collected under subsection (1) shall include—
(a) all the material from any pre-trial application;
(b) the questions in fact asked and the evidence in fact called about any sexual behaviour of the complainant in the trial;
(c) any application at the start or during the course of the trial to vary or alter any judgement given in any earlier application or any further application to admit such questions or evidence;
(d) whether any material not previously authorised was used in the trial;
(e) whether the prosecution objected; and
(f) any ruling made or action taken by the judge on the further conduct of the trial as a consequence of the admission of questions or evidence under section 41 of the 1999 Act.
(3) The data and information to be collected under this section shall be collected from the date of Royal Assent to this Bill.’
This new clause requires the Secretary of State to collect and report to Parliament data and information on trial delay and section 41 matters.
New clause 15—Training for relevant public officials in relation to the conduct of cases of serious sexual offences—
‘(1) The Secretary of State shall, on this Act coming into force, publish and implement a strategy to provide training on the investigation of rape and alleged rape complainants, and the admissibility and cross-examination of complainants on their sexual history to—
(a) the Crown Prosecution Service;
(b) Police Forces;
(c) the Judiciary; and
(d) such other public bodies as the Secretary of State considers appropriate.
(2) The Secretary of State shall ensure that any judge who is asked to hear a trial where the accused is charged with rape or any other serious sexual offence has attended and completed a training programme for such trials which has been accredited by the Judicial College.’
This new clause ensures that all criminal justice agencies shall be trained and that no judge can hear a sexual offence trial of any kind unless they have attended the Judicial College serious sexual offence course.
New clause 42—Enhancement of special measures in sexual offences—
‘(1) The Youth Justice and Criminal Evidence Act 1999 is amended as follows.
(2) In section 27, after subsection (1), insert—
“(1A) Any interview conducted under this section of a complainant in respect of a sexual offence must be conducted by—
(a) a member of the Bar of England and Wales,
(b) a member of the Faculty of Advocates,
(c) a member of the Bar of Northern Ireland, or
(d) a solicitor advocate.’
New clause 57—Restriction on evidence or questions about mental health counselling or treatment records relating to complainant or witness—
‘(1) The Youth Justice and Criminal Evidence Act 1999 is amended as follows.
(2) After section 43 insert—
“43A Restriction on evidence or questions about mental health counselling or treatment records relating to complainant or witness
(1) If at a trial a person is charged with a sexual offence, then, except with the leave of the court—
(a) no evidence may be adduced, and
(b) no question may be asked in cross examination,
by or on behalf of any accused at the trial, about any records made in relation to any mental health counselling or treatment which may have been undertaken by a complainant or witness.
(2) The records made include those made by—
(a) a counsellor,
(b) a therapist,
(c) an Independent Sexual Violence Adviser (ISVA), and
(d) any victim support services.
(3) The court may give leave in relation to any evidence or question only on an application made by or on behalf of a party to the trial, and may not give such leave unless it is satisfied that—
(a) the evidence or question relates to a relevant issue in the case which will include a specific instance (or specific instances) of alleged sexual behaviour on the part of the complainant,
(b) the evidence or question has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice, and
(c) a refusal of leave might have the result of rendering unsafe a conclusion of the jury or (as the case may be) the court on any relevant issue in the case.
(4) For the purposes of making a determination under paragraph (3)(b) the judge shall take into account—
(a) the interests of justice, including the right of the accused to make a full answer and defence;
(b) the need to preserve the integrity of the trial process by removing from the fact-finding process any discriminatory belief or bias;
(c) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or hostility in the jury;
(d) the potential threat to the personal dignity and right to privacy of the complainant or witness;
(e) the complainant’s or witness’s right to personal security and to the full protection and benefit of the law;
(f) the provisions of the Victims Code; and
(g) any other factor that the judge considers relevant.
(5) Where this section applies in relation to a trial by virtue of the fact that one or more of a number of persons charged in the proceedings is or are charged with a sexual offence—
(a) it shall cease to apply in relation to the trial if the prosecutor decides not to proceed with the case against that person or those persons in respect of that charge; but
(b) it shall not cease to do so in the event of that person or those persons pleading guilty to, or being convicted of, that charge.
(6) Nothing in this section authorises any evidence to be adduced or any question to be asked which cannot be adduced or asked apart from this section.
(7) In relation to evidence or questions under this Section, if no pre-trial application in accordance with Part 36 of the Criminal Procedure Rules has been made, or if such application has been made and refused in whole or in part, no further application may be made during the course of the trial or before its commencement to call such evidence or ask such question, and no judge may allow such application or admit any such questions or evidence.’
This new clause would restrict evidence or questions about mental health counselling or treatment records relating to complainant or witness unless a defined threshold is met.
New clause 68—Law Commission consideration of the use of complainants’ sexual history in rape trials—
‘The Secretary of State must seek advice and information from the Law Commission under section (3)(1)(e) of the Law Commissions Act 1965 with proposals for the reform or amendment of the law relating to the use of complainants’ sexual history in rape trials.’
Alex Cunningham (Stockton North) (Lab)
It is a pleasure to serve under your chairmanship, Sir Charles—probably for the last time in this Committee, as I believe you may be going fishing on Thursday. That might be just a rumour.
New clause 42 is yet another attempt by the Opposition to improve the provisions of special measures for victims of sexual offences. I hope the Government are more open-minded to this proposal. The new clause would make the use of professional advocates mandatory when complainants of sexual offences undergo video-recorded interviews. I thank the Society of Labour Lawyers for its extremely valuable input in the formation of this new clause.
A number of special measures are available to vulnerable and intimidated witnesses giving evidence at trial, under the Youth Justice and Criminal Evidence Act 1999. They include the use of screens, the use of a live TV link, giving evidence in private, the removal of wigs and gowns and the use of video-recorded cross examination where a video-recorded interview is admitted as evidence in chief—under section 28, which we discussed earlier.
The new clause deals with the special measure provided for under section 27—the use of video-recorded interviews as evidence in chief. Where the witness concerned is the complainant of a sexual offence, a video-recorded interview is presumed to be admissible in a Crown Court trial as evidence in chief. The Opposition seek to amend section 27 of the Act so that, where a victim of a sexual offence undergoes a video-recorded interview that is intended to stand as their evidence in chief at trial, the interview is conducted by a professional advocate as opposed to a police officer. We believe that is a relatively small but extremely effective proposal that could strengthen the evidence collected under section 27, and as a result strengthen a number of sexual offence cases from the outset.
Currently, video-recorded interviews are conducted by police officers rather than professional advocates. That is a rather significant extension of the role of the police in investigating crime, which includes the production of witness statements and interviewing of suspects, because a section 27 video-recorded interview is intended to be played to the jury and to stand in place of the live evidence on oath that would normally be elicited from the witness by the barrister for the prosecution.
Although it is true that police officers are trained to plan for and ask appropriate questions when conducting a video-recorded interview, it cannot be said that they have the same level of training or experience in witness handling as professional advocates such as barristers. An experienced practitioner explained to me that, in their experience, the interviews conducted by police can sometimes be repetitive, confusing and unclear. As a result, they may risk undermining the prosecution’s case.
I stress that I am not criticising the police, who we know are committed to a full and thorough investigation of crimes. Rather, we believe that this is not covered by the police’s usual remit of expertise, so it stands out as an anomaly in the range of police duties. The police should not be asked to carry out such duties, which fall outside the ordinary range of criminal investigation—especially in cases involving vulnerable or intimidated witnesses, which is what section 27 makes provision for.
We are also concerned that the use of police officers to conduct examination under section 27 may risk creating an imbalance in the equality of arms between the prosecution and defence. That is because the cross-examination of the same victims, whether conducted live during a trial or pre-recorded under section 28, will be conducted by a professional advocate, namely the defendant’s barrister. The provisions of section 27 are intended to help a witness give their best evidence, but under the current system they may be prevented from doing so.
As things stand, with police officers undertaking interviews under section 27, the key witness in a sexual offence case—they will often be the only one in such cases—is denied the benefit of having their evidence for the prosecution elicited by a professional advocate. New clause 42 would redress that imbalance so that victims who receive the special measure of a section 27 video-recorded interview are not denied the chance to have their evidence elicited by a professional advocate.
The Government should adopt this eminently sensible proposal as soon as possible as one of their planned measures to improve the criminal justice system’s response to rape and sexual offence cases. It would improve both the strength of the victim’s evidence, and their experience of being questioned. I look forward to hearing the Minister’s thoughts; I could not see anything on section 27 in the end-to-end rape review. Has his Department looked at the issue? Could it do some more work on it?
Before I turn to new clause 68, I pay tribute to the Mother of the House, my right hon. and learned Friend the Member for Camberwell and Peckham (Ms Harman), for the time and energy she has devoted to this Bill. She has been a fierce and tireless advocate for improving the lives of women and girls, and her reputation as one of the most powerful voices in the House is well deserved. My hon. Friend the Member for Rotherham has made powerful points while speaking on amendments relating to section 41 of the Youth Justice and Criminal Evidence Act 1999. As she has already spoken at length about what section 41 does, or at least is intended to do, I will spare the Committee’s time by not repeating what has been said.
I move on to new clause 68. The Opposition are deeply concerned by the issues raised by my right hon. and learned Friend the Member for Camberwell and Peckham. If section 41 is not functioning as was intended it is only right that the law be reviewed and, if necessary, amended. The last thing we want is for alleged victims of rape to face the ordeal of their sexual history being discussed in court—unless it can be shown to be absolutely necessary and only when strict criteria are met.
The Opposition’s whole approach to this Bill has been to try to protect women and girls from violence and abuse and to ensure that all victims of violence are supported and protected through the criminal justice system. On section 41, we have sought to achieve this through new clause 68. The clause would compel the Government to ask the Law Commission to review section 41 of the Youth Justice and Criminal Evidence Act 1999, with the specific purpose of identifying whether it provides the safeguards intended when it was enacted—and if not, to advise the Government on avenues of reform.
As I am sure Committee members will agree, the question of what evidence should be admitted during trial is contentious and difficult; any reforms must carefully balance protecting complainants with respect for fair trial rights. Allowing the Law Commission to conduct a thorough review of section 41 would be the best course of action to determine the way forward.
Our thinking is twofold. First, we can have full confidence that the Law Commission will be able to evaluate this type of issue. It includes some of the most pre-eminent legal minds in the UK, so there is no doubt that it would review section 41 with the utmost care and detail. Secondly, if the Law Commission were allowed to undertake a root-and-branch approach to section 41, it might make recommendations for reform that went beyond those covered by the new clauses tabled to the Bill. For example, even the most experienced of legal practitioners sometimes struggle with the complexity of section 41, leading to avoidable errors made during trial. We hope that new clause 68 would allow the Law Commission to recommend changes that might be beneficial in this area, as well as others.
It seems that the Opposition are not alone in believing that pursing a Law Commission review is the best way to approach section 41; over the weekend, I was pleased to hear that the Government also concur with that view. Page 17 of the Government’s end-to-end rape review report sets out that one of the actions that the Government will implement within the first six months will be to ask the Law Commission
“to review the way rape myths are tackled as part of the court process and the way in which evidence about the victim is used.”
Yet that strikes me as somewhat strange. When answering a question from my right hon. and learned Friend the Member for Camberwell and Peckham on this very topic in the Chamber yesterday, the Lord Chancellor seemed somewhat reluctant to confirm that that was the case. Furthermore, paragraph 114 of the Government’s response to the rape review sets out that the Government have already asked the Law Commission to review section 41. I ask the Minister: which is it? Have the Government already asked the Law Commission to review section 41? If not, will he show his unequivocal support for that course of action by voting for new clause 68?
The Parliamentary Under-Secretary of State for the Home Department (Chris Philp)
I hope that this is not the last time I serve under your chairmanship on this or any other Committee, Sir Charles.
Chris Philp
There is a lot to speak to in this group of new clauses, all of which cover the extremely serious question of the evidence given by rape complainants and other victims of sexual violence before the court and the need to make sure that they are properly looked after and that no one is deterred from coming forward with their claim. It would be terrible if people had an allegation and did not feel able to make it because they were concerned about the issues that we have talked about this afternoon.
I will take each new clause in order. New clause 57 talks about the rules around the disclosure of counselling or therapy sessions in some circumstances. It is important to set out how the law currently stands. There are already significant safeguards, and it is worth going through them. First, the police may request advice from prosecutors on whether something might be a reasonable line of inquiry. If they believe that medical notes might be a reasonable line of inquiry, they are allowed to approach the counsellor. They are not allowed to approach the counsellor simply because they believe such notes exist; that is allowed only if they believe the notes would support a reasonable line of inquiry.
If the notes do exist and if there is a reasonable line of inquiry, the police may approach the therapist to ascertain the situation, and the therapist may confirm or not confirm that there is a reasonable line of inquiry to pursue whether the notes do or do not exist. If they do exist, and if there is a reasonable line of inquiry, the therapist or counsellor does not disclose the relevant notes unless the victim gives their consent. The victim can withhold their consent and say, for whatever reason—understandably, in many cases—“I am not comfortable having that disclosed.” Unless there is a court order compelling disclosure, which is a significant process that involves going to the court to get an order, the notes are not disclosed.
If the victim agrees that the notes can be disclosed, that does not mean they will necessarily be produced in evidence or disclosed to the defence. That will happen only if there is material capable of undermining the prosecution or, conversely, capable of assisting the case for the defence. So there are several steps to go through before very sensitive, private and personal information gets disclosed, one of which is the victim’s own consent. That can be overridden only by an order of the court.
Sarah Champion (Rotherham) (Lab)
I appreciate how sensitively and proactively the Minister is responding. The problem seems to be the perception as opposed to the reality on the part of the victim and also on the part of the police who, from my constituents’ experience, were routinely saying, “Unless you give us that information, we cannot proceed with the case.” That has a chilling effect, which is why I am pushing for clarity and also a change in the law so that the guidance that should be there now would necessarily flow from that change in the law.
Chris Philp
I accept the point that there are instances, such as those that the hon. Lady referred to in her speech and I am sure exist more widely, where victims have had things said to them that are basically not appropriate and that either misrepresent the law as it currently stands or have the effect of deterring someone who would otherwise want to proceed with a case. That is probably one of the things that contributes to the unacceptably low level of rape prosecutions at the moment.
Paragraph 20 of the rape review report explicitly includes working with the police and getting them to take a different approach, frankly, to the one that the hon. Lady described in her speech and intervention. That will avoid the chilling effect. A moment ago, I laid out the law as it stands: it provides significant safeguards, including the victim’s own consent. The issue is not the law, but how the law is being described to victims. That is why this issue is not so much for legislation but for the police and others to communicate more appropriately with victims. I assure the Committee that that is absolutely at the heart of the Government’s agenda for the rape review and other work.
Alex Cunningham
Will the Minister confirm that the particular issues that I raised on new clause 68 are covered by the review? Can he totally clarify that?
Chris Philp
Yes. The Law Commission has been commissioned already and the remit, to which it has agreed—it has not been debated—is to examine the law, guidance and practice relating to the use of evidence in prosecutions of serious sexual offences and to consider the need for reform in order to increase the understanding of consent and sexual harm, and improve the treatment of victims. It covers all the areas that we have discussed.
Section 41 relates to the disclosure of a victim’s personal sexual history—obviously a very private, personal matter. We are all concerned that that provision may in some cases discourage, or deter, people from making complaints. Under section 41 of the Youth Justice and Criminal Evidence Act 1999, there is a general prohibition on the admission of evidence or questions in cross-examination relating to the sexual history of the complainant apart from four very specific exceptions listed in subsections (3) and (5). Those exceptions are narrow and limited, and the judge’s consent—permission —is required in advance; the defence cannot just bring out that history in court.
Besides having one of those conditions met, further criteria must be met: first, the evidence cannot be designed simply to impugn the credibility of the complainant; secondly, it must relate to specific and relevant instances of behaviour; and thirdly, the refusal of permission might render the verdict of the jury unsafe. That second set of criteria are applied after the court has examined whether one of the four very specific circumstances are met. That is why in 92% of cases no such evidence is adduced—a good thing, frankly. That practice will be considered by the Law Commission, however, as per the request in new clause 68.
The review has been commissioned and will examine the matters that we all agree are important and sensitive and where a delicate balance has to be struck. Rather than legislating in haste now, albeit absolutely for the right intentions, I think we should let the Law Commission’s work unfold and proceed. That will not happen in time for the Bill because we will be on Report and Third Reading in just a few weeks’ time. However, there are other Bills—I will not be specific, but if Members look at the Queen’s Speech they can probably work out which ones—in which measures such as this might be made. I suggest to the Committee that that is the best way to proceed.
The Chair
I call Sarah Champion if she would like to respond before I call the shadow Minister.
Sarah Champion
My frustration is that we always promised jam tomorrow. It is always a report, a review or a consultation. All I want—and I believe the House wants—is for the justice system to be victim-centred rather than causing damage to victims of crime. I heard what the Minister said, and I am content to withdraw the new clause.
Alex Cunningham
I do not intend to press new clause 42 to a vote, but I hope that the Government’s future plans will recognise the need for a provision to better serve victims. Similarly, I was mindful of pressing new clause 68, but I am delighted by the clear statement from the Minister quoting, I believe, from the document referred to the Commission. I am satisfied that these issues will be looked at. I hope that it is not just an internal review by the Law Commission but will listen to the views of people outside, including me and my right hon. and learned Friend the Member for Camberwell and Peckham (Ms Harman).
Sarah Champion
I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 16
Threshold for imposing discretionary custodial sentence
“Section 230 of the Sentencing Act 2020 is amended as follows—
‘(2A) If the court finds that the offence is so serious that neither a fine alone or a community sentence can be justified for the offence, it must state its reasons for being satisfied that the offence is so serious (having regard to the principles in subsection (2B), and, in particular, why a community order with appropriate requirements could not be justified).
(2B) When forming an opinion under subsection (2), the court should take account of the following principles—
(a) Passing the custody threshold does not mean that a custodial sentence should be deemed inevitable. Custody should not be imposed where a community order could provide sufficient restriction on an offender’s liberty (by way of punishment) while addressing the rehabilitation of the offender to prevent future crime.
(b) Sentences should not necessarily escalate from one community order range to the next at each sentencing occasion. The decision as to the appropriate range of community order should be based upon the seriousness of the new offence, or offences.
(c) Section 65 of the Sentencing Code (a relevant previous conviction to be treated as an aggravating factor) should not be interpreted so as to push over the custody threshold the sentence for one or more offences that would not themselves justify custody.
(d) Where the offender being sentenced is a primary carer, imprisonment should not be imposed except for reason of public safety.’”—(Alex Cunningham.)
Brought up, and read the First time.
Alex Cunningham
I beg to move, That the clause be read a Second time.
I begin by thanking the Centre for Crime and Justice Studies for its work on this new clause. Its considered and thoughtful approach to reform in this area has been utterly invaluable.
This new clause amends the Sentencing Act 2020 to strengthen the custody threshold by making provision for sentencers to state their reasons when imposing a custodial sentence. We have tabled this new clause with a view to encouraging sentencers to use community-based sentences rather than short prison sentences. The benefit of community disposals has been discussed at length in the Committee, especially in our discussion on part 6, and I do not propose to go over those issues again in full.
The Opposition are interested in reforming the sentencing regime to guard in some way against short sentences, which evidence suggests may be associated with higher levels of reoffending than sentences served in the community, and during which there is little time to address the offender’s needs. The Lord Chancellor’s predecessor was acutely interested in reform in this area. In fact, while we are on the topic, I would be interested to hear an update from the Minister on the Ministry of Justice’s unpublished Green Paper that features sentencing proposals to reduce the use of short-term custody. I recognise that his Department’s position has moved on somewhat since then, but the paper may contain an evidence base that is helpful for legislators across the House as we seek to better our criminal justice system. Perhaps he can share some of its findings.
But the current Lord Chancellor is not as enthusiastic about radical reform in this area as his predecessor, so we have tabled a new clause that is a principled starting point for reform on this issue, which we hope the Government can adopt and build on. The aim of the new clause is to reduce the use of custody for less serious offending, for which there are better and more appropriate responses in the community sentencing framework.
The premise of reserving imprisonment for serious offences is already established in statutory terms in the Sentencing Act 2020, section 230 of which states:
“The court must not pass a custodial sentence unless it is of the opinion that — the offence, or the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence.”
However, it notes that the threshold is generally not applicable
“where a mandatory sentence requirement applies”.
But even though we already have statutory provision that should guard against it, HM Inspectorate of Probation’s 2019 inspection on “Post-release supervision for short-term prisoners” recognises that, in reality, people continue to go on an “expensive merry-go-round” of multiple wasteful short prison sentences.
The report noted that within the cohort of offenders on short prison sentences, women are disproportionally serving such sentences, with 15% of all female prisoners on them as compared with 6% of male prisoners, and that many in the cohort
“go in and out of prison for acquisitive crime associated with the dual diagnosis of mental health and addiction needs, but specific data are not available for this group.”
Even the Government’s sentencing White Paper shows little enthusiasm for the efficacy of short sentences in our current framework, describing them as offering
“temporary respite from offending behaviour”
and
“at best providing limited public protection, as most offenders continue to reoffend following release.”
Outside the strengthening of the threshold for remand for children, however, the Bill as we have it does not make reforms to improve our regime with regard to short sentences or custodial periods.
The new clause would address that missed opportunity in the Bill and build on principles already accepted in sentencing guidelines, enshrining them into legislation to better clarify the currently rather opaque statutory custodial threshold. Specifically, it aims to better ensure that sentencers are appropriately reserving custody for serious offences by better clarifying the assessment that sentencers are required to make, and that the impact of imprisonment on dependent children is considered in the sentencing of primary carers. The latter point is an important one, and we will discuss it more fully when we get to new clause 26.
The clause also limits the relevance of previous convictions in determining custodial sentences. For the principle of reserving imprisonment for serious offences to be met in practice, it would be helpful to separate the issue of persistent low-level offending from that of serious offending. There is a range of low-level offending behaviour that is exacerbated rather that eliminated by short sentences, and which would be much better addressed by appropriately severe community sentences. Importantly for the current Lord Chancellor, perhaps, the clause as it stands does not eliminate short sentences. Speaking to the Justice Committee in 2019, he explained he did not believe abolishing short sentences was the right way forward, and said:
“My own experience as a recorder teaches me that there are times when, however reluctantly,”
short term prison sentences
“should be available to judges and magistrates. For example, repeat offenders who fail to comply with community orders ultimately need the sanction of custody”.
The clause does not prohibit short sentences altogether; indeed the Opposition would have several reservations with that proposal, including the fact that it has been shown to lead to sentence creep.
Sarah Champion
My hon. Friend is making powerful points. Does he agree that the new clause would prevent the expensive merry-go-round of short-term wasteful prison sentences that do not ever address the nub of the problem? We are not trying to prevent short-term prison sentences, but to deal with the situation of the repeat offender going round and round, which costs so much and blocks up the system.
Alex Cunningham
That is most certainly the case. This is not just about cost, yet the cost to the Prison Service of accommodating people in prison even for very short periods is absolutely huge. The real effect, however, is not monetary; money is not the only factor. There is the whole issue of the effect on the family, and, as my hon. Friend said, the effect on the prospect of reoffending.
In Western Australia a ban on prison sentences of up to six months resulted in an increase in prison sentences over six months for law breaking that would previously had received a shorter prison sentence. It does not even go as far as introducing a presumption against short prison sentences, though this is an approach with something to be said for it and which has had some success in other countries, including my homeland, Scotland. Instead, the clause simply requires the court to explain why it believes a custodial sentence is appropriate and a community sentence cannot be justified. This will focus the mind of the court to ensure that custody is being used as the most appropriate option, not the simplest one. It also has the added benefit of improving accountability and understanding of sentencing decisions, which is important for public confidence in the criminal justice system.
As Adrian Crossley of the Centre for Social Justice said in one of our evidence sessions:
“We need to be much bolder about the amount of people we keep out of prison and deal with in the community. We can see clearly that in treating alcohol, drug addiction, mental health problems, literacy and numeracy, you are far more likely to have an effect on those key drivers of crime if you deal with people in the community than if you put them in prison. We could be much bolder in dealing with community disposals. There is a real risk of sentencing inflation here, of a prison population growing out of control and, in my view, of brutalising people who might otherwise be able to reform.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 18 May 2021; c. 42, Q58.]
Chris Philp
Broadly speaking, the Government are keen to see alternatives to short custodial sentences. That is why we have been forward in promoting alternatives, such as community sentence treatment requirements to ensure that people get mental health, drug or alcohol addiction treatment as an alternative to short custodial sentences. As the Lord Chancellor has said, however—the shadow Minister also quoted him—in some cases, as a last resort, short sentences are required where the offender is not complying with community alternatives. I think we are agreed that short sentences should be available as an option.
I hope that the shadow Minister is reassured to know that the proportion of our prison population serving a short sentence of less than one year, say, is small. I do not have the precise figure at my fingertips, but I am pretty sure that less than 5% of our total prison population is serving a sentence of less than a year. Already, therefore, the principle that community alternatives are better than a short sentence is being applied in practice.
The new clause in some areas simply repeats the existing law, but in other areas I disagree with its principles. In fact, four principles are laid out in the new clause, the first and second of which—that custody should not be imposed where a community sentence would suffice, and that the community sentencing range should not escalate on each occasion—are already included in the Sentencing Council’s “Imposition of community and custodial sentences” guidelines, which set out the approach that courts should take when deciding whether to impose a community or custodial sentence. The law is clear that custody should only be imposed where an offence or combination of offences is so serious that only a custodial sentence can be justified. Therefore, the first two of the four principles in the new clause are already enshrined in law.
The third principle of the new clause we disagree with on principle. It states that a relevant previous convictions should not push an offence over the custody threshold, where the current offence would not justify custody on its own. In effect, that element of the new clause says, no matter how many previous offences someone might have committed, “Don’t look at that when deciding how long to sentence someone for.” I disagree with that. When someone is before the court having committed a large number of previous offences, that is rightly treated as an aggravating factor, which makes custody and longer custody more likely. It is right that repeat offenders are sentenced more seriously than people who have, for example, committed a first offence. So that element of the new clause I disagree with on its own terms.
The final of the four principles in the new clause refers to not giving custody to an offender where they are a primary carer, except for reasons of public safety. A legal principle is already established in the case of Petherick that where an offender is on the cusp of custody, imprisonment should not be imposed where there would be an impact on dependents, which would make a custodial sentence disproportionate. The principle about primary carers is also reflected in the imposition guideline, and further to that the sentencing guidelines already say that where someone is a
“sole or primary carer for dependent relatives”
that is taken to be a mitigating factor.
The law as it stands gives some protection to primary carers. It does not go quite as far as the new clause, which I think goes too far; I do not think that someone being a primary carer should literally be a get out of jail free card. That person should be accountable and answerable for their crimes, if they have committed them, but their role as a care giver should be taken as a mitigating factor. That consideration is in law already, so for all those reasons, I do not support the new clause.
Alex Cunningham
I welcome the clarification around carers and sentencing, but it is still a fact that carers often find themselves in prison for short sentences when that could have been avoided.
I appreciate that the Government are making a commitment to look at short sentences and how they are set in the future. I hope that that work is done quite quickly, because I think it could drive tremendous change not just for defendants, or offenders, but for their families, and drive the rehabilitation to which my hon. Friend the Member for Rotherham referred earlier.
I do not intend to press the new clause. The Minister spoke about previous offences always being taken into consideration. I think that adds to the roundabout of people entering prison, leaving prison, entering prison, leaving prison, when the Government should ensure that such people have proper rehabilitative support rather than just their sentences being extended each time they appear in court for a similar offence. We need a much greater emphasis on rehabilitation in this country, and I hope that the Government recognise that. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 18
Release of prisoners on Fridays or the day before Bank Holiday periods
“Section 23 of the Criminal Justice Act 1961 is amended by the insertion of the following subsection after subsection (3)—
‘(3A) Where a prisoner is to be discharged on a Friday or the day before a bank holiday, at the discretion of the governor of the prison they may be discharged on a day within the previous five working days that is earlier than the day on which the prisoner would otherwise fall to be discharged.’”—(Alex Cunningham.)
Brought up, and read the First time.
Alex Cunningham
I beg to move, That the clause be read a Second time.
The new clause makes a very simple amendment to the current discharging regime from the prison, which the Opposition believe would ensure that those leaving prison have the support that they need as they transition into the community.
May I begin by thanking Nacro for its invaluable help in drafting the clause and its essential work to support people leaving prison? The new clause would give prisons the option to release people who need community support and are due for release on a Friday or the day before a bank holiday period on an earlier day in that same week, to ensure that support is put in place ahead of the weekend. That would support rehabilitation and resettlement. It would allow release to be spread from the Monday to the Thursday to prevent a significant increase in releases on the Thursday, which could be difficult for prisons to manage. Similar legislation has already been passed in Scotland in the Prisoners (Control of Release) (Scotland) Act 2015, and we think that it is time to introduce similar provisions for prisoners in England and Wales.
Many people released from prison on a Friday face an almost impossible race against the clock to get all the support that they need in place before the weekend. Getting all the correct support in place can prove a challenge on any day of the week, but it is especially difficult on a Friday because many community services have reduced service on Fridays, and reduced or no service exists over the weekend. Prison leavers have a very limited time window in which to make all the necessary arrangements that are vital to their resettlement before services close up shop for the weekend. If the prison leaver is unable to access those services, the likelihood of their reoffending is significantly increased.
Another issue is that there is actually a spike in releases on Friday. The national data show that more than a third of custody leavers are released on a Friday, and that includes releases that were scheduled for the Friday as well as those who have release dates over the weekend or on a public holiday. This peak in releases adds significant pressure to service staff and can consequently lead to late releases and pressure on services in the community.
Our new clause addresses that by giving the governor of the prison discretion to spread releases over the previous five days so that we do not simply end up shifting the Friday spike into a Thursday spike. We know that the release day is critical for putting in place the foundation blocks for life outside prison. As well as needing to attend mandatory appointments with probation, prison leavers may need to attend the local housing office to secure somewhere to live.
Sarah Jones (Croydon Central) (Lab)
Does my hon. Friend share my experience as a Member of Parliament, which is that many people have come to my door on a Friday afternoon who have been made homeless for a particular reason or are in some kind of crisis, because they have found it almost impossible to get through to any services because people go home on a Friday? It is a very real thing. A question I always ask when I interview somebody to be a case worker is: “What would you do if someone comes to you on a Friday afternoon at half-past 4 and has nowhere to go?”. Although this seems such a simple new clause, it is incredibly important and could be the difference between someone slipping back into old ways or getting a bit of support that they need to rehabilitate themselves.
Alex Cunningham
That is most certainly the case. I may not have encountered as many as my hon. Friend, but I have had people in that situation who have nowhere to go. We find ourselves turning to local charities, but when it gets to 4.30 or 5 o’clock and somebody shows up, it is far too late to access even those sorts of support services.
Of course, the person may need to visit the jobcentre to make a universal credit claim or other benefits claims. They may need to see their GP or to attend community mental health or substance misuse services. No doubt there are many individuals who would have to do a number of things on that list. If they are unable to find somewhere to live, or to sort out necessary medication or financial support on the day, they may be left homeless over the weekend without vital medication and with only £46 to last until Monday when they can try to access services again. That can sadly lead to them falling back into old networks or habits just to get by.
It is therefore entirely in the Government’s interest to make resettlement as seamless as possible, to minimise any possible lapse into reoffending. There is a window of opportunity when people are released from prison, when they are most motivated to move forward in their lives. That can pass by if the barriers to resettlement and rehabilitation are too high. Nacro has said that it often hears from staff and professionals in other agencies working with people on release from prison how Friday releases have a huge impact on levels of hope and motivation. It has provided me with a few case studies that well illustrate the problems that Friday prison releases can cause.
The first is the case of M:
“M was released on a Friday before a bank holiday weekend after serving a year in custody. He has an addiction to heroin but, when released, was not given the prescription charts from the prison which were needed to determine the dose of methadone he needed. He was also not given a bridging prescription.
As it was late afternoon on a Friday, the GP from the substance misuse service had left and M and his resettlement broker were unable to get his medication.
M was vulnerable and entitled to priority housing. However, the local authority did not deem him to be priority need and, as it was a Friday afternoon, M didn’t have time to gather the further evidence needed to prove this before the weekend.
M spent the weekend sleeping in a known drug house and ended up using heroin. As part of his licence conditions, he was required to give blood samples and tested positive for drug use.
Releasing M earlier in the week would have meant faster access to the medical services and the medication he needed and increased his chances of finding a housing a solution more quickly.”
Something as seemingly small as the discharge day being a Friday had seriously disastrous consequences for M and put his rehabilitation and resettlement in serious jeopardy.
Nacro also shared the story of C:
“C was released from prison after serving a three-week sentence. On release, his Through the Gate mentor met him and went with him to present himself to probation, a train ride away.
On presenting to the local housing authority to make a homeless application, C was told to make an online application to receive an appointment with a housing officer for the next week.
C’s mentor contacted a local charity to which he could also make a homeless application and they asked him to come down on the following Monday. C also had to wait until the following Monday to go to the Jobcentre Plus to enquire about getting a deposit for a flat.
C slept rough that weekend. Had C been released earlier in the week, he would have been able to access these services faster without a three-night gap in which he had to sleep rough, which increased his chances of reoffending.”
Chris Philp
We do recognise that there are challenges in making sure that offenders leaving prison are given access to the services they need, so that they can get their lives back on track. However, Friday is a working day, and we would prefer to focus our efforts on making sure that those services are available on Friday, rather than on excluding Friday as a release day and therefore concentrating all the releases on just four days—Monday, Tuesday, Wednesday and Thursday—which, by definition, would mean that release numbers on those days were 25% higher than would otherwise be the case.
Sarah Champion
I hear what the Minister says, but the new clause would mean that we could address any issues on a Friday and before the weekend, when no staff are available.
Chris Philp
In terms of ensuring that people have access to the necessary services—we recognise that that needs to be done—significantly increased investment is being made to address the concerns that the hon. Lady has just raised. For example, in January this year—just a few months ago—the Government announced a £50 million investment to reduce crime and tackle the drivers of reoffending. That included work to help develop the Department’s approved premises—those are obviously important when somebody is coming out of prison—to provide temporary accommodation to prison leavers at risk of homelessness in five key probation areas. In addition, earlier this year—again, I think it was in January or February—an additional £80 million was announced, which was aimed at expanding substance misuse programmes. Those two initiatives, funded this calendar year with £50 million and £80 million, are aimed at tackling prisoner homelessness issues and, separately, drug addiction problems, so there is a real commitment to do more in this area.
I would like to turn to the question of Scotland—the shadow Minister’s native home. As he said, it legislated in 2015 to allow release not five days earlier, but up to two days earlier. A Freedom of Information Act request made just a few months ago uncovered the fact that over the six years that Scotland has had this provision, only 20 people have been released early under it, so it has not had an enormous effect in Scotland.
We would like to focus our efforts on making sure that when people are released on a Friday they are properly looked after, instead of increasing the numbers on Monday to Thursday—
Chris Philp
I was about to sit down, but I can see that the member of the Committee from a Scottish seat wants to intervene, and it would be churlish not to accept.
Allan Dorans
I thank the Minister for giving way. Does he accept that a significant number of people are imprisoned hundreds of miles from their homes, and being released on a Friday would prevent them from getting the necessary services locally? Does he also accept that the prison governor, having known the prisoner’s history in prison, is best placed to decide whether releasing him a few days early would benefit him and his opportunity to reintegrate into the community, thereby reducing his reoffending?
Chris Philp
I do understand the point, but public transport clearly does operate on a Friday and, indeed, on a Saturday and a Sunday for the most part.
It is instructive that, over the last six years, only an average of three people per year have been released early from Scottish prisons, suggesting that prison governors in Scotland, for whatever reason, have not chosen to use this power very widely. For that reason, it is right to concentrate our efforts on investing in rehabilitation services, as we are doing.
Alex Cunningham
I am hoping that the Minister is allowing me to intervene at the end of his remarks. He is concerned about increasing the number of people released from Monday to Thursday, but—I am sure he was listening attentively to my speech earlier—a third of all prisoners are currently released on a Friday. Some 33% or 34% of all prisoners are released on a Friday, and some of them could be spread over the previous four days, which would help services in trying to come to their aid.
I am concerned about what the Government might want to do. The question I pose to the Minister is: what are the Government going to do about the fact that such a high proportion of prisoners are released on Friday, to level it out a bit? I do not intend to press for a vote, but it is important that the Government consider what they are going to do about the huge spike on a Friday and, more importantly, about the lack of access to services. The Minister talked about investment in services, but if those services close down at half-past 4 on a Friday afternoon, they are no use to anybody being released from prison in those circumstances.
Chris Philp
I thank the shadow Minister for drawing attention to the statistic. As I said earlier, the focus is on investing to make sure that services are available—the £50 million and the £80 million. An additional consideration would be encouraging governors to make the release early in the day to avoid encountering services closing for the weekend.
The Chair
You do not have to give way, Minister. You are doing a very generous thing here in responding to interventions.
Hywel Williams
I thank the Minister for giving way, and thank you for your guidance, Sir Charles. I tried to intervene earlier, but the Minister was distracted by another colleague.
I raised earlier the fact that women prisoners from Wales are held very far away from their homes. Release can entail a whole day’s travel or even longer. However early in the day services are provided, it may be of no help whatever to people who have to travel cross country, perhaps by public transport, and who will not get back to their home communities until late evening.
Chris Philp
Yes, although I will probably sit down now. We are obviously looking at a very bespoke set of circumstances concerning female prisoners in Wales released on a Friday. I hear the concern about distances travelled in Wales, and I will undertake to raise that with my colleague the Prisons Minister, my hon. Friend the Member for Cheltenham (Alex Chalk).
Alex Cunningham
I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 19
Implementation of the Law Commission review of hate crime
“(1) The Secretary of State may by regulations implement any recommendations of the Law Commission following the conclusion of its review of hate crime.
(2) The power conferred by subsection (1) includes—
(a) power to amend primary legislation; and
(b) power to amend or revoke subordinate legislation.
(3) A document containing a draft of regulations under subsection (1) must be laid before Parliament not later than three months after the publication of the Law Commission’s recommendations, and that draft must be in a form which would implement all those recommendations.
(4) Draft regulations under subsection (1) must be laid before Parliament not earlier than 60 days, but not later than 120 days, after the document referred to in subsection (3) was laid before Parliament.
(5) The draft regulations laid before Parliament under subsection (4) must be in the form in which they appeared in the document laid before Parliament under sub-section (3), except that they may contain any changes which have been recommended by any committee of either House of Parliament which has reported on that document.
(6) A Minister must make a motion in each House of Parliament approving the draft regulations laid before Parliament under subsection (4) within 14 days of the date on which they were laid.
(7) Subject to subsection (8), if the draft regulations are approved by both Houses of Parliament, the Secretary of State must make them in the form of the draft which has been approved.
(8) If any amendments to the draft regulations are agreed to by both Houses of Parliament, the Secretary of State must make the regulations in the form of the draft as so amended.”—(Alex Cunningham.)
This new clause would require the Secretary of State to implement any and all recommendations made by the Law Commission’s review of hate crime. Draft regulations implementing the Commission’s recommendations would be subject to the super-affirmative scrutiny process (by subsections (3) to (5)), and would be amendable (under subsection (8)).
Brought up, and read the First time.
The Chair
With this it will be convenient to discuss new clause 25—Strategy to tackle misogynist attitudes in society—
“(1) Within 12 months of the passing of this Act, the Secretary of State must lay before Parliament a comprehensive national strategy to tackle misogynistic attitudes in society for the purpose of reducing the number of violent and non-violent offences perpetrated against women and girls.
(2) For the purposes of subsection (1) misogyny is defined as the dislike of, contempt for, or ingrained prejudice against, women or girls.”
This new clause compels the Government to commit to the creation of a comprehensive national strategy to tackle the misogynistic attitudes which underpin the abuse faced by women and girls in society for the purpose of reducing the number of violent and non-violent offences perpetrated against women and girls.
Alex Cunningham
I thank my hon. Friend the Member for Walthamstow (Stella Creasy) for her tireless work in drafting the new clause, as well as her efforts to draw attention to this important issue. I met her in the corridor on the way back to the Committee this afternoon, and she was wishing us all well—“everybody,” she said—in the hope that we could move this matter on. She knows that the community out there are watching closely, because they understand that it is this afternoon that I will be speaking to these new clauses.
New clause 19 would compel the Government to act on the recommendations of the Law Commission review on hate crime legislation, which we expect to be published later in 2021. As members of the Committee will be aware, the Law Commission’s remit for the review is to
“review the current range of specific offences and aggravating factors in sentencing”.
In its initial report published in September 2020, the Law Commission made several initial recommendations, one being that it explicitly supported the inclusion of “sex or gender” into the framework of protected characteristics. The effect of this would be to place “sex or gender” alongside characteristics that are currently protected by hate crime legislation—race, religion, transgender identity, disability and sexuality.
Unfortunately, history shows us that without a clear legislative vehicle for Law Commission proposals, it can be years until recommendations are implemented. That was the case with the 2014 Law Commission review into hate crime, which has yet to receive a response from the Government and has now been superseded by the more recent review.
For that reason, the Opposition wholeheartedly support new clause 19. Victims of misogynistic hate crime cannot afford to sit back and wait years for the Government to implement the Law Commission’s recommendations, if they choose to implement them at all. We have seen that happen before and we cannot allow it to happen again. We cannot have more dither and delay––something this Government are unfortunately all too keen to do. New clause 19 would use the statutory instrument process to enable the Government to introduce legislation to enact the commission’s recommendations. It has been drafted specifically to provide for parliamentary oversight of the introduction of the recommendations, including the ability to vote on them using the super-affirmative process.
While it is not possible to require the Government to act on recommendations that do not yet exist, this process would ensure that parliamentary time is made available for debate, scrutiny and amendment as soon as they do. Without new clause 19, there is a very real chance that the Law Commission’s recommendations will take years to be introduced into law and, given the current epidemic of violence against women and girls, that is time victims cannot afford. Taken in isolation, recognising misogyny as a hate crime will not be the silver bullet in the battle to tackle the way women and girls are treated as a whole. That is why we have tabled new clause 25 to stand alongside it.
In order to really take on violence against women and girls, we first need to recognise and treat the root causes that drive it. As the Minister must agree, a culture where misogyny is accepted without challenge, or shrugged off all together, underpins many of the violent and abusive crimes perpetrated against women and girls. As Sophie Maskell of the Nottingham Women’s Centre puts it so brilliantly:
“Misogyny is the soil in which violence against women and girls grows.”
As long as we see violence against women and girls as somehow being created in a vacuum, we will never be able to fully tackle it. If we really want to confront the growing threats women and girls face, we must be more ambitious than simply looking to tackle individual acts of crime and must divert our gaze to the cause. In this case, that cause is misogyny. We must accept that hostility towards women and girls is deeply engrained in our society and it is this toxic culture, and our combined failure to tackle it, that enables perpetrators to commit their crimes. Whether the crime is serious sexual assault, domestic abuse or wolf-whistling at a woman in the street, unless as a society we start to take misogyny seriously, we will continue to lose the battle.
I was reminded of the horrific and pervasive impact of misogyny recently when I met a group of inspirational young women from St Michael’s Catholic Academy in Billingham in my borough who are doing a project on the impact of sexual harassment on women and men. They were full of energy to tackle society’s challenges, but they told me that they did not feel like they were being listened to; that they did not have a voice. That was only a few weeks ago, and I promised them that I would give them a voice today in this Committee.
Cassidy Desira told me:
“Our trauma is often minimalized and stigmatized, because the alternative of taking it seriously is too uncomfortable… I believe the issue is that people don’t actually see the issue at all, or they plainly do not want to, they believe that they can see the world how they please, how they were raised, as the law is clean-cut, their outdated opinions won’t destroy someone’s life. Unfortunately, the law has failed assault victims many, many times.”
She went on to say:
“In my opinion, these ideas must be conveyed from the youngest ages possible, that means burning the victim-blaming ideology from the root, as sexual assault only gets worse over time. It starts with a whistle, soon the predator feels entitled to take it even further.”
Emily Barlow, another student at the school told me:
“Peer pressure is a very big reason as to why boys in particular feel the need to degrade girls. Pride. Many boys think of the comments and actions they say and make as normal, this is because sexual harassment has become so normalised that it has become second nature but the scary thing is that they don’t know they are doing it.”
The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)
I thank the hon. Gentleman for his speech. He does not need to implore this Government to listen to the girls he has quoted. Not only are we listening, not only have we listened, but we are following through with a tackling violence against women and girls strategy that is truly ambitious and, I believe, an unprecedented effort to tackle the issues that the girls he quoted have to contend with.
As I said, we conducted the first ever call for evidence on tackling violence against women and girls. No other Government have gone out to the public as we have to ask girls and women for their experiences of what they face day in, day out in their lives. We opened the conversation to the whole of society, so men and boys were very welcome to contribute as well.
I set my officials the challenge of reaching a young woman in her 20s, getting the bus home from work at night, who would not normally respond to surveys. We would somehow try to find ways of reaching her. Not only did we try that in December, but following the awful events of earlier this year—I deliberately do not name anyone, because I am respectful of the family, but I suspect we know the events of which I speak—we reopened the survey, precisely because we understood that women and girls want to talk and to share their experiences.
That is when we received 160,000 further responses. Each and every one is being read and considered carefully in drawing up our tackling violence against women and girls strategy. However, because the Government place so much focus on crimes that disproportionately affect women and girls, we have also decided to focus not one, but two national strategies on such crimes. For the first time, therefore, we have split out domestic abuse from the catch-all phrase “violence against women and girls”, not because we are trying to de-gender it or to deny that the crime disproportionately affects women and girls, but because it is such a high-volume, high-harm crime that it deserves its own national strategy. Thus, we are giving it the focus it deserves in the domestic abuse strategy, which will be published later this year, after the VAWG strategy.
If nothing else has come out of recent events, it is that the range of offences that VAWG covers is significant, so we cannot pretend that a one-size-fits-all approach will suit all those crimes. We do not try to do that, and we are certainly not working towards that. We want to have tailored strategies fit for the 2020s, looking at both offline and online behaviour.
Sarah Champion
I hope the Minister is aware of how grateful I am for all the work she has done on this cause. She has really been a champion for it. Is she able to share with the Committee her thoughts about whether the crime is increasing or our awareness is increasing? Does she have any thoughts she can share about the root causes of this, and therefore how early prevention will stop it happening?
Victoria Atkins
It is a complicated answer to a complicated question. We know, for example, that some forms of crime are increasing, and there is ongoing academic research into some of those, but we have reason to believe that more women are reporting facing violent acts within sexual relationships. That encompasses a range of relationships, from intimate, long-term relationships to first dates. That is precisely why, on the Domestic Abuse Act 2021, we worked across the House with colleagues to clarify the law on the so-called rough sex defence, because we knew that women in intimate, long-term relationships and in shorter relationships were experiencing that. Through that Act, we also brought in the prohibition on non-fatal strangulation, and again we worked on a cross-party basis. There is emerging evidence, particularly on the latter, that more and more victims of domestic abuse, but also those in other types of relationships, are facing these acts within—to use shorthand—the bedroom. We very much wanted to put a marker in the sand to say, “This sort of behaviour is not healthy, and it is now not lawful.”
The thinking is that those sorts of behaviours have increased over recent years. The thinking behind that is that online pornography has had an impact. However, I refer the hon. Lady to the research that I commissioned when I was Minister for Women and Equalities on the impact of online pornography and attitudes towards women and girls. The Government published that a few months ago. It is fair to say that there are not quite the clear lines that some would expect, but there are common themes there, if I can put it as broadly as that. Online pornography is a factor with some crimes, but sadly violence against women and girls is—dare I say it?—as old as time. The ways in which a minority of men—I make that absolutely clear—see fit to behave towards women and girls is part of the Gordian knot that we must try to untie. It will be a longer-term process than this Bill or the next Bill that comes along when legislation is appropriate. It will require a cultural education journey, as well as shorter-term fixes.
I am very pleased that the hon. Member for Stockton North raised the Law Commission research. As part of our work on ensuring that the law is keeping up to date with modern practices, we have commissioned a lot of work from the Law Commission recently. I do not apologise for that. In fact, it gives me the opportunity to thank the Law Commission for the work it conducts, often looking into very complex areas of law and trying to find ways through in order to assist this place and the other place in updating the law.
The current investigation into hate crime illustrates that point very well. In 2018, we asked the Law Commission to consider the current range of offences and aggravating factors in sentencing and to make recommendations on the most appropriate models to ensure that the criminal law provides consistent and effective protection from conduct motivated by hatred towards protected groups or characteristics. The Law Commission published its consultation document in September. It was an enormous document—more than 500 pages and 62 separate questions. The Law Commission has been very clear that the consultation document was exactly that; it was not a report or a set of conclusions. It does not represent the Law Commission’s final position on any of the issues raised.
I make that point because the new clause invites Parliament to adopt those recommendations wholesale, and I think we are all duty bound to acknowledge that what we have had so far from the Law Commission is a consultation document. It is not its final report. Indeed, the Law Commission hopes to report in October, and of course the Government will give that report very, very careful consideration. I do not believe, however, that it would be appropriate for this Government, or indeed any Government, or any Parliament, to sign what is effectively a blank piece of legislation without seeing what the Law Commission is going to recommend.
We do not know what the consequences may be of the recommendations, nor what would be required to enact and enable them. It may be, for example, that changes to primary legislation would be required. I have to say that I feel uncomfortable at the prospect of the Bill permitting other parts of primary legislation to be overwritten—overruled—by virtue of the super-affirmative procedure. We must surely ensure that significant changes to the law should be properly debated by both Houses of Parliament in the normal way, with any Bill going through all the normal processes and stages.
I gently suggest to the Opposition that perhaps they should be careful what they wish for, because in this very Bill clause 59 gives effect to the Law Commission’s recommendation relating to the common law offence of public nuisance. It made that recommendation in 2015 and recommended that it be put into statute. If I recall our deliberations correctly, the Opposition opposed that very clause. I cannot imagine what the reaction would have been had we attempted to have this super-affirmative procedure imposed in relation to clause 59.
Sarah Jones
The Minister points to the risks of legislation being passed that defines something that is as yet undefined, and that being a blank cheque. Does she agree that our concerns about the protest element of the Bill, which gives the Home Secretary the right to define vast sections of the Bill after the legislation has been passed, relate to the same principle?
Victoria Atkins
No, no, no, on the very contrary. I do not want to get into very technical discussions about the ways in which hate crime legislation is drawn up, but the hon. Lady will know that there are reams of statute setting out various elements of hate crime and aggravating factors in sentencing. The proposed new subsection to which the hon. Lady refers in clause 54 relates to the definitions of
“serious disruption to the activities of an organisation which are carried out in the vicinity of a public procession, or…serious disruption to the life of the community.”
It is not a proper comparison in any way, shape or form, because that is a definition of two terms, whereas—who knows?—the Law Commission may be very radical in its reform and recommend that we change many parts of primary legislation that has been passed over several years by various Governments.
On new clause 25, we have already taken significant action, not least with the passing of the Domestic Abuse Act, but we must go further. That is why we will publish the tackling violence against women and girls strategy and a complementary domestic abuse strategy to focus all our attention on those crimes that disproportionately affect women and girls. I have already spoken about the importance of education and challenging some cultural attitudes that exist in corners of society. That will be very much part of the work of both of those complementary strategies, so I invite the Committee to await the Law Commission’s publication of its conclusions, and publication of the Government’s VAWG and domestic abuse strategies. I hope that the hon. Member for Stockton North will be content to withdraw his new clause.
Alex Cunningham
There are sufficient protections for Parliament in the secondary legislation process. Given what the Law Commission has done in the past, “radical” does not strike me as a word that would be applied too often.
Victoria Atkins
Will the Opposition then change their mind and support clause 59, which is a Law Commission recommendation to put public nuisance on the statute book?
Alex Cunningham
Indeed we will not.
The important thing here is to think about what we are trying to achieve. We are actually trying to achieve better protection for women and girls out there in society, day after day, week in, week out.
The Minister managed to talk about commissioned reports, two strategies and one survey. We have so much information in the system already that we know now that we need to act to deal with this. The evidence that I quoted from Emily and Cassidy bears that out. They are 15 or 16 and they were making it very clear that this is a major problem in society. I praise their school for facilitating discussions across the school. I hope that other schools will follow on, because that might build awareness and do away with us punishing people as, hopefully, society changes to the extent that women and girls are much more valued and not subject to the abuse that they suffer now, which may start as verbal but ends up very physical.
Sarah Champion
Will my hon. Friend comment on Nottinghamshire police’s pilot on misogyny as a hate crime? They thought it worked exceptionally well in challenging behaviour. That is the sort of thing that we need rolled out across the country.
Alex Cunningham
As I said earlier, we have evidence that things are working in some areas and that there is a real need to do much more across the country. For that reason, we should be strong enough to accept with confidence that we can examine the Law Commission’s recommendations later in the year and commit the decision making to a legislative Committee. On that basis, I shall press new clause 19.
Question put, That the clause be read a Second time.
The Chair
I am mindful that the Whips want to finish at 5 pm. We need to make progress if that is to be achieved.
New Clause 21
Minimum sentence for an offence under section 1 of the Sexual Offences Act 2003
“(1) This section applies where—
(a) an individual is convicted of an offence under section 1 of the Sexual Offences Act 2003, and
(b) the offence was committed after the commencement of this section and at a time when the individual was aged 18 or over.
(2) The court shall impose an appropriate custodial sentence (or order for detention) for a term of at least the required minimum term (with or without a fine) unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify its not doing so.
(3) In this section “appropriate custodial sentence (or order for detention)” means—
(a) in the case of an offender who is aged 18 or over when convicted, a sentence of imprisonment, and
(b) in the case of an offender who is aged under 18 at that time, a sentence of detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000.
(4) In this section “the required minimum term” means seven years.”—(Alex Cunningham.)
This new clause creates a statutory minimum sentence for rape of 7 years. A court must impose at least the statutory minimum unless it is of the opinion there are exceptional circumstances relating to the offence or to the offender which justify not doing so.
Brought up, and read the First time.
The Chair
With this it will be convenient to discuss new clause 22—Minimum sentence for an offence under section 4A of the Protection from Harassment Act 1997—
“(1) This section applies where—
(a) an individual is convicted of an offence under section 4A of the Protection from Harassment Act 1997, and
(b) the offence was committed after the commencement of this section and at a time when the individual was aged 18 or over.
(2) The court shall impose an appropriate custodial sentence (or order for detention) for a term of at least the required minimum term (with or without a fine) unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify its not doing so.
(3) In this section “appropriate custodial sentence (or order for detention)” means—
(a) in the case of an offender who is aged 18 or over when convicted, a sentence of imprisonment, and
(b) in the case of an offender who is aged under 18 at that time, a sentence of detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000.
(4) In this section “the required minimum term” means five months.”
This new clause creates a new statutory minimum sentence for adults convicted of “stalking involving fear of violence or serious alarm or distress” of 5 months. A court must impose at least the statutory minimum unless it is of the opinion there are exceptional circumstances relating to the offence or to the offender which justify not doing so.
Alex Cunningham
It is impossible for anyone who has not been through it to imagine the trauma of being raped. That is why I will start with the anonymous voice of a rape victim who was attacked on 29 February last year. The attack happened after a night out in Marlborough. The victim awoke to find 20-year-old Killian Hutchinson assaulting her before raping her. She told police officers that she felt unable to move, either out of fear or because she was intoxicated. She told the Swindon Advertiser:
“I felt immense shame, I felt like nobody would believe me, I felt like it would go nowhere and I’d…done all of this for nothing. But know that none of this is true, those who love you will believe you, the shame you may feel is misplaced. And it won’t all be for nothing.”
It is a scandal that her attacker was sentenced to imprisonment of just five years and three months after pleading guilty to rape.
For the benefit of the Committee, I point out that although the maximum sentence for rape is life imprisonment, there is not currently a minimum sentence set out in statute. Instead, the sentencing guidelines set a starting point for rape of five years, which can be reduced to only four years if certain mitigating circumstances exist. The Opposition simply do not believe that four years is a proportionate sentencing option for one of the most horrendous crimes that it is possible to commit.
There are two options available to us. One would be to ask the Sentencing Council to review the current sentencing guidelines as they apply to rape, but that would take time and there is no guarantee that it would recommend any changes. The second is to create a statutory minimum sentence for rape—a provision along the lines of section 51A of the Firearms Act 1968, which compels a court to hand down a minimum sentence unless there are exceptional circumstances relating to the offence, or the offender, that justify not doing so. In other words, this method creates a minimum sentence that can be set by Parliament, but still gives judges the power to depart from that sentence in exceptional circumstances.
New clause 21 uses this method to create a minimum statutory sentence for rape of seven years, which we believe is more proportionate to the devastating consequences of this crime. The new clause would not only ensure that the punishment better represented the crime; it would also bring our sentencing regime closer to that in other common-law jurisdictions around the world.
I thank the House of Commons Library for the extremely helpful briefing that it put together on this point. When I asked what the sentencing ranges for rape were in other common-law countries, its research showed the following. The minimum sentence for rape in India was increased in 2018 and now stands at 10 years. In Australia, the Australian Law Reform Commission said in 2020 that the penalty range for rape was 12 years to life imprisonment. In the state of Victoria, rape carried a standard sentence of 10 years; and in New South Wales, the standard sentence was seven years.
That prompts the question of why is the sentencing minimum for rape comparatively low in this country? Can the Minister honestly say that a four or five-year sentence can ever truly reflect the enormous damage caused by rape? I must be clear about this: we are not talking about the maximum sentence available to courts, nor the average sentence; we are talking about the minimum sentence that a rapist could conceivably receive, as the sentencing regime stands.
I have a suspicion that the Minister will argue that setting minimum statutory sentences undermines the law by removing the discretion afforded to judges by way of the sentencing guidelines. He was previously at pains to talk about average sentences handed down being somewhat higher than the minimum, but it is still the case that many rapists receive much lower sentences. Surely toughening the law around minimum sentences cannot be so disagreeable, as clause 100 of this very Bill ensures that repeat offenders in relation to certain crimes receive a statutory minimum sentence. As the Library briefing sets out:
“Clause 100 and Schedule 11 of the Bill would change the law so that for these offences a court is required to impose a custodial sentence of at least the statutory minimum term unless there are exceptional circumstances that relate to any of the offences or to the offender”.
If members of the Committee have suddenly had a feeling of déjà vu, they are correct in thinking that they have heard that phrase before. That is because new clause 21 would create a statutory minimum sentence for rape of seven years, unless exceptional circumstances relating to the offence or the offender would make it unjust to do so. In other words, new clause 21 is much the same as clause 100 of the Government’s Bill, which sets a minimum sentence for those convicted of repeated drug offences and burglaries.
That raises an important point. If the Minister says, as I suspect he will, that the Government cannot support new clause 21 because he does not agree with statutory minimum sentences, why does he support clause 100? What is it about the crimes under clause 100 that the Government feel deserve minimum sentences that rape does not? Why does it seem that the Government’s thinking is different when it comes to crimes that affect predominantly women and girls? Why is he happy to have minimum sentences for repeat drug offences, which, as I set out earlier in Committee, will greatly increase racial disparity in the justice system, but not for rape?
As an Opposition, we accept that increasing the minimum sentence for rape will not in isolation solve the greater issues at play, but it would ensure that the punishment is proportionate to the crime. Fundamentally, it would send out a clear message that the Government are serious about tackling the epidemic of violence against women and girls in society. The question for the Minister is simple. Does he feel that four to five years in prison can ever be a proportionate sentence for rape? If not, does he support longer sentences for rapists? He has indicated in the past that he does; now is the time for him to ensure that they are imposed.
Like new clause 21, new clause 22 would use the model of the Firearms Act to create a statutory minimum sentence for those who commit the most serious type of stalking offences. When researching the law in relation to stalking, I came across a very useful and persuasive report written by the Under-Secretary of State for Justice, the hon. Member for Cheltenham. The report was part of a campaign by someone who is now the Minister responsible for prisons to recognise the immense harm stalking causes and to increase the maximum sentence that applies to the more serious forms of stalking—stalking involving fear of violence or serious alarm or distress. The report makes a compelling case and it is little wonder that it led to the maximum sentence being doubled from five years to 10. However, it did nothing at all to ensure that the minimum sentence for this horrendous crime reflects the impact on victims’ lives.
As with rape, there is currently no minimum statutory sentence for those who stalk with the intention of invoking fear of violence or serious alarm or distress. Instead, judges follow the sentencing guidelines. As the law currently stands, someone convicted under section 4A of the Protection from Harassment Act 1997 can receive anything from 10 years in prison to a category C fine. Not only do we not agree with that, but it misrepresents the gravity of the offence. We also believe that the current system provides no deterrence to perpetrators of this terrible crime. Moreover, it is deeply troubling how few perpetrators of serious acts of stalking ever receive custodial sentences. One report notes that despite record numbers of convictions for stalking, 58% per cent of stalkers received only community or suspended sentences. How can it be right that more than half of stalkers never spend a day in prison? What sort of message does that send to the victims of this horrendous crime?
The purpose of new clause 22 is to end that undue leniency and ensure those convicted of the most serious form of stalking can expect to receive a custodial sentence as default, rather than as an exception. The question for the Minister is one of policy. Is it right for someone who stalks with the intention of causing fear of violence to receive a simple fine or a suspended sentence?
Chris Philp
As the shadow Minister made clear in his opening remarks, these are incredibly serious offences that leave victims traumatised and distressed, and the psychological scars are often borne for many years, if not decades, after the offences are committed. They are among the gravest offences that can be committed, and it is right this House takes them seriously. We have discussed the Government’s commitment to improving prosecutions in this area, and that was laid out by the Lord Chancellor in his statement yesterday following the publication of the rape review on Friday last week. More needs to be done, and the Government commitment in this area is clear.
Sarah Champion
I am listening intently to everything the Minister and his colleague are saying, which is great, but does the Minister understand that we have been promised all this for a long time? Although we are hearing his promises, we are awaiting the outcomes of reviews for which we are not given dates. Women are being murdered and abused.
Chris Philp
My colleague, the safeguarding Minister, tells me that the refreshed VAWG strategy will be published this year, in less than six months. I hope that gives some reassurance to the hon. Lady. If she is asking for action, I would point to the extra £25 million VAWG-specific funding, the new offences created in 2012 and the doubling of sentences in 2017. Those are not promises for the future, but actions that have been taken. She should also note that three quarters of those convicted of the offence get immediate custody, and that immediate custody of 16.9 months is more than three times longer than the minimum proposed in the new clause.
We want to make sure that those found guilty of those bad offences, which are terrible in themselves and can lead to escalation, are getting appropriately punished. But we are trying to strike a balance between that and the need to give the judge the ability to consider the individual case on its merits. That might include, for example, the perpetrator having mental health issues, where treatment might be more appropriate than custody. We need to tread carefully in striking that balance.
Given the action that has been taken and that three quarters of the offenders get immediate custody for a term much longer than the minimum proposed in the new clause, we are trying to strike a balance, which is not easy. There are good arguments on both sides of the issue, but we feel that the current sentencing laws make sense in this context. We have made a commitment to keep this under ongoing review and there are other legislative vehicles that could reconsider the issue. I am sure that the VAWG strategy, which my hon. Friend the safeguarding Minister is overseeing, will consider all the issues in the round, when it reports a little later this year.
These are difficult issues and difficult balances to strike, but I hope that I have explained why I believe the Government’s approach strikes that balance.
Alex Cunningham
On new clause 22 and stalking, it was interesting to listen to the level of sentencing imposed, and that is quite encouraging. But I think the Government recognise that more still needs to be done, and I hope that they will continue to consider the matter.
I also think that it would be helpful to have more publicity about what happens to stalkers who commit that crime, because women are still not confident about coming forward. If they learn that they will be taken seriously and that the people who are making their lives a misery may receive the sort of sentence the Minister outlined, more women may come forward and use the law. I hope that the Government will consider that suggestion.
I am disappointed that the Government are prepared to vote against increasing the sentence for rapists. I never thought that I would stand in Committee and believe that Conservative Members would think that it was okay to vote against a minimum sentence of seven years for rapists. I have spoken to rape victims—it was some time ago, not recently—and they tell me that the people convicted went to prison for four years, five years, seven years, but they, the victims, got a life sentence. They continued to live that ordeal. Then, of course, when they learned that the person was due to be released, they lived their lives in more fear because they were afraid that something dreadful might happen to them again.
Chris Philp
On a point of order, Sir Charles. In my speech, I said that 74% of people convicted of a stalking offence with serious alarm faced immediate custody. I should have been clear that that was all custody, not just immediate custody.
The Chair
Thank you for that point of order, Mr Philp; I am sure it was much appreciated by the Committee.
New Clause 23
Street sexual harassment
“(1) A person must not engage in any conduct in a public place—
(a) which amounts to sexual harassment of another, and
(b) which they know or ought to know amounts to sexual harassment of the other.
(2) For the purposes of this section, the person whose conduct is in question ought to know that it amounts to sexual harassment of another if a reasonable person would think the conduct amounted to sexual harassment of the other.
(3) The conduct referred to in subsection (1) is known as street sexual harassment.
(4) A person (A) engages in conduct which amounts to street sexual harassment, or which they know or ought to know amounts to street sexual harassment, of another (B) if—
(a) A engages in unwanted conduct of a sexual nature, and
(b) the conduct has the purpose or effect of—
(i) violating B’s dignity, or
(ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
(5) In deciding whether conduct has the effect referred to in subsection (4)(b), each of the following must be taken into account—
(a) the perception of B;
(b) the other circumstances of the case; and
(c) whether it is reasonable for the conduct to have that effect.
(6) For the purposes of this section, “conduct” includes speech, non-verbal attitudes such as gestures imitating or suggesting a sexual act, and obscene sound effects.
(7) A person who engages in any conduct in breach of subsection (1) is guilty of an offence.
(8) Where on any occasion an authorised officer finds a person who he has reason to believe has on that occasion committed an offence under section 1 above, he must give that person a notice offering him the opportunity of discharging any liability to conviction for that offence by payment of a fixed penalty, unless subsection (9) applies.
(9) This subsection applies (and subsection (8) does not apply) if a person has previously—
(a) been found guilty of an offence under subsection (1), or
(b) made payment of a fixed penalty issued under subsection (8).
(10) Where a person is given a notice under this section in respect of an offence—
(a) no proceedings shall be instituted for that offence before the expiration of fourteen days following the date of the notice; and
(b) he shall not be convicted of that offence if he pays the fixed penalty before the expiration of that period.
(11) A notice under this section shall give such particulars of the circumstances alleged to constitute the offence as are necessary for giving reasonable information of the offence and shall state—
(a) the period during which, by virtue of subsection (2) above, proceedings will not be taken for the offence;
(b) the amount of the fixed penalty; and
(c) the person to whom and the address at which the fixed penalty may be paid; and, without prejudice to payment by any other method, payment of the fixed penalty may be made by pre-paying and posting to that person at that address a letter containing the amount of the penalty (in cash or otherwise).
(12) Where a letter is sent in accordance with subsection (11)(c) above payment shall be regarded as having been made at the time at which that letter would be delivered in the ordinary course of post.
(13) The form of notices under this section shall be such as the Secretary of State may by order prescribe.
(14) The amount of a fixed penalty payable in pursuance of a notice under this section is £500.
(15) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 3 on the standard scale.”—(Alex Cunningham.)
This new clause creates an offence of engaging in unwanted conduct of a sexual nature in public. Those found to have committed an offence would be given an on the spot fine of £500. Those who commit the offence on further occasions would liable to receive a fine of up to £1000.
Brought up, and read the First time.
Question put, That the clause be read a Second time.
The Chair
With this it will be convenient to discuss the following:
New clause 48—Reporting of data on homicide reviews—
“(1) The Secretary of State must collect and report to Parliament annually data and information relating to reviews under—
(a) Section 16M of the Children Act 2004 (child death reviews) where the death of the child was due to homicide,
(b) Section 9 of the Domestic Violence, Crime and Victims Act 2004 (domestic homicide review), and
(c) Section 23 of the Police, Crime, Sentencing and Courts Act 2021 (offensive weapons homicide reviews).
(2) The Secretary of State must set out in regulations the type of data to be collected and reported under this Section.
(3) Not later than three months after each report has been laid before Parliament, the Secretary of State must lay before Parliament a report which assesses the lessons which may be learnt from the data.
(4) The report prepared for the purposes of subsection (3) must be prepared by a person independent of the Secretary of State.”
This new clause requires the Secretary of State to collect and report annually to Parliament data on child death reviews where they involve homicide, domestic homicide reviews and offensive weapons homicide reviews. It would also require the Secretary of State to commission and lay before Parliament a “lessons learnt” review of the data.
New clause 55—Domestic homicide reviews—
“(1) Section 9 of the Domestic Violence, Crime and Victims Act 2004 is amended as follows.
(2) For subsection (2) substitute—
‘(2) The Secretary of State must in all cases which meet the circumstances set out in subsection (1) direct a specified person or body within subsection (4) to establish, or to participate in, a domestic homicide review.’
(3) After subsection (3) insert—
‘(3ZA) The Secretary of State must by regulations set out—
(a) the type of data relating to domestic homicide reviews which must be recorded, including—
(i) the number of domestic homicide reviews taking place across England and Wales annually; and
(ii) the time taken to complete each individual domestic homicide review;
(b) that the data must be recorded centrally in a Home Office database; and
(c) that the data must be published annually.’”
This new clause seeks to modify the Domestic Violence, Crime and Victims Act 2004 to force the Secretary of State to automatically direct a domestic homicide review in circumstances as outlined in Section 9 of the Act. The amendment also aims to improve data collection methodologies around domestic homicide reviews.
Alex Cunningham
The record will show that the Conservative members of this Committee voted against a minimum sentence of seven years for rape. The Minister pointed out some of our votes, and I am happy to put that on the record, too.
I again thank my right hon. and learned Friend the Member for Camberwell and Peckham, my hon. Friend the Member for Rotherham and my right Friend the Member for Kingston upon Hull North (Dame Diana Johnson) for their support on this new clause. New clause 24 would require the Lord Chancellor, within 18 months of the commencement of this Act, to commission a review of the effectiveness of current legislation and sentencing policy surrounding domestic abuse. The review, conducted by a senior member of the judiciary, would have a particular view to increasing sentences for domestic homicide, and reducing the gap in sentence length between domestic homicide and other homicides. The review would also examine the effectiveness of sentencing more broadly for domestic abuse.
It is a stain on our society that the number of female victims of murder in England and Wales is the highest that it has been since 2006, some 15 years ago. Rather than things getting better, things are getting dramatically worse. Staggeringly, almost half of female homicides––48%––take place in the family home. This flies in the face of the commonly held myth that murders take place away from the safety of the family home and are predominately committed by strangers.
As I set out earlier, while the Opposition fully support the Government’s introduction of clause 103, which increases the custodial sentence for murder committed by a person under the age of 18, we feel there is much more that could be done in this area. This is particularly the case when it comes to the staggering difference in sentence lengths between those who murder within the home and those who murder a stranger in the street. Once again, I will repeat Carole Gould’s words which I feel really ring true on this point:
“Why should a life taken in the home by someone you know be valued less than a life taken by a stranger in the streets?”
Even under the proposals set out in the Bill, a child aged 10 to 14 who commits murder after taking a weapon to the scene, say a public place, would be liable to a minimum of 13 years imprisonment. For a child of the same age who committed murder using a weapon in the family home, the minimum sentence would be eight years.
That gap exists not only for children, but for adults. As I have told the Committee before, Joe Atkinson was 25 when he murdered his 24-year-old ex-girlfriend in a jealous rage. For those who take a knife or weapon to the scene, such as those who stab someone to death on the street, the normal starting point for sentencing is 25 years, but Joe Atkinson was sentenced to just 16 years and two months, partly because the murder was committed using a weapon found in the victim’s home. But that is just one piece of legislation that new clause 24 would seek to review. The review would also examine the effectiveness of sentencing more broadly for domestic abuse in general.
As Committee members will no doubt be aware, we have seen a staggering increase in appeals for help during the pandemic from those suffering domestic abuse. Between April 2020 and February 2021, Refuge recorded an average of more than 13,000 calls and messages to its national abuse helpline each month, a truly horrifying number. This is an increase of more than 60% on the average number of monthly contacts at the start of 2020. The crime survey for England and Wales showed that 1.6 million women and 757,000 men had experienced domestic abuse between March 2019 and March 2020, with a 7% growth in police-recorded domestic abuse crimes. Each of those figures suggests that the current measures the Government are taking to address domestic violence and domestic homicide simply are not working.
In order to truly tackle these issues, we need a root-and-branch independent review of how our criminal justice system responds to domestic abuse and domestic homicide. This is too important a point to ignore, and I hope the Minister will support new clause 24 today.
Sarah Jones
I will not try to remake my hon. Friend’s argument, which was compelling. I shall speak to new clauses 48 and 55, which have been grouped with new clause 24. I have spoken previously in Committee about the importance of learning the lessons of homicides. The relevant clauses would introduce offensive weapon homicide reviews, and we are debating the Bill at a time when serious violence is at record levels. Of all homicides in the latest year, 37% were knife-enabled crimes. A large proportion of homicides involved offensive weapons: in the year ending March 2020, 275 homicides involved a sharp instrument, 49 involved a blunt instrument and 30 involved shootings. We welcome this part of the Bill. It is important that lessons are learned.
It is incredibly important that the pathways that lead people to be involved in homicides can be understood and that the knowledge is shared with the bodies that can make preventive interventions and changes. Every homicide review that is carried out has a life behind it, and at the heart of every review is a person who has lost their life, each with a complex set of circumstances that can help to inform multi-agency bodies to prevent another death and provide better protections for those left behind. We owe it to the families of victims to ensure that any lessons are learned.
The domestic abuse charity Standing Together recently reviewed domestic homicide review processes in London boroughs, and its report highlighted that not enough knowledge sharing is happening. With new clause 48, we are seeking to put in the Bill a requirement on the Secretary of State to ensure that data is collected and reported on for all homicide reviews. The new clause requires the Secretary of State to collect and report annually to Parliament data on child death reviews involving homicide, on domestic homicide reviews, and on offensive-weapon homicide reviews. It would also require the Secretary of State to commission and lay before Parliament a lessons learned review of the data.
New clause 55, which was tabled by my hon. Friend the Member for Pontypridd (Alex Davies-Jones), would modify the Domestic Violence Crime and Victims Act 2004 to force the Secretary of State to automatically direct a domestic homicide review in circumstances as outlined in section 9 of the Act. We also aim with the new clause to improve data collection methodologies around domestic homicide reviews.
New clause 55 would bring about a really important change. Section 9(4) of the 2004 Act states:
“The Secretary of State may in a particular case direct a specified person…to establish, or to participate in, a domestic homicide review.”
However, those should not just be particular cases at the Secretary of State’s discretion; it should be the norm that when a person aged 16 or over has died, and their death has or appears to have resulted from violence, abuse or neglect by a person who they were related to, in a relationship with, or in the same household, a domestic homicide review should be automatically directed.
There are some serious gaps in data that a more common application of domestic homicide reviews would help to bring to light. Unless I am wrong, in which case the Minister can correct me, the Home Office does not publish a record of the number of domestic homicide reviews taking place across the UK, the number of victims with a history of domestic abuse who have gone or remain missing, or the number of unexplained or sudden deaths of victims with a history of domestic abuse. In the UK, the Office for National Statistics provides an annual homicide report for England and Wales, while Scotland has its own similar dataset, but those figures only scratch the surface. The ONS finds that over the last decade in England and Wales, an average of 85 women a year are killed by a partner or ex-partner. That is 44% of all homicides against women, while in Scotland the proportion is 49%.
Although Government data tells us the number of victims, their gender and their relationship to the perpetrator, there is no further information around the crimes and their nature. Some cases may also be lost because the killer’s gender is not noted. Crucially, there is no information about the perpetrator’s history of domestic abuse. That makes it hard to understand the relationship between domestic abuse and homicide, even on the most basic level.
Eight women were killed in the first three days of 2012, and in the same year, Karen Ingala Smith, chief executive of the domestic violence charity Nia, began to name them on her WordPress page to count dead women. She trawled through articles, police reports and domestic homicides reviews to collect and memorialise the cases. In 2015, Ingala Smith and Clarrie O’Callaghan launched the Femicide Census following their work on the count. Their 10-year report, released in November 2020, paints a stark picture of homicide against women in the UK. According to their report, there has been no improvement: women are being killed by men at the same rate as a decade ago, averaging 143 deaths a year when including all killers, not just intimate partners.
The Femicide Census provides crucial context for each killing, providing data on everything from the location to the method of the killing to the perpetrator’s history of abuse. Femicide Census findings published in November 2020 show that over the past decade, 62% of cases encountered were of women who died at the hands of an intimate partner. Nearly two thirds of perpetrators were currently or had previously been in an intimate relationship with the victim, and 72% of female homicide victims died in their homes. The census also begins to link domestic abuse and femicide: 59% of cases involved a history of coercive control or violence, and almost half the perpetrators were known to have histories of abuse against women.
Victoria Atkins
New clause 24 seeks to establish a review into sentencing in cases of domestic homicide, following many tragic cases, including those of Ellie Gould and Poppy Devey Waterhouse, among others, where there remain concerns about the sentences handed down by courts. The Government recognise those concerns, which is why my right hon. and learned Friend the Lord Chancellor has already announced a review of sentencing in domestic homicide cases.
We are carrying out a targeted review of how such cases, focused on those that involve fatal attacks on intimate partners or ex-partners, are dealt with in our justice system, including how such cases are sentenced. It is the Lord Chancellor’s intention to make quick progress on this and to conduct the review while the Bill is making its way through the legislative process. The first phase of the review is under way to gather data and relevant information, following which the Lord Chancellor will consider the best form for the next phase of the review.
As for a review of domestic abuse legislation more generally, Parliament has just finished scrutinising, at length and in depth, the Domestic Abuse Act 2021. The Act contains many important reforms and proposals for the future, and our focus must be on implementing those reforms before reviewing their impact.
Turning to new clauses 48 and 55, clause 27(7) requires the Secretary of State to publish or make arrangements to publish the report of an offensive weapons homicide review, unless publication is considered inappropriate, in which case the Secretary of State must publish as much of the report as is considered appropriate for publication. Beyond that statutory requirement, we want to ensure that the recommendations from offensive weapons homicide reviews are shared, considered, debated and, where appropriate, implemented locally and nationally in England and Wales. We will therefore set up a new Home Office homicide oversight board to oversee the introduction of offensive weapons homicide reviews to monitor implementation of any findings and to support dissemination of learnings locally and nationally. We will set out further details about the board and how it will operate in due course.
We have already undertaken to create a central repository to hold all reports from DHRs. Once introduced, all historical reports will be collected to ensure that there is a central database on domestic homicides. That is a significant move forward. We are working closely with the domestic abuse commissioner on the detailed arrangements for that central repository so that it can be effective in helping all relevant agencies to access and apply the lessons learned from DHRs.
Finally, in relation to child death reviews, the “Working together to safeguard children” guidance sets out the statutory requirements regarding child death reviews. Established processes are already in place to collate and share learning from such reviews, and it is a statutory requirement that child death review partners make arrangements for the analysis of information from all deaths reviewed and that learnings should be shared with the national child mortality database. The database analyses the patterns, causes and associated risk factors for child mortality in England and disseminates data and learning from the reviews via its annual and thematic reports.
We are not persuaded that new clause 55 is necessary. The statutory guidance for DHRs makes it clear that where the criteria for a review are met a review should be conducted. The power in section 9(2) of the 2004 Act to direct that a review be undertaken is a backstop and, in practice, is rarely needed. However, when it is needed, it is exercised. Indeed, the Home Secretary exercised it recently in the case of the death of Ruth Williams, because Torfaen Council had refused to progress a DHR. Furthermore, we have introduced a process whereby the DHR quality assurance panel reviews all cases where a decision has been made not to conduct a review. The quality assurance panel is made up of members representing statutory bodies and expert organisations, and they are well placed to consider whether a DHR is necessary and to offer appropriate feedback. That process ensures that DHRs can commence as soon as practicable, without needing the Home Secretary to intervene in every case.
In summary, we agree that the lessons for all the homicide reviews must be learned and applied locally and nationally. Mechanisms are already in place, or are indeed being put in place, to ensure that that happens, so we are not persuaded that the two new clauses are necessary at this stage.
Sarah Jones
I am interested in the homicide board to which the Minister referred. We would appreciate more details about how that would work, and it would be nice if we could get them before Report. I am reassured about the number of databases that there are, because we know that violence breeds violence, and I suspect that there are themes across all these areas from which we could learn more. I ask the Minister to keep pushing the issue.
Alex Cunningham
I am not sure how the dual thing in one set of clauses works in protocols, but we have managed anyway.
Sir Charles, you will be thinking that if you got a fiver for every time you heard the words “review”, “survey” or “commission”, you would be able to fund your fishing fees for a week on the River Tweed. Here we are, asking for a further review, so that is another fiver in the pot towards your fees.
We believe that the Government are doing well across the domestic abuse agenda, but we think that much more could be done, in a much more positive way. I suppose the report card would say, “Could do better,” and we think that the best way to do that is through a formal review, captured in the legislation. That would compel things to happen, and then we would get the information we need on which to act. For that reason, I want to vote on new clause 24.
Question put, That the clause be read a Second time.
The Chair
With this it will be convenient to discuss the following:
New clause 32—Requirement for a pre-sentence report when sentencing a primary carer—
“(1) Section 30 of the Sentencing Act 2020 is amended as follows.
(2) After subsection (3) insert—
‘(3A) A court must make inquiries to establish whether the offender is a primary carer for a child.
(3B) If the court establishes that the offender is a primary carer for a child, unless there are exceptional circumstances before sentencing the offender the court must obtain a pre-sentence report containing information to enable the court to make an assessment of the impact of a custodial sentence on the child.’
(3) After subsection (4) insert—
‘(5) In this section—
(a) “child” means a person under the age of 18; and
(b) “primary carer” means a person who has primary or substantial care responsibilities for a child.’”
This new clause amends section 30 of the Sentencing Act 2020 to make clear the requirement for a sentencing judge to have a copy of a pre-sentence report, considering the impact of a custodial sentence on the dependent child, when sentencing a primary carer of a child.
New clause 33—Duty of the court to state how it has considered the consequences for the child when sentencing—
“(1) Section 52 of the Sentencing Act 2020 is amended as follows.
(2) After subsection (9) insert—
‘Offenders who are primary carers
“(10) A court sentencing a primary carer for a child must state how the best interests of the child were considered in determining the sentence (including, if appropriate, consideration of the views of the child).
(11) A court sentencing a pregnant woman must state how the best interests of the baby were considered in determining the sentence.
(12) In this section—
(a) ‘child’ means a person under the age of 18; and
(b) ‘primary carer’ means a person who has primary or substantial care responsibilities for a child.’”
This new clause amends section 52 of the Sentencing Act 2020 to require a sentencing judge to state how the best interests of a child were considered when sentencing a primary carer of a dependent child.
New clause 34—Welfare of child to be a distinct consideration when sentencing a primary carer—
“(1) After section 227 of the Sentencing Act 2020, insert—
‘227A Restrictions on imposing imprisonment on a primary carer
(1) This section applies where a court is considering imposing a custodial sentence on—
(a) a primary carer for a child, or
(b) a pregnant woman.
(2) The sentencing court must—
(a) consider the impact of a custodial sentence on the child or unborn child, and
(b) presume (subject to victim impact and any other sentencing considerations) that a non-custodial sentence is in the best interests of the child or unborn child.
(3) In this section—
(a) “child” means a person under the age of 18, and
(b) “primary carer” means a person who has primary or substantial care responsibilities for a child.’”
This new clause would create a requirement for a sentencing judge to consider the impact of a custodial sentence on a child when sentencing a primary carer of a dependent child.
New clause 35—Welfare of child to be a distinct consideration when determining bail for a primary carer—
“(1) Section 4 of the Bail Act 1976 is amended as follows.
(2) After subsection (9) insert—
‘(10) Where a court determines whether to grant bail in criminal proceedings to a person to whom this section applies who is a primary carer for a child or pregnant, the court must—
(a) consider the impact of not granting bail on the child or unborn child; and
(b) presume (subject to victim impact or other relevant considerations) that it is in the best interests of the child or unborn child for bail to be granted.
(11) In this section—
(a) “child” means a person under the age of 18, and
(b) “primary carer” means a person who has primary or substantial care responsibilities for a child.’”
This new clause would impose a requirement for the judge to consider the impact of not granting bail on a child when determining, in criminal proceedings, whether to grant bail to a primary carer of a dependent child.
New clause 36—Data collection in relation to prisoners who are primary carers—
“(1) The Secretary of State must collect and publish annual data identifying—
(a) how many prisoners are the primary carers of a child,
(b) how many children have a primary carer in custody, and
(c) the ages of those children.
(2) In this section—
(a) ‘child’ means a person under the age of 18, and
(b) ‘primary carer’ means a person who has primary or substantial care responsibilities for a child.”
This new clause would impose a requirement on the Secretary of State to collect and publish data on the number of prisoners who are the primary carers of a child and the number of children who have a primary carer in custody.
Alex Cunningham
The new clauses fall broadly into three categories: sentencing provisions, which is new clauses 32, 33 and 34; provisions relating to determining bail, which is new clause 35; and provisions relating to data collection, which is new clauses 26 and 36. I will speak to them in that order.
I would like to thank Women in Prison for its helpful input to the new clauses, and I recognise the excellent work of the Joint Committee on Human Rights, whose members have promoted new clauses 32 through to 36 and carried out forensic work on the matter in recent years.
An estimated 53,140 children are affected by their primary carer going to prison each year. The mother is more likely to be that primary carer, and as the 2007 Corston report notes, as many as 95% of children are forced to leave their home when their mother goes to prison. That separation can be extremely traumatic for children, and they go on to face a huge upheaval in their lives as a result of something that is no fault of their own.
As Georgia, a young woman who was 15 years old when her mother was sentenced to prison, eloquently put it to the inquiry by the Joint Committee on Human Rights:
“This is the thing I always think about, and I think back to it quite a lot. I know my mum did wrong and deserved a punishment, but if you were to stand my mum up in that box with me and my brother, and someone turned around and said ‘Do you sentence these three?’, would the judge look at it differently?”
We know that the primary carer is often also at risk of losing employment and their home, even after a short period in prison. Research has shown that, even among those who do not lose their home, many will face problem debt, which consequently will still leave the children vulnerable to homelessness. As Women in Prison notes:
“The imprisonment of a household member is one of ten adverse childhood experiences known to have a significant negative impact on children’s long-term health and wellbeing, their school attainment, and later life experiences, including life expectancy and the likelihood of being imprisoned themselves.
Significantly, experiencing parental imprisonment increases a child’s own risk of involvement with the criminal justice system, with over two thirds of prisoners’ sons going on to offend themselves.”
Sarah Champion
I support the new clauses, because I have yet to see a positive reason for women going into prisons. As my hon. Friend is saying, the impact on children is dramatic, but it is not only the fact that children are more likely to themselves face criminal actions; it is also that, on every measure, children going into care fail to achieve their potential. We really are damning children by doing this to their mothers.
Alex Cunningham
We certainly are. I quoted the figure earlier; some 95% of children end up leaving their home when their principal carer goes to prison, which bears out what my hon. Friend says.
The 2017 Farmer review found that family ties are a factor in reducing reoffending, which has attendant benefits for all our communities. The Government’s own 2018 female offender strategy acknowledges that
“custody results in significant disruptions to family life”
and that many women
“could be more successfully supported in the community, where reoffending outcomes are better.”
Sentencers are already expected to consider the impact on child dependants, but it seems that in reality the current guidelines are not applied rigorously or consistently across all cases.
The Joint Committee on Human Rights found in its 2019 inquiry “The right to family life: Children whose mothers are in prison” that despite the fact that the Sentencing Council had strengthened its guidance to judges and magistrates about the need to consider dependent children,
“evidence to the inquiry clearly indicated that this guidance is not being satisfactorily adhered to in practice and the question remains whether these steps go fast or far enough to guarantee children’s rights.”
Taken together these clauses will strengthen sentencers’ existing duties to ensure that they are applied consistently across all cases and that, as a result, children’s rights are guaranteed.
I will now consider the new clauses that deal with sentencing provisions. New clause 32 amends section 30 of the Sentencing Act 2020 to make clear the requirement for a sentencing judge to have a copy of a pre-sentence report, considering the impact of a custodial sentence on the dependent child, when sentencing a primary carer of a child. The Joint Committee has raised concerns about the current quality and use of pre-sentence reports and in its inquiry was told that pre-sentence reports were
“vitally important in ensuring that courts have all the information necessary about dependent children before sentencing a primary carer,”
but written evidence from Dr Natalie Booth noted that they were used
“inconsistently and ineffectively in many cases”.
New clause 33 amends section 52 of the Sentencing Act 2020 to require a sentencing judge to state how the best interests of a child were considered when sentencing a primary carer of a dependent child. New clause 34 would create a requirement for a sentencing judge to consider the impact of a custodial sentence on a child when sentencing a primary carer of a dependent child.
The Opposition believe that these new clauses can help address the current inconsistency that I previously referred to by explicitly requiring sentencers to give due regard to the impact of a sentence on any dependent children and their welfare. As the Joint Committee on Human Rights notes:
“These new clauses merely reflect what ought to, but sadly often does not, happen—to consider and respect the rights of the child when a primary carer is sentenced”.
As Dr Paradine of Women in Prison told the Committee in one of our evidence sessions:
“It is completely unacceptable that the measures up until now have not resulted in the change needed. This is an opportunity to make that small change. It does not require anything different, but it will make sure, hopefully, that the things that should be happening in court do happen, that imprisonment is not having a disproportionate impact on children and that their best interests are safeguarded.”––[Official Report, Police, Crime, Sentencing and Courts Public Bill Committee, 20 May 2021; c. 150, Q255.]
I think Dr Paradine puts it very compellingly; these are things that are already meant to happen in the court, yet in many cases they still do not.
Mr Robert Goodwill (Scarborough and Whitby) (Con)
The hon. Gentleman is making some very valid points and no one should underestimate the effect on a child of having either parent sent to jail. He talks a lot about “a primary carer”. As a parent, I see myself as sharing the care of our children. Is he assuming that in every case the woman would be the primary carer, or does he consider in these days of equality that it would be for the judge to decide who might be the primary carer?
Alex Cunningham
The right hon. Gentleman makes a very valid point. There are some cases where a lone male parent is the principal carer who may find himself in the dock facing a prison sentence. Naturally, the provisions apply to both men and women.
Dr Paradine puts it very compellingly: these are things that are already meant to happen in the court, yet in many cases they still do not. The Government clearly intend these things to happen, so I hope they can support the new clauses backed by the Joint Committee on Human Rights today and tighten provision in this area.
New clause 35 would impose a requirement for the judge to consider the impact of not granting bail on a child when determining in criminal proceedings whether to grant bail to a primary carer of a dependent child. This is an important measure because we know that even short bouts in custody can have very destabilising effects on families. The Government’s own figures show that a significant proportion of women remanded into custody do not go on to receive a custodial sentence. In 2019, 66% of women remanded by the magistrates court and 39% remanded by the Crown court did not go on to receive one. Again, under the current provisions, consideration should be made of child dependants but in practice it is not, and so again we ask the Government to support the amendment backed by the JCHR and tighten practice in this area.
Finally, I turn to the data provisions in new clauses 26 and 36. New clause 26 would place a duty on the Secretary of State to collect and publish data on the number of offenders who receive a custodial sentence and who are parents of children or are pregnant at the time of their sentencing. New clause 36 would impose a requirement on the Secretary of State to collect and publish data on the number of prisoners who are the primary carers of a child and on the number of children who have a primary carer in custody. Both clauses speak to the same issue: there is an absence of data on this topic that needs to be addressed.
As the JCHR stated in its legislative scrutiny report for the Bill:
“The Government still does not know how many mothers of dependent children are in prison. It also does not know how many children are separated from their mother by her imprisonment. Despite this Committee’s repeated recommendations that it should collect this data, the Government’s approach continues to keep a group of children invisible to policy makers, the courts, the Prison Service and other support services.”
The Committee continued:
“A lack of data inhibits the ability of the Government, prisons and local authorities to design and evaluate services for children whose mothers are in prison. It prevents children whose primary carer has been separated from them, through no fault of their own, from accessing the support that will help them during and after their mothers’ sentence, and ultimately shows a blatant disregard for the rights of the child, as well as their parents’ right to family life.”
The absence of data is impacting service provision and ultimately preventing the Government from being able to improve measures to support primary carers and their children who are affected in this way, and means that we cannot measure progress in this area. These simple and straightforward duties on the Government are the next necessary step in improving the criminal justice system’s response to these cases, and I hope that the Government can support them today.
As Women in Prison recognises, this is a timely opportunity for the Government to
“make progress on their ambitions to radically reduce the number of women in prison included in their strategy and National Concordat on women in the criminal justice system, as well as the recommendations of the Farmer Review on women.”
Given that three in five women in prison have children under the age of 18, the proposed changes are needed now, as the Bill ushers in sentencing reforms.
The new clauses have cross-party support and will safeguard the welfare of the thousands of children who experience the profound impact of maternal imprisonment by ensuring that it is at least at the forefront of sentencers’ minds. All we ask is for the Government to ensure that what should happen does happen. Often, it simply does not.
The inclusion of the new clauses in the Bill will ensure that the data on the welfare of children is captured and adequately reported, so that those children can access the services and support that they need and deserve.
Chris Philp
I am conscious that we are perhaps not progressing as quickly as we had hoped, so I will try to be concise, while answering the questions properly.
The Government accept that we should avoid imprisoning a primary carer unless it is absolutely necessary, but we should also be clear that when someone commits a serious criminal offence, the fact that they are a primary carer should not confer immunity from imprisonment on them. There is clearly a legitimate criminal justice objective in imprisoning some people in some circumstances. We should not get into a position whereby simply having a dependant renders the offender immune from custody—that is not a reasonable proposition. However, we should ensure that custody is used as a last resort and sparingly. I will answer the questions in that spirit.
New clause 26 concerns data collection. The Government fully support the intention behind it, but we do not believe that it is necessary. We already take steps to obtain details of dependent children or pregnancy both at court, as part of the pre-sentence report, and again on reception into custody. However, it is true that the information is not collected centrally, or in a standard format. The Government intend to enable that information to be collated better and to improve its availability. The underlying data exists; it is simply a question of collation and we intend to respond positively to the various JCHR recommendations on that.
Again, we support the principle behind new clause 32, but do not believe that it is necessary. The sentencing code is already clear that
“the court must obtain and consider a pre-sentence report before forming the opinion unless, in the circumstances of the case, it considers that it is unnecessary to obtain a pre-sentence report.”
Existing legislation already asks the court to obtain that PSR. In addition, further guidance was introduced in 2019 for probation practitioners. It sets out that for those who are primary carers with responsibilities for children, a request to the court for an adjournment to prepare the PSR is considered mandatory. That is to ensure that the impact of a custodial sentence on dependants is considered.
As we set out in the sentencing White Paper last September, we are currently running a pilot in 15 magistrates courts. It includes targeting female offenders, who, among other cohorts, have been identified as having particular needs, for fuller written PSRs.
I hope that it is clear from the sentencing code, the guidance issued to probation practitioners and the pilot work that the matter is already being addressed through existing measures. That is probably one reason why so few women are in prison.
Again, the Government are sympathetic to the sentiment behind new clauses 33 and 34, but, by law, a court is already required to state its reasons for deciding on a sentence, and courts are required to take into account the impact on dependants at various points in the sentencing process. We have already discussed the Petherick case, which established that, on the cusp of custody, cases where there is a dependant should be treated in a way that takes that into account. That can tip the scales so that a custodial sentence that might otherwise have been considered proportionate becomes disproportionate.
As we have discussed, courts are also required by law to follow relevant sentencing guidelines issued by the independent Sentencing Council, unless the court is satisfied that it would be contrary to the interests of justice to do so. Reflecting the principles in the Petherick case, which we have spoken about, the guideline on the imposition of community and custodial sentences is clear that
“on the cusp of custody, imprisonment should not be imposed where there would be an impact on dependants which would make a custodial sentence disproportionate to achieving the aims of sentencing.”
Alex Cunningham
I emphasise to the Minister that new clause 26 does not stop or rule out custody for anybody who is a carer or primary carer.
I am grateful for the Minister’s comment on data. As I have said before in this room, we know how poor data is across the Ministry of Justice, judging by the number of times I get answers to parliamentary questions that state that the data either is not available or cannot be provided without disproportionate cost. I very much welcome that commitment to collecting data in this area and others.
The Minister talked about pre-sentencing reports. I emphasised in my speech that these reports must very much take into consideration the child, not just the offender. Perhaps we need to do more work with our sentencers to make sure that they are aware of the restrictions on them when it comes to remanding people in custody or sentencing them to it.
On bail, I understand what the Minister is saying, but there is still a very high proportion of women and carers being remanded in custody who do not go on to receive a custodial sentence. That plays back to my point that perhaps we need to do more work with sentencers to make sure they are applying the law in the fairest way possible.
In the light of the explanations from the Minister, I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
Ordered, That further consideration be now adjourned. —(Tom Pursglove.)
National Insurance Contributions Bill (First sitting)
Tuesday 22nd June 2021
(3 years, 5 months ago)
Public Bill CommitteesRead Full debate National Insurance Contributions Act 2022 View all National Insurance Contributions Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 22 June 2021 - (22 Jun 2021)
The Committee divided: - Ayes: 1 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 1 / Noes: 10 - Question accordingly negatived.
The Chair
Before we begin, I have a few preliminary points. Please switch electronic devices to silent. Tea and coffee are not allowed in the sitting. I remind Members that we have moved to 1 metre social distancing in general Committees, in line with the Chamber and Westminster Hall, so Members should continue to sit only in places that are clearly marked. I can see that you all are—thank you. I will suspend the sitting if I think anyone is in breach of social distancing guidelines. Mr Speaker has asked that Members wear face coverings in Committee except when they are speaking, unless of course they are exempt. The Hansard reporters would be grateful if Members could email any electronic copies of their speaking notes to hansardnotes@parliament.uk.
Ordered,
That—
1. the Committee shall (in addition to its first meeting at 9.25 am on Tuesday 22 June) meet at 2.00 pm on Tuesday 22 June;
2. the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Tuesday 22 June.—(Jesse Norman.)
Resolved,
That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(Jesse Norman.)
The Chair
Copies of written evidence that the Committee receives will be circulated to the Committee by email.
We now begin our line-by-line consideration of the Bill. The selection list for today’s sitting is available in the room. It shows how the selected amendments have been grouped together for debate. The selection and grouping list shows the order of debates. Decisions on each amendment are taken when we come to the clause that the amendment affects. Decisions on new clauses will be taken once we have been through all the clauses of the Bill as introduced.
Clause 1
Zero-rate contributions for employees at freeport tax sites: Great Britain
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss new clause 5—Freeport zero-rate relief: review of incomes and wages—
(1) The Government must conduct a review of the impact of sections 1 to 5 of this Act on income and wage ranges at all freeport tax sites.
(2) The review must assess—
(a) the average income and wage ranges of jobs in respect of which employers have claimed the secondary Class 1 relief introduced by section 1 of this Act; and
(b) for each freeport, how the incomes provided by these jobs compare to average median incomes across the local authority areas in which the freeport is located.
(3) The review must be commenced by 31 October 2022.
(4) The review must be published and laid before Parliament by 31 January 2023.
This new clause will require the Government to evaluate the wages of the jobs created as a result of the employers’ relief introduced by this Bill.
The Financial Secretary to the Treasury (Jesse Norman)
It is a great pleasure to be able to address these important clauses in a small but important Bill, and I thank all colleagues for joining us today.
Part I of the Social Security Contributions and Benefits Act 1992 stipulates that secondary class 1 national insurance contributions be calculated at a standard rate of 13.8% on earnings above the secondary threshold—currently about £8,700 a year. Part I also provides for other rates of secondary class 1 NICs—the zero rate for 21-year-olds or apprentices under 25, for example—that can be applied up to an upper secondary threshold.
Clause 1 introduces a new zero rate of secondary class 1 national insurance contributions on earnings up to a new upper secondary threshold in Great Britain. The standard rate of NICs, 13.8%, in most cases will apply above that threshold. The threshold will be set through regulations at £25,000 per annum.
Clause 1 provides employers that meet the conditions set out in clause 2, which we will shortly debate, with access to this relief where they have a secondary class 1 liability. An employer may qualify for various rates of secondary national insurance contributions. Clause 1 therefore stipulates that an employer must elect to apply the freeport relief if they wish to utilise this zero rate. By applying the rate, their status as a secondary contributor remains even if, as a result of this relief, an employer has no secondary class 1 liability. The relief will be administered through pay-as-you-earn and real-time information returns by Her Majesty’s Revenue and Customs. This approach has been welcomed by stakeholders.
New clause 5, if I may say so, recapitulates much of what the Government have already done. I remind the Committee that the Government have already published a decision-making note that clearly sets out how sustainable economic growth and regeneration are prioritised in the freeports assessment process. We will also be publishing costings of the freeports programme at the next fiscal event, in line with conventional practice. Those costings will undergo the usual scrutiny from the Office for Budget Responsibility.
It is also important to say that the Government are already taking the necessary steps to gather the information required to review the programme effectively. Before funding is allocated and tax sites are designated, each freeport will need to pass a business case process, which includes assessing how effectively tax sites can be monitored. Freeports will need to collect data on reliefs and their realised outcomes, which will include monitoring the effectiveness of tax reliefs, and the Government will continue to publish information relating to HMRC through its annual report and accounts. It is important to note that the Government have already committed to keeping this measure under review as new information becomes available. The publicly available tax information and impact note also commits the Government to keeping the scheme under review through communication with taxpayers’ groups.
The Government reject the proposal in new clause 5 because a report that focused exclusively on just one aspect of the policy would not do justice, however valuable its focus, to the whole, which includes other important aspects over and above wages, such as changes to customs rules, Government infrastructure spending and planning reform. I therefore ask that the Committee reject new clause 5.
I am sure that Committee members will not wish to delay the investment associated with clause 1, which introduces a zero rate of secondary class 1 national insurance contributions that employers can apply when they meet the conditions specified in clause 2. For that reason, and with the reassurances that I have given, I urge the Committee to agree that clause 1 stand part of the Bill.
James Murray (Ealing North) (Lab/Co-op)
Thank you, Ms Nokes, for the opportunity to speak on behalf of the Opposition. We begin by considering the clauses that relate to freeports. In March 2021, the Chancellor announced that eight freeports would be created in England—East Midlands Airport, Felixstowe-Harwich, Humber, Liverpool City Region, Plymouth and South Devon, Solent, Thames, and Teesside—and we understand that discussions continue around further freeports in Scotland, Wales and Northern Ireland.
Clause 1 will introduce a new secondary class 1 national insurance contributions relief for freeport employers. It provides for that relief to apply when secondary class 1 NICs are due from an employer other than a public authority when the conditions set out in clause 2 are met. Clause 1(2)(a) states that the rate for the relief is 0% and applies up to the upper secondary threshold; subsection (2)(b) states that for earnings above the upper secondary threshold, the secondary percentage—currently 13.8%—applies. Subsection (3) states that the upper secondary threshold, or the prescribed equivalent, will be set by statutory instrument under a power established by clause 8.
As the Financial Secretary may remember, we discussed on Second Reading the fact that the upper secondary threshold for freeport employees would, according to a policy paper published by the Government on 12 May, be set at £25,000 for 2022-23. As I pointed out at the time:
“That is substantially less than the equivalent thresholds for employers’ relief for under-21s and apprentices, which is £50,270 in 2021-22…this means that employers do not need to pay any NICs for under-21s and apprentices earning up to just over £50,000 a year, but they will have to pay contributions for freeport employees next year if they earn more than £25,000.”—[Official Report, 4 June 2021; Vol. 697, c. 49.]
In response to my question about the Government’s rationale for picking the figure of £25,000 for employees of freeports, the Exchequer Secretary said:
“The answer is that, unlike other NICs reliefs that are available to employers nationally and generally are targeted at specific groups of employees with particular characteristics, businesses operating in a freeport are likely to be able to claim the relief on almost all of their new hires. To balance generosity of support with the need to consider the public finances, this broader eligibility has been balanced by limiting the amount of salary that can be relieved. We have chosen to set this limit at £25,000 per annum, which is approximately the average salary in the UK.”—[Official Report, 14 June 2021; Vol. 697, c. 69.]
I would like to take this opportunity to understand the Exchequer Secretary’s response a bit more. I would therefore be grateful if the Financial Secretary let us know the specific source of the data that says that £25,000 is approximately the average salary in the UK. I ask this because according to the Office for National Statistics the median income in all the local authority areas where the eight freeport sites are located is greater than £25,000, with the figures ranging from £25,200 in Kingston upon Hull, within the Humber freeport, to £33,200 in Thurrock, within the Thames freeport.
We would like to take this opportunity to press further on this point, which is why we have tabled new clause 5. We want to understand if the Government are concerned that making the threshold for the NIC relief in freeports £25,000 might create an incentive for employers to create posts paid less than £25,000, rather than higher paid posts, which could in turn create the risk of salaries being bunched below the threshold, thereby undermining salary progression.
New clause 5 requires the Government to conduct a review, after this policy has been in place for six months, to assess the average income and wage range of jobs in respect of which employers have claimed the secondary class 1 relief introduced by clause 1, and for each freeport to assess how incomes provided by these jobs compare with the average median income across the local authority area in which the freeport is located.
I would be grateful if, for clarity, the Minister let us know the precise statistical source of the figure of £25,000 for the average UK salary. Will the Government support the review we propose, which would assess the average incomes of jobs created by this employers’ relief? If not, does he think that setting the threshold for the relief at £25,000 risks creating an incentive for employers to create posts that are paid less—even just less—than £25,000, rather than higher paid positions?
Jesse Norman
I thank the hon. Gentleman for his question. I saw that he raised the issue on Second Reading and, if I may say so, it potentially reflects a slight misunderstanding.
As the Exchequer Secretary said, the decision has been taken to set the rate at £25,000, roughly the national average earnings. That is different from median earnings. I do not think it is right to suggest that the threshold has been set at a level that is approximate, because it is designed to be comprehensible and readily understandable. To make it more precise might affect that.
The overall generosity of the package of support that is being given to freeports, and the range of potential employees to which this applies, is very creditable to the Government, because it shows the intensity and strength of the intent to make the freeports policy work. This is an important part of that policy, but only one part of a set of policies that are designed to increase the attractiveness of freeports for growth and for employment as well.
The way in which this measure has been structured is focused towards longer-term employment, as the relief runs for three years, and therefore it allows the employment rights associated with longer-term employment to be vested in those employees. From that point of view, it reflects a commitment by the Government to create high-quality and stable longer-term employment.
Question put and agreed to.
Clause 1 accordingly ordered to stand part of the Bill.
Clause 2
Freeport conditions
Richard Thomson (Gordon) (SNP)
I beg to move amendment 1, in clause 2, page 2, line 26, at end insert—
“(e) the employer pays, as a minimum, a living wage, to all staff it employs, and
(f) the businesses operating in the freeport in which the employer has business premises have collectively—
(i) put in place a strategy setting out how the freeport will contribute to the target for net UK emissions of greenhouse gases in 2050 as set out in the Climate Change Act 2008 as amended by the Climate Change Act (2050 Target Amendment) Order 2019,
(ii) put in place a strategy setting out how the businesses will ensure that no goods passing through the freeport are the products of slave labour, and
(iii) carried out an environmental impact assessment of the operation of the freeport.”
This amendment provides conditions to businesses in freeports. These include a strategy on how the freeport will contribute to the target for net UK greenhouse gases emissions, a strategy ensuring no goods passing through the freeport are products of slave labour, and an environmental impact assessment of the freeport.
The Chair
With this it will be convenient to discuss the following:
Amendment 2, in clause 2, page 3, line 11, at end insert—
“(4A) For the purposes of subsection (1)(e), the living wage per hour—
(a) for the financial year 2020-21 is—
(i) £9.30 outside of London, and
(ii) £10.85 inside London; and
(b) for each year after the financial year 2020-21 is to be determined by the Living Wage Foundation.”
This amendment defines the living wage, payment of which is one of the conditions business would have to meet under Amendment 1.
Clause stand part.
Clause 3 stand part.
New clause 1—NIC relief for employers at freeports: review of commencement date—
(1) The Government must conduct a review of job creation in the 2021-22 financial year at each of the eight freeport tax sites.
(2) The review must assess the impact on decisions around job creation of the relief becoming available from April 2022 rather than April 2021.
(3) The review must be commenced by 30 April 2022.
(4) The review must be published and laid before Parliament by 31 July 2022.
This new clause will require the Government to assess the impact on job creation in freeports in 2021-22 as a result of NIC relief being available from April 2022 rather than April 2021.
New clause 2—NIC relief for employers at freeports: review of the conditions of eligibility—
(1) The Government must conduct a review of the conditions of eligibility for the National Insurance contributions relief introduced by section 1 of this Act.
(2) The review must take into account the number of freeport employees in 2022-23 who work at more than one freeport site and who earn less than the relevant upper secondary threshold set under the powers created by section 8.
(3) The review must consider the impact of the matter in subsection (4) on decisions by employers about job creation.
(4) The matter is the relief introduced by section 1 of this Act being available for employees who spend 60% or more of their working time in one freeport, and not for employees who spend 60% or more of their working time across more than one freeport but less than 60% in any one freeport.
(5) The review must be commenced by 30 September 2023.
(6) The review must be published and laid before Parliament by 31 December 2023.
This new clause will require the Government to evaluate the impact on job creation of the employers’ NIC relief not being available for employees who spend 60% or more of their time across more than one freeport, but less than 60% in any one freeport.
Richard Thomson
There is a pretty basic principle that lies behind this: that you shouldn’t get owt for nowt. In exchange for the substantial package of reliefs that are on offer through this Bill, we believe that businesses must offer something in return, beyond their presence and their baseline economic activity within the bounds of a freeport.
In this case that would include, through amendments 1 and 2, meeting local environmental obligations. Many freeports are built on sites that have environmental sensitivities. We believe there need to be some enhanced obligations around that. Activities in a freeport should contribute to wider environmental objectives, such as the commitments to net zero and climate targets. It is very important to protect workers’ rights, not only within the perimeter of a freeport but anywhere else that has any kind of economic relationship with the freeport. That means taking steps to actively ensure that we are preventing the exploitation of slave labour at any stage in the value chain and ensuring that a living wage, as defined, is paid to the workers in the freeport.
Those are all important objectives in policy terms and are a fair exchange for the public goods being consumed through the creation of the freeport. They are modest asks in the context of the relief being offered and are worthy of support.
James Murray
Clause 2 sets out the conditions that employers must meet to qualify for the relief created by clause 1. Those conditions require that the freeport employment must begin between 6 April 2022 and 5 April 2026; the relief will apply for three years from the first day of each eligible employee’s employment; and the employee must spend 60% or more of their employed time in a single freeport tax site at which the employer has business premises.
We have a number of points to raise with the Minister on the details of the clause. First, as I mentioned on Second Reading, it is hard to understand why the relief is conditional on employment not commencing until 6 April 2022. As the Chartered Institute of Taxation pointed out, with freeports expected to start operating in 2021, that would surely hamper freeport employers this year, and perhaps even create perverse incentives to delay the start of an employee’s work. In her response to my raising this point on Second Reading, the Exchequer Secretary said:
“The Government have been clear that this relief is only available on new hires from April 2022, and set this out in the ‘Freeports Bidding Prospectus’ published in autumn 2020. The reason why is that having a clear start date is a simple approach that will support the freeport businesses.”—[Official Report, 14 June 2021; Vol. 697, c. 70.]
I found it hard to understand that the Minister’s point. Having a clear start date may well be a simple approach, but my question was not about whether the relief should have a clear start date, but why the Government had chosen a start date in 2022, rather than in 2021 when freeports are expected to start operating. To press Ministers on that, we suggest a simple review, as set out in new clause 1, which would require the Government to conduct a review of job creation in 2021-22 at each of the eight freeport tax sites. The review must assess the impact on job creation decisions of the relief becoming available from April 2022 rather than April 2021. I would be grateful if the Minister committed to carrying out such a review. If he is not willing to, perhaps he could explain why the Chartered Institute of Taxation is wrong to say that this choice of date could hamper freeport employers this year and perhaps create perverse incentives to delay the start of an employee’s work.
Alongside the start date for the relief, we want to raise questions about clause 2(1)(d), which states that at the time the qualifying period begins, a freeport employer must reasonably expect that the earner will spend 60% or more of their employed time in a single freeport tax site in which the freeport employer must also have business premises. That means that the relief introduced by clause 1 is available for employees who spend 60% or more of their working time in one freeport, but not for employees who spend 60% or more of their working time across more than one freeport, but less than 60% in any one freeport. If an employee splits their working time between two freeport sites, the employee may not qualify as a freeport employee, which might not be what is intended.
We have therefore proposed, in new clause 2, a review of the impact of that feature of the policy design on employers’ decisions about job creation. Again, I would again be grateful if the Minister committed to carrying out such a review. If he is not willing to, perhaps he could explain why he does not think that issue is likely to arise.
Finally, I would like to ask the Minister about clause 2(1)(a), which provides that the employed earner’s employment is a new employment commencing between 6 April 2022 and 5 April 2026. As the Chartered Institute of Taxation has pointed out, it is unclear whether an employee who is TUPE transferred from an existing employer to a new freeport business on or after 6 April 2022 qualifies for this relief.
Although clause 2(2) would prevent an employee from qualifying if the two businesses were connected, that would not always be the case—for instance, when a freeport business buys the trade of an unconnected business and commences that newly acquired trade at a freeport site. I would be grateful if the Minister could explain whether, in such a case, we can assume that the freeport business would be a “new” employer for the purposes of this relief, while recognising, of course, that its “new” employees would have continuity of employment for employment rights purposes.
Jesse Norman
I am grateful to the hon. Members for Gordon and for Ealing North for their contributions. We have discussed already how clause 1 introduces a new rate of secondary class 1 national insurance contributions. If I may, I would like now to explain the freeport conditions that enable a freeport employer to qualify for the relief. That is set out in clause 2, and I will then discuss clause 3 and the amendments and new clauses that have been tabled.
Clause 2 has the following effect. It sets the conditions that an employment must meet to qualify for the freeport employer’s NICs relief. A freeport employer is an employer that has a business premises in the freeport tax site—business premises being defined as building or structure out of which the business is carried out. A freeport employee is an employee of a freeport employer who spends 60% of their working time in a freeport tax site and has not been employed by that employer in the previous 24 months. A freeport employer can apply the zero rate for 36 months on new hires from April 2022. The earnings of freeport employees hired before April 2026 will qualify for the zero rate for the full 36 months.
Clause 3 provides the Treasury with the power to legislate for the finer detail of the measure in secondary legislation. It provides a power to add, to amend and to remove certain conditions. The practical effect of that is to allow the Government to react to the economic realities of today, and also to give a degree of future-proofing to the measure against unintended policy outcomes.
The hon. Member for Ealing North raised the question of the starting date in 2022, and I understand that he is repeating the concern that he raised on Second Reading. It is adequately and properly met by the response that the Exchequer Secretary gave. It is a hypothetical matter as to when these freeports will begin to operate. We expect that to be soon, and we are pressing forward, but there are number of further steps to be undertaken before a freeport tax site can be designated and a freeport can go into operation. It is useful therefore to have a date certain for the operation of the policy.
The hon. Gentleman asked whether the 60% rule discriminates against people who work flexibly. It is important to understand that this is a place-based policy—that is to say, it is a policy designed to focus and operate from a very specific location. To meet the objective of encouraging new investment and economic activity, and to maintain the focus and the targeting of the policy overall, it is important to restrict reliefs to those whose jobs are based in a freeport tax site. The Government will do that by making it a requirement that eligible employees spend at least 60% of their working time in a tax site.
Opening up that relief to employees who did not meet that requirement would undermine the policy aim of supporting employment in the freeport area, because it would mean that employers could effectively claim relief on employees carrying out work outside a freeport area—indeed, in an area that may not be related to the freeport at all.
The hon. Gentleman raised the question about TUPE-ed employments. These are not regarded as new employments, and the employment is transferred but is not regarded as new, and therefore the employee would not be eligible for the reliefs offered in the Bill.
I turn now to the questions raised by the Scottish National party in the speech made by the hon. Member for Gordon. It is important to note that the SNP’s amendment would place additional eligibility criteria—with respect to employment rights, equalities and the environment —in the Bill. Of course, those would add complexity to what is a well-established and rapidly moving process, and they would create potential delay. For that reason, it is not an attractive amendment.
The Government are committed to reducing carbon emissions, which is why this country was the first major economy to implement a legally binding net zero greenhouse gas emissions target by 2050. Of course, it remains open to the Scottish Government to impose higher standards if they wish, either on freeports or on other ports that exist in Scotland, since environmental policy is a devolved area. The hon. Gentleman may want to take up his concern with the Scottish Government if he wishes to see higher standards in ports in Scotland. From the Government’s standpoint, we are also committed to supporting those in employment, which is why we introduced the national living wage in 2016. This month, workers have seen a pay increase to £8.91 an hour, which is a 2.2% pay rise.
The hon. Gentleman raises an important point about ensuring that goods passing through freeports should in no way be the products of slave labour. This is a global problem, and employers and freeports will need to meet the same high regulatory standards on slave labour that other businesses in the UK meet. That is to say that they must abide by the landmark transparency and supply chain provision in the Modern Slavery Act 2015, by which the UK became the first country in the world to require businesses to report on the steps they have taken to tackle modern slavery in their operations and global supply chains. With that said, I hope hon. Members will withdraw their new clauses and amendments.
Richard Thomson
I thank the Minister for his response. One of the things that we hear most often is that any amendment that may be desirable may add complexity, which seems to be a standard phrase that gets thrown in whenever the Government do not wish to proceed with something and cannot think of a better argument.
On the basis of what I have heard, I am unpersuaded that the suite of benefits and reliefs that are offered should make it easier to help achieve those objectives. I take what the Minister said about the obligations that already exist under the Modern Slavery Act 2015, but I still think that more can be done to embed the expectations that we have, and not just in Scotland. I take the Minister’s point that the Scottish Government have a certain latitude in this area, but the point is to ensure that the provision applies all over and that there is some kind of equality. On that basis, I will press the amendment to a vote.
Question put, That the amendment be made.
Jesse Norman
If I may, I will explain a little of the background to clause 4. In addition to the powers taken in clause 3 to amend freeport conditions if the relief is found to be subject to abuse, clause 4 excludes employers that arrange their affairs with the aim of benefiting from the relief where that arrangement is contrary to the policy intent. Clause 4 works by removing eligibility for the relief if the conditions set out in clause 2 are met only as a result of an avoidance arrangement.
The Government are aware that the incentives of the freeport package potentially lend themselves to businesses taking steps to organise their affairs so that they can benefit from the relief; that is the design of the policy. Therefore, the Government have taken a similar approach to that in section 14 of the Finance Act 2021, which exempts employers if their arrangement is contrary to the policy intent of the relief and specifically in relation to the avoidance of tax.
An example of where the Government would expect HMRC to reject a claim for this relief would be where an employer structures their employment contracts so that a workforce can easily be dismissed after three years with the sole purpose of hiring new staff so that they can benefit from another three years of relief, or if an employer were to fire their employees and rehire the exact same posts with new employees.
The Government want the freeports to thrive, to boost local investment and to be a hotbed of innovation. Clause 4 provides an invaluable backstop and gives HMRC the ability to recover any relief that has been claimed as a result of contrived arrangements. I urge that clause 4 stand part of the Bill.
James Murray
As we have heard, clause 4 states that the relief for freeport employers cannot be claimed if an avoidance arrangement has been used, and it defines what is meant by an avoidance arrangement. We welcome any steps to prevent employers from taking advantage of the relief in cases in which avoidance arrangements are used. As this clause sets out, avoidance arrangements are those that are, or include steps that are
“contrived, abnormal or lacking a genuine commercial purpose, or”
that circumvent
“the intended limits of the application of section 1 or otherwise”
exploit
“shortcomings in that section or in provision made in or under sections 2 and 3.”
I would be grateful if the Minister could confirm for us what extra resource, if any, has been made available to HMRC to ensure that it can identify and take action against employers in a freeport who have used avoidance arrangements. I would also like to understand what the Bill suggests about wider access to tax reliefs that arise from avoidance arrangements. I would be grateful if the Minister could offer some clarity on the wider situation.
This clause makes it clear that the tax relief in clause 1
“does not apply if it would otherwise apply only as a result of avoidance arrangements.”
Perhaps the Minister could help me to understand this by explaining whether, generally, companies are still able to claim tax reliefs if they arise only from avoidance arrangements—that is to say, arrangements that are contrived, abnormal or lacking a genuine commercial purpose. Although we of course support this relief being withheld in cases in which it can apply only as a result of avoidance arrangements, I would appreciate an explanation from the Minister about why this specific measure is needed and why the relief would not be withheld by existing provisions in law if it was deemed to have arisen from avoidance arrangements.
Jesse Norman
I thank the hon. Gentleman for his questions. Of course, HMRC is taking a close interest in freeports and has been closely involved in the policy design in order to minimise any potential for avoidance and any other failure to target the policy as we would desire. It is well staffed to address all the concerns that are raised. Of course, its staffing is flexible and also is something that reflects periodic conversations with the Treasury during the spending review processes and otherwise in order to ensure that it is as effective as possible—and it is highly effective, as is shown by the fact that the tax gap in this country is now lower than it ever has been. It is significantly lower than it was in 2005, for example—it is something like 40% lower than it was under that Government. That important achievement puts things into perspective.
Jesse Norman
Clause 5 confirms the Government’s commitment to provide a freeport NICs relief in Northern Ireland. It gives the Treasury the power to legislate for the detail of the freeport NICs relief in Northern Ireland in secondary legislation. The power is limited in so far as the relief must be similar to or correspond to that available in Great Britain.
In Northern Ireland, the specific design of the relief will have to comply with European Union rules on the provision of state aid, due to the requirements of the Northern Ireland protocol. It will be developed and agreed through a process of engagement with the Northern Ireland Executive on the detail of the wider freeports offer in Northern Ireland.
This Bill legislates for a power to allow the Government to set out the detail of the employer NICs relief in Northern Ireland in secondary legislation once engagement with the Northern Ireland Executive is complete. These regulations will be laid at the earliest possible opportunity once negotiations with the Northern Ireland Executive have given a clear indication of consensus on the tax offer.
Given the timing of the Bill, I trust Members will see that this approach is sensible, and ensures all stakeholders are fully engaged. I commend the clause to the Committee.
James Murray
Clause 5 gives the Treasury a regulation-making power to provide for a freeport secondary class 1 NICs relief in Northern Ireland. On Second Reading, the Minister assured us that, although the measures in clauses 1 to 4 relate to Great Britain, it is the Government’s intention to legislate for this relief in Northern Ireland as soon as practicable. He drew attention to the fact the Bill provides the Government with the power to set out the detail of employer NIC relief in Northern Ireland in secondary legislation once engagement with the Northern Ireland Executive is complete.
I note that the House of Commons International Trade Committee’s recent report on UK freeports, published on 20 April, discussed the issue of freeports in Northern Ireland, and in particular their relationships with the Northern Ireland protocol. It quotes Professor Catherine Barnard of the University of Cambridge, who said:
“under the Northern Ireland Protocol the EU state aid regime applies, certainly to Northern Ireland where there is an effect on trade between Northern Ireland and the rest of the EU. You should also bear in mind that the protocol is probably wide enough to catch any freeport legislation that applies throughout the United Kingdom.”
The Chief Secretary to the Treasury acknowledged to the Committee that the freeport offer would have to be adapted to comply with the UK’s obligations under the Northern Ireland protocol. Acknowledging that, the Committee’s report concluded that it is clear the Northern Ireland protocol will impact the terms under which a freeport can be established in Northern Ireland. It recommended that the Government should set out in their response to the report their view on how the freeports model will need to be adapted in Northern Ireland to comply with the terms of the protocol. I would be grateful if the Minister could give us an update on the Treasury’s thinking in that regard.
I would also like to clarify a comment in the memorandum from the Treasury to the Delegated Powers and Regulatory Reform Committee on this Bill. On clause 5, the memorandum says:
“The Government’s intention is that the employer NICs relief for Freeports employers is in place by 6 April 2022 throughout the UK.”
I would be grateful if the Minister could confirm whether that means it is the Government’s intention, as set out in the memorandum, for a freeport to be established in all four nations of the UK by 6 April 2022.
Jesse Norman
I thank the hon. Gentleman for his questions. He asked me to update the Committee on the detail of the discussions with the Northern Ireland Executive on a freeport and noted the comments made by the Select Committee. I am afraid I am not in a position to do that. These things are subject to current discussion and negotiation. It is a matter of some complexity and I do not think it would be appropriate to do so. I assure him that once matters have reached a conclusion and a consensus, Parliament will of course be given a full picture of what has taken place and I am sure colleagues will take a great interest.
He also asked a question about timing. For the reasons I have indicated, I do not think it would be prudent to specify a time by which a particular freeport, either one in process at the moment in England or one in the devolved Administrations, will be up and running. That is something for the Governments concerned and for the freeport operators and there will of course be processes of further designation that will need to be gone through. I assure him that it is certainly the UK Government’s intention that this should be done as rapidly and effectively as possible, across the whole of the UK.
Question put and agreed to.
Clause 5 accordingly ordered to stand part of the Bill
Clause 6
Zero-rate contributions for armed forces veterans
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss the following:
Clause 7 stand part.
New clause 3—NIC relief for employers of veterans: review of the tax year of relief claims—
(1) The Government must conduct a review of how many veterans have been employed in 2021-22 in jobs for which employers have accessed the National Insurance contributions relief provided for under section 6 of this Act.
(2) The review must assess the impact on decisions around job creation of the requirement that the relief must be claimed retrospectively for 2021-22 rather than being available in real time.
(3) The review must be commenced by 30 April 2022.
(4) The review must be published and laid before Parliament by 31 July 2022.
This new clause would assess the impact of NIC relief for employers of veterans being claimable retrospectively for 2021-22, rather than in real-time.
New clause 4—NIC relief for employers of veterans: review of the period of NIC relief—
(1) The Government must conduct a review of how many veterans have been employed in jobs for which employers have accessed the National Insurance contributions relief provided for under section 6 of this Act.
(2) The review must assess the impact on decisions about the creation of jobs for veterans of the relief being available for earnings paid over a one-year period rather than a three-year period.
(3) A review must be conducted for each of the financial years 2021-22, 2022-23, and 2023-24.
(4) Each review under subsection (3) must commence within 30 days of the end of the relevant financial year.
(5) Each review under subsection (3) must be published and laid before Parliament within three months of its commencement.
This new clause will require the Government to evaluate the impact of the NIC relief for employers of veterans being available only for one year rather than three years.
Jesse Norman
We have considered the clauses concerning the zero-rate contributions for employees at freeport sites. I turn now to the second aspect of the Bill—the clauses on zero-rate contributions for armed forces veterans, starting with clause 6.
As the Committee will recall, the Government made a manifesto commitment to support ex-service personnel in their attempts to work to secure stable and fulfilling employment. Clauses 6 and 7 honour that commitment and provide employers with a zero rate of national insurance contributions on the earnings of qualifying veterans.
The Chancellor announced that policy at the spring Budget in 2020 and launched a policy consultation shortly after. The Government received 37 written responses from a variety of stakeholders and a response to that consultation was published on 11 January 2021. That response document outlined the final policy design. On 11 January 2021, the Government also published draft clauses for a technical consultation, which closed on 8 March 2021. Thus, the measure has been fully and effectively consulted upon, tested with stakeholders and debated by Parliament. It should be seen in that light.
Clause 6 introduces a zero rate of secondary class 1 NICs when the conditions in clause 7 are met. The relief can be applied on earnings up to the upper secondary threshold. Earnings above that threshold will be liable to the standard rates of NICs.
The relief will be available initially for three years. For the tax years 2022-23 and 2023-24, employers will have immediate access to the relief. For earnings in the 2021-22 tax year, employers will be able to claim the relief from 2022 onwards. The Government have sought to introduce this policy as quickly as possible, but practical and, in particular, IT considerations have meant that claims for earnings in the 2021-22 tax year will need to be at year end. That does not affect the amount of relief that an employer is able to receive.
The Government are keen to understand the effectiveness of the relief and will review the impact before deciding whether to extend it. Clause 6 provides the Treasury with the power to add additional years.
Clause 7 sets out the conditions that need to be met to allow an employer of a veteran to qualify for the zero rate that clause 6 provides. To qualify as a veteran for the relief, an individual needs to have completed at least one day of basic training in the regular forces. An employer can claim the relief for the first 12 months of a veteran’s first civilian employment since leaving the armed forces. The 12-month period starts on the first day of the veteran’s first day of civilian employment and ends 12 months later. Any employment in that period will qualify for this relief, which means that a veteran will not use up access to this relief if they take on a temporary role immediately after leaving the armed forces.
The relief will be available on the earnings of qualifying veterans from April 2021. Clause 7 also provides that a veteran can commence their first civilian employment before April 2021 and still qualify for the remaining period. Therefore, the 12-month period will begin on the first day the veteran took up their first employment and the relief will be made available only from 6 April 2021 for the remainder of that 12-month period.
Opposition new clauses 3 and 4 ask the Government to report on the impact of claiming the relief retrospectively and the impact of providing the relief for one year, rather than three. I shall explain why they are unnecessary. First, most of these issues were considered during the detailed consultation, which I have described. In addition, the Government have already committed to reviewing the measures and will, of course, be transparent about their expected impact. The policy costing for the measure and the underlying analysis were signed off and certified by the independent Office for Budget Responsibility, and the methodology was set out in the Budget policy costing document. As I say, the Government are committed to keeping the measure under review as new information becomes available. As part of the review process, HMRC and HM Treasury will speak to stakeholders to gauge their views on how the policy is operating.
Clause 6 will support veterans and help them to find stable and fulfilling employment, and it will provide employers with up to £5,500 in savings. I hope the Committee will agree to clauses 6 and 7 standing part of the Bill, and that the new clauses will not be pressed.
James Murray
Clauses 6 and 7 introduce an important relief, designed to help service personnel leaving the armed forces to get back into work. As I made clear on Second Reading, we believe that this is a vital issue. Veterans deserve the Government’s full support as they seek civilian employment after their service to our country. It is crucial to make sure that all veterans get the support they need.
Clause 6 sets out the detail of the relief. It provides for a 0% rate of secondary class 1 national insurance contributions up to an upper secondary threshold for the tax years 2022-23 and 2023-24. Earnings above the upper secondary threshold will be liable to secondary class 1 NICs at the secondary percentage, currently 13.8%. It also specifies that the relief is available for the 2021-22 tax year retrospectively. In practice, that means that employers need to pay secondary class 1 NICs as if the relief did not apply; then, from April 2022, they can claim the relief retrospectively for the earnings in 2021-22. The relief described by clause 6 applies if the veteran conditions in clause 7 are met. The conditions include that to qualify for the relief the earner is required to have served for at least one day in the regular forces, and that the relief is available for one year, beginning on the earner’s first day of civilian employment after leaving the armed forces.
On Second Reading, I asked Ministers to explain why the employer’s relief for veterans is for 12 months, which is much less than the relief for employers in freeports, which is 36 months. In her response, the Exchequer Secretary said:
“The answer is that the relief provides employers with up to £5,500 in savings per veteran that they employ. The aim of that policy is to support veterans’ transition into civilian life through encouraging employers to hire veterans.”—[Official Report, 14 June 2021; Vol. 697, c. 70.]
That did not address my question about why the Government had chosen to make the relief for veterans’ employers available for one year, rather than any longer; in particular, why not for three years, in line with the relief for freeport employers, which the Bill also introduces. That is why we wanted to raise the matter again, and why we tabled new clause 4, to address the impact of the Government’s decision.
New clause 4 would require the Government to conduct a review of how many veterans had been employed in jobs for which employers accessed the national insurance contributions relief provided under clause 6. The review would have to assess the impact on decisions on the creation of jobs for veterans of the relief being available for earnings paid over a one-year period rather than a three-year period. I would be grateful if the Minister agreed to undertake the review. If he does not, perhaps he will explain in greater detail why the Government have chosen a one-year period for veterans’ employers, rather than the three years for freeport employers.
New clause 3 is about enabling us to understand the impact of the Government’s reluctance to make the relief claimable in real time for 2021-22. As the Chartered Institute of Taxation sets out, it seems that the policy intention is that the relief will be available from 6 April 2021, although employers will need to pay the secondary class 1 NICs on the earnings of eligible veterans for the 2021-22 tax year, then claim them back retrospectively in April 2022. From the 2022-23 tax year onward, employers will be able to claim the relief in real time through their PAYE declarations.
The Chartered Institute of Taxation reasonably questioned why employers cannot self-serve the relief for 2021-22, once the legislation has been passed, especially given the challenging circumstances of the pandemic and the cash-flow implications. The institute asks whether HMRC could be permitted to exercise its discretion and to permit employers to make real-time claims for 2021-22 where their payroll software provides for suitable identification of eligible veterans.
Jesse Norman
I thank the hon. Gentleman for his questions. He repeated the question from Second Reading of why the measure is for one year, contrasting it with the freeports measures, which are for three years. The Exchequer Secretary was absolutely right, but it is important for me to add more colour.
The freeports measure is set at a lower upper secondary threshold, but for a longer period, because the goal is to bring people into an environment that has already been greatly supported by taxpayers, but to create circumstances in which they can have long-term secure employment, in particular with all the employment rights that come with more durable employment. The NICs relief for veterans is at a higher level for a shorter period, because the goal is to support a very specific process of transition, which veterans have as they come out of the armed forces.
Many people in the room have constituencies in which there are veterans or serving armed forces personnel, so they will appreciate the importance of the measure. Veterans are extremely skilled individuals who have extraordinary life experience, but there is often that process of transition. Therefore, the more effective approach is to provide more support for a shorter period to assist that transition in as flexible a way as possible.
Liz Twist (Blaydon) (Lab)
I understand the concept of the transition, but does the Minister not share my concern that it might go against the grain of what he is trying to do if we were to find that, after a period of one year of having the national insurance relief, people were out of employment? The proposal to look over a longer period would be beneficial to veterans in maintaining long-term employment.
Jesse Norman
I fully understand the concern of the hon. Lady, and precisely because the Government have been concerned about transition, we have introduced the relief. If it were the case that veterans still had a serious problem of finding secure and stable employment, of course that would be a matter that the Government would wish to reflect on and consider. I thank her for raising it.
To go to the second point raised by the hon. Member for Ealing North, he asked about the timing and the issues of real-time payments that the Bill contemplates. I understand the concern, in particular at this moment of pandemic when the Government are seeking to protect and support the cash flow of businesses and have done so across a vast number of them, across the whole of the United Kingdom, in many different forms. The Committee is aware of that.
The hon. Gentleman asked if we would look at that. Of course, I am happy to consider the matter further and to ask HMRC to consider it, but as he will recall, the matter has been given extensive consultation and internal discussion, and the IT and other problems that I described are not ones that can be wished away.
Sarah Owen (Luton North) (Lab)
When it comes to veterans’ national insurance contributions relief, I really feel that it needs to be for much longer than a year, for some of the reasons that the Minister has just highlighted. The cuts to 10,000 armed forces personnel come at a time when people are losing their jobs due to the economic pressures from the pandemic, and it seems very odd to say that we are looking at a long-term solution yet giving armed forces personnel the security of only one year.
Jesse Norman
I thank the hon. Lady for her question. I would repeat the points that I made earlier, which is to say that this is about managing a process of transition. The process of transition is one that has a beginning and an end. The key thing is to offer genuine support at a moment when a veteran needs it as they come out of the armed forces and go into employment, and to design that flexibly. That is what we have done. It has been extensively consulted on throughout a process with a series of stages, which have taken place during the pandemic and in which colleagues and wider stakeholders have been well sighted. It reflects the shared and calibrated understanding, but of course we recognise the concern that colleagues have raised, and we will continue to reflect on this policy, as we will on other tax policies.
Jesse Norman
No, I think we have had quite enough discussion of this topic. If the hon. Lady is going to raise a new point, of course I am happy to take the question.
Mrs Lewell-Buck
I am. The Minister says that he is confident about the argument he is making, and that the Government believe they are on the right track. With these new clauses, all the Opposition are asking the Government to do is evaluate and assess the decisions that they have made. Why will the Minister not do that, if he is confident about what they are doing?
Jesse Norman
As I have explained, we already have in place processes of evaluation and assessment. We will be following them, and this reflects an extensive process. It is lovely to see the Labour party waking up at last after its long slumbers, but the question that the hon. Lady raises is not, in fact, a new question; it is a reiteration of the same question, so I am going to stick with the answers I have already given.
Question put and agreed to.
Clause 6 accordingly ordered to stand part of the Bill.
Clause 7 ordered to stand part of the Bill.
Clause 8
Upper secondary threshold for earnings
Question proposed, That the clause stand part of the Bill.
Jesse Norman
I do apologise. We wait in expectancy and hope.
Clause 8 contains a regulation that would allow the Treasury to set for every tax year a freeport upper secondary threshold and a veterans upper secondary threshold over which the secondary percentage, rather than the zero secondary percentage, would apply. Different upper secondary thresholds may be set for each measure. The freeports bidding prospectus confirmed that the freeports UST would be set at £25,000 for the 2022-23 tax year. The veterans consultation document confirmed that the veterans UST would be £50,270 for the 2021-22 tax year.
On Second Reading, a question was asked about the freeport UST being lower than that for veterans. We have touched on it already, but let me come back to it. Unlike other NICs reliefs that are available to employers generally, businesses operating in a freeport are likely to be able to claim the refund for almost all their new hires. That is the basis on which the upper secondary threshold has been set, in the context of the wider generosity that has been given. Employers will still be able to claim up to approximately £6,500 of relief on the salaries of employees earning more than that. The clause also provides that regulations may specify that the veterans UST is set retrospectively, and that is for reasons that we have described and discussed.
I turn now to clause 9, which contains a consequential amendment in relation to the apprentice levy that is calculated by reference to employers’ annual pay bill. It amends section 100 of the Finance Act 2016 to ensure that earnings that are liable for the freeport and veterans zero rate of secondary class 1 NICs are still considered when calculating an employer’s annual pay bill. This approach is consistent with other employees’ NICs reliefs, such as the under-21 and under-23 apprentice reliefs.
James Murray
Clauses 8 and 9, which were discussed with earlier clauses, allow the Treasury to set an upper secondary threshold for secondary class 1 NICs specifically in relation to armed forces veterans and freeport earners every tax year. The Bill will therefore allow different thresholds to be set for veterans and freeport employees, and for those thresholds to be different from the thresholds that apply to under-21s and apprentices.
We welcome the fact that the Minister confirmed on Second Reading that the upper secondary threshold for veterans will be £50,270 in a veteran’s first full year of civilian employment. After the Minister’s explanation, however, I remain unconvinced by his argument for setting the threshold for employers in freeports below the average wage in freeport areas, as we discussed at length during debate on earlier clauses. If the Minister has had time to think further about his argument, I would welcome further explanation in his response. If not, I will leave my remarks there.
Jesse Norman
No, I have nothing to add. We have already discussed this at some length.
Question put and agreed to.
Clause 8 accordingly ordered to stand part of the Bill.
Clause 9 ordered to stand part of the Bill.
Clause 10
Treatment of self-isolation support scheme payments
Question proposed, That the clause stand part of the Bill.
Jesse Norman
It may help the Committee if I start by explaining some of the background to clause 10. We are making good progress, and we move now to the treatment of self-isolation support scheme payments in respect of contributions paid by the self-employed.
In response to the coronavirus pandemic, the Government announced last September the launch of a £500 support payment in England for low-income individuals who had been told to self-isolate but who could not work from home and would lose income as a result. The Scottish and Welsh Governments announced similar schemes shortly after that. To ensure that those payments, which are provided by local authorities, would not be subject to employee and employer class 1 and class 1A NICs, the Government introduced secondary legislation to exempt payments under the support schemes from employee and employer class 1 and class 1A NICs.
Clause 10 is intended to extend that exemption to the self-employed and retrospectively exempts Test and Trace support payments from class 2 and class 4 NICs for the 2020-21 tax year. The clause also enables the Government to ensure, through regulations, that future Test and Trace support payments will not be included in profits liable to class 2 and class 4 NICs.
James Murray
Clause 10 provides a national insurance contributions exemption for payments made under a self-isolation support scheme. That ensures that they are not taken into account for the purposes of computing profits liable to class 4 NICs or for the purposes of class 2 NICs.
As I set out on Second Reading, we welcome this exemption from national insurance contributions for payments made under a self-isolation support scheme. It is crucial that people who need support to self-isolate receive it, so we welcome any steps that make the system for self-isolation payments more effective and subject to less administrative burden.
The Minister may recall that on Second Reading I asked why the exemption for class 2 and class 4 contributions was not implemented earlier, in line with the exemption for class 1 contributions. In response, his colleague the Exchequer Secretary explained that
“class 1 NICs exemptions were made in regulations. However, the self-employed exemption requires primary legislation, and therefore is included in this Bill, as this is the earliest opportunity to legislate.”—[Official Report, 14 June 2021; Vol. 697, c. 69.]
I accept that the formal processes for introducing the exemptions for the different classes of NICs may differ, but my point on Second Reading was that announcing the class 2 and class 4 exemptions earlier could have given much-needed certainty to self-employed people at an earlier point in the outbreak. I am sure that the Minister would agree that self-employed people would have benefited from such certainty. The Exchequer Secretary seemed to claim in her comments that the Government’s intention was always to provide that relief for class 2 and 4 NICs, and the delay appears to have been for solely practical reasons.
I would therefore be grateful if the Minister confirmed exactly when the Treasury announced, by way of ministerial statement or other appropriate means, that the exemption for national insurance contributions would be extended to class 2 and class 4 contributions for payments made under a self-isolation support scheme.
Jesse Norman
The hon. Gentleman asks why it was not exempted earlier; the Exchequer Secretary was absolutely right that it is a quirk of our tax system that regulations should be used to exempt national insurance contributions on the employment side, but not these ones. I do not have the date that he describes at hand, and I am happy to write to him on that. It has always been the Government’s intention that the self-employed should benefit from that, as one would expect, given the nature of national insurance contributions and the overall treatment of employment and self-employment.
Question put and agreed to.
Clause 10 accordingly ordered to stand part of the Bill.
Clause 11
Disclosure of contributions avoidance arrangements
Question proposed, That the clause stand part of the Bill.
Jesse Norman
Clause 11 widens the existing power in the Social Security Administration Act 1992 to make amendments to the disclosure of tax avoidance scheme regime known as DOTAS, which I mentioned earlier. The changes enable HMRC to obtain information and documents much earlier for avoidance schemes that HMRC suspect should have been notified to them but have not been disclosed. The changes will allow HMRC to issue a notice to anyone they reasonably suspect of being a promoter or other supplier involved in NICs tax avoidance schemes. It would require the provision of all documents and information that relate to the schemes in question. The amendments will ensure that regulations can be made mirroring the changes to the DOTAS procedures that are included in the Finance Act 2021.
The changes here are necessary to satisfy HMRC that a NICs scheme is not notifiable. If HMRC are not satisfied, they would be able to issue a scheme reference number, or SRN. DOTAS was introduced in 2004 and seeks to provide HMRC with early information about new tax avoidance schemes, how they work and those who use them. The equivalent regime for VAT and other indirect taxes, known by the unattractive label of DASVOIT—disclosure of avoidance schemes for VAT and other indirect taxes—was introduced in 2017.
Currently, when avoidance promoters fail to meet their DOTAS obligations, it can take HMRC a considerable period of time to challenge that failure, often years. Throughout that delay period, there is no disincentive to promoters continuing to promote their schemes, meaning that taxpayers may remain unaware of the risks they face and could end up with large tax bills.
It is appropriate that we should continue to act to protect taxpayers and discourage such behaviour from promoters where they involve NICS. The clause provides that future modifications to part 7 of the Finance Act 2004—Disclosure of Tax Avoidance Schemes—can be applied or modified so that they apply to NICs without the need for primary NICs legislation. That will enable changes to be made efficiently and effectively, with the minimum of separation in time, to ensure the rules continue to move in step. It is usual practice where an existing tax rule is extended to NICs, and I hope the Committee will agree that it is appropriate to have that in place.
The DOTAS regime provides HMRC with important early information, on the basis of which we can make interventions. The prompt disclosure to HMRC of proposals and arrangements that bear the hallmarks of tax avoidance will allow them to be fully considered and tackled much earlier and more effectively, as appropriate.
James Murray
Clause 11 widens existing regulation-making powers so that regulations can be made for national insurance, mirroring the amendments to the disclosure of tax avoidance schemes—DOTAS—procedures that are included in the Finance Act 2021. This measure, and its counterpart in the Finance Act, means that when HMRC suspects someone has failed to disclose arrangements or proposed arrangements that should have been notified to them under DOTAS, it may issue a notice to anyone it suspects of being a promoter or other supplier involved in the supply of the arrangements. The notice explains that if the person is unable to satisfy HMRC that the arrangements are not disclosable, HMRC may allocate a scheme reference number to the arrangements.
As I made clear on Second Reading, we welcome any measures that help HMRC to track tax avoidance schemes. During the debate, I drew Ministers’ attention to a point made by the Chartered Institute of Taxation: that it believes that there is a hard core of between 20 and 30 promoters, identified by HMRC, who clearly do not play by the rules. I asked:
“Do Ministers recognise that number? If so, I would be grateful if the Exchequer Secretary set out what goals HMRC has to clamp down on those 20 to 30 hard-core promoters.”—[Official Report, 14 June 2021; Vol. 697, c. 53.]
Unfortunately, the Exchequer Secretary did not address those questions at the end of Second Reading, so I am glad to have the chance today to raise them again for the Financial Secretary to address. Would he comment on whether he recognises 20 to 30 as the number of hardcore promoters, and on whether there are any targets with dates by which Ministers expect the number of hardcore promoters at large to fall substantially?
Jesse Norman
Again, I thank the hon. Gentleman for his question. It is HMRC’s view—as he says that it is the Chartered Institute of Taxation’s view—that some 20 or 30 promoters are in the market at present. HMRC are vigorously applying themselves to curtailing that activity and to supporting and protecting taxpayers. The Bill will give them an important additional tool with which to do that. By their nature, the promotion of tax avoidance schemes is constantly changing and evolving; promoters are highly resourceful in seeking new ways to sidestep responsibilities and avoid the attention of HMRC. That is one reason why the earlier interventions and the greater flexibility that we have provided are so important.
For that reason, I do not think that it would be prudent to make an estimate or assessment of what the appropriate number of promoters is or could be. The number that we want, obviously, is zero: we would like to see no promotion of tax avoidance schemes in the market, because it is a reprehensible and disgraceful practice.
To reassure the hon. Gentleman and other members of the Committee, I will say that over the past six years, more than 20 promoters have left the market. That is a significant achievement that reflects the decisions that have been made. As I have also indicated, there has been a substantial reduction more widely in the overall tax gap, which bears testimony to HMRC’s wider effective prosecution and collection of unpaid tax.
Question put and agreed to.
Clause 11 accordingly ordered to stand part of the Bill.
Clause 12
Regulations
Question proposed, That the clause stand part of the Bill.
Jesse Norman
Clause 12 specifies how regulations are to be made under the Act and the parliamentary procedure that will apply to them. I ask the Committee to agree that it stand part of the Bill.
James Murray
As we turn to clause 12, which provides for regulations under the Bill to be made by statutory instrument, I would like to discuss which regulations can be decided by the negative and the affirmative procedures. It might be helpful to focus on clause 3(3), which is mentioned in clause 12.
Clause 3 gives the Treasury regulation-making powers to
“provide for circumstances in which a freeport condition is to be treated as being met.”
That has the effect of making the relief available in circumstances in which it would not otherwise be. We note that clause 3 also gives the Government extensive powers to
“amend, repeal or otherwise modify”
the relief. Although it will always be easier for the Government to amend legislation by way of regulations, we recognise the concerns that the Chartered Institute of Taxation has articulated that the powers to make those changes are extensive. There may well need to be flexibility to allow the finer detail of legislation to be amended, but there is a strong argument that any fundamental changes should be subject to full consultation and scrutiny.
I would be grateful if the Financial Secretary explained why he considers that the powers granted in clause 12, with effect on clause 3, to make decisions by way of regulations are proportionate. Does he agree that the clause gives the Government more powers than are desirable to change key elements of the policy by regulations? In particular, given that regulations under clause 3(3), which relate to freeport conditions, are subject to the affirmative procedure, will he explain why regulations under clause 3(2), which also relate to freeport conditions, are subject to the negative procedure instead?
Jesse Norman
I thank the hon. Gentleman. Clause 12(2) specifies that regulations made under the Act are subject to the negative procedure, except for clause 3(3), which relates to the power conferred on the Treasury to add, remove or alter the qualifying conditions for the freeport relief; clause 5, which relates to the power conferred on the Treasury to apply for a freeport secondary class NICs relief in Northern Ireland; and clause 8, which relates to the power conferred on the Treasury to specify the amounts of veterans’ and freeports’ upper secondary threshold. All three are subject to the affirmative procedure.
As the hon. Gentleman will be aware, the Treasury takes extremely seriously the question of what are its appropriate powers, and there has been considerable discussion and indeed parliamentary engagement on what the appropriate powers for HMRC should be in each case. In this case, the normal procedure has been followed, which is to try to recognise the public policy intent and overall public benefit of a more flexible arrangement, but also to respect the parliamentary procedure that where a measure includes new burdens or new taxes, or makes material changes of those kinds, they should be subject to an enhanced level of scrutiny by Parliament, provided by the affirmative procedure. That is the approach that we have taken.
Question put and agreed to.
Clause 12 accordingly ordered to stand part of the Bill.
Clause 13
Interpretation etc
Question proposed, That the clause stand part of the Bill.
James Murray
I do not have any specific concerns to raise in relation to the interpretation or the short title. May I take this opportunity, as it is the final clause under consideration in Committee, to thank my hon. Friends for joining me on the Committee, to thank you, Ms Nokes, as Chair, and to give special thanks to the Clerks, the Library and the Chartered Institute of Taxation for all their advice during the passage of the Bill so far?
Jesse Norman
If I may say so in a similar spirit, as I may not have the chance to do so after the conclusion of deliberations on the final provisions, let me also offer my thanks to you, Ms Nokes, to the Clerks, to my colleagues and also to the officials at the Treasury and HMRC for the work that they have done to prepare the Bill.
Question put and agreed to.
Clause 13 accordingly ordered to stand part of the Bill.
Clause 14 ordered to stand part of the Bill.
New Clause 6
Zero-rate contributions for employees of green manufacturing companies
(1) This section applies where—
(a) a secondary Class 1 contribution is payable as mentioned in section 6(1)(b) of the 1992 Act in respect of earnings paid in a tax week in respect of an employment,
(b) the green manufacturing condition is met, and
(c) the employer (or, if different, the secondary contributor) elects that this section is to apply in relation to the contribution for the purposes of section 9(1) of the 1992 Act instead of section 9(1A) of that Act or section 1 of this Act.
(2) For the purposes of section 9(1) of whichever of the 1992 Acts would otherwise apply—
(a) the relevant percentage in respect of any earnings paid in the tax week up to or at the upper secondary threshold is 0%, and
(b) the relevant percentage in respect of any earnings paid in the tax week above that threshold is the secondary percentage.
(3) The upper secondary threshold (or the prescribed equivalent in relation to earners paid otherwise than weekly) is the amount specified in regulations under section 8.
(4) For the purposes of the 1992 Acts a person is still to be regarded as being liable to pay a secondary Class 1 contribution even if the amount of the contribution is £0 as a result of this section.
(5) The Treasury may by regulations make provision about cases in which subsection (2) is to be treated as applying in relation to contributions payable in respect of a tax week in a given tax year only when—
(a) that tax year has ended, and
(b) all contributions payable in respect of a tax week in that tax year have been paid.
—(Richard Thomson)
This new clause provides NIC relief for businesses in freeports dealing with green manufacturing products.
Brought up, and read the First time.
The Chair
With this it will be convenient to discuss new clause 7—Green manufacturing condition—
(1) The green manufacturing condition is that the employer is engaged in the manufacture of products within the categories designated under subsection (2).
(2) For the purposes of subsection (1), the Secretary of State must by regulations designate categories of products that in the opinion of the Secretary of State are manufactured with the aim increasing environmental standards. The categories of products designated must include—
(a) wind turbines, and
(b) electric vehicles.
This new clause is linked to NC6.
Richard Thomson
With your permission, Ms Nokes, I would like to speak to new clauses 6, 7 and 8, if that is possible. I will just wrap everything into one debate. I would like to add my own thanks to the Clerk and you, Ms Nokes.
Richard Thomson
Okay. In that case, on new clauses 6 and 7, I simply seek to make the point that there is a strong appetite to find new ways to support the economy, especially in those sectors that can contribute to green recovery, beyond the covid recovery and into the future.
A key element in progressing that, along with the cost curve for new technologies, is driving competition and, through that, improvement. Providing exemptions on NICs and ensuring that they are targeted on businesses engaged solely in green manufacturing could do much to drive that innovation and improvement. That requires that incentives are targeted at enterprises that are engaged in green manufacturing and in driving that new green industrial revolution.
New clause 7 provides examples of two categories of products that clearly fall within that bracket, although there is certainly scope to expand beyond that, but I think that the principle stands. If that strategy is not to be achieved in that manner, it certainly should be achieved in other ways. I would welcome the Minister’s remarks on that. It is not my intention to push the new clause to a vote.
Jesse Norman
I thank the hon. Gentleman for his speech and his attention to the Bill. The new clauses tabled by the Scottish National party would create a new zero rate of secondary class 1 NICs for employers that are classed as “green manufacturing companies”, including those that produce wind turbines and electric vehicles. In considering such a measure, it is important for the Government to balance the different potential benefits and costs in a context that respects the requirement to manage public money and support public services.
A change to the tax system of this kind needs careful consideration and assessment of costs and benefits and goes far beyond what should be done via amendment in such a Bill. Designing a sector-focused relief is not straightforward and it adds complexity to the tax system. Having said that, the Government take supporting green manufacturing companies extremely seriously, and we have a raft of policies in place to do that. For example, since 2013, the Government have provided £150 million a year for the Aerospace Technology Institute, match-funded by industry to support the development of incremental improvements to existing aerospace technology, alongside zero-emission technology to protect and secure the sector. That includes £84.6 million of investment to develop zero-emission flights, and further support for other potential zero-emission aircraft concepts. There are many other areas, including support for the Advanced Propulsion Centre and the Faraday battery challenge, let alone all the work that has been done to subsidise the development of offshore wind, which attest to the importance the Government place on green manufacturing and green manufacturing jobs.
I encourage the Committee to reject the new clause, but I acknowledge that the Government fully share the policy intent.
Richard Thomson
On the basis of the Minister’s remarks, the principle stands, but on this occasion, I will not seek to progress by moving to a vote. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 8
Scottish Government Covid payments: exemption from primary Class 1 contributions
(1) A primary Class 1 contribution is not to be payable in respect of any Scottish Government Covid payment.
(2) For the purposes of subsection (1), a ‘Scottish Government Covid payment’ means a payment of £500 pro rata to any NHS Scotland or social care worker in accordance with the announcement made by the Scottish Government on 30 November 2020.”—(Richard Thomson.)
This new clause provides exemptions for Scottish Government Covid payments to social care workers.
Brought up, and read the First time.
Richard Thomson
I beg to move, That the clause be read a Second time.
As this will be my penultimate contribution, I would like to offer my thanks to the Clerks and everyone who has helped the proceedings to move so smoothly, through your chairmanship, Ms Nokes, which has helped considerably with that objective.
On Second Reading, I remarked on the unfairness that was caused by the Treasury’s refusing to exempt income tax on the thank-you payment that the Scottish Government made to health and social care workers. It was in the form of a £500 thank-you bonus to reflect how health and social care workers were valued for their contribution during the incredibly challenging period that we have been through. The full benefits of that payment have been put at risk by the UK Government’s ability to tax us. Contrary to a number of assertions, the Scottish Government do not have the ability to get round that, other than by paying far more than the £500. It would therefore be far better to have the exemption in place.
Although an exemption for the bonus would be welcome, we recognise that the majority of welfare employment powers reside with the UK Government. We therefore want to press the new clause to ensure that clarity is provided and that any future payments for health and social care workers can be exempt from national insurance contributions.
Jesse Norman
I thank the hon. Gentleman for his comments and, again, his attention to the Bill. The Government recognise, as he does, that covid-19 is the biggest threat the UK has faced socially, economically and in many other respects for many decades. Key workers, including social care workers and workers in the NHS, have demonstrated an astonishing commitment to keeping the public safe in the fight against the disease. The Government massively value and appreciate those contributions. However, in this case, although I understand where the hon. Member is coming from, the Government do not believe that the new clause is appropriate or necessary. We fully recognise the hon. Member’s concern, but we do not believe the new clause is the appropriate way to proceed.
Under long-standing rules, any payments made in connection with an employment are chargeable to income tax and national insurance contributions. They also count as income for the purposes of calculating entitlement to certain benefits. The £500 payments made by the Scottish Government to health and social care workers function as a top-up to wages. We therefore consider that those payments are taxable as earnings under normal rules, as I think has been recognised by the Welsh Government.
The UK Government have provided more than £5.9 billion of additional funding for the Scottish Government this year through the Barnett formula. If the intention of the Government in Scotland is for health and social care workers to benefit by at least £500, it remains open to them to gross up the payment to take into account the tax and NICs liabilities, as the Welsh Government have done.
Richard Thomson
I think everything that needs to be said has been said. On that basis, I would like to move to a vote.
Question put, That the clause be read a Second time.