Covert Human Intelligence Sources (Criminal Conduct) Bill

Robert Neill Excerpts

2nd reading & 2nd reading: House of Commons
Monday 5th October 2020 Commons Chamber

[Sir Robert Neill (Bromley and Chislehurst) (Con)]

It is a pleasure to follow the right hon. Member for Orkney and Shetland (Mr Carmichael) and my right hon. Friend the Member for Skipton and Ripon (Julian Smith), both of whom made important and powerful speeches. I agree with what both of them said, and the two are not irreconcilable.

It seems to me that the Government, having brought forward a necessary and appropriate measure—it is right to put these matters on a statutory footing—need to bear in mind the need to tighten up the language in a number of places. I support the basic thrust of the Bill, but there is nothing more profound than to authorise the agents of the state to break the criminal law. That can be done only in the most exceptional circumstances, and those circumstances are not things that can be trailed in public, so obviously we need a degree of discretion about how we do it. I will deal swiftly with just a few matters.

First, given that principle, I am concerned about how we deal with the pre or post-authorisation arrangements. Having put the matter on a statutory footing and having previously established the independent commissioner and then the tribunal, I would be worried about the exclusion of pre-authorisation save in the most exceptional circumstances. I am not saying that every type of criminal offence should be excluded at this stage, but when we come to Committee, we should examine whether we should in any circumstance contemplate setting on the face of an Act of Parliament provision for someone committing the offence of murder, for example, or something equally extreme, other than when they would probably be entitled to run the defence of self-defence anyway.

Given the ability of any High Court jurisdiction to deal immediately and swiftly with interlocutory matters, there is no reason to think that the same arrangements cannot be made in relation to the commissioner. The quality of the commissioners— Sir Adrian Fulford and now Sir Brian Leveson—is of such an extent that I would have thought that their early authorisation would be a great support to our security services in doing what they have to do. We must think about where the balance lies.

The second point I wish to deal with is the list of organisations. The obvious ones are there, and of course they must be supported. Like others, however, I question the need to list bodies such as the Food Standards Agency and, up to a point, the Financial Conduct Authority. Is this really a Bill about counteracting terrorism and life-or-death threats, or is it actually just about enabling the National Crime Agency—a worthy body in itself—to deal with economic crime? That may be a legitimate concern, but I do not think it should be put in this type of legislation, unless it is spelled out a bit more carefully.

The Minister of State and I have personal and shared casework experience relating to constituents of overreach and mission creep on the part of Her Majesty’s Customs and Excise, which frankly behaved appallingly. Ultimately, it was overridden by the courts, but I am worried that it might be thought that the imprecise definition of serious crime could be stretched to cover some of the cases we have dealt with. The Minister looks as though he thinks that is impossible, but serious crime is not defined in statute; it is a matter of fact and degree. It requires either a definition or, more likely, a more robust pre-application process.

[James Brokenshire]

I appreciate the contribution that my hon. Friend, the Chair of the Justice Committee, is making and perhaps we can continue this conversation. I point him to the issues of proportionality and necessity, the requirement to consider matters that are not criminal to the end itself and the safeguards that the Human Rights Act provides, which I set out earlier. Therefore, there is a strong framework, as well as the subsequent oversight, but I will listen carefully to what he says. I am reflective on some of the timeliness of oversight, as I indicated, and I appreciate his points.

[Sir Robert Neill]

I understand the spirit in which my right hon. Friend makes that point. I suspect that many of those fears could be set at nought if we can do this sensibly. The point is that without either having an obligation to comply with the ECHR on the face of the Bill and certain most grave offences being excluded in the Bill, or, on the other hand, greater clarity on the timeliness and the way in which that will work, there are still issues that we need to deal with.

[Mr Carmichael]

Is not another factor that comes into play after necessity and proportionality human nature? It is human nature for people who work all the time in these specific areas—whether that is customs and excise, the Gambling Commission or food standards—to persuade themselves that the thing that they are doing is the most important thing, and they see the whole world differently. The most zealous enforcers of anything that I have ever come across were television licensing enforcement officers. I can say only that I take some small comfort from the fact that they are not on the face of this Bill.

[Sir Robert Neill]

To my shame, I was once instructed to prosecute a list of television licence enforcements in the Epping magistrates court, when it still existed—a most inappropriate waste of court time, I have to say, thereafter. However, the point is well made.

Everybody supports where we want to go, but a bit of tightening up in Committee would not be awry on all those matters. We have to reassure the law-abiding citizen about, not a deliberate mission creep—not anything done by mala fides—but the over-zealousness of the public official, and that, so often, is actually where things are eroded in our public life. It is about the person who genuinely believes that he or she is doing the right thing, but who does things in an over-zealous way and encroaches, time and again, upon the protections that are necessarily there. That is what I want the Minister and the Solicitor General to take away.

We all want this Bill to go through swiftly, but it would do no harm to reflect a little, improve it and, above all, have faith in the process that we have set in statute with the independent complaints commissioner. For heaven’s sake, if people such as Brian Leveson and Adrian Fulford are not to be relied upon, why not bring them in at the very earliest point in the process, rather than having them retrospectively sweep up and pass judgment? I trust them and I think the public trust them more than almost anybody, and I suspect that that would support morally and effectively the agents that we have to employ under these very difficult circumstances.

Fire Safety Bill

Robert Neill Excerpts

Report stage & 3rd reading & 3rd reading: House of Commons & Report stage: House of Commons
Monday 7th September 2020 Commons Chamber

[Sir David Amess (Southend West) (Con)]

I rise to speak to amendment 1, and I welcome, to a greater extent, the remarks of the hon. Member for Croydon Central (Sarah Jones). I thank her for her generous remarks about myself, of which I am not worthy; I have simply been the mouthpiece for others who have been doing the work behind the scenes.

My right hon. Friend the Minister and I have known one another for a very long time; in fact, when I was an MP for another place, he and his dear wife were there knocking on doors for me, yet now I have tabled an amendment which is not exactly what he wants. I have something to say to him, to which he must not take offence: I am a loyal Conservative through and through, but there comes a point when that loyalty begins to wane a bit. I say to my hon. Friends on the Government Benches that the Government are in choppy waters at the moment. I do not want to tip the boat over, but I am beginning to tire of the responses we have been getting from the Front Bench, and I will come to that in a moment.

I am delighted to see present my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), who was once a fire Minister—I hope he is not here to pick holes in my argument; he had better not—and my hon. Friend the Member for Don Valley (Nick Fletcher), who has far more expertise in electrical matters than I could ever hope to have, and also of course the hon. Member for Hammersmith (Andy Slaughter), who has campaigned on this issue for many years. That shows that there is broad all-party parliamentary support on this matter, and it is not party political.

[Sir Robert Neill (Bromley and Chislehurst) (Con)]

Will my right hon. Friend give way?

[Sir David Amess]

I hope my hon. Friend is not going to disagree.

[Sir Robert Neill]

I assure my right hon. Friend that I very much sympathise with the points he was making, and I am certainly not here to pick holes. As a fellow West Ham supporter, I would never dream of picking holes in my right hon. Friend’s arguments, and I hope that the Minister, as another West Ham supporter—like Jim Fitzpatrick—would not either. Perhaps we can get some unanimity as to the objective, even if we need a bit of clarity on the way forward; does my hon. Friend the Member for Southend West (Sir David Amess) agree that that is what we need from this debate?

[Sir David Amess]

I thank my hon. Friend for his kind words, but the three of us have got one or two worries about West Ham at the moment because we lost 5-3 in the friendly; we hope to do a little better when the serious matches start.

Let me say at the outset that, as I said on Second Reading to my right hon. Friend the Minister, I very much support this Bill, and the hon. Member for Croydon Central said that as well. It is, understandably, short and is clear in its purpose of making provision about the application of the Regulatory Reform (Fire Safety) Order 2005 where a building contains two or more sets of domestic premises, and it also confers power to amend the order in future for the purposes of changing the premises to which it applies. That being noted, I say to my right hon. Friend the Minister that I believe that if the Government were minded to accept my amendments, that would improve the Bill even further. And what is wrong with that—that is something that we should embrace?

However, I do accept that when my right hon. Friend comes to reply, he will draw out of his folder a bit of paper telling him to resist the amendments, and to do so because they are “not in order”, or because “It’s the wrong Department” or “It’s the wrong time.” It is never the right time, however, and I say to my right hon. Friend that we owe it to the people who died in Grenfell, and their relatives and friends, to act as quickly as possible. And I say to those on the Treasury Bench that there is more than enough time to legislate; my goodness, we packed up on Thursday at 1.35 pm. I could have filled the Chamber’s time with endless issues. I say to my right hon. Friend that we should find time in the legislative programme for this.

While taking account of phase 1 findings from the Grenfell Tower public inquiry, the Bill requires owners and managers of multi-occupancy residential buildings in England and Wales to reduce the risk of fire by removing unsafe materials on the external walls of buildings and the individual flat entrance doors. As the hon. Member for Croydon Central has said, the responsible person or duty holder for a multi-occupied residential building must manage risk for the structure, external walls, cladding, balconies and windows, but this legislation should also consider the source of fires in the first place. Surely, for goodness’ sake, that is what this legislation should be all about. The purpose of my amendments is to be proactive, and to help prevent fires caused by electrical sources of ignition and ensure that consideration of the safety of electrical appliances is given in this Bill, as they are a key cause of fires in people’s homes.

These amendments further build on the Government’s new regulation for the private rented sector, The Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020, which will give electrical safety checks every five years to tenants in the private rented sector—I certainly welcome that. I commend the Government on introducing those regulations, which had cross-party support, but I believe this Bill can be amended further to include electrical checks for all people in buildings of multiple occupancy. I know that the Minister will tell us at the end why it cannot.

I wish to thank the wonderful charity Electrical Safety First, which has worked with me, as chairman of the all-party group on fire safety and rescue, on its long-standing campaigning to prevent fires caused by electricity in domestic homes. I agree with ESF’s assessment that this Bill should do something more to prevent fires from occurring in the first place, so my amendments seek a solution that will strengthen the protection that people living in high-rise residential buildings require. I accept that the Government are giving some consideration of electrical appliance safety through their Draft Building Safety Bill, but my amendments are designed to ensure that electrical appliances are registered with the responsible person for high-rise domestic dwellings and to introduce mandatory checks for all residents, whatever the tenure of their home. It is truly shocking that electricity causes more than 14,000 fires a year, which is almost half of all accidental house fires. In England, 53% of dwelling fires are caused by an electrical source of ignition, but what does this House do about it? It does nothing, and there is time now to do something. Let us, in this unusual Parliament, where we are trying to fight the invisible enemy, do some good—my amendment would do that.

There are about 4,000 tower blocks in the United Kingdom, and the English housing survey estimates that they contain more than 480,000 individual flats in England alone—that is a huge number. Unless every unit in a high-rise building is subject to the same safety regime, everyone in the building can be placed at risk from one single flat—my goodness, how we found that out not so very long ago. Therefore any measure to improve electrical safety in multi-occupied buildings can help to protect more than 1 million people. New analysis of Government data reveals that nearly a quarter of the accidental electrical fires that occurred in high-rise buildings in the past five years in England were the result of faulty appliances, leads and fuel supplies, which can include electrical wiring in a property. My amendments would see a responsible person record the presence of white goods, in order to minimise the risks that faulty goods can pose in densely populated buildings—I know that that is a challenge, and I say to my right hon. Friend that I accept the practicalities about it. Keeping a record of the appliances in use would mean that faulty recalled appliances could be removed or repaired—if only that had happened with the Whirlpool appliances. Mandatory five-yearly electrical safety checks in tower blocks, regardless of tenure, are also included in the amendment. Current regulations mean that privately rented flats are required to have electrical safety checks, but other tenures are not, which has created what I would describe as a tenure lottery of buildings, which often include owner-occupier, privately rented and social housing property.

The tasks to check tenants’ electrical safety would be undertaken by competent, registered electricians, and I know my hon. Friend the Member for Don Valley (Nick Fletcher) will have something to say about that. I am aware of the concerns of the Fire Brigades Union, who have written to me. I fully accept that their members have more than enough to do without bearing the responsibility for this work, and there is absolutely no intention in the amendments that fire officers would actually undertake it. Let me provide that assurance, and I would be very happy to talk to the Fire Brigades Union about the situation.

More worryingly, analysis shows that over the past three years, accidental electrical fires in high-rise buildings have risen consistently year on year, and it is absolutely ridiculous that that is happening. High-profile tower block fires have been previously linked to electrical sources, including Lakanal House, where an electrical fault with a television claimed the lives of six people, and Shepherd’s Court of course where, as the hon. Member for Hammersmith has told us in detail on other occasions, a faulty tumble dryer led to extensive damage to an 18-storey building. While other factors accelerated that fire, it must be highlighted that the primary cause of the Grenfell Tower fire was an electrical source of ignition, as subsequently confirmed by the Grenfell inquiry—that source is in phase one documentation.

It is important to note that fires are not all caused by appliances themselves, but by misuse of them. That is why, despite my amendments, education is obviously very important. Every year, there is a week of educational awareness raising with the public on the proper use of electricity and appliances through the “Fire Kills” campaign. Recent tragic events have demonstrated the fatal risks that electrical accidents and incidents pose to people in their own homes, particularly in high-density housing such as tower blocks. Electrical Safety First has worked to ensure that tenants living in the private rented sector are protected by mandatory five-yearly electrical safety checks in their properties, which was recently brought into law. Such measures are crucial in bringing down the number of electrical accidents and incidents, and I believe that now is the time to include individual dwellings in tower blocks in that regime, regardless of their tenure.

I appreciate that this is a short Bill that will amend the Fire Safety Order 2005, which focuses on non-domestic measures, but it will also amend the order in domestic homes. That means that homes in high-rise blocks will be affected by the proposed legislation, and this offers an excellent and straightforward opportunity to ensure that all who live in such buildings are brought under the same safety regime. Given this, I believe that the newly created role of the responsible person for each high building should include the task of compiling a register of every white good in the building. That ensures that when a recall occurs, anyone with an affected appliance can be quickly alerted and the safety risks resolved. Relying on consumers to register and respond to recalls in these buildings when the potential risk is so high must be considered wholly inadequate and unrealistic.

--- Later in debate ---

[Andy Slaughter]

My hon. Friend makes a very good point. It is my experience from dealing with blocks in my constituency, and I am sure it is many other Members’ experience, that nobody wants ownership of this, nobody wants to pick up the tab and nobody wants to take responsibility—whether it is those who designed the building, those who built the buildings, those who manage the buildings or those who modified the buildings in ways that were not conceived. Somebody has to do that, and if they will not do that, it is Government’s responsibility to ensure that they do, and I do not think this Bill goes far enough in doing that.

New clauses 2 to 5—I am not going to go through those in detail—are, as I say, sensible and proportionate measures, which are designed to ensure that this legislation the Government are properly bringing forward works more effectively. I wait with bated breath to hear what arguments the Minister can put forward for not adopting those.

Let me come on to the amendment standing in the name of the hon. Member for Southend West, because I think that that is an important amendment. I am glad that it was found to be in scope and is being taken because he is absolutely right to say that, whereas a great deal of the focus has properly gone on construction and modification, particularly in relation to external cladding, insulation and so forth, it is also important that we look at the source of fires. It is rather a truism to say that, if we can control that source, we are going to get a lot fewer fires, whether or not they spread.

There are many issues that are being pursued here. Tomorrow, there is a ten-minute rule Bill from my hon. Friend the Member for Makerfield (Yvonne Fovargue) on the registration of electrical appliances, so that where there is a need for recall, those matters can be in hand. What we are doing today is not comprehensive, but the two measures that have been proposed in the hon. Gentleman’s amendment and new schedule are entirely sensible. Yes, they are quite onerous because what we are looking for is both a register of white goods and that there are regular checks. Those have been found appropriate for the private rented sector, and I wonder why they are not appropriate for high-rise buildings where we know, as a consequence of fires such as Lakanal, Grenfell and Shepherd’s Court, that people are particularly at risk.

Let me say a brief word about that because it is in my constituency. It is just over four years since the very serious fire at Shepherd’s Court. A tumble dryer, which not just should have been recalled and had not been recalled, but was going to be repaired and was awaiting repair, was being used according to the manufacturer’s instructions—wrong instructions—and therefore did catch fire, destroyed somebody’s home, spread to several other flats and caused the evacuation of an 18-storey block. Had it not occurred in the middle of the afternoon on a summer’s day, the consequences of that would have been dire. As it happened, there were no serious injuries, but the trauma of being involved in a fire of that nature, I do not think can be imagined. If I were the Minister, this would give me sleepless nights every night until these matters are resolved.

What I fear is that the Government are continuing to take what I can politely describe as an incremental approach here. Yes, these are complicated matters and more issues come to light—every time an investigation takes place, we find more problems with more types of building—but that is the world we live in, and it does not excuse the Government from responsibility. We are looking at height, but we are also looking at the type of buildings, the type of users of buildings and the type of cladding that is used on buildings. They could be hospitals, hotels, care homes or schools; they could be low-rise as well as high-rise buildings. They all have risks attached to them.

It sometimes feels like getting blood out of a stone to get the Government to widen their ambit and look beyond the very narrow classifications they have already dealt with in terms of ACM cladding, possibly high-pressure laminate cladding and possibly buildings down to 11 metres. The Government are very good at giving advice to others, and we all know the problems that that has caused with the sale and remortgage of properties and the necessity for inspections when the professional staff are not there to deal with these matters. The Government should be better at directing those responsible and, where necessary, providing the means for those responsible to remedy the serious risks that are apparent.

That is the problem with the Bill, which the amendments go some way towards clarifying. Whether we are looking at the source, the construction or the modification, the consequences can be the most serious. They can be matters of life, of the destruction of people’s homes, or of people living daily in fear of the risks that apply to their homes. I cannot think of anything less reasonable than that, frankly, so more than three years on from Grenfell, will the Minister look seriously at what is proposed and either adopt the amendments or, at the very least, say that the Government will bring forward their own legislation soon?

It rather feels that we have been overtaken by events because we now have the draft Building Safety Bill. That is a much more detailed piece of work, but I already have some criticisms of it—I will not bore the House with those tonight—and I look forward to more discussions on that as we go forward. I know that the Minister takes these matters seriously, but I do not feel that the Government are addressing them with the rigour or the detail that they need to be. Let us make a start on that today by adopting the amendments that have been put forward.

[Sir Robert Neill]

It is a pleasure to follow the hon. Member for Hammersmith (Andy Slaughter); he and I have been around debates on this issue for a number of years now. That is true also of my hon. Friend the Member for Southend West (Sir David Amess).

I am delighted to see my right hon. Friend the Minister for Security on the Treasury Bench. He is an old friend and a good man, and I know that he wants to do the right thing. I remember being the Minister responsible for the fire services, as my hon. Friend the Member for Southend West kindly observed. Whether to deal with these issues by primary legislation, by secondary legislation or by way of regulation is always problematic, particularly when it is often necessary to update the actions required in the light of changing scientific and technical knowledge, and emerging knowledge about the right types of processes and procedures that should be followed to ensure safety.

However, given that everybody wants to achieve the same objective here, I hope that my right hon. Friend will listen carefully to the points that are made, because all the amendments have merit behind them. Whether it is possible to achieve their objectives through the Bill is something that I am prepared to listen to the Minister’s arguments about, but, as the hon. Member for Hammersmith just said, if it cannot be done through this Bill, may we please at the very least have a commitment about how it will be achieved?

Having said that by way of preliminary, let me deal with some of the specific points. The whole question of responsible owner is an important one that we need to tackle somehow. My right hon. Friend will have known that I would mention Northpoint in my constituency. He will have known because I banged his door down more than once about it when he was Secretary of State for Housing, Communities and Local Government. He will know that despite his endeavours then, and despite the endeavours of the current Secretary of State, who made a speech back in January about the need to move on this—despite the establishment of a fund and the enhancement of the amount available in the fund—the process none the less remains so complicated that, as yet, residents in Northpoint have not been able to progress their claim. Of course, the scope of the scheme at the moment does not enable them thus far to pick up the interim costs, including that of waking watches and so on, which I will come to in a moment. All manner of obstacles come along—for example, insurance for any potential disruption to the railway, because the block is right next to a railway line. That was eventually overcome because an uninsurable amount of indemnity insurance was initially being requested. Happily, the Minister’s colleague, the noble Lord Greenhalgh, the Minister responsible in the other place, assisted in that, but it indicates that although we have lots of initiatives, a number of the strands are not being joined together, a point to which I will briefly return in a moment.

Misuse of Nitrous Oxide

Robert Neill Excerpts

Tuesday 21st July 2020 Commons Chamber

[The Parliamentary Under-Secretary of State for the Home Department (Kevin Foster)]

I thank the hon. Member for Canterbury (Rosie Duffield) for securing this debate, providing the opportunity for the House to discuss the misuse of nitrous oxide, which, as comments so far have indicated, is a concern across our United Kingdom.

[Sir Robert Neill (Bromley and Chislehurst) (Con)]

Will the Minister take on board the fact that my constituents share the concerns of the hon. Member for Canterbury (Rosie Duffield) and that of many other Government Members, too? This really needs serious action.

[Kevin Foster]

I take that point. As we have heard, the recreational use of this gas is a problem. Many of our constituents are concerned about the impact of the misuse of nitrous oxide, not only on the physical and mental wellbeing of users, but on their communities through associated problems such as antisocial behaviour and the small canisters left littering our streets. The Government are conscious of these concerns and the need to respond to them.

Counter-Terrorism and Sentencing Bill

Robert Neill Excerpts

Report stage & 3rd reading & 3rd reading: House of Commons & Report stage: House of Commons
Tuesday 21st July 2020 Commons Chamber

In conclusion—I am conscious that other colleagues wish to speak—I hope that the Minister will look closely at the amendments, which are designed to assist and clarify some of the measures in the Bill and to seek the introduction of some measures that we feel ought to be in the Bill. I reiterate that we on the Opposition Benches will be uncompromising when it comes to supporting measures to tackle terrorism and keep our country and its citizens safe. That is and will always be our priority.

[Sir Robert Neill (Bromley and Chislehurst) (Con)]

It is a pleasure to see the hon. Member for St Helens North (Conor McGinn) on the Opposition Front Bench. I have a lot of sympathy with what he said, and I hope the Minister will address the points he made, because we want to be constructive. We all support the overall thrust of the Bill, but my concern, as Chair of the Justice Committee, is that we do not do anything—albeit inadvertently and for good reasons—that undermines the checks and balances that are a normal part of the criminal process.

That is why the change in the burden of proof in relation to TPIMs needs more justification put behind it. Jonathan Hall QC, the independent reviewer of terrorism legislation, is highly regarded in this field, and the Minister has quoted him with approbation on a number of occasions. In this instance, he does not regard the case as being made out. If the Minister takes a different view, with respect, we need something more substantial as to why that is the case. There may be good reasons, but it cannot be done on a purely speculative basis. It cannot be on the basis that it may be useful to have this wider test. It might engage some people outside the jurisdiction in ways that we cannot currently in terms of gathering evidence and intelligence, but that case has to be made. Having voted on two occasions to increase the burden of proof to where it currently is, I would like to have a pretty clear sense that there is a compelling reason for reversing those decisions—and there may be, but I think the Minister owes it to us to set that out, and we need Mr Hall to set out why he comes to a different view. We may be persuadable, but it is important that the case is made and that the House understands that.

I accept that there is an overall three-year time limit on the working of the Bill, but I am concerned that, without a time limit, the TPIM will become the default mechanism and more like a control order. We surely all ought to recognise that, wherever possible—wherever proper, admissible evidence can be obtained and proceedings can be safely and securely brought—if people have done the vile things that we are talking about, which pose a real criminal threat to the security of this country and its people, the normal and proper course ought to be to prosecute through the normal due process. An alternative means of dealing with this should only be undertaken in the most exceptional circumstances. I can see that there may sometimes be such circumstances, but again, that case needs to be spelt out.

The third issue that I wish quickly to deal with is polygraphs. The Law Society takes the view that the suggestion of the use of polygraphs in some of these circumstances is more to persuade people psychologically —that is the phrase it uses in its briefing—against breaching the orders. That may be valuable in itself, but we ought to be wary of the limits of polygraphs’ usefulness. There are mixed views in academic, scientific and legal circles about the reliability of polygraphs. I do not have a fixed view about them, but I think we should approach their use with caution and proportionality.

[Chris Philp]

rose—

[Sir Robert Neill]

I am always happy to give way to my hon. Friend and near neighbour.

[Chris Philp]

My hon. Friend and south London neighbour is kind for giving way. Let me reassure him on his point about the limits of polygraphs. We understand and accept that they have limits, which is why a negative polygraph result on its own can never result in a recall to prison or licence conditions being deemed to have been broken. All a negative polygraph result could do is prompt further investigation by other means, which I hope provides him with the reassurance he seeks.

[Sir Robert Neill]

That is a very helpful reassurance for today’s purposes, and I am grateful for the spirit in which the Minister said that. It is an important point, and I am glad that he takes this on board. Sometimes, for the best of reasons, there can be a mission creep with these measures, which could lead to a broader spread of their use in the criminal justice system, and that would be a matter of concern. If he says that the use is very specific, I accept his word on that, but it is important that we continue to keep this under review and do not have unintended mission creep. As we all know, it is often easy to present perfectly benign and reasonable reasons for doing something that departs from the normal checks and balances, but it then becomes entrenched and permanent and spreads.

In that spirit, I take the Minister’s assurance, but he will understand why it is important that that issue is debated and that reassurances are given that the overall integrity of the justice system will not be affected by these changes. That has dealt quickly with the issues that I sought to raise. It was perhaps a record brevity, but I hope that brevity does not reduce the import of the issues raised.

[Joanna Cherry]

It is a real pleasure to follow the hon. Member for Bromley and Chislehurst (Sir Robert Neill), and I endorse his concerns about the provisions in relation to TPIMs. My hon. Friend the Member for East Lothian (Kenny MacAskill) and I have tabled amendments 39 to 41 in relation to the proposed changes to the TPIMs regime. I am also speaking in support of amendments 46 to 51 and 59 to 61, tabled by the right hon. and learned Member for Camberwell and Peckham (Ms Harman), the Chair of the Joint Committee on Human Rights, and signed by me. I will try to keep my comments brief, because I went into these issues in some detail on the Bill Committee and I want to allow others who were not on that Committee to speak.

First, I want to say something about the Prevent strategy review. I endorse what the hon. Member for St Helens North (Conor McGinn) said about that. It is important to remember that it was a recommendation by the Joint Committee on Human Rights, and a successful amendment to the Counter-Terrorism and Border Security Act 2019, which imposed a requirement on the Government to initiate an independent review of Prevent. It has been delayed for reasons that we have heard a lot about, and I think the delay is most regrettable. Clause 47 of this Bill removes the time limit for conducting the review. We in the Joint Committee on Human Rights have concerns about that and we would like there to be a time limit, hence the amendments we have tabled. I am happy to associate myself with the date suggested by the official Opposition.

I note in passing that the delivery of the Prevent strategy in Scotland is devolved, and that although national security is a reserved matter, the Scottish Government’s delivery of the Prevent strategy reflects a rather different procedure. I will not take up too much time with that.

--- Later in debate ---

[Sir Robert Neill]

This is a very important Bill. The Lord Chancellor and his ministerial team are to be congratulated on delivering it. It is the second major piece of legislation that the Lord Chancellor’s Department has delivered in very different fields, if we take into account the divorce reform Bill. It deals with the most profound matter. Many of my constituents commute daily to London—or they would, under normal circumstances—and the real threat and risk of terrorism there and in our great cities is a daily matter for them. Getting this right is vital for my constituents and for the country as a whole.

That requires a balance—a balance between security, and just and due process and the liberty of the individual. I do not doubt that it was the Lord Chancellor’s overriding intention to get that right. I believe he has succeeded. There are one or two areas, which I have referred to, where perhaps we will want to see how it works in practice, but we ought to give the Bill a fair wind.

I know that the Lord Chancellor will take on board the observations of the shadow Lord Chancellor and the Justice Committee about the importance of the work done by the probation service and the Prison Service in these areas and ensure that they are not only properly supported but resourced. In particular, we must ensure not only that offenders are, where necessary, properly contained in prison and then, where possible, rehabilitated afterwards, but that those who cannot be rehabilitated are not able to corrupt and suck into their web other, more vulnerable prisoners. Giving the Prison Service resource to do that is also an important part of protection. I support the Bill.

Domestic Abuse Bill

Robert Neill Excerpts

Report stage & 3rd reading & Report stage: House of Commons
Monday 6th July 2020 Commons Chamber

[Victoria Atkins]

If I have understood the hon. Gentleman correctly, he is not just addressing the use of this so-called defence in our courts but reflecting on the wider impact of pornography, particularly internet pornography, on violence towards women and girls in particular. I know that my hon. Friend the Member for Congleton (Fiona Bruce) will be raising this in her speech and if I may I will respond to her in that part of the debate, but I very much take on board his point.

The hon. Gentleman will know that part of the problem that has emerged in the last 15 to 20 years is that, whereas in the old days cases were reported freely in the newspapers and so on, such cases are now also reported on the internet. In that regard, I must pay particular tribute to the family of Natalie Connolly, who have suffered in more ways than anyone can really contemplate. I am pleased—and I hope they are satisfied—with the developments that have resulted from the hard work of the right hon. and learned Member for Camberwell and Peckham and my hon. Friend the Member for Wyre Forest. I hope that Natalie’s family are satisfied with what we have reached in this Bill.

We have been clear that there is no such defence to serious harm that results from rough sex, but there is a perception that such a defence exists and that it is being used by men—it is mostly men in these types of cases—to avoid convictions for serious offences or to receive a reduction in any sentence when they are convicted. As my right hon. Friend the Lord Chancellor indicated on Second Reading, this area of law is extremely complex. It is therefore important that anything that is placed in the Bill does not have unintended consequences. In acting with the best of intentions, we do not want to inadvertently create loopholes or uncertainties in the law that can then be exploited by those who perpetrate such crimes.

If I may, I would just like to take a moment to thank my friend the Under-Secretary of State for Justice, my hon. Friend the Member for Cheltenham (Alex Chalk). As the co-Minister on the Bill, he has brought all his legal expertise to the consideration of how we can address the mischief and the upset, which we all want to address, in a way that does not have unintended consequences.

[Sir Robert Neill (Bromley and Chislehurst) (Con)]

May I join the Minister in doing that? This issue has bedevilled criminal law cases going back to the 1920s and 1930s. The attempt in the past has been to fit appropriate legal protections within the framework of the Offences Against the Person Act 1861. It is particularly to be welcomed that we have now moved away from that rather antiquated straitjacket and have something that is fit for purpose. The work the Government and my hon. Friends have done is immeasurably important to legal practitioners, as well as to victims.

[Victoria Atkins]

I am happy to take that intervention and I thank my hon. Friend, the Chair of the Justice Committee, for his support.

In new clauses 4 and 5, the right hon. and learned Member for Camberwell and Peckham and my hon. Friend the Member for Wyre Forest have, broadly, sought to codify the principles set out in current case law in this area, namely that which resulted from the case R v. Brown. That case involved a group of men who participated in sadomasochistic activities. We have taken up the challenge set by the right hon. Lady and my hon. Friend and, working closely with them, have tabled new clause 20 to achieve just that. More specifically, the new clause aims to make it clear that consent to serious harm for sexual gratification is not a defence in law. The new clause codifies, and therefore restates, the general proposition of law expressed in the case of R v. Brown, which is that a person may not consent to the infliction of serious harm and, by extension, their own death. Those interested in such matters will note that we have been careful to preserve the position in relation to sexually transmitted infections, but we have done so in a way very much in keeping with current case law. I hope that the House has been reassured that new clause 20 achieves the objective of providing the confirmation and clarification of the law requested.

I am very conscious that many Back Benchers wish to speak—sadly, many have put in to speak but will not be called due to the level of interest in this important piece of proposed legislation—but, if I may, I will take a little time to address an issue that I know is of great importance not just to those of us in this place, but to those who work in the world of tackling domestic abuse and, of course, to the victims themselves. That is the issue of migrant women, in particular migrant women who have no recourse to public funds. If I may, I will deal with new clauses 22, 25 and 26 in this part of my speech.

I hope hon. Members received a “Dear colleague” letter this morning from me and the Under-Secretary of State for Justice, my hon. Friend the Member for Cheltenham, explaining our position. We are absolutely committed to doing what we can to support all migrant victims of domestic abuse as victims first and foremost. In 2012, we introduced the destitution domestic violence concession—the DDVC—to support migrant victims of domestic abuse who are living in this country on the basis of certain partner visas. Such people have come to the UK with the intention of living here permanently with the reasonable expectation of obtaining indefinite leave to remain. The DDVC is not available to people who enter the country on other visas, such as visitor, student or work visas, or, indeed, to anyone who is here illegally. This is because in order to obtain such visas they will have confirmed that they are financially independent and therefore require no recourse to public funds, and their stay will be for a defined period of time. They do not, therefore, have a legitimate expectation of securing indefinite leave to remain. Simply extending the DDVC to all migrant victims is therefore not the way to address the needs of migrant victims who currently cannot claim under that scheme. We need to find a way of ensuring that they have adequate support, rather than provide a pathway to indefinite leave to remain or a blanket lifting of the no recourse to public funds condition.

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[Caroline Nokes]

I thank my hon. Friend for that commitment and look forward to the consultation coming forward. It is important that we have the opportunity to look further at how these emergency regulations have worked during the period of covid and that we understand how they can assist women. I am sure that my right hon. and learned Friend the Lord Chancellor will say something about this in his closing comments. I do not know whether the appropriate place is via new legislation or via the consultation that my hon. Friend referred to, but there is clearly a real need for debate and for this House to be able to express its view and understand the issue thoroughly.

The hon. Member for Birmingham, Yardley (Jess Phillips) spoke with her usual forcefulness, and she will know that I have found common ground with much of what she said. I welcome her support for the broad direction of the Bill. I also welcome her comments about the need for us to find a mechanism to support migrant women who are the victims of domestic abuse. I have said this previously in the Chamber and I have no doubt that I will say it again. I vividly recall sitting around a table with my hon. Friend the Minister; my hon. Friend the Member for Charnwood (Edward Argar), who was then in the Ministry of Justice; the noble Baroness Williams, who I think was the Victims Minister; Southall Black Sisters and other charities; and the hon. Member for Birmingham, Yardley, who I always regard as an expert on these matters. There was consensus around the room that we have to find a way to treat the migrant victims of domestic abuse as victims first. I am sure that there are differences of opinion—as there were in the room that day—as to how we best do that. I very much hope that the pilot projects of which my hon. Friend the Minister has spoken will be able to provide us with the data that we need so that we can find a long-term, enduring solution to help, and help effectively, victims of domestic abuse who are here perhaps with no legal public funds or with insecure immigration status that means they are dependent on their partner for their right to be in the UK.

Whether it is the much-needed changes that are to be introduced in respect of the family courts—I welcome new clauses 16, 17 and 18—or other measures, it is crucial that we find a way to make our court system support the victims of domestic abuse. We must find a mechanism whereby it supports the children who might otherwise be obliged to come into contact with perpetrators. I welcome the fact that we are moving to a position wherein the legal process will no longer be able to perpetuate abuse.

My hon. Friend the Minister has worked hard on the Bill, and I welcome the changes that have been introduced. I commend her for having made such enormous progress. It has been a difficult journey for a Bill much delayed. We are not there yet, but I sincerely hope that our noble Friends in the other place do not delay the process much further. I commend my hon. Friend her for her very hard work.

[Sir Robert Neill]

This is a very important Bill and I warmly welcome it. It deals with a number of what have hitherto been quite intractable legal and social issues. It is to the Government’s great credit, and to the credit of Members from all parties, that we have managed to find a practical way forward to resolve a number of those otherwise intractable issues.

Like my right hon. Friend the Member for Romsey and Southampton North (Caroline Nokes), I particularly welcome the measures to bring procedures in the family courts into line with the protections that have existed for a long time in the criminal courts. That deficiency is a problem that has been recognised for a long time by practitioners and many of the judiciary in the family courts, so we are right that to plug that gap.

I hope the Minister will indicate that we will have regulations to set out the specified offences in relation to new clause 17 as soon as possible, so that there is clarity on that.

On new clause 18, proposed new section 85H is a particularly important provision. It specifies in subsection (7) that the qualified legal representative appointed by the court to carry out the cross-examination

“is not responsible to the party.”

That is necessary and deals with the difficult situation wherein the abusive party seeking to make the cross-examination raises issues that in the interests of justice need to be tested by the cross-examination of the alleged victim or victim, but that rightly should not be done by the abuser because they will continue the abuse. The court therefore appoints the advocate, and it is important that we stress that that advocate is, in effect, acting as amicus curiae—they are acting to assist the court—and has no responsibility to the abusive party.

I hope, too, that we will make it clear that the regulations that provide for the remuneration of those advocates are interpreted generously, because those who assist the court in such a way will be undertaking a particularly onerous and difficult task. They may well often be hampered by the hostility of the abusive party while acting in the interests of the justice whose case they have to test by cross-examination the case of the victim. That is a difficult position that we are, out of social necessity, putting that advocate in, and they deserve to be properly recompensed for the time that I suspect is likely to be required to do that job properly. Subject to those caveats, the provisions are very welcome.

The abolition of the consent defence in new clause 4 is particularly welcome. There is no doubt that the matter was settled in large measure by the case of Brown and the decision of the House of Lords—the Judicial Committee of the House of Lords, as it then was—but the law had been very difficult going back to the case of Donovan in 1934, which stood during the early days of my practice at the Bar. Even on the Brown decision there was dissent within the House of Lords. A number of judgments in the Brown case suggested that because of the awkward interaction of social policy and the attempt to fit the regime with that in the Offences Against the Person Act 1861, which hardly works for the type of pornographic videos and so on that we see nowadays and that propagated some of this behaviour, if it were to be changed further it needed the intervention of Parliament, not least because it also engaged issues such as the right to privacy under the European convention on human rights. It is right that we act in the way that we do to give legislative clarity, rather than placing the courts in the difficulty of interpreting such policy areas.

I will turn, if I may, to the point about acquired brain injury that the hon. Member for Rhondda (Chris Bryant) made. I am not sure that legislation is the way forward, but I know that the Justice Committee, in a number of our considerations, noted the fact that it is only in recent years that the extent of pre-acquired brain injury and the impact that it can have within the justice system—criminal, civil and family—has begun to be recognised. Further work and research in this field will be a very welcome thing in any event.

I listened with great care to the shadow Minister’s case for new clause 24 and the proceedings under the Children Act. I am very sympathetic, but my only qualm is in relation to section 11 of the Children and Families Act 2014, which set up the presumption of parental involvement and was regarded as progressive in its time. We do know, and she is absolutely right, that there have been the most egregious and terrible cases of abuse of that presumption, but if we are to change it, are we right to move from a presumption to an outright prohibition in a certain classification of case—where the issue of abuse arises, I accept that—or are we better to go to something like a rebuttable presumption against access in such supervision cases? That is the area in which we need to have a proper debate. That is why I welcome the panel’s recommendation of further consideration of how we get to where I think we all want to be, with the best, most legally watertight and most effective measure.

In relation to new clause 28, with every great respect to the hon. Member for Kingston upon Hull North (Dame Diana Johnson), I rather agree with the formulation of my right hon. Friend the Member for Romsey and Southampton North (Caroline Nokes). The only other issue that I would raise from my experience as a criminal practitioner is that, on more than one occasion, I found instances where part of the abuse had been to force the victim to have an abortion. The irony is that reliance on a telephone call to procure the means of doing that does not give the safeguard of knowing who is standing next to the victim when she makes the telephone call. I have certainly seen instances of that in practice, as other criminal practitioners will have done. Although the intentions are good and well meant, I have a concern about moving down the route set out in new clause 28.

All in all, however, this is a good Bill. There are good, constructive amendments that I hope we will forward today. I, too, express the hope that the other place will pass the Bill swiftly, because it is a major piece of reform that has been embarked on here and, for once, the way that the House has worked together on this should bring credit to our system and our consensual approach, for which we should all be very grateful.

[Several hon. Members rose—]

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[Sir Robert Neill]

Those were two very powerful speeches, which is right because this is a really important Bill. It is a major aspect of reform of family private law. The Lord Chancellor is entitled to great credit for what he has done. It is the second time in almost a fortnight that he has brought in major reforms and we should remember that. We have reformed divorce law and now how we deal with private family law.

I welcome the comments by the hon. Member for Birmingham, Yardley (Jess Phillips) from the Opposition Front Bench, because this is something we ought to deal with together. It is a difficult and complex area. As Chairman of the Justice Committee, I can say that we have wrestled with some of those issues from time to time. As a practitioner, as a constituency MP and as a human being, I have seen the consequences of some of the deficiencies in the law as it currently stands. This is a major reform and we should welcome it. There is more to do, I have no doubt, but it is a good step forward. In particular, the changes to the procedures in the family court, which have taken some time to get through, are really important. I hope we will now see that properly resourced. I hope also that we will follow that through in some of the understanding that is required, for example, with regards to acquired brain injury—a point made by the hon. Member for Rhondda (Chris Bryant) in a previous debate—and some of the pressures that are put on people through coercive control, which this Government have recognised and taken on board beyond most others. We need ensure that we keep practice in line with the letter of the law.

I am particularly pleased that the Bill has dealt with the issue of non-fatal strangulation. As a legal practitioner, it always struck me that this was a real difficulty—when one could not prove the necessary intent under section 18 of the Offences Against the Person Act 1861. The irony was that if somebody died, we could prove manslaughter, but sadly we could not prove anything less. That is another gap that the Bills fills.

An awful lot of really important points have been covered by the Bill, but I suspect that the overall thrust is that we are determined to improve the situation of victims in the criminal courts and the family courts. Ironically, crime got in front of the family division in many ways, when it came to the protection of witnesses and the special care that should be given to people. Judges and practitioners have repeatedly sought this and it has been delivered. I hope that we can now move forward towards better reform of private family law generally. But may I just make a final prod to the Lord Chancellor in a nice way, and say that that requires resource? It requires resource for the judges, the ability for people to sit the requisite hours, and resource for those who undertake a number of onerous duties referred to in the Bill on behalf of the public to be properly recompensed. I suspect that he will do that.

We ought to welcome this legislation, and, above all, welcome the fact that we are moving away from what was rather a blame culture in the way in which we dealt with family law, and towards something that is much more constructive. Maybe we should move forward in such a way in a number of other matters too.

Sentencing (Pre-Consolidation Amendments) Bill

Robert Neill Excerpts

3rd reading & Committee stage & 3rd reading: House of Commons & Committee: 1st sitting & Committee: 1st sitting: House of Commons
Thursday 4th June 2020 Commons Chamber

In conclusion, we on this side of the House fully support the Government’s intention in concluding the Law Commission’s work, and we will not oppose the contents of the Bill. I look forward to the Minister’s responses and working with him moving forward, ensuring that our legislation and regulations are fit for purpose and serve the best interests of the public.

[Sir Robert Neill (Bromley and Chislehurst) (Con)]

I am delighted to see the hon. Member for Stockton North (Alex Cunningham) in his place on the Opposition Front Bench. I know that the Justice Committee, which I have the honour to Chair, will look forward to engaging with him and the Minister as we go forward on these issues. May I adopt a number of the questions that he has raised with the Minister, which are not partisan but important questions of procedure?

As the Minister rightly said, this is an important and technical Bill. It is warmly welcomed and, I think, universally supported among practitioners and, I hope, by the broader public too. It is therefore important that the substantial Bill makes progress as soon as possible. I join both Front Benchers in paying tribute to the work of the Law Commission. I might mention that again on Third Reading, as I know the Lord Chancellor will wish to do. I particularly want to mention the work of Professor David Ormerod, who was the criminal law commissioner for a period and recently retired. He has done exceptional work in this regard and has been almost the principal driver behind the measure and the code itself.

I particularly welcome the introduction of the “clean sweep” provisions in clause 1. That is novel, but it is much to be commended, and I hope that this will not be the only occasion on which it is used. Incorporation by reference, which is the style of legislative amendment we tend to have now in this country, can create inconsistencies and anomalies, and it is quite a bold measure to have a consolidation platform of this kind. I am glad to hear the Minister say that it is not intended that anything should undermine either the common law or article 7 rights that there shall not be retroactively greater punishment than would have been available at the time.

I particularly welcome the Minister’s reference to the need for linguistic clarity and consistency in sentencing legislation. That has been a real difficulty for those of us who have practised and sat in the criminal courts over the years. At the moment, about eight statutes have to be referred to, depending on the nature of the offence, and experienced professional judges can get this wrong as much as anyone else. I ask him for assurance that the Government as a whole will bear in mind the need for linguistic consistency in any further sentencing measures that may come forward. Many Bills may have sentencing provisions attached to them, and it is important that, having got consistency through clause 1, we do not lose that by a departure from that approach in future legislation, not all of which will necessarily come from the Ministry of Justice. I hope that the Government will take those points on board.

I think it will be generally welcomed by those who sat as recorders in the Crown courts, sometimes dealing with matters being sent up from the magistrates court on appeal, that the Bill will enable us to remove the current inconsistency of language between the law that must be applied in resentencing in the magistrates court as opposed to the Crown court. Although the effect is the same, and the rule on greater retrospectivity not being permitted remains the same, the language of the provisions relating to the Crown court and the magistrates court is different. That causes confusion when judges are sitting as recorders, or judges and recorders are sitting with magistrates on the Crown court dealing with an appeal from the magistrates court where they have to apply the magistrates court provisions. Anything that removes that anomaly is to be welcomed.

I think we all hope that the Bill is enacted as swiftly as possible. I note the observations of the noble Lord Judge, on behalf of the Joint Committee in the upper House, about the importance of the Bill and of it being a living instrument. Will the Minister reassure us that it is intended that all future Government legislation touching on criminal justice and sentencing matters will adhere to the principle behind the code?

[Florence Eshalomi (Vauxhall) (Lab/Co-op)]

I concur with the hon. Member for Bromley and Chislehurst (Sir Robert Neill). This is an uncontroversial Bill that has support right across the House, and as such, I do not wish to detain the Committee for long. However, I want to return to a subject raised by my colleagues on Second Reading, and I would be grateful if the Minister could respond today.

My hon. Friend the Member for Hammersmith (Andy Slaughter) raised the shocking statistic mentioned in the Library briefing that 36% of 262 cases sampled by the Law Commission involved unlawful sentences. This has potential serious repercussions for the administration of justice in our courts. One suggestion made by my hon. Friend was for the Government to publish a list of common mistakes made, to draw to the attention of the judiciary. The Minister said he would investigate that idea, so could he update us on his investigation or any work being done to draw up that idea?

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[Sir Robert Neill]

I warmly congratulate my right hon. and learned Friend the Lord Chancellor on the Bill and on his speech. In that very succinct and elegant speech, he made the case for why it is a thoroughly good thing to have a lawyer as Lord Chancellor as well as anyone, I think, could ever make it. He is absolutely right and, at risk of referring to my interests in the Register of Members’ Financial Interests, every one of us who has practised in the field of criminal law knows the minefield that has developed in sentencing over the years. That is true in many respects, both in the technicalities to be circumvented and because, for both the advocate and the sentencer—never mind the defendant and the victims —it is, without any doubt, most stressful in human and emotional terms as well. Anything that brings clarity and consistency to sentencing is of great public importance.

In that regard, I welcome the tribute that the Lord Chancellor paid to the work of the Law Commission. It has been referred to, but on Third Reading I say again that we on the Justice Committee have always greatly valued the engagement of the Law Commission and, in the criminal justice field in particular, the work of Professor Ormerod, who is fundamental to this reform. His work on the Law Commission has rendered very great and significant public service indeed, and it is right that we put that on record.

The reforms have been well debated, but they are extremely welcome. I hope that this will also remind us of the value of the Law Commission as an institution and of the value of the Sentencing Council, which, when I started to practise, did not exist in its current form. We have developed and made our system of sentencing law sophisticated but not always simple—perhaps we can now have both. In particular, it is essential that the Law Commission is supported and properly resourced by Government, and I know that it will be at the current time.

There have been periods in the past when there was some concern even about the Law Commission’s very modest budgets and the support given to the Sentencing Council and others being put under pressure. I am reassured that that is not the case now.

As a country and a society, we get extraordinarily good value for money from the Law Commission. It is an undervalued institution in our public life and perhaps insufficiently recognised, though not by those involved in this debate. Against that background, it is a matter of more general regret that there has been a marked slowness —not unique to any one Government or Parliament—in introducing in legislation the Law Commission’s many thoughtful and considered recommendations on a raft of law reform. Criminal law is but one aspect that it deals with. In recent years, the rate of implementation of Law Commission recommendations has declined. Since 2010, of the 52 concluded projects listed in the table with its latest report, only 16 have been implemented either in full or in part. A succession of the Law Commission’s chairs have raised that over the years.

Although it is always a battle to get parliamentary time, I hope that, having got this important piece of work on to the statute book, we can ensure that, given the level of expertise available to us right across the law through the Law Commission, we do it the courtesy and justice of taking its recommendations seriously because they are invariably intended to be of public benefit. The Law Commission, by its nature and the way it works, can give a sometimes more considered view of important measures than is ever possible in our political debate, which is an important but different part of the process. Putting the two together gives us the best possible means of law reform. I hope that will be borne in mind. It is a good example of where collaboration, in the way the Lord Chancellor suggested, can work.

I welcome the Minister’s assurance in the Committee proceedings that the Bill will be treated, in the words of Lord Judge, as a “living instrument”. It is important that any future revisions to sentencing policy are consistent with the code, otherwise all that good work is undone. I was glad to have that reassurance. The Bill is an important step forward and I am delighted to support it.

Fire Safety Bill

Robert Neill Excerpts

2nd reading & 2nd reading: House of Commons
Wednesday 29th April 2020 Commons Chamber

[Sir Robert Neill (Bromley and Chislehurst) (Con) [V]]

It is a pleasure to speak in this important debate. This is a sensible Bill, which I hope the whole House will support. I too pay tribute both to the memory of those who lost their lives in the Grenfell tragedy and to the emergency services. Like previous speakers, I had the honour of serving as a member—indeed, at one time as the leader—of what was then the London Fire and Civil Defence Authority. We ought to recognise the value of the work that the emergency services have done.

Given that the Bill is sensible and limited, and seeks to build on the lessons of Grenfell, I shall touch on two matters related to the broader policy areas that sit behind it. First, the Bill seeks, together with other legislation, to address some of the lessons that are being learned from Grenfell, but we should not forget the need urgently to address the position of those who are still living in accommodation with Grenfell-type ACM cladding or other dangerous cladding. Other hon. Members have referred to that, but I reiterate it to Ministers.

Many constituents of mine live in a tower called Northpoint in Bromley. I wrote to the Housing Minister, whom I am delighted to see on the Treasury Bench and I welcome to his position, on 26 February setting out the plight of those residents. I know that he has much on his plate, but I am sorry to say that I have not yet received a reply. That tower has a mixture of ACM and other flammable cladding. I am glad that, as I understand it, that will now be within the scheme, and I am glad that the moneys in the scheme have been extended. The Government are doing the right thing in that regard, and I welcome it. However, we are not addressing this issue with the speed and urgency that the desperate state of these people requires. All of them—many of them first-time buyers, others downsizers—live in flats that are now valueless. Most of them have mortgages; they cannot remortgage any more, and they cannot sell.

Although the scheme is welcome, it has two failings. First, as I set out in my letter to the Minister, it is extremely slow and bureaucratic to access. Those residents have already paid out something like £400,000 for the cost of a waking watch. Their service charge has gone through the roof, and their management reserves are expended entirely. Potentially, they will spend more months forking out up to about £11,000 a month on a waking watch until this issue is resolved.

To access the scheme, those residents have to go through a bureaucratic procedure to show that they qualify. There is no doubt that they qualify, for heaven’s sake. It takes far too long for them to access the scheme. By the time they have gone through the form-filling, the getting of surveys and then the commissioning of contractors and the getting in of materials, all of which has been slowed up by the near cessation of building works during the coronavirus emergency, it will, on current form, be a long time before they actually see that money. They are getting into more and more debt.

This is affecting my constituents’ health—their physical health and their mental health. I urge the Government, who have done the right thing and said they will step in to assist these people, to get a move on, cut out the red tape—cut through the bureaucracy—and get the money to these people at the earliest opportunity. In the social sector, much has already been done. We ought to be treating people in the privately owned sector in the same way. No question of any moral hazard arises, because these people relied on the regulatory system that was then in place, which said that their properties were safe and suitable. If there was a failing in that system, that certainly is not their fault. They acted in good faith, and we ought, in all decency and as a matter of good governance, to speed the process along. I know that my right hon. Friend the Minister will want to do that, and I urge him to look urgently at, among the many other things on his desk, these particular cases and those of many other people as well.

My second point relates to the responsible person regime, which is a good and sensible thing to bring in. However, the hon. Member for St Albans (Daisy Cooper) picked up on the difficulty for many contractors in getting insurance in order to be able to undertake that work. A contractor operating in my constituency and that of my right hon. Friend the Security Minister tells me that its premiums have gone through the roof, with an increase of about 140%, and the extra cost even to small firms has been about £250,000. Also, many insurance companies are writing exclusion clauses into their contracts, which effectively means that they will not cover anyone on their professional liability insurance if their fire risk assessors or fire engineers undertake cladding work. That will drive many firms out of the market, and this needs to be addressed as a matter of urgency.

Release Under Investigation

Robert Neill Excerpts

Wednesday 5th February 2020 Westminster Hall

[Bambos Charalambous]

The hon. Gentleman is absolutely right. I will come to that point later. The use of police bail has dropped dramatically, and the use of RUI has increased exponentially. That is partly because police bail is out of date, but I will come to that.

As I said, justice delayed becomes justice denied. Before we consider all the implications of those stark facts, let me draw attention to the huge increase in the use of release under investigation. All evidence suggests that the use of RUI has expanded massively since changes to bail introduced by the Policing and Crime Act 2017. In London, for instance, 67,838 people were released on bail in 2016-17. In 2017-18, that number fell to 9,881, yet the number of people released under investigation in the same period was 46,674. That indicates that RUI is being used to replace bail. The checks and balances of the bail system are being swept away by a system that has neither.

The picture is incomplete, because only 20 of the 44 police forces in England and Wales have released data on RUI. However, despite the patchy data, a clear pattern emerges. For instance, in Nottinghamshire, the Thames valley and Cheshire, as in London, the number of people on bail has plummeted, while the number released under investigation has skyrocketed. Worryingly, the Bar Council estimates that the number of offenders suspected of violence against people or of sex offences who are released under investigation has risen from 1,300 in 2016 to 27,000.

[Sir Robert Neill (Bromley and Chislehurst) (Con)]

The hon. Gentleman is making a powerful point. Is not the real rub that because of the exchange in effect of bail for RUI, two safeguards are lost? The first is the protection of the accused in relation to the review process and time limits that go with bail and the ability to argue a case, and the second is the protection for the victim, who cannot have, for example, non-contact or address conditions attached? There is also, in terms of general public protection, the risk of reoffending. Is that not what Assistant Commissioner Ephgrave meant when talking about the unintended consequences?

[Bambos Charalambous]

The hon. Member makes an excellent point. It is the loss of those safeguards after the Policing and Crime Act introduced RUI, in effect to replace bail, that I am highlighting in my speech. It is easy to understand why this has happened: huge reductions in police and Crown Prosecution Service resources under austerity make it extremely difficult for evidence to be collected within the timeframes imposed by bail conditions.

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[Bambos Charalambous]

The hon. Gentleman makes an excellent point. We need to review the process that takes place before charging, but we now live in an age where more information has to be collected from phones and digitally, which takes up a fair amount of resources.

It is vital that the following issues are taken into account by the Government. First, it is essential that RUI incorporates time limits. It is understandable that the bail system needed reform. Time limits attached to bail have often been unrealistic in terms of dealing with huge amounts of digital and social media evidence, which is now often relevant to cases. It has been suggested to me by a senior police figure that a longer and staggered time period, with different levels of approval, might make bail work better. However, it is still essential that time limits of some kind are brought into the RUI system so that victims and suspects are no longer left in limbo. For these time limits to work, it is also vital that the police, the CPS and criminal lawyers are properly resourced.

Secondly, while the promised increase in police numbers by the Government is welcome, there must also be proper resourcing for the collection and sorting of evidence, especially where it is stored digitally or where forensic analysis is required. The Government must ensure that procedures and funding fit for the 21st century are in place.

Thirdly, it is imperative that certain categories of crime are excluded from the RUI system. It is entirely inappropriate for suspects accused of domestic violence, violent crime or sexual violence to be placed under RUI.

[Sir Robert Neill]

The hon. Gentleman is making an impressive speech. Could his last point be dealt with by reforms to the codes of practice set out by the Police and Criminal Evidence Act 1984, to say that the use of RUI must be proportionate? If an offence were of the nature that it would attract unconditional bail, RUI might be a convenient way forward, but it is almost inconceivable that people charged with violent or sexual offences would be released on unconditional bail. In such cases, there would normally be a non-contact condition or a condition of residence—something of that kind. It would be simple to take those offences straight out of the system and go back to bail, to the benefit of everybody.

[Bambos Charalambous]

The hon. Gentleman makes an excellent suggestion. I hope the Minister takes note of that and that it is fed into the consultation.

Finally, it is vital that where RUI is used, some conditions can be imposed. There should be a mechanism for knowing where suspects are and for preventing them from being in contact with alleged victims and witnesses. All parties should kept updated at regular intervals.

To conclude, we must uphold the two vital principles of our justice system: justice delayed must not become justice denied, and everyone has a right to be regarded as innocent until proven guilty.

[John Howell (Henley) (Con)]

It is a pleasure to serve under your chairmanship, Sir David.

The Minister will already have got the feeling from the debate that there is unanimity on both sides of the House on this issue. I will not diverge from that. I understand that the Government are undertaking a review of this area. We want the Minister to take up the issues we are raising today as part of that and to make sure that we are heard.

As my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill) said, we need a system that is proportionate. Just from the figures for the Thames Valley, it is clear that the use of RUI is not proportionate. The number of people released on bail between 2016 and 2017 was 13,768. However, in 2017-18 that fell to 379 people, and the number released under investigation was 11,053. What is happening within the police service is completely disproportionate.

In case the Minister has the impression that we are alone in raising this issue, we are not. It has been put forward strongly by the Bar Council and the Law Society, and by the Association of Chief Police Officers in its guidelines on how RUI should be brought into operation. The hon. Member for Enfield, Southgate (Bambos Charalambous) has gone into great detail about it, so I will not do that.

While there is clearly an issue of justice denied, the major issue seems to be the victims being deprived of their rights. As we have heard, there is no ability to impose orders to keep people away from the houses of those they are accused of performing some disadvantage to. The imposition of those orders, alongside general conditions, is a major feature of the bail system that does not exist in RUI. There is no ability to place conditions on a suspect who has been released under investigation; it simply does not occur. That has an enormous impact on the lives of the victims. It is not just the people who have committed the crime who are left languishing for ages, wondering what on earth is going to happen. Victims are left not knowing what is going to happen with the person who has been accused of doing them harm. We need to make sure that proper conditions are imposed. My hon. Friend the Member for Bromley and Chislehurst mentioned the need to make RUI proportionate, and that, above all, seems to me to be something that can help.

I finish with a quotation about the use of RUI:

“in reality, it has made the situation far worse”.

It goes on:

“Not only are people released under investigation for longer than they were kept on police bail, but the absence of proper scrutiny means police do not keep suspects updated as to the progress of an investigation.”

Everyone in the criminal justice system is a loser from that—from police officers to victims and the people alleged to have committed the crime. Defence lawyers are also victims of it, and my conclusion is that RUI has been a dismal failure.

[Sir Robert Neill]

There is another problem with the notification procedure. The single letter, which is sent under the current system, makes it difficult to keep tabs on people. Frequently a person has moved, making it difficult for their lawyers to keep in touch. That will then involve an application to the court for an arrest warrant, and there may be subsequent hearings and a bail application, if there is an explanation for why these things have happened. Any cost saving made by not having bail administered in the first instance is, perhaps, wiped out by the cost of extra court time for the issuing of the warrant and any proceedings thereafter. There must be a better way of dealing with that.

[John Howell]

My hon. Friend makes an excellent point, and there is another point to that: since we cannot take away people’s passports, they can go wherever they like and not be traceable. That makes a mockery of the system.

I understand why the police like RUI, since it allows them more time to gather evidence following the expiration of the timetable that they are under for pre-charge bail, but that is not a justification for continuing with a system that is now hopelessly discredited by all of us, the Law Society, the Bar Society and others. I urge the Minister to look thoroughly and carefully at this issue.

--- Later in debate ---

[James Daly (Bury North) (Con)]

I apologise if my speech sounds rather like a ramble through my years as a criminal defence solicitor. It probably will be that, but I hope that I can bring a little bit of experience on a practical level about how I have experienced the criminal justice system as a legal aid lawyer. I left just before the RUI process came into being. I had the dubious pleasure of dealing with police bail, which essentially was the same situation, but with bail conditions and people being arrested on a regular basis for breaching them. The delays were there with police bail, as they are with RUI, so that situation has not changed massively, as far as I can see.

My research for this debate was to speak to colleagues who are still practising in large practices. A friend I spoke to over the past couple of days told me that 75% of the people his firm represents who are interviewed in police stations are released on the RUI procedure. How can that possibly be? The vast majority of those case are straightforward offences. That was the point I was trying to make in my earlier intervention.

Another colleague of mine said that the situation has got to the point where, if my friend came to me and punched me on the nose—although that would clearly never happen—and I made a complaint to the police and said, “I have seen my friend, Fred Bloggs, punch me in the nose, and there is no doubt about it as I have known him for 10 years,” he would be released on this procedure. He would not be charged. He would go through this process for the best part of a year, and in the end he would almost certainly be released without charge, either because people had forgotten what they had said or the circumstances of the case, or because something else had happened.

It is a very unsatisfactory process. I would like the Government to consider going back to the custody sergeant ways. I know it is probably very old-fashioned, but I saw justice being done when I was a young lawyer. What is important here is how quickly we, as Members of Parliament, should expect the police to carry out their investigation. If the vast majority of cases are straightforward and involve two or three statements, how can that take more than 24 or 48 hours? Obviously people might be on holiday or away, but the vast majority of times, in my experience, the process literally involves a police officer going out and taking the statements, and that is it.

It has been confirmed to me by colleagues over the past couple of days that if that process happens—in most cases over a 24 or 48-hour period—and somebody is then released under investigation, when they come back to the police station in a year’s time it will almost certainly be the same evidence. Nothing will have happened, so the decision made 12 months down the line could have been made within 24 hours.

[Sir Robert Neill]

My hon. Friend makes an important point, and I know that he has real coalface experience of this. What might change a year down the track is that memories have faded, so the evidence will be less potent, which may result in a miscarriage of justice either way. We have talked about delays between charge and hearing dates in Crown and magistrates courts. If a delay is added before charge because of this system, the delay will be doubled up, which leads to that risk.

[James Daly]

For cases involving fraud or some technical matters, a process such as this should quite clearly be brought into play, because the technical examination of computers or whatever takes weeks or months. My comments are not in respect of those cases.

To follow on from a point that my colleague made, I have been told in the last 24 hours of rape and manslaughter cases following this process, which is quite incredible. It is suggested that one of those cases has direct evidence of involvement, but this process is happening. A suspect in a most horrendous rape case, similar to the one outlined, was released under this process for more than 12 months. I do not know how that can be.

We should look at the process within the police station. When a suspect goes into a police station, they will almost certainly be interviewed by an officer who does not take responsibility for the case later in proceedings. The officer who interviews does not have ownership of the case and gives it to the investigating officer, who is perhaps somewhere else in the police station or is not on shift at that moment in time, and the case gets lost within the system. My colleagues report back to me that, when this process happens, it is months down the line before the first conversation with the victim, or even the person who has been complained about. This system encourages delay and delayed justice, and that simply cannot be right.

When I first practised in court, I used to represent shoplifters or people who had committed the most straightforward offences. The court would be full of people committing that type of offence, but they are no longer within the court system; they have been taken out. We have a limited number of cases for which we have created a system in which we do not investigate these matters within an appropriate period of time. I believe that, sadly—I know that this was not the intention behind the process—this encourages tardiness and officers not prioritising these matters.

The only way of addressing this is to bring back a system in which charging has to be made within a set period of time, one way or the other, unless there is a good, proportionate and reasonable reason, or else we will continue to have these problems. We cannot have a system in which people accused of rape or manslaughter are in the community for more than 12 months, able to speak to their victim, to leave the country and to do other things. That is not the intention of the Government, the police or anybody involved in the process, but that is where we are.

I am interested to hear the Government’s view and to contribute to the review, but I say to the Minister that this comes down to who has the case initially and to carrying out the investigation at the earliest opportunity. It may be that we do not need a CPS lawyer to review all the evidence. There may be an experienced police officer who can do that, such as the custody sergeant, or there may be another way of dealing with matters that protects potential victims and the interests of those who have been involved in this process for a long time and that means that justice can be done.

At the start of my career, I believed that justice was done, but the custody sergeant did not always get it right, and there were lots of cases in which no further action happened as a result, so there is a strong argument against what I am saying. However, I can tell hon. Members, on behalf of my legal aid colleagues—I am proud to stand here as one of them, trying to represent some of the things that they believe in very passionately—that justice was done, the public were protected and the public interest was protected. I will obviously do anything I can to assist the Minister in the review.